                      SUPREME COURT OF ARIZONA
                               En Banc

STATE OF ARIZONA,                 )    Arizona Supreme Court
                                  )    No. CR-09-0266-AP
                        Appellee, )
                                  )    Pima County
                 v.               )    Superior Court
                                  )    No. CR55947
SCOTT DOUGLAS NORDSTROM,          )
                                  )
                       Appellant. )
                                  )     O P I N I O N
__________________________________)


           Appeal from the Superior Court in Pima County
              The Honorable Richard D. Nichols, Judge

                            AFFIRMED
________________________________________________________________

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

SHARMILA ROY ATTORNEY AT LAW                              Laveen
     By   Sharmila Roy
Attorney for Scott Douglas Nordstrom
________________________________________________________________

B A L E S, Vice Chief Justice

¶1         This   automatic   appeal   arises   from    Scott   Douglas

Nordstrom’s 2009 death sentences for his 1996 murders of Thomas

Hardman and Carol Lynn Noel.    We have jurisdiction under Article

6, Section 5(3) of the Arizona Constitution and A.R.S. § 13–4031

(2011). 
                                                  FACTS AND PROCEDURAL BACKGROUND

¶2                           On May 30, 1996, Scott Nordstrom and Robert Jones shot

and killed Thomas Hardman and Clarence O’Dell while robbing the

Moon Smoke Shop in Tucson.                                                State v. Nordstrom (Nordstrom I),

200 Ariz. 229, 236-37 ¶¶ 1-4, 25 P.3d 717, 724-25 (2001).                                                          Two

weeks later, Nordstrom and Jones shot and killed Carol Lynn Noel

and three others during a robbery at the Firefighters’ Union

Hall, a Tucson social club.                                               Id. at 237-38 ¶¶ 5-7, 25 P.3d at

725-26.

¶3                           Police                 arrested           Nordstrom    and    his   brother   David    in

connection with the murders.                                               Id. at 239 ¶ 17, 25 P.3d at 727.

David admitted he had accompanied Nordstrom and Jones to the

Smoke Shop, but said he had stayed outside.                                                  Id. at 243 ¶ 35, 25

P.3d at 731.                                David entered a plea bargain regarding the Smoke

Shop             robbery;                      the             State    dismissed    the    charges   against      him

related                  to         the           Union          Hall    robbery;    and    he   testified    as   the

State’s key witness in the separate trials of Nordstrom and

Jones. Id. at 238, 244 ¶¶ 10, 37, 25 P.3d at 726, 732; State v.

Jones, 197 Ariz. 290, 298 ¶ 10, 4 P.3d 345, 353 (2000).1

¶4                           At            Nordstrom’s                  trial,     eyewitness     Carla      Whitlock

identified Nordstrom as one of the men she saw run from the

                                                            
1
    A jury found Jones guilty on six counts of murder and other
charges, and he received a death sentence for each murder. See
Jones, 197 Ariz. at 297 ¶ 1, 4 P.3d 352.

                                                                            2
Smoke Shop on the night of the robbery.                       David testified that he

had   driven    Nordstrom       and    Jones      to    the    Smoke   Shop;      the    pair

entered with handguns and he heard shots; Nordstrom and Jones

later told him they had each shot a person; and the three had

split the robbery money.               David also testified that Nordstrom

told him about the Union Hall robbery.                         Nordstrom I, 200 Ariz.

at 238 ¶ 9, 25 P.3d at 726.                      Another witness, Michael Kapp,

testified that Nordstrom had solicited him to rob the Union Hall

two years earlier.             Id.     In his defense, Nordstrom presented

alibi    evidence      for    the     day   of     the    Smoke    Shop      robbery      and

evidence    suggesting        that    David       had    committed     the    crimes      and

implicated his brother to save himself.                    Id. ¶ 10.

¶5          Nordstrom          was     convicted          of     the      first      degree

premeditated murders of Hardman and Noel, of felony murder for

the     other   four     homicides,         and    of     attempted       murder,       armed

robbery, and first-degree burglary.                     Id. at 238-39 ¶ 12, 25 P.3d

at    726-27.       At       sentencing,         the    trial     judge      found      three

aggravating circumstances under A.R.S. § 13-751 - (F)(1) (prior

conviction of another offense punishable by life imprisonment or

death), (F)(5) (pecuniary gain), and (F)(8) (multiple homicides)

- and sentenced Nordstrom to death for each murder.                            Id. at 239

¶ 13, 25 P.3d at 727.                This Court affirmed on direct appeal.

Id. at 257 ¶ 99, 25 P.3d at 745.

¶6          Before our mandate issued, the Supreme Court decided
                                             3
Ring v. Arizona, 536 U.S. 584 (2002).                                              In light of Ring, this

Court               vacated                    Nordstrom’s           death    sentences   and    remanded    for

resentencing, concluding that a jury might have assessed the

mitigating circumstances differently than did the judge.                                                    State

v. Nordstrom (Nordstrom II), 206 Ariz. 242, 248 ¶¶ 26-28, 77

P.3d 40, 46 (2003).                                            The State subsequently withdrew its death

penalty allegation for the four felony murder convictions and

its (F)(5) and (F)(8) aggravator allegations for the murders of

Hardman and Noel.2

¶7                           At the new aggravation phase, the State argued that

the murder of Hardman established the (F)(1) aggravating factor

for Noel’s murder and vice-versa.                                               The jury found the (F)(1)

aggravator                          for             each        murder.       Nordstrom   then    waived     the

presentation of mitigation evidence and declined to allocute.

At the penalty phase, the State presented details about the


                                                            
2
  After the remand, the parties extensively litigated issues
regarding the resentencing proceedings, resulting in several
special actions in the court of appeals. For example, although
Nordstrom II held it was harmless error for the trial judge,
rather than a jury, to have found the aggravating factors, 206
Ariz. at 247 ¶ 17, 77 P.3d at 45, the court of appeals ruled
that legislation enacted after Ring required the jury to find
aggravating factors.    See Nordstrom v. Cruikshank, 213 Ariz.
434, 438 ¶ 10, 142 P.3d 1247, 1251 (App. 2006).     The court of
appeals also ruled that Nordstrom could present alibi evidence
in rebuttal if the State sought the death penalty for the felony
murder convictions. See State v. Nichols (Nordstrom), 219 Ariz.
170, 177 ¶¶ 19-20, 195 P.3d 207, 214 (App. 2008).

                                                                          4
Hardman         and    Noel    murders      and     also    introduced           evidence        of

Nordstrom’s convictions for the four other homicides and other

crimes      at    the      Smoke    Shop    and     Union   Hall.          The    State        also

established           that    Nordstrom      was    on    parole        when    the     offenses

occurred.         The jury determined Nordstrom should receive death

sentences for both murders.

                                           DISCUSSION

     A.          Penalty Phase Evidentiary Rulings

¶8               Nordstrom      argues       that    the        trial     court        erred     by

allowing the State to offer evidence during the penalty phase of

the four felony murders when he did not present any mitigating

evidence.             We   review   admission       of    evidence       for     an    abuse     of

discretion, State v. Lehr, 227 Ariz. 140, 147 ¶ 19, 254 P.3d

379,      386    (2011),      and   issues     of    constitutional            and     statutory

interpretation de novo, State v. Roque, 213 Ariz. 193, 217 ¶ 89,

141 P.3d 368, 392 (2006).

¶9               Section      13-751(G)     states       that    “[t]he        trier    of     fact

shall consider as mitigating circumstances any factors proffered

by    the   defendant         or    state    that    are    relevant       in     determining

whether to impose a sentence less than death, including any

aspect of the defendant’s character, propensities or record and

any of the circumstances of the offense.”                           Similarly, A.R.S. §

13-752(G) states:

       At the penalty phase, the defendant and the state may
                                               5
            present   any  evidence   that   is  relevant   to  the
            determination of whether there is mitigation that is
            sufficiently substantial to call for leniency.       In
            order for the trier of fact to make this determination,
            the state may present any evidence that demonstrates
            that the defendant should not be shown leniency.3

¶10                          The provisions, taken together, evince a legislative

intent                 to          permit                 the   state   to       introduce   relevant     evidence

whether                   or          not            the       defendant       presents   evidence   during     the

penalty phase.                                      “Section 13-752(G) is framed broadly. . . .

Subject to overarching due process considerations, any evidence

that meets § 13-752(G)’s criterion is admissible, regardless of

whether the evidence was admissible at a prior stage of the

trial.”                      State v. Prince, 226 Ariz. 516, 526 ¶ 15, 250 P.3d

1145,              1155              (2011)                (internal    citation     omitted).       As   we   have

noted:

        At the penalty phase, the jury must make “a reasoned,
        individualized sentencing determination based on a death-
        eligible defendant’s record, personal characteristics, and
        the circumstances of his crime.”     Kansas v. Marsh, 548
        U.S. 163, 174 (2006) (citing Gregg v. Georgia, 428 U.S.
        153, 189 (1976) (Stewart, J., plurality opinion)).
        Construing § 13-752(G) as generally authorizing the
        admission of evidence concerning the circumstances of the
        crime and the aggravating factors thus preserves the
                                                            
3
      This opinion cites the current version of statutes unless
otherwise indicated.    In 2012, the legislature amended § 13-
752(G) to read: “In order for the trier of fact to make this
determination, regardless of whether the defendant presents
evidence of mitigation, the state may present any evidence that
demonstrates that the defendant should not be shown leniency
including any evidence regarding the defendant’s character,
propensities, criminal record or other acts.” 2012 Ariz. Sess.
Laws ch. 207, § 3 (2nd Reg. Sess.). 
                                                                           6
      entire statutory scheme’s constitutionality.

Prince, 226 Ariz. at 527 ¶ 20, 250 P.3d at 1156.

¶11          The trial court did not err by allowing the State to

introduce evidence of Nordstrom’s four felony murders or the

fact that he was on parole when he committed the murders.                               The

facts    surrounding        the   two       first   degree   murders,      as    well    as

Nordstrom’s felony murders, were relevant to whether Nordstrom

deserved leniency.           See State v. Pandeli, 215 Ariz. 514, 529

¶¶ 52-53, 161 P.3d 557, 571-72 (2007) (upholding admission of

evidence    of    a    murder     in    a    separate   incident    as     relevant      to

whether     defendant        deserved         leniency);     see    also        State    v.

Armstrong, 218 Ariz. 451, 461 ¶ 38, 189 P.3d 378, 388 (2008).

¶12          The evidence, moreover, was not unduly prejudicial.

At the penalty phase, the State introduced photographs of the

victims and presented witnesses who described the crime scenes.

Testimony    is       not   unduly      prejudicial      where     “[t]he       witnesses

simply provided details of the crime scene and described . . .

injuries.”       Pandeli, at 529 ¶ 53, 161 P.3d at 571 (finding trial

court did not abuse its discretion by admitting evidence of

murder in separate incident).

¶13          Nordstrom also argues that admission of evidence about

the felony murders violated due process, contending that we have

held that “[e]vidence presented for rebuttal must be relevant to

the mitigation proffered.”                  State v. Boggs, 218 Ariz. 325, 339
                                              7
¶ 65, 185 P.3d 111, 125 (2008); see also State v. Hampton, 213

Ariz. 167, 180 ¶ 51, 140 P.3d 950, 963 (2006).                   Although these

cases appropriately limit the scope of evidence that the state

may   present    to   rebut     mitigation    presented     by    the    defense,

neither their holdings nor the due process clause preclude the

state from offering evidence of the circumstances of the crime

when the defendant does not present any mitigation.

¶14        Nordstrom      also    contends    the   trial    court      erred   by

barring him from introducing trial transcripts from his 1998

trial to rebut the State’s penalty phase evidence.                      Nordstrom

characterized the transcripts as “innocence related evidence”

and did not proffer guilt phase evidence for other purposes.

¶15        The trial court determined that the transcripts were

evidence   of     residual       doubt.        “[A]     defendant        has    no

constitutional    right    to    present     residual   doubt      evidence     at

sentencing.”     State v. Moore, 222 Ariz. 1, 20 ¶ 109, 213 P.3d

150, 169 (2009); see also State v. Harrod (Harrod III), 218

Ariz. 268, 281 ¶ 46, 183 P.3d 519, 532 (2008).

¶16        Nordstrom attempts to distinguish              Moore    and similar

cases by arguing that they involved situations in which the

defendant sought to introduce residual doubt evidence at the

penalty phase that had not been presented at the guilt phase.

He also notes that his “innocence related evidence” concerned

not only the Noel and Hardman murders, but also the four felony
                                       8
murders and other related crimes.                        These distinctions are not

persuasive.         This     Court       has       observed        that    “there       is    no

constitutional requirement that the sentencing proceeding jury

revisit    the    prior     guilty   verdict          by      considering        evidence     of

‘residual doubt’.”          State v. Ellison, 213 Ariz. 116, 136 ¶ 82,

140 P.3d 899, 919 (2006).                This observation applies equally to

guilt    phase    evidence     offered         solely      to    show     the    defendant’s

innocence of the crimes for which the death penalty is sought

and    related    crimes     for   which        the      defendant       was     concurrently

convicted.

  B.         Prosecutorial Misconduct

¶17          Nordstrom      argues       that      the     trial      court     violated     his

rights under the Double Jeopardy Clauses of the Fifth Amendment

to the United States Constitution and Article 2, Section 10 of

the     Arizona    Constitution          by     refusing         to    grant     a    pretrial

evidentiary       hearing    on    his    motion         to    dismiss     on     grounds     of

prosecutorial misconduct.                We review constitutional issues de

novo.     Roque, 213 Ariz. at 217 ¶ 89, 141 P.3d at 392.

¶18          In 2006, Nordstrom moved to dismiss the indictment or,

alternatively,       to      preclude         the        death        penalty,       based    on

prosecutorial misconduct discovered after the former prosecutor

died.       The     alleged       misconduct          principally         concerned          that

prosecutor’s       failure    to     disclose         information          that      Nordstrom

contends would have impeached testimony by David Nordstrom or
                                               9
other witnesses.          The State opposed the motion, disputing many

of    Nordstrom’s     allegations.               The     State     also       argued     that

Nordstrom had already litigated some of the issues and that he

could   raise      others    only     in    a     Rule       32   petition      for     post-

conviction    relief.         The     trial      court       ruled      that    it     lacked

jurisdiction to consider the merits of Nordstrom’s arguments and

that the Double Jeopardy Clauses did not bar the resentencing.

¶19          The trial court did not have jurisdiction on remand to

consider Nordstrom’s attacks on the validity of his convictions.

This Court affirmed Nordstrom’s convictions on direct appeal in

Nordstrom     I,    later    vacated        only       his    death     sentences,        and

remanded    the    case     solely    for    resentencing          by     a    jury.      See

Nordstrom II, 206 Ariz. at 248 ¶ 28, 77 P.3d at 46.                             The remand

order did not encompass consideration of guilt phase issues.

¶20          Nor did the resentencing violate double jeopardy.                             “A

capital defendant whose original sentence is vacated on appeal

can be resentenced to death so long as the defendant has not

been ‘acquitted’ of the death sentence.”                          State v. Ring (Ring

III), 204 Ariz. 534, 551 ¶ 40, 65 P.3d 915, 932 (2003).

¶21          Nordstrom relies on State v. Minnitt, 203 Ariz. 431,

55 P.3d 774 (2002), to argue that double jeopardy prevents him

from being resentenced to death because his convictions were

obtained     by    intentional       prosecutorial           misconduct.             Minnitt,

however, is not apposite.            In that case, we held that the Double
                                            10
Jeopardy Clause barred a retrial of the guilt phase after the

state       had    intentionally         used    perjured         testimony       in     a    trial

ending with a hung jury.                 Id. at 440 ¶ 45, 55 P.3d at 783.                        In

contrast, Nordstrom did not face a retrial of the guilt phase,

and the record does not establish that the prosecution knowingly

used perjured testimony.

¶22               The trial court correctly ruled that Nordstrom would

need to seek relief under Rule 32 to pursue his claims that

prosecutorial            misconduct      discovered       after       his       direct       appeal

should invalidate his convictions.                       Cf. Nordstrom I, 200 Ariz.

at 255 ¶¶ 89-91, 25 P.3d at 743 (affirming trial court’s denial

of Rule 24.4 motion to vacate and noting that claims of newly

discovered         impeachment         evidence      could     be    raised       in     Rule    32

proceeding).             We of course do not address the merits of those

claims or whether any of them may be precluded under Rule 32.2.

  C.              Denial of Rule 24 Motion
         
¶23               Nordstrom argues that, after the jury determined he

should       receive         death     sentences,       the    trial       court       erred     by

declining to rule on his motion to vacate the judgment.

¶24               In     September      2009,     after       the     jury        resentencing

verdicts,          the       trial   court      entered       judgment          and    sentenced

Nordstrom         to     death.      Nordstrom       filed    a     Rule    24.2       motion    to

vacate      the        judgment,     arguing     that     evidence         of    prosecutorial

misconduct             was    “newly     discovered       material          evidence”          that
                                                11
rendered    his   previous   convictions   invalid.       The   trial   court

denied this motion, concluding that it was untimely.

¶25         Rule 24.2 provides:

        Upon motion made no later than 60 days after the entry
        of judgment and sentence but before the defendant’s
        appeal, if any, is perfected, the court may vacate the
        judgment on any of the following grounds:
        (1) That it was without jurisdiction of the action;
        (2) That newly discovered material facts exist, under
        the standards of Rule 32.1; or
        (3) That the conviction was obtained in violation of
        the United States or Arizona Constitutions.

Ariz. R. Crim. P. 24.2(a) (2012); see also id. cmt. (“Rule 24.2

sets the time limit of 60 days for such motions; after that the

defendant may only petition for relief under Rule 32.”).

¶26         Judgment was entered on Nordstrom’s convictions in May

1998.      We affirmed his convictions in Nordstrom I and later

vacated only the death sentences.          When the trial court entered

a judgment resentencing Nordstrom in 2009, it did not enter new

judgments on the convictions, but only imposed new sentences.

Thus, the validity of the convictions was not before the trial

court in 2009, and Nordstrom’s Rule 24.2 motion to vacate was

untimely.     See State v. Dann, 220 Ariz. 351, 360 ¶ 26, 207 P.3d

604, 613 (2009) (refusing to address on appeal from resentencing

whether     defendant’s      murder   convictions     were      void    after

convictions were affirmed).

  D.        Due Process Rights

¶27         Nordstrom   makes   several    interrelated    arguments     that
                                      12
the trial court erred by preventing him from challenging the

convictions that served as the (F)(1) aggravators for the two

murders.    We review constitutional claims de novo.                     Roque, 213

Ariz. at 217 ¶ 89, 141 P.3d at 392.                  Exclusion of evidence is

reviewed for an abuse of discretion.                  Lehr, 227 Ariz. at 147

¶ 19, 254 P.3d at 386.

¶28         Nordstrom first argues that Rule 13.5(c) entitled him

to have a neutral magistrate adjudicate the “legal sufficiency”

of the (F)(1) aggravators.          Under Rule 13.5(c), a defendant is

entitled to require the state to establish probable cause for an

alleged aggravating factor before it is submitted to a jury.

Chronis v. Steinle, 220 Ariz. 559, 562 ¶¶ 15, 18, 208 P.3d 210,

213    (2009).    Here,   on     remand,      the   trial    court     reviewed   the

evidence and found probable cause to try Nordstrom on the (F)(1)

aggravators,     noting   that    this     Court     had    affirmed    Nordstrom’s

premeditated murder convictions and the original findings of the

(F)(1) aggravators on direct appeal in Nordstrom I and later in

Nordstrom II.     Thus, Rule 13.5 was satisfied.

¶29         Nordstrom also alleges that his underlying convictions

were    constitutionally    invalid        because    they    were     obtained   by

prosecutorial misconduct, and therefore the (F)(1) aggravators

based on these convictions were also invalid.                  But when the case

was remanded for resentencing of the capital murder convictions,

Nordstrom was not entitled to collaterally attack the validity
                                         13
of    the    convictions         that     were       affirmed     on     direct     appeal.

“[W]here     .    .   .    the   conviction          is   valid    on    its    face,     the

defendant is precluded from attempting to undermine the validity

of the conviction by collateral attack.”                        State ex rel. Collins

v. Superior Court, 157 Ariz. 71, 75, 754 P.2d 1346, 1350 (1988);

see also State v. Gretzler (Gretzler I), 128 Ariz. 583, 585-86,

627   P.2d       1081,     1083-84      (1981)       (prior    convictions        not   void

because no violation of Boykin v. Alabama, 395 U.S. 238 (1969),

was apparent in acceptance of guilty pleas).

¶30          Nordstrom alternatively argues that the trial court

should have permitted him to rebut the State’s case during the

aggravation phase by allowing him to present evidence of his

alibi and prosecutorial misconduct (that is, the alleged non-

disclosure of impeachment material).                       This argument, however,

merely recasts his arguments that he should have been allowed,

on re-sentencing, to introduce residual doubt evidence.

¶31          Finally, Nordstrom argues that the trial court abused

its   discretion          by   declining       to    strike     the     first     panel    of

prospective        jurors      after     the     court     revealed       to    them      that

Nordstrom had been convicted of four murders in addition to the

two    for       which     the    State        was     pursuing        death    sentences.

Nordstrom,        however,       does     not       identify      how    the    jury       was

prejudiced, given that the four felony murder convictions were

properly admitted as evidence in the penalty phase.                               Moreover,
                                               14
to    determine    if     the    prospective      jurors       could    be     fair    and

impartial, the trial judge needed to apprise them about the

facts of the case, which included Nordstrom’s convictions for

four murders in addition to the Hardman and Noel murders.

     E.      Contemporaneous Convictions

¶32          The (F)(1) aggravating circumstance exists when the

“defendant has been convicted of another offense in the United

States    for     which     under    Arizona       law     a     sentence      of     life

imprisonment or death was imposable.”                    A.R.S. § 13-751(F)(1).

Nordstrom    argues       that   this     Court    should       strike    the       (F)(1)

aggravating       circumstance      for    the     Hardman       and    Noel     murders

because   the     legislature       did   not     intend       that    contemporaneous

convictions would establish this aggravator.                      We review matters

of statutory interpretation de novo.                  Roque, 213 Ariz. at 217

¶ 89, 141 P.3d at 392.

¶33          In 2003, the legislature amended A.R.S. § 13-751(F)(2)

to explicitly allow “offenses committed on the same occasion” or

offenses “not committed on the same occasion, but consolidated

for trial with the homicide” to establish the (F)(2) aggravating

circumstance.       2003 Ariz. Sess. Laws, ch. 255, § 1 (1st Reg.

Sess.)    The legislature did not similarly amend A.R.S. § 13-

751(F)(1).        Nordstrom      infers    that    the     legislature         therefore

intended that contemporaneous convictions could not establish

the (F)(1) aggravating circumstance.
                                          15
¶34         We disagree.            “As long as the prior conviction is

entered     before   the         sentencing       hearing,     the    conviction        may

support the (F)(1) aggravator even if it is committed before,

contemporaneously with, or after the capital homicide.”                             State

v. Tucker, 215 Ariz. 298, 320 ¶ 98, 160 P.3d 177, 199 (2007);

see also State v. Gretzler (Gretzler II), 135 Ariz. 42, 57 n.2,

659 P.2d 1, 16 n.2 (1983).                     Relying in part on the (F)(1)

aggravating      circumstance,          we     previously       upheld        six   death

sentences for Nordstrom’s co-participant in the Smoke Shop and

Union Hall murders.              Jones, 197 Ariz. at 314 ¶ 82, 4 P.3d at

369.   Although the six murders did not occur in one incident, we

concluded     that      “because        each      set   of    murders        provides     a

sufficient basis for finding the factor as to the other set of

murders,    we   find      the    F.1   factor      proven     beyond    a    reasonable

doubt.”     Id. at 311 ¶ 63, 4 P.3d at 366.                         Similar reasoning

applies here.

¶35         Although the legislature amended the (F)(2) aggravator

in 2003 to explicitly include contemporaneous convictions, the

amendment does not reflect an intent to exclude contemporaneous

convictions from serving as an (F)(1) aggravator.                        Instead, the

2003 amendment evidently was intended to displace our ruling in

State v. Rutledge, 206 Ariz. 172, 175-78 ¶¶ 15–25 & n.3, 76 P.3d

443,   446–49    &   n.3    (2003),      which      held     that    crimes    occurring

during the same course of events as the murder could not serve
                                             16
as (F)(2) qualifying serious offenses.                The legislature did not

need to similarly amend (F)(1) because this Court had previously

approved    the    use   of   concurrent      convictions         to    establish   the

(F)(1) aggravator.        See Jones, 197 Ariz. at 310-11 ¶¶ 60-63, 4

P.3d at 365-66.

  F.        Rule 20 Motion

¶36         Nordstrom        argues    that   the    trial    court          erroneously

denied his Rule 20 motion for judgment of acquittal after the

State failed to present evidence that life imprisonment or death

were imposable sentences for the murders of Hardman and Noel.

The trial court instructed the jury that these murders were

subject to such penalties.              Nordstrom contends that the judge

erroneously       relieved    the     State   of    its    duty    to    prove     every

element of the (F)(1) aggravator.             The trial court’s denial of a

Rule 20 motion is reviewed de novo.                  State v. West, 226 Ariz.

559, 562 ¶ 15, 250 P.3d 1188, 1191 (2011).

¶37         The statutory sentencing range for crimes is a matter

of law rather than fact and does not require a jury finding.

See State v. Moody, 208 Ariz. 424, 470 ¶ 216, 94 P.3d 1119, 1165

(2004).     The State was not obligated to present testimony or

other     evidence    proving       matters    of    law     such       as    statutory

sentencing ranges.        Thus, the court appropriately instructed the

jury that Nordstrom’s convictions for premeditated murder were

punishable by sentences of life imprisonment or death.
                                         17
  G.         Individualized Sentencing

¶38          Nordstrom argues that he was denied his right to an

individualized sentencing because the trial court did not allow

him to present any of the guilt phase evidence, including the

trial     transcripts     consisting      of   alibi     and     innocence-related

evidence, to the new sentencing jury.                  We review constitutional

claims de novo.       Roque, 213 Ariz. at 217 ¶ 89, 141 P.3d at 392.

¶39          In    challenging    the    exclusion       of    evidence          from   the

aggravation and penalty phases, Nordstrom does not identify any

guilt phase evidence other than the residual doubt evidence.                            As

discussed above, the trial court properly precluded Nordstrom

from presenting guilt phase evidence to show residual doubt.

“During    the     aggravation    and    penalty       phase,    a     jury      may    not

revisit    its     initial    guilty    verdict.       The    only     issue       at   the

aggravation phase is whether any aggravating circumstances have

been proved; the only issue during the penalty phase is whether

death is the appropriate sentence.”                  Anderson, 210 Ariz. at 348

¶ 86, 111 P.3d at 390.

  H.         Victim Photographs

¶40          Nordstrom       argues    that    the    trial     court       abused      its

discretion in allowing the State to introduce photographs of the

crime     scenes    showing    the     victims’      bodies.          He    claims      the

photographs        were   irrelevant      because       he      did        not    present

mitigation.        Nordstrom also claims they were unduly prejudicial
                                         18
because they served only to inflame the jurors.                           We review the

admissibility of evidence for an abuse of discretion.                           See State

v. Spreitz, 190 Ariz. 129, 141, 945 P.2d 1260, 1271 (1997).

¶41          Photographs of the crime scenes showing the victims’

bodies   were      relevant     to    show       the    circumstances      of    the     two

capital murders.         As explained above, supra ¶ 12, the State was

entitled     to    present      evidence         regarding       those    circumstances

during the penalty phase even though Nordstrom chose not to

present mitigation evidence.               Nor does the record show that the

photographs       were   offered      only       to    inflame    the    jury    or    were

otherwise unduly prejudicial.                The photographs merely described

the layout of each crime scene and identified the victims.

  I.         Independent Review

¶42          Because Nordstrom committed the murders before August

1, 2002, we must independently review his death sentences.                               See

A.R.S. § 13-755(A).

             1. Aggravating Circumstances

¶43          The    State      proved      the        (F)(1)   aggravator       beyond     a

reasonable    doubt      for   each       murder.        Witnesses       testified     that

Nordstrom    was    convicted        at    his    original       trial    of    murdering

Hardman and Noel, and the State also introduced copies of the

jury verdicts.       Each conviction was punishable by a sentence of

life   imprisonment      or    death,      and        each   established       the   (F)(1)

aggravator for the other premeditated murder.
                                            19
              2. Mitigating Circumstances

¶44           Nordstrom presented no mitigation evidence and did not

allocute.      Although mitigation evidence may be found anywhere in

the    record,      there      is    little       evidence        before         this    Court   to

suggest that Nordstrom is entitled to leniency.

¶45           When Nordstrom was originally sentenced to death in

1998, the trial judge found that he had not proved any statutory

mitigating       circumstances,            but     had       proved      two      non-statutory

mitigators: “employment history” and “caring family and parent

relationships.”          The trial court also noted that Nordstrom had

no prior convictions for serious offenses, but did not find this

mitigating       given      Nordstrom’s           convictions          in    this       case     for

multiple murders on different occasions.                           Nordstrom I, 200 Ariz.

at 256-57 ¶ 97, 25 P.3d at 744-45.

¶46           The    State          argues        that       we    should         not    consider

mitigation       evidence       that        was        not   introduced           at    the    2009

resentencing.            “In        our    independent            review     of        aggravating

circumstances, we have declined to consider evidence that the

sentencing jury did not hear,” Lehr, 227 Ariz. at 155 ¶ 80, 254

P.3d    at    394,      and    the        State        argues     that      we    should       treat

mitigating evidence similarly.                    Even if we consider the evidence

from    the      1998     sentencing,             however,        we     find      it     is     not

significantly mitigating.


                                                  20
            3. Propriety of Death Sentence

¶47         In reviewing the propriety of the death sentence, we

consider the quality and the strength, not simply the number, of

aggravating and mitigating factors.           State v. Greene, 192 Ariz.

431, 443 ¶ 60, 967 P.2d 106, 118 (1998).                 Nordstrom murdered

Hardman in a robbery in which he killed another person, and he

was eligible for a death sentence because he was previously

convicted of the premeditated murder of Noel in a different

robbery.    He was on parole when he committed the murders, and he

presented    no   mitigation      at    the   resentencing.       Under     the

circumstances, “the mitigation is not sufficiently substantial

to warrant leniency.”       A.R.S. § 13-755(B).          The same conclusion

applies with respect to the murder of Noel, which Nordstrom

committed in a robbery in which three others were murdered.

  J.        Preservation of Issues for Federal Review

¶48         To avoid preclusion, Nordstrom lists twenty additional

constitutional    claims   that    he    states   have    been   rejected   in

previous decisions.        The appendix lists these claims and the

decisions Nordstrom identifies as rejecting them.

                               CONCLUSION

¶49         We affirm Nordstrom’s sentences.


                             __________________________________
                             Scott Bales, Vice Chief Justice


                                       21
CONCURRING:


__________________________________
Rebecca White Berch, Chief Justice


__________________________________
A. John Pelander, Justice


__________________________________
Robert M. Brutinel, Justice


__________________________________
Maurice Portley, Judge*


* Pursuant to Article 6, Section 3 of the Arizona Constitution,
the Honorable Maurice Portley, Judge of the Arizona Court of
Appeals, Division One, was designated to sit in this matter.




                               22
                              APPENDIX

           Nordstrom raises twenty issues to preserve them for

federal review.    This Appendix lists verbatim his claims and the

decisions he identifies as rejecting them.

  1.        The prosecutor’s discretion to seek the death penalty
       has no standards and therefore violates the Eighth and
       Fourteenth Amendments to the United States Constitution and
       Article 2, Sections 1, 4, and 15 of the Arizona
       Constitution.   See State v. Cromwell, 211 Ariz. 181, 192,
       119 P.3d 449, 459 (2005).

  2.        Arizona’s   death  penalty   is  applied   so  as   to
       discriminate against poor, young, and male defendants whose
       victims have been Caucasian, in violation of the Eighth and
       Fourteenth Amendments and Article 2, Sections 1, 4, and 13
       of the Arizona Constitution. See State v. West, 176 Ariz.
       432, 455, 862 P.2d 192, 215 (1993).

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

  4.        Execution by lethal injection is per se cruel and
       unusual punishment.    State v. Van Adams, 194 Ariz. 408,
       422, 984 P.2d 16, 30 (1999); State v. Hinchey, 161 Ariz.
       307, 315, 890 P.2d 602, 610 (1996).

  5.        Arizona’s death penalty statute unconstitutionally
       requires defendants to prove that their lives should be
       spared. State v. Fulminante, 161 Ariz. 237, 258, 779 P.2d
       602, 623 (1988).

  6.        Arizona’s death penalty statute unconstitutionally
       requires imposition of the death penalty whenever at least
       one    aggravating    circumstance  and    no    mitigating
       circumstances exist. State v. Miles, 186 Ariz. 10, 19, 918
       P.2d 1028, 1037 (1996).

  7.        The statute unconstitutionally fails to require the
       cumulative consideration of multiple mitigating factors or
       require specific findings to be made as to each factor.
                                 23
     State v. Gulbrandson, 184 Ariz. 46, 69, 906 P.2d 579, 602
     (1995).

8.        The death penalty is unconstitutional because it
     permits jurors unfettered discretion to impose death
     without adequate guidelines.   State v. Johnson, 212 Ariz.
     425, 133 P.3d 735, 750 (2006).

9.        The statute is unconstitutional because there are not
     statutory standards for weighing.     State v. Atwood, 171
     Ariz. 576, 645-46, 832 P.2d 693, 662-63 (1992).

10.     The statute insufficiently channels the sentencer’s
   discretion in imposing the death sentence.         State v.
   Greenway, 170 Ariz. 151, 164, 823 P.2d 22, 31 (1991).

11.     Appellant claims that a proportionality review of a
   defendant’s death sentence is constitutionally required.
   State v. Gulbrandson, 184 Ariz. 46, 73, 906 P.2d 579, 606
   (1995).

12.     Appellant claims that the State’s failure to allege an
   element of a charged offense, the aggravating factors that
   made the defendant death eligible, is a fundamental defect
   that renders the indictment constitutionally defective.
   McKaney v. Foreman, 209 Ariz. 268, 271, 100 P.3d 18, 21
   (2004).

13.     Appellant asserts that the application of the new
   death penalty statute passed in response to Ring v.
   Arizona, 536 U.S. 584 (2002), violates a defendant’s right
   against ex post facto application of new laws.     State v.
   Ring, 204 Ariz. 534, 547, 65 P.3d 915, 928 (2003).

14.     Subjecting Appellant to a new trial on the issues of
   aggravation and punishment before a new jury violated the
   double jeopardy clause of the Fifth Amendment.     State v
   Ring, 204 Ariz. 534, 547, 65 P.3d 915, 928 (2003).

15.     Arizona’s statutory scheme for considering mitigating
   evidence is unconstitutional because it limits full
   consideration of that evidence.   State v. Mata, 215 Ariz.
   233, 242, 609 P.3d 48, 57 (1980).

16.     The absence of notice of aggravating factors prior to
   Appellant’s guilt phase trial violates the Sixth, Eighth,
   and Fourteenth Amendments.   State v. Anderson, 210 Ariz.
                              24
  327, 347, 111 P.3d 369, 389 (2005).

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

18.     Subjecting Appellant to a new trial on the issues of
   aggravation and punishment before a new jury violated the
   due process clause of the Fourteenth Amendment.     State v.
   Ellison, 213 Ariz. 116, 137, 140 P.3d 899, 920 (2006).

19.     Requiring the jury to unanimously determine whether
   the mitigating factors were sufficiently substantial to
   call for leniency violated the Eighth Amendment. State v.
   Ellison, 213 Ariz. 116, 137, 140 P.3d 899, 920 (2006).

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




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