                                  IN THE

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

                                     v.

                         ANDRE MICHAEL LETEVE,
                               Appellant.

                            No. CR-12-0535-AP
                           Filed August 12, 2015

           Appeal from the Superior Court in Maricopa County
               The Honorable Karen L. O'Connor, Judge
                          No. CR2010-005965
                              AFFIRMED

COUNSEL:

David Goldberg (argued), Attorney at Law, Fort Collins, CO, Attorney for
Andre Michael Leteve

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor
General, Lacey Stover Gard, Chief Counsel, Capital Litigation Section, Julie
A. Done (argued), Assistant Attorney General, Phoenix, Attorneys for State
of Arizona

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

CHIEF JUSTICE BALES, opinion of the Court:

¶1            This automatic appeal arises from Andre Michael Leteve’s
convictions and death sentences for murdering his two young sons. We
have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution
and A.R.S. §§ 13-4031 and 13-4033(A)(1).
                             STATE V. LETEVE
                            Opinion of the Court

                              BACKGROUND

¶2             Leteve married Laurie in 1998. They had two sons: Alec in
2004 and Asher in 2008. After Leteve revealed a series of marital infidelities,
Laurie moved out of their home in August 2009 and filed for divorce two
months later. On the day Laurie filed for divorce, Leteve bought a
handgun. In the following months, he retaliated against Laurie in several
ways. Events tragically culminated in late March 2010, when Alec and
Asher were staying at Leteve’s home. On the morning of March 31, Leteve
called 911 to report that he had killed his two sons and attempted to commit
suicide. When police arrived, they found each child shot to death, and
Leteve had a gunshot wound to his face. He repeated that he had shot his
sons. Police also found a letter to Laurie that Leteve had prepared days
earlier. It ended by saying, “Enjoy the rest of your life without us.”

¶3           A jury found Leteve guilty of two counts of first degree
murder. The jury also found three aggravating circumstances: Leteve had
committed the murders in an especially heinous or depraved manner, he
was convicted of multiple homicides committed on the same occasion, and
each victim was under the age of fifteen. A.R.S. §§ 13-751(F)(6), (F)(8),
(F)(9). Considering these factors and the mitigation evidence, the jury
sentenced Leteve to death for each murder.

                               DISCUSSION

       A. Admissibility of Leteve’s Statements to Police at His Home

¶4            Statements made by a suspect during custodial interrogation
generally are not admissible unless preceded by the warnings required by
Miranda v. Arizona, 384 U.S. 436, 444 (1966). Leteve argues that the trial
court erred by admitting statements he made to police officers at his home
before he was given Miranda warnings. We reject this argument because
the statements were admissible under the “public safety” exception to the
Miranda rule recognized in New York v. Quarles, 467 U.S. 649, 656 (1984).

¶5             Just after he killed his sons, Leteve shot himself in the chin
and the bullet exited through his nose. These wounds made it difficult for
the 911 operator to understand him. When he tried to tell her that he had
shot his sons, ages one and five, the operator understood him to say that he
had shot one son, age fifteen. She relayed this information to the police.

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                             STATE V. LETEVE
                            Opinion of the Court

¶6            When the police arrived at Leteve’s home, they saw Leteve
bleeding profusely from his face and a young child lying on a couch. For
safety reasons, Leteve was handcuffed and questioned by two officers. One
officer asked Leteve if he had killed the child on the couch, and Leteve
nodded up and down. As officers inspected the child, they asked Leteve
where he had shot the child and he said, “In the back of the head.”

¶7             A second officer opened Leteve’s shirt to check for other
injuries, asking Leteve what had happened. Leteve responded that he had
shot his children. The officer asked where his children were and Leteve
said one was on the couch and the other was upstairs. The officer asked
Leteve to be more specific, and he said the second child was in the crib.
When the officer asked Leteve where he had shot his children, Leteve again
said, “In the back of the head.” The officer asked Leteve what had
happened to him, and Leteve answered that he had shot himself in the chin,
lifting his head to show the officer the injury. The officer asked if anyone
else was home, and Leteve said no. Noting Leteve’s wedding ring, the
officer asked, “Where is your wife?” Leteve answered, “At work.” The
officer then asked, “Why did you do this?” Leteve replied, “I don’t know.”

¶8           Leteve moved to suppress these statements, arguing that they
were involuntary and made before he received Miranda warnings. The trial
court ruled that the statements were voluntary and, except for Leteve’s
answer to the final question, admissible under Quarles. (At trial, after the
State introduced evidence of Leteve’s other statements, Leteve elicited
through cross-examination that he had said “I don’t know” when asked
why he had done this.) On appeal, Leteve argues only that his statements
were admitted in violation of Miranda; the State does not dispute that he
was in custody and being questioned when he made the statements.

¶9             Under Quarles, a suspect’s statements made in response to
“questions necessary to secure [the officers’] own safety or the safety of the
public” are admissible even if Miranda warnings have not been given. 467
U.S. at 659. Whether questioning falls within the public safety exception
turns on “whether there was an objectively reasonable need to protect the
police or the public from any immediate danger.” State v. Ramirez, 178 Ariz.
116, 124, 871 P.2d 237, 245 (1994) (quoting United States v. Brady, 819 F.2d
884, 888 n.3 (9th Cir. 1987)).



                                      3
                             STATE V. LETEVE
                            Opinion of the Court

¶10            Here, the officers reasonably asked questions to assess what
had occurred (particularly given their misimpression that Leteve had
reported shooting one fifteen-year-old child), to determine the nature of the
injuries to those present, and to identify any remaining threats. The only
question that might be characterized as “designed solely to elicit
testimonial evidence from a suspect,” Quarles, 467 U.S. at 659, was the police
asking Leteve why he had committed the murders. Leteve, having himself
introduced his response at trial, cannot object on appeal to its admission.
The trial court did not abuse its discretion in admitting evidence of Leteve’s
other statements to officers at his home.

       B. Admissibility of Evidence of Leteve’s Other Acts

¶11            Leteve argues that the trial court abused its discretion in
admitting other acts evidence under Arizona Rule of Evidence 404(b). That
rule precludes evidence of “other crimes, wrongs, or acts” to prove the
character of a defendant or “action in conformity therewith.” Ariz. R. Evid.
404(b). Such evidence may be admissible, however, for other purposes,
such as “proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Id. When other
acts evidence is offered for a non-propensity purpose under Rule 404(b), it
is also subject to Rule 402’s relevance test, Rule 403’s balancing test, and
Rule 105’s requirement that certain limiting jury instructions be given. State
v. Ferrero, 229 Ariz. 239, 242 ¶ 12, 274 P.3d 509, 512 (2012).

¶12            The trial court admitted evidence of Leteve’s other acts to
show Leteve’s intent or motive. Leteve did not object to the admission of
two notes he wrote to Laurie contemporaneously with the killings. In the
first, Leteve predicted that “This should fuck you up for a good long time
to come,” and admonished that “none of this had to happen this way if you
had made the effort.” The second note, left at the scene of the shootings
and signed by both Leteve and Alec, said “For everything you get in life,
you must give something up. I wonder if you’ll understand what price
you’ll have paid for your freedom?”

¶13            Leteve objects to evidence of various other acts reflecting that
he killed his sons out of long-seething anger with Laurie and in retaliation
against her. These acts include Leteve’s telling Laurie and others before
their separation about his several extramarital affairs, Leteve’s calling
police in July 2009 in an attempt to have Laurie removed from their home,

                                      4
                              STATE V. LETEVE
                             Opinion of the Court

Laurie’s obtaining an order of protection a few weeks later, and police
serving Leteve at his home with the order. A babysitter testified that when
she was helping Laurie move out in August 2009, Leteve called Laurie and
said, “I will find you guys” and something about having “a GPS system on
the car.”

¶14          After Laurie moved out and filed for divorce, she began
dating A.M., who worked with her at a hospital. One week before the
murders, Leteve sent a dozen roses, accompanied by a note purportedly
written by A.M. to Laurie, to the hospital’s administrator responsible for
human resources. Evidently, Leteve was attempting to create problems at
work for Laurie. In the days before the murders, Leteve also sent both
Laurie and A.M. an email along with a sexually explicit video that Leteve
and Laurie had made during their marriage. Leteve also obtained
background checks on A.M. and A.M.’s ex-wife.

¶15           Finally, the State presented evidence that Leteve had
substantial debt and little or no money in his bank account at the time of
the murders. This evidence, the State argues, was relevant to explain why
Leteve would attempt to kill himself after murdering his sons.

¶16            The challenged other acts evidence was admissible under
Rule 404(b) to show Leteve’s intent or motive. Leteve unpersuasively
argues that his retaliatory actions against Laurie should not have been
admitted because she was not the murder victim. We have long recognized
that evidence of prior ill will or difficulties between a defendant and a
murder victim may be relevant to show motive or premeditation. See, e.g.,
State v. Wood, 180 Ariz. 53, 62, 881 P.2d 1158, 1167 (1994); State v. Jeffers, 135
Ariz. 404, 418, 661 P.2d 1105, 1119 (1983). Here, the past difficulties between
Leteve and Laurie were similarly relevant to his intent and motive in killing
their sons. Evidence of Leteve’s financial difficulties was relevant to his
motive in attempting to commit suicide and to establishing that the killings
were planned. See State v. DePiano, 187 Ariz. 41, 46, 926 P.2d 508, 513 (App.
1995), vacated in part, 187 Ariz. 27, 926 P.2d 494 (1996).

¶17           We further conclude that the trial court did not abuse its
discretion in ruling, under Rule 403, that the probative value of the other
acts evidence was not substantially outweighed by the danger of unfair
prejudice or needlessly presenting cumulative evidence. The trial court
properly instructed the jury on the limited purposes for which the other

                                        5
                             STATE V. LETEVE
                            Opinion of the Court

acts evidence could be considered, thus mitigating any prejudicial impact.
See State v. Villalobos, 225 Ariz. 74, 80 ¶ 20, 235 P.3d 227, 233 (2010).

       C. Trial Court Rulings Limiting Leteve’s Mental Health and
          Prescription Drug Use Evidence and Denying a Mistrial

¶18            Leteve claims that he was prevented from introducing certain
admissible evidence that he lacked the mens rea necessary to commit first
degree murder. We review a trial court’s rulings on the admission of
evidence for abuse of discretion. State v. Davolt, 207 Ariz. 191, 208 ¶ 60, 84
P.3d 456, 473 (2004). We review questions of law related to the admissibility
of evidence de novo. State v. Moran, 151 Ariz. 378, 381, 728 P.2d 248, 251
(1986). Although the trial court erred in excluding some evidence, we hold
that the error was harmless beyond a reasonable doubt. See State v. Ellison,
213 Ariz. 116, 131 ¶ 51, 140 P.3d 899, 914 (2006).

              1. Observation Evidence

¶19           At trial, Leteve sought to introduce testimony by his parents
and by his psychological expert, Dr. Rafael Morris, to show his character
trait for impulsivity. He contends that this evidence was properly
admissible as “observation evidence” under Clark v. Arizona, 548 U.S. 735
(2006), and State v. Christensen, 129 Ariz. 32, 628 P.2d 580 (1981), and would
have rebutted the State’s premeditation evidence.

¶20           The legislature has not provided for, and this Court has
refused to allow, an affirmative defense of diminished capacity. See A.R.S.
§ 13-502(A); State v. Schantz, 98 Ariz. 200, 212–13, 403 P.2d 521, 529 (1965).
As a result, “Arizona does not allow evidence of a defendant’s mental
disorder short of insanity either as an affirmative defense or to negate the
mens rea element of a crime.” State v. Mott, 187 Ariz. 536, 541, 931 P.2d
1046, 1051 (1997).

¶21            We have, however, allowed a defendant to offer “evidence
about his behavioral tendencies” to show “that he possessed a character
trait of acting reflexively in response to stress.” Id. at 544, 931 P.2d at 1054
(citing Christensen, 129 Ariz. at 34, 628 P.2d at 582). Such evidence has been
termed “observation evidence” by the United States Supreme Court. Clark,
548 U.S. at 757. That Court distinguished “observation evidence” from
“mental-disease evidence,” which is “opinion testimony that [the

                                       6
                             STATE V. LETEVE
                            Opinion of the Court

defendant] suffered from a mental disease with features described by the
witness,” and “capacity evidence” which concerns a defendant’s “capacity
to form mens rea,” both of which are prohibited by Arizona law. Id. at
757–59.

¶22             At a pretrial hearing, Leteve argued that Dr. Morris and
Leteve’s parents had observed his character trait for impulsivity and that
their testimony was thus admissible observation evidence under Clark. The
trial court flatly prohibited any testimony from Dr. Morris, reasoning that
he had only interviewed Leteve after the murders and that his testimony
would be relevant only to a diminished capacity defense. Because Leteve’s
parents had observed Leteve around the time of the murders, the trial court
permitted them to testify about Leteve’s impulsivity, but limited that
testimony to events occurring the night before and the day of the murders.

¶23            Leteve does not dispute that Arizona law prohibited Dr.
Morris from testifying that he lacked the capacity to form the mens rea for
first degree murder or that he acted impulsively when he shot his children.
As we said in Christensen, “[a]n expert witness may not testify specifically
as to whether a defendant was or was not acting reflectively at the time of
a killing.” 129 Ariz. at 35–36, 628 P.2d at 583–84. But we also acknowledged
that a defendant who can show that he has a character trait for acting
without reflection presents a fact that makes it more likely that he acted
impulsively at the time of the murders. Id. at 35, 628 P.2d at 583.

¶24            That Dr. Morris did not observe Leteve’s character trait on the
night before or the day of the murders is not dispositive. In Christensen, we
found that an expert witness who “had interviewed [the defendant] and
had reviewed tests which had been administered to him” after the crimes
should have been allowed to testify. Id. at 34, 628 P.2d at 582. Because Dr.
Morris would have testified that Leteve had a general character trait for
impulsivity, and not that he acted impulsively at the time of the murders,
the trial court erred by excluding the testimony merely because the expert’s
observations were not contemporaneous with the crime. Were we to
uphold such a restriction, it would effectively prohibit a defendant from
offering any expert testimony about general behavioral characteristics that
relate to the issue of premeditation, in contravention of Christensen. 129
Ariz. at 35, 628 P.2d at 583. The trial court likewise erred by placing
temporal restrictions on the observation testimony by Leteve’s parents.


                                      7
                              STATE V. LETEVE
                             Opinion of the Court

¶25            Although the trial court erred, we will not reverse if the error
was harmless. In deciding whether error is harmless, the question “is not
whether, in a trial that occurred 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.” Sullivan v. Louisiana, 508
U.S. 275, 279 (1993). “We must be confident beyond a reasonable doubt that
the error had no influence on the jury’s judgment.” State v. Bible, 175 Ariz.
549, 588, 858 P.2d 1152, 1191 (1993).

¶26            Leteve offered the precluded observation evidence to rebut
the premeditation element of first degree murder.                  “To prove
premeditation, the state must establish actual reflection and more than
mere passage of time, but it may do so with all the circumstantial evidence
at its disposal in a case.” State v. Boyston, 231 Ariz. 539, 551 ¶ 60, 298 P.3d
887, 899 (2013) (internal quotation marks omitted). Here, however, the
evidence that Leteve reflected on the murders was overwhelming. On the
day Laurie filed for divorce, he purchased the weapon he used to carry out
the murders. He sent messages to Laurie that she would be alone and that
“this will end badly.” When he killed his sons, he shot each in the back of
the head through a pillow or blanket, and he had to walk about 100 feet
after he shot Alec to then shoot Asher. Most significantly, he left several
notes and letters, one of which was typed several days before the murders
and signed both by Leteve and Alec. In short, even had evidence of Leteve’s
character trait for impulsivity been admitted, no reasonable juror could
have concluded that Leteve had not reflected on the killings before he
committed them. Cf. Christensen, 129 Ariz. at 35, 628 P.2d at 583 (noting, in
particular circumstances, that jury could have concluded from evidence of
impulsivity that defendant did not premediate the homicide). Any error in
excluding the evidence was harmless.

              2. Prescription Drug Evidence

¶27           Leteve argues that the trial court erred by precluding
evidence of his prescription drug use at the time of the murders, which Dr.
Morris asserted exacerbated Leteve’s impulsivity. Leteve argues that this
evidence should also have been admitted to rebut premeditation. The trial
court ruled this evidence inadmissible because there was no proffered
evidence that Leteve took the medication as prescribed. The only way to
make the evidence admissible, the court reasoned, would be for Leteve
himself to testify that he was properly taking his medication.

                                       8
                             STATE V. LETEVE
                            Opinion of the Court

¶28            Arizona law prohibits the defense of voluntary intoxication
“resulting from . . . the abuse of prescribed medications.” A.R.S. § 13-503.
Our court of appeals, however, has held that this statute “does not preclude
the assertion of temporary intoxication arising from the non-abusive use of
prescription medication to negate the requisite state of mind for a criminal
act.” State v. McKeon, 201 Ariz. 571, 575 ¶ 20, 38 P.3d 1236, 1240 (App. 2002).
That court has also held that involuntary intoxication is not an affirmative
defense that has been statutorily abrogated. State v. Edmisten, 220 Ariz. 517,
521 ¶ 8, 207 P.3d 770, 774 (App. 2009). Though a patient may voluntarily
take prescription drugs, intoxication as a result of such use may be
involuntary so long as it is done pursuant to medical advice. See, e.g., People
v. Garcia, 113 P.3d 775, 780 (Colo. 2005); State v. Gardner, 870 P.2d 900, 902
n.8 (Utah 1993); State v. Gilchrist, 552 P.2d 690, 692 (Wash App. 1976).
Therefore, if Leteve could establish use of prescription drugs in accordance
with a doctor’s instructions, he should have been allowed to present a
defense of involuntary intoxication.

¶29           At trial, Leteve sought to introduce expert testimony derived
from interviews with him about his use of prescription drugs, as well as
circumstantial evidence in the form of testimony from others that he was
taking prescription medication and pharmacy records identifying his
prescribed medication. Although the best evidence of Leteve’s use of
prescription drugs would have been his own testimony, we do not preclude
a defendant from offering evidence to prove a fact solely because it is not
the best evidence. See State v. Jones, 203 Ariz. 1, 7 ¶¶ 18–19, 49 P.3d 273, 279
(2002) (holding that oral testimony of confession, rather than audio
recording of confession, was admissible at trial to prove defendant
confessed); cf. People v. Hari, 843 N.E.2d 349, 361 (Ill. 2006) (holding that
involuntary intoxication instruction should have been given based on
testimony of expert who had interviewed defendant).

¶30            Although the question is close, we hold that the trial court
erred by precluding any evidence of the use of medication unless Leteve
testified. This evidence would have been offered solely to show that Leteve
did not premeditate the murders. As noted previously, see supra ¶ 26, the
State presented overwhelming evidence that Leteve acted systematically
and deliberately. Even had the prescription drug evidence been presented
in conjunction with the observation evidence the defense offered, no
reasonable juror could have found that the murders were not premeditated.
The error, therefore, was harmless.

                                       9
                             STATE V. LETEVE
                            Opinion of the Court

              3. Waiver of Fifth Amendment Privilege to Exercise Sixth
                 Amendment Right

¶31           Leteve also argues that the trial court improperly forced him
to choose between waiving his Fifth Amendment privilege against self-
incrimination by testifying that he had taken the medication as prescribed
or waiving his Sixth Amendment right to present a defense by forgoing the
medication evidence. Cf. Simmons v. United States, 390 U.S. 377, 394 (1968)
(holding that forcing a defendant to either waive a valid Fourth
Amendment claim or waive his Fifth Amendment privilege against self-
incrimination is unconstitutional); Brooks v. Tennessee, 406 U.S. 605, 610–11
(1972) (holding that a statute requiring defendant to testify, if at all, before
any other defense witnesses is unconstitutional). We need not reach this
issue because we have held that the exclusion of the prescription drug
evidence was harmless error.

              4. The Mistrial Motion

¶32            Leteve argues that the trial court erred by refusing to declare
a mistrial during the penalty phase based on the testimony of the State’s
expert witness, Dr. Edward Barbieri, who testified that the level of
Lorazepam in Leteve’s system was within “low therapeutic levels.”
Previously, during the pretrial hearing addressing the admission of
Leteve’s prescription drug use, the State’s offer of proof regarding Dr.
Barbieri’s testimony indicated that the levels were potentially outside the
therapeutic range. Had the offer of proof been made accurately, Leteve
argues, he could have called Dr. Barbieri as a witness during the guilt phase
to lay the proper foundation for admission of the medication evidence
because he would have testified that the level of Lorazepam in Leteve’s
system immediately after the murders was within therapeutic levels.

¶33           “A declaration of a mistrial is the most dramatic remedy for
trial error and should be granted only when it appears that justice will be
thwarted unless the jury is discharged and a new trial granted.” State v.
Adamson, 136 Ariz. 250, 262, 665 P.2d 972, 984 (1983). We review the denial
of a motion for a mistrial for abuse of discretion. State v. Kuhs, 223 Ariz.
376, 380 ¶ 18, 224 P.3d 192, 196 (2010).

¶34           At the pretrial hearing, the State made an offer of proof that
Dr. Barbieri would testify that, although the Lorazepam in Leteve’s blood

                                      10
                              STATE V. LETEVE
                             Opinion of the Court

immediately following the murders was within therapeutic levels, the
blood sample had been diluted by blood transfusions Leteve received
during his treatment. Dr. Barbieri made the same assertion in his initial
interview with the defense. No new information was presented during the
penalty phase, and Dr. Barbieri did not alter his testimony from the
testimony offered during the pretrial hearing. The trial court did not abuse
its discretion by refusing to grant a mistrial.

       D. Jury Instruction Defining the (F)(6) Aggravator

¶35            Leteve argues that the trial court improperly instructed the
jury that it need find only that he had a “parental relationship of trust” with
the victim to determine that the murder was “heinous or depraved” for
purposes of the (F)(6) aggravating factor. Relying on State v. Milke, 177 Ariz.
118, 126, 865 P.2d 779, 787 (1993), Leteve argues that the jury should have
been instructed that it also had to find that the murder was senseless and
the victim helpless. “[W]e review de novo whether a jury instruction
correctly states the law,” State v. Zaragoza, 221 Ariz. 49, 53 ¶ 15, 209 P.3d
629, 633 (2009), but “we will not reverse a conviction unless the instructions,
taken as a whole, misled the jurors,” Kuhs, 223 Ariz. at 384 ¶ 37, 224 P.3d at
200.

¶36            Under A.R.S. § 13-751(F)(6), a first degree murder is
aggravated if “[t]he defendant committed the offense in an especially
heinous, cruel or depraved manner.” We have identified five factors that
can lead to a finding of heinousness or depravity: (1) relishing the murder;
(2) infliction of gratuitous violence; (3) needless mutilation; (4) the
senselessness of the killing; and (5) the helplessness of the victim. State v.
Gretzler, 135 Ariz. 42, 52, 659 P.2d 1, 11 (1983). The killing of a child satisfies
the senselessness and helplessness factors. State v. Stanley, 167 Ariz. 519,
528, 809 P.2d 944, 953 (1991). But by themselves, these two factors generally
will not render a murder especially heinous or depraved. State v. Wallace,
219 Ariz. 1, 6 ¶ 25, 191 P.3d 164, 169 (2008).

¶37           The State argues that Stanley recognized that a father’s
murder of his own child “warrants a finding that the murder was
committed in an especially depraved manner.” 167 Ariz. at 529, 809 P.2d at
954. But we noted in Stanley that the murder was senseless and involved a
helpless victim. We have subsequently explained that using the parent-
child relationship as “partial support” for an (F)(6) finding, along with

                                        11
                             STATE V. LETEVE
                            Opinion of the Court

helplessness and senselessness, “is constitutionally permissible.” See State
v. Carlson, 202 Ariz. 570, 584 ¶ 55, 48 P.3d 1180, 1194 (2002) (observing that
Milke approved the use of the parent-child relationship “in partial support
of a finding of heinousness or depravity”).

¶38            The trial court thus erred by instructing the jury that it could
find the (F)(6) aggravator based on the parental relationship alone. But the
error was harmless because there was overwhelming evidence that the
murders were senseless and the victims helpless. Cf. State v. Moore, 222
Ariz. 1, 14–15 ¶ 69, 213 P.3d 150, 163–64 (2009) (holding that, where jury
was erroneously instructed that actual reflection was not required to prove
premeditation for first degree murder, the error was harmless with respect
to a murder for which there was overwhelming evidence of premeditation).
Senselessness was incontrovertibly established because even if Leteve
sought to retaliate against Laurie, it was unnecessary for him to murder his
children to accomplish that goal. Cf. Milke, 177 Ariz. at 125, 865 P.2d at 786
(noting that “[t]his crime most certainly was senseless in that it was
unnecessary for [the defendant] to kill her son to free herself from the
responsibility of being a single mother or to prevent the boy from growing
up like his father”). Similarly, each murder involved a helpless victim: each
was younger than six years old and apparently sleeping when killed. See
Stanley, 167 Ariz. at 528–29, 809 P.2d at 953–54 (noting helplessness of five-
year old victim was “apparent” because she was alone with her parents and
twelve-month old brother and father had just shot mother).

       E. Preclusion of Prison Expert’s Testimony

¶39           During the penalty phase, Leteve sought to introduce
testimony by Carson Williams, a former warden in the Department of
Corrections, that Leteve would have a very difficult time in prison because
of the notoriety of his crimes. The trial court did not abuse its discretion by
precluding his testimony.

¶40           “A penalty phase jury may not be precluded from considering
relevant mitigating evidence,” including a defendant’s potential for future
rehabilitation and future dangerousness. Villalobos, 225 Ariz. at 82 ¶ 34, 235
P.3d at 235. Williams’ testimony would not address either of those factors,
but would instead show generally the harsh conditions a child-killer might
face in prison. Such speculative evidence does not constitute a mitigating
circumstance because it is not specific to a defendant’s character,

                                      12
                             STATE V. LETEVE
                            Opinion of the Court

propensities, or prior record, nor does it go to the circumstances of his
offense. Cf. A.R.S. § 13-751(G); Lockett v. Ohio, 438 U.S. 586, 604 n.12 (1978).
Courts in other jurisdictions agree. See, e.g., People v. Quartermain, 941 P.2d
788, 807 (Cal. 1997); Burns v. Commonwealth, 541 S.E.2d 872, 893 (Va. 2001).

       F. Rebuttal Testimony on Impact on Neighbors

¶41            Leteve argues that the trial court erred in admitting testimony
of C.P., a former neighbor, about the impact of the murders on him and two
other neighbors. We review the admission of evidence for abuse of
discretion and constitutional and statutory interpretation issues de novo.
State v. Nordstrom, 230 Ariz. 110, 114 ¶ 8, 280 P.3d 1244, 1248 (2012).

¶42            C.P.’s testimony was not offered as part of a victim impact
statement. Instead, after Leteve presented mitigation, C.P. testified as a
rebuttal witness. He told the jury that he lived two houses down from the
Leteve home, had known Leteve and Laurie for two years, and had dined
and otherwise socialized with them and other couples in the neighborhood.
C.P. said that three days before the murders occurred, he and his adult son
had talked with Leteve while C.P.’s three grandchildren played with Alec.
C.P. said that although Leteve seemed “a little bit down and a little bit
heavy,” from the strain of his divorce and financial issues, there “was no
dramatic difference between him that day and what [C.P.] had seen in the
months and years before that.”

¶43            The prosecutor then asked C.P. to recount events on the day
of the murders. Defense counsel objected that this was improper rebuttal.
The trial court overruled the objection. C.P. then described a telephone call
with his wife, which culminated with his overhearing her and another
woman reacting hysterically upon learning that Leteve had shot his
children. C.P. further testified that another neighbor, Kathleen - who was
close to Laurie, had children Asher’s age, and had given Laurie baby items
to use - had been “hugely impacted” by the murders and had to be
hospitalized for anxiety and panic attacks. When asked if the murders had
been tough on him, C.P. emotionally responded that a year before the
murders, his own adult son had suddenly died from an illness, and “so
when I saw this, I could not get it. How someone could shoot their child.
So it affected me deeply.”



                                      13
                              STATE V. LETEVE
                             Opinion of the Court

¶44          After C.P. finished testifying, Leteve moved for a mistrial.
The State argued that the testimony was appropriate rebuttal to emotional
testimony by Leteve’s mother and grandmother about their love for Leteve.
The trial court denied the motion for mistrial. In closing argument, the
prosecutor urged the jury to sentence Leteve “to the appropriate
punishment for what he did to these children, to the neighbors, to everyone
who knew them.” The prosecutor did not otherwise mention the effect on
the neighbors. The trial court instructed the jurors, and the prosecutor
reminded them, that rebuttal evidence could not be considered as
aggravation.

¶45           The issue here is whether the trial court abused its discretion
by admitting the testimony about the effect of the murders on C.P. and the
two other neighbors. Resolving this issue turns on whether the evidence
was relevant to the jury’s determination whether to impose a death
sentence, whether Arizona law bars evidence of a murder’s impact on non-
family members, and, if not, whether the admission of this evidence was so
unfairly prejudicial as to violate due process.

¶46           The challenged evidence does not involve “victim” impact
testimony, which we have recognized is “limited to the ‘impact of the crime
on the victim’s family.’” State v. Rose, 231 Ariz. 500, 512 ¶ 55, 297 P.3d 906,
918 (2013) (quoting Ariz. R. Crim. P. 19.1(d)(3)); see also A.R.S. § 13-752(S)(2)
(“‘Victim’ means the murdered person’s spouse, parent, child, grandparent
or sibling, any other person related to the murdered person by
consanguinity or affinity to the second degree or any other lawful
representative of the murdered person . . . .”). Thus, C.P.’s testimony was
not governed by our victims’ rights laws, but instead by A.R.S. §§ 13-751(C)
and (G), and 13-752(G).

¶47           During the penalty phase, the state may offer evidence that is
relevant to determining if the mitigation is sufficiently substantial to
warrant leniency. See id. Irrespective of the mitigation evidence presented
by the defendant, the state may present evidence of the circumstances of
the crime. Nordstrom, 230 Ariz. at 114 ¶ 10, 280 P.3d at 1248 (noting that,
taken together, A.R.S. §§ 13-751(G) and 13-752(G) “evince a legislative
intent to permit the state to introduce relevant evidence whether or not the
defendant presents evidence during the penalty phase”). Thus, the state
may “rebut” mitigation - that is, a conclusion that the defendant should be
shown leniency - by introducing evidence of the “specific harm caused by

                                       14
                             STATE V. LETEVE
                            Opinion of the Court

the defendant.” State v. Forde, 233 Ariz. 543, 572 ¶ 126, 315 P.3d 1200, 1229
(2014). The state’s evidence must not be so unduly prejudicial that it
renders the trial fundamentally unfair under the Due Process clause. State
v. Hampton, 213 Ariz. 167, 179 ¶ 48, 140 P.3d 950, 963 (2006); Payne v.
Tennessee, 501 U.S.808, 825 (1991).

¶48           The evidence of the murders’ impact on the identified
neighbors is relevant to whether Leteve should be shown leniency
inasmuch as it demonstrated the specific harm his killings caused to people
closely linked to the family.“ The threshold for relevance is a low one,”
State v. Roque, 213 Ariz. 193, 221 ¶ 109, 141 P.3d 368, 396 (2006), and the
harm caused by a defendant’s killing is a relevant factor for the jury to
consider in making its sentencing determination. See Payne, 501 U.S. at 808
(noting that the victim impact evidence “illustrated quite poignantly some
of the harm that [the defendant’s] killing had caused” and that “there is
nothing unfair about allowing the jury to bear in mind that harm at the
same time as it considers the mitigating evidence introduced by the
defendant”); Forde, 233 Ariz. at 572 ¶ 126, 315 P.3d at 1229 (holding that
victim impact testimony is not limited to mitigation topics presented by
defense).

¶49            Nor does it necessarily violate due process for the jury to hear
evidence of a murder’s impact beyond that of the victim’s family. See Beck
v. Commonwealth, 484 S.E.2d 898, 903-04 (Va. 1997) (holding that victim
impact testimony is not “constitutionally limited to that received from the
victim’s family members”). Indeed, several of our sister states and the
federal courts of appeal allow “impact” testimony by non-family members
in appropriate circumstances. See, e.g., People v. Ervine, 220 P.3d 820, 858
(Cal. 2009) (“[V]ictim impact evidence is not limited to the effect of the
victim’s death on family members, but may include its effects on the
victim’s friends, coworkers, and the community.”) (citations omitted);
United States v. Lawrence, 735 F.3d 385, 405–06 (6th Cir. 2013) (collecting
cases interpreting the Federal Death Penalty Act, 18 U.S.C. §§ 3591 - 3599,
not to limit victim impact evidence to family members).

¶50          But just as “[t]rial courts should not allow the penalty phase
to devolve into a limitless and standardless assault on the defendant’s
character and history,” Hampton, 213 Ariz. at 180 ¶ 51, 140 P.3d at 963, they
should not allow evidence of a murder’s impact on persons who are not
immediately and closely connected to the victim. The Tenth Circuit aptly

                                      15
                             STATE V. LETEVE
                            Opinion of the Court

has observed that “[i]ncluding the community in the victim-impact inquiry
is fraught with complication,” as doing so replaces “a close-in focus on
persons closely or immediately connected to the victim with a wide view
encompassing generalized notions of social value and loss.” United States
v. Fields, 516 F.3d 923, 947 (10th Cir. 2008).

¶51           Allowing testimony about the impact of a murder on persons
who are not victims under Rule 19.1(d)(3) poses a substantial risk of
injecting unfairly prejudicial evidence and threatening a mistrial.
Accordingly, such evidence generally should be disallowed absent a
showing that it is necessary to inform the jury of the harm resulting from
the crime. Cf. Rose, 231 Ariz. at 511 ¶ 47, 297 P.3d at 917 (cautioning
prosecutors not to risk mistrial by introducing unfairly prejudicial evidence
with minimal probative value). There is no need for such evidence when
the State has already introduced extensive victim impact evidence, as the
additional admission of evidence of a murder’s impact on community
members is not likely to aid in the jury’s decision making. Cf. Ariz. R. Evid.
403 (evidence is properly excluded “if its probative value is substantially
outweighed by a danger of . . . needlessly presenting cumulative
evidence”).

¶52          Because C.P.’s testimony was relevant to whether Leteve
should be shown leniency and did not violate due process, the trial court
did not abuse its discretion in admitting it. Prospectively, trial courts
should limit the admission of such testimony in accordance with this
opinion.

       G. Abuse of Discretion Review

¶53            We review the jury’s imposition of a death sentence for abuse
of discretion. A.R.S. § 13-756(A). A finding of an aggravating circumstance
is not an abuse of discretion if it is supported by the evidence. State v.
Manuel, 229 Ariz. 1, 9 ¶ 42, 270 P.3d 828, 836 (2011). The jury’s
determination that death is the appropriate sentence will not be reversed
“so long as any reasonable jury could have concluded that the mitigation
established by the defendant was not sufficiently substantial to call for
leniency.” Id. (quoting State v. Morris, 215 Ariz. 324, 341 ¶ 81, 160 P.3d 203,
220 (2007)).



                                      16
                            STATE V. LETEVE
                           Opinion of the Court

             1.   Aggravating Circumstances

¶54           As explained above, ¶35–38, the jury’s finding that each
murder was heinous or depraved (the (F)(6) aggravating circumstance) is
supported by the evidence. Leteve does not contest the sufficiency of the
evidence to support the other two aggravators found by the jury with
respect to each murder — (F)(8) (multiple homicides) and (F)(9) (victims
under the age of fifteen). Because the record supports these findings, the
jury did not abuse its discretion.

             2.   Mitigating Circumstances

¶55          “The defendant must prove the existence of the mitigating
circumstances by a preponderance of the evidence,” but “the jurors do not
have to agree unanimously that a mitigating circumstance has been
proven to exist.” A.R.S. § 13-751(C).

¶56           Leteve presented extensive mitigation evidence, including
that he was thirty-nine years old at the time of the murders; his capacity to
appreciate the wrongfulness of his conduct or to conform his conduct to the
law was substantially impaired; he was a good father and son and tried to
be a good husband and a good provider for his family; he was a good friend
and employee; he suffered from alcoholism; he suffered from bipolar
disorder and other mental illnesses and did not receive proper treatment;
he self-medicated with drugs and alcohol; he was devastated by the
collapse of his marriage; he lacked support from his family; he suffered
financial ruin, overwhelming stress, and abuse and neglect as a child; he
tried to make the best of his life; he was a good student and consistently
tried to improve himself; and he lacked a positive male role model.

             3.   Propriety of Death Sentences

¶57         Given the three aggravating circumstances and the mitigation
presented, a reasonable juror could conclude that the mitigating
circumstances were not sufficiently substantial to call for leniency.




                                     17
                             STATE V. LETEVE
                            Opinion of the Court

       H. The Trial Court’s Restitution Order

¶58           The trial court ordered Leteve to pay restitution for the
victims’ out-of-pocket expenses to attend the trial and attorney fees
incurred to enforce victims’ rights. Leteve challenges the restitution order
on several grounds. Reviewing the facts in the light most favorable to
upholding the order, State v. Lewis, 222 Ariz. 321, 323 ¶¶ 2, 5, 214 P.3d 409,
411 (App. 2009), we conclude that the trial court did not abuse its discretion.
(We assume, without deciding, that attorney fees incurred to enforce
victims’ rights may be compensable in restitution, as Leteve has not raised
that issue on appeal.)

¶59            Leteve first argues that, because the victims’ counsel did not
provide itemized billing statements, it is impossible to identify the amount
of the fees attributable to enforcing victims’ rights. But neither the victims’
rights laws nor their implementing rules explicitly require itemized billing.
Cf. ARCAP 21(b) (requiring a party seeking attorneys’ fees incurred on
appeal to file an itemized statement of fees and costs). And the trial court
held a hearing on the requested restitution and received evidence to which
Leteve could object. Cf. Sparks v. Republic Nat’l Life Ins. Co., 132 Ariz. 529,
544–45, 647 P.2d 1127, 1142–43 (1982) (holding that there is no violation of
due process when “[a] full hearing was conducted on the issue of attorney’s
fees”). Because counsel’s affidavits supported the restitution order, the
State met its burden of proving the amount by a preponderance of the
evidence. See Lewis, 222 Ariz. at 324 ¶ 7, 214 P.3d at 412.

¶60          Leteve next argues that restitution should be offset by the
value of property Laurie received after their divorce. Because Laurie would
have received her share of marital property even if the murders had not
occurred, any property she received from the divorce proceedings is
irrelevant.

¶61           Finally, Leteve argues that restitution should be reduced by
the amount he alleges Laurie received from a charitable fund established
after the murders. A victim’s reimbursement from collateral sources does
not reduce a defendant’s restitution obligation.           At most, such
reimbursement, if made by a qualifying entity, would require a defendant
to pay restitution to the entity instead of the already-compensated victim.
A.R.S. § 13-804(E).


                                      18
                            STATE V. LETEVE
                           Opinion of the Court

      I. Additional Issues

¶62           Stating that he wishes to preserve certain issues for federal
review, Leteve lists thirty one constitutional claims and previous decisions
rejecting them. We decline to revisit these claims.

                             CONCLUSION

¶63          We affirm Leteve’s convictions and sentences.




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