                                  IN THE

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

                                      v.

                        VINCENT JOSEPH GUARINO,
                               Appellant.

                           No. CR-13-0405-AP
                          Filed December 3, 2015

           Appeal from the Superior Court in Maricopa County
               The Honorable Karen L. O’Connor, Judge
                          No. CR2010-120027
                             AFFIRMED

COUNSEL:

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor
General, Lacey Stover Gard, Chief Counsel, Capital Litigation Section,
Susanne Bartlett Blomo, Assistant Attorney General, Phoenix, Laura P.
Chiasson (argued), Tucson, Attorneys for State of Arizona

Richard D. Gierloff (argued), Law Offices of Richard D. Gierloff, P.C.,
Phoenix, Attorney for Vincent Joseph Guarino

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

JUSTICE BERCH (RETIRED), opinion of the Court:

¶1           Vincent Joseph Guarino was convicted of the kidnapping,
assault, and murder of Chad Rowe, among other crimes. This automatic
appeal follows the imposition of the death penalty. Ariz. R. Crim. P. 31.2(b).
                               STATE v. GUARINO
                               Opinion of the Court

We have jurisdiction under Article 6, Section 5(3) of the Arizona
Constitution and A.R.S. § 13-4031.

                          I.         BACKGROUND1

¶2          To secure membership in the Aryan Brotherhood, a criminal
gang, Defendant Vincent Guarino (“Guarino”) sought to murder Chad
Rowe. Accompanied by his brother Frank Guarino (“Frank”), Guarino
went to a home in north Phoenix. Guarino entered, found Chad, and
brought him out at gunpoint. The three men drove away in a truck. Chad’s
body was later found in a residential street. He had been stabbed in the
hand and foot and shot three times.

¶3           During a police interview, Frank confessed to participating in
the murder and told officers of his brother’s involvement. Guarino did not
confess during police interviews, but officers later intercepted a letter in
which he admitted murdering Chad Rowe.

                               II.    DISCUSSION

       A.      Frank’s Statements
¶4             During the penalty phase of Guarino’s trial, the State
introduced statements from Frank’s interview. Guarino argues that the
admission of those statements violated Arizona Rules of Evidence 401 and
403, A.R.S. § 13-751(G), and the Sixth, Eighth, and Fourteenth Amendments
to the United States Constitution.

¶5            Because Guarino objected to the admission of Frank’s
statements on grounds of relevance and undue prejudice, we review the
rulings on those objections for an abuse of discretion. See State v. Nordstrom,
230 Ariz. 110, 114 ¶ 8, 280 P.3d 1244, 1248 (2012). We review the
constitutional issues de novo. State v. Moody, 208 Ariz. 424, 445 ¶ 62, 94 P.3d
1119, 1140 (2004).


1  We view the facts in the light most favorable to sustaining the jury’s
verdicts. See State v. Chappell, 225 Ariz. 229, 233 ¶ 2 n.1, 236 P.3d 1176, 1180
n.1 (2010).



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                           Opinion of the Court

              1.      Arizona Rules of Evidence 401 and 403
¶6            Guarino argues that the trial court abused its discretion in
admitting evidence of Frank’s statements recounting the events preceding
Chad’s death because they were “irrelevant or cumulative and unfairly
prejudicial under Rule 403.” Although the rules of evidence do not apply
during the penalty phase of a capital trial, Arizona statutes provide that the
state may only introduce evidence that is “relevant to any of the mitigating
circumstances,” A.R.S. § 13-751(C), or that tends to show that the defendant
should not be shown leniency. A.R.S. § 13-752(G). We have held that
whether evidence falls within these categories is guided by “fundamentally
the same considerations as . . . a relevancy determination under Arizona
Rule of Evidence 401 or 403.” State v. McGill, 213 Ariz. 147, 157 ¶ 40, 140
P.3d 930, 940 (2006).

¶7            At the aggravation phase of the trial, Guarino attempted to
defeat the § 13-751(F)(6) “cruelty” aggravator by arguing that no one knew
what happened in the truck—that is, who (Frank or Guarino) did what to
the victim. From this, he urged the jury not to find the murder especially
cruel. The jury nonetheless found the cruelty aggravator established
beyond a reasonable doubt. In the penalty phase, the State presented
statements from Frank’s interview, which described events in the truck, to
counter Guarino’s suggestion that he should be shown leniency because
Frank inflicted most of the harm to the victim.

¶8             Guarino’s participation in harming the victim and in the
murder itself were important considerations in the penalty phase. Frank’s
statements implicated Guarino as a major participant and, in fact, provided
evidence that he actually killed the victim. The statements also rebutted
Guarino’s mitigation claim that Frank or other members of the Aryan
Brotherhood influenced him to commit the murder. Frank’s statements
were therefore relevant to whether Guarino deserved leniency. See A.R.S.
§ 13-752(G) (“[T]he state may present any evidence that is relevant to the
determination of whether there is mitigation that is sufficiently substantial
to call for leniency,” including “any evidence that demonstrates that the
defendant should not be shown leniency.”). Moreover, in the penalty
phase, the prosecution may present such relevant information “regardless
of its admissibility under the rules governing admission of evidence at
criminal trials.” A.R.S. § 13-751(C). The court did not abuse its discretion




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                            Opinion of the Court

in finding the evidence relevant.

¶9             Guarino nonetheless argues that, even if relevant, the
evidence was unfairly prejudicial and so should have been precluded under
Rule 403. See State v. Schurz, 176 Ariz. 46, 52, 859 P.2d 156, 162 (1993) (noting
that relevant evidence “may be excluded under Rule 403 if its probative
value is substantially outweighed by the danger of unfair prejudice”). But
while evidence that makes a defendant look bad may be prejudicial in the
eyes of jurors, it is not necessarily unfairly so. Id. That is the case here. The
trial judge acted within her discretion in so ruling.

¶10           Having already established the relevance of the evidence, the
lack of unfair prejudice, and the absence of abuse in the trial court’s ruling
allowing the testimony, we need not analyze for harmless error.

               2.     A.R.S. §§ 13-751(G) and -752(G)
¶11            Guarino next asserts that the trial court violated A.R.S. § 13-
751(G) by admitting Frank’s statements because they did not relate to
mitigation and were admissible, if at all, only to help prove “the especially
cruel (F)(6) aggravator[,] which had already been found by the jury.” He
contends that the “only section in the capital sentencing scheme [that]
mentions considering the defendant’s character or the circumstances of the
offense”—and hence in his view the only section permitting evidence
relating to the defendant’s character or the circumstances of the crime—“is
§ 13-751(G), the section of the statute [that] authorizes mitigation evidence.”
From this premise, he reasons that the prosecution may not present any
evidence about the defendant’s character unless it is mitigating.

¶12           We have previously rejected this argument. See, e.g., State v.
Carlson, 237 Ariz. 381, 396 ¶¶ 53–54, 351 P.3d 1079, 1094 (2015); State v.
Ovante, 231 Ariz. 180, 187 ¶¶ 31–32, 291 P.3d 974, 981 (2013). Although § 13-
751 requires the jury to consider all the mitigation presented by either the
defense or the state, it does not bar the jury from considering relevant
evidence that does not serve as mitigation. See Carlson, 237 Ariz. at 396 ¶ 54,
351 P.3d at 1079. Furthermore, § 13-752(G) expressly allows the state to
present evidence “that demonstrates that the defendant should not be
shown leniency.” Id. (emphasis added). That was the State’s apparent
purpose in presenting Frank’s interview statements.




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                            Opinion of the Court

¶13              Taken together, A.R.S. §§ 13-751(G) and -752(G) permit jurors
to hear evidence relating to circumstances of the crime and the defendant’s
character, which they must do to fulfill their “duty to evaluate all the
relevant evidence when determining the defendant’s sentence.” Carlson,
237 Ariz. at 396 ¶ 54, 351 P.3d at 1094; see also Gregg v. Georgia, 428 U.S. 153,
190 (1976) (“[A]ccurate sentencing information is an indispensable
prerequisite to a reasoned determination of whether a defendant shall live
or die . . . .”). The facts establishing an aggravating circumstance, or the
circumstances of the murder more generally, “are relevant during the
penalty phase because they tend to show whether the defendant should be
shown leniency.” State v. Armstrong, 218 Ariz. 451, 461 ¶ 38, 189 P.3d 378,
388 (2008). Such facts were therefore admissible during the penalty phase
to help the jurors evaluate the appropriate sentence. They were not offered
to “re-prove” the (F)(6) aggravating factor, and their admission did not
violate A.R.S. § 13-751(G).

¶14            Guarino also asserts that Arizona’s penalty phase scheme
violates the federal Constitution because the broad rules of admissibility in
that phase, when combined with the absence of safeguards usually
provided by the evidentiary rules during the penalty phase, fail to
adequately channel jurors’ discretion to impose the death penalty. See
Gregg, 428 U.S. at 196–98. We disagree. Guarino has not specified how rules
of admissibility frustrate the duty to channel jurors’ discretion or fail to help
them distinguish those defendants who are death eligible from the class of
defendants convicted of first degree murder generally. He does not address
the instructions given to the jury, which adequately channeled the jury’s
decision-making process in the penalty phase. Thus, permitting the
testimony in this case under A.R.S. §§ 13-751(C), -751(G), and -752(G) did
not violate the Constitution by failing to adequately channel the jury’s
discretion.

              3.     Due Process
¶15           Guarino argues that the admission of Frank’s statement
violated his due process rights. We have stated that due process concerns
constrain the introduction of evidence in the penalty phase. See State v.
Prince, 226 Ariz. 516, 526 ¶ 17, 250 P.3d 1145, 1155 (2011) (observing that
“§ 13-752(G) permits any evidence probative on [whether the defendant
should be shown leniency], subject only to due process limitations”). “In




                                       5
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                            Opinion of the Court

the event that evidence is introduced that is so unduly prejudicial that it
renders the trial fundamentally unfair, the Due Process Clause of the
Fourteenth Amendment provides a mechanism for relief.” Payne v.
Tennessee, 501 U.S. 808, 825 (1991). It is therefore conceivable that the state
could seek to introduce evidence, not subject to Arizona’s rules of evidence,
that is relevant and admissible under § 13–752(G), but nonetheless violates
the Constitution for other reasons. Cf. State v. Leteve, 237 Ariz. 516, 529 ¶ 50,
354 P.3d 393, 406 (2015) (limiting community impact testimony to
statements by those who are “immediately and closely connected to the
victim” to avoid the risk of unfair prejudice).

¶16           But that is not the case here. Frank’s statements directly
related to the circumstances of the crime and also rebutted Guarino’s
assertions that Frank bore most of the responsibility for the murder and that
members of the Aryan Brotherhood influenced his decision to kill the
victim. The statements were not so unfairly prejudicial that they rendered
the trial fundamentally unfair.

¶17           Moreover, the admission of hearsay statements does not
violate the Due Process Clause if the defendant “receive[s] notice of any
hearsay statements to be introduced by the State in rebuttal to mitigation
and ha[s] ‘an opportunity to either explain or deny them.’” State v.
Hampton, 213 Ariz. 167, 179 ¶ 49, 140 P.3d 950, 962 (2006) (quoting State v.
Greenway, 170 Ariz. 155, 161, 823 P.2d 22, 28 (1992)). And that is the case
here. Guarino knew about Frank’s statements at least from the time of the
pretrial Chronis hearing, during which Detective Cisneros testified
regarding Frank’s confession. The State further indicated that it would
introduce Frank’s statements during the penalty phase when it presented
its opening statement for that phase. The defense therefore had notice of
the hearsay statements’ content and the fact that the State intended to
introduce them during the penalty phase.

¶18           Guarino also had some opportunity to challenge, explain, or
deny Frank’s statements when he cross-examined the testifying witness,
Detective Cisneros. Although Guarino was not able to cross-examine the
declarant himself, he was able to impeach Frank’s statements during cross-
examination by introducing Frank’s criminal record and exploring with the
testifying witness contradictions between the physical and testimonial



                                       6
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                            Opinion of the Court

evidence. Moreover, Guarino does not argue that he could not have taken
the stand to dispute Frank’s statements. That he elected not to does not
mean he did not have the chance to explain. See Wohlstrom v. Buchanan, 180
Ariz. 389, 392, 884 P.2d 687, 690 (1994) (“[A]lthough a defendant may have
a right, even of constitutional dimensions, to follow whichever course he
chooses, the Constitution does not by that token always forbid requiring
him to choose.” (quoting Crampton v. Ohio, 402 U.S. 183, 213 (1971)).
Guarino therefore did have sufficient opportunity to deny or explain
Frank’s statements. United States v. Fields, 483 F.3d 313, 329 (5th Cir. 2007)
(“The Court has never said that the right to ‘deny or explain’ sentencing
information includes . . . the right to see, hear, and cross-examine the
sources of that information.” (quoting John G. Douglas, Confronting Death:
Sixth Amendment Rights at Capital Sentencing, 105 Colum. L. Rev. 1967, 1980
(2005))).

¶19            Finally, Guarino argues that Frank’s hearsay statements
lacked sufficient indicia of reliability. Hearsay is accompanied by sufficient
indicia of reliability if it is corroborated by other evidence. See McGill, 213
Ariz. at 160–61 ¶ 58, 140 P.3d at 943–44. Frank’s statements were
corroborated by witness testimony and physical evidence. While Frank’s
version of events was not entirely consistent with the testimony of one
witness and some of Chad’s stab wounds were on different parts of the
body than Frank’s testimony indicated, Frank’s statements were consistent
with other witnesses’ testimony and most of the physical evidence.
Introduction of the evidence did not violate Guarino’s Due Process rights.

              4.      The Confrontation Clause
¶20           Guarino argues that introducing Frank’s statements in the
penalty phase violated the Sixth Amendment’s Confrontation Clause. See
Crawford v. Washington, 541 U.S. 36, 50–52 (2004). He acknowledges that we
rejected a similar argument in McGill, 213 Ariz. at 158–59 ¶¶ 49–52, 140 P.3d
at 941–42, but argues that McGill is distinguishable or should be overruled.

¶21           Guarino first attempts to distinguish McGill based on the
declarant’s availability to testify and status as a co-defendant. The
declarants in McGill died before they were subject to cross-examination.
213 Ariz. at 156 ¶¶ 38–39, 140 P.3d at 939. Guarino points out that the
defense could theoretically have deposed them before their deaths, while




                                      7
                            STATE v. GUARINO
                            Opinion of the Court

in this case, Guarino could not have deposed Frank because Frank was a
co-defendant who had invoked his Fifth Amendment rights. Guarino does
not explain the relevance of that distinction, however. In both cases, the
declarant was not available to the defense for a deposition or cross-
examination. See State v. Lavers, 168 Ariz. 376, 388–89, 814 P.2d 333, 345–46
(1991) (indicating that a defendant with the “right not to testify” and a
deceased declarant were both equally “unavailable” for purposes of the
Confrontation Clause). In neither situation would the Confrontation
Clause bar the introduction of the declarant’s statements during the penalty
portion of the trial because the Confrontation Clause does not apply during
that phase. McGill, 213 Ariz. at 159 ¶ 52, 140 P.3d at 942. Guarino does not
clarify how the cause or timing of the declarant’s unavailability or the
declarant’s status as a co-defendant affects the reasoning or result in McGill.
We therefore decline to reconsider McGill.

¶22           Guarino also attempts to distinguish McGill as “grounded in
the analysis of aggravating factors as ‘the functional equivalent of an
element of a greater offense.’” But this argument is inapt. In McGill, the
Court applied the “functional equivalent of an element” analysis to
determine whether the state violated the defendant’s double jeopardy
rights. See McGill, 213 Ariz. at 153 ¶¶ 22, 25, 140 P.3d at 936. The Court
analyzed the defendant’s rights under the Confrontation Clause in a
separate section of the opinion. Id. at 157–59 ¶¶ 45–52, 140 P.3d at 940–42.
Guarino fails to elucidate how McGill’s double jeopardy analysis
undermines or affects its confrontation analysis.

¶23            Guarino also argues that the use of the declarant’s testimony
in this case was less “foreseeable” than the testimony introduced in McGill.
But he fails to cite any cases or explain why a statement’s foreseeability is
relevant to a Confrontation Clause analysis. Rather, whether Guarino had
notice of the State’s intent to introduce Frank’s statements in the penalty
phase is a factor to be considered in a due process analysis. See Hampton,
213 Ariz. at 179 ¶ 49, 140 P.3d at 962; see also supra ¶¶ 15–19 (addressing due
process claim). The record reflects that Guarino knew of the existence and
contents of Frank’s statements, as the State introduced them at the Chronis
hearing, and their use was foreseeable.

¶24           Guarino’s other attempts to distinguish McGill are similarly



                                      8
                             STATE v. GUARINO
                             Opinion of the Court

unpersuasive. We have affirmed McGill several times. See, e.g., State v.
(Gilbert) Martinez, 230 Ariz. 208, 218 ¶ 54, 282 P.3d 409, 419 (2012); State v.
Chappell, 225 Ariz. 229, 240 ¶ 40–41, 236 P.3d 1176, 1187 (2010); State v.
Bocharski, 218 Ariz. 476, 490 ¶ 67, 189 P.3d 403, 417 (2008); State v. (Cody J.)
Martinez, 218 Ariz. 421, 431 ¶ 44, 189 P.3d 348, 358 (2008). We have done so
on three grounds that apply here with equal force: “(1) the penalty phase
is not a criminal prosecution, (2) historical practices support the use of out-
of-court statements in sentencing, and (3) the sentencing body requires
complete information to make its determination.” McGill, 213 Ariz. at 159
¶ 52, 140 P.3d at 942.

¶25           Alternatively, Guarino argues that McGill was wrongly
decided and should be overruled. He urges that the dissent gave “the
correct reading of the scope of the Confrontation Clause.” He argues that
the majority erred by relying upon Williams v. New York, 337 U.S. 241 (1949),
rather than Crawford v. Washington, 541 U.S. 36 (2004). He then argues that
Justice Scalia’s concurrence in Ring v. Arizona, 536 U.S. 584 (2002), also
indicates that “the McGill court’s reliance on Williams v. New York with its
distinction of ‘sentencing’ from ‘trial’ (with its requisite 6th Amendment
protections) was error.”

¶26            Guarino’s argument that the Court erred in relying on
Williams is unpersuasive. Crawford did not overrule Williams, and we will
continue to apply the earlier precedent. See United States v. Littlesun, 444
F.3d 1196, 1200 (9th Cir. 2006) (reminding courts “to apply controlling
Supreme Court precedent” until the Court expressly overrules it). Guarino
correctly observes that Williams was not a Confrontation Clause case
because that clause did not apply to the states until 1965, see Pointer v. Texas,
380 U.S. 400, 403 (1965)—a fact that the majority and dissent both noted in
McGill, see 213 Ariz. at 158, ¶ 47 n.4, 140 P.3d at 941 (majority op.); id. at 165
¶ 93, 140 P.3d at 948 (Hurwitz, J., concurring in part and dissenting in part).
Williams is, instead, a due process case, but it remains “the only case in
which the United States Supreme Court directly addressed a defendant’s
right to confront witnesses during sentencing.” Id. at 158 ¶ 47, 140 P.3d at
941. Absent contrary authority by the Supreme Court, we continue to hold
that the Confrontation Clause does not apply during the penalty phase of a
capital trial.




                                        9
                            STATE v. GUARINO
                            Opinion of the Court

¶27             Finally, Guarino’s reliance on Justice Scalia’s concurrence in
Ring v. Arizona is misplaced. In Ring, Justice Scalia wrote that “the
fundamental meaning of the jury-trial guarantee of the Sixth Amendment
is that all facts essential to imposition of the level of punishment that the
defendant receives . . . must be found by the jury beyond a reasonable
doubt.” 536 U.S. at 610 (Scalia, J., concurring). While the right to a jury trial
and the Confrontation Clause are both housed in the Sixth Amendment,
they are distinct rights. Guarino does not argue that his right to a jury trial
was infringed here.

¶28            In short, our decision in McGill remains consistent with the
decisions of a majority of federal circuit courts as well as several state courts
that have considered this issue. See Littlesun, 444 F.3d at 1200 & n.15
(collecting cases); People v. Banks, 934 N.E.2d 435, 461–62 (Ill. 2010) (same).
Guarino does not offer any compelling reason or new authority indicating
why this Court should reverse McGill on this issue, and we decline to do so.
See 213 Ariz. at 159 ¶ 52, 140 P.3d at 942 (“We will overturn long-standing
precedent only for a compelling reason . . . .”).

¶29           The trial court did not violate the Confrontation Clause when
it admitted Frank’s statements during the penalty phase.

       B.      Gang Expert Testimony
¶30            Guarino argues that testimony by Detectives Justus and Egea
violated the Confrontation Clause as interpreted in Crawford because it
“was based on testimonial hearsay given in anticipation of litigation against
a class of defendants[:] gang members, either aspirational or fully vested.”
He asserts that “[e]very fact upon which these Detectives base their
expertise upon [sic] can ultimately be traced back to debriefings, free talks,
wire taps, letter interceptions or learned in an undercover capacity” and
that any facts learned from other sources were “inextricably intertwined”
with “[t]he facts learned from debriefings and free talks.”

¶31             Absent an objection, we review a trial court’s admission of
expert testimony for fundamental error, Carlson, 237 Ariz. at 390 ¶ 23, 351
P.3d at 1088, which requires that, in addition to finding error of that
magnitude, the court must find that the defendant suffered prejudice as a
result, State v. Henderson, 210 Ariz. 561, 567 ¶ 20, 115 P.3d 601, 607 (2005).




                                       10
                           STATE v. GUARINO
                           Opinion of the Court


¶32           As a preliminary matter, Guarino argues that the gang
members’ statements are testimonial hearsay. We have yet to directly
address this issue, and therefore look to the federal courts for guidance.
Carlson, 237 Ariz. at 392 ¶ 32, 351 P.3d at 1090 (approving reference to
federal court opinions); see Ariz. R. Evid. prefatory cmt. to 2012 amends.
(“Where the language of an Arizona rule parallels that of a federal rule,
federal court decisions interpreting the federal rule are persuasive but not
binding with respect to interpreting the Arizona rule.”).

¶33            Even if the undisclosed background statements relied on by
the detectives qualify as testimonial hearsay, “that fact alone does not
offend the Confrontation Clause,” United States v. Ayala, 601 F.3d 256, 275
(4th Cir. 2010), because “there is generally no Crawford problem when an
expert ‘appli[es] his training and experience to the sources before him and
reach[es] an independent judgment.’” United States v. Vera, 770 F.3d 1232,
1237 (9th Cir. 2014) (quoting United States v. Gomez, 725 F.3d 1121, 1129 (9th
Cir. 2013)). Rather, the rules of evidence expressly allow experts to base
opinions on otherwise inadmissible facts or data if “experts in the particular
field would reasonably rely on those kinds of facts or data in forming an
opinion on the subject.” See Ariz. R. Evid. 703. It is only when an expert’s
testimony serves “as little more than a conduit or transmitter for testimonial
hearsay, rather than as a true expert whose considered opinion sheds light
on some specialized factual situation,” that the admission of the testimonial
hearsay as the basis for an expert’s opinion violates the Confrontation
Clause. Vera, 770 F.3d at 1237 (quoting Gomez, 725 F.3d at 1129).

¶34           In Vera, the detective “had extensive training about and
experience with gangs, including some formal classroom training, his time
on the Santa Ana Gang Task Force[,] and his work at the Santa Ana Police
Department as a gang homicide investigator and gang suppression
detective.” Id. at 1239. Because the officer based his expert testimony on
his experience and observations with the gang in question, the court held
that he was not a mere conduit for gang members’ statements. Id.

¶35          Here, similarly, Detectives Justus and Egea based their
opinions on trainings, observations, and experiences that collectively
formed the bases for their expertise, and neither detective served as a mere



                                     11
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                             Opinion of the Court

conduit for gang members’ statements. To establish the foundation for his
testimony regarding the Aryan Brotherhood, Detective Justus testified that
his knowledge and experience were based on a wide range of sources,
including supervised training in the field, working as an undercover officer
in frequent contact with gang members, attending and instructing at
seminars on gang-related activity, collaborating with prison intelligence
officials, debriefing gang members when they end their gang memberships,
talking to gang members acting as informants, conducting wire taps, and
intercepting and reading gang members’ mail. In total, Detective Justus
testified that he had participated in hundreds of “investigations that
involved the reviewing and use of inmate communications.” His partner,
Detective Egea, testified that he had similar experience and training.

¶36           Detectives Justus and Egea then testified about the origins of
the Aryan Brotherhood, the legal definitions of a criminal street gang, some
of the terminology used by the Aryan Brotherhood, the leadership structure
of the Aryan Brotherhood, and the significance to the gang of certain tattoos
and symbols. The only member of the Aryan Brotherhood either detective
mentioned specifically was Robert R., who goes by the nickname “Chicago
Bob,” but neither detective mentioned anything that Robert R. or any other
member of the Aryan Brotherhood ever said to another or told them
directly.

¶37            Guarino nonetheless argues that the detectives’ testimony
was like the improper testimony of the detective in United States v. Mejia,
545 F.3d 179 (2d Cir. 2008). Mejia, however, is distinguishable. The
detective in Mejia “simply summarize[ed] an investigation by others that
[was] not part of the record and present[ed] it in the guise of an expert
opinion.” 545 F.3d at 199 (internal citations and quotation marks omitted);
see also United States v. Palacios, 677 F.3d 234, 244 (4th Cir. 2012) (stating that
Mejia “turned upon the fact that the expert simply passed along an
important testimonial fact he learned from a particular interview, which
did not require him to apply any independent expertise” (internal citation
and quotation marks omitted)). But, unlike the detective in Mejia, the
detectives in this case did not merely convey out-of-court statements to the
jury.

¶38            Instead, like the detective in Vera, Detectives Justus and Egea



                                        12
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                            Opinion of the Court

applied their expertise and did not serve as “mere conduits” for admission
of someone else’s hearsay statements. Indeed, rather than having either
detective speak on behalf of members of the Aryan Brotherhood, the State
called an Aryan Brotherhood member to speak about the gang from a
member’s perspective. The detectives’ testimony did not violate Guarino’s
Confrontation Clause rights. The admission of the detectives’ testimony
was therefore proper, and Guarino has failed to establish fundamental
error.

       C.      Constitutionality of the (F)(6) Aggravating Factor
¶39            Guarino argues that the (F)(6) “especially cruel” factor
violates the Eighth and Fourteenth Amendments because it does not
adequately limit the sentencer’s discretion when deciding whether to
impose the death penalty, see Gregg, 428 U.S. at 196–98, and because “[t]he
vast majority of Arizona cases [that] have upheld the (F)(6) factor as
constitutional involved sentencing by judges, rather than juries.” Guarino
did not object to the constitutionality of the (F)(6) aggravator below. We
therefore review his argument for fundamental error. Henderson, 210 Ariz.
at 567 ¶ 19, 115 P.3d at 607.

¶40            We have previously rejected this argument. State v. Anderson,
210 Ariz. 327, 352–53 ¶¶ 109–14, 111 P.3d 369, 394–95, supplemented by 211
Ariz. 59, 116 P.3d 1219 (2005) (observing that the (F)(6) aggravator was
sufficiently narrowed by jury instructions that “gave substance to the terms
‘cruel’ and ‘heinous or depraved’ in accordance with our case law
narrowing and defining those terms”); see also State v. Tucker, 215 Ariz. 298,
310 ¶ 28, 160 P.3d 177, 189 (2007) (“The (F)(6) aggravator is facially vague
but may be remedied with appropriate narrowing instructions, whether a
judge or a jury makes the sentencing determination.”). Guarino provides
no reason for us to revisit those rulings. The trial judge did not commit
fundamental error by allowing the jury to consider the (F)(6) aggravator
under appropriate limiting instructions.

       D.     Abuse of Discretion Review
¶41           Although Guarino does not argue that the jurors erred in
sentencing him to death, we are required to review a death sentence for an
abuse of discretion. State v. Morris, 215 Ariz. 324, 340 ¶ 76, 160 P.3d 203, 219
(2007).




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                           STATE v. GUARINO
                           Opinion of the Court


¶42           The State convicted Guarino of first degree murder and
established four aggravating circumstances beyond a reasonable doubt.
These aggravating factors were supported by substantial evidence. The
defense urged the jury to grant Guarino leniency due to his age, mental
illness, severe cognitive impairment, low IQ, dysfunctional family
background, drug abuse, genetic propensity for drug addiction, genetic
propensity for mental illness, lack of future dangerousness, good behavior
during pretrial incarceration, love of family, good conduct during the trial,
and ability to adapt to a prison environment. Guarino also presented
evidence that he had been the victim of bullying, had suffered a personal
tragedy, and had acted under the influence of Frank and other members of
the Aryan Brotherhood.

¶43           Much of Guarino’s presented mitigation could reasonably be
given little weight by jurors or was heavily rebutted by the State. Thus,
reasonable jurors might conclude, in light of the four aggravating
circumstances, that the evidence was insufficient to warrant leniency,
despite the mitigation evidence presented. The jury did not abuse its
discretion when it declined to grant Guarino leniency.

                          III.   CONCLUSION

¶44          Guarino lists thirteen additional issues, which he
acknowledges have previously been rejected by this Court, to preserve
them for future review. We decline to revisit those issues.

¶45          We affirm Guarino’s convictions and sentences.




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