                                 IN THE

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

                                    v.

                        JASPER PHILLIP RUSHING,
                               Appellant.

                           No. CR-15-0268-AP
                         Filed November 6, 2017


          Appeal from the Superior Court in Maricopa County
               The Honorable Michael W. Kemp, Judge
                         No. CR2010-007882

      AFFIRMED IN PART, VACATED IN PART, REMANDED

COUNSEL:

Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor
General, Lacey Stover Gard, Chief Counsel, Capital Litigation Section,
Tucson, Ginger Jarvis (argued), Assistant Attorney General, Phoenix,
Attorneys for State of Arizona

Sharmila Roy (argued), Laveen, Attorney for Jasper Phillip Rushing



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


*
      Justice John R. Lopez, IV, has recused himself from this case.
Pursuant to article 6, section 3 of the Arizona Constitution, the Honorable
Rebecca White Berch, Justice of the Arizona Supreme Court (retired), was
designated to sit in this matter.
                            STATE V. RUSHING
                           Opinion of the Court


JUSTICE TIMMER, opinion of the Court:

¶1             Jasper Phillip Rushing was sentenced to death after a jury
 found him guilty of first degree murder. We have jurisdiction over this
 automatic appeal under article 6, section 5(3) of the Arizona Constitution
 and A.R.S. § 13–4031. 1 We affirm Rushing’s conviction. To comply with
 the United States Supreme Court’s decision in Lynch v. Arizona, 136 S. Ct.
 1818 (2016) (“Lynch II”), we vacate the death sentence and remand for a new
 penalty phase proceeding.
                                   BACKGROUND 2

¶2             In August 2010, Rushing and victim Shannon P. were
 imprisoned in the Lewis Prison Complex. They were temporarily housed
 together in an isolation cell after each expressed safety concerns with his
 prior assigned housing. The cell was designed for one person. It had one
 bed, but prison staff provided a floor mattress so each man had a place to
 sleep.

¶3           On September 10, Rushing killed Shannon while in their cell.
There were no witnesses. Corrections officer Joel Valdovinos said nothing
seemed unusual when he conducted hourly welfare checks of the inmates
that morning. And when Rushing was temporarily removed from the cell
around 10:30 a.m. for a prisoner count, he was calm and pleasant.

¶4             Just before 1:00 p.m., Valdovinos opened the “food trap” in
the cell door to serve lunch. He could not see inside the cell because it was
dark, as it had been all morning. An investigator later determined that the
cell light was broken. Rushing “put his face to the trap” and said, “you
have to call IMS [the “inmate management system”]. I think I just killed
my cellie.” Valdovinos asked if Rushing was being serious or lying, and
Rushing replied, “No . . . I beat him up and I think I killed him.” Using a
flashlight, Valdovinos illuminated the cell and saw Shannon lying on the


1
      We cite the current versions of statutes unless they have materially
changed since Rushing committed the offense.
2
       We view the facts in the light most favorable to sustaining the jury’s
verdict. State v. Gallegos, 178 Ariz. 1, 9 (1994).


                                     2
                             STATE V. RUSHING
                            Opinion of the Court


bed with a “large gash in his throat.” Valdovinos asked Rushing what
weapon he had used to inflict the injuries, and Rushing said he used “a
razor blade he had on the sink.”

¶5            Valdovinos immediately called for help, and then told
Rushing to turn around so he could cuff him through the trap door.
Rushing responded, “can I have a sip of coffee real quick?” After
Valdovinos replied, “[n]o dude . . . . Look at what you just did, man,”
Rushing nevertheless “took a sip . . . turned around, put his hand[s] through
the trap,” and Valdovinos handcuffed him.

¶6            After more officers arrived, Rushing was removed from the
cell. According to an officer, Shannon was found unconscious but alive,
lying face up on the bunk with his throat “clearly” cut and “his head and
his left arm kind of draped over on the ground.” His “face had been
smashed in . . . like he had been bludgeoned. His no[se] was flattened out
against his head.” His severed penis was found on the floor. Shannon
could not be resuscitated, and he died en route to the hospital. A medical
examination later determined Shannon died from “blunt force and sharp
force injury,” but could not identify the order of injuries to his head, face,
neck, and penis.

¶7             Two weapons were found in the cell: (1) a bloody disposable
 razor, wrapped on one end with cellophane to form a handle, and (2) a
 thick, rolled-up, soft-cover book contained within a sock, which, in turn,
 had been wrapped in a sheet.

 ¶8           The State indicted Rushing on one count of premeditated first
degree murder pursuant to A.R.S. § 13-1105 and sought the death penalty.
That Rushing killed Shannon was not contested at trial; the only issue was
whether he did so with premeditation. The jury found Rushing guilty as
charged. In the aggravation phase, the jury found three aggravating factors:
(1) Rushing had been previously convicted of another offense for which life
imprisonment or death could be or had been imposed, see A.R.S. § 13-751
(F)(1); (2) Rushing committed the offense in an especially heinous or
depraved manner, see id. § 13-751(F)(6); and (3) Rushing committed the
offense while in the custody of the state department of corrections, see id.
§ 13-751(F)(7)(a).    After considering mitigation evidence, the jury



                                      3
                             STATE V. RUSHING
                            Opinion of the Court


determined that Rushing should be sentenced to death.

                                    DISCUSSION
              A. Guilt Phase

              1. The Trujillo statement

¶9             After officers responded to Valdovinos’s request for help,
they removed the handcuffed Rushing from the cell. Without first advising
Rushing of his Miranda rights, corrections officer Trujillo asked him “what
he had used to assault [Shannon].” Rushing answered that he had used
“rolled up magazines to beat [Shannon] unconscious and then used a razor
blade with a small handle to cut his neck and to cut off the penis” (hereafter,
the “Trujillo statement”).

¶10            Before trial, Rushing moved to suppress the Trujillo
statement, arguing it was made involuntarily and obtained in violation of
Miranda v. Arizona, 384 U.S. 436 (1966). The prosecutor responded that she
did not intend to call Trujillo as a witness. Relying on this avowal, the trial
court considered the matter moot and did not decide the statement’s
admissibility.

¶11           During the trial’s guilt phase, corrections Sergeant Damian
Ryan testified he heard Rushing “talking about the assault” with an
unnamed officer soon after Rushing was pulled from the cell. Neither the
prosecutor nor defense counsel asked Ryan to relate what he had
overheard. But, without objection, the trial court posed a juror’s question,
which elicited the Trujillo statement:

       The Court: Did you hear anything that Mr. Rushing said
       while he was in your presence and, if so, what was said?

       [Ryan]: I’d have to refer to my report. I heard Mr. Rushing
       say, I hit him with a roll of magazines until I knocked him out
       and then I cut his throat and cut his dick off. He then said the
       razor blade was on the sink.

The prosecutor and defense counsel each asked follow-up questions
confirming what Ryan overheard. Also, without objection, the prosecutor

                                      4
                             STATE V. RUSHING
                            Opinion of the Court


later elicited an opinion from Dr. John Hu, the medical examiner who
conducted the autopsy, that the order of injuries described in the Trujillo
statement was consistent with Shannon’s wounds. Finally, the prosecutor
referred to the Trujillo statement repeatedly during closing argument to
argue that the murder was premeditated—the only issue at trial.

           a. Standard of review

¶12          Rushing argues that the trial court violated his Fifth
Amendment rights by admitting the Trujillo statement. The State does not
dispute that introducing the statement was error. The parties disagree,
however, on whether the error should be evaluated under the fundamental
error or harmless error standard of review.

¶13           The State argues that Rushing waived the issue by failing to
object to the juror’s question, and fundamental error review is therefore
appropriate. The State alternatively argues that Rushing “invited any
possible error by agreeing to permit the trial court to ask the juror’s question
that led to Sergeant Ryan’s answer.” Rushing contends he preserved his
objection through the motion to suppress, and harmless error review is
therefore warranted.

¶14            Rushing did not invite the error. The invited error doctrine
prevents a party from injecting error into the record and then profiting from
it on appeal. State v. Logan, 200 Ariz. 564, 566 ¶ 11 (2001). Defense counsel
did not inject the error here by asking Ryan to relate what he had overheard.
A juror posed that question to the trial judge, who asked it of Ryan. Defense
counsel’s failure to object to the question constitutes waiver, not invited
error.

¶15            Although Rushing moved pre-trial to prevent the State from
introducing the Trujillo statement, the court did not rule on the merits, as
the State disclaimed any intent of offering the statement. But even if the
trial court had ruled on the motion to suppress, Rushing needed to object
to the juror’s question to preserve the issue for appeal. The earlier motion
preserved Rushing’s objection to the prosecution introducing the contested
statement. But the prosecutor did not elicit the statement from Sergeant
Ryan; a juror did through the judge. When the judge read the proposed
juror question to counsel for both sides outside the jury’s hearing, defense


                                       5
                              STATE V. RUSHING
                             Opinion of the Court


counsel was required to raise any objection then, but he did not. Cf.
Matchett v. State, 364 S.E.2d 565, 567 (Ga. 1988) (concluding that while
questions directly from a juror to a witness are generally not permitted in
Georgia, appellant’s failure to object waived the issue); Handy v. State, 30
A.3d 197, 211 (Md. Ct. Spec. App. 2011) (concluding that the failure to object
to a juror question waives the issue on appeal).

                      b. Merits

¶16            “A fundamental error is error that goes to the foundation of
the case, takes from the defendant a right that is essential to his defense,
and is of such magnitude that the defendant could not possibly have
received a fair trial.” State v. Escalante-Orozco, 241 Ariz. 254, 272 ¶ 40 (2017)
(citing State v. Henderson, 210 Ariz. 561, 567 ¶ 19 (2005)). The defendant
must prove that the error was fundamental and that it prejudiced him. Id.

¶17           Focusing on the latter requirement, Rushing argues he was
prejudiced by admission of the Trujillo statement because it tended to show
premeditation. The medical examiner could not determine the order in
which Rushing inflicted Shannon’s wounds.            Without the Trujillo
statement, Rushing asserts, “there was no other evidence before the jury of
the order of the blows or more significantly [Rushing’s] apparent thought
process prior to the assault.” According to Rushing, “[w]ithout that
statement, the jury could have found [him] guilty of second-degree
murder.”

¶18             Rushing murdered Shannon with premeditation if he acted
“with either the intention or the knowledge that he [would] kill another
human being, when such intention or knowledge precede[d] the killing by
any length of time to permit reflection.” A.R.S. § 13-1101(1) (defining
premeditation). The murder was not premeditated if it was “the instant
effect of a sudden quarrel or heat of passion.” Id. The State was required to
prove actual reflection but could do so through circumstantial evidence. See
State v. Ovante, 231 Ariz. 180, 184 ¶ 14 (2013) (“There is no prescribed period
of time which must elapse between the formation of the intent to kill and
the act of killing, but the record must at least circumstantially support that
a defendant considered his act and did not merely react to an instant quarrel
or in the heat of passion.”); State v. Thompson, 204 Ariz. 471, 479 ¶ 31 (2003)
(noting that the passage of time is one factor among others that can show

                                        6
                             STATE V. RUSHING
                            Opinion of the Court


actual reflection).

¶19            Admission of the Trujillo statement was neither fundamental
error nor prejudicial. Apart from the statement, the circumstances of the
murder sufficiently proved premeditation. Shannon was not killed by a
quick strike. Rushing used two weapons—a bludgeon and a razor. He
delivered at least four hard blows to Shannon’s head and face, made deep
cuts on both sides of his neck, and likely spent time completely severing his
penis with just a razor (the medical examiner testified it would not have
been easy to cut through the penis). The jury could have reasonably
concluded that switching weapons, moving to different areas of Shannon’s
body, and taking the time to remove the penis afforded Rushing sufficient
time to reflect on his actions.

¶20           There was no evidence of shouting, fighting, or other
indications of a sudden quarrel between Rushing and Shannon that might
suggest Rushing acted without reflection. Shannon had no defensive
wounds, which might have suggested a brawl, and he was found lying on
the bed with most of the blood pooled at its head and the adjacent floor.
Rushing did not appear distressed immediately after the murder and,
indeed, appeared calm and even asked to sip coffee before being
handcuffed while Shannon lay gasping for air nearby.

¶21            The Trujillo statement did not add much to the premeditation
issue. Although Rushing related the order in which he wounded Shannon,
this was an after-the-fact recitation of events, not a statement about any pre-
attack plan. We fail to see how the statement reflects Rushing’s thought
process, as he now argues. Indeed, defense counsel argued in closing that
the Trujillo statement was only “an acknowledgment of what he did” and
“doesn’t show any premeditation at the time of the offense at all.” And
even if the order of wounds is somehow significant to showing
premeditation, the jury would have likely concluded that Shannon was
initially knocked unconscious before the razor attack, even without the
Trujillo statement. There was no blood on the tops or bottoms of Shannon’s
feet, the blood was confined to the area on and immediately around the bed,
and he did not have any defensive wounds. This evidence indicates that
Rushing attacked Shannon while he was on the bed. As it is unlikely that
Shannon would have remained still while being cut, the most plausible



                                       7
                              STATE V. RUSHING
                             Opinion of the Court


explanation is that he was initially knocked unconscious.

¶22            The Trujillo statement also did not unfairly prejudice
Rushing’s defense theory. Defense counsel claimed that Rushing lacked a
motive to kill Shannon but “something set [Rushing] off,” and that this may
have been “a case of heat of passion or sudden quarrel.” He pointed out
that Rushing “went over and beyond what was necessary to kill,”
indicating Rushing was “completely out of control.” The Trujillo statement,
which corroborated the physical evidence, was not inconsistent with the
defense theory that Rushing was “out of control.”

¶23            In sum, the trial court did not commit fundamental error by
eliciting testimony about the Trujillo statement through the juror’s
question.

               2. Gruesome Photographs

¶24             Over Rushing’s objection, the trial court admitted one
murder scene photo and four autopsy photos during the guilt phase: Trial
exhibits 21 (cell), 41 (peeled-back scalp and skull surface), 42 (brain), 43
(groin), and 47 (severed penis and a knocked-out tooth). We review the
court’s ruling for an abuse of discretion. See State v. Jones, 203 Ariz. 1, 9 ¶ 28
(2002).

¶25            Generally, “[w]hether the trial court abused its discretion in
admitting a photograph turns on (1) the photograph’s relevance, (2) its
tendency to inflame the jury, and (3) its probative value compared to its
potential to cause unfair prejudice.” State v. Goudeau, 239 Ariz. 421, 459
¶ 153 (2016) (citation and internal quotation marks omitted); Ariz. R. Evid.
403. Rushing argues that the court violated his due process rights because
the photos were not relevant to deciding whether the murder was
premeditated, and they were unfairly prejudicial due to their gruesome
depictions.

¶26            The photographs were relevant. The photo of the cell
(exhibit 21) showed that Shannon’s blood was largely confined to the head
of the bed, which suggested he was attacked while lying down and not as




                                        8
                             STATE V. RUSHING
                            Opinion of the Court


the result of a heat-of-passion fight as Rushing argued.

¶27             Dr. Hu used the autopsy photos to explain Shannon’s
injuries and to testify about the cause of death. Cause of death is always
relevant. Cf. State v. Morris, 215 Ariz. 324, 339 ¶ 70 (2007) (“Photographs of
a victim’s body are always relevant because the fact and cause of death are
always relevant in a murder prosecution.” (citations and internal quotation
marks omitted)); State v. Hampton, 213 Ariz. 167, 173 ¶ 18 (2006) (stating the
same and adding that photos may be relevant “to show the fatal injury, to
determine the atrociousness of the crime, to corroborate State witnesses, to
illustrate testimony, or to corroborate the State’s theory of the crime.”
(citations and internal quotation marks omitted)). This is so even though
Rushing did not dispute how Shannon was injured or his cause of death.
Cf. Hampton, 213 Ariz. at 173 ¶ 19 (“Even if a defendant does not contest
certain issues, photographs are still admissible if relevant because the
burden to prove every element of the crime is not relieved by a defendant’s
tactical decision not to contest an essential element of the offense.” (quoting
State v. Dickens, 187 Ariz. 1, 18 (1996)).

¶28            The autopsy photos were also relevant to show
premeditation. Exhibits 41 and 42 depict red areas on the scalp and brain
that supported Dr. Hu’s conclusion that Shannon suffered multiple
contusions and hemorrhaging, which are generally caused by “a significant
amount of blunt force trauma to the head.” This evidence shows that
Rushing hit Shannon several times with blows that would necessitate a
sufficient passage of time between strikes to build force, which could
permit reflection.

¶29           Exhibit 43 shows Shannon’s external genitalia where the
penis had been removed, and Exhibit 47 shows that the severed penis has
jagged edges. Both photos showed the denseness of the penis. The jury
was shown these photos while Dr. Hu explained that the penis had been
severed at “the root” along with some of the scrotum; many slashes were
required to sever the penis, as reflected by the jagged cutting edge; and it
would have been difficult to cut through the appendage with a razor blade.
This evidence supports a conclusion that Rushing had to spend some time
severing the penis, which gave him time to reflect. The knocked-out tooth,
shown in a corner of exhibit 47, shows the severity of the head blows and is


                                       9
                             STATE V. RUSHING
                            Opinion of the Court


relevant in the same manner as exhibits 41 and 42.

¶30             Although the photos are graphic, the trial court acted within
its discretion by finding that their probative value was not outweighed by
any prejudicial effect. See Ariz. R. Evid. 403. The photo of the cell (exhibit
21) shows a great deal of blood confined to one area of the bed, a bloody
mess on the floor immediately beside the bed, and clean space elsewhere in
the cell. Shannon’s severed penis is depicted, but it is not the focus of the
photo. Also, although a corrections officer described the scene, the photo
better evidences that Rushing’s attack was confined to the bed area.

¶31             While the autopsy photos are more disturbing, we reach the
same conclusion. This was a shockingly violent murder, which had been
vividly described to jurors by witnesses. It is unlikely that viewing the
autopsy pictures so inflamed jurors that a danger of unfair prejudice
existed. See State v. Lopez, 174 Ariz. 131, 139 (1992) (“Such photographs
cannot be deemed sufficiently gruesome to inflame the jurors because ‘the
crime committed was so atrocious that photographs could add little to the
repugnance felt by anyone who heard the testimony.’” (citation omitted));
see also State v. Cota, 229 Ariz. 136, 147 ¶ 46 (2012) (“[T]here is nothing
sanitary about murder and sometimes gruesome photographs properly will
be introduced.” (citation and internal quotation marks omitted)).

              B. Aggravation Phase

¶32            The jury found that Rushing murdered Shannon in an
especially heinous or depraved manner, thereby establishing the
aggravating circumstance under § 13-751(F)(6) (“The defendant committed
the offense in an especially heinous, cruel or depraved manner.”). Rushing
argues that the State failed to prove the (F)(6) aggravator beyond a
reasonable doubt. To resolve this argument, we must “determine whether
substantial evidence support[ed] the jury’s finding, viewing the facts in the
light most favorable to sustaining the jury verdict.” State v. Gunches, 225
Ariz. 22, 25 ¶ 14 (2010).

¶33            The State proved that Rushing murdered Shannon in an
especially heinous or depraved manner by inflicting gratuitous violence.
Cf. id. at 25 ¶ 15 (listing “infliction of gratuitous violence” as among the
factors generally relevant in determining heinousness and depravity).

                                     10
                              STATE V. RUSHING
                             Opinion of the Court


Gratuitous violence can be found if the defendant “(1) inflicted more
violence than that necessary to kill, and (2) continued to inflict violence after
he knew or should have known that a fatal action had occurred.” Id. at 25–26 ¶ 16
(quoting State v. Bocharski, 218 Ariz. 476, 494 ¶¶ 86–87 (2008)) (internal
quotation marks omitted).

¶34            Rushing does not contest that sufficient evidence exists that
he inflicted more violence than necessary to kill Shannon. Instead, he
argues that insufficient evidence exists that he knew or should have known
that he continued to inflict injury on Shannon after “a fatal action had
occurred.” He points out that no evidence showed the time it took to inflict
the wounds, and Shannon lived for about an hour after the attack occurred.
Thus, Rushing asserts that this case is closer to ones in which we have found
insufficient evidence that defendants knew or should have known that
additional injury was inflicted after “a fatal action” than cases in which we
reached the opposite conclusion. Compare Gunches, 225 Ariz. at 26 ¶ 20
(finding insufficient evidence where the defendant fired three shots in
quick succession on a dark night before the final shot), and State v. Wallace,
229 Ariz. 155, 161 ¶ 26 (2012) (finding insufficient evidence where the
defendant hit the victim multiple times with a baseball bat before putting
the bat through her neck as she moaned), with State v. Benson, 232 Ariz. 452,
464–65 ¶ 50 (2013) (finding sufficient evidence where the defendant
admitted that the victim’s body was getting cold when he dragged her into
his car, drove somewhere, pushed her out of the car and then ran over her),
and State v. Bearup, 221 Ariz. 163, 173 ¶ 52 (2009) (finding sufficient evidence
where the defendant had beaten the victim “nearly to death” with an
aluminum baseball bat and then about an hour later cut off his finger).

¶35           The record contains sufficient evidence that Rushing inflicted
gratuitous violence by severing Shannon’s penis after Rushing knew or
should have known he had inflicted a fatal injury. The Trujillo statement
placed the order of wounds as head, neck, and penis. As previously
discussed, the circumstantial evidence supported this order as Shannon did
not have any defensive wounds, the blood was all in or beside the bed, none
of the blood spilled onto Shannon’s lower legs and feet, and it’s unlikely
Shannon would have stayed put as his penis was severed had he been
conscious. Considering the damage inflicted and the time it must have
taken to switch weapons, sufficient evidence exists that Rushing knew or
should have known he had delivered the fatal action before he severed the

                                       11
                               STATE V. RUSHING
                              Opinion of the Court


penis. And even if he did not know he had struck a fatal blow when he
started cutting away the penis, considering the time it must have taken to
complete the attack, the jury could have reasonably concluded that he must
have become aware that he had done so.

               C. Penalty Phase

               1. “Future Dangerousness”

¶36             Before trial, Rushing unsuccessfully moved the trial court to
instruct the jury pursuant to Simmons v. South Carolina, 512 U.S. 154 (1994)
(plurality) that he is ineligible for release. Instead, the court instructed the
jury at the start of the aggravation phase that if it decided to impose a life
sentence, “the judge will sentence the defendant to either life imprisonment
without the possibility of release from prison or life imprisonment with the
possibility of release from prison after 25 years.” The court did not again
instruct the jury in the penalty phase about the available types of life
sentences. Rushing argues that the court violated his rights under the Sixth,
Eighth, and Fourteenth Amendments, as set forth in Simmons and Lynch II,
136 S. Ct. 1818, by refusing to instruct the jury that he was ineligible for
parole. We review de novo whether the court properly instructed the jury.
See State v. Glassel, 211 Ariz. 33, 53 ¶ 74 (2005).

¶37            In Simmons, the United States Supreme Court held that
“where the defendant’s future dangerousness is at issue, and state law
prohibits the defendant’s release on parole, due process requires that the
sentencing jury be informed that the defendant is parole ineligible.” 512
U.S. at 156. Only juveniles and individuals who committed a felony before
January 1, 1994, are eligible for parole in Arizona. A.R.S. § 41-1604.09(I).
Rushing does not fall into either category. In the past, this Court has held
that even when a defendant’s future dangerousness is at issue, the type of
instruction given by the trial court here does not violate Simmons because
future release is possible. See, e.g., State v. Lynch, 238 Ariz. 84, 103 ¶ 65 (2015)
(“Lynch I”), rev’d by Lynch II, 136 S. Ct. 1818. But in Lynch II the Supreme
Court rejected our holding. 136 S. Ct. at 1819. The Court determined that
the possibilities of clemency or a future statute authorizing parole “[do not]
diminish[] a capital defendant’s right to inform a jury of his parole
ineligibility.” Id. And use of the word “release,” while correct under
Arizona law, still gives the defendant a right to inform the jury of his parole

                                        12
                              STATE V. RUSHING
                             Opinion of the Court


ineligibility. See id.

¶38          The State first argues that Simmons and Lynch II apply only
when the prosecution puts the defendant’s future dangerousness at issue.
And because Rushing opened the door to the issue by eliciting expert
testimony that he could be imprisoned without risk to others, he — not the
prosecutor — put future dangerousness at issue, and thus a Simmons
instruction was unwarranted.

¶39              Simmons, however, does not require that the prosecution
initially raise the issue; it requires an instruction “where a capital
defendant’s future dangerousness is at issue” and the sentencing choices
are death or life imprisonment without the possibility of parole. See Lynch
II, 136 S. Ct. at 1818 (citations and internal quotation marks omitted); see also
Escalante-Orozco, 241 Ariz. at 285 ¶ 119 (“The prosecutor did not have to
explicitly argue future dangerousness for it to be at issue; instead, it is
sufficient if future dangerousness is ‘a logical inference from the evidence’
or is ‘injected into the case through the State’s closing argument.’” (quoting
Kelly v. South Carolina, 534 U.S. 246, 252 (2002)).

¶40           Regardless, the State placed Rushing’s future dangerousness
at issue during the penalty phase. For example, the prosecutor pointed out
in her opening statement that Rushing shot his stepfather in the back of the
head, killing him while he slept, threatened officers and got into fights in
prison, and, a few months before the murder here, was found with two
shanks hidden inside his rectum. The prosecutor elicited information from
a prison expert that Rushing was affiliated with the Aryan Brotherhood,
once planned to form a Skinhead group “to bring things back in order” in
Prescott upon release from prison, and accumulated disciplinary violations,
including threats to kill corrections officers. In closing argument, the
prosecutor again highlighted Rushing’s past acts of violence and
emphasized the brutality of Shannon’s murder.

¶41           By introducing evidence of Rushing’s past violent acts, his
associations with violent groups, and his plans upon release from prison,
the prosecutor placed Rushing’s future dangerousness at issue. Cf. Kelly,
534 U.S. at 252–53 (requiring a Simmons instruction where the prosecutor
introduced evidence of the defendant’s violent tendencies and referred to
him using violence-invoking nicknames); Escalante-Orozco, 241 Ariz. at 285–

                                       13
                             STATE V. RUSHING
                            Opinion of the Court


86 ¶¶ 121–22 (concluding that introduction of past acts of violence and
prosecutor’s arguments placed the defendant’s future dangerousness at
issue). Because the trial court presented a “false choice” of death, natural
life, or life with the possibility of release when it instructed the jury at the
start of the aggravation phase, once it proceeded to the penalty phase, the
court was required to either instruct that Rushing would not be eligible for
parole or permit Rushing to introduce evidence to that effect. See Simmons,
512 U.S. at 161.

¶42           The State alternatively argues that any error was harmless.
Even if we assume a Simmons error can be harmless, the State has not met
its burden to “prove beyond a reasonable doubt that the error did not
contribute to or affect the verdict or sentence.” Henderson, 210 Ariz. at 567
¶ 18.

¶43            The State asserts that jurors did not need a Simmons
instruction to know that Rushing would not be released because he was
already serving a life sentence for murdering his stepfather. Although it is
unlikely any juror thought Rushing could be paroled, we are not persuaded
beyond a reasonable doubt. The prosecutor implied that Rushing could be
released by telling jurors in the penalty phase opening statement that the
court had rejected the State’s request for a natural life sentence for the step-
father’s murder and instead imposed a sentence of life with the possibility
of release after twenty-five years. Rushing had served fourteen years of his
life sentence at the time of trial, and he was then thirty-five years old. Some
jurors might have believed that if the court again refused to impose a
natural life sentence, Rushing could be released after serving twenty-five
years of a second life sentence, whether that sentence was concurrent with
or consecutive to the first sentence. The jury deliberated for most of a day,
and it is not possible to know whether even the remote prospect of release
affected any juror’s decision to impose the death penalty. See Escalante-
Orozco, 241 Ariz. at 286 ¶ 126 (“We cannot know what role the possibility
of release played in the jurors’ minds as they decided the propriety of the
death penalty.”); cf. Andres v. United States, 333 U.S. 740, 752 (1948) (“In
death cases doubts such as those presented here should be resolved in favor
of the accused”).

¶44         In sum, the prosecution placed Rushing’s future
dangerousness at issue. Lynch II compels us to conclude that the trial court

                                      14
                             STATE V. RUSHING
                            Opinion of the Court


erred by failing to tell the jury that Rushing was ineligible for parole. The
error was not harmless beyond a reasonable doubt. Unless our abuse-of-
discretion review reveals that the death penalty is unwarranted, the trial
court must conduct new penalty phase proceedings.

              2. Abuse of discretion review

¶45            Rushing argues the jury abused its discretion in imposing the
death penalty. See A.R.S. § 13-756(A). We must uphold a death sentence
“if any reasonable juror could conclude that the mitigation presented was
not sufficiently substantial to call for leniency.” State v. Naranjo, 234 Ariz.
233, 250 ¶ 89 (2014) (citation and internal quotation marks omitted). The
jury did not abuse its discretion here.

¶46           Rushing presented mitigation evidence that he suffered from
“bipolar mood disorder,” “unspecified trauma and stressor-related
disorder,” “attention deficit hyperactivity disorder,” drug-related
disorders, and “unspecified personality disorder with antisocial traits.” He
also offered evidence that his childhood was “extremely chaotic and filled
with turmoil,” and that he suffered from posttraumatic stress disorder
(PTSD) resulting from being sexually abused during childhood.

¶47           Rushing also presented evidence connecting his mitigation
evidence to the murder. See State v. Pandeli, 215 Ariz. 514, 532 ¶ 72 (2007)
(recognizing that establishing a nexus between mitigating factors and the
crime, though not required, may affect the quality and strength of the
mitigation). Dr. Stuart Grassian, a psychiatrist, interviewed Rushing and
related Rushing’s version of events. According to Rushing, Shannon
became delusional during their joint confinement and “started talking a lot
about sex with children,” which made “everyone out to get him.” At one
point, Rushing showed Shannon a picture of his young niece, and Shannon
made sexually inappropriate comments about her. The day before his
death, Shannon was “absolutely wired” on coffee and talked incessantly
about sex with children, which drove Rushing to threaten him with the
bludgeon device to quiet him. When Shannon started talking about sex
with children again, Rushing “just went crazy” and killed him. Dr.
Grassian concluded that Rushing “snapped” as “happens to people with
bipolar mood disorder, people in solitary confinement, [and] people with


                                      15
                             STATE V. RUSHING
                            Opinion of the Court


PTSD.”

¶48           Dr. Jon Conte, an expert on child abuse, related similar
testimony. He opined that Rushing was an “untreated victim” of child
abuse who lacked the skills to refrain from “acting out” when confronted
with distressing circumstances.

¶49           On the other hand, the State cross-examined the expert
witnesses and discredited some of their assertions. And the jury may have
concluded that Rushing had lied to his experts about being driven to kill
Shannon by the latter’s talk about sex with children. The murder was
committed in a disturbing manner and, at the time of the offense, Rushing
was imprisoned for a different murder. Even if we assume that Rushing
proved all his mitigating circumstances, we cannot find that the jury abused
its discretion because a reasonable juror could have concluded that the
mitigation presented was not sufficiently substantial to call for leniency.


              3. Matters likely to arise on remand

                      a. Scope of State’s mental health expert examination

¶50            Rushing argues that the trial court violated his Fifth, Eighth,
and Fourteenth Amendment rights by requiring him to either answer
questions posed by the State’s mental health expert during a pretrial
examination regarding the murder or forego presentation of his mental
health expert testimony during the penalty phase. We address this
argument because it is likely to arise on remand, and we review the court’s
ruling for an abuse of discretion. See Phillips v. Araneta, 208 Ariz. 280, 281 ¶
1 (2004).

¶51           Before trial, Rushing notified the State that he intended to
introduce expert testimony to establish two statutory mitigating
circumstances during the penalty phase (if one occurred): § 13-751(G)(1)
(“The defendant’s capacity to appreciate the wrongfulness of his conduct
or to conform his conduct to the requirements of law was significantly
impaired, but not so impaired as to constitute a defense to prosecution.”),
and § 13-751(G)(2) (“The defendant was under substantial duress, although
not such as to constitute a defense to prosecution.”). The State scheduled

                                      16
                              STATE V. RUSHING
                             Opinion of the Court


an examination of Rushing with Dr. James Seward, its mental health expert.
Cf. Phillips, 208 Ariz. at 283 ¶ 9 (“[O]nce a defendant notifies the state that
he intends to place his mental condition at issue during the penalty phase
of a capital trial, a trial judge has discretion to order the defendant to submit
to a mental examination by an expert chosen by the state or the court.”).
The prosecutor reportedly instructed Dr. Seward that “whatever [Rushing]
told him about the offense could not be relayed to the State until [Rushing]
had been convicted of the murder and that any statements regarding the
murder would have to be redacted from this report and his notes prior to
disclosing either to the State.”

¶52             Rushing moved to preclude Dr. Seward from asking about
the murder or statements Rushing had made about the murder. The trial
court initially granted the motion, but later reconsidered, reasoning that the
circumstances of the offense were related to the alleged statutory
mitigators. Following the requirements in Phillips, the court ruled:

       Dr. Seward is not restricted in the questions he may ask the
       defendant. However, no statement made by the defendant
       during the examination, no testimony of an expert based on
       any such statement, and no other fruits of any statements
       made during the course of any examination may be used by
       the State or admitted into evidence except on those issues on
       which the defendant introduces expert testimony during the
       penalty phase of the trial. Specifically, the defendant’s
       statements regarding the offense may not be used against him
       in the guilt or aggravation phases of trial.

See Phillips, 208 Ariz. at 284 ¶ 14 (setting forth the required elements for a
trial court order authorizing the state’s expert to conduct a mental health
exam).

¶53           Rushing concedes that, under Phillips and its progeny, a trial
court can condition admission of a defendant’s mental health-related
mitigation evidence on his cooperation with the state’s mental health
evaluation. See Phillips, 208 Ariz. at 286 ¶ 20; see also State v. Newell, 212
Ariz. 389, 405 ¶¶ 79–80 (2006); State v. Carreon, 210 Ariz. 54, 68–69 ¶ 74
(2005). He argues, however, that no case permits the trial court to compel
a defendant to waive his Fifth Amendment privilege during an examination

                                       17
                             STATE V. RUSHING
                            Opinion of the Court


and reveal the circumstances of the murder for which he faces the death
penalty.

¶54            We reject this argument for two reasons. First, although the
Fifth Amendment applies in penalty phase proceedings, see Estelle v. Smith,
451 U.S. 454, 462–63 (1981), a defendant waives the privilege against
compelled self-incrimination by placing his mental health at issue as a
mitigating factor, State v. Fitzgerald, 232 Ariz. 208, 217 ¶ 44 (2013). Second,
imposing the blanket prohibition Rushing seeks would thwart the reason
for permitting the examination. In Phillips, we reasoned that a state’s expert
can be permitted to examine a defendant who places his mental health at
issue in the penalty phase to “maintain a fair state-individual balance,” and
to “ensure the state a meaningful opportunity to rebut the defendant’s
expert testimony.” 208 Ariz. at 283 ¶ 9. Here, as the trial court found,
Rushing’s statutory mitigators related to the circumstances of the offense.
It would therefore be unfair to have prohibited Dr. Seward from asking
questions concerning the offense.

¶55            The potential unfairness to the State is illustrated by
considering the defense expert testimony during the penalty phase. Had
the trial court granted Rushing’s motion, the State’s expert would have had
no opportunity to explore whether Rushing’s mental state at the time of the
offense had been affected by the conditions of the cell or Shannon’s constant
references to sex with children. In short, the State could not have
meaningfully determined whether Rushing had, in fact, “snapped” as Dr.
Grassian claimed. The court did not abuse its discretion by allowing Dr.
Seward to ask about the murder.

                     b. Rebuttal evidence

                     (i)    The September 10 interview

¶56           Rushing argues that videotaped statements he made to prison
investigators Dallas Ragan and Tom Bleichroth on the afternoon of the
murder were inadmissible in the penalty phase because (1) he invoked his
right to remain silent under Miranda after initially agreeing to the
interrogation, and (2) the investigators made promises to induce his
statements. We review the court’s denial of Rushing’s motion to suppress
for an abuse of discretion, “considering only evidence admitted at the

                                      18
                            STATE V. RUSHING
                           Opinion of the Court


suppression hearing and viewing it in the light most favorable to sustaining
the ruling.” Escalante-Orozco, 241 Ariz. at 269 ¶ 21. But we review
constitutional issues de novo. Id.

                      Miranda
¶57           If an in-custody individual unambiguously indicates a desire
to cut off questioning after initially waiving Miranda rights, officers must
end the interrogation. Berghuis v. Thompkins, 560 U.S. 370, 381 (2010).
Whether an invocation is ambiguous is “judged from the perspective of a
reasonable officer under the totality of the circumstances.” State v. Payne,
233 Ariz. 484, 501 ¶ 40 (2013).

¶58           After being advised of his Miranda rights, Rushing agreed to
answer questions. When Ragan asked Rushing about Shannon, the
following exchange occurred (the statements at the heart of Rushing’s
challenge are bolded):

       Ragan: What was your relationship like as you guys were
       housed there together over the past couple of weeks?

       Rushing: Very interesting to say the least. Very interesting.

       Ragan: How so?

       Rushing: Uh, I’m not sure I should say anything. I don’t
       know.

       Ragan: You don’t know? Did you guys get along? At first?

       Rushing: Yeah, at first, yeah. Absolutely.

Rushing then described how Shannon had upset him by incessantly talking
about sex with young children. When Ragan asked what occurred that
morning, the following exchange occurred:

       Ragan: I kind of would like to hear what went on today out of
       your mouth. I’m pretty intrigued about it and I’m going to
       leave that up to you to discuss with us. And basically I, you
       know, if you do, you know, go into some dialogue with us

                                     19
                             STATE V. RUSHING
                            Opinion of the Court


       about it[,] kind of start from how your morning started and
       kind of work your way, you know, through the events up
       until they pulled you out of the cell.

       Rushing: I realize that you guys are probably intrigued but I
       think the actual details of what happened I probably should
       not talk about.

       Ragan: Is there anything at all that you can tell us about?

       (Rushing shakes head)

       Rushing: I don’t know. Not really. I mean . . . (tapers off)

       Ragan: Again, it’s. I mean it’s up to you, I mean frankly I
       don’t I know that—I know that you’re serving a life sentence
       already, you know, it’s — I don’t think in the long run it’s
       really going to make too much of a difference in—in your
       custody time, you’re not going to get out and . . .

       Rushing: No.

       Ragen: So it’s, I mean not that I’m trying to pressure you into
       anything but[.]

Rushing eventually confessed to the crime and gave full details about the
murder.

¶59           Rushing’s statements were not unambiguous invocations of
his right to remain silent. Considering Rushing’s words, demeanor, and
body language on the video, a reasonable law enforcement officer could
have concluded that Rushing’s statements communicated only that he had
doubts about whether to disclose details of the crime. Cf. Davis v. United
States, 512 U.S. 452, 462 (1994) (“Maybe I should talk to a lawyer” was not
an unambiguous request for counsel); Payne, 233 Ariz. at 501 ¶¶ 40–41 (“I
don’t wanna talk anymore” followed shortly by a request to call family
“and then I’ll talk” was equivocal and insufficient to invoke right to
silence.). Requiring officers to cease an interrogation after an accused states
only that he should “probably” not discuss any details of an alleged crime,

                                      20
                            STATE V. RUSHING
                           Opinion of the Court


that he is “not sure” about whether he should say anything, or that there
was “not really” anything he could say would force police officers to “make
difficult decisions about an accused’s unclear intent and face the
consequences of suppression ‘if they guess wrong,’” resulting in a
“significant burden on society’s interest in prosecuting criminal activity.”
Berghuis, 560 U.S. at 382.

                    Voluntariness

¶60           To be admissible, a statement must be made voluntarily and
not obtained by coercion or improper inducement. See State v. Ellison, 213
Ariz. 116, 127 ¶ 30 (2006). “Promises of benefits or leniency, whether direct
or implied, even if only slight in value, are impermissibly coercive.” Lopez,
174 Ariz. at 138. “Before a statement will be considered involuntary
because of a ‘promise,’ evidence must be established that (1) a promise of
benefit or leniency was in fact made, and (2) the suspect relied on that
promise in making the statement.” Id.

 ¶61           Rushing contends that Ragan’s statement, “I don’t think in the
long run it’s really going to make too much of a difference in—in your
custody time, you’re not going to get out” was a promise of leniency that
made Rushing’s subsequent statements involuntary. We disagree. Ragan’s
observation was clearly his own opinion and did not suggest that he had
the ability to affect Rushing’s sentence. Cf. Burr, 126 Ariz. at 340 (finding
that a conversation should have been suppressed after a detective, who had
the authority to make an arrest, said “I’m not going to arrest you or put you
in jail or anything, but before I ask you anymore I’ve got to tell you what
your rights are”).

 ¶62        The trial court did not err by refusing to suppress evidence of
the September 10 interview.

                    (ii)   The September 24 interviews

 ¶63          On September 24, Department of Corrections Investigator
Ernest Barragan interviewed Rushing twice as part of an internal
investigation. Both interviews were conducted without giving Rushing any




                                     21
                              STATE V. RUSHING
                             Opinion of the Court


Miranda warnings, and he answered questions about the crime.

 ¶64          Rushing argues the trial court erred by permitting the
prosecution to play an audiotape of the interview as rebuttal evidence
during the penalty phase because the statements were involuntary and
obtained in violation of Miranda. The State counters with multiple
arguments, including that Rushing was not in custody for purposes of
Miranda, and that statements obtained in violation of Miranda can
nevertheless be admitted in the penalty phase if they were made voluntarily
and are reliable, as are the statements here. Cf. Howes v. Fields, 565 U.S. 499,
508–09 (2012) (establishing a two-part inquiry to assess whether an inmate
is in custody for Miranda purposes); United States v. Nichols, 438 F.3d 437,
442 (4th Cir. 2006) (“[S]tatements obtained in violation of Miranda, if they
are otherwise voluntary, may generally be considered at sentencing.”).

 ¶65         We decline to resolve these issues because they have not been
fully developed before the trial court or ruled on. If the State seeks to
introduce the audiotape on remand, the court should resolve the parties’
arguments in the first instance, including making any necessary factual
findings.


                     (iii)   White supremacist evidence

 ¶66           Rushing argues that the trial court violated his rights under
the First, Eighth, and Fourteenth Amendments by allowing the prosecutor
to introduce rebuttal evidence regarding his white supremacist views,
memberships, and affiliations.

 ¶67          We likewise decline to resolve this issue because it has not
been fully developed before the trial court or ruled on. Before trial, the
court deferred its ruling on the admissibility of this evidence in the penalty
phase “until mitigation is disclosed and we can have an argument about
what’s coming in and what’s not.” This never occurred. On remand, the
court may admit all or some of the contested evidence if it is relevant to
determining whether the mitigation is sufficiently substantial to warrant
leniency and is not unduly prejudicial. See State v. Leteve, 237 Ariz. 516, 528–




                                      22
                            STATE V. RUSHING
                           Opinion of the Court


29 ¶ 47 (2015); A.R.S. §§ 13-751(C) and (G), -752(G).

              D. Other constitutional claims

¶68           Rushing lists twenty-five other constitutional claims that he
acknowledges this Court has previously rejected but that he seeks to
preserve for federal review. We decline to revisit these claims.

                                CONCLUSION

¶69         We affirm Rushing’s conviction, vacate the death sentence,
and remand for a new penalty phase proceeding.




                                     23
