                               IN THE

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

                                  v.

                     STEPHEN DOUGLAS REEVES ,
                             Appellant.

                         No. CR-11-0157-AP
                        Filed October 23, 2013
          Appeal from the Superior Court in Maricopa County
              The Honorable Arthur T. Anderson, Judge
                       No. CR2007-135527-001
                            AFFIRMED


COUNSEL:

Thomas C. Horne, Arizona Attorney General, Jeffrey A. Zick, Chief
Counsel, Criminal Appeals/Capital Litigation, Matthew H. Binford
(argued), Assistant Attorney General, Phoenix, for State of Arizona

Bruce F. Peterson, Maricopa County Office of the Legal Advocate,
Consuelo M. Ohanesian (argued), Deputy Legal Advocate, Phoenix, for
Stephen Douglas Reeves
                         _______________

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

VICE CHIEF JUSTICE BALES, opinion of the Court:

¶1          This automatic appeal arises from Stephen Douglas Reeves’s
conviction and death sentence for the murder of Norma Gabriella
Contreras. 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. REEVES
                           Opinion of the Court

                             BACKGROUND

¶2            One Saturday morning in June 2007, Reeves entered an
office where eighteen-year-old Contreras was working alone. Reeves
asked if the office was hiring; she said no, and he left. About five minutes
later, Reeves returned carrying a piece of concrete and demanded her car
keys and cell phone. Contreras attempted to push an alarm button.
Reeves, who was much larger than Contreras, forced her to the floor and
straddled her. For about eight minutes, while Contreras screamed and
struggled, Reeves beat her, hit her with the concrete, wrenched her neck,
and attempted to strangle her with his hands and a piece of wood.
Finally, he retrieved a box cutter from another room and slit her throat.
He turned off the lights and dragged her body into a back room.
Meanwhile, people at another office who had heard Contreras scream
called 911. Police arrested Reeves shortly after he drove away in
Contreras’s car. He had her cell phone in his pocket.

¶3            Reeves was convicted of first degree murder, armed robbery,
first degree burglary, kidnapping, and theft of a means of transportation.
The jury found three aggravating circumstances: Reeves had previously
been convicted of a serious offense; the murder was especially cruel,
heinous, or depraved; and Reeves was on release at the time of the
offense. A.R.S. § 13-751(F)(2), (F)(6), (F)(7)(a). The jury could not reach a
verdict on a fourth alleged aggravator — that Reeves murdered Contreras
for pecuniary gain. Id. § 13-751(F)(5). The jury also could not reach a
verdict on the appropriate sentence, and the trial judge declared a mistrial
as to the penalty phase. A second jury found the pecuniary gain
aggravator and determined that Reeves should be sentenced to death for
the murder. In addition to the death sentence, the trial court imposed
prison sentences totaling forty-two years for the other convictions.

                              DISCUSSION

      A.     Declaration of Mistrial and Denial of Motion to Dismiss

¶4            Reeves contends that the trial court abused its discretion in
declaring a mistrial and later denying his motion to dismiss the State’s
allegation that he should be sentenced to death.

¶5           We examine the totality of the circumstances to determine

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                            Opinion of the Court

whether a trial court abused its discretion in declaring a mistrial. See State
v. Gallardo, 225 Ariz. 560, 564 ¶ 6, 242 P.3d 159, 163 (2010); State v. Ramirez,
111 Ariz. 504, 506, 533 P.2d 671, 673 (1975). Although the Double
Jeopardy Clause of the United States Constitution protects a defendant’s
“valued right to have his trial completed by a particular tribunal,” United
States v. Dinitz, 424 U.S. 600, 606 (1976) (quoting Wade v. Hunter, 336 U.S.
684, 689 (1949)), it does not prevent the declaration of a mistrial when a
jury cannot reach a verdict, see Yeager v. United States, 557 U.S. 110, 118
(2009) (“[A] jury’s inability to reach a decision is the kind of ‘manifest
necessity’ that permits the declaration of a mistrial”).

¶6             Here, at the end of the first penalty phase trial, the jury
deliberated about forty minutes and then asked the court what would
happen if it could not unanimously agree on the sentence. The court
referred the jury to its instructions. The next morning, the jury stated that
it was still divided and that “each juror [was] firm in their decision,” and
asked, “What do we do now?” The court gave an impasse instruction.
About an hour later, the jurors sent the judge a “statement” declaring that
they had exhausted all discussions, could not be unanimous, and had
“nothing further to discuss.” The judge recalled the jury, read the
statement into the record, and asked the foreperson to confirm its
accuracy. The trial court then declared a mistrial without objection.

¶7           Reeves does not dispute that the jury was unable to reach a
verdict on the appropriate sentence. By declaring a mistrial under these
circumstances, the trial court did not abuse its discretion or violate double
jeopardy principles. See Ramirez, 111 Ariz. at 505-06, 533 P.2d at 672-73.

¶8          Nor did the trial court err by denying Reeves’s motion to
dismiss the death penalty allegation. Reeves argues that retrying the
penalty phase violated his rights under the Double Jeopardy Clause and
the Eighth Amendment.

¶9            Reeves’s arguments are foreclosed by our recent decision in
State v. Medina, 232 Ariz. 391, 306 P.3d 48 (2013). There, we noted that
“the touchstone for double-jeopardy protection in capital-sentencing
proceedings is whether there has been an acquittal.” Id. at 400 ¶ 20, 306
P.3d at 57 (quoting Sattazahn v. Pennsylvania, 537 U.S. 101, 109 (2003))
(internal quotation marks omitted). Because a jury’s inability to agree on a
sentence does not constitute an acquittal, a penalty phase retrial does not

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                            Opinion of the Court

violate the Double Jeopardy Clause. Id. at 400-01 ¶¶ 20-23, 306 P.3d at 57-
58. In Medina, we also rejected the argument that retrial of the penalty
phase was disproportionate punishment under the Eighth Amendment.
Id. at 401-02 ¶¶ 24-28, 306 P.3d at 58-59. Reeves does not identify any
persuasive reason for us to reconsider or distinguish Medina.

¶10            Reeves further asserts that Arizona’s capital sentencing
statutes are unconstitutional because they permit two retrials after a guilty
verdict. See A.R.S. § 13-752(J)-(K). We need not reach this argument
because Reeves was subject to only one retrial. See State v. Musser, 194
Ariz. 31, 32 ¶ 5, 977 P.2d 131, 132 (1999) (noting that, subject to First
Amendment exceptions, “a person to whom a statute may constitutionally
be applied does not have standing to challenge that statute simply because
it conceivably could be applied unconstitutionally in other cases”). We
also decline to address Reeves’s undeveloped argument that the denial of
his motion to dismiss violated the double jeopardy provision in Article 2,
Section 10 of the Arizona Constitution. See State v. Bocharski, 218 Ariz. 476,
486 ¶ 41 n. 9, 189 P.3d 403, 413 n.9 (2008).

       B.     Vagueness Challenge to Death Penalty Statutes

¶11           Reeves contends that Arizona’s death penalty statutes are
unconstitutionally vague because they fail to provide sufficient guidance
on the presentation, at retrial, of evidence of the aggravating
circumstances found by the first penalty phase jury. Capital sentencing
laws that do not adequately limit a sentencer’s discretion violate due
process and the Eighth Amendment. See Gregg v. Georgia, 428 U.S. 153,
206-07 (1976); State v. Thompson, 204 Ariz. 471, 475 ¶ 15, 65 P.3d 420, 424
(2003).

¶12           Under Arizona’s capital sentencing scheme, “[a]t the penalty
phase, the defendant and the state may present any evidence that is
relevant to the determination of whether there is mitigation that is
sufficiently substantial to call for leniency.” A.R.S. § 13-752(G). When a
single factfinder is involved in sequential phases of a capital trial, “any
evidence that was presented at any prior phase of the trial shall be
deemed admitted as evidence at any subsequent phase of the trial.” Id. §
13-752(I).

¶13           “Although no provision . . . addresses the admissibility of

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                            Opinion of the Court

aggravation-phase evidence during a second penalty phase,” we recently
held that “during a second penalty phase, the state and the defendant may
introduce evidence pertaining to the aggravating circumstances
previously found, subject to § 13–752(G)‘s general relevance standard.”
State v. Prince, 226 Ariz. 516, 526 ¶¶ 15, 18, 250 P.3d 1145, 1155 (2011). We
thus concluded that the “the statutes governing the second penalty phase
provide sufficient guidance” to withstand a vagueness challenge. Id. at
527 ¶ 20, 250 P.3d at 1156. We accordingly reject Reeves’s argument.

       C.     Exclusion of Evidence of Likelihood of Release

¶14          Before retrial of the penalty phase, Reeves moved to
preclude the State from presenting any evidence of his future
dangerousness or, alternatively, to permit him to present evidence that he
likely would not be released if he received a life sentence. Denying
Reeves’s motion, the trial court instead granted the State’s motion to
preclude evidence about the likelihood of release. (The State notes that it
did not present evidence at the retrial regarding Reeves’s future
dangerousness.)

¶15           Reeves’s arguments are foreclosed by our recent decision in
State v. Benson, which held that a trial court did not abuse its discretion by
excluding “evidence of the current mechanism for obtaining parole and
past actions by the Board of Executive Clemency as a means of predicting
what might happen . . . in twenty-five years.” 232 Ariz. 452, 466 ¶ 59, 307
P.3d 19, 33 (2013).

       D.     No “Presumption of Death” in Death Penalty Statutes

¶16           Reeves argues that A.R.S. §§ 13-751(C) and (F) create an
unconstitutional presumption of death. The Eighth and Fourteenth
Amendments require that the sentencer in a capital case be allowed to
consider any relevant mitigating evidence. Lockett v. Ohio, 438 U.S. 586,
604 (1978). Further, the Eighth Amendment protects a defendant’s right to
an individualized sentencing determination. Eddings v. Oklahoma, 455 U.S.
104, 112 (1982).

¶17          Reeves argues that A.R.S. § 13-751(C), which requires the
defendant to prove mitigating circumstances by a preponderance of the
evidence, improperly precludes consideration of relevant mitigating

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                            Opinion of the Court

evidence that is “not mitigating enough.” The statute also provides that
the jury “shall consider as mitigating circumstances any factors proffered
by the defendant or the state that are relevant in determining whether to
impose a sentence less than death, including any aspect of the defendant's
character, propensities or record and any of the circumstances of the
offense.” A.R.S. § 13-751(G); State v. Speer, 221 Ariz. 449, 461 ¶ 61, 212 P.3d
787, 799 (2009).

¶18           Under § 13-751(C), a defendant must prove mitigating
circumstances by a preponderance of the evidence. But “jurors do not
have to agree unanimously that a mitigating circumstance has been
proven to exist,” and “[e]ach juror may consider any mitigating
circumstance found by that juror in determining the appropriate penalty.”
Id. These provisions do not prevent jurors from considering particular
types of mitigation evidence, and “it does not follow from Lockett and its
progeny that a State is precluded from specifying how mitigating
circumstances are to be proved.” Walton v. Arizona, 497 U.S. 639, 649
(1990), overruled on other grounds by Ring v. Arizona, 536 U.S. 584, 608-09
(2002). We therefore reject Reeves’s argument that § 13-751(C) improperly
limits any juror’s consideration of mitigating evidence. See Walton, 497
U.S. at 649-51 (rejecting similar argument); id. at 674 (Scalia, J., concurring
in part and concurring in the judgment).

¶19          Reeves also argues that Arizona law “unconstitutionally
presumes that death is the appropriate default sentence once the jury
finds one aggravating factor.” But as he acknowledges, the Court has
previously rejected similar arguments.

       [Arizona’s] statutory scheme contains no presumption of
       death. Neither party bears the burden of persuading the
       jury that the mitigation is sufficiently substantial to call for
       leniency; that determination “is not a fact question to be
       decided based on the weight of the evidence, but rather is a
       sentencing decision to be made by each juror based upon the
       juror's assessment of the quality and significance of the
       mitigating evidence that the juror has found to exist.”

Speer, 221 Ariz. at 461 ¶ 65, 212 P.3d at 799 (quoting State ex rel. Thomas v.
Granville (Baldwin), 211 Ariz. 468, 473 ¶ 21, 123 P.3d 662, 667 (2005)). We
decline to revisit those decisions.

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                             STATE V. REEVES
                            Opinion of the Court

       E.     Abuse of Discretion Review

¶20            Because Reeves murdered Contreras after August 1, 2002,
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 there is reasonable evidence in the record to
sustain it. 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 at 203, 220 (2007)).

              1.     Aggravating Circumstances

¶21            Reeves does not contest the sufficiency of the evidence to
support three of the aggravators found by the jury — (F)(2) (previous
conviction of a serious offense), (F)(5) (pecuniary gain), and (F)(7)(a)
(murder commited while on release). Because the record supports these
findings, the jury did not abuse its discretion.

¶22           At oral argument in this Court, Reeves’s counsel questioned
whether sufficient evidence supported a finding of the (F)(6) aggravating
factor based on a determination that the murder was especially heinous or
depraved. The State argued that this aggravator was established because
Contreras was helpless, the murder was senseless, and Reeves relished the
murder. See, e.g., State v. Greene, 192 Ariz. 431, 439 ¶ 33, 967 P.2d 106, 114
(1998) (discussing circumstances in which murder is especially heinous or
depraved). It is unnecessary, however, for us to assess the sufficiency of
the evidence to support a finding that the murder was especially heinous
or depraved because the jury returned a special verdict finding the
murder was also committed in an especially cruel manner. See Benson, 232
Ariz. at 464 ¶ 48, 307 P.3d at 31 (recognizing that (F)(6) aggravating
circumstance may be based on a finding that murder was especially cruel
or that murder was especially heinous or depraved). To prove that a
murder was especially cruel, the State had to prove that Contreras
experienced physical or mental pain and that Reeves knew or should have
known that she would suffer. See State v. Boyston, 231 Ariz. 539, 554 ¶ 77,
298 P.3d 887, 902 (2013). The record amply supports the jury’s finding
that the murder was especially cruel.

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                           Opinion of the Court

             2.     Mitigating Circumstances

¶23          “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).

¶24           During the penalty phase, Reeves allocuted and apologized
for the pain he had caused Contreras and her family. As both a statutory
and non-statutory mitigating circumstance, he presented evidence in
support of his claim that he was intoxicated from drugs and alcohol at the
time of the murder. As additional mitigating factors, Reeves offered
evidence to support allegations that (1) he suffers from a longstanding
substance abuse disorder, (2) he has a co-occurring mental disorder, (3) his
conditions are treatable, (4) his parents abused alcohol, (5) he was
emotionally abused and neglected as a child, (6) he had made positive
contributions to the community through his previous military service and
work as an electrician, (7) he behaved well while incarcerated, (8) he was
remorseful, and (9) he loves and is loved by his family. In rebuttal, the
State offered evidence to dispute many of the claimed mitigating
circumstances, including Reeves’s alleged intoxication, mental condition,
and remorse, and it urged the jurors to give little weight to any mitigation.

             3.     Propriety of Death Sentence

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

      F.     Additional Issues

¶26           Stating that he seeks to preserve certain issues for federal
review, Reeves lists seventeen other constitutional claims and previous
decisions rejecting them. We decline to revisit these claims.

                              CONCLUSION

¶27          We affirm Reeves’s convictions and sentences.




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