                                 IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                         THE STATE OF ARIZONA,
                           Petitioner/Appellant,

                                    v.

                             EFREN MEDINA,
                           Respondent/Appellee.

                           No. CR-10-0031-AP
                          Filed August 22, 2013

          Appeal from the Superior Court in Maricopa County
            The Honorable Christopher T. Whitten, Judge
                         No. CR1993-008378
                            AFFIRMED

COUNSEL:

Thomas C. Horne, Arizona Attorney General, Kent E. Cattani, former
Chief Counsel, Criminal Appeals/Capital Litigation, Jeffrey A. Zick, Chief
Counsel, Criminal Appeals/Capital Litigation, John Pressley Todd,
Assistant Attorney General (argued), Phoenix, for State of Arizona

David Goldberg, Attorney at Law (argued), Fort Collins, CO, for Efren
Medina


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

JUSTICE BRUTINEL, opinion of the Court:

¶1     Efren Medina was convicted in 1995 of first degree murder, third
degree burglary, and aggravated robbery. The trial judge sentenced him
to death for the murder and to prison terms for the other crimes, and we
affirmed on appeal. State v. Medina, 193 Ariz. 504, 975 P.2d 94 (1999). In
2003, the trial court granted Medina’s petition for post-conviction relief
(“PCR”), which had alleged ineffective assistance of counsel at sentencing,
                           STATE V. MEDINA
                           Opinion of the Court

and vacated Medina’s death sentence.

¶2     At the 2008 resentencing trial, the jury found four aggravating
factors, but could not agree on the sentence. The judge declared a mistrial.
In 2009, a second penalty phase trial concluded with the jury determining
that Medina should be sentenced to death. We have jurisdiction over this
automatic appeal under Article 6, Section 5(3) of the Arizona Constitution
and A.R.S. §§ 13-4031 and 13-4033(A)(1).1

                     I. FACTUAL BACKGROUND

¶3     Just after midnight on September 30, 1993, Frazier Giles got out of
bed to open a window. In the parking lot across the street, he saw a
person sitting in his neighbor’s car with the door open and the headlights
on. Giles noticed what he thought was a “pile of rags” beside the car. A
few minutes later he heard someone say, “Please don’t hit me. Don’t hit
me. Don’t. Don’t.” Giles returned to the window and saw a second car
drive up and stop next to his neighbor’s vehicle. The driver spoke to the
person in the parked car for a few minutes before leaving.

¶4     The person in the parked car turned off the headlights, got out of
the car, stomped on the “pile of rags,” and then dragged the pile into the
street. At that point, Giles realized that the “pile of rags” was a person.
The second car returned and the person who had dragged the body got
inside. The car sped away, but then came “racing back” and ran over the
body with both the front and back wheels. Giles left the window to call
the police.

¶5      Medina’s girlfriend, Angela Calderon, testified that about two
hours later, she and a friend were sitting in her front yard when three men
arrived in Medina’s car. Medina got out of the driver’s side and Ernest
Aro stepped out from the passenger side. Kevin Martinez remained in the
backseat. Medina and Aro appeared intoxicated and were “laughing and
giggling.” Calderon asked why they were laughing, and Medina told her
to “watch the news” for a “speed bump” or “tire markings.” Medina also
simulated driving over a speed bump and made “varoom, bump, bump”
noises.



1     Unless otherwise noted, we cite the current version of statutes that
have not materially changed since Medina committed his crimes.
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                           Opinion of the Court

¶6    Medina met Calderon at a friend’s house later that morning, where
he told her that “he was scared, because they had done something
wrong.” Medina said that he and his friends had been riding in the car
when they decided to steal another car. Medina admitted pulling the car’s
occupant out of the vehicle and hitting and kicking him. Martinez and
Medina attempted to hot-wire the car and steal the radio but were
unsuccessful. Medina then pulled the man into the street.

¶7      Medina also told Calderon that Aro had driven off, assuming that
Medina and Martinez would follow in the stolen vehicle, but when they
did not, Aro returned to pick them up. Medina got in the driver’s seat
after telling Aro to scoot over. Medina drove off, then came back and ran
over the victim three times, going forward over him, then reversing over
him and going forward again.

¶8     Other evidence linked Medina to the murder. At the scene,
investigators found a plastic bag wet with gold paint and tire marks in
gold paint showing that Medina’s car had traveled both eastbound and
westbound. Medina’s fingerprints were found in the victim’s car, and it
appeared that someone had tried to remove the radio.

¶9      The police searched Medina’s car and found the victim’s watch,
hair, blood, tissue, and clothing fragments in the undercarriage, as well as
spatters of gold paint. In Medina’s bedroom, the police found another
plastic bag filled with gold paint.

                        II. ISSUES ON APPEAL

A.    Denial of Medina’s PCR and Motion to Suppress

¶10 Medina argues that the trial court abused its discretion by denying
his second PCR without holding an evidentiary hearing and refusing to
suppress the evidence found as a result of a search warrant. After the trial
court vacated Medina’s death sentence and ordered resentencing in 2003,
Medina filed a second PCR in December 2005, claiming to have found
newly discovered evidence about Frazier Giles’s testimony and evidence
that the search warrant authorizing searches of Medina’s home and car
was unsigned, making the searches illegal. The trial court denied relief
without holding an evidentiary hearing. Medina did not seek review of
the denial of this second PCR. At Medina’s retrial in 2008, he moved to
suppress the evidence discovered as a result of the search warrant for the

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                            Opinion of the Court

same reasons alleged in his second PCR; the trial court denied the motion.

¶11 The State contends that Medina is precluded from raising the issue
whether the trial court abused its discretion by denying his PCR because
he did not seek review of the denial of his PCR, as required by Arizona
Rule of Criminal Procedure 32.9(c). We agree.

¶12 In any event, the trial court did not abuse its discretion in denying
the PCR. The PCR asserted that, in 2004, nine years after the first trial, an
attorney from the Maricopa Public Defender’s Office interviewed Giles,
the eyewitness to the murder. In the 2004 interview, Giles stated (contrary
to his testimony in the first trial) that the person who had dragged the
victim into the street was not in the car when it ran over the body. By
2004, however, Giles had been diagnosed with Alzheimer’s disease, and
when he was deposed in 2006, Giles had no memory whatsoever of the
murder or the 2004 interview.

¶13 To obtain a new trial based on newly discovered evidence, a
petitioner must meet five requirements:

       (1) it must appear from the motion that the evidence relied
       on is, in fact, newly discovered, i.e., discovered after the trial;
       (2) the motion must allege facts from which the court can
       infer due diligence; (3) the evidence relied on must not be
       merely cumulative or impeaching; (4) the evidence must be
       material to the issue involved; and (5) it must be evidence
       that would probably change the verdict if a new trial were
       ordered.

State v. Fisher, 141 Ariz. 227, 251, 686 P.2d 750, 774 (1984). “Further, if the
motion relies on the existence of a witness willing to testify and present
the new evidence at a new trial, such witness must appear to be credible
to the trial judge hearing the motion.” Id.

¶14 Giles’s proffered testimony does not meet these requirements. The
changes in his testimony could have been discovered before trial.
Furthermore, Giles was not a credible witness in 2006. By that time, he
had been diagnosed with and had suffered from Alzheimer’s disease for
several years, which the trial court found had “tainted significantly”
Giles’s 2004 version of the events. By 2006, when he was deposed for the
PCR, Giles could not remember any of the events. We find no abuse of

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                             Opinion of the Court

discretion in dismissing the claim as to Giles’s testimony without an
evidentiary hearing.

¶15 As for the lack of a signed warrant, Medina was precluded from
raising this issue in his second PCR under Arizona Rule of Criminal
Procedure 32.2(a)(3), which states that a defendant is precluded from post-
conviction relief if the ground for relief “has been waived at trial, on
appeal, or in any previous collateral proceeding.” See also A.R.S. § 13-
4232(A)(3); Ariz. R. Crim. P. 32.2 cmt.. Medina could have raised the
absence of a signed warrant at his original 1995 trial or his 1999 appeal to
this Court; by not doing so, he waived this issue.

¶16 The trial court did not abuse its discretion in denying Medina’s
PCR and his motion to suppress.

B.     Double Jeopardy and Cruel and Unusual Punishment

¶17 Medina argues that A.R.S. § 13-752(K) is unconstitutional because
permitting a retrial after a hung jury in the penalty phase violates double
jeopardy and is cruel and unusual punishment.                  “We review
constitutional issues de novo, and, when possible, construe statutes to
uphold their constitutionality.” State v. Hausner, 230 Ariz. 60, 82 ¶ 99, 280
P.3d 604, 626 (2012).

¶18 Section 13-752(K) provides that if the penalty phase jury “is unable
to reach a verdict, the court shall dismiss the jury and shall impanel a new
jury,” which shall not retry the defendant’s guilt or aggravating
circumstances unanimously found by the first jury. “If the new jury is
unable to reach a unanimous verdict, the court shall impose a sentence of
life or natural life on the defendant.” Id.

¶19 “Normally, ‘a retrial following a “hung jury” does not violate the
Double Jeopardy Clause.’” Sattazahn v. Pennsylvania, 537 U.S. 101, 109
(2003) (quoting Richardson v. United States, 468 U.S. 317, 324 (1984)); see
State v. Johnson, 155 Ariz. 23, 27, 745 P.2d 81, 85 (1987) (“[A] retrial before a
new jury of an issue on which a former jury could not reach agreement
does not violate double jeopardy principles.”). “[A] jury’s inability to
reach a decision is the kind of ‘manifest necessity’ that permits the
declaration of a mistrial and the continuation of the initial jeopardy that
commenced when the jury was first impaneled.” Yeager v. United States,
557 U.S. 110, 118 (2009).

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                           Opinion of the Court

¶20 “[T]he touchstone for double-jeopardy protection in capital-
sentencing proceedings is whether there has been an ‘acquittal.’”
Sattazahn, 537 U.S. at 109. There was no acquittal here. The jury, by
failing to reach a sentencing verdict, did not conclude that the State failed
to prove its case beyond a reasonable doubt. Thus, the jury’s inability to
agree on the sentence did not “acquit” Medina of a death sentence. Cf. id.
at 109 (finding there was no acquittal when jury hung as to penalty
because the jury did not make any findings concerning the alleged
aggravating circumstance).

¶21 Medina argues that because the 2008 jury hung on the appropriate
penalty, at least one juror must have found that the mitigating
circumstances outweighed the aggravating factors and we must give this
finding effect under McKoy v. North Carolina, 494 U.S. 433 (1990), and Mills
v. Maryland, 486 U.S. 367 (1988). We disagree; even if some jurors reached
this conclusion, it would not preclude a retrial under either McKoy or
Mills. Like the jury in Sattazahn, the 2008 jury did not make formal
findings regarding mitigating factors.

¶22 Moreover, the Arizona death penalty scheme meets the
requirements of McKoy and Mills that each juror be allowed to give effect
to the mitigating evidence he or she individually finds to be proven.
McKoy, 494 U.S. at 444; Mills, 486 U.S. at 374. Arizona’s scheme does not
require a mitigating factor to be found unanimously by the jury. A.R.S.
§ 13-751(C).

¶23 Medina also characterizes the trial court’s granting of the first PCR
in 2003 as an acquittal that bars further retrials. The court then found “a
reasonable probability that, but for counsel’s unprofessional error, the
result of the proceeding would have been different.” This is not
equivalent to a ruling that life was the appropriate sentence or an acquittal
on the merits. See State v. Ring (Ring III), 204 Ariz. 534, 551 ¶ 40, 65 P.3d
915, 932 (2003) (“A capital defendant whose original sentence is vacated
on appeal can be resentenced to death so long as the defendant has not
been ‘acquitted’ of the death sentence.”). Medina’s retrial did not violate
the Double Jeopardy Clause.

¶24 Medina also argues that Arizona’s procedures for a retrial after a
hung jury in the penalty phase constitute cruel and unusual punishment
because most states do not authorize retrial if a jury cannot agree on a
death sentence. In analyzing this issue, we first “determine whether there

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                            Opinion of the Court

is a national consensus against the sentencing practice at issue.” Graham v.
Florida, 130 S. Ct. 2011, 2022 (2010). Then, looking to the “‘Eighth
Amendment’s text, history, meaning, and purpose,’ the Court must
determine in the exercise of its own independent judgment whether the
punishment in question violates the Constitution.” Id. (quoting Kennedy v.
Louisiana, 554 U.S. 407, 421 (2008)).

¶25 Most states that have the death penalty require the trial court to
impose a life sentence if the penalty-phase jury cannot reach a unanimous
decision. Assuming without deciding that this represents a “national
consensus” against a penalty phase retrial in these circumstances, this
Court still must exercise independent judgment as to whether that
practice violates the Eighth Amendment. Id.

¶26 In general, allowing retrials does not subject a defendant to cruel
and unusual punishment. People v. Terry, 454 P.2d 36, 41–42 (Cal. 1969);
Harris v. State, 539 A.2d 637, 644 (Md. 1988). No federal or state decision
has held that retrial after a hung jury in the penalty phase constitutes cruel
and unusual punishment or that the United States Constitution requires
the imposition of a life sentence after a hung penalty-phase jury. Medina
characterizes Kansas v. Marsh, 548 U.S. 163 (2006) as holding that
defaulting to a life sentence when a jury hangs in the penalty phase is a
necessary part of a constitutional death penalty scheme. However, Marsh
upheld the entirety of the Kansas capital scheme without stating or
suggesting that such a “default” rule was itself constitutionally required.
Id. at 178.

¶27 The Arizona Legislature has chosen to allow one sentencing retrial
of a capital defendant after a hung penalty-phase jury and to require
imposition of a life sentence if the new jury cannot reach a unanimous
decision. See A.R.S. § 13-752(K). Some other states that allow retrial after
a hung jury permit more than one retrial if the second jury also hangs. See
Cal. Penal Code § 190.4(b); Nev. Rev. Stat. § 175.556(1).

¶28 Imposing death on a defendant who succeeds in having his court-
imposed death sentence reversed in post-conviction proceedings and for
whom the first penalty-phase jury was unable to reach a decision is not
disproportionate punishment. The Supreme Court has found that death is
categorically disproportionate for certain offenders, see Roper v. Simmons,
543 U.S. 551, 578 (2005) (precluding death penalty for defendants younger
than eighteen at time of the crime); Atkins v. Virginia, 536 U.S. 304, 321

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                             Opinion of the Court

(2002) (prohibiting death penalty for “mentally retarded criminals”), and
non-homicide crimes against a person, see, e.g., Kennedy, 554 U.S. at 437
(disallowing death penalty for crime of rape). But the Court grounded
these holdings in determinations that the punishment, considering the
characteristics of the offender and the crime, was disproportionate to any
recognized penal goals. Cf. Graham, 130 S. Ct. at 2028 (noting that
penological justifications for the sentencing practice are also relevant to
the analysis). No such conclusion can be drawn with regard to defendants
like Medina merely because they have successfully challenged their death
sentences in post-conviction proceedings or a penalty-phase jury is unable
to reach a verdict. We hold that § 13-752(K)’s provision for retrial after a
hung penalty-phase jury does not result in cruel and unusual punishment.

C.     Dismissal of Jurors by Stipulation

¶29 Medina argues that the trial court erred when it accepted, over his
objection, a stipulation by counsel to dismiss jurors based solely on their
questionnaire answers. “We review a trial court’s rulings on voir dire of
prospective jurors for abuse of discretion.” State v. Glassel, 211 Ariz. 33, 45
¶ 36, 116 P.3d 1193, 1205 (2005), opinion corrected on denial of reconsideration,
211 Ariz. 370, 121 P.3d 1240 (2005).

¶30 In Medina’s 2008 trial, defense counsel and the State stipulated to
release certain jurors based on their questionnaire answers. The trial court
initially stated that it would require Medina’s agreement on the record,
but later decided trial counsel could stipulate to release jurors as part of
trial strategy. Trial counsel and the State agreed to dismiss sixty jurors.
Medina objected, saying that he had not seen any of the questionnaires
and wished to try to rehabilitate the jurors.

¶31 “[T]he Sixth Amendment is violated if the trial jury in a capital case
is chosen by excluding for cause persons who have general objections to
the death penalty.” State v. Anderson (Anderson I), 197 Ariz. 314, 318 ¶ 6, 4
P.3d 369, 373 (2000). In Anderson I, we held that a defendant has a right to
question potential jurors orally and attempt to rehabilitate them, id. at 320
¶ 13, 4 P.3d at 375, but we emphasized that “our holding today does not
prevent excluding prospective jurors for cause based solely on answers to
a written questionnaire when the adverse party fails to object, or when all
parties consent to exclusion,” id. at 324 ¶ 24, 4 P.3d at 379. Accordingly,
the attorneys in this case could stipulate to the dismissal of jurors. But we
must still decide whether Medina’s objection should override his counsel’s

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                            Opinion of the Court

stipulation.

¶32 A defendant has exclusive control over the key decisions “whether
to plead guilty, whether to waive a jury trial and whether to testify.
Beyond these matters, most trial decisions are trial strategy resting with
counsel.” State v. Nirschel, 155 Ariz. 206, 208, 745 P.2d 953, 955 (1987)
(citation omitted).

¶33 Because voir dire involves strategic decisions by trial counsel, we
decline to hold that it is within the defendant’s exclusive control. See, e.g.,
Miller v. Francis, 269 F.3d 609, 615 (6th Cir. 2001); People v. Manning, 948
N.E.2d 542, 550 (Ill. 2011) (“[D]ecisions made during jury selection involve
trial strategy to which courts should be highly deferential.”). Counsel’s
trial strategy could be undermined by allowing the defendant to override
counsel’s tactical decisions. If the defendant controlled all voir dire
decisions, defense counsel’s ability to manage the trial would be
compromised, resulting in inevitable delay and confusion. See Taylor v.
Illinois, 484 U.S. 400, 418 (1988) (“The adversary process could not function
effectively if every tactical decision required client approval.”).

¶34 “[C]ounsel acting alone may make decisions of strategy,” even if
those decisions involve constitutional rights. State v. Levato, 186 Ariz. 441,
444, 924 P.2d 445, 448 (1996). A defendant is bound by counsel’s trial
strategy “so long as counsel’s assistance at trial was not reduced to a mere
‘farce or sham.’” State v. (John L.) Jones, 110 Ariz. 546, 550, 521 P.2d 978,
982 (1974), overruled on other grounds by State v. Conn, 137 Ariz. 148, 669
P.2d 581 (1983). Medina has not shown, nor does the record suggest, that
his counsel’s assistance was a sham. Thus, Medina is bound by his
counsel’s decision to stipulate to removal of the jurors.

¶35 Medina contends that the trial court had a duty to protect his rights
to a fair and impartial jury and accordingly should have rejected the
stipulation. A trial court, however, has no general duty or authority to
second-guess the strategic decisions by trial counsel. Absent facts
suggesting that counsel’s assistance was a sham or otherwise patently
deficient, the trial court did not abuse its discretion by accepting counsel’s
stipulation regarding voir dire, even over Medina’s objection.

D.     Removal of Jurors 88 and 30

¶36    Medina argues that Juror 88 from the 2008 trial and Juror 30 from

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                           Opinion of the Court

the 2009 trial were improperly removed for cause. “We review a trial
court’s decision to strike a potential juror for cause for abuse of
discretion.” State v. Velazquez, 216 Ariz. 300, 306 ¶ 13, 166 P.3d 91, 97
(2007). But if the defendant did not object to the dismissal, it is reviewed
for fundamental error. State v. Roseberry, 210 Ariz. 360, 366 ¶ 26, 111 P.3d
402, 408 (2005).

      1.     Juror 88

¶37 Juror 88 answered equivocally whether she could vote for the death
penalty. She cried and trembled throughout the questioning. The court
granted the State’s motion to dismiss Juror 88 because “her views about
the death penalty and just her whole demeanor just would tell anybody
that watched her that her views would substantially impair her ability to
fairly consider both options.” Medina did not object to her removal.

¶38 A juror is properly excused for cause “if the juror’s views would
‘prevent or substantially impair the performance of his duties as a juror.’”
State v. (Robert G.) Jones, 197 Ariz. 290, 302 ¶ 24, 4 P.3d 345, 357 (2000)
(quoting Wainwright v. Witt, 469 U.S. 412, 424 (1985)); see Ariz. R. Crim. P.
18.4(b). We defer to the trial court’s assessment, even when a juror’s
answer by itself would not “‘compel the conclusion that he could not
under any circumstance recommend the death penalty,’ . . . because so
much may turn on a potential juror’s demeanor.” Uttecht v. Brown, 551
U.S. 1, 8 (2007) (quoting Darden v. Wainwright, 477 U.S. 168, 178 (1986)).

¶39 Juror 88 was shaking and crying throughout the interview, which
convinced the trial court that she could not handle involvement in the
case. In these circumstances, the court did not err, much less commit
fundamental error, in dismissing Juror 88 for cause.

      2.     Juror 30

¶40 Although Juror 30 initially told the prosecution and the defense
that she could apply the law and consider both a life and death sentence,
she later said she was uncomfortable with the prospect that a person’s life
would be in her hands and did not think she could sign a death verdict.

¶41 The State moved to dismiss Juror 30 for cause. Medina objected,
arguing that she would only be required to sign the form if she were the
foreperson. The court questioned whether Juror 30 could be empanelled

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                            Opinion of the Court

“with the instruction that she not be allowed to be the foreperson” and
noted that, in any event, she would have to stand and be polled. After
this discussion, the court granted the motion, finding that “her answer
suggested that . . . her ability to decide this case, to decide the law and the
facts would be substantially impaired by her resisting views.”

¶42 Even in the face of Juror 30’s earlier claims that she could apply the
law, the trial court did not abuse its discretion by concluding this juror’s
stated discomfort with voting for a death verdict would impair her ability
to sit as a juror. See Glassel, 211 Ariz. at 48 ¶ 50, 116 P.3d at 1208 (“[E]ven
assuming that juror 16 was sincere about being able to apply the law, the
judge could have reasonably determined that the juror’s views would
substantially impair his ability to deliberate impartially.”).

E.     Batson Challenges

¶43 Medina argues that the trial court erred in denying his challenges,
based on Batson v. Kentucky, 476 U.S. 79 (1986), to the State’s peremptory
strikes of Jurors 35, 71, and 73. We will sustain a trial court’s rulings on
Batson challenges unless they are clearly erroneous. State v. Gallardo, 225
Ariz. 560, 565 ¶ 10, 242 P.3d 159, 164 (2010).

¶44 “Racially discriminatory use of a peremptory strike violates the
Equal Protection Clause of the Fourteenth Amendment.” State v. Hardy,
230 Ariz. 281, 285 ¶ 12, 283 P.3d 12, 16 (2012). “A Batson challenge
involves three steps: (1) The defendant must make a prima facie showing
of discrimination, (2) the prosecutor must offer a race-neutral reason for
each strike, and (3) the trial court must determine whether the challenger
proved purposeful racial discrimination.” Id. “Although not dispositive,
‘the fact that the state accepted other [minority] jurors on the venire is
indicative of a nondiscriminatory motive.’” State v. Roque, 213 Ariz. 193,
204 ¶ 15, 141 P.3d 368, 379 (2006) (alteration in original) (quoting State v.
Eagle, 196 Ariz. 27, 30 ¶ 12, 992 P.2d 1122, 1125 (App. 1998)).

¶45 By asking the prosecutor to give race-neutral reasons for striking
these jurors, the trial court implicitly found that Medina had made a
prima facie showing of discrimination. See Hardy, 230 Ariz. at 286 ¶ 13,
283 P.3d at 17. The prosecutor stated that she moved to strike Juror 35
based on her youth, her high school education, her belief that some of her
friends had been punished too harshly for crimes, her friendship with
gang members and drug users, her initial reluctance to accept the prior

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jury’s verdict, and her opposition to the death penalty. The trial court
found that Medina had not carried his burden and denied the Batson
challenge.

¶46 The prosecutor struck Juror 71 because she was young and lacked
life experience, she held low-level positions, her aunt had been
investigated and cleared by Child Protective Services, her friends used
marijuana, she would be upset by the crime scene photographs, and she
was opposed to the death penalty. The court denied the challenge
because the explanations were race-neutral.

¶47 The prosecutor stated that she struck Juror 73 because her uncle
was a doctor of psychology and “a life coach for most of [her] family,” she
had experience with people who used illegal drugs, and her husband was
diagnosed with deep depression. Because the prosecutor anticipated
testimony about Medina’s diagnosis of depression, the prosecutor was
worried Juror 73 might not be able to “separate her involved life
experiences.” Medina disputed this explanation, pointing out that non-
minority jurors who “voiced similar concerns about drug and alcohol
problems” were not struck. The court noted it was supposed to “evaluate
the credibility of the striking party” and denied the Batson challenge,
“based on [his] assessment of everything.”

¶48 Medina now asks this Court to rule that “comparative juror
analysis is a constitutionally required aspect of Batson review.” However,
the United States Supreme Court has warned that “a retrospective
comparison of jurors based on a cold appellate record may be very
misleading when alleged similarities were not raised at trial.” Snyder v.
Louisiana, 552 U.S. 472, 483 (2008). Moreover, we disagree with Medina’s
contention that our decision in Hardy implicitly requires a comparative
analysis for every Batson challenge. In Hardy, we examined similarities
between dismissed minority jurors and non-minority jurors who
remained on the panel, which were both raised by the defendant and
addressed by the prosecutor at trial. 230 Ariz. at 286 ¶¶ 13–14, 283 P.2d at
17. Hardy, however, did not require every court reviewing a Batson claim
to use a comparative analysis, and we decline to do so when the
similarities between peremptorily stricken jurors and those remaining on
the panel were not raised at trial.

¶49 In this case, although Medina argued that non-minority jurors who
were not stricken had similar problems concerning drugs, he did not

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                            Opinion of the Court

direct the court to specific similarly situated jurors. Thus, the prosecutor
had no opportunity to offer distinctions between allegedly similarly
situated jurors or to clarify which factors were given more weight in the
choice to strike. Likewise, the trial court did not have an opportunity to
conduct an in-depth comparison of the jurors who were stricken and those
who remained on the panel. We decline to examine more detailed
comparisons than were alleged at trial. The trial court found that Medina
had not carried his burden of showing purposeful discrimination.
Because Medina did not argue that any juror on the panel had some or all
of the factors for disqualification presented for Jurors 35, 71, and 73, we do
not find that the trial court clearly erred.

¶50 Additionally, at the conclusion of the peremptory strikes, defense
counsel noted that four or five minority jurors remained on the panel. The
presence of other minority jurors on the panel is evidence of the State’s
nondiscriminatory motive. See id. ¶ 15 (noting that three minority jurors
remained on the panel). For these reasons, the trial court did not clearly
err in rejecting Medina’s Batson challenges.

F.     Admission of the Autopsy Report

¶51 Medina contends that admitting the victim’s autopsy report
without the opportunity to cross-examine the report’s author and
allowing another medical examiner to testify using facts from the report
violated the Sixth Amendment’s Confrontation Clause.

¶52 The autopsy report prepared by Dr. Ann Bucholtz detailed the
victim’s injuries and determined that the death was a homicide caused by
blunt force trauma. Dr. Bucholtz did not testify at trial. Instead, the State
called Dr. Philip Keen, who testified concerning the report’s conclusions
and used the report and photographs of the body to make various
independent conclusions about the death.

¶53 We review interpretations of the Confrontation Clause de novo and
analyze a properly-objected-to violation of the Confrontation Clause for
harmless error. State v. Bocharski, 218 Ariz. 476, 485–86 ¶¶ 33, 38, 189 P.3d
403, 412–13 (2008).       Assuming that Medina properly raised his
Confrontation Clause objection to the report (an issue disputed by the
parties), we reject his arguments because we find the report is not
testimonial.


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                            Opinion of the Court

¶54 “The Confrontation Clause bars admission of out of court
testimonial evidence unless the defense has had an opportunity to cross-
examine the declarant.” State v. Parker, 231 Ariz. 391, 402 ¶ 38, 296 P.3d
54, 65 (2013) (citing Crawford v. Washington, 541 U.S. 36, 68 (2004)).
Testimonial evidence is “ex parte in-court testimony or its functional
equivalent . . . such as affidavits, custodial examinations, prior testimony
that the defendant was unable to cross-examine, or similar pretrial
statements that declarants would reasonably expect to be used
prosecutorially.” Crawford, 541 U.S. at 51. “A document created solely for
an ‘evidentiary purpose,’ . . . made in aid of a police investigation, ranks
as testimonial.” Bullcoming v. New Mexico, 131 S. Ct. 2705, 2717 (2011)
(quoting Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 (2009)).

¶55 Public or business records generally are not testimonial because
they are usually “created for the administration of an entity’s affairs and
not for the purpose of establishing or proving some fact at trial.”
Melendez-Diaz, 557 U.S. at 324; see also Crawford, 541 U.S. at 56 (noting that
“[m]ost of the hearsay exceptions covered statements that by their nature
were not testimonial — for example, business records”). Yet, the
admission of a document “under a hearsay exception does not negate
consideration of the Confrontation Clause.” State v. Huerstel, 206 Ariz. 93,
102 ¶ 29, 75 P.3d 698, 707 (2003). When public records are “prepared
specifically” for use at trial, the records are “subject to confrontation
under the Sixth Amendment.” Melendez-Diaz, 557 U.S. at 324.

¶56 The United States Supreme Court has not determined whether an
autopsy report is testimonial, but its most recent decision on the
Confrontation Clause informs our analysis. In Williams v. Illinois, the
state’s expert “testified that a DNA profile produced by an outside
laboratory . . . matched a profile produced by the state police lab using a
sample of [the defendant’s] blood.” 132 S. Ct. 2221, 2227 (2012). The DNA
report itself was not admitted into evidence. Id. The defendant argued
that the portions of the expert’s testimony referring to the laboratory
report violated his right to confrontation. Id.

¶57 The Court found that the report was nontestimonial; however, no
one rationale was supported by a majority of the Court. If no opinion
garners the support of a majority, the “position taken by those Members
who concurred in the judgments on the narrowest grounds” is regarded
as the holding of the Court. Marks v. United States, 430 U.S. 188, 193 (1977)
(quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976)).

                                     14
                           STATE V. MEDINA
                           Opinion of the Court

¶58 The plurality opinion authored by Justice Alito concluded that the
expert’s statements did not violate the Confrontation Clause because the
laboratory report was not testimonial. Williams, 132 S. Ct. at 2228. The
plurality declared that the Confrontation Clause prohibits formalized
“out-of-court statements having the primary purpose of accusing a
targeted individual of engaging in criminal conduct.” Id. at 2242. Because
the “primary purpose” of the report “was to catch a dangerous rapist who
was still at large,” not to gather evidence against the defendant, and
because the authors of the report could not know whether it would
incriminate or exonerate the defendant, it was not testimonial. Id. at 2243–
44.

¶59 Justice Thomas concurred solely in the judgment. Id. at 2255
(Thomas, J., concurring). He did not agree with the test used by the
plurality; instead, he concluded the report was nontestimonial because it
“lack[ed] the solemnity of an affidavit” and “was not the product of any
sort of formalized dialogue resembling custodial interrogation.” Id. at
2260.2

¶60 Neither the plurality’s “primary purpose” test nor Justice Thomas’s
solemnity standard can be deemed a subset of the other; therefore, there is
no binding rule for determining when reports are testimonial. See United
States v. Alcan Aluminum Corp., 315 F.3d 179, 189 (2d Cir. 2003) (holding
that when no “single standard . . . legitimately constitutes the narrowest
ground for a decision on that issue, there is then no law of the land”).

¶61 Under the plurality test, the autopsy report here is not testimonial
because its purpose was not primarily to accuse a specified individual.
“We look for the primary purpose that a reasonable person would have
ascribed to the statement, taking into account all of the surrounding
circumstances.” Williams, 132 S. Ct. at 2243.

¶62 Here, the autopsy was conducted the day after the murder, before
Medina became a suspect. Any trace evidence obtained during the
autopsy was gathered to determine the manner and cause of death in
order to help “catch a dangerous [murderer] who was still at large,” not to
gather evidence to accuse Medina. Id.; see also People v. Leach, 980 N.E.2d

2      The dissent concluded that the report was testimonial because it
was “meant to serve as evidence in a potential criminal trial.” Williams,
132 S. Ct. at 2275 (Kagan, J., dissenting).
                                    15
                             STATE V. MEDINA
                             Opinion of the Court

570, 590 (Ill. 2012). Compare United States v. James, 712 F.3d 79 (2d Cir.
2013) (discussing Williams and concluding autopsy report was not
testimonial), with United States v. Ignasiak, 667 F.3d 1217 (11th Cir. 2012)
(concluding, given circumstances of preparation, that autopsy report was
testimonial).

¶63 The autopsy report in this case is also nontestimonial using the
solemnity test from Justice Thomas’s concurring opinion. Williams, 132 S.
Ct. at 2260. Justice Thomas found that the DNA report in Williams was
nontestimonial because it was “neither a sworn nor a certified declaration
of fact” and “it was not the product of any sort of formalized dialogue
resembling custodial interrogation.” Id. Like the report in Williams, the
autopsy report in this case does not “certify[] the truth of the analyst’s
representations.” Id. The signed report details the conditions of the body,
states the examiner’s conclusions regarding the cause and manner of
death, and certifies that the report reflects her opinion as to the cause and
manner of death and that she took charge of the body. The autopsy report
does not certify that the report was correct or that she followed the correct
procedures. See People v. Dungo, 286 P.3d 442, 449 (Cal. 2012) (stating that
statements in an autopsy report “are less formal than statements setting
forth a pathologist’s expert conclusions”). Nor did the autopsy report
arise from a formal dialogue akin to custodial interrogation. Therefore,
we hold that the autopsy report is nontestimonial.

¶64 Medina also argues that the admission of Dr. Keen’s testimony
violated Medina’s right to confrontation. Having concluded that the
autopsy report is nontestimonial, we hold that Dr. Keen’s testimony
regarding the report did not violate the Confrontation Clause. The
portions of Dr. Keen’s testimony concerning his independent conclusions
also did not violate the Confrontation Clause under our prior decisions.
See State v. Dixon, 226 Ariz. 545, 553 ¶ 36, 250 P.3d 1174, 1182 (2011), cert.
denied, 132 S. Ct. 456 (2011) (“Our cases teach that a testifying medical
examiner may, consistent with the Confrontation Clause, rely on
information in autopsy reports prepared by others as long as he forms his
own conclusions.”); see also State v. Joseph, 230 Ariz. 296, 299 ¶ 11, 283 P.3d
27, 30 (2012), cert. denied, 133 S. Ct. 936 (2013); State v. Gomez, 226 Ariz. 165,
169–70 ¶ 22, 244 P.3d 1163, 1167–68 (2010).

G.     Juror’s Extra-Judicial Contact

¶65    Medina argues that the trial court’s failure to interview a juror who

                                       16
                            STATE V. MEDINA
                            Opinion of the Court

had contact with the victim’s daughter constituted structural error that
mandates reversal of his death sentence. When the extra-judicial contact
was brought to the court’s attention, the trial court questioned the victim’s
daughter about her conversation with the juror. She stated that she was in
the elevator with the juror and a lawyer when the lawyer abruptly walked
out of the elevator. She commented about the lawyer’s compliance with
the admonition. She did not realize at the time that the person she spoke
with was a juror in the case and they did not discuss anything about the
case. The trial court told the victim’s daughter to avoid talking to anyone
with a juror badge in the future but did nothing further regarding the
incident. Medina’s trial counsel did not object to the trial court’s decision
concerning the extra-judicial contact but Medina himself objected and
moved for a new trial, which the trial court denied.

¶66 Medina is bound by his counsel’s strategic decision to not object to
a possible error by the trial court. See State v. Corrales, 138 Ariz. 583, 595,
676 P.2d 615, 627 (1983) (stating that “a defendant may be bound by his
counsel’s trial strategy decision to waive even constitutional rights”). By
not requesting any further action, Medina’s trial counsel waived this issue
and did not need Medina’s consent to do so. See Levato, 186 Ariz. at 444,
924 P.2d at 448 (“[C]ounsel acting alone may make decisions of strategy
pertaining to the conduct of the trial.”).

¶67 We reject Medina’s contention that this alleged error constitutes
structural error. Medina does not allege that the juror was actually biased
as a result of the contact, nor does he cite any evidence in the record to
support a finding of bias. Absent any evidence of juror bias, this alleged
error is not one of the “relatively few” recognized structural errors. See
Ring III, 204 Ariz. 552–53 ¶ 46, 65 P.3d at 933–34. Because Medina’s
counsel did not object to the trial court’s handling of the matter, we
review for fundamental error. See State v. Davis, 206 Ariz. 377, 390 ¶ 62, 79
P.3d 64, 77 (2003). Given the brevity of the contact between the juror and
the victim’s daughter and the absence of any discussion concerning the
case or the defendant, it was not error, much less fundamental error, for
the trial court to take no further action than questioning the victim’s
daughter.

H.     A.R.S. § 13-752(G) and the Ex Post Facto Prohibition

¶68 Medina argues that applying the 2009 version of A.R.S. § 13-752(G)
in his case violates the ex post facto clause because that version allows the

                                      17
                            STATE V. MEDINA
                            Opinion of the Court

sentencer to consider more evidence than the statutory scheme in effect at
the time of the 1993 murder. The trial court denied Medina’s motion to
use the prior statute instead of § 13-752(G).

¶69 “The ex post facto doctrine prohibits a state from ‘retroactively
alter[ing] the definition of crimes or increas[ing] the punishment for
criminal acts.’” Ring III, 204 Ariz. at 545 ¶ 16, 65 P.3d at 926 (alterations in
original) (quoting Collins v. Youngblood, 497 U.S. 37, 43 (1990)). Medina
argues that the 2009 version of § 13-752(G) is an ex post facto law because
it “changes the rules of evidence by which less or different testimony is
sufficient to convict than was then required.” Duncan v. Missouri, 152 U.S.
377, 382 (1894). We are not persuaded.

¶70 When Medina committed the murder in 1993, Arizona law
provided that either side could “rebut any information received at the
[aggravation/mitigation] hearing” and could present “[a]ny information
relevant to any mitigating circumstances . . . regardless of its admissibility
under the rules governing admission of evidence at criminal trials.”
A.R.S. § 13-703(C) (1993). Under A.R.S. § 13-752(G) (2009), “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” and “the state may present any evidence that
demonstrates that the defendant should not be shown leniency.”

¶71 To the extent that § 13-752(G) changed the evidence admissible at
the penalty phase, it does not provide that “less or different testimony is
sufficient to convict.” Duncan, 152 U.S. at 382. As Medina concedes, the
legal standard for sentencing a defendant to death has remained the same.
Therefore, A.R.S. § 13-752(G) is not an ex post facto law.

¶72 Medina argues that even if the 2009 version of § 13-752(G) did not
substantively change the criminal law, the new statute was a procedural
change that affected his rights. A legislative change to criminal procedure
“generally does not violate the Ex Post Facto Clause,” even if it
disadvantages a defendant, Ring III, 204 Ariz. at 546 ¶ 17, 65 P.3d at 927,
unless “it affects ‘matters of substance, by depriving a defendant of
substantial protections with which the existing law surrounds the person
accused of crime,’” id. at 547 ¶ 24, 65 P.3d at 928 (quoting Collins, 497 U.S.
at 45).

¶73    In Ring III, we held that a change in criminal procedure allowing a

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                           STATE V. MEDINA
                           Opinion of the Court

jury, rather than a judge, to decide the sentence did not affect matters of
substance because the state had the same burden concerning aggravating
factors and defendants were not at risk of any greater punishment. Id.
Here, Medina does not risk the imposition of any greater punishment and
the parties carry the same burdens of proof. Thus, this procedural change
did not affect matters of substance and was not ex post facto legislation.

I.    Jury Instructions

¶74 Medina argues that the final jury instructions in the 2009 trial failed
to specify that the (F)(6) aggravator was based on relishing and gratuitous
violence, which prevented the jury from accurately weighing the severity
of the aggravator. Because Medina did not object to the jury instruction at
trial, we review for fundamental error. State v. Moore, 222 Ariz. 1, 16 ¶ 85,
213 P.3d 150, 165 (2009).

¶75 In the 2009 trial, the court gave the following final jury instructions
as to the especially heinous or depraved aggravator:

      The term especially heinous or depraved focuses upon the
      defendant’s state of mind at the time of the offense as
      reflected by the defendant’s words and acts. A murder is
      especially heinous if it is hatefully or shockingly evil, in
      other words, grossly bad. A murder is especially depraved
      if it is marked by debasement, corruption, perversion or
      deterioration.

This instruction correctly defined the terms heinous and depraved, see
State v. Murdaugh, 209 Ariz. 19, 31 ¶ 59, 97 P.3d 844, 856 (2004), and
provided the jury with sufficient information to accurately weigh the
(F)(6) aggravator.

J.    Prosecutorial Misconduct

¶76 Medina asserts that the State improperly argued in closing that
Medina’s lack of remorse was an aggravating factor and commented on
Medina’s right to be free from compelled self-incrimination. Because
Medina did not object to the alleged misconduct, we review this claim for
fundamental error. Roque, 213 Ariz. at 228 ¶ 154, 141 P.3d at 403.

¶77 During his allocution, Medina stated that he was “deeply sorry and
remorseful” for his involvement in the death and that he took “full

                                     19
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                           Opinion of the Court

responsibility for [his] own participation, actions and role in such act.” In
closing arguments, the State argued that Medina was not truly remorseful
but had said that he felt remorse in his allocution “because he knows it
will help to get him off the death penalty.” The prosecutor referred to
Medina’s conversations with interviewing doctors in which he did not
take responsibility for all of his actions and denied driving the car that
killed the victim. The prosecutor concluded: “If the defendant won’t
admit to what he did and take responsibility for what he did, how can he
truly look at the victim’s family or at you and say he is truly remorseful?”

¶78 To determine if prosecutorial misconduct exists, we examine two
factors: “(1) whether the prosecutor’s statements called to the jury’s
attention matters it should not have considered in reaching its decision
and (2) the probability that the jurors were in fact influenced by the
remarks.” State v. Newell, 212 Ariz. 389, 402 ¶ 60, 132 P.3d 833, 846 (2006).

¶79 Medina contends that the prosecutor’s statements concerning
Medina’s lack of remorse and the senselessness of the crime argued for
aggravating factors neither alleged nor proven. However, the State never
argued that lack of remorse should be considered as an aggravator; it used
Medina’s lack of remorse to rebut Medina’s allocution, in which he sought
leniency based in part on his remorse. Because Medina’s allocution
focused on remorse, it was permissible for the State to argue that the
evidence showed otherwise.

¶80 The State, by describing the details of the murders, also did not
encourage the jury to consider helplessness or senselessness as additional
aggravators. See Nelson, 229 Ariz. at 190 ¶ 41, 273 P.3d at 642 (holding that
in using the terms “helpless” and “senseless,” the prosecutor did not
argue that the (F)(6) aggravator be considered). Describing the details of a
murder, even calling it a senseless crime, without more, does not amount
to prosecutorial misconduct.

¶81 Medina also asserts that the prosecutor improperly suggested
Medina should be sentenced to death because he chose not to testify. The
prosecutor’s statements, however, reflect an effort to rebut Medina’s
allocution, not a comment on the exercise of his Fifth Amendment rights.
In closing arguments, the prosecutor first noted that Medina claimed in
his allocution to feel remorse and to have taken responsibility for his
actions.    The prosecutor then argued that while Medina took
responsibility for fighting with the victim, he had not taken responsibility

                                     20
                           STATE V. MEDINA
                           Opinion of the Court

for pulling him into the road or running him over, but instead had blamed
his co-defendant. The State argued that Medina’s falsely stating that he
took full responsibility for his actions showed that his claimed remorse
was also false.

¶82 This was permissible rebuttal. In State v. Cota, the prosecutor
argued that if the defendant were truly remorseful “wouldn’t he have told
the police how sorry he was?” 229 Ariz. 136, 152 ¶ 83, 272 P.3d 1027, 1043
(2012), cert. denied, 133 S. Ct. 107 (2012). We found the comment
“permissible” because it contrasted the defendant’s “denials of
responsibility in the interrogation with his subsequent claim of remorse.”
Id. We reach the same conclusion here. Because Medina argued that his
remorse should be considered as mitigation, the State could argue in
rebuttal that Medina’s failure to take full responsibility for the murder
showed that his remorse was not genuine.

                      III. INDEPENDENT REVIEW

¶83 Because the murder was committed before August 1, 2002, this
Court independently reviews the “findings of aggravation and mitigation
and the propriety of the death sentence.” A.R.S. § 13-755(A). “We review
the record de novo and do not defer to the jury’s findings or decisions.”
State v. Prince, 226 Ariz. 516, 539 ¶ 93, 250 P.3d 1145, 1168 (2011). “We
consider the quality and strength, not simply the number, of aggravating
and mitigating factors.” Glassel, 211 Ariz. at 55 ¶ 93, 116 P.3d at 1215
(quoting State v. Greene, 192 Ariz. 431, 443 ¶ 60, 967 P.2d 106, 118 (1998)).

A.    Aggravating Circumstances

¶84 The jury found four aggravating circumstances: Medina was
previously convicted of a serious offense, A.R.S. § 13-751(F)(2); the murder
was committed in an especially heinous or depraved manner, id. § 13-
751(F)(6); the murder was committed while on authorized release from
prison, id. § 13-751(F)(7)(a); and the victim was more than seventy years
old, id. § 13-751(F)(9).

      1.     (F)(2) Aggravator

¶85 Medina does not dispute the finding of the (F)(2) aggravator but
argues that it should be given less weight because he had been charged
with the underlying offenses (aggravated assault and robbery) and


                                     21
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                          Opinion of the Court

released only six months before committing the murder. We decline to
create such a rule.

      2.     (F)(7) Aggravator

¶86 Medina also admits that sufficient evidence was presented to
support the (F)(7) aggravator, that the murders were committed while he
was on release from prison, but argues that its similarity to the (F)(2)
aggravator implies that these aggravators should be counted only once in
aggravation. Because we find that the aggravators serve different public
policy rationales, we give weight to each aggravator.

      3.     (F)(9) Aggravator

¶87 Medina admits there was sufficient evidence to establish the (F)(9)
aggravator, but argues that it should be given little weight because he did
not know the victim’s age. We disagree, given that the statute itself does
not require such knowledge. See Medina, 193 Ariz. at 512 ¶ 23, 975 P.2d at
102.

      4.     (F)(6) Aggravator

¶88 Medina contends that the evidence was insufficient to show that
the murder was especially heinous or depraved. The jurors were
instructed on two factors to support a finding of heinousness and
depravity: the defendant relished the murder and inflicted gratuitous
violence. See State v. Gretzler, 135 Ariz. 42, 52, 659 P.2d 1, 11 (1983).

             a.     Relishing

¶89 In the 2008 trial, Angela Calderon testified that when Medina came
to her house shortly after the murder, he was intoxicated and laughing.
She stated that he was “laughing and they kept talking about — like they
just kept simulating like driving over a speed bump. I asked him what he
was laughing at. He said, ‘Just watch the news tomorrow and look for tire
markings.’” She confirmed that Medina made “varoom, bump, bump”
noises and driving motions and told her to watch the news for tire
markings or a speed bump.

¶90 Calderon also testified that when Medina called ten minutes later,
he “just continued to laugh and telling me to watch the news.” The next
day, when Medina told her more details about that night he was

                                    22
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                            Opinion of the Court

“giggling,” “but he was more nervous about it.” On cross examination,
Calderon stated that Medina “never bragged” about the murder when it
was on television and that he had expressed some remorse to her,
although she felt that “he was scared of being caught.”

¶91 To relish a murder, the defendant “must say or do something that
indicates he savored the murder.” Greene, 192 Ariz. at 440 ¶ 34, 967 P.2d
at 115. Laughing or bragging about the murder may show that the
defendant relished the murder. See Hausner, 230 Ariz. at 81 ¶¶ 91–95, 280
P.3d at 625. In State v. Runningeagle, we found that the defendant relished
the murder when he laughed as he returned to the car after the murder
and bragged that “he had been in a ‘good fight.’” 176 Ariz. 59, 65, 859
P.2d 169, 175 (1993). Likewise, we concluded in State v. Bearup that the
defendant relished the murder by “laughing while talking about cutting
off a person’s finger” and showing amusement when he told another
person about the murder. 221 Ariz. 163, 173 ¶ 54, 211 P.3d 684, 694 (2009).
In State v. West, the Court found the defendant’s statements that he had
beat up an old man and his bragging about cuts and bruises from beating
the man showed relishing. 176 Ariz. 432, 448, 862 P.2d 192, 208 (1993),
overruled on other grounds by State v. Rodriguez, 192 Ariz. 58, 961 P.2d 1006
(1998).

¶92 Here, Medina’s laughter and jokes to Calderon show that he
relished the murder at or near the time of its commission. Also, Medina
repeatedly mimicked speed bumps and told Calderon to watch the news,
which shows that he anticipated the publicity that the murder would
occasion and looked forward to it. Therefore, we find beyond a
reasonable doubt that Medina relished the murder.

              b.     Gratuitous Violence

¶93 Medina argues that the evidence presented in the 2008 trial did not
show that he “continued to inflict violence after he knew or should have
known that a fatal action had occurred.” Bocharski, 218 Ariz. at 494 ¶ 87, 189
P.3d at 421.

¶94 In 2008, the medical examiner testified that “the distribution of
injuries” suggested that the victim was run over more than once. He did
not confirm that the victim died after the first pass of the car, but he
testified that the victim was alive when he was first hit and that being run
over by two sets of tires in a single pass could have caused the heart and

                                     23
                            STATE V. MEDINA
                            Opinion of the Court

lung injuries that led to his death. The examiner testified that the victim
died “fairly rapidly,” “[p]robably less than a minute,” or even “probably
seconds” after being run over.

¶95 Calderon testified that Medina told her that he ran over the victim
“about three times,” “once going forward, once going backwards and then
once again coming forward.” She also stated that Medina said “that every
time he ran over [the victim,] the head would move into a different
direction.”

¶96 Giles’s testimony from the first trial was read to the 2008 and 2009
juries because Giles died before the 2008 trial. He testified that the victim
became “red-headed” after the tires went over him. Giles could not see if
the tires actually ran over the victim’s head, but said the victim seemed to
be either unconscious or dead after the first pass of the car.

¶97 We find that Medina knew or should have known that he had
inflicted a fatal wound and yet continued to inflict injury upon the victim.
The seventy-one year old victim had been beaten up, stomped on, and
dragged into the street, then run over by a car containing three men.
According to the medical examiner, the victim died less than a minute,
perhaps even seconds, after the first pass of the car. After the first pass,
the victim was so bloodied that it was visible to a witness across the street.
Yet Medina ran over the victim twice more.

¶98 This case is unlike Bocharski, in which there was insufficient
evidence that the defendant knew or should have known that he had
inflicted a fatal wound when he inflicted many rapid knife injuries to the
victim. 218 Ariz. at 494 ¶¶ 87–88, 189 P.3d at 421. Nor is it like State v.
Gunches, in which the defendant shot the victim three times in the chest
“in quick succession,” followed by a fourth shot to the head. 225 Ariz. 22,
26 ¶ 20, 234 P.3d 590, 594 (2010). We there concluded that because of the
victim’s body position, the distance between the victim and the defendant,
and the darkness of the night, the defendant was likely unable to
determine whether the victim had died before firing the fourth shot. Id.
¶¶ 18–20. This inference was supported by the defendant’s testimony that
the victim continued to breathe after falling to the ground, evidence of
aspiration around the victim’s mouth, and the medical examiner’s
testimony that the victim’s heart continued to beat “for a while after the
shooting.” Id. ¶ 21 (internal quotation marks omitted). Here, there was
no evidence or reason to believe that one pass of the car, on top of the

                                     24
                           STATE V. MEDINA
                           Opinion of the Court

victim’s other injuries, was not a fatal action. Medina should have known
that running over a man in his seventies who had already received
multiple blows was enough to kill him; additional force was unnecessary
and gratuitous.

¶99 Because we find that both relishing and gratuitous violence were
proven beyond a reasonable doubt, we do not reach Medina’s contention
that a special verdict is necessary for each Gretzler factor.

B.    Mitigating Circumstances

      1.     Significant Impairment — A.R.S. § 13-751(G)(1)

¶100 Medina argues that his use of intoxicants and his psychological
disorder significantly impaired his capacity to conform his conduct to the
requirements of the law. To establish the (G)(1) mitigating factor, a
defendant must show by a preponderance of the evidence that 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.”
A.R.S. § 13-751(G)(1).

¶101 Neither party disputes Medina’s dependency on inhalants, alcohol,
and marijuana at the time of the murder. The trial evidence showed that
Medina’s capacity to control his conduct or appreciate its wrongfulness
was substantially impaired by the various drugs he had taken on that day.
Thus, Medina established the (G)(1) mitigating factor. Because we give
weight to Medina’s drug abuse under § 13-752(G)(1), we give little
additional weight to Medina’s long-term drug addiction as non-statutory
mitigation. Cf. Moore, 222 Ariz. at 21 ¶ 121, 213 P.3d at 170 (giving weight
to defendant’s long-term drug addiction as non-statutory mitigation when
the addiction did not satisfy the statutory requirements).

¶102 Medina also argues that his mental illness significantly impaired
his capacity to conform his conduct to the requirements of the law.
Medina presented evidence concerning two possible psychological
disorders: anti-social personality disorder and delusional disorder.

¶103 Medina offered evidence that he suffered from anti-social
personality disorder. “Personality or character disorders, however,
typically do not satisfy [the (G)(1)] mitigator . . . .” State v. Tucker, 215

                                     25
                            STATE V. MEDINA
                            Opinion of the Court

Ariz. 298, 323 ¶ 118, 160 P.3d 177, 202 (2007). Medina did not offer any
evidence that his anti-social personality disorder substantially impaired
his ability to conform his conduct to the requirements of the law or
prevented him from appreciating the wrongfulness of his conduct.
Therefore, Medina has failed to prove that his personality disorder meets
the standard in § 13-751(G)(1). Instead, we give his personality disorder
some weight as non-statutory mitigation.

¶104 Medina also contends that his delusional disorder, persecutory
type, establishes the (G)(1) factor. However, Medina did not offer proof
that the disorder prevented him from knowing right from wrong or
conforming his conduct to the requirements of the law. Thus, Medina has
not proven the (G)(1) mitigating circumstance with respect to his
delusional disorder, and we do not afford this disorder substantial weight
as non-statutory mitigation.

       2.     Defendant’s Age — A.R.S. § 13-751(G)(5)

¶105 A.R.S. § 13-751(G)(5) establishes the defendant’s age as a mitigating
factor. Because Medina was eighteen years old at the time of the murder,
he has established this statutory mitigator. “To determine how much
weight to assign the defendant’s age, we must also consider his level of
intelligence, maturity, past experience, and level of participation in the
killings.” State v. Poyson, 198 Ariz. 70, 80 ¶ 37, 7 P.3d 79, 89 (2000). “If a
defendant has a substantial criminal history or was a major participant in
the commission of the murder, the weight his or her age will be given may
be discounted.” Id. at 81 ¶ 37, 7 P.3d at 90.

¶106 Medina was of average or low-average intelligence and had never
lived on his own. He had prior convictions for aggravated robbery and
aggravated assault. Medina was a major participant in the murder: he
pulled the victim from the car, stomped on him repeatedly, dragged him
into the street, and then repeatedly drove over him. We give minimal
weight to Medina’s age as a mitigating factor.

       3.     Non-Statutory Mitigation

¶107 Medina alleges his gang affiliation and the lack of a plea bargain
from the State as mitigation. We do not find these factors to be mitigating.
Moreover, Medina stated on the record that he had rejected a plea offer
from the State that would have resulted in a sentence of life without

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                           STATE V. MEDINA
                           Opinion of the Court

parole.

¶108 Medina also argues that he has rehabilitated himself by becoming
an artist. Rehabilitation through education and art can be considered as a
non-statutory mitigating circumstance. See State v. Roscoe, 184 Ariz. 484,
501, 910 P.2d 635, 652 (1996). We do not find that this circumstance merits
significant weight here.

¶109 Medina argues that he poses no future threat. We give this
mitigating circumstance minimal weight. See State v. Garcia, 224 Ariz. 1, 22
¶ 108, 226 P.3d 370, 391 (2010).

¶110 Medina contends that his co-defendant has received a sentence of
life in prison and that this disparate sentence should be considered in
mitigation. Unexplained disparities in the sentences of accomplices may
be a mitigating circumstance, but such disparities have little significance
when the murder is especially cruel, heinous, or depraved. See State v.
Ellison, 213 Ariz. 116, 140 ¶ 105, 140 P.3d 899, 923 (2006). Here, the
disparity can be explained. Medina, not his co-defendant, pulled the
victim from the car, stomped on him, dragged him into the street, and
drove over him multiple times. We do not find that the disparity here is
significantly mitigating.

¶111 Medina additionally alleges family support as a mitigating
circumstance. We agree that “close family ties may be mitigating.”
(Robert G.) Jones, 197 Ariz. at 313 ¶ 77, 4 P.3d at 368. Medina has
established that he has a close relationship with his family. However, we
find Medina’s family support “only slightly mitigating” because he
committed the murder while in his parent’s custody. See id.

¶112 Next, Medina argues that his remorse should be given weight in
mitigation. Medina expressed remorse to his girlfriend the day after the
murder; however, she characterized Medina’s regret not as an increased
sensitivity to the magnitude of the crime but more as “worr[y] about
getting caught.”

¶113 Medina also expressed remorse in his allocution. Yet, the State’s
expert testified that Medina had not shown regret or remorse during his
interview and opined that Medina was unlikely to feel any true remorse.
Medina’s expert, Dr. Lanyon, also testified that it would “take quite some
time” for Medina to feel remorse. Given this record, we give little

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                           STATE V. MEDINA
                           Opinion of the Court

mitigating weight to Medina’s remorse.

¶114 Medina contends that we can consider mitigation evidence from
the 2008 trial that was not introduced at the 2009 trial although we decline
to consider evidence not presented to the sentencing jury when
conducting an independent review of aggravating circumstances. See
State v. Nordstrom, 230 Ariz. 110, 119 ¶ 46, 280 P.3d 1244, 1253 (2012). Even
if we consider the evidence from the 2008 trial, however, we find it is not
significantly mitigating.

C.    Propriety of Death Sentence

¶115 Based on the aggravating and mitigating circumstances present in
this case, we find that “the mitigation is not sufficiently substantial to
warrant leniency.” A.R.S. § 13-755(B).

                           VI. CONCLUSION

¶116 We affirm Medina’s death sentence.3




3      Medina also lists thirty-seven constitutional claims that he states
this Court has rejected in other cases; we decline to revisit these claims.
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