                                 IN THE

    SUPREME COURT OF THE STATE OF ARIZONA

                           STATE OF ARIZONA,
                               Appellee,

                                    v.

                         BRYAN WAYNE HULSEY,
                              Appellant.


                           No. CR-14-0291-AP
                          Filed January 18, 2018


        Appeal from the Superior Court in Maricopa County
            The Honorable Joseph C. Kreamer, Judge
                       No. CR2007-111635
   AFFIRMED IN PART, REVERSED IN PART AND REMANDED


COUNSEL:

Mark Brnovich, Arizona Attorney General, Dominic Draye, Solicitor
General, Lacey Stover Gard, Chief Counsel, Kristina Reeves (argued),
Assistant Attorney General, Capital Litigation Section, Phoenix, Attorneys
for State of Arizona

David Goldberg, Esq. (argued), Fort Collins, CO; Thomas A. Gorman,
Attorney at Law, Sedona, Attorneys for Bryan Wayne Hulsey
                             STATE V. HULSEY
                            Opinion of the Court




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



JUSTICE BOLICK, opinion of the Court:

¶1             Bryan Wayne Hulsey was sentenced to death after a jury
found him guilty of the first degree murder of an on duty peace officer.
Hulsey also received a consecutive nine-year sentence for his conviction of
attempted first degree murder of another on duty peace officer. This Court
has jurisdiction over this automatic appeal under article 6, section 5(3) of
the Arizona Constitution and A.R.S. §§ 13-4031, -4033(A). We affirm
Hulsey’s convictions and prison sentence, but, consistent with Lynch v.
Arizona (Lynch III), 136 S. Ct. 1818 (2016), vacate his death sentence and
remand for new penalty phase proceedings.

                             BACKGROUND

¶2           On the morning of February 19, 2007, Hulsey was the front-
seat passenger in a car that police pulled over in a routine traffic stop in
Glendale. Officer David Goitia, who initiated the traffic stop, asked the
three occupants for identification. As Officer Goitia took the identifications
back to his police cruiser, Officer Anthony Holly walked over to the
passenger side of the car.

¶3            After determining that both the driver and backseat
passenger had outstanding warrants, Officer Goitia arrested the driver and
placed her in his police car. He then approached Hulsey and asked about


* Justice John R. Lopez IV 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.
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                            Opinion of the Court



the identification Hulsey had provided. Hulsey immediately became
agitated, and Officer Goitia told him to get out of the car so that he could
pat Hulsey down for weapons for the officers’ safety.

¶4             Hulsey stepped out of the car and as the pat-down
commenced, he took a step back, reached into his waistband, and pulled
out a gun. Hulsey aimed at the officers and started firing. Hulsey and
Officer Goitia exchanged gunfire as the officer ran for cover and Hulsey ran
from the scene. Hulsey made it around the street corner but was soon
surrounded by responding officers and arrested. Officer Holly died of a
gunshot wound to the head.

¶5             Hulsey was charged with first degree murder of a law
enforcement officer, attempted murder of a law enforcement officer, and
misconduct involving weapons. The State sought the death penalty. Before
trial, the court granted Hulsey’s motion to sever the weapons charge.

¶6            At trial, the State presented testimony from both Officer
Goitia and the back-seat passenger to establish that Hulsey shot Officer
Holly. Hulsey’s primary defense was that Officer Holly had been
accidentally shot and killed by Officer Goitia.

¶7             Hulsey presented data from “Shot Spotter,” a system
designed to pick up the sound of gunfire. Hulsey used this data to attempt
to show that he fired only one shot that morning. He argued that the
investigation produced only one bullet from his gun at the scene, which
contained no visible blood. Hulsey used the Shot Spotter data to support
his contention that he did not fire his weapon near the cars, but Officer
Goitia saw it in his waistband and panicked. Hulsey argued that Officer
Goitia ran to the police vehicle to take a position of cover and fired the first
ten shots at Hulsey. Hulsey claims he then ran and, while running away,
he turned and fired a single shot in Officer Holly’s direction.

¶8             The jury found Hulsey guilty on both counts and that
the State had proven two aggravating factors justifying a death sentence:
that Hulsey was previously convicted of a serious offense, A.R.S.
§ 13-751(F)(2), and that Officer Holly was an on duty peace officer killed in

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                            Opinion of the Court



the course of his official duties, A.R.S. § 13-751(F)(10). After considering
mitigation evidence, the jury found a death sentence appropriate and the
court imposed that sentence and a consecutive nine-year sentence for the
attempted first degree murder conviction.

                               DISCUSSION

                             I. Pretrial Issues

       A. Destruction of evidence

¶9             An x-ray taken during Officer Holly’s autopsy revealed a few
scattered bullet fragments in his skull. The medical examiner, Dr. John Hu,
did not to recover the fragments because he thought they were too small to
have forensic value and doing so would “leave significant mutilation or
disfiguring of Mr. Holly’s face.” Officer Holly’s remains were later
cremated. At trial, the court gave a Willits instruction, State v. Willits, 96
Ariz. 184, 191 (1964), allowing the jury to infer that the destroyed fragments
were not from Hulsey’s gun.

¶10             Hulsey claims that the failure to extract and preserve bullet
fragments deprived him of due process because they would have
conclusively proved his innocence. Only two guns were deployed that
morning: Officer Goitia’s .40-caliber Glock with hollow point rounds and
Hulsey’s .357 magnum with jacketed soft point ammunition. If the bullet
that killed Officer Holly did not come from Hulsey’s gun, he would not be
guilty of the death-qualifying charge. See A.R.S. § 13-203(A)(1) (defendant’s
conduct must be the cause-in-fact). For the following reasons, we conclude
that the trial court did not abuse its discretion in denying Hulsey’s motions
related to the alleged destruction of evidence.

              1. Motion to exhume

¶11           Hulsey moved early in the case to exhume Officer Holly’s
body to retrieve the bullet fragments. The State opposed the motion as
moot, stating that Officer Holly’s body had been cremated. Acknowledging
there was no body to exhume, Hulsey withdrew his request for oral
argument on the matter, yet did not withdraw his motion. The trial court
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                           Opinion of the Court



denied the motion “under [the] circumstances.” We review a denial of a
motion to exhume for abuse of discretion. State v. Atwood, 171 Ariz. 576,
604–05 (1992), disapproved on other grounds by State v. Nordstrom, 200 Ariz.
229, 241 ¶ 25 (2001).

¶12            Hulsey never requested access to the cremated remains.
Hulsey’s motion to exhume applied only to the physical body. In response
to his original motion to exhume, Hulsey was informed of the cremation, to
which he responded that the “logic seems clear” that the body cannot be
exhumed. Although never withdrawing the motion to exhume, Hulsey
conceded that “the answer to the issue of exhumation seems clear.” In his
reply, Hulsey stated that issues generated from the cremation existed, but
that those issues would “be raised by the defense in future motions—not in
the present motion.” However, Hulsey filed no motion concerning access
to the cremated remains.

¶13           Even if the motion to exhume applied to the cremated
remains, the trial court did not abuse its discretion in denying it.
“Exhumation of the victim’s body is to be allowed only under extraordinary
circumstances. Where existence of the evidence sought was so speculative
and uncertain, and its value in aiding defendant’s defense so conjectural
and remote, the trial court properly exercised its discretion in refusing
appellant’s motion.” Atwood, 171 Ariz. at 604–05 (quoting Commonwealth v.
Kivlin, 406 A.2d 799, 805 (Pa. 1979)).

¶14           This case is much like Atwood, in which the defense presented
only “cryptic promises” that relevant evidence could be discovered. Id. at
604. When the trial court ruled on Hulsey’s claim, the notion that any
fragments in the remains still held evidentiary value was unsubstantiated.
Even today Hulsey concedes on appeal that “the record is silent as to
whether the fragments in fact still exist in the decedent’s remains.” Thus,
even if the motion to exhume applied to the cremated remains, the prospect
that analysis of the remains would aid Hulsey’s defense is speculative.
Denial of the motion to exhume was not an abuse of discretion.

¶15        Hulsey also requests this Court to stay his appeal and
“remand the case for resolution of [the] factual issue” of whether the

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                            Opinion of the Court



fragments were destroyed. Hulsey waived his right to an evidentiary
hearing by conceding that the evidence was destroyed in his two motions
to dismiss for bad faith destruction of evidence and only now requesting
access to the remains. See State v. Gutierrez, 229 Ariz. 573, 579 ¶ 32 (2012)
(“[W]hen there are no material facts in dispute and the only issue is the legal
consequence of undisputed material facts, the superior court need not hold
an evidentiary hearing.”); see also State v. Trostle, 191 Ariz. 4, 13 (1997)
(finding failure to request evidentiary hearing about juror misconduct at
trial waived on appeal). The State avowed in response to the first motion
to exhume that the body was unavailable for inspection because the body
had been cremated. Furthermore, Hulsey has given this Court no reason to
assume the fragments still exist.

              2. Motion to dismiss

¶16            After it was revealed that Officer Holly was cremated, Hulsey
moved to dismiss the charges for bad faith destruction of evidence. The
trial court concluded that there was insufficient evidence of bad faith on the
State’s part. However, one year later, Hulsey renewed his motion to
dismiss in light of new evidence—an affidavit from a firearms expert—
purporting to show bad faith destruction of the bullet fragments. The court
denied the motion, stating that bad faith was not demonstrated.

¶17           Hulsey argues that the trial court abused its discretion in
denying the motions to dismiss. Specifically, he alleges that the trial court
erred by (1) applying a too-narrow standard based on Youngblood and
thereby overlooking Trombetta’s import, see Arizona v. Youngblood, 488 U.S.
51, 58 (1988); California v. Trombetta, 467 U.S. 479, 488–89 (1984); (2) twice
denying a request to hold an evidentiary hearing; and (3) ruling on a record
that showed the fragments were constitutionally material and sufficient
evidence of bad faith. A trial court’s denial of a motion to dismiss an
indictment is reviewed for abuse of discretion. State v. Matlock, 109 Ariz.
193, 195 (1973). We defer to a trial court’s findings of fact when they are
supported by the record and not clearly erroneous, Shooter v. Farmer, 235
Ariz. 199, 200 ¶ 4 (2014), but review legal conclusions de novo. State v.
Newell, 212 Ariz. 389, 397 ¶ 27 (2006). The trial court did not err in denying
the motions to dismiss.

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                             STATE V. HULSEY
                            Opinion of the Court



                     a. Destruction of evidence standard

¶18            In order for a state to have a constitutional duty to preserve
evidence, the “evidence must both possess an exculpatory value that was
apparent before the evidence was destroyed, and be of such a nature that
the defendant would be unable to obtain comparable evidence by other
reasonably available means.” Trombetta, 467 U.S. at 488–89; see also United
States v. Agurs, 427 U.S. 97, 112 (1976) (“[I]f the omitted evidence creates a
reasonable doubt that did not otherwise exist, constitutional error has been
committed. This means that the omission must be evaluated in the context
of the entire record.”). On the other hand, where the evidence is only
“potentially useful,” a defendant must show bad faith on the part of the
police for the destruction of evidence to violate due process. Illinois v.
Fisher, 540 U.S. 544, 547–48 (2004) (quoting Youngblood, 488 U.S. at 58); see
also State v. Goudeau, 239 Ariz. 421, 442 ¶ 44 (2016).

¶19            Hulsey argues that when evidence is “constitutionally
material,” “even in the absence of proof of bad faith[,] a defendant is
entitled to relief under the Due Process Clause where the destroyed
evidence is probably or likely exculpatory rather than in Youngblood only
potentially exculpatory.” This is incorrect. We have held that “the same
bad-faith test applies to identify violations of either the Arizona due process
clause or the federal due process clause.” State v. Glissendorf, 235 Ariz. 147,
151 ¶ 14 (2014). The court here applied the proper standard.

¶20           Hulsey alternatively requests that this Court reconsider the
scope of the bad faith requirement under due process mandates in our state
constitution. We decline to do so. Our application of both Youngblood and
Trombetta adequately encompasses fundamental fairness required by our
state constitution whether the evidence is material and exculpatory or only
potentially exculpatory.

                     b. Requests for evidentiary hearing

¶21           Hulsey argues that the trial court abused its discretion by
twice refusing to hold an evidentiary hearing on his motions to dismiss for
bad faith destruction thereby “preclud[ing] this Court [from] . . .

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                           Opinion of the Court



meaningfully review[ing] its resolution of fact intensive issues.” A failure
to hold an evidentiary hearing is reviewed for abuse of discretion. State v.
Spears, 184 Ariz. 277, 289 (1996). We conclude that neither denial of the
requests for evidentiary hearings was error.

¶22            At oral argument on the first motion to dismiss for bad faith
destruction of evidence, the trial court concluded that Hulsey failed to show
that, at the time of the destruction, the State believed the fragments had
evidentiary value. The defense argued that the medical examiner allegedly
disobeyed clear protocol when he saw the fragments on the x-ray and did
not retrieve them; instead, the medical examiner asked Detective Bustoz
whether he should gather them and the detective purportedly told him
“no.” 1 The court found that the lack of apparent evidentiary value at the
time of destruction militated against finding the State acted in bad faith. 2

¶23           Trial courts have broad discretion in determining whether an
evidentiary hearing is required, but “should err on the side of granting an
evidentiary hearing so that they can gather as much relevant information
as possible before making their rulings.” Id. Apart from an uncontested
claim that the medical examiner may not have followed proper protocol—

1 At trial, Detective Bustoz denied making the decision not to preserve the
bullet fragments, and Dr. Hu could not recall any such statement by
Detective Bustoz.

2  Hulsey claimed at trial that bad faith was shown when the medical
examiner saw the fragments but did not retrieve them at Detective Bustoz’s
directive. Regardless whether such a directive occurred, we note that Dr.
Hu explained that the fragments were too tiny to extract and too difficult to
find without mutilation. There was also no bad faith in Detective Bustoz
describing his understanding of the circumstances of the shooting to the
doctor. Dr. Hu stated that it was common practice for the homicide
detective to be present at the examiner’s office and that the information he
received was that “the suspect produced a gun, fired a couple shots and
Officer Holly received a gunshot wound.”



                                     8
                             STATE V. HULSEY
                            Opinion of the Court



that is, to “recover foreign bodies of evidentiary value”—the defense failed
to present any evidence that would show bad faith as required by
Youngblood. State v. Walker, 185 Ariz. 228, 238 (App. 1995) (“[B]ad faith has
less to do with the actor’s intent than with the actor’s knowledge that the
evidence was constitutionally material.” (internal quotation marks omitted)
(citing Youngblood, 488 U.S. at 61)). Nothing alerted Detective Bustoz or Dr.
Hu that Hulsey would allege that Officer Goitia shot Officer Holly. Because
at worst the failure to extract the fragments only amounted to negligence,
the court did not abuse its discretion in not granting an evidentiary hearing.

¶24            When Hulsey renewed his motion, he claimed that he could
“now affirmatively demonstrate that he has been prejudiced by the bad
faith actions of the State.” The pertinent addition from the first motion was
an affidavit from Jaco Swanepoel, Hulsey’s firearms expert. Swanepoel
declared that “no piece of forensic evidence . . . should arbitrarily be left
unrecovered. . . . Fragments should be recovered for examination,
irrespective of size.” Hulsey argued that bad faith was established when
the “experienced prosecutor, experienced homicide detective and the
medical examiner all recognized the constitutional materiality of the bullet
fragments left within the victim’s head, yet they intentionally failed to
preserve the evidence.”

¶25            The trial court agreed that it was reasonable to assume that
fragments could be used to establish the identity of the weapon, but
remained convinced that it was “merely potentially exculpatory at best.”
We agree. It is not clear to us now, nor was it clear to the trial court at the
time, that the fragments would definitively confirm Hulsey’s theory. When
he renewed the motion, Hulsey’s only new basis for his argument that the
trial court abused its discretion by failing to hold an evidentiary hearing
was Swanepoel’s affidavit, which addressed harm rather than bad faith and
therefore did not support an evidentiary hearing. Cf. State v. Grounds, 128
Ariz. 14, 15 (1981) (explaining that because the record was “devoid of
evidence,” there was nothing upon which the trial court could base its
ruling). Therefore, the evidence was only potentially exculpatory and
Hulsey provided no new reason for granting an evidentiary hearing. The
court’s refusal to grant an evidentiary hearing was not an abuse of
discretion.

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                             STATE V. HULSEY
                            Opinion of the Court



                     c. Motions to dismiss

¶26            At trial, Hulsey also argued that the case should have been
dismissed because the State acted in bad faith by not preserving bullet
fragments. As discussed previously, supra ¶¶ 18–19, because its exculpatory
value was not readily apparent, Hulsey cannot show bad faith on the State’s
part in not preserving the evidence. The trial court therefore did not abuse
its discretion in ruling that the destruction of the bullet fragments did not
violate due process. See Fisher, 540 U.S. at 549 (applying Youngblood bad
faith requirement when destroyed evidence was only potentially useful).

¶27            Hulsey also claimed that the State acted in bad faith in
releasing Officer Holly’s body to his family without first notifying the
defense and by the examiner violating internal protocol to “recover foreign
bodies of evidentiary value.” See Ariz. R. Crim. P. 28.2(e). Releasing a
victim’s body to the family does not in itself show bad faith. See Lopez v.
State, 86 P.3d 851, 862 (Wyo. 2004). Moreover, Hulsey’s cited authority for
the State’s purported duty to notify the defense pursuant to Rule 28.2(e)
applies to “post-verdict proceedings” and does not apply in pretrial
discovery. State v. Superior Court, 127 Ariz. 175, 177 (1980) (“Rule 28.2 [is]
therefore irrelevant to defendant’s pretrial motion for discovery or in the
alternative to suppress.”). Furthermore, the allegation that the medical
examiner failed to follow internal policies is without merit. The medical
examiner testified that he did not attempt to recover the fragments because
he believed “they are likely to have no forensic value.” That is, the medical
examiner was following internal protocol because he is not required to
recover foreign bodies that he does not believe have evidentiary value.

¶28           At trial, Hulsey cross-examined the medical examiner and
asked detailed questions to Detective Bustoz about the autopsy and why
the fragments were not obtained. At Hulsey’s request, the jury was given
a Willits instruction telling the jury it could draw a negative inference
against the State for failing to preserve the evidence, thereby mitigating any
prejudice. The trial court did not abuse its discretion in denying the motion
to dismiss for bad faith destruction of evidence.



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                            Opinion of the Court



       B. Refusal to compel witness to testify

¶29           Hulsey argues that the trial court erred when it refused to
compel the driver of the car, Giota “Niki” Kostas, to testify. Under the Sixth
Amendment, a defendant may compel a witness to testify, but that “right is
not absolute and will give way when the witness’s preservation of his own
Fifth Amendment rights would prevent him from answering relevant
questions.” State v. Martinez, 218 Ariz. 421, 428 ¶ 26 (2008) (internal
quotation marks and citation omitted). Hulsey claims that the trial court
erred by basing its decision on the nonexistent doctrine of anticipatory
perjury. We review a denial of a motion to compel for abuse of discretion.
Id. ¶ 25.

¶30             Before trial, Kostas, believing she may have criminal
culpability related to the shooting, requested a lawyer when defense
counsel attempted to interview her. At a case management conference,
where Hulsey sought to elicit information from Kostas, Kostas’ attorney
stated that he would advise Kostas to invoke the privilege “if my client’s
understanding of or recollection is any different from that audio and video
recorded interview.” He avowed that “if [Kostas] were directed to answer
those questions to the best of her recollection, . . . it could possibly be in
contradiction to perhaps what the state has on audio or video, and for that
reason, I believe my client could be exposed to potential charges, new
charges . . . .” The trial court allowed Kostas to assert her Fifth Amendment
privilege, determining that Kostas had reasonable grounds to apprehend
prosecution and so she could invoke her Fifth Amendment privilege.

¶31            Hulsey claims that the trial court ruling was based on
“anticipatory” perjury because it was premised on Kostas potentially
giving testimony at trial that differed from her previous statements. The
trial court’s ruling reflects that Kostas could still be charged with a crime
that either had not been charged yet or does not have a statute of
limitations. Because the trial court properly concluded that Kostas had
reasonable grounds to fear criminal prosecution based on her testimony,
the court did not abuse its discretion by not compelling Kostas to testify.




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                             STATE V. HULSEY
                            Opinion of the Court



       C. Striking Juror 123 for cause

¶32           Hulsey argues that the trial court erred in striking Juror 123
from the venire for his views on the death penalty. See State v. Anderson,
210 Ariz. 327, 337–38 ¶¶ 25–26 (2005) (“The Sixth Amendment forbids
excusing potential jurors for cause solely because of their general objections
to the death penalty.” (citing Witherspoon v. Illinois, 391 U.S. 510, 522
(1968))). Potential jurors should be excluded if, after questioning on
whether they can set aside their personal views, the jurors would remain
unwilling or unable to perform their duty or follow the judge’s instructions.
See id. A trial court’s decision to strike a juror for cause is reviewed for
abuse of discretion. State v. Burns, 237 Ariz. 1, 13 ¶ 22 (2015).

¶33           During voir dire, Juror 123 gave inconsistent answers to
questions regarding his feelings about the death penalty. In the juror
questionnaire, Juror 123 stated that even if a person killed someone, he
should never be sentenced to death. But Juror 123 selected “no” to whether
his views against the death penalty were so strongly held that he would be
prevented or substantially impaired from performing his duty as a juror.
However, he also marked on the questionnaire that he would not be able to
enter the verdict of death after hearing all the evidence.

¶34            When examined by the defense, Juror 123 said he did not
believe in the death penalty. After further questioning he wavered slightly,
stating that, “I guess it’s on the table,” and that he “could possibly change
[his] mind.” He finally concluded that he might change his mind if he was
backed up against a wall or able to debate the issue. When the State
questioned Juror 123 about his inconsistent answers, he confessed that he
was confused. He explained that his unequivocal “no” to whether he could
enter a verdict of death was incorrect, but that he would not sentence
someone to death even if the person killed another.

¶35           The court concluded that the answers to the questionnaire
indicating Juror 123 would not sentence someone to death were “crystal
clear.” The court also ruled that, based on its observation, Juror 123’s views
on the death penalty would substantially impair his performance as a juror.


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                            Opinion of the Court



¶36            This was not a scenario in which a juror expressed only
“general objections to the death penalty.” Witherspoon, 391 U.S. at 522
(prohibiting exclusion for general objections, or expressed conscientious or
religious scruples against death penalty). The juror questionnaire showed
that Juror 123 would not be able to render a death sentence. See Burns, 237
Ariz. at 13 ¶ 23 (“A potential juror need not object to the death penalty in
every possible case to warrant a dismissal for cause.”); State v. Garcia, 224
Ariz. 1, 9 ¶¶ 18–19 (2010) (finding no error in striking juror who was
conflicted about imposing the death penalty). Juror 123’s inconsistent
responses to follow-up questions did not assuage the trial court’s concern
that his views of the death penalty would substantially impair the
performance of his duties as a juror. See Wainwright v. Witt, 469 U.S. 412,
424 (1985) (“[J]uror’s bias [need not] be proved with unmistakable clarity.”
(internal quotation marks omitted)); Burns, 237 Ariz. at 13 ¶ 23 (“A trial
judge must consider the entirety of a prospective juror’s demeanor and
behavior; if a juror’s promise to uphold the law is coupled with ambiguous
statements and uncertainty, the trial judge may strike the juror for cause.”).
Accordingly, the trial court did not abuse its discretion in striking Juror 123
for cause.

¶37           Hulsey further argues that it was structural error for the trial
court to curtail counsels’ questioning of Juror 123. However, defense
counsel exhausted all questions and turned over the juror to the prosecution
before the court excused the juror. The court allowed questioning to
continue until the juror, when clarifying his answer on the questionnaire,
reiterated that if someone kills another he “would not sentence them to
death.” “A trial court has discretion to determine the scope of voir dire,
which we will not overturn absent an abuse of that discretion.” State v.
Smith, 215 Ariz. 221, 230 ¶ 37 (2007). There was no abuse of discretion in
discontinuing questioning when the defense was permitted to ask all the
questions it wanted.

                           II. Guilt Phase Issues

       A. Admission of other-act evidence under Rule 404(b)

¶38        Hulsey claims that the admission of evidence involving his
methamphetamine use the night before and the morning of the crimes was
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                            Opinion of the Court



improper under Arizona Rule of Evidence 404(b). Normally, this Court
reviews admission of other-act evidence for abuse of discretion. State v.
VanWinkle, 230 Ariz. 387, 392 ¶ 18 (2012). However, Hulsey failed to
specifically object in the trial court to any admission of evidence on 404(b)
grounds. When evidence is admitted without objection, this Court reviews
for fundamental error. State v. Hargrave, 225 Ariz. 1, 9 ¶ 18 (2010).

¶39           Hulsey moved to compel the State to provide notice of the
evidence it intended to introduce at trial pursuant to Rule 404(b). Hulsey
wanted to “avoid prejudice before the jury, and to avert any surprise
through the opportunity for pretrial objection.”

¶40            In response, the State explained that it intended to present
evidence that Hulsey had used methamphetamine on the day before the
murder, and that on the morning of the shooting when Officer Goitia began
following the car, Hulsey pulled out a pipe and methamphetamine and
gave it to back-seat-passenger Patsy Jones to hide. After the State described
the proposed opening statement, the trial court asked if Hulsey’s motion
related to those statements. The defense said “yes,” but questioned
whether there was any factual basis for the statements, and also stated that
the defense would “stand by the comments . . . already made in the
motion.” The motion only discussed the mandate that the prosecution
provide a list of any prior acts evidence it intended to introduce. It did not
contain an objection to this particular evidence.

¶41           In conducting its analysis under Rule 404(b), the trial court
concluded that the probative value of the evidence was not outweighed by
any prejudicial effect, and allowed the statements in the State’s opening
remarks. Additionally, in conducting a Rule 403 analysis of a picture of the
contents of a duffel bag in the back seat of the car, which included a gun
and drugs, the court noted that the presence of drugs “can relate to motive”
and allowed Detective Bustoz to testify that methamphetamine was in the
bag.

¶42          During the State’s opening, the prosecutor mentioned
Hulsey’s methamphetamine use three times. He noted that on the night
before the crimes and again about an hour before the murder, Hulsey

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                           Opinion of the Court



smoked methamphetamine from a glass pipe. The State also mentioned
that when the officer began following the car, Hulsey took the pipe and
methamphetamine and asked Jones to hide them in the back seat.

¶43           During trial, evidence of the prior acts was elicited during
Jones’ direct examination when she testified that Hulsey and Kostas used
methamphetamine the night before the murder. She testified that Hulsey
pulled out a pipe and drugs at Jones’ house when he arrived. She explained
that Hulsey, Kostas, and she all took hits from the pipe. She also testified
that once the police car began following them, Hulsey handed her the pipe
and the bag to hide in the back seat. No objections were made to this
testimony.

¶44           Hulsey asserts that the court allowed the mention of prior acts
during opening statements over objection, but he is mistaken. His motion
to compel contained no objection to discussing a specific “other act,” and
he did not object on Rule 404(b) grounds at the hearing before the opening
statements. Hulsey instead argued that the trial court did not properly
scrutinize the evidence and that it was not relevant.

¶45           Rule 404 permits the introduction of evidence of “other”
possibly prejudicial acts if a proper purpose is shown under subsection
404(b). State v. Lee, 189 Ariz. 590, 599 (1997). Evidence of other acts is
admissible to prove “motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Ariz. R. Evid.
404(b). The evidence must also be relevant under Rule 402; the probative
value of the evidence must not be substantially outweighed by the potential
unfair prejudice under Rule 403; and “the court must give an appropriate
limiting instruction if requested under Rule 105.” Lee, 189 Ariz. at 599.
Here, all four requirements were satisfied.

¶46           The admission of the use-of-meth evidence was proper
because both the paraphernalia in the car and the drug use explain Hulsey’s
reaction to the police officers’ presence and his behavior that followed. A
reasonable inference is that he was agitated and pulled out the gun because
he knew he had illegal substances on his person and in the car. The use of
the drugs also explains Hulsey’s agitation and flight, as well as his use of

                                     15
                             STATE V. HULSEY
                            Opinion of the Court



his gun.

¶47            The trial court ruled that the acts’ probative value was not
substantially outweighed by the prejudicial effect, and Hulsey provides no
reason to disturb that ruling. See State v. Williams, 133 Ariz. 220, 230 (1982)
(stating that Rule 403 findings should not be disturbed unless the trial court
abused its discretion). Finally, Hulsey did not request a limiting
instruction. Allowing admission of the evidence of prior acts was neither
an abuse of discretion nor fundamental error.

       B. Instructions on lesser-included offenses and causation

¶48           Hulsey requested that jurors receive an instruction on second
degree murder, manslaughter, and negligent homicide as lesser-included
offenses of the charge of first degree murder of a police officer. The trial
court denied Hulsey’s request, finding that no evidence supported giving
the requested instructions. The court specifically noted that the only
testimony presented regarding intent was from Jones, who “described [the
shooting] as intentional.”

¶49         Hulsey then requested that the trial court give a modified
Revised Arizona Jury Instruction (“RAJI”) 2.03 that stated:

       In order to find the Defendant guilty of murder, you must
       find that the death of Anthony Holly was caused by a bullet
       fired by the Defendant hitting him. If you find that a bullet
       fired by the Defendant did not hit Anthony Holly, you must
       find the Defendant not guilty of murder.

¶50           The State opposed the requested instruction on the ground
that it would amount to an improper comment on the evidence. The trial
court agreed.

¶51           The court took the matter under advisement and the
following day reaffirmed that it would not instruct the jurors further about
what to do if they found that Officer Goitia’s bullet hit Officer Holly. The


                                      16
                             STATE V. HULSEY
                            Opinion of the Court



court indicated it would give RAJI 2.03 unmodified, 3 but the defense did
not request that instruction and therefore it was not given.

¶52           The jury was ultimately instructed on first degree murder of
a police officer and attempted first degree murder and, with respect to
causation, that first degree murder required proof that the “Defendant
caused the death of the law enforcement officer.”

¶53            “[A] defendant is entitled to a lesser included offense
instruction where the evidence warrants it.” Beck v. Alabama, 447 U.S. 625,
636 (1980). We review issues pertaining to jury instructions for abuse of
discretion. State v. Delahanty, 226 Ariz. 502, 507 ¶ 22 (2011). Whether an
offense is included within another is a question of statutory interpretation
that we review de novo. State v. Geeslin, 223 Ariz. 553, 555 ¶ 9 (2010). When
there has not been a request for an instruction on a lesser-included offense,
this Court reviews for fundamental error. State v. Whittle, 156 Ariz. 405, 407
(1988).
               1. Lesser-included offenses of first degree murder

¶54          Hulsey claims that second degree murder, manslaughter, and
negligent homicide instructions were necessary because “the evidence was


3 “Causation Instruction—Intervening Event: Conduct is the cause of a
result when both of the following exist: 1.) But for the conduct the result in
question would not have occurred. 2.) The relationship between the
conduct and result satisfies any additional causal requirements imposed by
the definition of the offense. In order to find the defendant guilty of [the
crime], you must find that the [death] [injury] was proximately caused by
the acts of the defendant. The proximate cause of a [death] [injury] is a
cause which, in natural and continuous sequence, produces the [death]
[injury], and without which the [death] [injury] would not have occurred.
Proximate cause does not exist if the chain of natural effects and cause either
does not exist or is broken by a superseding intervening event that was
unforeseeable by the defendant and, with the benefit of hindsight, may be
described as abnormal or extraordinary. The State must prove beyond a
reasonable doubt that a superseding intervening event did not cause the
[death] [injury].” RAJI Stand. Crim. 2.03.
                                      17
                              STATE V. HULSEY
                             Opinion of the Court



inconclusive” as to whether Hulsey discharged his gun recklessly or
accidentally—rather than, as alleged, intentionally or knowingly. He
further claims that if the jury had been given instructions on lesser-included
offenses, they might have found that, after Hulsey took out his gun, “Officer
Goitia overreacted, began shooting immediately and he accidentally shot
Officer Holly,” establishing that Hulsey did not intentionally kill Officer
Holly. Specifically, Hulsey argues that Officer Goitia’s testimony that
Hulsey pulled the gun and “whirled” provides evidence of recklessness;
thus, the lesser-included offense instructions were necessary. See A.R.S.
§§ 13-1104(A)(3) (with extreme indifference to human life, defendant
recklessly causes death of another person), -1103(A)(1)–(2) (recklessly
causing death of another person, or result of adequate
provocation), -1102(A) (negligently causing death of another person).

¶55           “If the facts of the case as presented at trial are such that a jury
could reasonably find that only the elements of a lesser offense have been
proved, the defendant is entitled to have the judge instruct the jury on the
lesser-included offense.” State v. Wall, 212 Ariz. 1, 3 ¶ 14 (2006) (explaining
that lesser-included offense instruction is appropriate “when the greater
offense cannot be committed without necessarily committing the lesser
offense,” and “the evidence is sufficient to support giving the instruction”
(internal quotation marks omitted)). This Court has previously stated that:

       We deem evidence sufficient to require a lesser-included
       offense instruction if two conditions are met. The jury must
       be able to find (a) that the State failed to prove an element of
       the greater offense and (b) that the evidence is sufficient to
       support a conviction on the lesser offense. It is not enough
       that, as a theoretical matter, “the jury might simply disbelieve
       the state’s evidence on one element of the crime” because this
       “would require instructions on all offenses theoretically
       included” in every charged offense. Instead, the evidence
       must be such that a rational juror could conclude that the
       defendant committed only the lesser offense.

Id. at 4 ¶ 18 (internal citations omitted) (quoting State v. Caldera, 141 Ariz.
634, 636–37 (1984)).

                                       18
                             STATE V. HULSEY
                            Opinion of the Court



¶56           The trial court correctly concluded that no evidence presented
at trial supported a finding of guilt only on a lesser-included offense, thus
lesser-included offense instructions were inappropriate. See State v. Bearup,
221 Ariz. 163, 168 ¶ 23 (2009). The evidence supported the jury’s finding of
an intentional act: Hulsey pulled a gun from his waistband, raised it, turned
it sideways, aimed, stated “I’ve got something for you” or “I’ve got this for
you,” and fired. The only evidence that could support a lesser-included
offense was Hulsey’s “whirling” or turning; but that movement does not
negate the evidence regarding Hulsey’s intent—lifting the gun, taking aim,
and firing. The trial court did not abuse its discretion in refusing to provide
the instruction of second degree murder, or any other lesser-included
offense.

              2. Provocation manslaughter instruction

¶57            Hulsey correctly argues that even though provocation
manslaughter is not a lesser-included offense of second degree murder, this
Court has found the instruction proper “when supported by the evidence.”
State v. Lua, 237 Ariz. 301, 305 ¶ 14 (2015). But just as there was no evidence
to support a lesser-included offense instruction on second degree murder,
there was also no evidence to support an instruction on provocation
manslaughter. Hulsey argues that the evidence shows that Hulsey fired a
shot toward Officer Goitia “after [Goitia] began shooting at [Hulsey].” The
only evidence on this point, however, shows that Officer Goitia returned
fire after Hulsey pulled his gun and aimed at the officers. Accordingly,
because Hulsey has shown no evidence that the officers first provoked him,
it was neither fundamental error nor an abuse of discretion to refuse the
instruction for provocation manslaughter.

              3. Causation instruction

¶58            Hulsey argues that the trial court committed reversible error
by failing to give his proposed modified RAJI 2.03 causation instruction and
to instruct the jury about proximate causation. Both arguments are
unavailing.

¶59           Although a defendant is entitled to have the jury fully and

                                      19
                             STATE V. HULSEY
                            Opinion of the Court



accurately instructed on the applicable law, the defendant is not entitled to
insist that the instructions be tailored to reflect the actors and evidence in
the case. The instruction given to the jury accurately required proof that
“Defendant caused the death of the law enforcement officer.”

¶60            The trial court also did not err by failing to provide a
proximate cause instruction. The trial court offered to give the RAJI 2.03
Causation Instruction—Intervening Event, but Hulsey did not act on the
offer. No fundamental error exists where the causation described in the
final jury instructions and counsels’ arguments adequately addressed the
need for the jury to determine that Hulsey, in fact, killed Officer Holly.

       C. Sufficient evidence to support first degree murder conviction

¶61           To prove first degree murder as charged in this case, the State
must show that the defendant, intending or knowing that his conduct will
cause the death of a police officer, causes the death of a police officer in the
line of duty. A.R.S. § 13-1105(A)(3).

¶62           Upon the conclusion of the State’s case-in-chief, and on a
renewed post-trial motion, Hulsey moved for a judgment of acquittal,
maintaining that the State failed to present substantial evidence to prove
that Hulsey’s bullet killed Officer Holly. Both motions were denied.

¶63             Substantial evidence is that which “reasonable persons could
accept as sufficient to support a guilty verdict beyond a reasonable doubt.”
State v. Hausner, 230 Ariz. 60, 75 ¶ 50 (2012). Hulsey argues that the
evidence was constitutionally insufficient to show that Hulsey’s bullet
killed Officer Holly because of: (1) the inconsistent testimony between
Officer Goitia and Jones; (2) the absence of stipling at Officer Holly’s wound
site; (3) the absence of blood near where Officer Holly was shot; (4) the Shot
Spotter evidence; and (5) the lack of bullets found matching Hulsey’s gun.
We disagree. Both Officer Goitia and Jones stated that Hulsey shot first,
then took a step forward to shoot again. Jones also stated the first two shots
sounded different from the shots fired in succession by Officer Goitia as
Hulsey ran from the scene. Officer Goitia testified that he ran around the
back of the cars before returning fire.

                                      20
                             STATE V. HULSEY
                            Opinion of the Court



¶64          As the trial court observed, the jury was capable of
considering the inconsistencies and questions noted by the defense about
who fired the fatal bullet. Nonetheless, there was certainly enough
evidence for a reasonable trier-of-fact to conclude, beyond a reasonable
doubt, that Hulsey caused the death of Officer Holly.

                       III. Aggravation Phase Issues

       A. Constitutionality of A.R.S. §§ 13-751(F)(10) and 13-1105(A)(3)

¶65            Hulsey asserts that the (F)(10) aggravator—that the victim
was an on duty peace officer killed while performing official duties—is
unconstitutional because the crime and aggravator are both based on the
victim’s status. A.R.S. § 13-751(F)(10). But we previously addressed and
rejected this claim, and we decline to revisit that decision. See State v. Cruz,
218 Ariz. 149, 169–70 ¶¶ 128–32 (2008) (holding elements of underlying
crime may concurrently be used as aggravating circumstances).

¶66            Hulsey also argues that using the elements of first degree
murder, committing an act that “causes the death of a law enforcement
officer who is in the line of duty” under A.R.S. § 13-1105(A)(3) to also make
the defendant eligible for a death sentence makes Arizona’s death penalty
for this crime unconstitutional under Lowenfield v. Phelps, 484 U.S. 231, 244
(1988) (outlining requirements needed for capital sentencing scheme to
“pass constitutional muster”), because it does not narrow the class of
defendants eligible for the death penalty. We disagree. Lowenfield requires
that the sentencing scheme genuinely narrows the class of persons eligible
for the death penalty and therefore ensures that the selected crimes are
sufficiently serious that the offense reasonably justifies the severe sentence.
Id. Here, the aggravator applies only to a small group of perpetrators who
intentionally or knowingly kill on duty peace officers. See State v. Hidalgo,
241 Ariz. 543, 551 ¶ 24 (2017) (“An aggravating circumstance satisfies this
narrowing requirement so long as it applies only to a subclass of
murders.”); see also State v. Greenway, 170 Ariz. 155, 163–64 (1991).

¶67          Hulsey additionally claims that A.R.S. § 13-1105(A)(3) is
unconstitutional because, without requiring proof of premeditation for a

                                      21
                             STATE V. HULSEY
                            Opinion of the Court



first degree murder charge, the court impermissibly reduced the State’s
burden of proof and improperly “elevat[ed]” knowing or intentional
murder to first degree murder.             This Court reviews a statute’s
constitutionality de novo, construing it, if possible, to uphold its
constitutionality. State v. Glassel, 211 Ariz. 33, 51 ¶ 65 (2005).

¶68            At trial, Hulsey objected that the first degree murder of a
police officer jury instructions did not require proof of premeditation. See
§ 13-1105(A)(3). 4 Citing Whittle, 156 Ariz. at 404, Hulsey here maintains that
“[t]he culpable mental state, premeditation,” is required to convict of first
degree murder, and this factor is necessary to distinguish it from second
degree murder. He also argues that State v. Thompson requires
premeditation. 204 Ariz. 471, 475 ¶ 15 (2003) (“[F]or the first degree murder
statute to be constitutional, the definition of premeditation must provide a
meaningful distinction between first and second degree murder.”).

¶69           Hulsey’s reliance on Whittle and Thompson is misplaced.
Thompson does not say that only premeditated murder can qualify as first
degree murder. See id. Indeed our cases make clear that for felony
murder—which also constitutes first degree murder—the fact that the
murder occurred in the course of committing another enumerated felony
qualifies the murder as first degree, even if the death was not premeditated,
or even anticipated. See State v. Herrera, 176 Ariz. 21 (1993) (affirming a
death sentence for a defendant convicted of felony murder). Thompson
addressed the meaning of premeditation; it did not impose additional
requirements for proving first degree murder.

¶70            The legislature has determined that the intentional or
knowing murder of a police officer qualifies as a first degree murder, while
the second degree murder of a police officer requires only that the
defendant intended to cause bodily harm. The potential for jury confusion
between first and second degree murder of a police officer is absent here.
The statute is not vague.

4 “Intending or knowing that the person’s conduct will cause death to a law
enforcement officer, the person causes the death of a law enforcement
officer who is in the line of duty.” A.R.S. § 13-1105(A)(3).

                                      22
                             STATE V. HULSEY
                            Opinion of the Court



¶71          For all the reasons stated above, Hulsey’s first degree murder
conviction, and death eligibility based on A.R.S. §§ 13-751(F)(10)
and -1105(A)(3) do not violate due process.

                          IV. Penalty Phase Issues

       A. Imposition of the death penalty for the seriously mentally
       disturbed

¶72            Hulsey argues that evolving standards of decency render him
exempt from the death penalty because of his uncontroverted serious
mental illnesses (“SMI”) (depression with psychotic features;
schizophrenia; and methamphetamine induced psychosis). He alleges that
United States Supreme Court death penalty cases addressing Eighth
Amendment violations provide that the death penalty for those with SMI
cannot be proportional to a SMI defendant’s culpability and, therefore, is
unconstitutional. See Graham v. Florida, 560 U.S. 48 (2010); Kennedy v.
Louisiana, 554 U.S. 407 (2008); Roper v. Simmons, 543 U.S. 551 (2005); Atkins
v. Virginia, 536 U.S. 304 (2002). We review de novo the validity of a capital
sentencing statute. State v. Davolt, 207 Ariz. 191, 214 ¶ 99 (2004).

¶73             As a threshold matter, Atkins and Roper are unavailing
because Hulsey has not shown that he suffers from an intellectual
disability, 5 see Atkins, 536 U.S. at 321; see also A.R.S. § 13-753(H); State v.
Escalante-Orozco, 241 Ariz. 254, 266–67 ¶¶ 8–9 (2017), and he was not a
juvenile when he committed the crime, see Roper, 543 U.S. at 568. Moreover,
neither case extended a death penalty exemption to those with SMI, and
Hulsey has not demonstrated why those cases should be extended apart
from a possible trend in that direction. But see Lewis v. State, 620 S.E.2d 778,
786 (Ga. 2005) (holding defendants diagnosed with mental illness do not
qualify for death penalty exemption); State v. Hancock, 840 N.E.2d 1032,
1059–60 ¶¶ 154–58 (Ohio 2006) (same); Commonwealth v. Baumhammers, 960
A.2d 59, 96–97 (Pa. 2008) (same).             We do not lightly infer the
unconstitutionality of statutes, and the decisions in other jurisdictions do

5Hulsey presented evidence of various IQ scores, ranging from “the lower
half of average” to “superior.”

                                      23
                              STATE V. HULSEY
                             Opinion of the Court



not in our view render our death penalty unconstitutional as applied to SMI
defendants.

¶74           Hulsey compares SMI defendants to children who received
sentences of life without the possibility of parole and correctly argues that
the Supreme Court did not find consensus among jurisdictions in Graham
in order to invalidate life without the possibility of parole sentences for
those under the age of eighteen at the time of their non-homicide crimes.
See 560 U.S. at 62, 82 (holding sentences of life without the possibility of
parole for juvenile defendants unconstitutional despite a contrary view in
thirty-nine other jurisdictions). However, as the Court later pointed out in
Miller v. Alabama, “Roper and Graham establish that children are
constitutionally different from adults for purposes of sentencing.” 567 U.S.
460, 471 (2012) (“[F]indings . . . of transient rashness, proclivity for risk, and
inability to assess consequences . . . both lessened a child’s moral
culpability and enhanced the prospect that . . . his deficiencies will be
reformed.” (internal quotation marks omitted)). Importantly, the Court
found that those characteristics were not crime-specific and could weaken
the rationale for punishment and in turn create a disproportionate
punishment thereby violating the Eighth Amendment. Id. at 473. Here,
Hulsey was not a minor when his crimes occurred, and he has not shown
that those with SMI are like children with regard to moral culpability.

¶75           Additionally, in Kennedy, the Court clarified that objective
indicators of evolving standards were not dispositive and provide only a
relevant inquiry. 554 U.S. at 421. Instead, the Court focused on the
disproportionality between the crime, rape of a child not resulting in the
victim’s death, and capital punishment. Id. at 437–38. The Court
determined that the penalty would do little to further the retributive and
deterrent purposes because it did not balance the wrong to the victim or
create an incentive not to kill the victim. Id. at 442, 445. In Kennedy, the
Court distinguished between the proportionality of taking the life of a
human versus sparing one. Id. at 445–46. Because Hulsey did not spare
Officer Holly’s life, the reasoning in Kennedy is inapplicable. Furthermore,
Hulsey cannot show that his sentence is disproportionate to the crime of
intentionally killing a police officer who is acting in the line of duty; thus,
the sentence does not violate the Eighth Amendment.

                                       24
                              STATE V. HULSEY
                             Opinion of the Court



¶76           Hulsey also argues that juries cannot reliably evaluate those
with SMI. He asks us to extrapolate factors from Roper, Atkins, and Graham,
and apply them to those with SMI to conclude that the Eighth Amendment
categorically bars a death sentence for such defendants. Hulsey points to
six factors that cause special difficulties for sentencers in making reliable
decisions when dealing with a SMI defendant: those with SMI have
difficulty cooperating with lawyers, may make poor witnesses, and may
have distorted thought processes; their personalities may be misinterpreted
as being aggressive or unremorseful; the necessary expert testimony is often
complex; and the brutality of the crimes committed by SMI individuals may
prevent jurors from considering the SMI as a mitigating factor.

¶77            Hulsey presented evidence of his mental illness at trial, and
the jury was instructed that mitigating factors are “any factors that are a
basis for a life sentence instead of a death sentence.” This instruction is
consistent with Arizona law, which directs the trier of fact to “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.” A.R.S. § 13-751(G). Mental illness does not categorically bar a
defendant from receiving a death sentence because it does not render his
sentence grossly disproportionate to his crime, and there is no national
consensus “against executing persons with intellectual impairments short of
intellectual disability or insanity.” People v. Boyce, 330 P.3d 812, 852 (Cal.
2014) (emphasis in original); see also Carroll v. Sec’y, Fla. Dep’t of Corr., 574
F.3d 1354, 1370 (11th Cir. 2009); Lawrence v. State, 969 So. 2d 294, 300 n.9 (Fla.
2007); Lewis, 620 S.E.2d at 786. Instead, it is up to each juror to determine if
a defendant’s mental condition is a mitigating circumstance that warrants
leniency given the facts of the case. See State ex rel. Thomas v. Granville
(Baldwin), 211 Ariz. 468, 473 ¶¶ 18–21 (2005).

¶78           Hulsey was afforded an opportunity to present evidence of
his mental condition and other mitigating circumstances to the trier of fact
and he has not demonstrated that the jury failed to properly evaluate it.
Accordingly, Hulsey’s mental condition does not mean his sentence
violates the Eighth Amendment.



                                       25
                             STATE V. HULSEY
                            Opinion of the Court



       B. Admission of videotaped testimony in penalty phase and use
       by jury during deliberations

¶79          Hulsey presented to the jury videotaped statements from six
family members as part of his mitigation evidence. Hulsey then moved to
admit the tapes, but the State objected, stating that they would improperly
highlight certain testimony and avowing that, if the court admitted
Hulsey’s family tapes, the State would move to admit the victim impact
testimony. The trial court denied the motion without prejudice.

¶80          During deliberations, the jury asked to review Hulsey’s
family tapes. Likening the videos to trial testimony or a recording of the
testimony, the court concluded that they were not in evidence and would
improperly highlight evidence, and denied the request. The court offered
the defense an opportunity to make a further record on the issue, but the
offer was declined.

¶81           Hulsey claims his constitutional rights were violated by the
trial court denying admission of the video statements and preventing the
jury from reexamining them during deliberations. “This Court reviews the
admission of evidence in the penalty phase for an abuse of discretion.”
Burns, 237 Ariz. at 28 ¶ 127. When the defense fails to object, we review the
ruling for fundamental error. State v. Henderson, 210 Ariz. 561, 567–68
¶¶ 19–20 (2005).

              1. Admission of the tapes into evidence

¶82            Hulsey argues that the trial court improperly applied
evidentiary and statutory rules in not admitting the videotapes after
allowing them to be played at trial. He bases his claim on A.R.S. § 13-751(C),
which provides that “the defendant may present any information that is
relevant to any of the mitigating circumstances . . . regardless of its
admissibility under the rules governing admission of evidence at criminal
trials.” (emphasis added). But the trial court’s treatment of the evidence
carefully observed the statutory distinction between allowing a defendant
to present evidence at trial through the tapes and admitting the tapes into
evidence. The trial judge permitted Hulsey to “present [the] information,”

                                     26
                             STATE V. HULSEY
                            Opinion of the Court



and did so “regardless of” the court’s determination that the tapes were
inadmissible.

¶83            Hulsey next argues that the trial judge relied on inapplicable
rules of evidence and failed to exercise appropriate discretion in
determining the admissibility of the tapes. We note preliminarily that the
rules of evidence do not apply in the penalty phase. A.R.S. § 13-751(C);
State v. McGill, 213 Ariz. 147, 156 ¶ 40 (2006). Hulsey’s argument assumes
that the trial judge relied on and felt constrained by inapplicable rules of
evidence and that the judge failed to exercise discretion in ruling. Hulsey
has failed, however, to present any evidence to support his claims.

              2. Videotapes in jury deliberations

¶84          Having concluded that the trial court’s ruling denying
admission of the tapes was not an abuse of discretion, we next consider
whether the trial court’s refusal to allow the jury to re-watch the tapes
during deliberations was fundamental error. We conclude that it was not.

¶85           Arizona Rule of Criminal Procedure 22.3 gives trial courts
authority to allow jurors to have testimony repeated during deliberations.
But it does not require a judge to permit the jury to see requested evidence
or hear testimony, and in fact gives authority to deny such requests or
provide information to balance any information the judge determines is
appropriate for the jury to see. See Ariz. R. Crim. P. 22.3 (stating that judge
“may” recall the jury to have testimony read and may order reading of
other testimony to balance requested testimony). In denying permission
for the jury to again view the tapes during deliberations, the trial court
noted its concern that selecting certain evidence for review would
improperly highlight that evidence, a decision well within the trial court’s
discretion.

¶86          In State v. Chappell, the jury requested a transcript of the
defendant’s allocution. 225 Ariz. 229, 241–42 ¶¶ 51–52 (2010). The trial
court denied the request, emphasizing that the jury might be subject to
undue influence by the written statement. Id. at 242 ¶ 54. This reasoning
has been echoed in other decisions. See, e.g., State v. Jovenal, 117 Ariz. 441,

                                      27
                             STATE V. HULSEY
                            Opinion of the Court



443 (App. 1977) (citing cases showing fear of undue emphasis when partial
transcripts are given to jury). The tapes here are similar to the transcripts
in Chappell, and the trial court, having seen them, determined that they may
be given undue emphasis in deliberations, a conclusion we find no reason
to disturb.

¶87           Finally, Hulsey argues that because there were six tapes, it is
not likely that any one tape would be given undue influence. But the
inclusion of multiple tapes admitted in the aggregate for the same purpose
would only exacerbate the trial court’s concern of certain testimony being
highlighted. The trial court’s denial was not an abuse of discretion.

       C. Prosecutorial misconduct

¶88           Hulsey raises several prosecutorial misconduct claims. We
review a denial of a motion for mistrial based on cumulative prosecutorial
misconduct for an abuse of discretion. See State v. Lehr, 201 Ariz. 509, 522
¶ 56 (2002). We begin by assessing each claim of misconduct; we review
objected-to claims for harmless error and unobjected-to claims for
fundamental error. State v. Payne, 233 Ariz. 484, 511 ¶ 108 (2013); State v.
Roque, 213 Ariz. 193, 228 ¶ 154 (2006), overruled on other grounds by Escalante-
Orozco, 241 Ariz. at 267 ¶¶ 11–15. After determining which claims
constitute error, this Court reviews the cumulative misconduct to
determine whether the total effect rendered defendant’s trial unfair. Roque,
213 Ariz. at 228 ¶¶ 154–55.

¶89           To succeed in his claim, Hulsey must show that the
prosecutor’s actions amounted to misconduct and that there is a
“reasonable likelihood . . . that the misconduct could have affected the
jury’s verdict, thereby denying defendant a fair trial.” Anderson, 210 Ariz.
at 340–41 ¶ 45. Here, although prosecutor Juan Martinez engaged in
several instances of misconduct or near misconduct, altogether it was not
so prolonged or pronounced that it affected the fairness of trial. We address
these claims as they were presented.




                                      28
                             STATE V. HULSEY
                            Opinion of the Court



             1. Voir dire

                    a. Use of the word “debate”

¶90           Hulsey claims that the prosecutor committed misconduct
while questioning potential jurors by using the word “debate” to describe
proper juror interactions during deliberations. During voir dire, the court
sustained Hulsey’s objection and instructed the prosecutor to abstain from
using the specific word “debate,” instead replacing it with “discussion” in
further proceedings. Thereafter, the prosecution used the word twice, once
correcting himself. Both prospective jurors who heard the word were
ultimately put on the jury.

¶91           We agree with the trial court that the use of the word “debate”
did not constitute misconduct in this context.

                    b. Use of the word “bullied”

¶92           Hulsey also claims that the prosecution’s use of the word
“bullied” in front of Juror 123 to describe the defense counsel’s
rehabilitation of him was improper. This claim fails for multiple reasons:
the trial court sustained defense counsel’s objection to use of the word;
Juror 123 was ultimately and properly struck for cause; and the exchange
took place outside of the presence of any other potential jurors. There is no
likelihood of harm.

             2. Guilt phase

                    a. Cross-examination of Jaco Swanepoel

¶93            Hulsey claims that the prosecutor “talked over [a] witness
and refused to let him answer the questions,” and insinuated that the
witness was unethical. He claims that the prosecutor was yelling and
screaming at the witnesses and flailing his arms. At trial, the court
overruled defense counsel’s objections and stated that the prosecutor
simply had a “very animated style.” We cannot conclude from the record
that this assessment was incorrect.

                                     29
                             STATE V. HULSEY
                            Opinion of the Court



¶94          Hulsey also claims that throughout cross-examination, the
prosecutor asked a series of questions designed to mislead the jury into
believing a witness was testifying unethically, constituting improper
burden shifting. In ruling on the objection, the court found that there was
no evidence of unethical conduct and so instructed the jurors.

¶95            This Court gives great latitude to conclusions drawn by
judges who observe trial behavior first hand. State v. Hansen, 156 Ariz. 291,
297 (1988) (“[W]e note that the trial court is in a better position to judge
whether the prosecutor is unduly sarcastic, his tone of voice, facial
expressions, and their effect on the jury, if any.”). Hulsey has given this
Court no reason to overturn the trial court’s conclusion that the prosecutor’s
tone had no effect on the verdict. Additionally, although “[i]t is
improper . . . to imply unethical conduct on the part of an expert witness in
the absence of evidentiary support,” State v. Velazquez, 216 Ariz. 300, 311
¶ 48 (2007) (internal quotation marks omitted), any improper implication
of unethical conduct or burden shifting was remedied when the trial court
instructed the jurors that it “specifically found that this witness has not
violated any code of ethics as set forth in any document.”

                     b. Closing argument

                             i. Comments about defense witnesses

¶96           Hulsey claims that the prosecutor insinuated in his closing
argument that defense witness Paul Greene, who testified about the Shot
Spotter, was untruthful. The prosecutor discussed Mr. Greene’s candor and
encouraged the jurors to infer that his different styles of answering
corresponded with the varying truthfulness of his statements. The
prosecutor stated that Mr. Greene “is somebody that you really can’t trust.”

¶97           Counsel have wide latitude to argue reasonable inferences
from the evidence, but cannot make insinuations that have no evidentiary
support. See State v. Cornell, 179 Ariz. 314, 331 (1994). Here, the prosecutor’s
conduct was close to crossing the line, but the record did contain facts on
which he could fairly base his argument. See State v. Hughes, 193 Ariz. 72,
85–86 ¶ 59 (1998). The prosecutor highlighted his observations that Mr.

                                      30
                               STATE V. HULSEY
                              Opinion of the Court



Greene was sometimes less vocal during cross-examination than in direct
examination. From this, the prosecutor told the jurors that in order to assess
Greene’s credibility, they should consider the way he answered questions.
In context, the comments were not improper.

                              ii. Comments about defense counsel and
                              defense theory

¶98           Hulsey maintains that throughout the closing argument, the
prosecutor continued to imply that defense counsel was a liar and made
other personal attacks. During closing argument, the prosecution invoked
the story of Don Quixote and compared the defense’s theory to tilting at
windmills. He repeatedly analogized the defense’s evidence in the case to
the imaginary monsters in that story. He stated that the defense wanted the
jury to “[go] to Neverland” and enter the “Land of Oz.” Hulsey
unsuccessfully moved for mistrial based on the “unethical behavior.”

¶99             While commentary about the defense’s theory is common,
“[a]n argument that impugns the integrity or honesty of opposing counsel
is . . . improper.” Id. at 86 ¶ 59; see also State v. Lynch (Lynch II), 238 Ariz. 84,
96–97 ¶¶ 28–29 (2015) (illustrating improper commentary towards counsel
as suggesting defense counsel fabricated evidence), rev’d on other grounds,
Lynch III, 136 S. Ct. 1818 (2016); cf. State v. Amaya-Ruiz, 166 Ariz. 152, 171–
72 (1990) (no error where prosecutor referred to defense as “smoke screen”).
The prosecutor’s comments equating defense counsel to Don Quixote were
different from those discussing defense theories. The prosecution
impugned defense counsel’s integrity by suggesting he was purposely
leading the jury on a make-believe expedition. See Hughes, 193 Ariz. at 86
¶ 59. These improper statements, however, were brief and on this record
we cannot say that they affected the jury’s verdict, especially in light of the
instruction to the jury that counsel’s arguments are not evidence. See
Newell, 212 Ariz. at 403 ¶ 67.

¶100         Hulsey raises an additional unobjected-to-claim—that the
prosecution personally attacked defense counsel regarding a rhetorical
statement made by defense counsel about the attempted first degree
murder instruction. The prosecutor pointed out the peculiarity of defense

                                         31
                             STATE V. HULSEY
                            Opinion of the Court



counsel interjecting himself into his closing argument by stating that he did
not know what the instruction meant. The prosecution questioned the
relevance of such a statement. This exchange was not an improper attack
on defense counsel constituting fundamental error.

                             iii. Misstating the evidence

¶101           Hulsey argues that the prosecution misstated the law by
stating that “knowingly” was a lesser standard of proof than “intending.”
This objection was sustained, and the trial judge stated, “Let’s not call it
lesser. Let’s call it different.” Any misstatement was therefore cured.

¶102           Hulsey claims that the prosecutor misstated the evidence by
arguing that the recording of Officer Goitia’s initial report stated that he ran
into the middle of the street and began firing. There were three separate
accounts at issue in this portion of the argument. Here, the prosecutor was
“urg[ing] the jury to draw reasonable inferences from the evidence.” State
v. Bible, 175 Ariz. 549, 602 (1993). The trial court correctly overruled the
objection and stated that the “jury can decide who’s correct.”

¶103           Hulsey additionally argues that the prosecutor misstated
evidence by arguing that the experts indicated that the .40-caliber bullet
was not going to fragment. Hulsey is correct that the experts stated that
both bullets could fragment, but testimony showed that the .40-caliber bullet
was designed not to fragment, which differed specifically from the .357-
caliber bullet from Hulsey’s gun. Here, because the testimony showed that
the chances of the .357-caliber bullet not fragmenting were “exceptions,”
the prosecutor’s argument was not a misstatement of the evidence
constituting misconduct. See id. (prosecutor can urge jury to draw
reasonable inferences).

                             iv. Disparate theories

¶104           Hulsey argues that the prosecution presented “diametrically
opposed theories of the same evidence.” Hulsey claims that the prosecutor
first argued in the guilt phase that Officer Holly was shot at the back end of
the car, and then in the aggravation phase he placed Officer Holly at the

                                      32
                             STATE V. HULSEY
                            Opinion of the Court



front of the car so he could argue that Jones and Kostas were in the “zone
of danger,” thus qualifying for an additional aggravator. See A.R.S.
§ 13-751(F)(3).

¶105           During the guilt phase, the prosecution argued that Jones
testified that Officer Holly was standing near enough to the back-passenger
side of the car for Jones to hand him the temporary registration; the
prosecutor repeated that Officer Holly’s “body was found in the back of the
[car] facing westbound.” In the aggravation phase, the prosecutor stated
Officer Holly was “in the back of the [car],” and “[m]aybe [Officer Holly]
took a step or two but he was standing in the back of the [car] and went
down and fell face forward.” These are not diametrically opposed theories.

                            v. Improper vouching for Patsy Jones

¶106           Hulsey argues that the prosecutor improperly vouched for
Jones in his closing argument when he stated that she “told you how many
[rounds were fired]. Four rounds. Do you think she sat down and read the
police report? No, they don’t. She’s not privy to that. She didn’t make it
up. She’s somebody who heard it.” Hulsey argues that this statement
referred to matters outside the record and constituted improper vouching.

¶107          “Prosecutorial vouching occurs if, among other things, the
prosecutor suggests that information not presented to the jury supports the
evidence, testimony, or witness.” Payne, 233 Ariz. at 512 ¶ 109 (internal
quotation marks omitted). The prosecutor stating that Jones was not privy
to the police report was improper, but this comment gave at most de
minimis support for her testimony. Hulsey cannot establish fundamental
error because the trial court and counsel explained that the lawyers’
arguments were not evidence, see State v. Ramirez, 178 Ariz. 116, 127 (1994)
(presuming jurors follow court’s instructions), and he has not identified
how he was prejudiced by the improper vouching.

                            vi. Appealing to jurors’ passions

¶108          During his closing argument, the prosecutor stated that
Officer Holly “was the first to answer the call. It was the call to his death.”
Hulsey claims that this and the prosecutor’s recitation of the victim impact
                                     33
                             STATE V. HULSEY
                            Opinion of the Court



statement including Officer Holly’s father’s statement during the penalty
phase of visualizing his son’s “last agonizing moments” and his “[attempt]
to breathe” improperly appealed to jurors’ passions. Both claims fail.

¶109          Statements are improper if they (1) “call to the attention of the
jurors matters that they would not be justified in considering in
determining their verdict, and (2) [there is a high] probability that the
jurors, under the circumstances of the particular case, were influenced by
the remarks.” State v. Jones, 197 Ariz. 290, 305 ¶ 37 (2000) (citing Hansen,
156 Ariz. at 296–97).

¶110         Both claims were unobjected-to, and therefore to warrant
reversal must present fundamental error. Here, the “call to his death”
comment did not improperly appeal to the passions of the jury. The
statements were not outside of the matters to be considered by the jurors,
nor was there a high probability the jurors were influenced by the remarks.
No error occurred.

¶111          In Burns, 237 Ariz. at 30 ¶¶ 141–42, this Court cautioned
against piling up victim impact evidence for fear that it may cross the line.
There, however, the state presented more than a dozen victim impact
statements, some from people who never met the victim. Id. This Court
noted that brief remarks about visualizing a victim’s final moments were
not unduly prejudicial. Id. ¶ 141. Hulsey objects to statements from Officer
Holly’s mother and father that briefly mentioned the last moments of their
son’s life. Here the statements were not unduly prejudicial and no
fundamental error occurred.

                            vii. Statements about the traffic stop search

¶112          Hulsey claims that the following excerpt from the
prosecutor’s closing improperly commented on his refusal to consent to the
search.

       And so the police officer says you want me to search you -- I
       want to search you. We agree he says no. Clearly, he’s in
       control of the situation. He wasn’t scared, wasn’t going to say

                                      34
                             STATE V. HULSEY
                            Opinion of the Court



       no, didn’t have to say no. So it wasn’t a situation where he
       panicked or anything like that, no. When he asked may I
       search you, very calmly he said no, uh-huh. I am not going to
       let you do that. So that’s a calm individual. It’s not somebody
       who is so high on drugs, doesn’t know what’s going on. He
       knows what’s going on.

¶113          We need not decide whether the phrase “didn’t have to say
no” was improper because it was not argued as evidence of guilt. This
discussion solely addressed Hulsey’s demeanor at the traffic stop. The
prosecutor made no comment on his invocation of his Fourth Amendment
rights as evidence of guilt. Cf. State v. Stevens, 228 Ariz. 411, 414–15 ¶¶ 8–9
(App. 2012) (prosecutor referring to defendant’s refusal of search as a result
of concern about being arrested and because defendant had something to
hide). The prosecutor argued only that the refusal implied that Hulsey was
“calm” and “in control of the situation,” and not “scared” or “panicked.”
Hulsey was thus not prejudiced by the statement.

                            viii. Referring to evidence not admitted at trial

¶114          Hulsey also argues that the prosecutor committed error when
he referred to evidence not admitted at trial by stating that Hulsey
produced his brother’s driver’s license at the initial traffic stop. Attorneys
“are not permitted to introduce or comment upon evidence [that] has not
previously been offered and placed before the jury,” but the false
identification was discussed in testimony and already in evidence. State v.
Gonzales, 105 Ariz. 434, 437 (1970). To the extent that the reference to the
real Bradley Hulsey in the courtroom was error, its brevity and
inconsequential nature does not constitute fundamental error.

              3. Penalty phase

                     a. Duty of the jury argument

¶115        Hulsey claims that it was error for the prosecutor to quote
poet John Donne at the end of the penalty phase by proclaiming:


                                      35
                             STATE V. HULSEY
                            Opinion of the Court



       [E]very person’s death diminishes me, for I am involved in
       mankind. Therefore, send not to know for whom the bell
       tolls; it tolls for thee, and in this case, in light of the jury
       instructions and what has been presented, it tolls for each of
       you to do your duty and return a verdict of death.

Hulsey argues that this was an improper argument insinuating that it was
the jury’s duty to find death appropriate. It was error for the prosecutor to
suggest the jurors had a duty to find a death sentence appropriate. See
United States v. Young, 470 U.S. 1, 18 (1985) (telling the jury it must “do its
job” was error); see also Roque, 213 Ariz. at 224 ¶ 128 (misconduct exists
where “remarks called to the jurors’ attention matters that they should not
consider”). The context of the remark, however, was not of such magnitude
to influence the jurors and cause Hulsey prejudice. State v. Moody, 208 Ariz.
424, 460 ¶ 151 (2004) (improper remarks must influence the jury to be
reversible). The jurors were correctly instructed that they should consider
all mitigation evidence and should choose a life sentence if they found the
mitigation evidence sufficiently substantial to call for leniency. Baldwin, 211
Ariz. at 473 ¶ 21 (“[T]he determination whether mitigation is sufficiently
substantial to warrant leniency . . . is a sentencing decision to be made by
each juror . . . .”).

                     b. Cross-examination of penalty phase experts

¶116          Hulsey contends that “loud verbose witness attacks began in
earnest” as the prosecutor cut off answers and raised his voice at Dr. John
J. Wicks, a psychologist who testified regarding Hulsey’s mental
abnormalities. Hulsey objected and the trial court overruled, stating that it
was just the prosecutor’s style. Hulsey also notes that the trial court
sustained objections regarding the prosecutor’s tone in both Dr. Albert
Globus’ and Dr. Mark Cunningham’s testimony, warning the prosecutor to
“keep the tone.” Hulsey further states that the trial court “admonished [the
prosecutor] to not be disrespectful” in his cross-examination with the
prison expert, James Aiken.

¶117          The trial court observed that the prosecutor’s tone was
consistent for all witnesses and that there was no misconduct. As stated

                                      36
                             STATE V. HULSEY
                            Opinion of the Court



above, see supra ¶¶ 93–95, the trial court is in the best position to gauge
whether a counsel’s tone crosses the line into misconduct. Here, Hulsey
has given us no reason to disturb the court’s finding.

                     c. Misstatement of the law

¶118          Hulsey argues that the prosecutor misstated the law when he
argued that the jury should not consider whether the defendant was high
at the time of the shooting because there must be a nexus between the
mitigation and the crime. The trial court overruled the objection and stated
that the jury could determine what the instructions say and the defense
could point that out in rebuttal.

¶119          This misstatement of law was improper. See Anderson, 210
Ariz. at 349 ¶ 93 (“[The] jury cannot be prevented from giving effect to
mitigating evidence solely because the evidence has no causal ‘nexus’ to a
defendant’s crimes.” (citing Tennard v. Dretke, 542 U.S. 274, 282–87 (2004))).
However, the trial court instructed the jurors that they were not required to
find a connection between the mitigating circumstance and the crime in
order to consider the evidence. Further, defense counsel explained in
rebuttal that there was no need for a nexus between mitigation and the
crime. Defense counsel also argued to the jury that the prosecutor was
ignoring the instructions and asking the jury to ignore them as well. Any
error here was cured. See State v. Patterson, 230 Ariz. 270, 276 ¶ 25 (2012)
(noting court instructions may help cure error resulting from prosecutor’s
misstatement of law).

                     d. Liar remarks

¶120        Hulsey claims that the prosecution argued over objection that
both defense counsel and defense expert, Dr. Wicks, lied to the jury
regarding Hulsey’s IQ. Referring to Dr. Wicks, the prosecutor stated:

       He lied. He’s a doctor and he is a psychologist and he’s board
       certified. Give him all that. Put him on the pulpit, but that
       hero has clay feet. That guy came in here, looked you -- and
       remember how he looked at you when he was doing direct

                                       37
                             STATE V. HULSEY
                            Opinion of the Court



       examination, looked you right in the eye and lied.

After the objection was overruled, the prosecutor explained that the expert
misstated what tests he ran and that he “made up a number.”

¶121           The record generally shows that the prosecutor would not let
Dr. Wicks explain his reasons for picking a prorated number and why he
would have “made up a number.” The prosecution accurately argued that
Dr. Wicks “did all these tests and didn’t report them,” but incorrectly stated
that Dr. Wicks lied by stating that he completed the two-phase test. To the
extent that the prosecutor insinuated that Dr. Wicks acted unethically, it
was improper; and any insinuation that the time constraints were Dr.
Wicks’ fault was also improper. But any effect this may have had on the
jury subsided on redirect, when defense counsel gave Dr. Wicks an
opportunity to explain any inconsistencies. Dr. Wicks told the jury he had
to prorate the score of one of the tests because he was running out of time
and discussed standard protocol. Moreover, the trial court instructed the
jury that the arguments of counsel were not evidence.

              4. Cumulative error

¶122          Hulsey claims that the prosecutor’s “repeated and pervasive
attacks on defense witnesses; improper questions and jury arguments were
intentional and calculated to ‘win-by-any-means.’” Cf. State v. Jorgenson,
198 Ariz. 390, 390–91 ¶ 2 (2000). Hulsey contends there is a reasonable
likelihood that the misconduct tainted the verdict. See id. When assessing
cumulative error, this Court “consider[s] whether persistent and pervasive
misconduct occurred and whether the cumulative effect of the incidents
shows that the prosecutor intentionally engaged in improper conduct and
did so with indifference, if not specific intent, to prejudice the defendant.”
Lynch II, 238 Ariz. at 100 ¶ 51.

¶123         Here, the lack of respect, poor courtroom decorum, and
unnecessary verbal attacks on defense counsel and experts were
unbecoming of an Arizona prosecutor, especially one with as much
experience as Mr. Martinez. By engaging in such conduct, a prosecutor
places a case in serious danger of mistrial. However, “[w]e do not . . .

                                     38
                              STATE V. HULSEY
                             Opinion of the Court



reverse convictions merely to punish a prosecutor’s misdeeds []or to deter
future misconduct.” Moody, 208 Ariz. at 460 ¶ 162. We do, though, once
again remind prosecutors, and particularly Mr. Martinez (whose
misbehavior has been repeatedly noted in prior cases), that they are to act
as ministers of justice and exercise professionalism even in the heat of trial.
See Ariz. R. Sup. Ct. 42, Ethical Rule 3.8 cmt 1. Nonetheless, Hulsey has
failed to show that the actual misconduct in this case so permeated and
infected his trial as to render it unfair. See Payne, 233 Ariz. at 515 ¶ 134. The
court’s instructions to the jury helped mitigate any impact the cumulative
misconduct had. Hulsey thus failed to show that cumulative error denied
him due process. See generally Hughes, 193 Ariz. at 79 ¶ 26.

       D. Simmons error

¶124           The preliminary aggravation phase instructions introduced
the sentencing process to the jury, outlining the jury’s general
responsibilities in both the aggravation and penalty phases.               The
instructions specified that if the jury found a life sentence appropriate, the
judge would then sentence the defendant “to either life imprisonment
without the possibility of release from prison, or life imprisonment with the
possibility of release after 25 years.” The instruction that contemplated
release for Hulsey was stated three times in the opening aggravation phase
instructions. Hulsey objected to the preliminary instruction, claiming that
the instruction incorrectly stated the law and implied to the jury an illusory
potential for release and that the error was prejudicial because it improperly
preconditioned the jury to impose a death sentence. Hulsey objected to the
instructions and asked to delete the paragraphs that mentioned the
“possibility of release.”

¶125         At oral argument on the objection, Hulsey explained that
because the aggravation instruction discussed potential penalties, he
intended to rebut the possibility of release in Arizona. The trial court
denied the request, finding it an inappropriate discussion for the
aggravation phase. The court noted that the subject could arise in the
penalty phase, and the request could be revisited then.

¶126          At the penalty phase, which began less than two weeks after

                                       39
                              STATE V. HULSEY
                             Opinion of the Court



the aggravation phase concluded, the trial court’s proposed instructions
indicated that the jury would determine whether Hulsey should be
“sentenced to life imprisonment or death.” Hulsey did not object to this
instruction but did maintain his objections from the aggravation phase.

¶127            In setting the penalty phase instructions, the trial court
“forecast[ed]” that Hulsey might request to discuss his parole ineligibility
and ruled that parole ineligibility was not an appropriate subject for
mitigation. The court granted the State’s request that the issue not be
discussed. Hulsey did not request a Simmons instruction or argue parole
eligibility further. See Simmons v. South Carolina, 512 U.S. 154, 160 (1994).

¶128            Hulsey contends that the trial court’s refusal to permit the
jury to consider his parole ineligibility was error under Simmons. In
Simmons, the United States Supreme Court held that when the defendant’s
future dangerousness is at issue, the jury cannot be presented with the
“false choice between sentencing petitioner to death and sentencing him to
a limited period of incarceration,” and thus must be informed of parole
ineligibility. Id. at 161. In Arizona, parole is only available for juveniles and
defendants who committed an offense before January 1, 1994. See A.R.S.
§ 41-1604.09. Because Hulsey’s offense occurred after 1994, he was not
eligible for parole. Simply because Arizona chooses to use the term release
as opposed to parole does not “[diminish] a capital defendant’s right to
inform a jury of his parole [or release] ineligibility.” Lynch III, 136 S. Ct. at
1819. We hold that the trial court’s order precluding discussion of parole
ineligibility was error and not harmless.

              1. Future dangerousness

¶129          The State argues that Simmons is inapplicable because the
State did not put Hulsey’s future dangerousness at issue. We disagree. The
prosecutor need not explicitly raise future dangerousness for it to be at
issue. See Escalante-Orozco, 241 Ariz. at 286 ¶¶ 123–24. “Evidence of future
dangerousness under Simmons is evidence with a tendency to prove
dangerousness in the future; its relevance to that point does not disappear
merely because it might support other inferences or be described in other
terms.” Kelly v. South Carolina, 534 U.S. 246, 254 (2002).

                                       40
                             STATE V. HULSEY
                            Opinion of the Court



¶130          During the penalty phase, the prosecutor discussed Hulsey’s
proclivity throughout his life to get into fights, stating, “He just gets angry
and wants to beat people up, whether he is high or not,” and, “If you don’t
agree with him, he will explode.” The prosecutor recounted testimony that
Hulsey “likes to see when you put a firecracker in a cat’s anus just so you
can see the entrails flow out as the cat dies. That’s what he said. That’s
what he likes to see.” The prosecutor repeatedly mentioned how an expert
who contacted Hulsey was afraid of him and felt threatened.

¶131          The prosecution also elicited testimony that when previously
incarcerated, Hulsey had choked a fellow inmate and threatened the inmate
and other inmates who saw the incident. In one incident report, an inmate
claimed Hulsey told him, “if anybody opens their mouth or says anything
about it, everybody knows what will happen.” In his penalty phase closing
remarks, the prosecutor reminded the jury that Hulsey is an individual
“who when things don’t go his way, well -- or somebody disagrees with
him, there’s problems; there is a consequence.” Thus, Hulsey’s future
dangerousness was squarely at issue.

¶132           The State urges this Court to follow jurisdictions that
conclude that to trigger Simmons, the prosecutor must present specific
evidence of future dangerousness and argue it. See, e.g., Baumhammers, 960
A.2d at 91 n.23. But the Supreme Court has held that future dangerousness
is raised if the evidence suggests it; the prosecutor need not argue it. See
Kelly, 534 U.S. at 253–54 (“A jury hearing evidence of a defendant’s
demonstrated propensity for violence reasonably will conclude that he
presents a risk of violent behavior, whether locked up or free, and whether
free as a fugitive or as a parolee.”). Here, the prosecution repeatedly
referred to Hulsey’s dangerous proclivities, which was more than ample to
trigger Simmons.

              2. Objection and request

¶133          The State contends that Simmons is inapplicable because
Hulsey did not ask to inform the jury regarding his parole ineligibility
during the penalty phase. In Shafer v. South Carolina, the Court stressed that
“[i]t is only when the jury endeavors the moral judgment whether to

                                      41
                              STATE V. HULSEY
                             Opinion of the Court



impose the death penalty that parole eligibility may become critical.” 532
U.S. 36, 51 (2001). The Court explained that when the jury is determining
the existence of an aggravator, there is no sentencing discretion and no
“false choice[s] to guard against.” Id. (internal quotation marks omitted).
In doing so, the Court pronounced that “only at . . . a stage at which . . .
provides no third choice” does Simmons come into play. Id. Although the
Simmons objection was initially raised prematurely in the aggravation
phase (albeit when the harmful and erroneous instructions were given), the
objection was preserved and preemptively rejected in the penalty phase.

¶134           As noted above, an improper instruction mentioning the
possibility of release was given three times at the start of the aggravation
phase. Although the purpose of the instruction was to outline the
sentencing procedure generally, the instruction nevertheless discussed the
jury’s sentencing discretion at a moment “where as a legal matter, there
[was] no possibility of parole.” Shafer, 532 U.S. at 51 (quoting Ramdass v.
Angelone, 530 U.S. 156, 169 (2000)). Critically, at that point, Hulsey
requested to inform the jury about his parole ineligibility. He argued that
his defense would be “hamstr[ung]” if the jury were instructed about the
possible penalties without also receiving an explanation of those penalties.
Hulsey maintained those objections through the penalty phase.

¶135           The court overruled the objections. The prosecutor treated
the issue as already having been resolved: “[T]here was an issue that was
raised that [defense counsel was] going to talk about the 25-to-life issue. I
think that’s already been put to rest, so I would like an order indicating that
those issues are not to be discussed.”

¶136            Although a trial court generally may refuse to instruct the jury
on parole ineligibility before the penalty phase, see Shafer, 532 U.S. at 50, the
trial court erred here. During the aggravation phase, the trial court
instructed the jury, over Hulsey’s objection, that a life sentence might leave
him eligible for release, and refused to allow Hulsey to discuss his parole
ineligibility. During the penalty phase, the trial court reaffirmed its earlier
ruling, and anticipated and preemptively rejected Hulsey’s further
objection. Referencing Hulsey’s earlier objection and request makes clear
that the trial court understood Hulsey’s objections to be a Simmons request.

                                       42
                             STATE V. HULSEY
                            Opinion of the Court



See State v. Fulminante, 193 Ariz. 485, 503 ¶ 64 (1999) (“An objection is
sufficiently made if it provides the judge with an opportunity to provide a
remedy.”). Where future dangerousness is at issue, “the actual duration of
the defendant’s prison sentence is indisputably relevant,” Simmons, 512 U.S.
at 163, so Hulsey should have been permitted to argue that he would never
be released from prison.

¶137          We also reject the suggestion that the jurors were unaware of
the possibility of release—and therefore were not confronted with a false
choice—because the judge did not repeat the “release” sentencing option
during the penalty phase. The aggravation phase instructions provided
that in the event the jurors chose life, the judge would then “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.” That instruction was given three times. The penalty phase
instructions outlined the jury’s options as life imprisonment or death,
without redefining what life imprisonment meant. The impression that
Hulsey “could be released on parole if he were not executed” was created
by the court in the aggravation phase and was never rectified. Simmons, 512
U.S. at 161. Because this misperception was never cured or contradicted,
its impact carried over to the penalty phase. See generally State v. Prince, 226
Ariz. 516, 537 ¶ 80 (2011) (“Jurors are presumed to follow jury
instructions.”).

¶138           Contrary to the State’s assertion, our conclusion does not give
rise to the “functional approach” to Simmons decried in Ramdass. 530 U.S.
at 169 (rejecting an expansion of Simmons’ application where “possibilities
are many, the certainties few”). The jury’s lack of an accurate parole
eligibility instruction was not a result of Hulsey’s inaction; rather, the
opportunity for such an instruction was foreclosed by the trial court after
analysis of the pending request. Cf. Townes v. Murray, 68 F.3d 840, 850 (4th
Cir. 1995) (defining defendant’s right under Simmons as “one of
opportunity, not of result”). We therefore hold that Hulsey did not waive
his right to inform the jury about his parole ineligibility.

¶139         The State further claims that after the trial court denied the
opportunity to discuss parole ineligibility during the aggravation phase,

                                      43
                             STATE V. HULSEY
                            Opinion of the Court



Hulsey affirmatively decided against requesting a Simmons instruction
during the penalty phase. But this misapprehends the conversation
between court and defense counsel. The context makes clear that Hulsey’s
counsel was disclaiming any intention of mentioning to the jury problems
that occurred in a recent execution as a basis for mercy in sentencing.
Counsel did not forego arguing that Hulsey would not be eligible for
parole.

¶140            The State also contends that Hulsey did not intend to discuss
parole ineligibility. But his actions at trial show otherwise. At the
aggravation phase, Hulsey clearly expressed his intent to explain his parole
ineligibility: “[I]t is my intention to comment that [release is] simply not
possible in Arizona.” Additionally, Hulsey submitted his penalty phase
objections without waiving his prior aggravation phase objections. He also
filed a motion in limine to preclude the State from injecting future
dangerousness into the penalty phase, arguing that it was improper
rebuttal and a due process violation. After the trial court explained it would
likely deny the motion, Hulsey responded that the United States Supreme
Court overturned a sentence because the state “[could] get into that stuff
and [the trial court] did not allow the defense to present the mitigation.”
See Skipper v. South Carolina, 476 U.S. 1, 5 (1986); see also Simmons, 512 U.S.
at 164 (holding Simmons, like Skipper, “was prevented from rebutting
information that the sentencing authority considered”). The record shows
no indication that Hulsey waived the objection or wanted future
dangerousness to go unrebutted.

              3. Harmless error review

¶141            As in State v. Rushing and Escalante-Orozco, this Court need
not consider whether Simmons error could ever be harmless because the
State has failed to prove “beyond a reasonable doubt that the error did not
contribute to or affect the verdict or sentence.” State v. Rushing, 243 Ariz.
212, 222 ¶ 42 (2017); Escalante-Orozco, 241 Ariz. at 286 ¶ 126; Henderson, 210
Ariz. at 567 ¶ 18. The State argues that the error was harmless because (1)
the powerful evidence supporting aggravation was far more impactful than
the instruction, and (2) the jury was adequately informed of Hulsey’s parole
ineligibility through counsel’s arguments. The State has not met its burden

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                              STATE V. HULSEY
                             Opinion of the Court



of proving harmlessness beyond a reasonable doubt. Escalante-Orozco, 241
Ariz. at 286 ¶ 126; see also State v. Valverde, 220 Ariz. 582, 585 ¶ 11 (2009) (“A
reviewing court will affirm a conviction despite the error if it is harmless,
that is, if the state, in light of all of the evidence, can establish beyond a
reasonable doubt that the error did not contribute to or affect the verdict.”
(internal quotation marks omitted)).

¶142           The jury found two aggravators. But the first aggravating
factor, killing an on duty officer, was an element of the crime itself; that is,
killing an officer in the line of duty. Every defendant convicted of that
crime will be subject to the aggravating factor, whether or not charged. The
second aggravating factor, conviction for the attempted murder of Officer
Goitia, arose out of the gunfire that resulted in the death of Officer Holly,
and that conviction was then used as an (F)(2) aggravating factor. Hulsey
presented considerable mitigation evidence including testimony regarding
his mental illness and testimony from six family members. The jurors
carefully considered the mitigation, as shown from the jurors’ request to see
the mitigation tapes again and the fact that it took the jurors a total of eight
hours, over the course of more than four days, to reach a death verdict. The
jurors would have also been aware of Hulsey’s relative youth. He was
thirty-three years old at the time of the offense and his second count had a
presumptive 10.5-year sentence. This may have caused some jurors to fear
that he might be released from prison someday.

¶143           Additionally, although Hulsey’s attorney suggested during
closing argument that there was no option for parole, his argument was not
sufficient to dispel Simmons error in the face of the trial court’s erroneous
instructions in the aggravation phase regarding possible future release. In
Shafer, the United States Supreme Court found unpersuasive the state’s
argument that counsel’s closing pleas cured the Simmons error. 532 U.S. at
52; see also Kelly, 534 U.S. at 257 (finding counsel’s curative statements
inadequate to “convey a clear understanding” of parole ineligibility). Like
the arguments made by Hulsey’s counsel, Shafer’s defense counsel argued
that the defendant will “die in prison” after “spend[ing] his natural life
there.” Shafer, 532 U.S. at 52. But unlike the case here, the trial court in
Shafer also instructed the jury that “life imprisonment means until the death
of the defendant.” Id. As in Shafer, counsel’s statements that Hulsey will

                                       45
                             STATE V. HULSEY
                            Opinion of the Court



die in prison did not adequately inform the jury that parole is no longer
available to adult felons in Arizona. Jurors must be correctly informed of
the controlling law by the court.

¶144          For the reasons set forth above, the State placed Hulsey’s
future dangerousness at issue, and the trial court erred by denying Hulsey
an opportunity to inform the jury of his parole ineligibility. See Simmons,
512 U.S. at 168–69, 178. Even if we assume the error is subject to harmless
error review, the State failed to prove beyond a reasonable doubt that the
error did not contribute to the death verdict. The error was not harmless.
See Henderson, 210 Ariz. at 567 ¶ 18. Due process therefore dictates Hulsey
receive a new penalty phase trial.

       E. Abuse of discretion review

¶145           Hulsey argues that the jury abused its discretion in imposing
the death sentence because (1) “these two crimes [i.e., the murder of Officer
Holly and attempted murder of Officer Goitia] are what make up the only
aggravating circumstances under A.R.S. § 13-751(F)(2), (10)”; and (2) the
“mitigation was substantial and unrebutted by the State.” This Court
reviews all findings made in aggravation and the resulting death sentences
for abuse of discretion, A.R.S. § 13-756(A), viewing the facts in the light
most favorable to upholding the verdict. State v. Gallardo, 225 Ariz. 560, 565
¶ 15 (2010).

¶146           As stated above, Hulsey’s first argument fails because there
exists no prohibition of a crime, or crimes, concurrently constituting
elements of the crime and qualifying aggravating factors. See supra ¶¶ 65–
66; see also Burns, 237 Ariz. at 23 ¶ 88 (holding circumstances of crime at
issue may concurrently be used as aggravators); Goudeau, 239 Ariz. at 470
¶ 220 (holding (F)(2) aggravator found through “contemporaneously
committed predicate crime supporting” conviction at issue constitutional).
In addition, the jury properly found (F)(2) proven based on its own finding
of guilt for the attempted first degree murder of Officer Goitia. Finally, it is
uncontroverted that Officer Holly was an on duty peace officer at the time
he was killed. See A.R.S. § 13-751(F)(10).


                                      46
                            STATE V. HULSEY
                           Opinion of the Court



¶147           As to Hulsey’s substantial mitigation argument, even if we
assume that each juror accepted all of the mitigating factors identified by
Hulsey, a juror could reasonably have concluded they were not sufficiently
substantial to warrant leniency. Hulsey presented substantial mitigation
evidence including evidence of mental illness and brain damage, his early
childhood in a dysfunctional home, his father’s drug use, the transfer of
guardianship to his cruel grandmother, then a transfer to his father’s strict
household where Hulsey was physically abused. Multiple family members
also testified, and Hulsey presented evidence about his ability to function
in a structured prison environment. In response, the State in closing
questioned whether Hulsey’s difficult childhood was still having an effect
on him, as he was thirty-three when he shot Officer Holly. The prosecutor
reminded the jury about Hulsey’s past instances of violence, rebutted his
evidence of good behavior in prison, and stated that his mental tests
showed he had an above-average IQ.

¶148          Hulsey pulled a gun, aimed, and fired on two officers during
a routine traffic stop. His actions were unprovoked. A reasonable juror
could have concluded that the mitigation was not sufficiently substantial to
call for leniency. See Escalante-Orozco, 241 Ariz. at 294–95 ¶¶ 183–84
(finding defendant’s familial issues inadequate to warrant leniency). The
sentence was not an abuse of discretion, and therefore Hulsey is eligible for
the death penalty on remand.

      F. Other constitutional claims

¶149          Hulsey lists twenty-six other constitutional claims, which he
concedes have previously been rejected by this Court, but nonetheless
wishes to raise to preserve for federal review. We decline to revisit them.

                              CONCLUSION

¶150         We affirm Hulsey’s convictions of first degree murder and his
prison sentence for his attempted murder conviction. In light of the United
States Supreme Court’s decision in Lynch III, we vacate the death sentence
and remand for a new penalty phase trial.


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