                                IN THE

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

                                   v.

                    CHRISTOPHER MATHEW PAYNE,
                             Appellant.

                           No. CR-09-0081-AP
                        Filed November 21, 2013

            Appeal from the Superior Court in Pima County
                The Honorable Richard S. Fields, Judge
                          No. CR20070973
                             AFFIRMED


COUNSEL:

Thomas C. Horne, Arizona Attorney General, Kent E. Cattani (argued),
former Chief Counsel, Criminal Appeals/Capital Litigation, Jeffrey A.
Zick, Chief Counsel, Criminal Appeals/Capital Litigation, Amy Pignatella
Cain, Assistant Attorney General, Tucson, for State of Arizona

Lori J. Lefferts, Pima County Public Defender, Robert J. Hirsh, former
Pima County Public Defender, Frank P. Leto (argued), Deputy Public
Defender, Kristine Maish, Deputy Public Defender, Tucson, for
Christopher Mathew Payne

CHIEF JUSTICE BERCH authored the amended opinion of the Court, in
which JUSTICE PELANDER, JUSTICE BRUTINEL, and JUSTICE TIMMER
joined, and VICE CHIEF JUSTICE BALES concurred in part and dissented
in part.
                          STATE V. PAYNE
                     Amended Opinion of the Court

CHIEF JUSTICE BERCH, amended opinion of the Court:

¶1            Christopher Mathew Payne was convicted of two counts of
first degree murder, three counts of child abuse, and two counts of
concealing a dead body, and was sentenced to death for each murder. We
have jurisdiction of this automatic appeal pursuant to Article 6, Section
5(3) of the Arizona Constitution and A.R.S. § 13-4031.

         I. FACTUAL AND PROCEDURAL BACKGROUND1

¶2             Christopher Mathew Payne and his girlfriend, Reina
Gonzales, starved and abused Payne’s children, Ariana, age 3, and Tyler,
age 4, until they died.

¶3            Payne left Ariana and Tyler with Gonzales while he worked,
first driving for a medical transportation company and later selling
heroin. Gonzales called Payne at work several times a day to complain
about the children, even purportedly threatening to kill them if Payne did
not make them behave.

¶4            Payne began punishing Ariana and Tyler by locking them in
a closet while he was away. By late June 2006, the children were kept in
the closet permanently. Payne initially fed them sandwiches once a day,
but after about a month, he stopped feeding them at all. Payne checked
on the children perhaps once a day, but he did not bathe them or let them
out to use the bathroom or get fresh air.

¶5          Sometime in August 2006, Payne discovered that Ariana had
died. He nonetheless left her in the closet with Tyler, who was still alive.
The next day, Payne stuffed Ariana’s body into a duffel bag, which he
eventually put back in the closet with Tyler. Payne found Tyler dead
approximately one week later.



1       “We view the facts in the light most favorable to sustaining the
verdict.” State v. Dann (Dann I), 205 Ariz. 557, 562 ¶ 2, 74 P.3d 231, 236
(2003).




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                      Amended Opinion of the Court

¶6           In mid-September, Payne put the children’s bodies in a blue
tote box, which he placed in a rented storage unit. After Payne failed to
pay the rental fee, staff opened the unit. They found only the tote inside,
which they said smelled “really bad,” so they threw it in a dumpster. A
staff member became concerned about the smell and called the police two
days later.

¶7           The police found Ariana’s partially decomposed body inside
the tote. She had twelve broken ribs, a broken spine, and a broken
shoulder. After finding Ariana’s body, the police did not search the
dumpster further. The investigation led police to Payne and Gonzales,
whom they located at a motel. The officers asked Payne to accompany
them to the station to answer questions, but he refused to go without his
attorney. They then arrested him on an unrelated warrant.

¶8            At the station, Payne confessed to not obtaining help for the
children and allowing them to die in his care. Police never found Tyler’s
body. In searching Payne’s former apartment, police found blood on the
walls inside the closet, an opening in the closet wall stuffed with feces and
human hair, and several patches of body fluids on the carpet.

¶9            The State charged Payne and Gonzales with first degree
murder and other crimes. In exchange for testifying, the State allowed
Gonzales to plead guilty to two counts of second degree murder, for
which she was given concurrent 22-year prison sentences. The jury found
Payne guilty of three counts of child abuse, two counts of concealing a
dead body, and two counts of first degree murder. The jury also found
three aggravating factors: especial cruelty, heinousness, or depravity,
A.R.S. § 13-751(F)(6); multiple homicides, id. § 13-751(F)(8); and young age
of the victims, id. § 13-751(F)(9). This automatic appeal followed the
imposition of death sentences for the two murders.




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                           STATE V. PAYNE
                      Amended Opinion of the Court

                            II. DISCUSSION2

      A.     Jury Selection

¶10            The Sixth Amendment to the United States Constitution
entitles a defendant to an impartial jury. State v. Velazquez, 216 Ariz. 300,
306 ¶ 14, 166 P.3d 91, 97 (2007). Payne argues that the trial court erred by
dismissing some jurors improperly and failing to dismiss others.

             1.      Juror 49

¶11           Based on Juror 49’s responses to the juror questionnaire, the
trial court excused that juror because serving on the jury would interfere
with her school schedule. Prospective jurors “shall” be excused if serving
on a jury would cause “undue or extreme physical or financial hardship,”
A.R.S. § 21-202(B)(4), or “undue or extreme hardship under the
circumstances,” id. § 21-202(B)(6). Payne initially expressed concern about
dismissing Juror 49 “without more questioning,” but did not object to her
dismissal after the court explained the reasons for dismissing her. We
thus review the decision to strike Juror 49 for fundamental error. See State
v. Moody, 208 Ariz. 424, 449-50 ¶ 85, 94 P.3d 1119, 1144-45 (2004); State v.
Cañez (Cañez I), 202 Ariz. 133, 147 ¶ 30, 42 P.3d 564, 578 (2002).

¶12           In her questionnaire, Juror 49 said that service would pose a
substantial hardship because she was a student and had classes on trial
days. Payne claims there was discriminatory intent in her dismissal, but
points to no evidence of such intent. Given the student’s school-related
conflict and lack of evidence of discriminatory intent, the judge did not
commit fundamental error by excusing her.



2      Payne cites state and federal constitutional provisions and raises
several claims in passing without developing arguments. We consider
issues not argued to be waived and therefore do not address them. See
Ariz. R. Crim. P. 31.13(c)(1)(vi) (requiring appellate briefs to “contain the
contentions . . . with respect to the issues presented, and the reasons
therefor”).




                                     4
                           STATE V. PAYNE
                      Amended Opinion of the Court

             2.      Juror 74

¶13            The trial court dismissed Juror 74 for cause based on
hardship and her opposition to the death penalty.                  Juror 74’s
questionnaire stated that she belonged to a group advocating the abolition
of the death penalty, would never vote to impose it under any
circumstances, and was personally, morally, or religiously opposed to
capital punishment. She also indicated that serving would cause undue
hardship because she planned to accompany her elderly parents to the
east coast twice during the scheduled trial period. Over Payne’s objection,
the trial court dismissed the juror without affording Payne an opportunity
to rehabilitate her. We review this ruling for an abuse of discretion. See
State v. Dann (Dann III), 220 Ariz. 351, 362 ¶ 35, 207 P.3d 604, 615 (2009).

¶14           A week after dismissing Juror 74, the court informed counsel
that it wanted to bring her in for questioning in light of State v. Anderson
(Anderson I), 197 Ariz. 314, 324 ¶ 23, 4 P.3d 369, 379 (2000). The court
arranged a conference call with Juror 74. She was not under oath for the
call, which occurred while she was in an Alabama airport between flights.
When asked if she could set aside her feelings about the death penalty, she
responded, “I cannot, I cannot participate in a process that allows the State
to initiate death.” She reiterated this view several times in response to
questions from the court and counsel. She also affirmed that she planned
to be out of town twice during trial to accompany her parents while they
traveled. She had also accepted a job in Florida after being dismissed
from the jury panel. Over Payne’s objection, the court again dismissed
Juror 74.

¶15           A prospective juror who will automatically vote for or
against the death penalty or will suffer a hardship may be removed for
cause. A.R.S. § 21-202(B)(4)(c); State v. Speer, 221 Ariz. 449, 454-55 ¶ 23,
212 P.3d 787, 792-93 (2009). We find no error in the court’s dismissal.

¶16           Despite Juror 74’s seemingly settled position on the death
penalty and her travel plans, the trial court erred by failing to afford
Payne an opportunity to rehabilitate her under oath. See Ariz. R. Crim. P.
18.5(d) (providing that upon request, the court “shall permit that party a
reasonable time to conduct a further oral examination of the prospective




                                     5
                          STATE V. PAYNE
                     Amended Opinion of the Court

jurors”). Although defense counsel was able to ask rehabilitating
questions during the telephonic conference, Juror 74 was not then under
oath. Citing Anderson I, Payne argues that this constituted fundamental or
structural error.

¶17           But while Anderson I found the dismissal of jurors without
adequate questioning to be structural error, the jurors there had expressed
only equivocal objections to the death penalty and the defendant was not
afforded any opportunity to rehabilitate them. 197 Ariz. at 319 ¶ 10, 324
¶ 23, 4 P.3d at 374, 379. Here, in contrast, defense counsel was permitted
to telephonically question the single juror who stated her unequivocal
opposition to the death penalty.

¶18           Juror 74’s objections to the death penalty remained definite
and unshakable, and her telephonic responses remained consistent with
those on her questionnaire. That questionnaire states that the responses
“have the effect of a statement given to the Court under oath.” Given
these circumstances, the error was not fundamental or structural, nor did
it prejudice Payne.

             3.     Juror 146

¶19           Payne argues that the trial court erred by dismissing Juror
146 for cause based on her objections to the death penalty because, in
response to another question, she indicated that she could follow the law.
Juror 146’s questionnaire indicated that she was personally, morally, or
religiously opposed to the death penalty and would never vote for it
under any circumstances. She also stated that she could not vote for a
death sentence even if she felt it appropriate after hearing the evidence,
instructions, and deliberating. Yet in response to other questions, she
indicated that she would follow instructions and keep an open mind
regarding aggravating and mitigating circumstances.

¶20           After the process was explained, she said, “I cannot be
responsible for putting a person to death even if they met [the]
qualifications.” When asked if she could vote to impose death if the law
required, she said that she would follow instructions, but would not like it
and would not “be okay with it emotionally.” The judge noted that while




                                     6
                           STATE V. PAYNE
                      Amended Opinion of the Court

Juror 146 said she would follow the law, he was concerned about her
ability to be fair. The court granted the State’s motion to strike her for
cause.

¶21            Although a “general objection to the death penalty is not
sufficient to create a presumption that a prospective juror is unfit because
of bias to sit on the panel,” Anderson I, 197 Ariz. at 318 ¶ 6, 4 P.3d at 373
(discussing Witherspoon v. Illinois, 391 U.S. 510 (1968)), if a prospective
juror’s views would “prevent or substantially impair the performance of
[her] duties,” the court should strike the juror for cause, Wainwright v.
Witt, 469 U.S. 412, 424 (1985).

¶22            Juror 146’s responses were sufficient to permit the judge to
conclude that she could not be fair and impartial. See State v. Glassel, 211
Ariz. 33, 49-50 ¶¶ 53-55, 116 P.3d 1193, 1209-10 (2005) (affirming decision
to strike a juror for cause who stated she could not make the decision to
put someone to death despite her attestation that she would be “fair and
impartial”). Therefore, the decision to dismiss Juror 146 was not an abuse
of discretion.

              4.     Refusing to strike jurors

¶23            Payne claims that the trial court abused its discretion by
refusing to strike Jurors 18, 28, 100, and 103, who were impaneled and
deliberated, and Juror 94, who was designated an alternate. Although
these jurors’ questionnaires expressed pro-death penalty views or
acknowledged media exposure or special feelings about child victims, the
State rehabilitated them, with each stating that he or she would disregard
personal feelings and follow the law and would not impose the death
penalty if not appropriate. Thus, the trial judge did not abuse his
discretion in refusing to strike these jurors.

              5.     Peremptory challenges

¶24            Payne claims that the trial court abused its discretion by
refusing to strike Jurors 66, 71, 138, 152, and 153 for cause, requiring Payne
to use peremptory challenges to remove them. Payne has failed to show
that any of these jurors was so biased that it was an abuse of discretion to




                                      7
                            STATE V. PAYNE
                       Amended Opinion of the Court

deny his motions to strike. See State v. Dickens, 187 Ariz. 1, 11, 926 P.2d
468, 478 (1996) (defendant must show juror “was biased and could not
reasonably render a fair or impartial verdict”), abrogated on other grounds
by State v. Ferrero, 229 Ariz. 239, 242-43 ¶¶ 15, 20, 274 P.3d 509, 512-13
(2012). The responses given by each juror provided the trial court a
reasonable basis for concluding that each could remain impartial.
Moreover, none of these jurors actually sat on the jury panel, making any
error harmless. See State v. Hickman, 205 Ariz. 192, 198 ¶ 28, 68 P.3d 418,
424 (2003) (finding curative use of peremptory challenge subject to
harmless error review).

       B.     Venue

¶25           Payne asserts that the trial court erred by denying his
request for a change of venue based on presumed and actual prejudice.

              1.      Presumed prejudice

¶26           Payne first claims that the trial court erred by denying his
request for a change of venue based on pre-trial publicity. We review a
trial court’s ruling on a motion for change of venue for an abuse of
discretion. State v. Cruz, 218 Ariz. 149, 156 ¶ 12, 181 P.3d 196, 203 (2008).

¶27           Approximately two months before the trial, Payne requested
a change of venue based on adverse and excessive media coverage. He
filed more than 200 newspaper and broadcast reports that mentioned his
case. The trial court denied the motion, noting that much of the publicity
criticized CPS and most articles about the facts had appeared long before
trial. Payne did not renew his motion during trial.

¶28           A defendant is entitled to change the venue for his trial “if a
fair and impartial trial cannot be had.” Ariz. R. Crim. P. 10.3(a). To show
presumed prejudice, a defendant must show that the publicity “was so
extensive or outrageous that it permeated the proceedings or created a
carnival-like atmosphere.” State v. Blakley, 204 Ariz. 429, 434 ¶ 14, 65 P.3d
77, 82 (2003) (internal quotation marks omitted) (quoting State v. Atwood,
171 Ariz. 576, 631, 832 P.2d 593, 648 (1992)). The publicity must be so
prejudicial that the jurors could not decide the case fairly. State v.




                                     8
                           STATE V. PAYNE
                      Amended Opinion of the Court

Nordstrom, 200 Ariz. 229, 239 ¶ 15, 25 P.3d 717, 727 (2001), abrogated on
other grounds by Ferrero, 229 Ariz. at 243 ¶ 20, 274 Ariz. at 513. We examine
whether the publicity was chiefly factual and non-inflammatory and the
amount of time between the coverage and trial. See State v. Davolt, 207
Ariz. 191, 206 ¶ 46, 84 P.3d 456, 471 (2004).

¶29            Media coverage of Payne’s case was substantial. Several
reports included prejudicial information, including Payne’s criminal
history, allegations that Payne victimized Gonzales, and graphic
descriptions of Ariana’s remains. Furthermore, several comments in
internet news articles proclaimed Payne’s guilt and advocated extra-
judicial punishment. But most of the coverage appeared more than a year
before trial, contained facts later substantiated by evidence at trial, and
repeated a basic description of the crime that mirrored indictment
allegations. See Nordstrom, 200 Ariz. at 240 ¶ 17, 25 P.3d at 728 (no
presumed prejudice despite “troubling publicity” that appeared “many
months before trial” where “much of the information” was “presented . . .
as evidence” at trial). And the court exercised discretion and gave
instructions to prevent potentially harmful coverage from infecting the
venire.

¶30           Payne has failed to meet the “’very heavy’ burden” of proof
necessary to show presumed prejudice. Cruz, 218 Ariz. at 157 ¶¶ 17, 20,
181 P.3d at 204.

             2.      Actual prejudice

¶31          Payne alternatively claims that even if prejudice is not
presumed, he has shown actual prejudice. Actual prejudice is established
by showing that sitting jurors “formed preconceived notions concerning
the defendant’s guilt.” State v. Chaney, 141 Ariz. 295, 302, 686 P.2d 1265,
1272 (1984). Mere knowledge of or opinions about the case do not
disqualify a juror who can set them aside and decide based on the
evidence presented at trial. Cruz, 218 Ariz. at 156-57 ¶ 14, 181 P.3d at 203-
04. Payne has not shown actual prejudice among the sitting jurors.

¶32         Of the twelve jurors who deliberated, seven reported
exposure to media reports. Five of the seven reported “very little”




                                     9
                          STATE V. PAYNE
                     Amended Opinion of the Court

exposure, and all seven assured the court they could disregard it. See
Atwood, 171 Ariz. at 632, 832 P.2d at 649 (no prejudice where half of jurors
had “minimal” media exposure, but indicated it would not interfere),
disapproved of on other grounds by Nordstrom, 200 Ariz. at 241 ¶ 25, 25 P.3d
at 729. Throughout voir dire and after the jury was sworn, the trial court
admonished the jury to avoid coverage and report any exposure.

¶33           Payne attempts to show that events at trial tainted the
objectivity of the jurors. He highlights several allegedly prejudicial
events: a spectator’s statement, which occurred in a hallway with no
jurors present, that Payne was a “monster” who should “fry”; a
cameraman’s utterance of “what the f***” in response to a camera
problem, an utterance heard only by Payne’s counsel and a deputy; and
blogging by two witnesses during the trial, mostly discussing the victims’
mother. Payne fails to connect these isolated events to actual prejudice or
bias of any jury member.

¶34           Finally, Payne argues that actual prejudice was shown by
the court’s directive to jurors that they remain on one floor to avoid the
media and witnesses. Such admonitions, however, are precisely the type
of prophylactic measures courts should take to avoid tainting the jury. See
Nordstrom, 200 Ariz. at 240 ¶¶ 18-19, 25 P.3d at 728 (finding insufficient
evidence of actual prejudice to justify a change of venue and noting
admonition to jurors to avoid media exposure). Thus, Payne has failed to
show actual prejudice.

      C.     Post-Arrest Statements

¶35           Payne argues that the trial court erred by refusing to
suppress his post-arrest statements, which he claims violated Miranda and
were involuntary. We review rulings admitting a defendant’s statements
for an abuse of discretion. State v. Newell, 212 Ariz. 389, 396 ¶ 22 & n.6,
132 P.3d 833, 840 & n.6 (2006).

¶36          When the police officers first encountered Payne at a motel,
they told him they were investigating a crime and asked if he would
accompany them to the station to answer questions. Payne refused to go
without his lawyer. The police then arrested him on an unrelated




                                    10
                            STATE V. PAYNE
                       Amended Opinion of the Court

misdemeanor warrant. Once at the station, they put Payne in an
interrogation room. He waited approximately thirty minutes, during
which time he yelled, banged his handcuffs on the table, kicked the wall,
and asked to use the restroom, which he was allowed to do. In response
to the noise, Detective Walker opened the door to check on Payne. He did
not intend to interrogate Payne then, but Payne insisted that questioning
begin immediately. So Detective Walker read Payne his Miranda rights,
which Payne waived. Eventually, Payne admitted that the victims died in
his care and that he concealed their bodies in the storage facility.

              1.      Right to counsel

¶37           Payne claims that he clearly and unambiguously invoked his
right to counsel when police first encountered him outside of the motel.
Citing Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), he asserts that once a
suspect in custody invokes his Miranda right to counsel, police may not
interrogate him until he has counsel or he reinitiates the contact.

¶38           Assuming that Payne did request counsel outside the motel,
the question arises whether his invocation was effective. Miranda rights
generally cannot be invoked unless the suspect is in police custody. See
McNeil v. Wisconsin, 501 U.S. 171, 182 n.3 (1991). In McNeil, the Court
noted that it had “in fact never held that a person can invoke his Miranda
rights anticipatorily, in a context other than ‘custodial interrogation.’” Id.
Although Arizona courts have never had occasion to address the issue,
other jurisdictions have relied on this language from McNeil to conclude
that a non-custodial, anticipatory invocation of rights is not effective. See,
e.g., United States v. LaGrone, 43 F.3d 332, 339 (7th Cir. 1994); Alston v.
Redman, 34 F.3d 1237, 1249 (3d Cir. 1994); United States v. Wright, 962 F.2d
953, 955 (9th Cir. 1992) (“The [Supreme] Court has never held that Miranda
rights may be invoked anticipatorily outside the context of custodial
interrogation; we see no reason, apart from those already rejected in
McNeil, to do so here.”). We reach a similar conclusion.

¶39           Payne was not in custody when he attempted to invoke his
right to counsel because, other than the presence of police, he had no
reason to “feel deprived of his freedom of action.” See State v. Stanley, 167
Ariz. 519, 523, 809 P.2d 944, 948 (1991); see also State v. Carter, 145 Ariz. 101,




                                       11
                           STATE V. PAYNE
                      Amended Opinion of the Court

105-06, 700 P.2d 488, 492-93 (1985) (inherently coercive nature of speaking
to police is insufficient). The police had not indicated that he was
suspected of committing a crime, had not told him he was under arrest,
and had not drawn their guns. Moreover, Payne felt free to refuse to
accompany them. Thus, Payne’s initial invocation was ineffective.

              2.     Right to silence

¶40           Payne also claims that he invoked his right to silence during
the interrogation. An invocation of the right to silence must be
unequivocal and unambiguous, as judged from the perspective of a
reasonable officer under the totality of the circumstances. State v. Cota, 229
Ariz. 136, 144-45 ¶ 26, 272 P.3d 1027, 1035-36 (2012). If an invocation is
ambiguous or equivocal, “the police are not required to end the
interrogation . . . or ask questions to clarify whether the accused wants to
invoke his or her Miranda rights.” Berghuis v. Thompkins, 130 S. Ct. 2250,
2259-60 (2010).       During the interrogation, the following exchange
occurred:

       PAYNE:      . . . you know what man, I don’t wanna talk
       anymore[.] [C]an I call my father[;] can I get my one phone
       call?

       WALKER:       Your father is still in [a] plane.

       PAYNE:          Well let me call my sister, and then my step-
       sister, just to let them know that, what the f*** is goin’ on,
       and then I’ll talk, man. I don’t know what the f*** you
       wanna get outta me, but I’ll talk.

¶41          A reasonable officer in these circumstances could find
Payne’s request ambiguous or equivocal because he indicated that he
would talk after he spoke with a family member. Therefore, the trial court
did not abuse its discretion in finding no violation of Miranda and
admitting Payne’s statements.




                                        12
                          STATE V. PAYNE
                     Amended Opinion of the Court

             3.     Voluntariness

¶42           Payne argues that his statements were involuntary because
he relied on promises made by the police and was suffering from heroin
withdrawal when he confessed. Trial courts presume confessions to be
involuntary, State v. Ross, 180 Ariz. 598, 603, 886 P.2d 1354, 1359 (1994),
but we review a trial court’s ruling on a motion to suppress for an abuse
of discretion, State v. Hausner, 230 Ariz. 60, 70 ¶ 23, 280 P.3d 604, 614
(2012).

¶43           The effect of withdrawal from drugs does not render a
confession involuntary unless the suspect “is unable to understand the
meaning of his statements” or cannot reason or comprehend what is
happening. State v. Laffoon, 125 Ariz. 484, 487, 610 P.2d 1045, 1048 (1980)
(citing State v. Arredondo, 111 Ariz. 141, 145, 526 P.2d 163, 167 (1974)).
Payne reported being cold and sick, asked for methadone, and vomited at
the end of the interrogation. EMTs evaluated Payne, however, and
concluded that his vital signs were normal. He clearly understood and
followed the questioning, consistently denied police assertions, and
presented facts in a light favorable to himself.

¶44           Payne also argues that he confessed because police said they
would let him speak with Gonzales. See State v. Ellison, 213 Ariz. 116, 127
¶ 30, 140 P.3d 899, 910 (2006) (noting that promises and coercion may
render statements involuntary). Courts examine the totality of the
circumstances to determine whether the suspect’s will was overborne by
police conduct. Stanley, 167 Ariz. at 523-24, 809 P.2d at 948-49. Although
police did tell Payne he could talk with Gonzales, he did not show that
this was a promise or quid pro quo for talking, that he relied upon the
statement, or that the police overbore his will. The circumstances indicate
otherwise: Payne made his admissions at times far removed from any
promises regarding Gonzales, and after Payne’s initial incriminatory
statements, Payne denied disposing of Tyler’s body in a different location,
denied abusing the children, and denied murdering the children to avoid
paying child support. See Newell, 212 Ariz. at 400 ¶ 50, 132 P.3d at 844
(noting that continued denials were evidence that defendant’s will was
not overborne).




                                    13
                           STATE V. PAYNE
                      Amended Opinion of the Court

¶45           For these reasons, we conclude that the trial court did not
abuse its discretion by finding that Payne’s statements were voluntary.

       D.     Exclusion of Hearsay

¶46           Payne contends that the trial court erroneously prevented
him from presenting evidence regarding Gonzales’s threats to “kill” the
children if he did not do something about their behavior. The statements
he wished to introduce were: “You got to do something about these
f***ing kids. You got to shut these f***ing kids up or I’m going to f***ing
kill them.” Payne sought to introduce these statements through the
testimony of Debra Reyes, who sold heroin with Payne and overheard
phone calls in which Gonzales screamed at Payne and threatened to kill
the children.

¶47          The State moved to preclude these statements on hearsay
grounds and because they would open the door to testimony that
Gonzales wanted to help the children but feared reprisals from Payne. At
Payne’s request, the court had previously precluded evidence about
threats and domestic abuse between Payne and Gonzales.

¶48            Payne argues that Gonzales’s statements qualify as present
sense impressions under Arizona Rule of Evidence 803(1) and excited
utterances under Rule 803(2). Payne asserts for the first time that they also
qualify as party admissions under Rule 801(d)(2), statements of existing
mental, emotional, or physical condition under Rule 803(3), and
statements against interest under Rule 804(b)(3). The court precluded the
statements “on the basis of the record,” ruling that Payne could call
Gonzales and Reyes, but could not ask Reyes about Gonzales’s threats to
kill the children.

¶49           Out of court statements offered to prove the truth of the
matter asserted are hearsay and are inadmissible unless they fall within an
exception to the hearsay rule. Ariz. R. Evid. 801(c)-(d), 802. We review
the rulings on those grounds that Payne raised at trial for an abuse of
discretion, State v. Chappell, 225 Ariz. 229, 238 ¶ 28, 236 P.3d 1176, 1185
(2010), and review de novo constitutional issues and the meaning of the
rules of evidence, State v. Hansen, 215 Ariz. 287, 289 ¶ 6, 160 P.3d 166, 168




                                     14
                           STATE V. PAYNE
                      Amended Opinion of the Court

(2007). We review those issues that Payne did not raise at trial for
fundamental error. See State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d
601, 607 (2005).

¶50           To qualify as a present sense impression under Rule 803(1), a
statement must “describ[e] or explain[] an event or condition” while the
viewer is perceiving it or immediately thereafter. Payne argues that Reyes
was perceiving Gonzales’s frustration with the children.          But the
statement at issue — Gonzales’s threat to kill the children — was not the
sense impression. Nor did the statement qualify as an excited utterance
under Rule 803(2). That rule requires that the statement “relate[] to a
startling event or condition.” The trial court did not abuse its discretion
by finding that the statement did not qualify as an excited utterance
because no startling event or condition had occurred.

¶51          Under Rule 801(d)(1)(A), a statement is not hearsay if the
“declarant testifies and is subject to cross-examination about a prior
statement, and the statement . . . is inconsistent with the declarant’s
testimony.” Gonzales testified at trial, and Payne made an offer of proof
in which Gonzales denied making the statements. Reyes’s testimony
about Gonzales’s prior statement qualified under this rule.

¶52            But trial courts have discretion to exclude otherwise
admissible evidence “if its probative value is substantially outweighed by
a danger of . . . unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting cumulative
evidence.” Ariz. R. Evid. 403. Introducing Gonzales’s statements through
Reyes would have raised collateral issues, such as whether the threats
actually evidenced any intent to harm the children, and implicated even
more peripheral issues such as Gonzales’s fear of Payne and evidence of
past abusive incidents between Payne and Gonzales. The trial court had
previously granted Payne’s motion to preclude evidence of any abuse of
Gonzales. The trial court acted within its discretion in precluding the
admission of Gonzales’s statements through Reyes because they might
have caused confusion and wasted time. Moreover, other evidence
presented at trial amply showed Gonzales’s exasperation with the
children, including Gonzales’s testimony that she often called Payne to
yell about the children and Reyes’s testimony about witnessing similar




                                     15
                          STATE V. PAYNE
                     Amended Opinion of the Court

frustrations. Furthermore, the jury knew that Gonzales was incarcerated
for her involvement in the murders. Therefore, the precluded testimony
was cumulative, and for this additional reason, the trial court did not
abuse its discretion by excluding it.

¶53          Furthermore, the record contained substantial evidence that
the children were malnourished, abused, kept in a closet, and ultimately
died in Payne’s care. Even if the jury had heard and believed that
Gonzales threatened to kill the children, there was ample evidence that
Payne abused and premeditatedly murdered them by failing to help them.

¶54         Because we find no abuse of discretion in excluding Reyes’s
testimony regarding Gonzales’s statements, we do not address the
hearsay exceptions not raised at trial, which would be subject to
fundamental error review.

¶55           Payne also contends that excluding this testimony violated
his constitutional rights to due process and compulsory process. But the
analysis for these claims parallels our Rule 403 analysis, focusing on the
probative value and prejudicial effect of the evidence. See United States v.
Cruz-Escoto, 476 F.3d 1081, 1088 (9th Cir. 2007). As such, the exclusion of
this evidence did not violate due process or compulsory process rights.

      E.     Admission of Evidence of Heroin Sales

¶56            Payne asserts that the trial court inappropriately admitted
evidence that he sold heroin. He claims that this was unduly prejudicial
because it encouraged the jury to convict him for uncharged bad acts. We
review the admission of evidence for abuse of discretion. State v. Robinson,
165 Ariz. 51, 56, 796 P.2d 853, 858 (1990).

¶57          The court found the nature of Payne’s job required that he
remain away from home for long hours. This motivated him to lock his
children in the closet to appease Gonzales. Thus the court found the
evidence probative of motive. To attempt to minimize prejudice, the court
admonished the State “to limit the number of times . . . the issue [was]
brought up, and not use racy words.” The State mentioned in its opening
statement and closing argument that Payne “started dealing drugs” and




                                    16
                            STATE V. PAYNE
                       Amended Opinion of the Court

was “working with” a heroin dealer. Payne himself also mentioned
several times in his opening statement and closing argument that he sold
heroin. In its final instructions, the court instructed the jury not to
consider evidence of drug use or sales for character purposes or as a basis
for determining that the defendant committed the charged offenses.

¶58           Evidence of uncharged acts may not be admitted to prove
bad character or that, because a defendant did one bad act, he likely
engaged in other bad acts. Ariz. R. Evid. 404(b). But such evidence may
be admitted to prove other issues, such as motive, opportunity, or lack of
mistake or accident. Id.; see Ferrero, 229 Ariz. at 241 ¶ 5, 274 P.3d at 511.
When other act evidence is admissible but prejudicial, the trial court must
“limit the evidence to its probative essence (motive) by excluding
irrelevant or inflammatory detail.” State v. Hughes, 189 Ariz. 62, 70, 938
P.2d 457, 465 (1997).

¶59           The trial court did attempt to limit the prejudice here and
did not abuse its discretion. Each time the State mentioned the heroin
sales, it did so to explain why Payne was away from home for long
periods.3 The evidence was relevant to the State’s theory that Payne
locked the children in the closet so he could stay away from home without
interruption from Gonzales’s calls.

¶60             Finally, the trial court did find that the probative value of the
evidence was not substantially outweighed by its prejudicial effect. The
jury heard evidence that Gonzales and Payne used heroin, marginalizing
any prejudicial effect from evidence that Payne was absent because he was
out selling it.



3       Prosecutors and courts should tread carefully in areas that may
affect the fairness of a criminal trial. A defendant might also spend long
hours away from home while working as a lawyer or stockbroker. For
that reason, trial judges should carefully scrutinize requests to admit
prejudicial evidence. In this case, we cannot say that the judge’s ruling
was an abuse of discretion, but the issue is close. The judge’s limiting
instructions helped prevent an abuse.




                                       17
                           STATE V. PAYNE
                      Amended Opinion of the Court

       F.     Jurors Seeing Payne in Restraints

¶61             Relying on Deck v. Missouri’s holding that routine use of
visible shackles on a defendant is “inherently prejudicial,” see 544 U.S. 622,
628 (2005), Payne contends that the trial court erred by denying his motion
for a mistrial or to designate jurors as alternates after they saw Payne in
restraints outside the courtroom. Mistrial is an extraordinary remedy for
trial error “and should be granted only when it appears that justice will be
thwarted unless the jury is discharged and a new trial granted.” Speer, 221
Ariz. at 462 ¶ 72, 212 P.3d at 800 (quoting Dann I, 205 Ariz. at 570 ¶ 43, 74
P.3d at 244). We review the trial court’s rulings for abuse of discretion.
State v. Adamson, 136 Ariz. 250, 260, 665 P.2d 972, 982 (1983) (mistrial);
State v. Bible, 175 Ariz. 549, 574, 858 P.2d 1152, 1177 (1993) (designation of
jurors).

¶62           During trial, Juror E told the court that, while in a restricted-
access hallway, he saw Payne in an elevator with three officers and a
“cage.” The jurors had been wondering what the elevator was used for, so
Juror E told Juror F that the elevator was used to transport “prisoners.”
Upon questioning, Juror E assured the court that the incident would not
affect his ability to remain fair and impartial. Juror F gave similar
assurances. The court denied Payne’s motion for a mistrial or to designate
Jurors E and F as alternate jurors, noting that jurors would not be
“surprise[d]” to know that Payne was in custody, in part because they
were to see a video of him wearing restraints the next trial day.

¶63          Several days later, another juror, Juror W, passed the same
elevator when Payne and deputies were inside and the doors were open.
When the trial court asked Juror W whether he saw anything he was not
supposed to see, Juror W said he did not think so. The court did not
question him further because it did not want to suggest an answer. Payne
renewed his motions, which the court again denied.             The court
nonetheless admonished the deputies to exercise more caution when
transporting Payne. Before the court selected alternates, Payne renewed
his motion to designate Jurors E, F, and W as alternates, but the court
again denied the motion.

¶64           A third incident occurred when the deputies opened the




                                      18
                           STATE V. PAYNE
                      Amended Opinion of the Court

door of the elevator as two jurors walked by. Juror N1 was dismissed
randomly as an alternate. The deputies believed that the other juror, Juror
N2, was not looking in their direction, but even if so, would not have seen
Payne’s shackles because Payne was standing behind the officers. Payne
pointed out that he was taller than the deputies and so could easily have
been seen. The trial court declined to designate Juror N2 an alternate,
noting that Payne was not “wear[ing] shackles on his head.”

¶65           Payne relies on cases holding that routine use of visible
shackles is “inherently prejudicial” and obviates the need for a showing of
prejudice. See Deck, 544 U.S. at 635. But brief, inadvertent juror exposure
to the defendant in shackles outside the courtroom does not rise to the
same level. See Speer, 221 Ariz. at 462-63 ¶ 74, 212 P.3d at 800-01. Payne
must therefore show actual prejudice, see id. ¶ 72, which the record does
not reflect.

¶66           During voir dire by Payne, Jurors E and F, who deliberated
after seeing Payne in restraints, assured the court that the incident would
not affect their ability to be fair and impartial. Their “brief and
inadvertent exposure” outside the courtroom was not inherently
prejudicial. See State v. Apelt, 176 Ariz. 349, 361, 861 P.2d 634, 646 (1993)
(affirming denial of new trial where four jurors saw defendant in shackles
and handcuffs being escorted from courthouse). Payne has not pointed to
any evidence that jurors were prejudiced. And, as the trial court
observed, it is highly unlikely that any juror would have been surprised
that Payne was in custody. Thus, Payne has not established actual
prejudice.

      G.     Child Abuse Charges

¶67           Payne makes four claims related to his child abuse
convictions, which are addressed in turn below.

             1.      Mens rea of “circumstances”

¶68         Payne asserts that the trial court erroneously prohibited him
from arguing to the jury that the State must prove that he abused the
children “under circumstances [that he intended or knew were] likely to




                                     19
                           STATE V. PAYNE
                      Amended Opinion of the Court

cause death or serious physical injury.” This, he claims, turned child
abuse into a strict liability offense and, as a result, the court erred in
instructing the jury on the elements of child abuse. We review de novo
statutory interpretation issues, State v. Armstrong (Armstrong III), 218 Ariz.
451, 463 ¶ 54, 189 P.3d 378, 390 (2008), and whether jury instructions
properly state the law, State v. Johnson, 212 Ariz. 425, 431 ¶ 15, 133 P.3d
735, 741 (2006).

¶69            Section 13-3623(A) makes it crime, “[u]nder circumstances
likely to produce death or serious injury,” for a person to cause physical
injury to a child or to permit the injury of a child in the person’s care or
custody. This offense is a class 2 felony “[i]f done intentionally or
knowingly.” Id. § 13-3623(A)(1). Payne contends that, in order to convict
him of child abuse as a class 2 felony, in addition to showing that he
intended to cause or knew that he would cause (or permit) injury, the
State had to show that he intended or knew that the “circumstances were
likely to produce death or serious injury.” Payne thus contends that the
intentional or knowing mens rea requirement applicable to the other
elements of child abuse also applies to the circumstances component. The
trial court rejected Payne’s construction and instructed the jury that the
State must prove “that the defendant committed child abuse in at least one
of the three possible manners . . . , and that [his actions occurred] under
circumstances likely to cause death or serious physical injury” to the
children.

¶70           If a statute requires a mental state, it applies to each element
of the offense unless it “plainly appears” that the legislature intended
otherwise. A.R.S. § 13-202(A). The questioned portion of § 13-3623(A)
(the “circumstances clause”) provides that abuse must occur “[u]nder
circumstances likely to produce death or serious physical injury.” We
have not addressed whether any mens rea requirement applies to this
phrase, but our court of appeals has upheld convictions based solely on
objective evidence of the existence of such circumstances, without
requiring the state to prove the defendant’s intent that the circumstances
be such that death or serious injury might occur. See State v. Johnson, 181
Ariz. 346, 350, 890 P.2d 641, 645 (App. 1995); State v. Greene, 168 Ariz. 104,
105-06, 811 P.2d 356, 357-58 (App. 1991). Other jurisdictions have
similarly interpreted such clauses. See People v. Sargent, 970 P.2d 409, 418




                                     20
                            STATE V. PAYNE
                       Amended Opinion of the Court

(Cal. 1999) (California’s circumstances clause “does not provide that a
defendant must ‘know or reasonably should know that his or her actions
occur under circumstances or conditions likely to produce great bodily
harm or death.’” (quoting Cal. Penal Code § 273a)); cf. Williams v. State, 641
A.2d 990, 992-93 (Md. Ct. Spec. App. 1994) (whether circumstances in
reckless endangerment are likely to result in serious physical injury or
death is an objective inquiry). “[C]ircumstances likely to produce death or
serious physical injury,” unlike the abuse itself, either exist or do not exist.
This Court has similarly found the “care and custody” element of § 13-
3623(A) to be an objective factual inquiry rather than an element for which
mens rea must be proven. See State v. Jones, 188 Ariz. 388, 393-94, 937 P.2d
310, 315-16 (1997).

¶71           Moreover, the statute increases the offense level based on the
actor’s intent: If the offense is “done intentionally or knowingly,” it
becomes a class 2 felony. A.R.S. § 13-3623(A)(1). It is a lesser offense if
done negligently or recklessly. See id. § (A)(2). The structure of the statute
thus suggests that the mens rea refers to the act that the defendant “does,”
and not to the background circumstances. Because we find that the
circumstances clause is more like the “care and custody” provision, we
decline to apply the means rea to the circumstances clause.

¶72             Payne argues that such an interpretation turns child abuse
into a strict liability crime. But a statute creates a strict liability crime only
if it does not require any mental state. Williams, 144 Ariz. at 488, 698 P.2d
at 733. That is not the case here, as § 13-3623(A) requires at least criminal
negligence for the act itself, and the section under which Payne was
charged, § 13-3623(A)(1), requires knowledge or intent.

¶73           Finally, Payne claims that because the circumstances clause
is an element of the crime that enhances punishment and appears in the
text defining the offense, the legislature must have intended for it to have
a mens rea requirement. We disagree. It is the level of intent that
enhances the offense level, not the existence of “circumstances.” See
A.R.S. § 13-3623(A). As such, the court’s instructions were correct.




                                       21
                           STATE V. PAYNE
                      Amended Opinion of the Court

              2.     Count 2: insufficiency of evidence of Ariana’s broken
                     bones

¶74           Payne argues that the State presented insufficient evidence
to prove that he “knowingly or intentionally . . . caus[ed] or permitt[ed]
[Ariana’s] bones to be broken under circumstances likely to cause serious
injury or death.” He argues that broken bones are not themselves serious
physical injuries, but rather, quoting State v. George, 206 Ariz. 436, 441 ¶ 9,
79 P.3d 1055, 1062 (App. 2003), asserts that the injuries must be “more
than the usual temporary impairment caused by the fracture of a body
part.” Therefore, he claims that the State failed to show that Ariana’s
broken bones occurred in circumstances likely to result in serious injury or
death.

¶75            Payne’s argument rests on the assumption that, to prove a
violation of § 13-3623(A)(1), the State had to prove that broken bones are
serious injuries or that breaking bones or permitting bones to be broken
caused serious physical injury or death to Ariana. That is not the case.
Instead, the State had to prove only that Payne caused or permitted abuse
or injuries — here, broken bones — to occur in circumstances likely to
cause serious injury or death. In § 13-3623(A), “serious physical injury” is
used only to describe circumstances that must exist when the abuse
occurs. See Johnson, 181 Ariz. at 350, 890 P.2d at 645 (interpreting “likely”
as “probable,” upholding conviction under § 13-3623(A)(1) based on
circumstances that may cause serious injury, rather than actual serious
injury); State v. Styers, 177 Ariz. 104, 110, 865 P.2d 765, 771 (1993) (noting
that a “person commits child abuse if ‘under circumstances likely to
produce death or serious physical injury,’ he causes a child to suffer
physical injury or abuse”).

¶76           Payne secondarily asserts that the State presented
insufficient evidence to show that he intentionally or knowingly broke
Ariana’s bones or permitted them to be broken while she was in his care
because the breakages could have occurred before he started caring for
her or after her death. We review the sufficiency of evidence to determine
whether “substantial evidence exists to support the jury verdict.” State v.
Stroud, 209 Ariz. 410, 411 ¶ 6, 103 P.3d 912, 913 (2005). Substantial
evidence is proof, viewed in the light most favorable to sustaining the




                                      22
                            STATE V. PAYNE
                       Amended Opinion of the Court

verdict, that would allow reasonable persons to find a defendant guilty
beyond a reasonable doubt. State v. Bearup, 221 Ariz. 163, 167 ¶ 16, 211
P.3d 684, 688 (2009); see State v. Roque, 213 Ariz. 193, 218 ¶ 93, 141 P.3d 368,
393 (2006) (viewing facts favorably).

¶77           Substantial evidence shows that Payne broke or permitted
bones to be broken. Evidence was presented that the children were seen
outside, playing and seemingly well, when they first came to stay with
Payne. At trial, three experts testified that Ariana’s bones, given their
differing states of healing, had likely been broken when Ariana was in
Payne’s care, although the experts could not establish the precise time of
any injury. Moreover, Gonzales testified that Payne stated that he did not
seek help for the children because he feared being arrested for abuse. This
Court has found knowledge or intent where the defendant knew that the
victim needed medical attention, but chose not to act. See State v. Mott, 187
Ariz. 536, 543, 931 P.2d 1046, 1053 (1997); see also State v. Poehnelt, 150 Ariz.
136, 141, 722 P.2d 304, 309 (App. 1985) (upholding child abuse conviction,
relying partly on victim’s malnourishment).4

¶78           Sufficient evidence was also presented that the
circumstances existing when the abuse occurred were likely to cause
serious injury or death. Ariana’s multiple and serious injuries occurred
while she was being punished by being locked in the closet and not being
fed or cared for. This evidence is sufficient to support the jury’s finding
that the injuries occurred under circumstances likely to cause serious
injury or death.




4      Because sufficient evidence supports the conviction for Count 2, we
do not address Payne’s argument that his conviction for felony murder
must be overturned because it would be unclear whether the jury was
unanimous on felony murder if the evidence did not support Count 2.
Moreover, the jury unanimously found felony murder as to Tyler based
upon its finding of guilt on Count 6, suggesting that it would have
similarly unanimously found felony murder as to Ariana based solely
upon Payne’s conviction on Count 3, discussed below.




                                       23
                           STATE V. PAYNE
                      Amended Opinion of the Court

              3.     Potential for non-unanimous verdicts

¶79           Payne next argues that he was deprived of a unanimous
verdict regarding the child abuse charges because the jury was not
required to agree on which act caused each type of abuse.

¶80            The State charged Payne with three counts of child abuse.
Count 2 charged Payne with knowingly or intentionally causing or
permitting Ariana’s bones to be broken under circumstances likely to
cause death or serious physical injury. Count 3 alleged that Payne
knowingly or intentionally caused or permitted Ariana’s health to be
endangered under circumstances likely to cause death or serious physical
injury by failing to seek medical attention for Ariana or allowing her to
starve to death. Count 6 alleged the same as Count 3 with respect to
Tyler. Payne did not seek clarification of the indictment or object to any
count in the indictment on grounds that the indictment itself was
duplicitous, but did argue, after the close of the evidence, that the State
should have been required to specify which act it relied upon to prove
each count because permitting evidence of multiple acts to satisfy a single
charge presented duplicity issues. Because the objection came too late to
permit correction of the alleged defects, we review for fundamental error.
See Dann III, 220 Ariz. at 367 ¶ 76, 207 P.3d at 620.

¶81           A criminal defendant is entitled to a unanimous verdict. Id.
at 367 ¶ 79, 207 P.3d at 620 (quoting Ariz. Const. art. 2, § 23). If an
indictment is facially valid, but the state introduces evidence of several
acts, each of which might satisfy the charge, the risk of a non-unanimous
verdict is presented. See State v. Davis, 206 Ariz. 377, 390 ¶ 61, 79 P.3d 64,
77 (2003). As we observed in Dann III, however, as long as only one
charge is alleged in a count of an indictment, jurors may “reach a verdict
based on a combination of alternative findings.” 220 Ariz. at 367 ¶ 79, 207
P.3d at 620; cf. State v. Gomez, 211 Ariz. 494, 498 ¶ 16 n.3, 123 P.3d 1131,
1135 n.3 (2005) (noting that a “jury need not be unanimous as to the theory
of first degree murder as long as all agree that the murder was
committed”); State v. Tucker, 205 Ariz. 157, 166-67 ¶¶ 48-51, 68 P.3d 110,
119-20 (2003) (to same effect).




                                     24
                           STATE V. PAYNE
                      Amended Opinion of the Court

                     a.     Count 2

¶82          Count 2 charged Payne with knowingly or intentionally
causing or permitting Ariana’s bones to be broken in circumstances likely
to cause death or physical injury. Payne argues that Count 2 was
duplicitous as presented at trial because it permitted the jury to find him
guilty if he either broke Ariana’s bones or permitted someone else to
break them.

¶83          We disagree that this rendered the charge duplicitous.
Count 2 did not charge multiple crimes in a single count; rather it charged
a single crime — abusing Ariana by breaking her bones or permitting
them to be broken — that could be committed in multiple ways.

¶84           Payne argues that Count 2 nonetheless subjected him to the
danger of a non-unanimous verdict by allowing jurors to find him guilty
despite potential disagreement regarding his responsibility for individual
acts. But Payne was aware of the existence of multiple fractures and yet
did not request that the State be required to elect one to rely upon until
after evidence had closed.

¶85            Indictments need not specify the precise act constituting the
crime if “there is no reasonable basis” for distinguishing multiple acts.
State v. Klokic, 219 Ariz. 241, 246 ¶ 25, 196 P.3d 844, 849 (2008). In such a
case, “the defendant is not entitled to a unanimous verdict on the precise
manner” in which an act is committed. State v. Encinas, 132 Ariz. 493, 496,
647 P.2d 624, 627 (1982); see also State v. Counterman, 8 Ariz. App. 526, 531-
32, 448 P.2d 96, 101-02 (1968) (upholding assault conviction where two
assaults occurring as part of a continuous course of conduct were charged
in one count). Thus, the jury here was not required to unanimously agree
on the manner of committing child abuse.

¶86            Payne was charged with a count of child abuse by causing or
permitting bones to be broken. This is a discrete method of committing
child abuse under § 13-3623(A). Payne had notice of the charge and
defended against all acts by claiming that he did not break or permit
breakage of any bones. The charge and acts constituting it were
sufficiently specific that he could later assert double jeopardy. See State v.




                                      25
                           STATE V. PAYNE
                      Amended Opinion of the Court

Ramsey, 211 Ariz. 529, 533-34 ¶ 9, 124 P.3d 756, 760-61 (App. 2005).

¶87          Count 2 was thus not duplicitous.

                    b.     Counts 3 and 6

¶88            Counts 3 and 6 alleged that Payne caused or permitted
Ariana and Tyler’s health to be endangered by failing to seek medical
attention for them or allowing them to starve to death. Payne argues that
those counts were duplicitous because he could be found guilty based on
two separate acts: failing to seek medical attention “and/or” starving the
children to death.

¶89            Payne argues that failing to feed and failing to seek medical
attention are separate acts that should have been charged separately
because one is active and one is passive, citing State v. Leal, 723 P.2d 977
(N.M. App. 1986). We find this unpersuasive because both involve the
failure to do something and are thus passive.

¶90            Moreover, each count of the indictment charges only one
crime of child abuse, essentially by neglect. Thus, even if the jury believed
Payne’s argument that he tried to feed the children but they did not wish
to eat or were not able to eat, his failure to seek medical attention also
constituted abuse under the statute. Payne admitted to police that he did
not seek medical care for the children because he was afraid he would be
charged with child abuse, and he presented no evidence or argument at
trial that he attempted to seek such help. Because he was not entitled to a
unanimous verdict on the manner in which the act was performed,
Encinas, 132 Ariz. at 496, 647 P.2d at 627, Counts 3 and 6 were not
duplicitous. Even if an error did occur, Payne was not prejudiced — the
failure to seek medical care itself satisfied the charge, and no reasonable
jury could have found that Payne was not guilty of child abuse under this
theory.

             4.     Jury instructions and verdict forms

¶91          Payne argues that the trial court erred by instructing on the
child abuse theory of causing physical injury because the State did not




                                     26
                          STATE V. PAYNE
                     Amended Opinion of the Court

allege that type of abuse. At the close of evidence in the guilt phase, over
Payne’s objection, the trial court combined the instructions for all three
counts of child abuse:

      The crime of intentional or knowing child abuse requires
      proof that, under circumstance[s] likely to produce death or
      serious physical injury, the defendant did one of the
      following:

      One, intentionally or knowingly causing the child to suffer
      physical injury; or

      Two, having the care or custody of a child[,] intentionally or
      knowingly causes or permits the person or health of the
      child to be injured; or

      Three, having the care or custody of a child[,] intentionally
      or knowingly causes or permits the child to be placed in a
      situation where the person or health of the child is in danger.

      In order to determine that the defendant committed the
      crime of intentional or knowing child abuse[,] it is not
      necessary that all 12 of you agree on the particular manner in
      which the crime was committed. However, it is necessary
      that each of you determine that the defendant committed
      child abuse in at least one of the three possible manners set
      forth above, and that it was under circumstances likely to
      cause death or serious physical injury.

When explaining the verdict forms, the court also combined all three
methods of child abuse in each count. For example, the verdict form for
the child abuse counts for breaking Ariana’s bones included all three
methods of committing child abuse under the statute, even though the
indictment only alleged the “cause or permit the person or health of the
child to be injured” variation. The jury found Payne guilty of all three
counts.

¶92          But the instructions here were followed by verdict forms




                                    27
                          STATE V. PAYNE
                     Amended Opinion of the Court

specifying the allegations satisfying each count. Because these forms
properly instructed the jury on the required findings, the jurors were not
misled and there was no reversible error.

      H.     Sufficiency of Evidence for First Degree Murder

¶93           Payne argues that the evidence was insufficient to prove that
he murdered his children with premeditation. We review the sufficiency
of evidence to determine whether “substantial evidence exists to support
the jury verdict,” viewing the facts in the light most favorable to
sustaining the verdict. Stroud, 209 Ariz. at 411 ¶ 6, 103 P.3d at 913.

¶94           A person commits first degree premeditated murder if,
“[i]ntending or knowing that the person’s conduct will cause death, the
person causes the death of another person . . . with premeditation.” A.R.S.
§ 13-1105(A)(1). “‘Premeditation’ means that the defendant acts with
either the intention or knowledge that he will kill another human being,
when such intention or knowledge precedes the killing by any length of
time to permit reflection.” State v. Thompson, 204 Ariz. 471, 475 ¶ 12, 65
P.3d 420, 424 (2003) (quoting A.R.S. § 13-1101(1)).

¶95           Sufficient evidence in this case supports the jury’s finding
that Payne intentionally abused his children and later decided to take
their lives. Gonzales testified that while Ariana and Tyler were initially
placed in the closet only while Payne was away from home and for
disciplinary purposes, after about a month, Payne left them in the closet
permanently, feeding them irregularly, then not at all. They died soon
after. Thus, it was reasonable for jurors to infer that Payne’s intentions
changed. Therefore, there was sufficient evidence to support the jury’s
finding of premeditated murder.

      I.     Juror Question During Deliberations

¶96           During deliberations in the guilt phase, the jury sent the
judge a note asking whether there was an “advantage to having a
unanimous decision on guilt” on both felony murder and premeditated
murder theories. Payne argues that the trial court committed reversible
error by not granting his mistrial motion following this question, asserting




                                    28
                            STATE V. PAYNE
                       Amended Opinion of the Court

that it suggested that the jurors had viewed extraneous information. We
review a trial court’s rulings on motions for mistrial based on juror
misconduct for abuse of discretion. Cruz, 218 Ariz. at 163 ¶ 67-68, 181
P.3d at 210.

¶97           After the question was relayed to the judge, Payne was
consulted and asked the court to instruct the jurors to resolve that
question themselves. The court adopted part of Payne’s requested
instruction, telling the jurors to resolve the question themselves, “based
upon the instructions, evidence, and arguments you have heard and
received.” Before so instructing the jury, the court asked whether the
defense objected. The defense responded “no.” The next day, Payne
moved for a mistrial, arguing that the question showed that the jury
considered extra-judicial information because it suggested that the jurors
were split on the theory and traded votes to ensure a “solid” conviction.
The trial court denied the motion.

¶98             Payne does not point to any indication, apart from the
question itself, that the jurors received extraneous information or that any
other misconduct occurred. Our cases ordering a new trial have focused
on stronger reasons to believe that jurors received extrinsic evidence. See,
e.g., State v. Glover, 159 Ariz. 291, 293, 295, 767 P.2d 12, 14, 16 (1988) (jury
foreman submitted affidavit and testified that two jurors consulted
outside sources and shared information); State v. McLoughlin, 133 Ariz.
458, 460-61, 652 P.2d 531, 533-34 (1982) (during deliberations “one juror
was told by an unidentified third party that if appellant was found not
guilty by reason of insanity, he would go free”).

¶99          Nor did the trial court err in responding to the jury’s
question. The court consulted both parties and both agreed to the
proposed response. Payne further argues that the instruction to consider
evidence “received” did not explicitly limit the jurors to considering only
evidence admitted. We do not believe a reasonable juror would have
inferred any distinction between “received” and “admitted” in this
context. The trial court did not abuse its discretion.




                                      29
                          STATE V. PAYNE
                     Amended Opinion of the Court

      J.     Juror Bias

¶100           Payne argues that the trial court abused its discretion by
denying his motion to strike Juror 28 for bias or, in the alternative, to
designate her as an alternate. “The trial court, which has the opportunity
to observe the prospective juror’s demeanor and the tenor of his answers,
is in a position to determine first hand whether a juror can render a fair
and impartial verdict.” Chaney, 141 Ariz. at 303, 686 P.2d at 1273 (internal
quotation marks and citations omitted). Thus, we review a trial court’s
ruling on juror misconduct and the decision on whether to strike for an
abuse of discretion. State v. Moore, 222 Ariz. 1, 10 ¶ 37, 213 P.3d 150, 159
(2009); Dann III, 220 Ariz. at 370 ¶ 106, 207 P.3d at 623. We presume that
jurors are impartial absent evidence to the contrary. See Lockhard v.
McCree, 476 U.S. 162, 184 (1986).

¶101          Payne alleges that Juror 28 made several statements during
trial that raised questions about her impartiality. In a conference in
chambers, another juror said that Juror 28 mocked witnesses and
complained about defense witnesses. The juror was concerned because,
while Juror 28 made the comments “[u]nder her breath,” the reporting
juror thought they were “loud enough to where there’s the possibility of
the prosecution” or a detective at counsel table hearing her. Counsel for
the State denied hearing more than “exasperated sighs, from both sides,”
and stated the detective had not heard anything either.

¶102          Although he did not ask to question Juror 28, Payne asked
the court to designate her as an alternate and excuse her, citing concerns
that she was disruptive and inappropriately sharing opinions. The court
denied these requests and instead reread the admonition to the jury.

¶103         Judges must respond to a claim of juror misconduct in a
manner “commensurate with [its] severity.” State v. Miller, 178 Ariz. 555,
557, 875 P.2d 788, 790 (1994). Here, the complaining juror said that Juror
28’s comments were annoying, but they did not reveal that she was biased
or had made up her mind before hearing all the evidence. Neither the
State nor the defense heard the comments, and no evidence shows that
other members of the jury heard them. In these circumstances, the
rereading of the admonition was a response commensurate with the




                                    30
                            STATE V. PAYNE
                       Amended Opinion of the Court

severity of the alleged misconduct. Therefore, the trial judge did not
abuse his discretion by refusing to strike Juror 28 or designate her as an
alternate.

¶104          Payne now argues that a mistrial should have been granted.
We review this decision for fundamental error. See Henderson, 210 Ariz. at
567 ¶ 19, 115 P.3d at 607. As it was not an abuse of discretion to refuse to
strike Juror 28, it was not fundamental error to not order a mistrial based
on her conduct.

       K.     Prosecutorial Misconduct

¶105          Payne contends that the prosecutor committed misconduct
by vouching for a witness, suggesting through facts not in evidence that
Payne was a “bad man,” improperly leading witnesses, improperly
extracting a diagnosis from a defense expert, and commenting on Payne’s
invocation of his right to remain silent. Payne claims these acts
constituted individual and cumulative prosecutorial misconduct.

¶106          In reviewing prosecutorial misconduct claims, we first
review each allegation individually for error. See Roque, 213 Ariz. at 228 ¶
154, 141 P.3d at 403. We will find an error harmless if we can say beyond
a reasonable doubt that it did not affect the verdict. See, e.g., State v.
Nelson, 229 Ariz. 180, 189 ¶ 36, 273 P.3d 632, 641, cert. denied, 133 S. Ct. 131
(2012). We then consider whether the cumulative effect of individual
allegations “so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” State v. Hughes, 193 Ariz. 72, 79 ¶ 26,
969 P.2d 1184, 1191 (1998) (quoting Donnelly v. DeChristoforo, 416 U.S. 637,
643 (1974)).

              1.     Vouching

¶107         In closing argument, Payne’s counsel argued that Gonzales
was more culpable than Payne, yet she was allowed to plead guilty to
second degree murder. Payne argued this showed that he was guilty of,
at most, second degree murder. In rebuttal, the State argued that it was
inappropriate to use Gonzales’s plea agreement as a basis for comparing
culpability:




                                      31
                          STATE V. PAYNE
                     Amended Opinion of the Court


      Reina Gonzales was given a plea agreement in this case so
      the State could provide you with testimony about what
      happened to those children, what really happened to those
      children.

      The Judge is not going to give you an instruction saying if
      you find Reina Gonzales was given a second degree plea,
      therefore you can assign the defendant the same culpability
      that Reina Gonzales was given through the plea.

      The only thing that you get to consider that plea agreement
      for is whether or not it impacts Reina Gonzales’[s] credibility
      or bias in this case. Not to compare guilt, not [to] compare
      culpability, and not to somehow use it as a measure of this
      man’s responsibility in the deaths of his children.

¶108         Payne claims that the State’s argument improperly vouched
for Gonzales’s testimony by referring to “what really happened.” Because
Payne objected at trial, we review to determine whether the prosecutor’s
conduct was improper and for harmless error.

¶109           Prosecutorial vouching occurs if, among other things, “the
prosecutor suggests that information not presented to the jury supports”
the evidence, testimony, or witness. State v. Vincent, 159 Ariz. 418, 423,
768 P.2d 150, 155 (1989). When improper vouching occurs, the trial court
can cure the error by instructing the jury not to consider attorneys’
arguments as evidence. See Newell, 212 Ariz. at 403 ¶¶ 67-68, 132 P.3d at
847; State v. Lamar, 205 Ariz. 431, 441 ¶ 54, 72 P.3d 831, 841 (2003).

¶110          The prosecutor’s comment that Gonzales would testify about
“what really happened,” considered alone, could be interpreted to suggest
the prosecutor’s knowledge that Gonzales was telling the truth, thereby
improperly bolstering Gonzales’s testimony by lending the “prestige” of
the government. See Vincent, 159 Ariz. at 423, 768 P.2d at 155. But the
prosecutor immediately followed these three words by discussing the
jurors’ duty to evaluate Gonzales’s truthfulness.




                                    32
                           STATE V. PAYNE
                      Amended Opinion of the Court

¶111           A prosecutor may elicit testimony that a witness agreed to
testify truthfully as part of a plea. See Lamar, 205 Ariz. at 441 ¶ 52, 72 P.3d
at 841; State v. McCall, 139 Ariz. 147, 159, 677 P.2d 920, 932 (1983).
Moreover, in a fact situation much like this one, we found no error in a
prosecutor’s passing statement that the witness told police “exactly what
happened.” State v. King, 180 Ariz. 268, 276-77, 883 P.2d 1024, 1032-33
(1994).

¶112         Here, Payne referenced Gonzales’s plea agreement to
encourage the jurors to compare her culpability to Payne’s. The
prosecutor’s response attempted to clarify that the jurors should not
compare culpability based on Gonzales’s plea agreement, but could
consider the plea in determining Gonzales’s credibility and assessing her
veracity. This was a reasonable response to Payne’s argument.

¶113          Additionally, the trial court instructed the jurors that the
lawyers’ arguments were not evidence and that they should consider each
witness’s motive or prejudice. These instructions were sufficient to dispel
any taint if vouching occurred. See Newell, 212 Ariz. at 403 ¶ 68, 132 P.3d
at 847. We find any vouching error harmless.

              2.     Innuendo

¶114          Payne claims that the trial court erred by denying his motion
for a mistrial after the prosecutor improperly implied that he filed a CPS
report that triggered an investigation of the children’s mother, Jamie
Hallam. We review the trial court’s ruling for abuse of discretion. Id. at
402 ¶ 61, 132 P.3d at 846.

¶115          In 2005, CPS investigated Hallam for substance abuse.
During re-direct, the prosecutor asked Hallam if she knew who had
reported her drug use to CPS. When she replied that she did not, the
prosecutor asked: “For all you know, that could have been Chris Payne?”
She replied that she did not know. Payne objected and moved for a
mistrial because he claimed that “not a shred of evidence” suggested that
he made the report. The State responded that Payne’s statement to police
that he got involved with the children because of Hallam’s drug use
provided a good faith basis for the question. The trial court denied the




                                      33
                           STATE V. PAYNE
                      Amended Opinion of the Court

motion.

¶116          Counsel’s “[s]uggestion by question or innuendo of
unfavorable matter which is not in evidence and which would be
irrelevant, or for which no proof exists[,] is improper and can constitute
misconduct.” Pool v. Superior Court (Fahringer), 139 Ariz. 98, 103, 677 P.2d
261, 266 (1984).

¶117           The prosecutor did not commit misconduct by asking if
Payne filed the report with CPS because in his post-arrest statement,
Payne said several times that the children were malnourished when they
arrived at his home and that he suspected Hallam of leaving them with
strangers while she was high on methamphetamine. Based on these
statements, and absent other information to the contrary, the State had a
good-faith basis for the question. Moreover, we fail to see how possibly
reporting Hallam constitutes evidence “unfavorable” to Payne. Thus, the
trial court did not abuse its discretion by denying Payne’s mistrial motion.

             3.     Improper questioning

¶118           During the prosecutor’s direct examination of witnesses,
Payne objected to several questions as leading or assuming facts not in
evidence.      He asserts, with little analysis, that the prosecution’s
questioning violated his due process rights, deprived him of a fair trial,
and constituted prosecutorial misconduct. We ordinarily begin by
reviewing the trial court’s ruling on the objections for abuse of discretion.
See State v. (Joseph W.) King, 66 Ariz. 42, 49, 182 P.2d 915, 919 (1947). But
Payne does not analyze the questions individually, instead suggesting a
pattern of prosecutorial misconduct that denied him due process. Thus,
we analyze this line of questioning as a whole.

¶119           Leading questions suggest an answer. State v. Simoneau, 98
Ariz. 2, 5, 401 P.2d 404, 407 (1965). Ordinarily, courts should not permit
leading questions on direct examination, Ariz. R. Evid. 611(c), although
such questions may be permitted when doing so will serve “the ends of
justice,” Joseph W. King, 66 Ariz. at 49, 182 P.2d at 919. No error occurs,
however, when the answer suggested “had already been received as the
result of proper questioning.” State v. Garcia, 141 Ariz. 97, 101, 685 P.2d




                                     34
                           STATE V. PAYNE
                      Amended Opinion of the Court

734, 738 (1984).

¶120           The questions that Payne complains of here took various
forms. Some were leading; others, although not leading, suggested facts
not in evidence. But the facts assumed in these questions could have been,
and many were, elicited through proper questioning or were otherwise
inconsequential. Other questions were not improper for any reason Payne
raises on appeal. Payne presented no evidence that the prosecutor
deliberately misframed questions, and many of Payne’s objections were
sustained, after which the prosecutor rephrased the question.
Furthermore, the trial court instructed the jurors not to consider responses
to any question for which it had sustained an objection. The trial court
sustained several objections and issued curative instructions. We assume
the jurors followed those instructions, see State v. Prince, 204 Ariz. 156, 158
¶ 9, 61 P.3d 450, 452 (2003), and did not consider the questions to which
objections were sustained. In light of these circumstances, and in the
absence of any showing of intentional misconduct, no reversible error
occurred.

              4.     ASPD “diagnosis” in penalty phase

¶121         In the mitigation portion of the trial, Payne called Dr.
Thomas Reidy to testify that Payne had risk factors for irregular
psychological development, which might have made him more apt to
abuse children. Payne claims that, on cross-examination, the State
improperly elicited a diagnosis of Anti-Social Personality Disorder
(“ASPD”) from Dr. Reidy.

¶122           To prepare to testify, Dr. Reidy reviewed records and
transcripts of interviews, but he did not evaluate Payne or interview
anyone familiar with him. After Payne’s direct examination of Dr. Reidy,
the trial court denied Payne’s objection to the State questioning Dr. Reidy
about the criteria for ASPD or whether Payne met these criteria. The
court, however, warned the State not to reference a “diagnosis” of ASPD.
On cross-examination, the State asked Dr. Reidy whether Payne satisfied
the criteria for ASPD to prove an alternative explanation for Payne’s
behavior.




                                      35
                           STATE V. PAYNE
                      Amended Opinion of the Court

¶123          The prosecution may introduce any evidence in the penalty
phase “that is relevant to any of the mitigating circumstances . . . ,
regardless of its admissibility under the rules governing admission of
evidence at criminal trials.” A.R.S. § 13-751(C); see also State v. VanWinkle,
230 Ariz. 387, 394 ¶ 28, 285 P.3d 308, 315 (2012). The prosecutor’s
questioning here rebutted Payne’s claims that he had a number of risk
factors for being an abusive parent, which might have caused him to be
abusive, by showing alternative explanations for Payne’s conduct.

¶124           Payne relies on State v. Lundstrom, 161 Ariz. 141, 146, 776
P.2d 1067, 1072 (1989), and State v. Moody, 208 Ariz. 424, 461-62 ¶¶ 157-64,
94 P.3d 1119, 1156-57 (2004), for the proposition that the prosecution may
not elicit a diagnosis that is not in evidence. Payne’s reliance is misplaced.
In Lundstrom, we held it improper for experts to testify to “facts or data” if
merely acting “as a conduit for another non-testifying expert’s opinion.”
161 Ariz. at 148, 776 P.2d at 1074; see also Moody, 208 Ariz. at 462 ¶ 165, 94
P.3d at 1157 (to same effect). But the prosecutor did not use Dr. Reidy as a
conduit through which to present another expert’s opinion. Instead, she
sought to elicit Dr. Reidy’s opinion that Payne showed factors consistent
with the criteria for ASPD. Moreover, Dr. Reidy did not give a
“diagnosis” of ASPD.           Thus, the questioning did not constitute
misconduct. Because we find no error in the prosecutor’s cross-
examination, Payne’s Eighth Amendment arguments also fail.

              5.     Comment on Payne’s right to silence in opening
                     statement

¶125           Payne claims that the prosecutor improperly commented on
his right to silence by referring, in her opening statement, to what Payne
“is going to tell you.” At the conclusion of the opening statement, Payne
moved for a mistrial, which the court denied.

¶126         We review a trial court’s ruling on a motion for mistrial for
abuse of discretion because the trial court is in the best position to
determine the effect of any inappropriate statements. Newell, 212 Ariz. at
402 ¶ 61, 132 P.3d at 846. But because “the protection against self-
incrimination includes freedom from adverse consequences flowing from
defendant’s exercise of his right,” it is reversible error to refer to a




                                     36
                           STATE V. PAYNE
                      Amended Opinion of the Court

defendant’s “protected silence,” State v. Carrillo, 156 Ariz. 125, 128, 750
P.2d 883, 886 (1988), if jurors would “naturally and necessarily perceive it
to be a comment on the defendant’s failure to testify,” State v. Rutledge, 205
Ariz. 7, 13 ¶ 33, 66 P.3d 50, 56 (2003).

¶127         In her opening statement during the guilt phase, the
prosecutor told the jury, “you are going to hear from the defendant
himself. The interview that he gave to the police officers on March 1, 2007.
And you are going to hear that he lied, too, in the beginning.” In the next
several sentences, the prosecutor referred to things the defendant said
“throughout the interview.” But then she started discussing what Payne
is “going to tell you.” Payne argues that each of these comments
improperly directed the jury’s attention to his exercise of his right not to
testify.

¶128          The State did not err in its opening statement by referring to
comments Payne made in the taped interview. See Rutledge, 205 Ariz. at
14 ¶ 38, 66 P.3d at 57. The prosecutor’s comments about what Payne “is
going to tell you” are a closer call. Taken in context, however, they were
not “calculated to direct the jurors’ attention to [Payne’s] exercise of his
fifth amendment privilege” because they too referred to evidence from the
taped interview. See State v. McCutcheon, 159 Ariz. 44, 45, 764 P.2d 1103,
1104 (1988). As such, the prosecutor’s comments did not constitute
reversible error and the trial court did not abuse its discretion in denying
Payne’s mistrial motion.

              6.     Comment on Payne’s lack of emotion during trial

¶129          Payne argues that, in closing arguments, the prosecutor
improperly referred to Payne’s lack of emotion during trial. Because he
did not object, we review for fundamental error.5

¶130          In its guilt-phase closing arguments, the State compared

5      Payne claims that he preserved this issue by objecting to comments
the State made in its opening statement about his taped interview. But
this objection was unrelated to the as yet unmade references to his
demeanor at trial. Payne’s objection thus did not preserve this issue.




                                     37
                           STATE V. PAYNE
                      Amended Opinion of the Court

Payne’s lack of emotion at trial to the excessive emotion he displayed
during his interrogation. We have not confronted directly whether a
prosecutor may ask jurors to consider a defendant’s affect at trial, but
most courts that have addressed this issue have found such comments
improper. See, e.g., United States v. Mendoza, 522 F.3d 482, 491 (5th Cir.
2008) (stating that “courtroom demeanor of a non-testifying criminal
defendant is an improper subject for comment”); United States v. Schuler,
813 F.2d 978, 981 (9th Cir. 1987) (holding that, “in the absence of a curative
instruction,” a comment on “off-the-stand behavior” violates the due
process clause); United States v. Pearson, 746 F.2d 787, 796 (11th Cir. 1984)
(to same effect); United States v. Carroll, 678 F.2d 1208, 1209-10 (4th Cir.
1982) (to same effect). But see Cunningham v. Perini, 655 F.2d 98 (6th Cir.
1981) (per curiam) (upholding comments because they referred to conduct
and demeanor rather than failure to testify).

¶131          The differing results in these cases turn on the courts’ views
of the legitimate arguments on each side. We urge courts and prosecutors
to proceed cautiously in this area, given its dubious relevance and
potential to implicate a defendant’s right not to testify. We decline to set
forth an absolute rule that such statements are always improper, however,
preferring to let trial courts assess the totality of the circumstances in each
case. We caution that while the jury may observe a defendant’s
demeanor, a prosecutor’s reference to the demeanor of a non-testifying
defendant may draw attention to the defendant’s failure to testify and is
based on evidence not presented at trial and not covered by any jury
instruction. See Mendoza, 522 F.3d at 491. Although we conclude that the
State’s comment here was improper, we do not find fundamental error.

              7.     Question re lack of remorse in penalty phase

¶132         Payne claims that it was improper for the prosecutor to ask
Dr. Reidy whether lack of remorse is a characteristic of ASPD. Payne
objected and moved for a mistrial. The court overruled the objection and
denied the motion. We review the trial court’s ruling for abuse of
discretion. Newell, 212 Ariz. at 402 ¶ 61, 132 P.3d at 846.

¶133        The prosecutor’s question here did not ask about Payne’s
remorse, but rather asked whether lack of remorse was a factor in




                                      38
                           STATE V. PAYNE
                      Amended Opinion of the Court

determining ASPD. It was one of several questions rebutting Payne’s
suggestion that risk factors in his background led Payne to abuse his
children. Thus, although Payne did not raise remorse as a mitigating
factor, the questioning was relevant and not unduly prejudicial. It
therefore was not improper.

              8.     Cumulative error

¶134          Payne claims that the prosecutor’s comments gave rise to
reversible cumulative error. In analyzing such issues, we examine
whether the cumulative effect of individual allegations “so infected the
trial with unfairness as to make the resulting conviction a denial of due
process.” Hughes, 193 Ariz. at 79 ¶ 26, 969 P.2d at 1191 (quoting Donnelly,
416 U.S. at 637). Cumulative error warrants reversal only if misconduct
was “so pronounced and persistent that it permeate[d] the entire
atmosphere of the trial,” id. (quoting State v. Atwood, 171 Ariz. 576, 611,
832 P.2d 593, 628 (1992)), indicating that “the prosecutor intentionally
engaged in improper conduct and did so with indifference, if not a
specific intent, to prejudice the defendant,” Roque, 213 Ariz. at 228 ¶ 155,
141 P.3d at 403 (internal quotation marks omitted).

¶135         Payne has not shown misconduct that permeated the trial
and infected it with unfairness, and so we reject his claim of cumulative
error.

       L.     Aggravation Phase Jury Instructions

¶136           Payne challenges several sentencing instructions. We review
the trial court’s decision to refuse a requested instruction for an abuse of
discretion, Johnson, 212 Ariz. at 431 ¶ 15, 133 P.3d at 741, and review de
novo whether the trial instructions as a whole correctly state the law, State
v. Bocharski, 218 Ariz. 476, 487 ¶ 47, 189 P.3d 403, 414 (2008).

              1.     § 13-751(F)(8): “one or more other homicides”

¶137          Payne argues that the trial court erred by failing to detail the
elements required for the jury to find the (F)(8) aggravating circumstance.
The instruction given stated: “the defendant has been convicted of one or




                                     39
                           STATE V. PAYNE
                      Amended Opinion of the Court

more other homicides, and those homicides were committed during the
commission of the offense.” Payne correctly notes that this instruction
was insufficient because it fails to inform the jurors that they must find a
temporal, spatial, and motivational relationship between the homicides.
See Dann III, 220 Ariz. at 364 ¶ 57, 207 P.3d at 617. Because Payne neither
requested further instructions nor objected at trial, however, we review
for fundamental error. See State v. Hargrave, 225 Ariz. 1, 14 ¶47, 234 P.3d
569, 582 (2010). We have previously found harmless error when the
temporal, spatial, and motivational relationship requirements were not
submitted to a jury if no jury could have found them unsatisfied. See State
v. Dann (Dann II), 206 Ariz. 371, 374 ¶ 11, 79 P.3d 58, 61 (2003).

¶138          A conviction for multiple homicides, by itself, does not
satisfy the (F)(8) aggravator. Ellison, 213 Ariz. at 143 ¶ 128, 140 P.3d at
926. “[T]he State must establish beyond a reasonable doubt that the
murders took place during a ‘continuous course of criminal conduct’ and
were ‘temporally, spatially, and motivationally related.’” Moore, 222 Ariz.
at 16 ¶ 86, 213 P.3d at 165 (quoting Armstrong III, 218 Ariz. at 464 ¶ 67, 189
P.3d at 391).

¶139          Payne does not dispute that the murders were spatially
related, but argues that the State failed to prove temporal proximity and
motivational relationship.

¶140          Payne asserts that as much as a week might have passed
between the deaths of Ariana and Tyler, and thus the temporal proximity
requirement is not met. We begin by clarifying that the focus is on the
temporal relationship of the conduct causing the deaths rather than the
deaths themselves. For example, if a defendant shoots two victims during
a robbery, but one survives for a week, the temporal proximity
requirement is satisfied. Substantial evidence showed that Payne locked
his children in a closet and starved them to death over several months.
No reasonable jury could fail to find the temporal requirement satisfied.

¶141         Payne also argues that the motivational element is not
satisfied because “a motive was never established.” But the State
presented evidence that the children were locked in a closet and starved
— the acts that eventually killed them — because they bothered Gonzales,




                                     40
                           STATE V. PAYNE
                      Amended Opinion of the Court

hindered Payne’s work, and were otherwise “inconvenient.” No evidence
suggested that Payne killed each child for a different reason. See Ellison,
213 Ariz. at 144 ¶ 130, 140 P.3d 927 (motivational element satisfied when
defendant did not claim killing victims for different reasons); see also
Armstrong III, 218 Ariz. at 464 ¶¶ 68-70, 189 P.3d at 391 (“[t]he motives for
killing each victim need not be identical”; motivationally related when
defendant “hated” second victim and hate arose from motive in killing
first victim). Although the (F)(8) instruction given was deficient, Payne
has failed to show fundamental error because no rational jury would have
failed to find a temporal, spatial, and motivational relationship between
the murders of Ariana and Tyler.

              2.     § 13-751(F)(6): “especially heinous, cruel or depraved
                     manner”

¶142           Payne claims that the instruction given for the (F)(6)
aggravator was overbroad and insufficient because it led the jury to
believe a negligent state of mind was sufficient to establish the (F)(6)
factor. The court instructed that, to find the especially cruel aggravating
factor, the jury must find that “the defendant intended, knew, or should
have foreseen” that the victims would suffer mental anguish or physical
pain. Payne did not object at trial, so we review for fundamental error.
See Hargrave, 225 Ariz. at 14 ¶ 47, 234 P.3d at 582.

¶143          We note initially that the expression “should have foreseen”
seems simply to have been used in lieu of the proper phrase “should have
known.” Nonetheless, Payne correctly observes that we held in State v.
Carlson, 202 Ariz. 570, 582 ¶ 44, 48 P.3d 1180, 1192 (2002), that the tort
concept of “foreseeability” is insufficient to support the finding of the
aggravating circumstance. But Carlson was analyzing the mental state for
the unobserved acts of an accomplice and is therefore inapposite. Id. at
581-82 ¶ 43, 48 P.3d at 1191-92.

¶144          In this case, the State presented substantial evidence that
Payne locked his children in a closet to live in darkness and filth, suffering
from injuries while they slowly starved to death, which he either knew or
should have known would cause them to suffer mental anguish and
physical pain. This type of involvement differs from the accomplice in




                                     41
                          STATE V. PAYNE
                     Amended Opinion of the Court

Carlson who had no reason to believe her victim would suffer. No
reasonable jury could find that Payne would not have known that the
children would suffer as they starved to death in the dark closet. Thus,
although the instruction was erroneous, no fundamental error occurred.

             3.     Enmund and Tison findings

¶145           Payne argues that the trial court deprived him of his
constitutional rights by failing to require the jurors to make an explicit
finding that he “kill[ed], attempt[ed] to kill, or intend[ed] that a killing
[would] take place or that lethal force [would] be employed” under
Enmund v. Florida, 458 U.S. 782, 797 (1982), or that he was a major
participant in a crime and acted with reckless indifference to human life
under Tison v. Arizona, 481 U.S. 137, 158 (1987). The trial court did not
instruct the jury to make this determination in the aggravation phase, and
Payne did not object or ask for the findings to be made. But he now
claims this omission constituted fundamental error.

¶146          By statute, the jury must make all factual determinations
necessary to impose a death sentence. See A.R.S. § 13-752(P). Payne
argues that this includes explicit Enmund/Tison findings.

¶147         The jurors unanimously convicted Payne of premeditated
murder, meaning that they found that he personally intended to cause or
knew his conduct would cause the deaths of the children. Thus, there was
no need for a separate finding that he was a major participant in the
crimes. There was no fundamental error. Cf. State v. Joseph, 230 Ariz. 296,
300 ¶ 18, 283 P.3d 27, 31 (2012) (failure to instruct on Enmund/Tison was
not an abuse of discretion where defendant was sole participant in
murder).6

             4.     Voluntary intoxication consideration

¶148        Payne argues that the jury was unconstitutionally prevented
from considering his drug use as a defense to the culpable mental state

6       In cases involving felony murder where an accomplice is involved,
trial courts should give the Enmond/Tison instruction.




                                    42
                           STATE V. PAYNE
                      Amended Opinion of the Court

necessary for the (F)(6) aggravating circumstance. In his closing argument
in the aggravation phase, Payne argued that his drug use prevented him
from having sufficient mental ability to intend to cause physical pain or
mental anguish. The State responded that voluntary intoxication is not a
defense to a culpable mental state. The final instructions submitted to the
jury noted that instructions from previous phases still applied, which
included an instruction that voluntary intoxication is not a defense to a
crime involving a culpable mental state such as knowledge or intent, but
did not specifically address voluntary intoxication from drug use in
connection with the (F)(6) “heinous, cruel or depraved” aggravator.
Payne did not object to the instruction or the State’s argument. We thus
review for fundamental error. See Hargrave, 225 Ariz. at 14 ¶ 47, 234 P.3d
at 582.

¶149         Section 13-503 provides that “[t]emporary intoxication . . . is
not a defense for any criminal act or requisite state of mind.” The focus of
the heinous and depraved aggravator is the defendant’s state of mind. See
State v. Womble, 225 Ariz. 91, 100 ¶ 34, 235 P.3d 244, 253 (2010). The statute
therefore prohibits the jury from using voluntary intoxication to negate
intent — that is, the jury could not consider voluntary intoxication as a
basis for concluding that the defendant lacked the state of mind for the
(F)(6) aggravating circumstance. Cf. State v. Boyston, 231 Ariz. 539, 550
¶¶ 52, 54, 298 P.3d 887, 898 (2013) (concluding court did not err by
excluding evidence of voluntary intoxication on the issue of
premeditation).

¶150          Payne claims, however, that he has a constitutional right to
rebut the (F)(6) aggravator with evidence of intoxication. The Supreme
Court has held that in the guilt phase there is no due process violation
when a state prohibits juries from considering voluntary intoxication.
Montana v. Egelhoff, 518 U.S. 37, 56 (1996). Furthermore, the Eighth
Amendment ensures that defendants have the opportunity to argue that
the intoxication warranted leniency, which Payne was permitted to do in
the penalty phase. The trial court’s instructions correctly stated the law;
thus, there was no fundamental error.




                                     43
                           STATE V. PAYNE
                      Amended Opinion of the Court

      M.     Consideration of Age of Victims

¶151          Payne argues that the jury twice considered the victims’
ages, once when finding the “heinous, cruel or depraved” factor and again
when considering the “age of the victim” aggravator. But we have held
that “[a] jury, like a sentencing judge, may use one fact to find multiple
aggravators, so long as the fact is not weighed twice when the jury
assesses aggravation and mitigation.” State v. Velazquez, 216 Ariz. 300, 307
¶ 22, 166 P.3d 91, 98 (2007). In its final instructions, the court admonished
the jury that “you may only consider the age of the children once” in
assessing aggravation and mitigation. Absent evidence to the contrary,
we presume the jury followed the instructions. Id. ¶ 24.

¶152          Payne argues that there was insufficient evidence to
establish the factors that can make a murder cruel, heinous, or depraved,
leaving the age as the sole basis for proving the aggravator. We have
concluded, however, that substantial evidence supported the jury’s
finding that the murders were especially cruel. See supra ¶¶ 142-44. Thus
age was not the sole factor supporting the jury’s finding of that factor.

      N.     Mitigating Evidence

¶153         Payne argues that the trial court deprived him of a fair trial
by precluding some of his mitigation evidence during the penalty phase.
We review evidentiary rulings and discovery sanctions for abuse of
discretion. Armstrong III, 218 Ariz. at 458 ¶ 20, 189 P.3d at 385; State v.
Towery, 186 Ariz. 168, 186, 920 P.2d 290, 308 (1996).

             1.      Dr. Biggan

¶154          Payne argues that the trial court erred by precluding Dr.
Biggan from testifying after Payne failed to timely disclose her. Dr.
Biggan is a psychologist who evaluated Payne in November 2008. The
defense did not disclose her report, but the State discovered it after trial
had begun. About two weeks later, less than two days before the penalty
phase began, the defense disclosed Dr. Biggan as a mitigation witness. On
the State’s motion, the trial court precluded Dr. Biggan’s testimony.




                                     44
                           STATE V. PAYNE
                      Amended Opinion of the Court

¶155          Rule 15.7 of the Arizona Rules of Criminal Procedure
permits the court to sanction a party who fails to timely disclose evidence.
But any sanction must be proportional to the violation and must have “a
minimal effect on the evidence and merits.” Towery, 186 Ariz. at 186, 920
P.2d at 308. Factors to consider include importance of the witness or
evidence, the degree of surprise, and bad faith. See id.

¶156         Given these factors, the court did not abuse its discretion by
precluding Dr. Biggan from testifying. Payne sought to call her to show
that he could not conform his conduct to the law because of executive
functioning deficiencies. Although such evidence would be relevant to a
statutory mitigating circumstance, because he did not make an offer of
proof, Payne has not established the importance of Dr. Biggan’s evidence.
Indeed, most of Dr. Biggan’s report showed that Payne had relatively
normal functioning. And the surprise was substantial as the disclosure
two days before the penalty phase deprived the State of the opportunity to
interview Dr. Biggan or obtain a rebuttal witness.

              2.     “Good inmate” evidence

¶157          Payne sought to present evidence that he was a “good
inmate” as a mitigating factor. Finding good behavior in jail irrelevant,
the trial court precluded the evidence. We have recognized that good
inmate evidence can be mitigating, but it is generally afforded little
weight. See, e.g., State v. Pandeli, 215 Ariz. 514, 533 ¶ 82, 161 P.3d 557, 576
(2007). Thus the trial court erred. Because Payne objected to this error
below, we must determine whether preclusion of the good inmate
evidence was harmless. See Bible, 175 Ariz. at 588, 858 P.2d at 1191. To
determine harmlessness, we assess the effect of “the error in light of all of
the evidence” presented in the case. Id. We must be able to “say, beyond
a reasonable doubt, that the error did not contribute to or affect the
verdict.” Id.

¶158         After reviewing the record, we find the erroneous preclusion
of “good inmate” evidence harmless beyond a reasonable doubt. We
conclude, as we did in Bible, that “[i]f the evidence against Defendant had
been closely balanced, strong, or even very strong, . . . it would be
impossible to say beyond a reasonable doubt that the [precluded]




                                      45
                           STATE V. PAYNE
                      Amended Opinion of the Court

evidence did not affect the verdict. . . . Factually, however, this is a very
unusual case.” Id. Virtually undisputed evidence established that Payne
locked his children in a closet and starved them to death. We conclude
beyond a reasonable doubt that any evidence that Payne was a good
inmate or that he incurred no disciplinary infractions while incarcerated
would not have moved any juror to recommend leniency or otherwise
have affected any juror’s decision regarding the appropriate sentence. If
improperly excluded mitigation evidence may ever be considered
harmless, surely this is the case.

¶159           We thus conclude beyond a reasonable doubt that in light of
the horrific nature of Payne’s crimes, the strength of the aggravators
proved, see State v. Hampton, 213 Ariz. 167, 185 ¶ 90, 140 P.3d 950, 968
(2006) (stating that the “multiple homicides aggravator is of extraordinary
weight”), and the weakness of the “good inmate” mitigator along with the
other mitigation evidence Payne presented, see Pandeli, 215 Ariz. at 533
¶ 82, 161 P.3d at 576 (affording good inmate evidence little weight
“because prisoners are expected to behave”), the result would not have
changed had this error not occurred. If, as the dissent suggests, preclusion
of the “good inmate” mitigator requires reversal in this case, then
preclusion of a mitigator would require reversal in every case. Such a
result would effectively eviscerate harmless error review and mean that
exclusion of any piece of mitigation evidence, no matter how minor, is
structural error, which is contrary to our case law. See Anderson I, 197
Ariz. at 323 ¶ 22, 4 P.3d at 378 (explaining that erroneous evidentiary
rulings are subject to harmless error analysis); see also State v. Tucker, 215
Ariz. 298, 316 ¶ 66, 160 P.3d 177, 195 (2007) (noting that “[w]e have
recognized structural error in only a few instances”).

       O.     Penalty Phase Rebuttal Evidence

¶160          Payne contends that the trial court committed reversible
error in the penalty phase by permitting the State to elicit information
about his criminal history and admitting a DVD of Payne’s jail visit with
his father. This Court reviews evidentiary rulings for abuse of discretion.
Armstrong III, 218 Ariz. at 458 ¶ 20, 189 P.3d at 385. Evidence is admissible
in the penalty phase if it is relevant to rebut the primary thrust of
mitigating evidence and it is not unduly prejudicial. See Hampton, 213




                                     46
                            STATE V. PAYNE
                       Amended Opinion of the Court

Ariz. at 180 ¶ 51, 140 P.3d at 963.

              1.     Payne’s criminal history

¶161          Payne’s criminal history was relevant to rebut Payne’s
assertion that “risk factors” made him a poor parent. Recognizing the
potential prejudice that may arise from criminal history, the trial court
directed the State not to elicit details that would cause undue prejudice.
The State elicited reports of domestic violence, threats of violence, and
deceit to police. A summary was admitted into evidence. In light of the
limits it imposed, the trial court did not abuse its discretion.

              2.     Jailhouse DVD

¶162          The State introduced a DVD of Payne’s father’s visit with
Payne at the jail to rebut Payne’s claim that he was a caring person when
not on drugs. Payne objected on grounds of prejudice and irrelevance.
The video focuses on a discussion regarding Payne’s son, Christopher Jr.
It shows Payne berating his father and demeaning family members for not
doing enough to ensure that Christopher is properly cared for. Although
the DVD was only marginally probative, playing it did not unfairly
prejudice Payne because, while it showed Payne yelling at his father, it
also showed that he cared about his son. See Ariz. R. Evid. 403 (balancing
probative value and danger of unfair prejudice). Therefore, the court did
not abuse its discretion in allowing it to be played.

                   III. ABUSE OF DISCRETION REVIEW

¶163           Because the murders occurred after August 1, 2002, we
review the jury’s finding of aggravating factors and the imposition of a
death sentence for abuse of discretion. A.R.S. § 13-756(A). Evidence is
sufficient to support the finding of an aggravating circumstance if
reasonable persons could conclude it establishes the circumstance beyond
a reasonable doubt. See State v. Gallardo, 225 Ariz. 560, 565 ¶ 15, 242 P.3d
159, 164 (2010). We must uphold a jury’s decision that death is
appropriate if any “reasonable jury could have concluded that the
mitigation established by the defendant was not sufficiently substantial to
call for leniency.” Id. at 570 ¶ 51, 242 P.3d at 169 (quoting State v. Morris,




                                      47
                           STATE V. PAYNE
                      Amended Opinion of the Court

215 Ariz. 324, 341 ¶ 81, 160 P.3d 203, 220 (2007)).

       A.     Aggravating Circumstances

¶164            The jury found three aggravating factors: (1) the murders
were committed in an especially cruel, heinous, or depraved manner,
A.R.S. § 13-751(F)(6); (2) one other homicide was committed during the
commission of the offense, id. § 13-751(F)(8); and (3) the victims were
under the age of fifteen and the defendant was over the age of eighteen, id.
§ 13-751(F)(9). Payne does not dispute the third aggravator, but does
dispute the first two. Because we have earlier set forth our reasoning
supporting the jury’s finding of the (F)(6) factor based on cruelty, see supra
¶¶ 142-44, we do not address heinousness or depravity. State v. Gretzler
(Gretzler II), 135 Ariz. 42, 51, 659 P.2d 1, 10 (1983) (noting that the (F)(6)
aggravator is established if the jury finds that the State proved cruelty,
heinousness, or depravity). Regarding the (F)(8) factor, because we found
that the jury instructions did not constitute fundamental error and that no
reasonable jury could have found the additional elements not satisfied, see
supra ¶¶ 137-41, we reject these arguments. The jury did not abuse its
discretion in finding all three aggravating circumstances.

       B.     Death Sentences

¶165          We will overturn a jury’s imposition of a death sentence only
if “no reasonable jury could have concluded that the mitigation
established by the defendant was not sufficiently substantial to call for
leniency.” Cota, 229 Ariz. at 153 ¶ 95, 272 P.3d at 1044 (citation and
internal quotation marks omitted). Payne alleged a variety of mitigating
factors, including a substantial number of “risk factors” for becoming an
abusive and neglectful parent, “insufficient protective factors” to guide
him in the right direction, a difficult childhood, lack of family support,
substance abuse, lack of a felony criminal history, and the inability to
appreciate the wrongfulness of his conduct. The State presented some
rebuttal evidence and argued that the jury should give many of Payne’s
mitigating factors little weight.

¶166          Even if we assume Payne proved each mitigating factor he
alleged, the jury did not abuse its discretion by finding them insufficient




                                      48
                            STATE V. PAYNE
                       Amended Opinion of the Court

to warrant leniency.

                           IV. CONCLUSION

¶167          For the foregoing reasons, we affirm Payne’s convictions and
sentences.7




7     Payne listed fourteen claims “to avoid preclusion” and the previous
opinions rejecting those claims, which we decline to revisit.




                                    49
                           STATE v. PAYNE
         JUSTICE BALES, Concurring in Part and Dissenting in Part

VICE CHIEF JUSTICE BALES, concurring in part and dissenting in part:

¶168         I concur with the affirmance of the convictions and with the
majority’s conclusions regarding the penalty phase rebuttal evidence and
the preclusion of Dr. Biggan’s testimony. However, I respectfully dissent
from the majority’s conclusion that the erroneous exclusion of Payne’s
“good inmate” evidence was harmless.

¶169           Payne sought to offer this evidence as mitigation and
objected to its exclusion at the penalty phase. The Eighth and Fourteenth
Amendments require that the sentencer in a capital case be allowed to
consider any relevant mitigating evidence, Lockett v. Ohio, 438 U.S. 586,
604 (1978), and it is well established that the defendant’s good behavior
while incarcerated is relevant to mitigation. Skipper v. South Carolina, 476
U.S. 1, 4-9 (1986) (finding Lockett error where exclusion of evidence of
good behavior in prison “impeded the sentencing jury’s ability to carry
out its task of considering all relevant facets of the character and record of
the individual offender”).

¶170            The State argues that the improper exclusion of this evidence
was harmless and therefore should not affect Payne’s death sentences.
The United States Supreme Court has never held that the exclusion of
relevant mitigation evidence from the penalty phase of a capital trial was
harmless error, although it has used language suggesting this possibility.
See, e.g., Hitchcock v. Dugger, 481 U.S. 393, 399 (1987) (noting that improper
exclusion of mitigating evidence renders death sentence invalid absent
showing that error was harmless or had no effect); Skipper, 476 U.S. at 8
(observing that state’s characterization of “exclusion as harmless is
implausible on the facts before us”). Following that suggestion, many
lower courts have reviewed the exclusion of mitigating evidence for
harmless error. See, e.g., Campbell v. Bradshaw, 674 F.3d 578, 596-98 (6th
Cir. 2012) (applying harmless error review); Ferguson v. Sec’y for Dep’t of
Corr., 580 F.3d 1183, 1201-02 (11th Cir. 2009) (same); Bryson v. Ward, 187
F.3d 1193, 1205 (10th Cir. 1999) (same).

¶171        Even assuming that harmless error analysis may apply in
some circumstances involving the exclusion of mitigating evidence, I
cannot agree with my colleagues that the State has met its burden of




                                     50
                           STATE v. PAYNE
         JUSTICE BALES, Concurring in Part and Dissenting in Part

establishing that the error was harmless here. My conclusion reflects the
nature of both the State’s burden and the jury’s sentencing determination.

¶172           For an error to be harmless, the State must establish beyond
a reasonable doubt that the error did not contribute to or affect the verdict.
State v. Gunches, 225 Ariz. 22, 26 ¶ 24, 234 P.3d 590, 594 (2010). “The
inquiry . . . is not whether, in a trial that occurred without the error, a
guilty verdict would surely have been rendered, but whether the guilty
verdict actually rendered in this trial was surely unattributable to the
error.” State v. Anthony, 218 Ariz. 439, 446 ¶ 39, 189 P.3d 366, 373 (2008)
(internal quotation marks omitted). Thus, in the context of a jury’s
determination to impose a death sentence, the State must establish beyond
a reasonable doubt that the error did not influence the verdict rendered by
the jurors who actually considered the evidence. See Gunches, 225 Ariz. at
26 ¶¶ 24-25, 234 P.3d at 594.

¶173          Especially when, as occurred here, the trial court
erroneously excludes an entire category of mitigating evidence, the State
faces an almost insurmountable burden in establishing that the error was
harmless. Cf. People v. Davis, 706 N.E.2d 473, 488 (Ill. 1998) (holding that
the State did not meet its burden of showing that the sentencing judge’s
refusal to consider all mitigating evidence regarding good jail behavior
was harmless); Irving v. State, 498 So.2d 305, 316 (Miss. 1986)
(distinguishing Skipper in case involving exclusion of evidence of good
behavior in prison in part because “no particular type of evidence was
excluded, as in Skipper —the exclusion was more that of degree”).

¶174           The State’s high burden reflects the nature of jury sentencing
in capital cases.

       [T]he determination whether mitigation is sufficiently
       substantial to warrant leniency is not a fact question to be
       decided based on the weight of the evidence, but rather is a
       sentencing decision to be made by each juror based upon the
       juror’s assessment of the quality and significance of the
       mitigating evidence that the juror has found to exist.

State ex rel. Thomas v. Granville (Baldwin), 211 Ariz. 468, 473 ¶ 21, 123 P.3d




                                     51
                           STATE v. PAYNE
         JUSTICE BALES, Concurring in Part and Dissenting in Part

662, 667 (2005). “A mitigating factor that motivates one juror to vote for a
sentence of life in prison may be evaluated by another juror as not having
been proved or, if proved, as not significant to the assessment of the
appropriate penalty.” Id. at 473 ¶ 18, 123 P.3d at 667.

¶175         Because our law never presumes that death is the
appropriate penalty, and each juror must, as a matter of constitutional
law, be allowed to assign such weight to mitigating evidence as he or she
believes appropriate, see id., I do not believe that we can uphold Payne’s
death sentence by asserting that the exclusion of evidence about his
behavior while incarcerated could not have influenced the verdict of any
“reasonable” juror. Nor does the fact that we, in cases involving our
independent review, have characterized “good inmate” evidence as a
relatively weak mitigating factor suggest that each juror here would have
viewed such evidence in the same way.

¶176         A jury that considers the excluded evidence along with other
mitigating evidence and the aggravating factors may likely conclude that
Payne should be sentenced to death. But under our case law and the
Eighth and Fourteenth Amendments as interpreted by the Supreme Court,
that observation does not establish that the trial court’s precluding the
sentencing jury from considering an entire category of mitigating evidence
was harmless. Accordingly, I would vacate the death sentences and
remand the case to superior court for a new penalty phase in which
Payne’s proffered good-inmate evidence should be admitted.




                                    52
