State of Arizona v. Eric Boyston ( 2013 )

SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-10-0052-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2004-007442-001
ERIC BOYSTON, )
)
Appellant. )
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable John R. Ditsworth, Judge
The Honorable Joseph C. Welty, Judge
AFFIRMED
________________________________________________________________
THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel, Criminal
Appeals/Capital Litigation
Laura Chiasson, Assistant Attorney General Tucson
Attorneys for State of Arizona
DAVID GOLDBERG ATTORNEY AT LAW Fort Collins, CO
By David Goldberg
Attorney for Eric Boyston
________________________________________________________________
P E L A N D E R, Justice
¶1 A jury found Eric Boyston guilty of three first degree
murders and one count each of attempted first and second degree
murder. He was sentenced to death for the murders and to prison
terms on the attempt convictions. We have jurisdiction over
this automatic appeal under Article 6, Section 5(3) of the
Arizona Constitution and A.R.S. § 13-4031.1
I. FACTUAL AND PROCEDURAL BACKGROUND
¶2 On the evening of February 1, 2004, Boyston was
staying with his cousin, Shante.2 Boyston was unemployed and
living alternately with Shante and his grandmother, Mary
Boyston. He argued that night with Shante and another cousin,
Tonisha, about his living situation and was “very mad” that he
had to live with his grandmother. The next morning, Boyston’s
girlfriend, Alexandria Kelley, dropped him off at Mary’s
apartment. Boyston saw Tonisha there and told her, “I’m hurt.
I can’t believe you did me like this. You all going to regret
this.”
¶3 Alexandria returned to Mary’s apartment complex later
that day. While sitting in Alexandria’s car in a nearby parking
lot, Boyston received a phone call, argued with the caller, and,
after ending the call, told Alexandria to take him to meet the
caller. When she refused, Boyston said he should shoot her,
pulled out a revolver, and shot at her but missed. Alexandria
got out of the car and asked him “what was going on, what was
wrong with him. And he just told [her] that he was going to
1
We cite the current version of statutes that have not
materially changed since the events at issue.
2
The facts are presented in the light most favorable to
sustaining the jury’s verdicts. State v. Hardy, 230 Ariz. 281,
284 ¶ 2 n.2, 283 P.3d 12, 15 n.2 (2012).
2
kill [her].” She tried to run away, but Boyston pulled out a
different handgun and shot her in the chest, back, and side.
She survived but is paralyzed from the waist down.
¶4 Boyston then jogged to Mary’s apartment. Announcing
that it was “time to take care of everyone who did me wrong,”
Boyston entered and shot Mary’s son, Alexander Boyston, in the
arm. After Alexander came out of the apartment and fell face
down, Boyston fired two more shots into his back, killing him.
Boyston also shot Mary three times inside the apartment, once in
the side and twice in the back, killing her.
¶5 Boyston’s great-aunt, Shirley Jones, came out of her
nearby apartment unit and asked Boyston what he was doing. He
responded, “Oh, I better get you, too,” and then said, “You
mother f***ers crossed me too many times.” Boyston chased
Shirley inside her apartment and shot her in the back. She
eventually recovered from the gunshot wound.
¶6 After using his last bullet to shoot Shirley, Boyston
returned to Mary’s apartment and began fist fighting with
Timothy Wright, a family friend. Just outside the apartment,
Boyston took out a knife and stabbed Timothy nine times, one a
fatal chest wound. Boyston fled but was arrested later that
night.
¶7 Boyston was charged with three counts of first degree
murder and two counts of attempted first degree murder. A jury
3
returned guilty verdicts on the first degree murder counts and
on the charge of attempted first degree murder of Shirley. The
jury found him not guilty of attempted first degree murder of
Alexandria, but guilty of the lesser-included offense of
attempted second degree murder.
¶8 The State alleged the serious offense conviction and
multiple homicides aggravators, A.R.S. § 13-751(F)(2), (8), for
the murders of Mary, Alexander, and Timothy, and the especial
cruelty aggravator for the latter two, id. § 13-751(F)(6). The
jury found each of those aggravators and determined that Boyston
should be sentenced to death for each murder. The trial court
also sentenced Boyston to consecutive prison terms for the
attempted murder convictions.
II. ISSUES ON APPEAL
A. Mental retardation3
¶9 “Arizona law defines mental retardation as a condition
bearing three hallmarks: ‘[1] significantly subaverage general
intellectual functioning, existing concurrently with
[2] significant impairment in adaptive behavior, [3] where the
onset of the foregoing conditions occurred before the defendant
3
After Boyston’s trial, the legislature amended the
pertinent statute, A.R.S. § 13-753, changing “mental
retardation” to “intellectual disability.” See 2011 Ariz. Sess.
Laws, ch. 89, § 5 (1st Reg. Sess.). We use “mental retardation”
in this opinion because that is the term employed by the parties
and doctors in this case.
4
reached the age of eighteen.’” State v. Grell (Grell III), 231
Ariz. 153, 154-55 ¶ 5, 291 P.3d 350, 351-52 (2013) (alterations
in original) (quoting A.R.S. § 13-753(K)(3)). Under A.R.S.
§ 13-753(G), Boyston was required to prove all three aspects of
mental retardation by “clear and convincing evidence.”
¶10 Before trial, Boyston’s mitigation expert, Dr. Myla
Young, administered the Wechsler Adult Intelligence Scale III
(WAIS-III) and measured Boyston’s intelligence quotient (IQ) at
65. On Boyston’s motion, the superior court appointed Dr. D.J.
Gaughan as a mental retardation prescreening expert pursuant to
§ 13-753(B). Dr. Gaughan administered the WAIS-III and measured
Boyston’s IQ at 59. Because the prescreen IQ was 75 or lower,
the court, pursuant to § 13-753(D), appointed Dr. Denis Keyes as
Boyston’s expert and Dr. James Seward as the State’s expert.
¶11 Dr. Keyes administered the Reynolds Intelligence
Assessment Scales and measured Boyston’s IQ at 64, in the
“mentally defective range.” Dr. Keyes made no finding on
Boyston’s adaptive skills “due to [Boyston’s] fruitless attempts
to malinger.” Dr. Seward did not personally administer an IQ
test, but relied on other assessments and collateral information
to conclude that Boyston was “malingering intellectual deficit.”
Dr. Seward also determined that Boyston’s adaptive functioning
was not impaired and opined that he did not have mental
retardation.
5
¶12 After holding a two-day evidentiary hearing and
reviewing the parties’ memoranda, the superior court accepted as
credible Dr. Seward’s opinions on both points and expressly
determined that Boyston had “failed to satisfy his burden of
proving by clear and convincing evidence that he has significant
impairment in adaptive behavior with an onset prior to age 18.”
The court thus concluded that Boyston had not established mental
retardation.
¶13 In challenging that determination, Boyston argues the
superior court abused its discretion in three respects.
Specifically, Boyston contends: (1) the State’s mental
retardation expert, Dr. Seward, was not qualified under § 13-
753(K)(2); (2) Dr. Seward failed to use currently accepted
intellectual testing procedures, as required by § 13-753(E); and
(3) Boyston proved by clear and convincing evidence that he is
mentally retarded, and is thus ineligible for the death penalty
under Atkins v. Virginia, 536 U.S. 304 (2002), and § 13-753(H).
1. Qualifications of State’s expert
¶14 Boyston argues the superior court erred in admitting
the testimony of the State’s expert, Dr. Seward, because he did
not meet § 13-753(K)(2)’s requirements. This Court interprets
statutes de novo. State v. Arellano, 213 Ariz. 474, 477 ¶ 9,
143 P.3d 1015, 1018 (2006). “We review the decision to admit or
exclude [expert testimonial] evidence for abuse of discretion.”
6
State v. Grell (Grell II), 212 Ariz. 516, 528 ¶ 55, 135 P.3d
696, 708 (2006).
¶15 After a prescreening evaluation indicates a need for
further assessment of mental retardation, § 13-753(D) directs
the trial court to “appoint one expert in intellectual
disabilities nominated by the state and one expert in
intellectual disabilities nominated by the defendant.” An
“expert in intellectual disabilities” is defined as “a
psychologist or physician licensed pursuant to title 32, chapter
13, 17 or 19.1 with at least five years’ experience in the
testing or testing assessment, evaluation and diagnosis of
intellectual disabilities.” A.R.S. § 13-753(K)(2) (footnote
omitted).
¶16 Boyston does not contest that Dr. Seward was properly
licensed, but contends that he lacked the requisite experience.
The record, however, rebuts this contention:
[PROSECUTOR]: So during the time you have been in
Arizona, have you been doing testing and assessments
and diagnoses of retardation?
[DR. SEWARD]: Yes. It came up -- it would come
up occasionally with my employment in the county for
the Rule 11 process.
. . . .
[PROSECUTOR]: How long have you been doing
testing, testing/assessment, evaluation, diagnosis of
mental retardation?
[DR. SEWARD]: Well, on and off since I was
licensed in 1991.
7
. . . .
[DEFENSE COUNSEL]: So what you said on direct is,
that in your capacity as an appointed psychologist to
determine competency and even state of mind of an
accused at the time of the offense, you have, as part
of that evaluation, considered possible mental
retardation as an Axis II diagnosis. Is that what your
testimony is?
[DR. SEWARD]: That’s correct. Although more
competency than state of mind at the time of the
offense.
. . . .
[DEFENSE COUNSEL]: The only experience . . . you
have with evaluating children . . . with mental
retardation was when you were doing consulting work
with the St. Edmond’s home for children in 1991 [to
2002]?
[DR. SEWARD]: Correct.
¶17 Viewed in the light most favorable to upholding the
superior court’s ruling, the record supports a finding that Dr.
Seward had at least five years’ experience not only in testing,
but also in evaluation and diagnosis of intellectual
disabilities. See State v. Keener, 110 Ariz. 462, 465-66, 520
P.2d 510, 513-14 (1974) (“Whether a witness is qualified as an
expert witness rests in the sound discretion of the trial court,
and that decision will not be reviewed unless there is a showing
of abuse of discretion.”).
¶18 Boyston suggests that § 13-753(K)(2) requires not only
five years’ experience, but also regular — as opposed to
occasional — testing, evaluation, and diagnosis during the five-
8
year period. But the statute only requires “five years’
experience” and does not specify any additional requirements for
establishing a minimum level of expertise. Consistent with the
general standard for admissibility of expert testimony, we find
that the extent of Dr. Seward’s experience goes to the weight of
his testimony, not its admissibility. State v. Davolt, 207
Ariz. 191, 210 ¶ 70, 84 P.3d 456, 475 (2004); see also Ariz. R.
Evid. 702 (2009).4
¶19 Dr. Seward indicated that he had occasionally
performed testing, evaluation, and diagnoses of mental
retardation for at least fifteen years, and on average did so at
least once a week from 1991 to 2002. Although he acknowledged
that this was his first mental retardation evaluation in a
capital case, the statute does not require prior experience in
capital cases. Dr. Seward’s level of experience satisfies § 13-
753(K)(2).
2. Evaluation methods used by State’s expert
¶20 Boyston next argues the superior court erred in
admitting Dr. Seward’s testimony because he failed to use
currently accepted intellectual testing procedures. We
disagree.
4
We express no opinion on what procedural or substantive
effect, if any, current Evidence Rule 702, as amended effective
January 1, 2012, might have had on Dr. Seward’s qualifications
or permissible testimony.
9
¶21 Section 13-753(B) requires a prescreening expert “to
determine the defendant’s intelligence quotient using current
community, nationally and culturally accepted intelligence
testing procedures.” See State ex rel. Thomas v. Duncan, 222
Ariz. 448, 451 ¶ 17, 216 P.3d 1194, 1197 (App. 2009) (holding
that § 13-753(B) requires a prescreening expert to personally
conduct an IQ test and not solely rely on one previously
administered). In contrast, later-appointed experts such as Dr.
Seward must “examine the defendant using current community,
nationally and culturally accepted physical, developmental,
psychological and intelligence testing procedures, for the
purpose of determining whether the defendant has an intellectual
disability,” and then submit to the trial court a written report
“that includes the expert’s opinion as to whether the defendant
has an intellectual disability.” A.R.S. § 13-753(E).
¶22 Boyston concedes that no statute expressly required
Dr. Seward to administer an IQ test, but argues that currently
accepted testing procedures required Dr. Seward to either
personally conduct a valid IQ test or, at a minimum, rely on a
valid IQ test. He asserts that the only IQ test Dr. Seward
relied on was the discredited Culture Fair test that Boyston
took in 2000.
¶23 Dr. Seward acknowledged that the Diagnostic and
Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)
10
states that individualized testing is always required “to make
the diagnosis of mental retardation.” But he testified that he
did not need to personally administer additional IQ testing
because Boyston had recently been given three individualized IQ
tests. Dr. Seward further opined that “interpret[ing] the tests
that others had given . . . [was] satisfactory with respect to
the requirement of individualized testing.” Boyston did not
introduce any evidence to rebut Dr. Seward’s testimony that he
had followed currently accepted testing procedures related to IQ
testing.
¶24 Regarding the results of the various IQ tests
administered by others, Dr. Seward gave the most credence to the
Culture Fair test, which Boyston argues is not a valid IQ test.
On that test, Boyston obtained a weighted IQ score of 85, “a
level of functioning” described in the testing notes as “dull
normal intelligence.” Dr. Seward considered the results of the
Culture Fair test “noteworthy” because Boyston “did not have the
same incentive to appear impaired” when that test was
administered in 2000, before he committed the crimes at issue
here.
¶25 Dr. Seward acknowledged that he did not know the
details of the Culture Fair testing and that he was unable to
review any raw data from that test. But Boyston did not
introduce any evidence below to show that the Culture Fair test
11
deviated from currently accepted tests or that Dr. Seward
inappropriately relied on it. On appeal, Boyston cites several
cases in which courts gave minimal weight to that test and other
similar tests, but those cases do not hold that an expert falls
below currently accepted standards by relying on such tests.5
Moreover, the records in those cases, unlike this one, contained
expert testimony that generally explained the limitations of
such tests.
¶26 Although Dr. Seward relied on the Culture Fair test,
he also referred to and analyzed the underlying data from the IQ
tests administered by Dr. Young and Dr. Gaughan, with whose
opinions he disagreed. Given his conclusions that Boyston was
malingering on those IQ tests and that no other information
5
Boyston quotes from Goetsch v. State, 172 N.W.2d 688, 692
(Wis. 1969), which recites an expert’s description of the
Culture Fair test. Boyston also inappropriately quotes an
unreported federal district court case in which the experts who
testified had agreed that the Culture Fair test was not a
reliable measure of intellectual function. But Boyston cannot
establish through case law matters on which no expert testimony
was offered below.
Boyston also quotes from Rivera v. Quarterman, 505 F.3d
349, 362 (5th Cir. 2007), which explained that the lower court
had rejected screening tests used in the prison system. But the
weighing of evidence by the trial court in that case is
irrelevant to our review of whether the trial court in this case
abused its discretion, as “[t]he trial judge has broad
discretion in determining the weight and credibility given to
mental health evidence.” Grell II, 212 Ariz. at 528 ¶ 58, 135
P.3d at 708 (quoting State v. Doerr, 193 Ariz. 56, 69 ¶ 64, 969
P.2d 1168, 1181 (1998)).
12
revealed that Boyston had subaverage intellectual functioning,
Dr. Seward determined that no additional IQ testing was
necessary. Boyston failed to show that Dr. Seward’s
determination was invalid or suspect because he did not adhere
to currently accepted testing procedures. Accordingly, the
superior court did not abuse its discretion by admitting and
relying on Dr. Seward’s testimony that Boyston did not
demonstrate significantly subaverage intellectual functioning.
See A.R.S. § 13-753(K)(5).
¶27 Boyston also argues that Dr. Seward failed to follow
currently accepted testing procedures by not performing formal
evaluations of Boyston’s adaptive functioning and by focusing on
his strengths rather than his deficits. As with intellectual
functioning, however, Boyston introduced no evidence to rebut
Dr. Seward’s testimony that he followed currently accepted
testing procedures related to adaptive behavior. Although
Boyston’s mental retardation expert, Dr. Keyes, administered the
Adaptive Behavior Assessment System, Second Edition (ABAS-II)
test to Boyston, Dr. Seward explained that it is difficult to
measure adaptive functioning when the individual is
incarcerated, and pointed to the testing criteria in the ABAS-II
manual, which requires that the examiner have frequent, long-
term contact with the individual. Dr. Seward instead relied on
school and criminal records, interviews with those who knew
13
Boyston, and recorded jail telephone conversations.
¶28 In challenging Dr. Seward’s opinion on adaptive
behavior, Boyston relies heavily on information in the DSM-IV
and the American Association on Intellectual and Developmental
Disabilities (AAIDD, formerly AAMR) manual. Both manuals
suggest the examiner should investigate numerous sources over an
extended time frame, and the DSM-IV also recommends
consideration of adaptive functioning measures. But Boyston did
not present this evidence below or argue that it established
currently accepted procedures for assessing adaptive
functioning; and Dr. Seward considered information from a wide
variety of sources.
¶29 Boyston also points to various authorities, including
the DSM-IV, the AAIDD manual, and medical journal articles, that
indicate that those with mental disabilities have both strengths
and deficits, and that an evaluating expert should focus on the
presence of deficits. He takes issue with the weight Dr. Seward
gave to Boyston’s jail conversations and on his own interviews
with Alexandria and her father, arguing that Dr. Seward violated
current standards by focusing on strengths while ignoring
Boyston’s deficits. As with adaptive behavior testing, however,
Boyston did not introduce below the information to which he now
points as evidence of current standards; and again, Dr. Seward
analyzed Boyston’s adaptive behavior in many areas and from many
14
sources.
¶30 In sum, although Dr. Seward did not personally
administer an IQ test or an adaptive functioning assessment, he
testified without contradiction that he followed current
standards. No evidence showed that his evaluation methods
violated “current community, nationally and culturally accepted
physical, developmental, psychological and intelligence testing
procedures.” A.R.S. § 13-753(E). The superior court did not
abuse its discretion in admitting and relying on Dr. Seward’s
testimony.
3. Trial court’s ruling on mental retardation
¶31 Finally, Boyston challenges the superior court’s
ruling that he did not prove mental retardation, arguing that it
was proven by clear and convincing evidence. We have no basis
for overturning the court’s ruling, however, because Boyston
failed to establish mental retardation by even a preponderance
of the evidence. Cf. Grell III, 231 Ariz. at 160 ¶¶ 35-36, 291
P.3d at 357 (holding that Atkins barred the execution of a
defendant who established at the penalty phase his mental
retardation by a preponderance of the evidence).
a. Intellectual functioning
¶32 “Significantly subaverage general intellectual
functioning” is defined as “a full scale intelligence quotient
of seventy or lower.” A.R.S. § 13-753(K)(5). A rebuttable
15
presumption of intellectual disability arises when the trial
court determines that the defendant’s IQ is 65 or lower. Id.
§ 13-753(G). Boyston contends for the first time on appeal that
because the IQ tests administered by Drs. Young, Gaughan, and
Keyes all indicated his IQ was 65 or lower, he was entitled to
the rebuttable presumption. But even if such a presumption
arose, “[t]he presumption of mental retardation based on the IQ
scores vanishes . . . if the State presents evidence that calls
into question the validity of the IQ scores or tends to
establish that [the] defendant does not otherwise meet the
statutory definition of mental retardation.” Arellano, 213
Ariz. at 478 ¶ 13, 143 P.3d at 1019 (internal quotation marks
omitted). “At that point, the IQ scores serve as evidence of
mental retardation, to be considered by the trial court with all
other evidence presented.” Id.
¶33 The evidence relating to Boyston’s intellectual
functioning was conflicting. Dr. Seward’s opinion that Boyston
was malingering, Boyston’s school and prison records, and
testimony from his third-grade teacher (Merilee Wortham) and
maternal aunt (Romla Robinson) arguably “call[ed] into question
the validity of the IQ scores” on which Boyston relies. Id.
But even if Boyston established the intellectual deficit element
of mental retardation, it would not change the result unless he
also satisfied the other statutory prerequisites, discussed
16
below.
b. Adaptive behavior
¶34 “Adaptive behavior” is defined as “the effectiveness
or degree to which the defendant meets the standards of personal
independence and social responsibility expected of the
defendant’s age and cultural group.” A.R.S. § 13-753(K)(1).
Although the DSM-IV defines impairments in adaptive functioning
based on deficits in two areas, the DSM-IV definition is not the
same as the statutory definition. Grell II, 212 Ariz. at 529
¶ 62, 135 P.3d at 709. The statute, by contrast, “requires an
overall assessment of the defendant’s ability to meet society’s
expectations of him.” Id.; see also Grell III, 231 Ariz. at 155
¶ 7, 291 P.3d at 352.
¶35 Boyston contends that the superior court ignored
academic records and adaptive functioning measurements that
showed impairments in adaptive behavior and instead “cherry
picked” evidence that showed his strengths. The court gave
significant weight to jail telephone conversations in which
Boyston set up fraudulent “burn line” accounts for other
inmates, allowing callers to make collect calls without the call
recipient being charged. In other conversations, Boyston helped
his daughter with math homework, told his girlfriend he was
reading The Autobiography of Miss Jane Pitman, explained how to
do certain home repairs, and talked about keeping himself and
17
his cell clean. The court found that the phone conversations
“represent[ed] a true day to day picture of [Boyston’s]
cognitive abilities and behaviors,” and determined that “there
was no credible evidence in the record to establish mental
retardation.” Boyston cites a district court case that found
jail telephone calls largely irrelevant to a defendant’s
adaptive functioning. See United States v. Davis, 611 F. Supp.
2d 472, 494 (D. Md. 2009). But, as the finder of fact, the
trial court “has broad discretion in determining the weight and
credibility given to mental health evidence.” Grell II, 212
Ariz. at 528 ¶ 58, 135 P.3d at 708 (internal quotation marks
omitted).
¶36 The record here supports the conclusion that Boyston
did not prove substantial impairment in adaptive functioning by
even a preponderance of the evidence, let alone by clear and
convincing evidence, the statutory standard of proof the
superior court applied. Dr. Seward’s opinion was based on
Boyston’s school, health, and prison records, jail phone calls,
interviews of Boyston’s acquaintances, and other sources, and he
opined that Boyston “demonstrates an intact ability to adapt to
his current environment.” Significantly, Boyston’s own mental-
retardation expert, Dr. Keyes, declined to make a finding on
Boyston’s adaptive skills “due to his fruitless attempts to
malinger,” and the prescreening expert, Dr. Gaughan, did not
18
evaluate Boyston’s adaptive behavior.
¶37 Boyston relies heavily on portions of the testimony of
his aunt and third-grade teacher (Robinson and Wortham), but the
trial court determines how much weight and credibility to give
conflicting testimony. Because the record supports the superior
court’s factual findings, we defer to them. Given the paucity
of evidence, by expert testimony or otherwise, that Boyston had
significant impairments in adaptive behavior, we have no basis
for overturning the court’s determination that Boyston failed to
establish that prerequisite.
c. Onset before age eighteen
¶38 Boyston argues the superior court ignored the evidence
that Boyston’s mental retardation began before age eighteen,
pointing again to the testimony of Wortham and Robinson. But
sufficient evidence supported the court’s conclusion that
Boyston did not have substantial deficits in either intellectual
functioning or adaptive behavior before age eighteen.
Accordingly, the court did not abuse its discretion in rejecting
Boyston’s mental-retardation claim.
B. Exclusion of jurors for cause
¶39 Over Boyston’s objection, the trial court struck
Jurors 51 and 54 for cause. Boyston argues the trial court
erred in excluding those jurors because of their views on the
death penalty, violating his Sixth, Eighth, and Fourteenth
19
Amendment rights. This Court reviews a trial court’s decision
to strike a potential juror for cause for abuse of discretion,
State v. Jones, 197 Ariz. 290, 302 ¶ 24, 4 P.3d 345, 357 (2000),
because trial judges are in the best position to “assess the
demeanor of the venire, and of the individuals who compose it,”
Uttecht v. Brown, 551 U.S. 1, 9, 20 (2007).
¶40 “Under the Sixth and Fourteenth Amendments to the
United States Constitution, a criminal defendant is entitled to
an impartial jury.” State v. Velazquez, 216 Ariz. 300, 306
¶ 14, 166 P.3d 91, 97 (2007). Jurors who merely “voice[]
general objections to the death penalty or express[]
conscientious or religious scruples against its infliction” may
not be struck for cause. Witherspoon v. Illinois, 391 U.S. 510,
522 (1968) (finding Sixth Amendment violation). A trial court
may remove a prospective juror for cause when his or her views
about capital punishment “would prevent or substantially impair
the performance of his duties as a juror in accordance with his
instructions and his oath.” Wainwright v. Witt, 469 U.S. 412,
433 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45 (1980)).
1. Juror 51
¶41 Juror 51 indicated on the initial questionnaire that
she was a Catholic who was “generally not for the death penalty”
and wrote that “[m]orally it is tough to execute or be part of a
process that kills a human soul.” But she also wrote that she
20
was “not strongly opinionated about it” and would be able to
consider the evidence and follow the law.
¶42 During voir dire, Juror 51 indicated that she was
“pretty strongly tied to church” and acknowledged that the
“Catholic Church is against the death penalty.” In describing
the extent to which her religious beliefs would influence her
ability to assess mitigation evidence, she stated, “I will be
influenced by the belief of having sanctity and reverence for
life.” She also acknowledged that it would be a “big struggle”
to disregard her religious beliefs in determining the
appropriate penalty.
¶43 Although Juror 51 indicated at times that she could
set aside her religious beliefs about the death penalty, the
judge must consider “the entirety of [the juror’s] answers.”
State v. Lynch, 225 Ariz. 27, 35 ¶ 28, 234 P.3d 595, 603 (2010).
The entirety of Juror 51’s answers indicates that she was highly
conflicted about imposing the death penalty. We have upheld
strikes for cause of similar jurors who “equivocat[e] about
whether [they] would take [their] personal biases in the jury
room sufficient to substantially impair [their] duties.” State
v. Ellison, 213 Ariz. 116, 137 ¶ 89, 140 P.3d 899, 920 (2006)
(internal quotation marks omitted). The trial court did not
abuse its discretion in striking Juror 51 for cause.
2. Juror 54
21
¶44 When asked on the initial questionnaire to list any
time she had been arrested, charged, or convicted of any crime
other than minor traffic violations, Juror 54 responded that she
had been convicted of counterfeiting. The prosecutor later
informed the court and Boyston’s counsel that a criminal records
check on Juror 54 revealed she had additional, and more recent,
arrests for drug possession and aggravated assault that she had
not disclosed.
¶45 The trial court granted the State’s motion to strike,
pointing to all the discrepancies in her disclosure and accounts
of her criminal history and stating that “[a]ll of this causes
the Court substantial concern about her credibility, her ability
to abide by the court’s instructions, and frankly my ability to
assess any of the answers she has provided in the voir dire
process in order that I and the parties may evaluate her as an
adequate juror.” In so ruling, the court did not mention Juror
54’s personal views on the death penalty.
¶46 Boyston contends the court “decided by inference that
her answers . . . on the death penalty . . . were not truthful
because she forgot to put down an arrest from 24 years earlier,”
and thus asserts that Juror 54 “was excused based upon the
court’s belief of her views on the death penalty.” Trial
courts, however, “are permitted to determine a potential juror’s
credibility when deciding whether to strike a juror for cause.”
22
State v. Glassel, 211 Ariz. 33, 48 ¶ 50, 116 P.3d 1193, 1208
(2005).
¶47 The trial court’s concern with Juror 54’s credibility,
and more broadly her ability to follow the court’s instructions,
created doubt that the juror could render a fair and impartial
verdict. See State v. Cota, 229 Ariz. 136, 147 ¶ 40, 272 P.3d
1027, 1038 (2012) (“The trial court should excuse a juror
‘[w]hen there is reasonable ground to believe that a juror
cannot render a fair and impartial verdict.’” (alteration in
original) (quoting Ariz. R. Crim. P. 18.4(b))). The trial court
did not abuse its discretion in striking Juror 54 for cause.
C. Precluding evidence of intoxication to rebut premeditation
¶48 Boyston contends the trial court erred by not allowing
him to present evidence of his alleged phencyclidine (PCP)
intoxication at the time of the murders to rebut the State’s
evidence of premeditation. He argues that A.R.S. § 13-503 does
not apply to premeditation or, to the extent it applies, it is
unconstitutional. We review de novo issues of statutory
interpretation and constitutionality. State v. Dann (Dann II),
220 Ariz. 351, 369 ¶ 96, 207 P.3d 604, 622 (2009).
¶49 Section 13-503 states that “[t]emporary intoxication
. . . does not constitute insanity and is not a defense for any
criminal act or requisite state of mind.” Boyston argues that
premeditation is neither a “criminal act” nor a “requisite state
23
of mind” under § 13-503, and therefore the statute does not
preclude consideration of voluntary intoxication on the issue of
premeditation. He points to A.R.S. § 13-105(10), which defines
“culpable mental state” as including “intentionally, knowingly,
recklessly or with criminal negligence,” but not premeditation.
Premeditation is defined separately in A.R.S. § 13-1101(1):
“Premeditation” means that the defendant acts with
either the intention or the knowledge that he will kill
another human being, when such intention or knowledge
precedes the killing by any length of time to permit
reflection. Proof of actual reflection is not
required, but an act is not done with premeditation if
it is the instant effect of a sudden quarrel or heat of
passion.
See also State v. Thompson, 204 Ariz. 471, 478-80 ¶¶ 26-33, 65
P.3d 420, 427-29 (2003).
¶50 Although premeditation is not included in the
statutory enumeration of “culpable” mental states under § 13-
105(10), it is a required element of first degree murder under
§ 13-1105(A)(1) and is part of the requisite mens rea of that
offense. See Schad v. Arizona, 501 U.S. 624, 637 (1991) (noting
that “under [Arizona] law, premeditation and the commission of a
felony are not independent elements of the crime, but rather are
mere means of satisfying a single mens rea element”); see also
A.R.S. § 13-101 (stating that one of the general purposes of the
criminal code is “[t]o define the act or omission and the
accompanying mental state which constitute each offense”).
24
¶51 Consistent with that view, several of our cases have
referred to premeditation as a mental state. In Thompson, we
stated that premeditation “is [the] mental state that
distinguishes between first and second degree murder.” 204
Ariz. at 478 ¶ 27 n.6, 65 P.3d at 427 n.6 (emphasis added); see
also Evanchyk v. Stewart, 202 Ariz. 476, 479 ¶ 10, 47 P.3d 1114,
1117 (2002) (“Any agreement with another to kill a third person
constitutes premeditation, the mental state that exists under
Arizona law whenever the intention to kill precedes the killing
by a length of time to permit reflection.” (internal quotation
marks omitted)); State v. Wood, 180 Ariz. 53, 62, 881 P.2d 1158,
1167 (1994) (“The disputed trial issues were Defendant’s motive
and mental state — whether Defendant acted with premeditation or
as a result of a sudden impulse.”).
¶52 Because premeditation is a mental state and part of
the mens rea element of premeditated first degree murder under
§ 13-1105(A)(1), it is thus a “requisite state of mind” of that
offense. Section 13-503 therefore precludes evidence of
voluntary intoxication when considering premeditation.6 Cf.
State v. Kiles, 222 Ariz. 25, 33 ¶ 29, 213 P.3d 174, 182 (2009)
(rejecting argument under former § 13-503 that defendant “may
6
Boyston also argues, in a footnote, that the trial court
erred in precluding evidence of his voluntary intoxication
during the aggravation phase. But he never sought to present
evidence of his intoxication during that phase.
25
not have reflected on his decision to [kill the victim] because
he was voluntarily intoxicated”).
¶53 Just as Boyston’s statutory analysis is flawed, so is
his reliance on State v. Christensen, 129 Ariz. 32, 628 P.2d 580(1981). In that case, we held that the trial court erred by not
admitting under Evidence Rule 404(a)(1) relevant character-trait
testimony that the defendant reacted impulsively to stress,
evidence proffered to rebut the premeditation element of first
degree murder. Id. at 34-35, 628 P.2d at 582-83; see State v.
Mott, 187 Ariz. 536, 544, 931 P.2d 1046, 1054 (1997)
(“[Christensen] attempted to show that he possessed a character
trait of acting reflexively in response to stress.”).
Christensen is inapposite because no such character trait is at
issue here.
¶54 Boyston also asserts three reasons why § 13-503 is
unconstitutional if interpreted to preclude consideration of
voluntary intoxication on the issue of premeditation. We find
none persuasive.
¶55 First, Boyston argues § 13-503 deprives him of his
fundamental right to present a complete defense. “Whether
rooted directly in the Due Process Clause of the Fourteenth
Amendment, or in the Compulsory Process or Confrontation clauses
of the Sixth Amendment, the Constitution guarantees criminal
defendants a meaningful opportunity to present a complete
26
defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986)
(citations and internal quotation marks omitted).
¶56 But in Montana v. Egelhoff, the United States Supreme
Court squarely rejected the argument that a state law violated
due process by providing that voluntary intoxication “may not be
taken into consideration in determining the existence of a
mental state which is an element of [a criminal] offense,” Mont.
Code Ann. § 45-2-203 (1995). 518 U.S. 37, 51 (1996) (Scalia,
J., plurality opinion); see id. at 58-59 (Ginsburg, J.,
concurring in judgment) (“Defining mens rea to eliminate the
exculpatory value of voluntary intoxication does not offend a
‘fundamental principle of justice,’ given the lengthy common-law
tradition [prohibiting the voluntary intoxication defense], and
the adherence of a significant minority of the States to that
position today.”). Like Montana’s legislature, the Arizona
Legislature has defined the mens rea element of first degree
premeditated murder such that voluntary intoxication is not a
defense. That legislative decision does not violate Boyston’s
constitutional right to present a complete defense.
¶57 Second, Boyston asserts that excluding consideration
of voluntary intoxication violates his right to equal
protection. He seems to argue that applying § 13-503 to
premeditation eviscerates the distinction in the classifications
of those facing the “most severe punishment” of premeditated
27
first degree murder and those charged with lesser offenses.
This argument lacks merit, as § 13-503 does not relieve the
state of the burden to prove premeditation in premeditated first
degree murder cases, see Thompson, 204 Ariz. at 478-80 ¶¶ 26-33,
65 P.3d at 427-29, and there is a rational basis for imposing a
greater punishment on those who have reflected before committing
a murder, see United States v. LaFleur, 971 F.2d 200, 212 (9th
Cir. 1991) (rejecting equal protection challenge because
“[t]here clearly exist rational reasons for Congress to
prescribe different penalties” under two federal statutes that
each punish murder, as the statutes “address crimes with
different elements and different ranges of culpability”).
¶58 Finally, Boyston argues § 13-503 violates the Eighth
Amendment to the extent it precludes evidence of voluntary
intoxication. But the Eighth Amendment generally imposes
limitations on sentencing and the imposition of the death
penalty, not the determination of guilt. See McCleskey v. Kemp,
481 U.S. 279, 305-06 (1987). The notable exception is that a
jury, in determining guilt in a capital case, must be given the
option of convicting the defendant of a lesser offense than the
death-eligible offense. See Beck v. Alabama, 447 U.S. 625, 642-
43 (1980). Here, that option existed because the jury was
instructed on second degree murder. Beck’s reasoning does not
extend to this context, as precluding evidence of voluntary
28
intoxication does not raise concerns that a jury will improperly
find a defendant guilty of a death-eligible offense. In
addition, Boyston could and did present evidence of his
intoxication in the penalty phase. Therefore, the preclusion in
the guilt phase of voluntary intoxication evidence, as directed
by § 13-503, does not violate the Eighth Amendment.
D. Sufficiency of evidence of premeditation
¶59 Boyston argues that the trial court erroneously denied
his motion for a judgment of acquittal under Arizona Rule of
Criminal Procedure 20 because the State failed to present
substantial evidence that he killed Mary and Timothy with
premeditation. Boyston concedes there was sufficient evidence
that he killed Alexander with premeditation. We review de novo
a trial court’s ruling on a Rule 20 motion. State v. West, 226
Ariz. 559, 562 ¶ 15, 250 P.3d 1188, 1191 (2011).
¶60 A conviction for premeditated first degree murder must
be supported by substantial evidence of premeditation, State v.
Murray, 184 Ariz. 9, 32, 906 P.2d 542, 565 (1995), and this
Court views all evidence “in the light most favorable to
sustaining the conviction and [resolves] all reasonable
inferences . . . against the defendant,” State v. Guerra, 161
Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). To prove
premeditation, the state must establish actual reflection and
more than mere passage of time, but it may do so with “all the
29
circumstantial evidence at its disposal in a case.” Thompson,
204 Ariz. at 478-80 ¶¶ 29, 31, 33, 65 P.3d at 427-29.
¶61 Boyston asserts that “no one testified exactly what
occurred in the apartment or what they heard before or during
the shooting,” other than hearing the gunshots, thus leaving the
jury to speculate whether he killed his grandmother with
premeditation. The record, however, contains sufficient
evidence to support a finding of premeditation. Boyston was
upset the night before the murders because his cousin, Tonisha,
would not let him stay with her and he had to live with Mary.
While at Mary’s apartment the following morning, Boyston told
Tonisha, “I can’t believe you did me like this. You all going
to regret this.”
¶62 On this record, the jury reasonably could find that
Boyston formed his intent to kill Mary when he threatened
Tonisha personally and, by reference, others. His actions in
carrying weapons to the crime scene and jogging directly to
Mary’s apartment immediately after shooting Alexandria also
support an inference that he had decided to kill Mary. See
State v. Ovante, 231 Ariz. 180, 185 ¶ 16, 291 P.3d 974, 979
(2013) (carrying of a loaded gun to murder scene is
circumstantial evidence of premeditation). Finally, his
statement that “[i]t’s time to take care of everyone who did me
wrong” as he walked into Mary’s apartment supports a conclusion
30
that he reflected on his decision to kill.7
¶63 As for Timothy’s murder, Boyston contends that the
evidence supports only a conclusion that a fist fight escalated
to the point of his stabbing Timothy in the heat of the moment.
Viewed in the light most favorable to sustaining the jury’s
verdict, however, the record supports a reasonable inference
that Boyston intended, and had reflected on his decision, to
kill all those “who did [him] wrong.” Given that Timothy lived
with Alexander and Mary, where Boyston also at times stayed, and
that Boyston was unhappy about his living situation, the jury
could reasonably infer that Timothy was one of those Boyston
thought “did him wrong.”
¶64 Boyston counters that if that were true, he would have
killed Timothy when he killed Alexander and Mary, before he left
to shoot Shirley. But rather than relying on such speculation,
we must view the record and any reasonable inferences in the
light most favorable to sustaining the jury’s verdict. Given
7
Boyston’s reliance on State v. Moore, 222 Ariz. 1, 15 ¶ 70,
213 P.3d 150, 164 (2009), and State v. Dann (Dann I), 205 Ariz.
557, 566 ¶ 20, 74 P.3d 231, 240 (2003), is misplaced. Those
cases reversed convictions not because there was insufficient
evidence of reflection, but because the jury was improperly
instructed that premeditation could be shown by mere passage of
time and the evidence of premeditation was not so overwhelming
that we could find the error harmless. Moore, 222 Ariz. at 14-
15 ¶¶ 66-67, 70, 213 P.3d at 163-64; Dann I, 205 Ariz. 565-66
¶¶ 17, 20, 74 P.3d at 239-40. Here, the jury was properly
instructed on premeditation.
31
that Boyston returned to Mary’s apartment after shooting
Shirley, the jury could reasonably find that Boyston had planned
to kill Timothy, but was briefly interrupted when he saw and
chased Shirley. In sum, sufficient evidence supports the jury’s
finding that Boyston killed Timothy with premeditation.
E. Failure to give manslaughter instruction
¶65 For each of the three first degree murder counts, the
trial court also instructed the jury on the lesser-included
offense of second degree murder. Regarding the killing of
Timothy, Boyston argues the court erred by not also instructing
the jury on the lesser-included offense of manslaughter by
sudden quarrel or heat of passion. Boyston did not request a
manslaughter instruction, nor did he object to the absence of
one in the trial court’s proposed jury instructions. We
therefore review this issue for fundamental, prejudicial error.
State v. Bearup, 221 Ariz. 163, 168 ¶ 21, 211 P.3d 684, 689
(2009).
¶66 “When a jury is given a choice between first-degree
murder and second-degree murder and convicts on first-degree
murder, it has necessarily rejected manslaughter,” and “any
purported error in failing to give a manslaughter instruction
was harmless.” State v. Nelson, 229 Ariz. 180, 186 ¶ 24, 273
P.3d 632, 638 (2012); see also Cota, 229 Ariz. at 150 ¶ 66, 272
P.3d at 1041. Given the jury’s finding of guilt on the first
32
degree murder charges, no error, fundamental or otherwise,
resulted from the lack of an instruction on manslaughter.
F. Refusal to instruct on ineligibility for parole
¶67 Boyston requested a jury instruction that if sentenced
to life, he would be sentenced to natural life and would “never
be eligible to be released from prison for any reason for the
rest of his life.” The trial court denied that request and
instead instructed the jury that, if sentenced to life, Boyston
could either be sentenced to “natural life” or “life without the
possibility of release until 25 calendar years in prison are
served.”
¶68 Citing Simmons v. South Carolina, 512 U.S. 154 (1994),
Boyston argues the trial court violated his due process rights
by not instructing the jury that Arizona law precluded him from
being considered for parole after serving twenty-five years if
sentenced to life in prison. But Boyston’s proffered
instruction referred more broadly to any form of release or
commutation of sentence, and we have previously rejected
arguments similar to his. Cota, 229 Ariz. at 151 ¶ 75, 272 P.3d
at 1042 (“[The defendant’s] argument . . . conflates parole and
release. [He] would have been eligible for other forms of
release, such as executive clemency, if sentenced to life with
the possibility of release.”). The court’s instruction
accurately stated the law. State v. Hargrave, 225 Ariz. 1, 14-
33
15 ¶ 53, 234 P.3d 569, 582-83 (2010) (“[The defendant’s]
argument that he is not likely to actually be released does not
render the instruction legally incorrect.”).
III. REVIEW OF DEATH SENTENCES
¶69 We review the jury’s finding of aggravating
circumstances and the imposition of a death sentence for abuse
of discretion. A.R.S. § 13-756(A). “A finding of aggravating
circumstances or the imposition of a death sentence is not an
abuse of discretion if ‘there is any reasonable evidence in the
record to sustain it.’” State v. Delahanty, 226 Ariz. 502, 508
¶ 36, 250 P.3d 1131, 1137 (2011) (quoting State v. Morris, 215
Ariz. 324, 341 ¶ 77, 160 P.3d 203, 220 (2007)).
A. Applicable standard of review
¶70 Boyston first argues that we should apply a less
deferential abuse of discretion standard as set forth in State
v. Chapple, 135 Ariz. 281, 297 n.18, 660 P.2d 1208, 1224 n.18
(1983). We recently rejected the same argument in Cota, 229
Ariz. at 153 ¶ 91, 272 P.3d at 1044.
B. Constitutionality of A.R.S. § 13-756(A)
¶71 Boyston also contends that the abuse of discretion
standard under § 13-756(A) violates the Eighth and Fourteenth
Amendments because the United States Supreme Court mandates
“meaningful” appellate review of death sentences. See Clemons
v. Mississippi, 494 U.S. 738, 749 (1990). We have previously
34
rejected similar constitutional challenges to the statute.
Nelson, 229 Ariz. at 191 ¶ 50, 273 P.3d at 643.
C. Aggravating circumstances
¶72 The jury found as to each first degree murder that
Boyston had been convicted of a serious offense, A.R.S. § 13-
751(F)(2), and was convicted of one or more other homicides that
were committed during the commission of the offense, id. § 13-
751(F)(8). The jury also found, as to the murders of Alexander
and Timothy, that Boyston committed the offenses in an
especially cruel manner. Id. § 13-751(F)(6). Boyston does not
contest the (F)(2) finding, which was supported by his
convictions of attempted second degree murder of Alexandria and
attempted first degree murder of Shirley, but he challenges the
(F)(8) and (F)(6) findings.
1. (F)(8) Aggravator
¶73 To prove the (F)(8) aggravator, the state must
establish beyond a reasonable doubt that the homicides took
place during a “continuous course of criminal conduct” and were
“temporally, spatially, and motivationally related.” State v.
Armstrong (Armstrong III), 218 Ariz. 451, 464 ¶ 67, 189 P.3d
378, 391 (2008) (quoting State v. Prasertphong, 206 Ariz. 167,
170 ¶ 15, 76 P.3d 438, 441 (2003)).
¶74 The murders all occurred within minutes of each other
in or just outside Mary’s apartment; thus, they are temporally
35
and spatially related. Boyston, however, contends that there is
no evidence from which the jury could conclude the three murders
were motivationally related. We disagree.
¶75 The jury could reasonably conclude that Boyston
committed all three murders for the reason he expressed when he
entered Mary’s apartment immediately before the killings: “to
take care of everyone who did [him] wrong.” He also mentioned
this motivation earlier that day, exclaiming that all those he
thought had mistreated him would regret it. When he later saw
Shirley, he said, “Oh, I better get you, too,” and as he chased
and shot her, he further expressed his motivation for the
offenses, stating, “You mother f***ers crossed me too many
times.”
¶76 Boyston then returned to Mary’s apartment and stabbed
Timothy to death. The jury could reasonably conclude that
Boyston killed Timothy because he was among those Boyston
thought “did him wrong.” Boyston argues Timothy’s murder was
motivated by defending himself from Timothy, who was fighting
him. But the jury found Boyston guilty of premeditated first
degree murder, and thus necessarily rejected the theory that
Boyston was defending himself or acting in the heat of passion.
As such, the jury did not abuse its discretion in finding the
(F)(8) aggravator.
2. (F)(6) Aggravator
36
¶77 To show that a murder is especially cruel, the state
must “prove[] beyond a reasonable doubt that ‘the victim
consciously experienced physical or mental pain prior to death,
and the defendant knew or should have known that suffering would
occur.’” State v. Snelling, 225 Ariz. 182, 188 ¶ 25, 236 P.3d
409, 415 (2010) (quoting State v. Trostle, 191 Ariz. 4, 18, 951
P.2d 869, 883 (1997)). “The entire murder transaction, not just
the final act, may be considered.” State v. McCray, 218 Ariz.
252, 259 ¶¶ 31, 33, 183 P.2d 503, 510 (2008).
a. Boyston’s alleged PCP intoxication
¶78 As to both Alexander and Timothy, Boyston argues that
their suffering was not objectively foreseeable because he was
in a “PCP blackout” and a “dissociative state which resulted in
delusions, hallucinations and psychosis.” In support, Boyston
cites evidence of PCP intoxication introduced in the penalty
phase. But Boyston did not introduce any evidence of PCP
intoxication during the aggravation phase. Although some
evidence presented in the guilt phase suggested that Boyston was
“super high” from smoking PCP the night before the murders, and
the jury could properly consider that evidence in reaching its
aggravation-phase verdicts, see A.R.S. § 13-752(E), (I), several
witnesses testified that he seemed normal at the time of the
murders. We cannot conclude the jury abused its discretion in
finding the (F)(6) aggravator.
37
b. Murder of Alexander
¶79 George Newton testified that, after he heard gunshots
in Mary’s apartment, Alexander came outside and said of his
first gunshot wound, “George, it hurts.” Alexander walked about
ten feet from the door before falling on his face. Boyston
followed him outside and, saying “I might as well finish you
right now,” fired two shots into Alexander’s back.
¶80 The medical examiner, Dr. Vladimir Shvarts, testified
that Alexander had three through-and-through gunshot wounds:
two in the back that exited through the chest, and one through
the arm near the elbow. Each of the gunshot wounds was in an
area where there were pain receptors. Detective Olson, an
expert in bloodstain patterns, testified that blood drops found
inside the apartment and leading to bloodstains outside were
“consistent with [Alexander] dropping the blood from his right
arm.”
¶81 The jury could reasonably find that Boyston shot
Alexander in the arm at close range inside the apartment and
that Alexander suffered significant physical pain from that
wound. See State v. Herrera, 176 Ariz. 21, 34, 859 P.2d 131,
144 (1993) (finding victim endured physical pain when he lay on
the ground with a gash in his head for at least eighteen seconds
and possibly as long as two to three minutes before being
killed). The jury could also reasonably conclude that Boyston
38
knew or should have known that he had caused such pain, as he
followed the wounded and staggering victim outside, where he
shot him twice more in the back.8 Thus, the jury did not abuse
its discretion in finding the (F)(6) aggravator established for
the murder of Alexander.
c. Murder of Timothy
¶82 Witnesses described Boyston coming out of Mary’s
apartment fighting with Timothy, then pulling out a knife and
stabbing him several times. Two witnesses testified that they
heard Timothy yelling for help.
¶83 Dr. Shvarts testified that Timothy received nine stab
wounds and several abrasions in various parts of the body, each
of which would have caused pain. Three stab wounds to Timothy’s
chin and neck were non-fatal, as were two to the upper back.
Four stab wounds were to the chest, one of which was fatal. The
fatal wound was almost 3.5 inches deep and penetrated the
pericardium and the heart. Dr. Shvarts testified that the wound
likely would have been fatal within a few seconds to minutes,
but could possibly have taken up to twenty minutes to cause
Timothy’s death, depending on how quickly he lost blood. Dr.
8
Boyston’s argument that the state must present evidence
that the defendant actually knew the victims would suffer pain
misstates the law, as the state must prove merely that the
defendant “knew or should have known that the victim would
suffer.” McCray, 218 Ariz. at 259 ¶¶ 31, 33, 183 P.2d at 510
(emphasis added).
39
Shvarts could not opine how long it would have taken Timothy to
become unconscious. But Timothy’s hands were covered with
blood, which, as Dr. Shvarts testified, indicated he likely used
his hands to try to stop the bleeding.
¶84 From the evidence, the jury could reasonably conclude
that Timothy suffered physical pain while being stabbed to death
and that Boyston knew or should have known of that. Timothy
“had ample opportunity not only to feel pain, but also to
contemplate his impending death.” State v. Kuhs, 223 Ariz. 376,
388 ¶ 62, 224 P.3d 192, 204 (2010). Indeed, Timothy’s cries for
help and his attempts to stop his own bleeding show that he was
not only experiencing physical pain, but also mental anguish.
See id. (concluding that the jury did not abuse its discretion
in finding especial cruelty when the victim was stabbed twenty-
one times and died by bleeding to death while choking on his
blood). Thus, the jury did not abuse its discretion in finding
the (F)(6) aggravator established for Timothy’s murder.
D. Mitigation
¶85 Boyston alleged thirty-four mitigating circumstances,
including diminished mental capacity, troubled family
background, PCP intoxication, love and support of his family,
impact of execution on his family, and remorse. The State
presented evidence to rebut many of those mitigating factors.
The jury did not find the proffered mitigation sufficiently
40
substantial to call for leniency. See A.R.S. § 13-751(C), (E).
E. Evaluating penalty phase for abuse of discretion
¶86 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 (quoting Morris, 215 Ariz. at 341 ¶ 81, 160
P.3d at 220) (internal quotation marks omitted). In the context
of independent review, we have said that “[t]he (F)(8) multiple
homicides aggravator is extraordinarily weighty.” State v.
Hampton, 213 Ariz. 167, 184 ¶ 81, 140 P.3d 950, 967 (2006). In
light of that aggravator as well as the (F)(2) and (F)(6)
findings, even if we assume Boyston proved each of his alleged
mitigating circumstances, the jury did not abuse its discretion
in finding the mitigation insufficient to warrant leniency. See
A.R.S. § 13-751(C).
IV. CONCLUSION
¶87 We affirm Boyston’s convictions and sentences.9
__________________________________
John Pelander, Justice
9
Boyston also raised in an appendix to his opening brief
twenty-four claims to avoid federal preclusion. We do not
address those here.
41
CONCURRING:
__________________________________
Rebecca White Berch, Chief Justice
__________________________________
Scott Bales, Vice Chief Justice
__________________________________
Robert M. Brutinel, Justice
__________________________________
Diane M. Johnsen, Judge*
*
Pursuant to Article 6, Section 3 of the Arizona
Constitution, the Honorable Diane M. Johnsen, Vice Chief Judge
of the Arizona Court of Appeals, Division One, was designated to
sit in this matter.
42