Wendi Andriano's husband became seriously ill and had to cease
working. Allegedly resentful of her responsibilities, Wendi Andriano
began frequenting bars and engaging in extramarital affairs. As her
discontent increased, she hatched a scheme to kill her husband and
profit from his death.
asked her friends if they would pose as her husband so that she could
obtain a life insurance policy. She researched the effects of various
poisons and how to obtain them discreetly. Andriano ordered poison and
had it sent to a separate business.
Although Andriano claimed that she was physically and psychologically
abused by her husband, none of her friends ever observed any signs of
Andriano began slipping sodium azide capsules to her husband. In the
early morning hours of October 8, 2000, Andriano called 911 to report
that her husband was having a heart attack, but when paramedics
arrived, she turned them away.
hours later, she again called 911 to report that she had stabbed and
beaten him in self-defense. When paramedics arrived, they found Joe
Andriano dead from repeated beatings and a stab wound to the neck.
Weak from the poisoning and chemotherapy, he was unable to defend
himself against Andriano, who struck him at least 20 times with a
barstool before stabbing him in the neck.
Presiding Judge: Hon. Brian K. Ishikawa
Prosecutor: Juan Martinez
Defense Counsel: Daniel Patterson & David Delozier
Start of Trial: August 23, 2004
Verdict: November 18, 2004
Sentencing: December 22, 2004
Especially heinous, cruel or depraved
Wendi Elizabeth Andriano (née Ochoa) is an
American female prisoner currently on death row in Arizona for
murdering her terminally ill husband Joe. She is incarcerated at the
Lumley Unit in the Arizona State Prison Complex - Perryville. Her
inmate number is #191593.
Wendi Elizabeth Ochoa was born on August 6, 1970.
In January 1994, she married Joseph Andriano. Not long into the
marriage however, Joe fell ill. After many misdiagnoses, Joe was
finally diagnosed with adenoid cystic carcinoma in 1998. At that time
his illness had become terminal. Joe attempted holistic therapies for
his illness, but by 2000 had resorted to chemotherapy.
By that time, Wendi had given birth to two children
and was working as an apartment manager, but she began to resent her
increased responsibilities. She began to frequent bars and have
affairs, and in August and September 2000, she made attempts to attain
a life insurance policy for her husband. She even solicited friends to
pose as her husband during the pre-screening processes, although no
life insurance was ever purchased.
During the early morning hours of October 8, 2000,
Wendi Andriano bludgeoned her 33 year-old husband Joe to death with a
barstool and stabbed him in the neck with a 13-inch knife in the
couple's Ahwatukee, Arizona apartment. His autopsy revealed that he
had sustained 23 blows to the skull, and traces of sodium azide were
also found in his system.
Approximately one hour before Joe's murder, his
wife Wendi had called 911 at the behest of a co-worker, claiming that
her terminally ill husband was dying. When paramedics arrived however,
Wendi turned them away, stating that Joe had a do-not-resusciate
order, and that his wish was to die. Paramedics left the scene. One
hour later, Wendi called 911 again, reporting that she had stabbed and
beaten her husband to death in self-defense. She also made claims that
her husband was physically and psychologically abusive toward her.
However, being that Joe was weak from chemotherapy and the sodium
azide poisoning, he was unable to defend himself. Wendi was charged
Trial and Aftermath
Four years after the crime, on August 23, 2004,
Wendi Andriano's murder trial began. Even though she had no prior
criminal record, she faced the death penalty for her crime.
Prosecutors stated that Wendi's motive for murdering her husband was
money. Evidence was brought up about how Wendi had tried to instate a
life insurance policy on her terminally ill husband. In addition,
prosecutors alleged that she was tempted by a potential $20 million
yield from a medical malpractice lawsuit filed against Joe's doctors.
They attempted to prove that Wendi used a pesticide, sodium azide, to
poison her husband to appear as if Joe's death was the result of a
At the trial, Wendi testified in her own defense.
For nine days on the stand, she testified that she had been battered
by her husband. She also stated that her husband Joe flew into a rage
after she told him about her affair. She said there was a struggle
with the knife. Despite her dramatic testimony, on November 18, 2004,
Wendi's jury found her guilty of first-degree murder.
A month later came her sentencing. Due to the
heinousness, cruelty, and depravation of the crime, and because the
crime was financially motivated, she was sentenced to death by lethal
injection on December 22, 2004.
Wendi Andriano filed a post-conviction appeal in
2007, claiming that evidence of her affairs and efforts to buy life
insurance policies for her ailing husband unfairly prejudiced her in
front of the jury. She also claimed that jurors were not allowed to
consider lesser charges, such as second-degree murder or manslaughter.
Ultimately, her conviction was affirmed the Arizona Supreme Court in
As of 2011, Wendi Andriano is one of three women on
Arizona's death row, along with Debra Jean Milke and Shawna Forde.
Wendi's case was profiled on the Oxygen Network
program Snapped on June 2, 2011 and the Investigation Discovery
program Deadly Women on September 9, 2011.
State v. (Wendi Elizabeth)
Andriano, 215 Ariz. 497, 161 P.3d 540 (July 9, 2007)
(DEATH PENALTY UPHELD)
Jury Trial/Indep. Review
A Maricopa County Superior Court jury convicted
Andriano of first-degree murder for the death of her terminally ill
husband. It found the state had proved the especially cruel aggravator
(A.R.S. §13-751(F)(6)) and determined that the defendant should be
sentenced to death. This is Andriano’s direct appeal.
(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) –
Especially Cruel – Both Mental Anguish and Physical Pain
The evidence showed that Andriano poisoned her
husband, who was terminally ill with cancer, and left him to suffer a
long time. She knew from her Internet research that poisoning with
sodium azide would cause her husband physical pain and mental anguish.
He was conscious as he suffered the effects of the poisoning, and
remained conscious until Andriano struck him at least 23 times in the
back of the head with a bar stool. The Court concluded that cruelty
was established based on either, or both, mental anguish or physical
The court noted that Smith presented evidence of
the following mitigators:
Stress of husband’s cancer
Strong religious convictions
Missionary and community work
Family life, good mother to two children
Sexual abuse and domestic violence victim
The Court found that none of this mitigation
warranted substantial weight. The evidence established that Andriano
did not kill her husband while defending against a domestic violence
attack. The record also did not indicate that the stress of the
husband’s cancer was any greater at the time of the offense than it
had been two years earlier when it was first diagnosed. The Court
held that even if all of the claimed mitigators were established,
its quality and strength was not sufficiently substantial to warrant
leniency in light of the especially cruel manner in which she
murdered her husband.
JUDGMENT: Conviction and death sentence
Az high court
upholds death sentence of husband-killer
July 9, 2007
The Arizona Supreme
Court on Monday upheld the death sentence of an woman convicted of
killing her cancer-stricken husband.
The court rejected 11
separate arguments raised by lawyers for Wendi Andriano, 36, in an
effort to have her first-degree murder conviction and death sentence
convicted in the Oct. 8, 2000, death of her husband, Joe Andriano, who
was terminally ill with cancer. The couple lived in the Phoenix
community of Ahwatukee.
During the trial, the
prosecutor Martinez characterized Andriano as a greedy, cheating wife
who killed her cancer-stricken husband in a “shockingly evil” way.
Wendi Andriano tried to pass off her husband’s death as a heart attack
to get money from a malpractice lawsuit.
Joe Andriano was
struck in the head at least 23 times and stabbed in the neck.
Investigators also found pesticide in his stomach and evidence that
his wife had been trying to poison him for a substantial period.
testified for nine days in her own defense and claimed she had been
battered by her husband. She said he flew into a rage when she told
him she had an affair and the two got into a struggle with a knife.
In her appeal, Wendi
Andriano claimed that evidence of her affairs and efforts to buy life
insurance policies for her ailing husband unfairly prejudiced her in
front of the jury. She also argued that the jury should have been
allowed to consider the lesser crimes of second-degree murder and
She raised questions
about the jury’s deliberations during the penalty phase, when it
appeared deadlocked and the judge offered to answer legal questions to
help them reach a decision, saying the judge’s actions were jury
And she claimed the
state’s method of execution by lethal injection was cruel and unusual
punishment under the U.S. Constitution because exact drug doses and
potential problems with the technique are not spelled out in the law.
The Supreme Court, in
a unanimous 39-page opinion, rejected all in turn.
Andriano is one of
only two women on Arizona’s death row.
Andriano sentence questioned
By Jim Walsh - The Arizona
Feb. 2, 2005
A defense attorney Friday will
ask a judge to toss out an Ahwatukee Foothills woman's death sentence,
saying the same judge should not have urged deadlocked jurors to
Wendi Andriano, 34, was
sentenced to death two days later by jurors, who said the vote was
11-1 when they sent Maricopa County Superior Court Judge Brian
Ishikawa a note asking him to describe the procedure if they were
unable to reach a unanimous verdict.
Defense attorney Dan Patterson
wrote in his Dec. 29 motion for a new trial that Ishikawa erred by
sending jurors a note with suggestions to resolve the apparent
Andriano, 34, wept when the
death verdict was returned by jurors Dec. 22, becoming the second
woman on Arizona's death row. Jurors found her guilty of first-degree
murder Nov. 18 in the bludgeoning of her husband, Joe, 33, a terminal
Patterson's bid for a new
sentencing could be the first step in a long series of anticipated
appeals. Under state law, a death verdict is automatically appealed to
the Arizona Supreme Court.
"The supplemental instruction
should have included provisions that the jury was not required to
deliberate further, that a hung jury was permissible under the law,
and that a sentencing decision in a capital case is a personal,
individual moral decision," Patterson wrote.
Patterson made a similar
objection when Ishikawa consulted with the attorneys after receiving
the note from jury forewoman Barbara Bauer, which read, "If we are
unable to reach a unanimous verdict, what is the procedure that will
But Ishikawa overruled
Patterson's objection and sent jurors a note anyway, suggesting they
identify areas of agreement and disagreement, and write down any
questions of law that he could answer.
Prosecutor Juan Martinez wrote
that Ishikawa did nothing wrong. He said including in the note that
hung juries are permissible "could have encouraged the jury to abandon
its efforts to reach a verdict."
Jurors said they had not given
up reaching a verdict when they sent Ishikawa the note, even though
one holdout juror, an elderly man from Gilbert, was adamantly opposed
to a death sentence at that time. Jurors unanimously supported the
death penalty after the holdout changed his mind.
Juror Linda Percy said she
would not have been satisfied with a hung jury on the sentencing phase
of Andriano's trial.
"We have put four months of our
life into this. I'll be damned if we go out a hung jury," she said.
But jurors didn't rush to
judgment, either, carefully weighing the 23 reasons of leniency listed
by defense attorneys before sentencing Andriano, Percy said.
"When you're dealing with
someone's life, you're looking at everything. We did not take it
lightly at all," she said.
The lives of all the jurors
changed to accommodate the 17-week trial.
In interviews with The
Ahwatukee Republic in January, jurors said their jury service
was a once-in-a-lifetime experience, with several saying it renewed
their faith in the justice system. Here is a look at some of what they
had to say.
Linda Percy, 63, a
Realtor in Gilbert, said the trial devastated her business life. It
prevented her from visiting her ailing 97-year-old grandmother in West
Virginia in October.
"It deprived me of a chance to
see her" before she died, Percy said. She sent her son as a
Percy said that finding
Andriano guilty of first-degree murder was very easy. She did not
believe Andriano was a battered woman, saying that nearly any
relationship qualified as abusive under defense expert Sharon Murphy's
definition. Percy said reaching the death sentence was much more
"It was a really hard decision,
but it was the right decision," she said. "I have children close to
her age. That was really hard. That's why I looked at things over and
over again. I just wanted to absolutely make sure and I would hope
future jurors would do the same."
Tanner Catalano, 27, of
Gilbert, was between jobs, looking for work when he was selected. He
said the trial put his plans to find a new job on hold. A former
college hockey player, he worked as a part-time hockey official at the
Ice Den in Scottsdale during the trial and played hockey to relieve
"I've played on a lot of hockey
teams in my life, but nothing compared to this," Catalano said. "After
you go through something like that, it's like a family."
He said the stress from the
trial was the worst at night. "All the facts go through your mind, all
the pictures, everything you have to weigh."
A three-day weekend that
delayed deliberations was particularly difficult. "That was the worst,
that weekend, I probably slept, at the max, four to five hours."
But he said his stress was
nothing compared with that of Joe and Wendi Andriano's families.
Juror Mary Fobes, 74, a retiree
from Mesa, said she enjoyed being on the jury for the most part. Fobes
was bothered by Andriano blaming the murder on a suicide pact with
Joe, a defense that she and other jurors never bought.
"She would not or could not say
that she killed him," Fobes said. "She never did admit to the murder."
Fobes also found her mind
racing at night, after about four hours a day of hearing evidence. "A
lot of times, I would lose sleep, or I'd dream about the trial," she
said. "I guess I was worrying about whether I was doing the right
thing, or making up my mind for sure."
Alternate juror Martha Colvin
said Andriano was guilty but would have avoided execution if she had
not lied to cover up her crimes.
Colvin, 54, of Mesa, and fellow
alternate Lisa Flores said they would not have voted for execution.
They were chosen as alternates at random.
"I really empathized with that
little girl. I was really afraid they would hang her," Colvin said. "I
would not want to be one of the 12 that put that little girl to
Colvin, who said her late
brother was a corrections officer at death row, believes she could
have convinced other jurors to give Andriano a life sentence.
Juror Jay Erke, 48, of Mesa, an
aircraft mechanic, said he enjoyed his jury duty because it was a
four-month reprieve from a graveyard shift. It also allowed Erke, who
is going through a divorce, to see more of his 4-year-old.
"There was a little bit of
anxiety," he said. "Having that power, that control, over somebody's
Erke decided the cruelty of Joe
Andriano outweighed mitigating factors, but also thought Wendi
Andriano was financially motivated, trying to pull the perfect murder
by poisoning her husband and passing off his death as a heart attack.
But Erke said Wendi panicked
when she hit Joe in the head 23 times with a bar stool and stabbed him
in the neck.
"Her own anxiety did her in,"
Woman will be second on
Ariz.'s death row
December 23, 2004
Wendi Andriano, sentenced yesterday, poisoned and
stabbed terminally ill husband.
MESA - A woman convicted of poisoning and stabbing
her terminally ill husband was sentenced to death yesterday, becoming
the second woman on Arizona's death row.
The jury, which had deliberated the sentence since
Dec. 1, struggled to decide whether to seek the execution of Wendi
Andriano. Jurors reported to Maricopa County Superior Court Judge
Brian Ishikawa this week that they were unable to decide. He sent them
back for more deliberations.
Andriano, who was convicted of first-degree murder
Nov. 18, cried as the sentence was read.
The sentence didn't provide closure, said the
family of her husband, Joe Andriano.
"I don't think I'll ever get over this," said his
mother, Jeanette Andriano. "We're going to go on with our lives. ...
We have faith in God. We have friends and family who have really
The family will take care of the Andriano's two
"I miss my brother. ... It's going to be hard to
tell them everything that's happened," said Jeanea Lambeth, Joe
Andriano's sister, who will raise Wendi Andriano's 6-year-old daughter
and 7-year-old son.
During the trial, prosecutor Juan Martinez
characterized Andriano as a greedy, cheating wife who poisoned her
husband with pesticide, slashed his neck and bashed his head as she
hastened his death in a "shockingly evil" way.
Martinez said Andriano tried to pass off her
33-year-old husband's Oct. 8, 2000, death as a heart attack to get
money from a malpractice lawsuit.
Andriano, who testified for nine days in her
defense, claimed she was battered by her husband.
She said he flew into a rage when she told him
she'd had an affair and the two got into a struggle with a knife.
Andriano was fighting a rare form of cancer.
Joe Andriano was struck in the head at least 23
times and stabbed in the neck, said investigators, who added that
pesticide was found in the victim's stomach.
The other woman on death row in Arizona is Debra
Milke, who plotted the murder of her 4-year-old son in 1989.
Ten women have been executed nationwide since 1976,
when the U.S. Supreme Court reinstated the death penalty, the Death
Penalty Information Center said.
One woman has been put to death in Arizona.
In 1930, 52-year-old Eva Dugan was hanged for
killing a Tucson rancher.
Her head came off in the process.
Ariz. woman on trial in husband's
December 1, 2004
MESA, Ariz. (AP) — A greedy, cheating wife poisoned
her terminally ill husband with pesticide, slashed his neck and bashed
his head as she hastened his death in a "shockingly evil" way, a
prosecutor said Wednesday.
Wendi Andriano, 34, was
convicted Nov. 18 of first-degree murder in death of her husband, Joe
Andriano. She could become the second woman on Arizona's death row.
Jurors began deliberating
Wednesday whether aggravating factors exist to warrant the death
Prosecutors said Andriano tried
to pass off her husband's Oct. 8, 2000, death as a heart attack to get
money from a malpractice lawsuit.
"This woman saw her husband as
nothing more than a pot of gold," Martinez told jurors. "Greed — that
is what this is all about to her."
Using a battered wife defense,
Wendi Andriano claimed her husband went into a rage when she told him
she had an affair and the two got into a struggle with a knife.
"This is a case of domestic
violence," said Daniel Patterson, Andriano's attorney.
Joe Andriano, 33, was struck in
the head at least 23 times and stabbed in the neck. Investigators also
found pesticide in his stomach.
Wendi Andriano, who took the
stand for nine days, said her cancer-ridden husband took the poison to
end his suffering. She claimed he stabbed himself.
If jurors do not find
aggravating factors, the judge will sentence the woman to either 25
years to life or life without possibility of parole; if they do, the
defense will explain why Andriano shouldn't receive the death penalty
before she is sentenced.
Adriano can't explain poison
November 3, 2004
Last week, Wendi Andriano told jurors her husband
took poison-filled capsules to end his live and his struggle with
On Tuesday, the 34-yearold Ahwatukee Foothills
woman could not explain how poison got inside a pot of soup and bowls
found in their apartment following his death.
"You put that in that food, didn’t you?" prosecutor
Juan Martinez asked Andriano in Maricopa County Superior Court in
"No sir," Andriano replied.
"It was in the soup, though, wasn’t it?" Martinez
"That’s what the tests say," Andriano said.
Andriano is accused of poisoning, beating and
stabbing to death Joseph Andriano, 33, on Oct. 8, 2000. Prosecutors
allege Wendi Andriano wanted her husband dead, believing she could get
as much as $20 million from a medical malpractice lawsuit filed
against his doctors.
The prosecution is attempting to prove Wendi
Andriano used a pesticide bought under a false name to poison her
husband, thinking it would appear as though he’d died of a heart
Witnesses have testified the mother of two had two
affairs before Joseph Andriano’s death and spent weeks trying in vain
to get extra life insurance on him.
During four days of testimony last week, Wendi
Andriano told jurors she was a battered wife, and it was her husband’s
idea to obtain the poison and the extra life insurance.
Wendi Andriano said that her husband panicked after
taking the poison and asked her to take him to the hospital. After one
of her friends convinced her to call 911, however, her husband changed
his mind again, she said.
The friend and paramedics testified that Wendi
Andriano refused to come to the door when the paramedics arrived.
Eventually, they testified, a freshly showered
Wendi Andriano came out a side door and walked all the way around the
building to tell them to leave.
When Wendi Andriano called them back several
minutes later, Joseph Andriano was dead.
Wendi Andriano said her husband would not allow her
to let the paramedics in and was insistent upon dying.
However, after her husband took the poison-filled
capsules, he begged her to explain why a condom was missing from his
bureau, Wendi Andriano said. He went "berserk" when she confessed to a
one-night stand and tried to strangle her with a phone cord. She was
able to cut the cord with a kitchen knife and when he tried to get the
knife, she said she beat him with a bar stool.
Moments later, Wendi Andriano said, her husband
stabbed himself in the neck.
Wendi Andriano denied Martinez’s suggestion that
she beat and stabbed her husband to death and showered in the moments
before the paramedics arrived.
"You’re grossly mistaken," Wendi Andriano said.
"You are so wrong".
Supreme Court of Arizona
State v. Andriano
STATE of Arizona, Appellee, v. Wendi Elizabeth ANDRIANO, Appellant.
July 09, 2007
Terry Goddard, Arizona Attorney General by Kent E.
Cattani, Chief Counsel, Capital Litigation Section, Phoenix, Robert J.
Gorman, Jr., Assistant Attorney General, Tucson, Attorneys for State
of Arizona.James J. Haas, Maricopa County Public Defender by Brent E.
Graham, Margaret M. Green, Deputy Public Defenders, Phoenix, Attorneys
for Wendi Elizabeth Andriano.
¶ 1 In 2004, Wendi Andriano was found guilty of one
count of first degree murder and sentenced to death. This automatic
appeal followed. We have jurisdiction pursuant to Article 6, Section
5(3), of the Arizona Constitution and Arizona Revised Statutes
(“A.R.S.”) section 13-4031 (2001).
I. FACTS 1 AND PROCEDURAL BACKGROUND
¶ 2 Wendi Andriano, her terminally ill husband,
Joe, and their two small children attended a barbeque on October 7,
2000. They returned to their apartment around midnight and put the
children to bed.
¶ 3 At about 2:15 a.m. on October 8, Andriano
called Chris, a coworker who also lived at the apartment complex, and
asked her to watch the children while Andriano took Joe to the doctor.
When Chris arrived, Andriano met her outside the apartment. She
told Chris, “I have a problem. Don't ask any questions. My
husband's in on the floor dying and I haven't called 911 yet.” When
Andriano cautioned, “He doesn't know I haven't called 911,” Chris
urged her to make the call.
¶ 4 Upon entering the apartment, Chris found Joe
lying on the living room floor in the fetal position. He had
vomited, appeared weak, and was having difficulty breathing. While
Andriano was in another room calling 911, Joe told Chris that he
needed help and had “for a long time.” He asked why it was taking
forty-five minutes for the paramedics to arrive.
¶ 5 Andriano returned to the room and told Chris
she needed to get Joe to the car so she could drive him to the
hospital because the paramedics were responding to another call. Joe
said he could not get up, so Andriano tried to lift him. When she
could not, she became irritated and yelled at Joe, using profanities.
Hearing sirens approaching, Chris went out to direct the paramedics
to the apartment as Joe began to vomit again.
¶ 6 As the paramedics were unloading their
equipment, Andriano came out of the apartment screaming at them to go
away. She then slammed the door. Chris and four paramedics knocked
on the apartment door, but no one answered. After five to ten
minutes of knocking, the Phoenix Fire Department alarm room called the
Andrianos' home telephone in an attempt to get Andriano to open the
door. The alarm room notified the paramedics that contact had been
made with someone in the apartment who would come out to speak with
them. Rather than coming through the front door, which opened to the
living room, Andriano went out through her back door, climbed over the
back patio wall, and walked around the apartment building to the front
door, where Chris and the paramedics were standing. Andriano had
changed her shirt and her hair was wet. She told the paramedics that
Joe was dying of cancer and had a do-not-resuscitate order. She
explained that “this was not the way that he wanted to go.” The
paramedics and Chris left without going into the apartment.
¶ 7 Andriano called 911 again at 3:39 a.m. The
same paramedics responded and saw Andriano, wearing a bloody shirt,
standing outside the apartment talking to a police officer.
¶ 8 When the paramedics entered the apartment, they
found Joe lying on the floor in a pool of blood. He had a deep stab
wound to the left side of his neck and lacerations on his head that
exposed some brain matter. A police detective observed at 3:52 a.m.
that the blood surrounding Joe's head was already starting to dry. A
broken bar stool covered in blood was found near Joe's body, as were
pieces of a lamp, a kitchen knife with blood on the sharp edge, a
bloody pillow, and a belt.
¶ 9 A search of the Andrianos' storage unit
revealed an open cardboard shipping box containing a 500-gram bottle
of sodium azide, two Tupperware containers containing sodium azide,
nine Q-tips, a plastic knife and fork, and two pairs of latex gloves.
Andriano's fingerprints were on the plastic knife and the
vacuum-packed bag in which the cardboard box was shipped. During a
search of the Andrianos' apartment, the police found gelatin capsules
filled with sodium azide in a bottle labeled for an herbal supplement.
Trace amounts of sodium azide were also discovered in the contents
of a pot and two soup bowls in the kitchen. In all, 20.8 grams of
sodium azide could not be accounted for.
¶ 10 The medical examiner determined that Joe
sustained brain hemorrhaging caused by no fewer than twenty-three
blows to the back of his head, eight to ten of which independently
could have rendered Joe unconscious. Defensive wounds on Joe's hands
and wrists indicated, however, that he was conscious for at least part
of the attack. Joe also sustained a 3 and 3/4-inch-long by
2-inch-wide stab wound to the left side of his neck that extended to
his spine and severed his carotid artery. The medical examiner
opined that the blows to the head were sustained before the stab wound
to the neck and that Joe was still alive, although likely unconscious,
when he was stabbed. Trace amounts of sodium azide were found in
Joe's blood and gastric contents. The cause of death was attributed
to blunt force trauma and the stab wound.
¶ 11 Based on the blood spatter and other evidence,
a Phoenix police detective opined that Joe was lying down while he was
being struck and did not get up during the attack. He further
opined, based on the absence of arterial spurting on the belt and the
knife, that both items were placed beside Joe's body after he died.
Blood spatter on the bar stool, on the other hand, suggested that the
stool was present when the arterial spurting began.
¶ 12 After being taken into custody, Andriano
called one of her coworkers and asked her to hide certain items that
were in Andriano's business office. Andriano's adoptive father told
a police detective on the day of the murder, “I remember [Andriano]
telling me that she stabbed [Joe].”
¶ 13 Andriano was indicted on one count of first
degree murder. The State filed a notice of intent to seek the death
penalty and subsequently alleged two aggravating factors: that
Andriano committed the offense “in expectation of the receipt [ ] of
anything of pecuniary value,” in violation of A.R.S. § 13-703(F)(5)
(Supp.2000), and that she committed the murder “in an especially
heinous, cruel or depraved manner,” in violation of A.R.S.
§ 13-703(F)(6). The State further alleged that the offense was a
dangerous felony, see id. § 13-604(P), because it “involved the
intentional or knowing infliction of serious physical injury upon
¶ 14 At trial, Andriano testified that after a
failed assisted suicide attempt by poison, she and Joe got into a
fight, during which she hit Joe with a bar stool in self-defense.
She claimed that he ultimately slit his own throat. The jury found
Andriano guilty of first degree murder and further found that the
murder was a dangerous felony.
¶ 15 The same jury found the (F)(6) “especially
cruel” aggravating factor, but did not find the (F)(5) “pecuniary
gain” aggravator. Finding that the mitigating circumstances were not
sufficiently substantial to call for leniency, the jury returned a
verdict calling for a sentence of death.
¶ 16 Andriano raises eleven issues on appeal and
lists an additional thirteen claims to avoid preclusion.2
A. Guilt Phase Issues
1. Admission of other act evidence
¶ 17 Andriano claims that evidence of her
extramarital affairs and her attempts to obtain insurance policies on
Joe's life was unfairly prejudicial and was neither intrinsic to the
charge against her nor admissible under Arizona Rule of Evidence
404(b). We review evidentiary rulings for an abuse of discretion.
State v. McGill, 213 Ariz. 147, 156, ¶ 40, 140 P.3d 930, 939 (2006),
cert. denied, 549 U.S. 1324, 127 S.Ct. 1914, 167 L.Ed.2d 570 (2007).
¶ 18 The trial court found the insurance and
affairs evidence “intrinsic” to the crime. “ ‘Other act’ evidence is
‘intrinsic’ when  evidence of the other act and evidence of the
crime charged are ‘inextricably intertwined’ or  both acts are part
of a ‘single criminal episode’ or  the other acts were ‘necessary
preliminaries' to the crime charged.” State v. Dickens, 187 Ariz. 1,
18-19 n. 7, 926 P.2d 468, 485-86 n. 7 (1996) (quoting United States v.
Coleman, 78 F.3d 154, 156 (5th Cir.1996)).
a. Life insurance policies
¶ 19 After three surgeries to remove a recurring
tumor in his salivary gland and as many misdiagnoses, Joe was
diagnosed with metastatic adenoid cystic carcinoma in 1998. By that
time, the cancer had spread to his lungs and his condition was deemed
¶ 20 Nevertheless, during August and September of
2000, Andriano made several attempts to obtain insurance on Joe's life
through various companies. During the prescreening process, Andriano
claimed that Joe did not have cancer. One agent contacted Joe on
September 6 after receiving an electronic pre-application, at which
time Joe indicated that he was not interested in applying. Andriano
sent an email three days later from her personal email account asking
that Joe's request be reinstated and directing that further contact be
made with her. She also asked two men to pose as Joe for a life
insurance physical exam, one of whom she offered to pay as much as
$50,000. Both refused. No life insurance policy was ever obtained
through these efforts.
¶ 21 Andriano's attempts to procure insurance on
Joe's life do not fall into any of the three categories of intrinsic
evidence. Because she never secured insurance, the attempts to
procure it were not inextricably intertwined with Joe's murder, part
of a single criminal episode, or a necessary preliminary to Joe's
murder. See id. The insurance procurement evidence clearly differs
from, for example, evidence deemed intrinsic in Dickens that the
defendant had stolen the gun used in the charged murders and
robberies. See id.; see also State v. Nordstrom, 200 Ariz. 229,
248, ¶ 56, 25 P.3d 717, 736 (2001) (commenting on the “necessary
preliminary” prong of the intrinsic evidence inquiry).
¶ 22 Even though not intrinsic to the crime
charged, “other act” evidence may nonetheless be admissible under Rule
404(b) to prove “motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident,” as long as
its probative value is not substantially outweighed by the danger of
unfair prejudice. Ariz. R. Evid. 403; see also Dickens, 187 Ariz. at
19, 926 P.2d at 486.
¶ 23 Evidence of Andriano's attempts to obtain
insurance on Joe's life was admissible to show her plan, knowledge,
and intent to kill Joe, and also to show that she premeditated Joe's
murder. Moreover, the significant probative value of such damaging
evidence is not substantially outweighed by the danger of unfair
prejudice to Andriano. Because the evidence was admissible under
Rule 404(b), the trial court did not abuse its discretion in admitting
the evidence, even if it might have admitted the evidence for the
wrong reason. See State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214,
1219 (1984) (affirming trial court's ruling even though trial judge
reached the proper conclusion for the wrong reason).
b. Extramarital affairs
¶ 24 During the summer of 2000, Andriano had a
brief extramarital affair with Rick, a resident of the apartment
complex where she lived and worked as the property manager. That
affair ended in July when Rick learned that Andriano was married and
had children. Despite his rejection of her advances, Andriano
aggressively pursued Rick. On one occasion, she stood outside his
apartment late at night, banging on his door for five minutes,
demanding to be let in, and threatening to get the master “pass key”
if he did not let her in.
¶ 25 During that same summer, Andriano frequented
bars on a weekly basis with coworkers and friends. There, she was
seen dancing and flirting and even groping and kissing men. On
September 27, the evening after Joe's fourth chemotherapy treatment,
Andriano went to a dance club and began dancing provocatively with and
kissing a man she met there. They ultimately returned to the
Andrianos' apartment and had sex. During a phone conversation the
following day, Andriano told the man her husband had died of cancer.
¶ 26 Like the insurance evidence, evidence of
Andriano's extramarital affairs is not intrinsic to the first degree
murder charge. The affairs were not inextricably intertwined with or
part of the same criminal episode as the murder, nor were they a
necessary preliminary to the murder. Dickens, 187 Ariz. at 18-19 n.
7, 926 P.2d at 485-86 n. 7. The evidence was admissible under Rule
404(b), however, as evidence of Andriano's motive for killing her
husband-to be free to pursue other relationships. Supporting this
purpose was testimony from Andriano's hairdresser, who testified that
Andriano told her in February of 2000 that she would have divorced Joe
were he not ill. At a later visit, Andriano disclosed that Joe
“wanted to keep the marriage together,” but she was “emotionally out
of it” and “wished he was dead so she could move on with her life.”
Around August of 2000, Andriano confided to the hairdresser that she
was interested in another man who hesitated to get involved in a
relationship because she was married.
¶ 27 The evidence was also admissible under Rule
404(b) to rebut the defense theory that Andriano was a domestic
violence victim who lived in fear of her abusive husband, whom she
bludgeoned to death in self-defense.
¶ 28 Andriano maintains, nonetheless, that the
evidence was unfairly prejudicial because “[t]he prosecutor took every
opportunity to infuse the trial with marginally relevant information
about Andriano's partying and man-chasing.” 3
Nearly all the examples Andriano provides relate to the prosecutor's
comments in the guilt phase closing arguments. Comments in closing
arguments, however, are not evidence, as the jury was instructed, and
thus the comments do not render unfairly prejudicial evidence that is
otherwise properly admitted.
¶ 29 Another incident about which Andriano
complains occurred during the cross-examination of defense expert Dr.
Sharon Murphy. The prosecutor asked Dr. Murphy whether Andriano used
a personal lubricant during sexual intercourse with Rick. The door
to this line of questioning had been opened by defense counsel's
questioning on direct examination, to which Dr. Murphy responded that
Andriano and Joe “needed to use a lubricant” during intercourse.
Considered in context, the questioning was designed to rebut Dr.
Murphy's suggestion, elicited by defense counsel's question, that
Andriano's need to use a lubricant when she had sex with Joe showed
that Joe was an abusive spouse. The evidence elicited was not
¶ 30 The final incident relates to a comment the
prosecutor made during aggravation phase closing arguments and
therefore is not relevant to whether such evidence was admissible in
the guilt phase. The probative value of evidence of Andriano's
extramarital relationships is not substantially outweighed by the
danger of unfair prejudice, and thus the trial court did not abuse its
discretion in admitting the evidence.
¶ 31 In sum, although neither category of evidence
is intrinsic to the crime charged, both categories are admissible
under Rule 404(b): evidence of attempts to procure life insurance to
prove plan, knowledge, intent, and premeditation, and evidence of
extramarital affairs to prove motive and to rebut the defense theory
that Andriano was a domestic violence victim. The trial court did
not abuse its discretion in admitting the evidence.
2. Lesser-included offense instructions
¶ 32 Andriano argues that the trial court was
required sua sponte to instruct the jury on the lesser-included
offenses of second degree murder and “sudden quarrel or heat of
passion” manslaughter. Defense counsel did not request any
lesser-included offense instructions. We review a trial court's
failure to give lesser-included offense instructions for fundamental
error when the instructions are not requested at trial. Nordstrom,
200 Ariz. at 253, ¶ 81, 25 P.3d at 741. In a capital case, it is
fundamental error for the trial court to fail to give a
lesser-included offense instruction if one is supported by the
evidence, id.; see also Beck v. Alabama, 447 U.S. 625, 627, 638, 100
S.Ct. 2382, 65 L.Ed.2d 392 (1980), and not waived by the defendant.
¶ 33 As to second degree murder, Andriano contends
on appeal that because sodium azide poisoning did not cause Joe's
death, a reasonable jury could have found that she abandoned her plan
to poison Joe. Abandonment is shown, she argues, by her summoning
Chris to the apartment and her call to 911. She maintains that a new
sequence of events began that led to an intentional or knowing-but not
premeditated-death. As to manslaughter, Andriano contends that the
evidence supports a conclusion that Joe provoked her when he reached
for a knife, and she then killed him during a sudden quarrel or in the
heat of passion.
¶ 34 Andriano did not argue either of these
theories at trial, however, and the evidence presented does not
support either theory. Andriano testified that she was attempting to
assist Joe in committing suicide when they got scared and decided to
call for help. She claimed that after 911 was called and Chris left
the apartment to meet the paramedics, Joe decided that he wanted to
follow through with the suicide. She testified that, after the
paramedics left, she admitted to Joe that she had an affair. Joe
then became violent and tried to choke her with a phone cord, but she
was able to reach a knife, cut the cord, and free herself. When she
put the knife down, Joe bent down to pick it up, so she hit him with
the bar stool until he stopped moving. Ultimately, Joe picked up the
knife and said he was going to kill himself. Andriano tried to stop
him, but her hand slipped off the knife. Suddenly there was blood
everywhere, but she had not stabbed Joe.
¶ 35 Despite Andriano's testimony that Joe had
killed himself, in closing argument, defense counsel argued that
Andriano was a domestic violence victim who acted in self-defense
after an assisted suicide attempt. The jury was instructed on
self-defense and told that if it found Andriano to be a domestic
violence victim, “the state of mind of a reasonable person ․ shall be
determined from the perspective of a reasonable person who has been a
victim of those past acts of domestic violence.”
¶ 36 We held in State v. Celaya that “where the
sole defense is self-defense so that the evidence requires either
conviction or acquittal, any instruction on any other grade would be
impermissible.” 135 Ariz. 248, 255, 660 P.2d 849, 856 (1983); see
also State v. Wall, 212 Ariz. 1, 6, ¶ 29, 126 P.3d 148, 153 (2006)
(noting that when defendant asserts an “all-or-nothing” defense, the
record usually will not support the giving of a lesser-included
offense instruction); State v. Jones, 109 Ariz. 80, 81-82, 505 P.2d
251, 252-53 (1973) (holding that lesser-included offense instructions
were not required where evidence at trial and defendant's self-defense
theory presented an “either-or” situation requiring either first
degree murder conviction or acquittal). We conclude that the
evidence in this case did not support either a second degree murder or
manslaughter instruction and that the trial court therefore did not
commit fundamental error in failing to give either instruction.
B. Aggravation Phase Issues
1. Constitutionality of (F)(6) aggravating
¶ 37 Andriano argues that the A.R.S. § 13-703(F)(6)
“especially heinous, cruel or depraved” aggravator is both facially
vague and vague as applied by juries rather than trial judges. In
Walton v. Arizona, the United States Supreme Court found Arizona's
(F)(6) aggravator facially vague. 497 U.S. 639, 654, 110 S.Ct. 3047,
111 L.Ed.2d 511 (1990), overruled on other grounds by Ring v. Arizona
(Ring II ), 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).
The Supreme Court nonetheless upheld the factor against a
constitutional challenge because this Court's narrowing construction
of the (F)(6) aggravator “gives meaningful guidance to the sentencer.”
Id. at 653-55, 110 S.Ct. 3047.
¶ 38 Because juries rather than trial judges now
find the existence of aggravating factors, see A.R.S. § 13-703.01(C)
(Supp.2006), Andriano argues that the judge's knowledge of the
narrowing construction cannot save the (F)(6) aggravator from
unconstitutional vagueness. We rejected this argument in State v.
Cromwell, 211 Ariz. 181, 188-89, ¶¶ 40-42, 119 P.3d 448, 455-56
(2005), cert. denied, 547 U.S. 1151, 126 S.Ct. 2291, 164 L.Ed.2d 819
(2006), and State v. Anderson (Anderson II ), 210 Ariz. 327, 352-53,
¶¶ 109-14, 111 P.3d 369, 394-95 (2005). “Those cases hold that the
(F)(6) aggravator may be constitutionally applied if given substance
and specificity by jury instructions that follow this Court's
constructions.” State v. Hampton, 213 Ariz. 167, 176, ¶ 36, 140 P.3d
950, 959 (2006), cert. denied, 549 U.S. 1132, 127 S.Ct. 972, 166
L.Ed.2d 738 (2007).
¶ 39 Andriano also argues that the (F)(6)
aggravating factor is unconstitutionally vague when applied by a jury
because without proportionality review the jury has no way to
determine whether the murder for which it has found the defendant
guilty is “above the norm of other first degree murders.” We
rejected this argument in State v. Johnson, 212 Ariz. 425, 431-32,
¶¶ 19-20, 133 P.3d 735, 741-42, cert. denied, 549 U.S. 1022, 127 S.Ct.
559, 166 L.Ed.2d 415 (2006). We similarly reject it here.
2. (F)(6) “cruelty” instruction 4
¶ 40 The trial court provided the following (F)(6)
“cruelty” instruction to the jury:
“Cruelty” involves the infliction of physical pain
and/or mental anguish on a victim before death. A crime is committed
in an especially cruel manner when a defendant either knew or should
have known that the manner in which the crime is committed would cause
the victim to experience physical pain and/or mental anguish before
death. The victim must be conscious for at least some portion of the
time when the pain and/or anguish was inflicted.
Andriano asserts that this instruction was
insufficient to guide the jury and channel its discretion in applying
¶ 41 The instruction given paraphrases this Court's
statement in State v. Trostle, 191 Ariz. 4, 18, 951 P.2d 869, 883
(1997), that “[c]ruelty exists if the victim consciously experienced
physical or mental pain prior to death, and the defendant knew or
should have known that suffering would occur.” (Internal citation
omitted.) We recently reaffirmed that the Trostle definition of
“cruelty” sufficiently narrows and gives substance to the (F)(6)
“especially cruel” aggravating factor to save it from constitutional
infirmity. Anderson II, 210 Ariz. at 352 & n. 18, ¶ 109, 111 P.3d at
394 & n. 18. We similarly conclude here that the trial court's
instruction gave sufficient substance and specificity to the term
“cruelty” to channel the jury's discretion and correct any
3. “Above the norm of other first degree
¶ 42 The trial court instructed the jury that the
(F)(6) aggravating circumstance “cannot be found to exist unless the
murder is especially heinous, cruel or depraved, that is, where the
circumstances of the murder raise it above the norm of other first
degree murders.” Andriano claims that this instruction required the
jury to engage in proportionality review, which was improper in light
of State v. Salazar, 173 Ariz. 399, 416, 844 P.2d 566, 583 (1992), and
State v. Greenway, 170 Ariz. 155, 171, 823 P.2d 22, 38 (1991).
Because Andriano did not object on this ground at trial, we review
only for fundamental error. See State v. Henderson, 210 Ariz. 561,
567, ¶ 19, 115 P.3d 601, 607 (2005).
¶ 43 We have held that “the death penalty should
not be imposed in every capital murder case but, rather, it should be
reserved for cases in which either the manner of the commission of the
offense or the background of the defendant places the crime ‘above the
norm of first-degree murders.’ ” State v. Carlson, 202 Ariz. 570,
582, ¶ 45, 48 P.3d 1180, 1192 (2002) (quoting State v. Hoskins, 199
Ariz. 127, 163, ¶ 169, 14 P.3d 997, 1033 (2000)). Such an
instruction does not require the jury to engage in proportionality
review. Instead, the jurors must assess whether the murder was so
cruel that it rose above the norm of first degree murders. To assist
them in this inquiry, the judge instructed the jurors on the
definition of “cruelty,” explaining how to determine whether “the
circumstances of the murder raise it above the norm of other first
degree murders.” Considering the instructions as a whole, the jury
was properly instructed to apply the definition of “cruelty,” rather
than to engage in proportionality review. The trial court did not
err, fundamentally or otherwise, in giving the instruction.
C. Penalty Phase Issues
1. Residual doubt mitigation
¶ 44 The trial court denied Andriano's request to
present evidence of residual doubt as a mitigating circumstance in the
penalty phase. Andriano claims that the trial court was
constitutionally required to allow her to present such mitigation
evidence for the jury's consideration. We review alleged
constitutional violations de novo. McGill, 213 Ariz. at 159, ¶ 53,
140 P.3d at 942.
¶ 45 Both the United States Supreme Court and this
Court have rejected the argument that a capital defendant must be
allowed to present residual doubt evidence in mitigation. In Oregon
v. Guzek, the defendant argued that the Eighth and Fourteenth
Amendments granted him a constitutional right to present new alibi
evidence at his sentencing proceeding. 546 U.S. 517, ----, 126 S.Ct.
1226, 1230, 163 L.Ed.2d 1112 (2006). The Supreme Court, although not
deciding whether such a right exists, held that its previous cases do
not grant capital defendants a constitutional right to present
evidence of residual doubt at sentencing. Id. at ----, 126 S.Ct. at
1231-32. We thus noted in State v. Ellison that “there is no
constitutional requirement that the sentencing proceeding jury revisit
the prior guilty verdict by considering evidence of ‘residual
doubt.’ ” 213 Ariz. 116, 136, ¶ 82, 140 P.3d 899, 919 (citing Guzek,
546 U.S. at ----, 126 S.Ct. at 1230-32), cert. denied, --- U.S. ----,
127 S.Ct. 506, 166 L.Ed.2d 377 (2006). The trial court did not err
in denying Andriano's request to present residual doubt evidence in
2. Mercy mitigation
¶ 46 The trial court also denied Andriano's request
to include “mercy” among the enumerated mitigating circumstances for
the jury's consideration. Andriano maintains that the trial court
was constitutionally required to allow her to do so. We disagree.
¶ 47 Arizona Revised Statutes § 13-703(G)
(Supp.2004) provides that mitigating circumstances are “any factors
proffered by the defendant or the state that are relevant in
determining whether to impose a sentence less than death, including
any aspect of the defendant's character, propensities or record and
any of the circumstances of the offense.” The defendant bears the
burden of proving mitigating circumstances by a preponderance of the
evidence. Id. § 13-703(C). The defendant cannot, however, prove
“mercy” by any standard, nor does it relate to the character or
propensities of the defendant or the circumstances of the crime.
Therefore, mercy is not a mitigating circumstance.
¶ 48 Mercy is a concept jurors may apply in
evaluating the existence of mitigating circumstances and in deciding
whether the death penalty is appropriate in a particular case. In
this sense, “mercy” is simply another word for “compassion” or
“leniency.” A capital defendant is free to argue to the jury, as the
defense did here, that mercy or leniency is appropriate based on the
mitigation evidence presented.
¶ 49 The instructions given in this case correctly
conveyed the role of mercy in determining the appropriate sentence.
The trial court did not err in refusing Andriano's request to include
mercy among the enumerated mitigating circumstances for the jury's
3. Jury unanimity in determining mitigating
¶ 50 The trial court instructed the jury in the
penalty phase as follows:
Any verdict of death or life imprisonment must be
unanimous. If you unanimously find that no mitigation exists, then
you must return a verdict of death. If you unanimously find that
mitigation exists, each one of you must individually weigh that
mitigation in light of the aggravating circumstance already found to
exist, and if you unanimously find that the mitigation is not
sufficiently substantial to call for leniency, you must return a
verdict of death. If you unanimously find that mitigation exists and
it is sufficiently substantial to call for leniency, you must return a
verdict of life.
(Emphasis added.) Andriano claims that this
instruction improperly required the jury to unanimously find
particular mitigating circumstances before each juror could
individually consider whether that mitigation was sufficiently
substantial to call for leniency. We review the challenged
instruction de novo and consider the instructions as a whole “to
ensure that the jury receives the information it needs to arrive at a
legally correct decision.” State ex rel. Thomas v. Granville
(Baldwin ), 211 Ariz. 468, 471, ¶ 8, 123 P.3d 662, 665 (2005).
¶ 51 Each juror in a death penalty case must
individually determine whether any mitigating circumstances exist.
A.R.S. § 13-703(C); see Baldwin, 211 Ariz. at 472, ¶ 13, 123 P.3d at
666; see also Ellison, 213 Ariz. at 139, ¶ 102, 140 P.3d at 922
(discussing Supreme Court cases holding that capital sentencing
statutes may not require unanimity as to mitigating circumstances).
Then, in light of the aggravating circumstances the jury has already
found to exist, each juror must individually determine whether the
mitigation that juror has found to exist is sufficiently substantial
to call for leniency. See A.R.S. § 13-703(C), (E); Baldwin, 211
Ariz. at 473, ¶ 18, 123 P.3d at 667.
¶ 52 Read as a whole, the instructions given here
correctly advised the jurors that they did not have to agree upon the
existence of any particular mitigating circumstance before each juror
could individually assess whether the mitigation was sufficiently
substantial to call for leniency. The court repeatedly advised them
during the penalty phase that each juror was required to
“individually” determine the existence of mitigating circumstances.6
We therefore conclude that the trial court's instruction, considered
in light of the other instructions, adequately informed the jury and
does not require reversal.
4. Jury coercion
¶ 53 Andriano argues that the trial court coerced
the jury's death verdict in two ways when it gave an impasse
instruction: (1) by giving the instruction before ascertaining
whether the jury was truly deadlocked; and (2) by improperly
instructing the jury about its duty to deliberate. “In determining
whether a trial court has coerced the jury's verdict, this court views
the actions of the judge and the comments made to the jury based on
the totality of the circumstances and attempts to determine if the
independent judgment of the jury was displaced.” State v. Huerstel,
206 Ariz. 93, 97, ¶ 5, 75 P.3d 698, 702 (2003).
¶ 54 Near the end of the second day of penalty
phase deliberations, the jury submitted the following question to the
trial court: “If we are unable to reach an unanimous verdict, what is
the procedure that will be followed?” The court instructed the jury
It appears from your note that you are at a
deadlock in your deliberations. I have some suggestions to help your
deliberations, not to force you to reach a verdict. I am merely
trying to be responsi[ve] to your apparent need for help. I do not
wish or intend to force a verdict. Each juror has a duty to consult
with one another, to deliberate with a view to reaching an agreement
if it can be done without violence to individual judgment. No juror
should surrender his or her honest conviction as to the weight or
effect of the evidence solely because of the opinion of other jurors
or for the purpose of reaching a verdict.
However, you may want to identify areas of
agreement and disagreement and discuss the law and the evidence as
they relate to the areas of disagreement.
If you still disagree, you may wish to tell the
attorneys and me which issues, questions, law, or facts you would like
us to assist you with. If you decide to follow this suggestion,
please write down the issues, questions, law or facts on which we can
possibly help. Please give your note to the bailiff. We will then
discuss your note and try to help.7
The jury asked no further questions and returned a
death verdict two days later.
a. Prematurely given instruction
¶ 55 Rule 22.4 of the Arizona Rules of Criminal
Procedure permits the trial court, upon being advised by the jury that
it has reached an impasse in its deliberations, to inquire how it can
assist the jury in its deliberations. “Although the rule gives a
trial judge broad discretion in dealing with juries at an impasse, the
rule requires an affirmative indication from the jury it is in need of
help before assistance may be offered.” Huerstel, 206 Ariz. at 99,
¶ 17, 75 P.3d at 704. In Huerstel, the trial court sent an impasse
instruction to the guilt phase jury after three days of deliberations
although it had received no note or other indication that the jury had
reached an impasse. Id. at 97-98, ¶¶ 6-8, 75 P.3d at 702-03. The
only questions the court had received related to the credentials of an
expert witness, evidentiary matters, and a jury instruction. Id. We
held that the impasse instruction was prematurely given because it was
given “without any clear evidence the jury needed help.” Id. at 99,
¶ 17, 75 P.3d at 704.
¶ 56 In this case, unlike the situation in
Huerstel, the jury's question inquiring what would happen if the jury
could not reach a verdict affirmatively indicated that the jurors were
at an impasse. The Huerstel rule does not require that the jury
unequivocally state that it cannot reach a verdict, only that it give
an “affirmative indication” that it is deadlocked. The trial court
did not err in giving the impasse instruction.
b. Duty to deliberate instruction
¶ 57 Andriano also argues that the impasse
instruction given by the trial court inaccurately stated the law
regarding a capital jury's duty in penalty phase deliberations. The
crux of the argument is that, although the trial court's instruction
would have been proper in the guilt phase or the aggravation phase of
the proceedings, it was not appropriate in the penalty phase because
jurors have no duty to “deliberate with a view to reaching an
agreement” in the penalty phase.
¶ 58 In Lowenfield v. Phelps, the United States
Supreme Court addressed whether an impasse instruction given to a
capital sentencing jury coerced the death sentence in that case. 484
U.S. 231, 233, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988).8
The Supreme Court held that the instruction did not coerce the jury's
death verdict. Id. at 241, 108 S.Ct. 546. The Court quoted with
approval another capital case in which it had opined that jurors must
try to reach a verdict:
The very object of the jury system is to secure
unanimity by a comparison of views, and by arguments among the jurors
themselves. It certainly cannot be the law that each juror should
not listen with deference to the arguments and with a distrust of his
own judgment, if he finds a large majority of the jury taking a
different view of the case from what he does himself. It cannot be
that each juror should go to the jury room with a blind determination
that the verdict shall represent his opinion of the case at that
moment; or, that he should close his ears to the arguments of men who
are equally honest and intelligent as himself.
Id. at 237, 108 S.Ct. 546 (quoting Allen v. United
States, 164 U.S. 492, 501-02, 17 S.Ct. 154, 41 L.Ed. 528 (1896)).
The Court emphasized that “[t]he continuing validity of this Court's
observations in Allen are beyond dispute.” Id.
¶ 59 Lowenfield thus makes clear that jurors in
capital cases have a duty to deliberate in sentencing proceedings.
Arizona's death penalty sentencing scheme does not alter this duty.
While jurors individually determine whether a mitigating circumstance
exists, A.R.S. § 13-703(C), the jury must still be unanimous in its
decision to impose a death sentence or a life sentence, id.
§ 13-703.01(H). Therefore, the jurors may be instructed that they
have a duty to deliberate in the penalty phase of a capital case.
¶ 60 In sum, because the impasse instruction
correctly stated the law and was given after an affirmative indication
from the jury that it was deadlocked, it cannot be said that the
verdict was coerced.
D. Constitutionality of Lethal Injection Statute
¶ 61 Arizona Revised Statutes § 13-704(A) (2001)
provides that “[t]he penalty of death shall be inflicted by an
intravenous injection of a substance or substances in a lethal
quantity sufficient to cause death, under the supervision of the state
department of corrections.” Andriano contends that this statute is
unconstitutionally vague because it does not prescribe the type or
dosage of drugs that must be administered, the order in which they
must be administered, or the qualifications of the personnel who
administer them, thereby failing to ensure that death by lethal
injection is not cruel and unusual. She argues that to comport with
the Eighth Amendment, “[t]he statute must [also] address the inherent
difficulties with individual issues ․ such as vein accessibility and
¶ 62 Section 13-704(A) constitutionally prescribes
that the method of death shall be lethal injection. See State v.
Hinchey, 181 Ariz. 307, 315, 890 P.2d 602, 610 (1995) (considering and
rejecting argument that death by lethal injection constitutes cruel
and unusual punishment). Hinchey's pronouncement that lethal
injection as a method of execution comports with the Eighth Amendment
was not conditioned upon the use of particular procedures in
implementing lethal injection. Moreover, the United States Supreme
Court has never held that death by lethal injection is cruel and
unusual absent specific procedures for implementation, nor does
Andriano cite any cases to that effect. Andriano has thus failed to
establish an Eighth Amendment right to a particular protocol for
E. Independent Review
¶ 63 Because Andriano's offense occurred before
August 1, 2002, we independently review the aggravating and mitigating
circumstances and the propriety of the death sentence. A.R.S.
§ 13-703.04(A) (Supp.2006); see 2002 Ariz. Sess. Laws, 5th Spec.
Sess., ch. 1, § 7. In conducting our independent review, we
“consider the quality and the strength, not simply the number, of
aggravating and mitigating factors.” State v. Roque, 213 Ariz. 193,
230, ¶ 166, 141 P.3d 368, 405 (2006) (quoting State v. Greene, 192
Ariz. 431, 443, ¶ 60, 967 P.2d 106, 118 (1998)).
¶ 64 The jury found one aggravating factor-that
Andriano committed the murder in an especially cruel manner. A.R.S.
§ 13-703(F)(6). Andriano argues that we should find the evidence
insufficient to support the “especially cruel” finding by the jury
because (1) Joe experienced only “distress,” but not “extreme”
physical pain or mental anguish after ingesting the sodium azide; (2)
the defensive wounds were “minor and ․ not indicative of a great or
prolonged struggle,” showing that Joe was rendered unconscious “very
quickly” after the bar stool attack began; and (3) Joe's distress was
not reasonably foreseeable. We review the jury's finding de novo.
Anderson II, 210 Ariz. at 354, ¶ 119, 111 P.3d at 396 (citing A.R.S.
§ 13-703.04 (independent review)).
¶ 65 The cruelty prong of the (F)(6) aggravating
circumstance may be proved by showing that the defendant knew or
should have known that the manner in which the crime was committed
would cause the victim to consciously experience either physical pain
or mental anguish before death. Trostle, 191 Ariz. at 18, 951 P.2d at
883. The evidence showed that Andriano poisoned Joe with sodium
azide and left him to suffer for what felt to Joe like a “long time.”
During that period, Joe vomited at least twice, was too weak to sit
or stand, and was having difficulty breathing. After pretending to
call 911, Andriano stood by for approximately forty-five minutes as
Joe suffered from the effects of sodium azide poisoning. Andriano's
Internet research on sodium azide and the warnings accompanying the
shipped chemical demonstrate that she knew or should have known that
poisoning her husband with sodium azide would cause him physical pain
and mental anguish. Joe, who was conscious during this time, as
evidenced by his interaction with Chris, undoubtedly “experienced
significant uncertainty as to [his] ultimate fate.” See Ellison, 213
Ariz. at 142, ¶ 120, 140 P.3d at 925 (quoting State v. Van Adams, 194
Ariz. 408, 421, ¶ 44, 984 P.2d 16, 29 (1999)) (mental anguish, and
hence cruelty, established upon this showing).
¶ 66 Moreover, Andriano struck her terminally ill
husband at least twenty-three times in the back of the head with a bar
stool. Defensive wounds on Joe's hands and wrists indicate that he
was conscious for at least some of the attack and thus knew his wife
was attacking him as he lay on the floor, unable to defend himself.
Andriano also knew or should have known that beating her husband with
a bar stool would cause him physical pain and mental anguish.10
¶ 67 Andriano asks us to require that the physical
or mental pain experienced by the victim be “extreme.” There is no
such requirement for a cruelty finding. See Trostle, 191 Ariz. at
18, 951 P.2d at 883. Nonetheless, the physical pain and mental
anguish Joe experienced likely were “extreme” by any standards.
¶ 68 Although Andriano argued at trial that she was
assisting Joe in a suicide by poisoning, she argues on appeal that
because Joe did not know he was being poisoned, mental anguish cannot
be proved. While a victim's knowledge of the source of physical pain
may be relevant to whether the victim experienced mental anguish, it
is not a requisite for a finding of mental anguish. And on the facts
of this case, mental anguish is established even if Joe did not know
he had been poisoned. Moreover, cruelty can be established upon a
showing of either mental anguish or physical pain. Id. We thus
conclude that cruelty was established based on either-or both-mental
anguish or physical pain.
2. Mitigation 11
¶ 69 Andriano presented several mitigating
circumstances for the jury's consideration, including the stress of
Joe's cancer, her good grades in school, missionary and community
work, and strong religious convictions. In addition, she presented
evidence that she was a sexual abuse and domestic violence victim, a
good mother to two children, married for six years, and a good inmate.
¶ 70 Although Andriano presented some evidence that
she was a domestic violence victim, we assign little weight to this
mitigating circumstance, in part because it is not related to the
murder. See Roque, 213 Ariz. at 231, ¶ 169, 141 P.3d at 406 (“[T]he
relationship between mitigating evidence and the murder may affect the
weight given to the mitigating evidence.”) (citation omitted); State
v. Newell, 212 Ariz. 389, 405, ¶ 82, 132 P.3d 833, 849, cert. denied,
549 U.S. 1056, 127 S.Ct. 663, 166 L.Ed.2d 521 (2006). The evidence
established that Andriano did not kill Joe while defending against a
domestic violence attack. Instead, she poisoned her terminally ill
husband, struck him in the back of the head twenty-three times, and
slit his throat. Joe posed no threat to Andriano at the time of the
attack because he was so weak from the poison and chemotherapy that he
could not get up.
¶ 71 Andriano was under substantial stress from
having to deal with Joe's terminal cancer. The record does not
indicate, however, that at the time of the offense, the stress was any
greater than it had been two years earlier when she and Joe first
learned he was terminally ill, and she was pregnant with their second
child. Moreover, this is not a case in which Andriano suddenly
“cracked” under extreme stress. Andriano methodically premeditated
Joe's murder, showing that her stress bore little relation to Joe's
death. This mitigating circumstance thus does not warrant
¶ 72 Andriano also offered evidence that she “may
have been” sexually abused by her biological father when she was
around the age of two, although she does not recall it, and that a
member of the traveling ministry to which her family belonged exposed
himself to Andriano when she was between six and eight years old.
Andriano also showed that she maintained good grades in school and
participated in missionary and community work. We do not weigh these
mitigating circumstances heavily because the events are remote in time
to the offense and thus their relevance is minimal. Cf. Ellison, 213
Ariz. at 144, ¶ 136, 140 P.3d at 927 (finding defendant's “childhood
troubles deserve little value as a mitigator for the murders he
committed at age thirty-three”).
¶ 73 The record contains conflicting evidence on
whether Andriano was a good mother. In any event, we afford this
mitigating circumstance minimal value in light of the fact that
Andriano murdered her children's father while the children were
present in the apartment. Moreover, neither the fact of Andriano's
marriage nor its six-year duration is mitigating considering that she
would have remained married and the marriage would have lasted longer
had she not killed her husband.
¶ 74 Andriano was a good inmate in jail and helpful
to staff and inmates from September 2003 until the penalty phase of
her trial in December 2004. Because inmates are expected to behave,
however, we assign this mitigating circumstance little weight. State
v. Harrod, 200 Ariz. 309, 319, ¶ 53, 26 P.3d 492, 502 (2001), vacated
on other grounds, 536 U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 830
¶ 75 Although Andriano had what might be considered
a strict religious upbringing, many of her actions, such as killing
her husband and having extramarital affairs, appear inconsistent with
holding strong religious convictions. We thus assign this evidence
¶ 76 Andriano also alleged as mitigating
circumstances cooperation with law enforcement authorities, remorse,
and age. The evidence presented, however, contradicts Andriano's
assertion that she cooperated in the investigation of Joe's murder.12
Moreover, because Andriano continues to deny responsibility for her
conduct, we reject her contention that she is remorseful. See State
v. Gulbrandson, 184 Ariz. 46, 70-71, 906 P.2d 579, 603-04 (1995)
(noting that defendant continued to deny responsibility in finding
that he had not proven remorse as a mitigating circumstance). We
likewise do not find her age-thirty at the time of the offense-to be
mitigating, particularly in light of her above-average I.Q.
¶ 77 We likewise give minimal weight to the
remaining mitigating circumstances urged: lack of prior convictions,
good candidate for rehabilitation, no future threat to the community,
and impact on family and friends.
3. Propriety of the death sentence
¶ 78 The quality and strength of Andriano's
mitigation evidence is not sufficiently substantial to call for
leniency in light of the especially cruel manner in which Andriano
murdered her husband. We therefore affirm Andriano's sentence of
¶ 79 For the foregoing reasons, we affirm
Andriano's conviction and death sentence.
Claims Raised to Avoid Preclusion
Andriano raises the following thirteen challenges
to the constitutionality of Arizona's death penalty scheme to avoid
1. The death penalty is cruel and unusual
punishment under any circumstances. This argument was rejected by
the United States Supreme Court in Gregg v. Georgia, 428 U.S. 153,
187, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and by this Court in
Harrod, 200 Ariz. at 320, ¶ 59, 26 P.3d at 503.
2. The death penalty is imposed arbitrarily and
irrationally in Arizona. We rejected this argument in State v.
Beaty, 158 Ariz. 232, 247, 762 P.2d 519, 534 (1988).
3. Application of the death penalty on the facts of
this case would constitute cruel and unusual punishment. No argument
or authority is presented to support this claim.
4. The prosecutor's discretion to seek the death
penalty is not channeled by standards. We rejected this argument in
State v. Sansing, 200 Ariz. 347, 361, ¶ 46, 26 P.3d 1118, 1132 (2001),
vacated on other grounds, 536 U.S. 954, 122 S.Ct. 2654, 153 L.Ed.2d
5. The aggravating factors set forth in A.R.S.
§ 13-703(F) are elements of capital murder and must be alleged in an
indictment and screened for probable cause. We rejected this
argument in McKaney v. Foreman ex rel. County of Maricopa, 209 Ariz.
268, 270, ¶ 9, 100 P.3d 18, 20 (2004).
6. Application of the death penalty statutes
promulgated after Ring II, 536 U.S. at 584, 122 S.Ct. 2428, violates
the prohibition against ex post facto laws. The changes altered the
rules of evidence to permit different testimony than that permitted at
the time of Andriano's offense. We rejected this argument in State
v. Ring (Ring III ), 204 Ariz. 534, 547, ¶ 24, 65 P.3d 915, 928
7. The absence of proportionality review of death
sentences by Arizona courts denies capital defendants due process of
law and equal protection and amounts to cruel and unusual punishment.
We rejected this argument in Gulbrandson, 184 Ariz. at 73, 906 P.2d
8. Arizona's capital sentencing scheme is
unconstitutional because it does not require that the State prove that
the death penalty is appropriate. We rejected this argument in
Gulbrandson, 184 Ariz. at 72, 906 P.2d at 605.
9. Arizona Revised Statutes § 13-703 provides no
objective standards to guide the sentencer in weighing the aggravating
and mitigating circumstances. We rejected this argument in State v.
Pandeli, 200 Ariz. 365, 382, ¶ 90, 26 P.3d 1136, 1153 (2001), vacated
on other grounds, 536 U.S. 953, 122 S.Ct. 2654, 153 L.Ed.2d 830
10. Arizona's death penalty scheme is
unconstitutional because it does not require the sentencer to find
beyond a reasonable doubt that the aggravating circumstances outweigh
the accumulated mitigating circumstances. We rejected this argument
in State v. Poyson, 198 Ariz. 70, 83, ¶ 59, 7 P.3d 79, 92 (2000).
11. Arizona Revised Statutes § 13-703 does not
sufficiently channel the sentencer's discretion. Aggravating
circumstances should narrow the class of persons eligible for the
death penalty and reasonably justify the imposition of a harsher
penalty. The broad scope of Arizona's aggravating factors
encompasses nearly anyone involved in a murder We rejected this
argument in Pandeli, 200 Ariz. at 382, ¶ 90, 26 P.3d at 1153.
12. Execution by lethal injection is cruel and
unusual punishment. We rejected this argument in Hinchey, 181 Ariz. at
315, 890 P.2d at 610.
13. Arizona's death penalty scheme
unconstitutionally requires imposition of the death penalty whenever
at least one aggravating circumstance exists and there is no
mitigation sufficiently substantial to call for leniency. We
rejected this argument in State v. Miles, 186 Ariz. 10, 19, 918 P.2d
1028, 1037 (1996).
1. We view
the facts in the light most favorable to sustaining the verdict.
State v. Tucker, 205 Ariz. 157, 160 n. 1, 68 P.3d 110, 113 n. 1
thirteen claims listed to avoid preclusion are appended to this
does not allege prosecutorial misconduct.
jury found only the cruelty prong of the (F)(6) aggravating factor.
It did not find the murder heinous or depraved. A finding of any of
the three prongs is sufficient to support the (F)(6) aggravating
circumstance. Cromwell, 211 Ariz. at 189, ¶ 43, 119 P.3d at 456.
brief also seems to claim that the evidence was insufficient to
support the jury's finding that the murder was “especially cruel.”
Because we would review sufficiency of the evidence to “determine
whether substantial evidence supports the jury's finding, viewing the
facts in the light most favorable to sustaining the jury['s] verdict,”
State v. Roque, 213 Ariz. 193, 218, ¶ 93, 141 P.3d 368, 393 (2006),
and affirm the jury's finding if the evidence is such that “reasonable
persons could accept [it] as adequate and sufficient to support a
conclusion of defendant's guilt beyond a reasonable doubt,” id.
(quoting State v. Roseberry, 210 Ariz. 360, 369, ¶ 45, 111 P.3d 402,
411 (2005)), the issue is subsumed in our independent review. See
infra ¶¶ 64-68.
being given the instruction to which Andriano objects, the jurors had
been instructed as follows:Although a final decision on a penalty of
death or life imprisonment must be unanimous, the determination of
what circumstances are mitigati[ng] is for each one of you to resolve,
individually, based upon all the evidence that has been presented to
you during this phase and at any of the prior phases of the
trial.(Emphasis added.) The jurors were also given the following
instruction:You must make your decision about whether mitigation is
sufficiently substantial to call for leniency based solely upon your
weighing of any mitigation proven to you and the aggravating factor
you have already found during the Aggravation Phase. To do this, you
must individually determine the nature and extent of mitigating
circumstances. Then, in light of the aggravating circumstance that
has been proven to exist, you must individually determine if the
totality of the mitigating circumstances is sufficiently substantial
to call for leniency and a life sentence.(Emphasis added.)Moreover, at
the outset of the penalty phase, the jury was preliminarily advised
that “[t]he jurors do not have to agree unanimously that a mitigating
circumstance has been proven to exist. Each juror may consider any
mitigating circumstance found by that juror in determining the
appropriate penalty.” The jury was further instructed at that time
to “individually decide whether there is mitigation and whether it is
sufficiently substantial to call for the imposition of a life sentence
rather than a sentence of death.”Defense counsel's closing argument in
the penalty phase also correctly advised the jurors regarding their
responsibilities. Defense counsel told the jury, “[t]o clarify once
again, individually determine the nature and extent of the mitigating
circumstances. Not as a group, individually. What is it to me, as
one juror. What is my moral position on that circumstance.”
instruction contains language very similar to that set forth in the
comment to the 1995 amendment to Arizona Rule of Criminal Procedure
Lowenfield, the trial court gave an instruction that said in part,When
you enter the jury room it is your duty to consult with one another to
consider each other's views and to discuss the evidence with the
objective of reaching a just verdict if you can do so without violence
to that individual judgment.Each of you must decide the case for
yourself but only after discussion and impartial consideration of the
case with your fellow jurors. You are not advocates for one side or
the other. Do not hesitate to reexamine your own views and to change
your opinion if you are convinced you are wrong but do not surrender
your honest belief as to the weight and effect of evidence solely
because of the opinion of your fellow jurors or for the mere purpose
of returning a verdict.484 U.S. at 235, 108 S.Ct. 546.
may raise in a petition filed pursuant to Arizona Rule of Criminal
Procedure 32 any objections to the protocol to be used.
evidence established that Joe was likely unconscious when his throat
was slashed. We therefore do not consider whether the stabbing
caused physical pain or mental anguish.
did not argue why the Court should find in its independent review that
the mitigating circumstances were “sufficiently substantial to call
for leniency.” A.R.S. § 13-703(E). Counsel in capital cases “should
take advantage of all appropriate opportunities to argue why death is
not suitable punishment for their particular client.” ABA Guidelines
for the Appointment and Performance of Defense Counsel in Death
Penalty Cases Guideline 10.11(L) (2003).
did not mention the sodium azide when she was questioned by police and
later asked her coworker to hide evidence. Evidence was also
presented that Andriano staged the scene of the murder to make it
appear as though she acted in self-defense.
BERCH, Vice Chief Justice.
CONCURRING: RUTH V. MCGREGOR, Chief Justice,
MICHAEL D. RYAN, ANDREW D. HURWITZ and W. SCOTT BALES, Justices.