Defendant, Barker, and John Meacham rented a three-bedroom house in Scottsdale, Arizona.  Defendant occupied one bedroom with his girlfriend, Diane Weber, and her infant daughter.  Barker occupied another bedroom with his then- girlfriend, Monique Rousseau.  For several weeks, Defendant and Barker had discussed "pulling off a robbery" of one of two possible victims known to Defendant.  On September 4, 1991, they decided to rob Mark Jones at his home.

That evening they drove in Barker's car to a Denny's Restaurant where they called a taxi.  The taxi dropped them off near Jones' home.  They walked to the house and knocked on the door.  When Jones answered, Defendant said his car had broken down and asked if he and Barker could come in to use the telephone. Defendant asked Jones, "Do you remember me?  I'm from R and D Automotive." Jones had been introduced to Defendant on a prior occasion when Defendant sought counseling about his new business enterprise.  Jones invited them in and showed them the telephone.  While Barker faked a telephone call, Defendant opened his briefcase and pulled out a gun.  The briefcase also contained gloves, plastic tie wraps, handcuffs, and a large veterinary syringe apparently filled with battery acid.  After Defendant and Barker put on gloves, Barker handcuffed Jones.  Defendant rummaged through the house, took Jones' car keys, and loaded Jones' Lincoln with a television, photocopy machine, cameras, jewelry, and other items.  Defendant removed Jones' wallet from his back pocket and took about $200 and credit cards.  They also took $1,000 from a desk drawer.

Before leaving, Defendant and Barker took Jones to the master bedroom at gunpoint, uncuffing him while he used the bathroom along the way.  They asked him whether he was expecting anyone soon, and Jones said no.  According to Barker, Defendant offered Jones "about two choices in the matter of how we could leave him.  One was ... [to] tie him up, ... the other was to introduce a drug into him to make him sleep instead of being tied up."  Jones chose to be put to sleep and was laid face down on the bed with his hands bound behind his back.  Contrary to his statement to Jones, Defendant apparently believed the injected substance would kill Jones.

At his request, Jones' shoes were removed to make him more comfortable.  Defendant made several attempts to inject the contents of the syringe into Jones' arm, pushing the needle all the way through a vein.  The drug having no effect, Jones pretended to sleep by **297 *175 snoring.  Determined to kill Jones, Defendant made a noose out of plastic tie wraps from his briefcase, slipped it over Jones' head, and pulled tightly on its end to strangle Jones. Jones did not struggle but made choking and gagging sounds.  Defendant then cut and removed the tie-wrap noose from Jones' neck.  Believing Jones was not yet dead, Defendant made another noose "like the first one ... popped [it] over the head, and pulled tight with a 'zip' sound," explained Barker.

The next morning, Meacham returned from work to discover in his bedroom items he had not seen before.  Defendant, Barker, and Diane were also in the house. Meanwhile, two employees of the golf club that Jones frequented had looked for Jones and found his body about mid-morning that day.

B. Defendant's version

Defendant testified and offered an alibi.  According to Defendant, on the night of the robbery he had driven Barker to Denny's in Barker's car.  He had a soda until Barker's taxi arrived, then drove to Zorba's, an adult book store, where he had arranged to meet Tina Collins.  While waiting, Defendant went inside to buy a book and returned to his car.  Tina arrived at Zorba's about fifteen minutes after Defendant.  They then drove and parked near Defendant's home, talking for about two hours in the car.  Defendant returned to Zorba's, dropped Tina off, and went to meet Barker at a Circle K near their house. Because Barker was not there as planned, Defendant went home.  Barker soon arrived home with a stolen car and stolen property.  Defendant claimed he helped Barker unload the goods and dispose of the stolen car.  To account for the stolen property police found in his possession, Defendant claimed he had bought the items from Barker.

FN2. Tina said she did not talk with Defendant again until February 9, when she visited him in prison.  According to Tina, she learned from her friend Judy that Defendant was in prison.  Judy had been visiting Defendant's cellmate, a man named Paul. While Judy visited Paul, she telephoned Tina and told her that Paul had a friend who wanted to meet her.  Tina had previously visited and befriended inmates she did not know. When Defendant got on the telephone, he and Tina recognized each other. Thereafter, Tina visited Defendant in prison regularly.

688 F.2d 496, 500-01 (7th Cir.1982) (citations omitted), cert. denied, 460 U.S. 1072, 103 S.Ct. 1529, 75 L.Ed.2d 950 (1983).

In Franzen, the defendant cross-examined his accomplice, who had agreed to testify for the state.  The defendant elicited testimony from the witness that he had told his own attorney "he was beaten [by the prosecutor] into making that statement [that inculpated defendant]" to show that the prosecutor had induced the accomplice to incriminate the defendant.  Id. at 499.  The state objected, and the trial court sustained the objection on grounds that the attorney-client privilege "overrides any relevancy it may have to the issues in [the] case."  Id. However, because there was already ample evidence in the record to impeach the accomplice's testimony, the circuit court upheld the trial court's ruling.  Id. at 501;  see also Neku v. United States, 620 A.2d 259, 263 (D.C.1993), cert. denied, 510 U.S. 1003, 114 S.Ct. 577, 126 L.Ed.2d 476 (1993).

As long as the jury heard evidence relevant to Barker's possible motives for testifying against Defendant, we assume it could then fairly assess Barker's truthfulness.  No doubt Barker's plea agreement was relevant to his bias and interest.  The jury apparently realized this and sent a note to the judge during deliberations asking what benefits Barker received in exchange for his testimony.  Reporter's Transcript (R.T.), Aug. 13, 1992, at 110.  The jury's note asked, "Does Randy Barker have anything to gain if Towery is convicted? Are we allowed to see the plea agreement?"  In response to the note, the judge told the jurors they had all the evidence and instructed them to rely on their personal recollections and collective notes.

FN7. During cross-examination, Barker was asked what number he dialed when he pretended to use the telephone in Jones' house.  Barker responded, "I dialed straight sixes."  The testimony continued: 

Q: Why did you dial those numbers?

A: Because of--I used to have an old belief in the occult.

Q: When did you do away this that belief?

Mr. Ditsworth [for the State]:  Relevance, Your Honor.

The Court: Sustained.

Mr. Hazel [for Defendant]: Pardon me, Your Honor, I didn't--

The Court:  Sustained.

Mr. Hazel: Your Honor, can we approach on that point?

The Court: Later.

Mr. Hazel: But, in fact, you had an alter [sic] in your--a Satanic alter in your room; is that correct?

Mr. Ditsworth: Same objection.

The Court: Sustained.

R.T., Aug. 5, 1992, at 112-13.

FN8. Ariz. R. Evid. 610 provides:

Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature his credibility is impaired or enhanced.

(Emphasis added.)

Art. 2, § 12 of the Arizona Constitution states:

No ... person [shall] be incompetent as a witness or juror in consequence of his opinion on matters of religion, nor be questioned touching his religious belief in any court of justice to affect the weight of his testimony.

(Emphasis added.)

[6][7] A witness' religious beliefs are admissible if offered for some legitimate purpose other than attacking witness credibility.  See State v. West, 168 Ariz. 292, 296, 812 P.2d 1110, 1114 (1991) (reference to religion is proper when used to justify defendant's conduct);  State v. Stone, 151 Ariz. 455, 458, 728 P.2d 674, 677 (App.1986) (if evidence of religious belief "is probative of something other than veracity, it is not inadmissible simply because it may also involve a religious subject as well.").  Defendant argues that the evidence was relevant to an issue other than Barker's veracity.  Had he been allowed to develop testimony about Barker's satanic beliefs, the jury might have been persuaded to believe that Barker, not Defendant, was the killer.  In addition, although the jury nevertheless could have found Defendant's involvement sufficient to convict him for felony murder, his death eligibility was not a foregone conclusion.  Although the judge found beyond a reasonable doubt that Defendant was the killer, evidence that Barker was profoundly touched by some satanic belief might have altered that finding.

[8][9] Defendant, however, made no offer of proof of what Barker's testimony would have shown.  Nor does the context of the question indicate the nature of Barker's satanic belief or show it was substantively **301 *179 relevant.  When an objection to the introduction of evidence has been sustained, an offer of proof showing the evidence's relevance and admissibility is ordinarily required to assert error on appeal.  State v. Bay, 150 Ariz. 112, 115, 722 P.2d 280, 283 (1986);  MORRIS K. UDALL ET AL., ARIZONA PRACTICE:  LAW OF EVIDENCE § 13, at 20 (2d ed.1982).  Given that counsel normally does not know in advance what a hostile witness will say on cross-examination, the offer-of-proof requirement for considering a claim on appeal may be relaxed when the court sustains an objection to a question asked on cross-examination.  JOHN W. STRONG, ET AL., 1 MCCORMICK ON EVIDENCE § 51, at 197 (4th ed.1992).  Even so, something more than speculation about possible answers is required to show prejudice.  At a minimum, an offer of proof stating with reasonable specificity what the evidence would have shown is required. See id. at 197-98.  In Arizona, it has been suggested that counsel be required to discover evidence that would make the proffered testimony relevant and make it known to the court.  State v. Quinn, 121 Ariz. 582, 585, 592 P.2d 778, 781 (App.1978).

[10][11][12] We recognize, however, that discovery in criminal cases is much more limited than in civil cases.  Victims of crimes, for example, can refuse interview requests by defense counsel under the Victims' Bill of Rights. Ariz. Const. art. 2, § 2.1;  Ariz. R.Crim. P. 39(b)(11).  Nonetheless, when the context of the examination fails to reveal the nature of the expected answer, the proponent of the precluded evidence must seek permission from the trial judge to make the offer of proof so that the reviewing court can determine whether the trial judge erred in precluding the evidence.  STRONG, ET AL., supra § 51, at 197 n. 10;  see also State v. Affeld, 307 Or. 125, 764 P.2d 220, 222 (1988).  It is remotely conceivable that Barker might have revealed he was driven by a satanic force or some other evil belief to commit criminal acts.  The only hint of a satanic motive for Barker's participation in the crime, however, was his dialing sixes on the telephone.  That alone has little probative value in establishing a motive to kill.  Assuming Barker had a satanic altar in his room, Defendant failed to discover how often Barker used it and how its use was related to his criminal conduct.  In fact, Barker's claim that he used to believe in the occult indicates that the alleged altar no longer had any religious significance to him.  Defendant's failure to establish the connection between Barker's old belief in the occult and the crime by an offer of proof in the record makes it impossible to evaluate whether the trial judge unfairly limited Defendant's cross-examination of Barker.  On this record, we see no probative value in the precluded evidence apart from its effect on Barker's credibility.  Thus we find no error in the judge's precluding it.

B. Defendant's right to a free transcript of a previous, unrelated trial

[13][14][15][16] The United States Supreme Court has held that requiring an indigent **302 *180 defendant to demonstrate a particularized need for a free transcript of a prior mistrial or preliminary hearing can violate equal protection.  Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433- 34, 30 L.Ed.2d 400 (1971);  Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967);  Griffin v. Illinois, 351 U.S. 12, 17, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956) ("In criminal trials, a State can no more discriminate on account of poverty then on account of religion, race, or color.").  Only financial need, not particularized need, must be shown. Britt held that two factors are relevant in determining if a trial court has erred by refusing an indigent defendant a free trial transcript:  (1) the value of the transcript to the defendant for an effective defense at trial or on appeal, and (2) "the availability of alternative devices that would fulfil the same functions as the transcript."  Britt, 404 U.S. at 227, 92 S.Ct. at 434. [FN10]  The transcript from a prior mistrial has been recognized as a valuable resource for impeaching witnesses, guiding discovery, and developing trial strategy.  Id. at 232, 92 S.Ct. at 436 (Douglas, J., dissenting). Thus, when a transcript from a mistrial is requested for use at the retrial, the value of the transcript is generally presumed without a showing of specific need.  United States v. Rosales-Lopez, 617 F.2d 1349, 1355-56 (9th Cir.1980), aff'd, 451 U.S. 182, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981).  A preliminary hearing transcript may also be presumed to have value in connection with a pending trial.  See id.

FN10. In Britt the Court upheld the trial court's decision not to provide a transcript to the defendant.  The same judge presided, and the same counsel appeared.  Because the same court reporter, who knew the attorneys and the judge, was present and could have readily provided defense counsel with transcriptions from the prior mistrial if informally asked, the Court found that the defendant had adequate alternative devices available.  See State v. Tomlinson, 121 Ariz. 313, 589 P.2d 1345 (App.1978) (reviewing state and federal cases on whether the defendant had an adequate alternative device for a trial transcript)

Although the robbery victim did not testify at the homicide trial, three other witnesses testified at both trials.  At the murder trial, one of these witnesses, Defendant's roommate John Meacham, testified that he overheard Defendant make an inculpatory statement.  The same prosecutor had elicited similar testimony from Meacham at the robbery trial.  Defendant argues that the statements attributed to him by Meacham refer to the same incident but were introduced at two separate trials to prove two separate crimes.  Because Defendant had different lawyers at each trial, his trial lawyer in the present case may not have known about Meacham's previous testimony without reading the transcript.

[19] Defendant is correct that the transcript of Meacham's robbery trial testimony might have alerted defense counsel that the State was making inconsistent use of Meacham's testimony.  Thus the transcript might have helped impeach Meacham at the murder trial. [FN11]  His testimony at both trials was offered to prove Defendant's culpability in unrelated crimes.  But neither Defendant nor the trial judge could have reasonably anticipated that the prosecutor would make inconsistent use of the same testimony.  Because the prosecutor did not inform the court of his intent to elicit the same testimony from an unrelated trial, the court had no way of knowing that the requested transcript might help the defense.  If the transcript would have been valuable to Defendant, any prejudice caused by the denial of a free copy was attributable not to the trial judge, who ruled correctly on the record before her, but to the prosecutor.  Thus, we find no equal protection violation.

FN11. We note that the transcript would have been of no value to Defendant insofar as it pertained to the testimony of two of the common witnesses. These witnesses were police officers who had been involved in the robbery and murder investigations.  They testified at this trial only about items seized in the murder investigation.  The robbery trial transcripts of these two witnesses would have been useless to the defense for discovery or impeachment purposes.

[21][22][23] Judicial estoppel prevents a party from taking an inconsistent position in successive or separate actions.  This court has long recognized that

[a]s a general rule, a party who has assumed a particular position in a judicial proceeding is estopped to assume an inconsistent position in a subsequent proceeding involving the same parties and questions.

Martin v. Wood, 71 Ariz. 457, 459, 229 P.2d 710, 711-12 (1951) (citing 31 C.J.S. ESTOPPEL § 119, at 381).  Judicial estoppel is not intended to protect individual litigants but is invoked to protect the integrity of the judicial process by preventing a litigant from using the courts to gain an unfair advantage.  See 31 C.J.S. ESTOPPEL § 121, at 260;  see also Yanez v. United States, 989 F.2d 323, 326 (9th Cir.1993);  Yniguez v. Arizona, 939 F.2d 727, 739 (9th Cir.1991);  Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990), cert. denied, 501 U.S. 1260, 111 S.Ct. 2915, 115 L.Ed.2d 1078 (1991);  In re Cassidy, 892 F.2d at 641.  Although judicial estoppel is usually invoked in civil cases, [FN12] courts have also applied it in criminal cases.  See, e.g., State v. Washington, 142 Wis.2d 630, 419 N.W.2d 275, 277 (App.1987).

FN12. See, e.g., State v. Ellison, 26 Ariz.App. 547, 549, 550 P.2d 101, 103 (1976).

[24] The doctrine's application to criminal cases usually involves a defendant who asserts one position at trial and another on appeal.  See Harrison v. Labor & Indus. Review Comm'n, 187 Wis.2d 491, 523 N.W.2d 138, 140 (App.1994).  Nonetheless, criminal courts have indicated that judicial estoppel would preclude the state from changing its version of the facts in separate proceedings involving the same matter to protect the defendant's right to due process.  See People v. Gayfield, 261 Ill.App.3d 379, 199 Ill.Dec. 123, 128-29, 633 N.E.2d 919, 924-25 (1994) (suggesting that the state would be estopped from inconsistently claiming in separate proceedings that different defendants shot the same victim);  Russell v. Rolfs, 893 F.2d at 1037-39 (state prohibited from arguing that criminal defendant's appellate petition is procedurally barred in state court after successfully arguing in district court that defendant had an adequate state remedy).

We believe the doctrine of judicial estoppel is no less applicable in a criminal than in a civil trial.  Any other rule would permit absurd results. For example, if the state had evidence that a defendant admitted robbing the convenience store, absent judicial estoppel the state could use that evidence to convict the defendant of every convenience store robbery in the city, affirming the evidence as relevant in each case, all the while knowing that the defendant made only one admission of a single act.

[25][26] Three requirements must exist before the court can apply judicial estoppel:  (1) the parties must be the same, (2) the question involved must be the same, and (3) the party asserting the inconsistent position must have been successful in the prior judicial proceeding.  See Standage Ventures, Inc. v. State, 114 Ariz. 480, 562 P.2d 360 (1977).  In the present case the parties are the same.  Because Defendant's admission could only pertain to one of the crimes, the question involved in both proceedings is also the same:  did Defendant admit committing **305 *183 the charged crime in Meacham's presence?  However, even though the parties and the questions are the same, a majority of courts, including Arizona, refuse to invoke judicial estoppel unless the position first asserted was successfully maintained. [FN13] Taylor v. State Farm Mutual Auto. Ins. Co., 182 Ariz. 39, 44, 893 P.2d 39, 44 (App.1995),vacated in part, 185 Ariz. 174, 913 P.2d 1092 (1996).

FN13. The minority view allows judicial estoppel "even if the litigant was unsuccessful in asserting the inconsistent position, if by his change of position he is playing 'fast and loose' with the court."  Keenan v. Allan, 889 F.Supp. 1320, 1360 (E.D.Wash.1995), quoting Morris v. California, 966 F.2d 448, 452-53 (9th Cir.1991), cert. denied, 506 U.S. 831, 113 S.Ct. 96, 121 L.Ed.2d 57 (1992).

[29][30] The guilty verdict on the armed robbery charge establishes that the jury accepted the State's position that Defendant committed that crime.  The robbery verdict does not, however, establish that Defendant's admission to committing the armed robbery was a key element of the guilty verdict.  Indeed, it is entirely possible that the jury in that case gave little or no consideration to Meacham's testimony, especially if his testimony constituted only an insignificant fraction of the total evidence offered to establish Defendant's guilt.  See Boyers, supra, NW. U.L. REV. at 1257.  For this reason, judicial estoppel is generally not applied when the first inconsistent position was not a significant factor in the initial proceeding.  Id. at 1263.

Rather, the court, keeping in mind the 'unnecessary hardship' that may result from invoking judicial estoppel when the position was unimportant in the initial proceeding, determines whether the importance of the issue in the particular case justifies invocation of the doctrine.

Thus, to determine if the prior success requirement for invocation of judicial estoppel was met in the armed robbery trial, this court must examine the record of that trial to determine whether Meacham's testimony was arguably significant to the jury's determination of Defendant's guilt.  Id. In other words, can we conclude that the judicial relief obtained by the State in the armed robbery conviction was arguably due to Meacham's testimony?  See Standage, 114 Ariz. at 484, 562 P.2d at 364. [FN14)

FN14. Although Defendant supplemented his brief with the portion of the transcript of the armed robbery trial containing Meacham's examination, he did not provide this court with the entire transcript.  We later ordered that the record of Defendant's prior armed robbery trial be produced in its entirety and included as part of this record.

[32] At oral argument before this court, the State conceded that the prosecutor elicited testimony of an admission about a single incident to help establish Defendant's guilt of two unrelated crimes.  The prosecutor justified his actions by telling this court that he had been mistaken about presenting Defendant's admission at the robbery trial.  As the murder investigation developed, the prosecutor became less convinced that Defendant's admission related to the armed robbery and more convinced that Defendant had been describing events of the murder.  The State supported its use of Defendant's admission at the murder trial because it was made after the murder, better fit the facts of the murder, [FN15] and was therefore relevant evidence in the murder trial.  The State submits it was for the jury to decide what weight to give Meacham's testimony.  Further, the State argues that Defendant was free to ask Meacham questions that would have explained the alleged admission, thereby attributing the admission to the robbery rather than to the murder.

FN15. The prosecutor explained at oral argument that the oldest victim of the previous crime was 55 years old.  Jones was 68 years old when he was murdered.  Defendant's reference to an "old man" convinced the prosecutor that Defendant had been discussing Jones rather than the robbery victim when Meacham overheard him.

Had defense counsel in the present case been aware of the prior inconsistent use of Meacham's testimony, however, he could have impeached Meacham with his prior testimony to raise doubts about whether the admission related to the murder.  But after the prosecutor brought out Meacham's testimony in the murder trial, Defendant elicited the following from Meacham on cross-examination:

A. No, sir, I didn't.

R.T., Aug. 11, 1992, at 40. On re-direct, the prosecutor tried to rehabilitate the witness by showing that for all Meacham knew, Defendant might have been discussing events of the murder, but he got no more than the following:

[42][43] Before sanctioning the offering party, the court should consider (1) the importance of the evidence to the prosecutor's case, (2) surprise or prejudice to the defendant, (3) prosecutorial bad faith, and (4) other relevant circumstances.  Smith, 140 Ariz. at 358-59, 681 P.2d at 1377- 78. [FN16]  Before admitting the evidence, the trial judge heard arguments from both sides and found no prejudice to Defendant from the late disclosure.  After examining the four Smith factors, we agree with the trial judge's conclusion.

FN16. These factors were enumerated in a case in which the defendant discovered an exculpatory witness during trial and moved to permit him to testify.  Later cases have drawn on Smith when undisclosed witnesses have been called to testify.  This case is somewhat different because the State's experts and the nature of their involvement were known to Defendant's counsel well before trial.  Nonetheless, we find the Smith factors helpful to our analysis here.

[49][50] We have held that:

A murder is committed in an especially cruel manner if the perpetrator inflicts mental anguish or physical pain upon the victim before the victim's death.  Mental anguish includes a victim's uncertainty about [his] ultimate fate.

The trial judge considered evidence of Defendant's abusive family background and did not find mitigating value in it.  Citing a line of Supreme Court cases [FN17] requiring courts to consider family history for independent mitigating weight, Defendant calls the judge's finding unconstitutional.  Although the judge rejected the evidence as a mitigating factor because he failed to establish a nexus between his family background and his crime, **311 *189 Defendant argues that the judge violated the law.

FN17. Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989);  Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).

[54][55] Defendant misconstrues the Supreme Court cases culminating in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). They hold only that "a sentencer may not be precluded from considering, and may not refuse to consider, any relevant mitigating evidence offered by the defendant as a basis for a sentence less than death."  Id. at 318, 109 S.Ct. at 2946.  Having considered family background during the penalty phase, the sentencer must give the evidence such weight that the sentence reflects a "reasoned moral response" to the evidence.  Id. at 319, 109 S.Ct. at 2947. The sentencer therefore must consider the defendant's upbringing if proffered but is not required to give it significant mitigating weight.  How much weight should be given proffered mitigating factors is a matter within the sound discretion of the sentencing judge.  State v. Atwood, 171 Ariz. 576, 648, 832 P.2d 593, 665 (1992).

[56] We have held that a difficult family background is not always entitled to great weight as a mitigating circumstance.  State v. Wallace, 160 Ariz. 424, 426-27, 773 P.2d 983, 985-86 (1989) ("A difficult family background is a relevant mitigating circumstance if a defendant can show that something in that background had an effect or impact on his behavior that was beyond the defendant's control."), cert. denied, 494 U.S. 1047, 110 S.Ct. 1513, 108 L.Ed.2d 649 (1990).  We have since reaffirmed that family background may be a substantial mitigating circumstance when it is shown to have some connection with the defendant's offense-related conduct.  White, 168 Ariz. at 512-13, 815 P.2d at 881-82.

[57] Defendant has failed to connect his family background to his criminal conduct.  Defendant's sisters testified at the sentencing hearing that he was a small child with dyslexia and a bed-wetting problem and that he was physically and mentally abused by his overweight and diabetic mother.  One sister related that his mother forced him to kneel in a box of rice when he complained that his leg hurt after falling from a wagon, and that she gagged him with a sock and bound his hands in the back of the car while on a family trip.  These events, however, occurred when Defendant was young, years before he robbed and murdered at the age of 27.  They do not prove a loss of impulse control or explain what caused him to kill.  The trial judge considered this background and gave it little or no mitigating value.  We do not disagree.

2. Other mitigating circumstances

[58] The trial judge considered all the statutory mitigating factors under § 13-703(G) and gave them no weight.  She found some mitigation in Defendant's drug use because it may have impaired his ability to conform his conduct to the requirements of the law.  She found Barker's disproportionate sentence in relation to Defendant's a mitigating circumstance and gave it significant weight.  Nonetheless, she concluded that the mitigating evidence was not sufficiently substantial to require leniency, even if any combination of only two aggravating factors is affirmed by this court.

We have examined the record for mitigating circumstances and find the rather sparse evidence insufficient to overcome the weight of the aggravating circumstances.  We therefore affirm the death sentence.

C. Summary issues

To preserve issues, Defendant also raised the following arguments, which we summarily reject.  See Atwood, 171 Ariz. at 645 n. 21, 832 P.2d at 662 n. 21.

1. The equal protection clause requires sentencing by a jury

This claim has no logical basis and has been rejected in State v. Landrigan, 176 Ariz. 1, 6, 859 P.2d 111, 116, cert. denied, 510 U.S. 927, 114 S.Ct. 334, 126 L.Ed.2d 279 (1993).

2. Arizona's death penalty statute insufficiently channels the sentencer's discretion

This claim has been rejected in West, 176 Ariz. at 454, 862 P.2d at 214, and State v. **312 *190 Greenway, 170 Ariz. 155, 164, 823 P.2d 22, 31 (1991).

3. The death penalty violates Defendant's Eighth Amendment right against cruel and unusual punishment

This claim has been rejected by the United States Supreme Court in Walton v. Arizona, 497 U.S. 639, 655-56, 110 S.Ct. 3047, 3058, 111 L.Ed.2d 511 (1990), and we reject it now.

CONCLUSION

As required by A.R.S. § 13-4035, we have searched the record for fundamental error and have found none. [FN18]  Of the issues raised by Defendant on appeal, none requires reversal.  We therefore affirm Defendant's first-degree murder conviction and the death sentence.

FN18. The convictions in this capital case were appealed, briefed, and argued before the effective date of the repeal of A.R.S. § 13-4035. See 1995 Laws, ch. 198, § 1.