Arizona Department of Corrections

INMATE: WOOD, JOSEPH #086279
Date of Birth: December 6, 1958
Executed: July 23, 2014
Defendant: Caucasian
Last Meal: 2 cookies

Wood and his 29-year-old ex-girlfriend, Debbie Dietz, had been involved in a turbulent relationship for 5 years, which had been marred by numerous breakups and several domestic violent incidents. Debbie was working at a local body shop owned by her family. On August 7, 1989, Wood walked into the shop and shot Gene Dietz, age 55, in the chest with a .38 caliber revolver, killing him. Gene Dietz's 70-year-old brother was present and tried to stop Wood, but Wood pushed him away and proceeded into another section of the body shop. Wood went up to Debbie, placed her in some type of hold, and shot her once in the abdomen and once in the chest, killing her. Wood then fled the building. Two police officers approached Wood and ordered him to drop his weapon. After Wood placed the weapon on the ground, he reached down and picked it up, and pointed it at the officers. The officers fired, striking Wood several times. Wood was transported to a local hospital where he underwent extensive surgery.

PROCEEDINGS:

Presiding Judge: Hon. G. Thomas Meehan
Prosecutor: Thomas Zawada
Defense Counsel: Lamar Couser
Start of Trial: February 19, 1991
Verdict: February 25, 1991
Sentencing: July 2, 1991
Aggravating Circumstances: Grave risk of death to others, Multiple homicides
Published Opinion: State v. Wood, 180 Ariz. 53, 881 P.2d 1158 (1994).

Inmate: WOOD JOSEPH R
DOB: 12/06/1958
Gender: Male
Height 67 in
Weight: 240 lbs
Hair Color:Brown
Eye Color: Brown
Ethnic Origin: Caucasian
Admission: 07/19/1991
Executed: 07/23/2014

Sentence County Court Cause# Offense Date Crime

DEATH PIMA 0028449 08/07/1989 MURDER 1ST DEGREE; DANGER
0150000 PIMA 0028449 08/07/1989 AGGRAVATED ASSAULT; DANGER
0150000 PIMA 0028449 08/07/1989 AGGRAVATED ASSAULT; DANGER
 

Reporter describes Arizona execution: 2 hours, 640 gasps

By Michael Kiefer - AZcentral.com

July 26, 2014

Lethal injection was invented in the United States in 1977. States at that time used an anesthetic called thiopental in combination with other drugs. But in 2010, a shortage of thiopental left states scrambling to obtain deadly drugs. Arizona Republic reporter Michael Kiefer, through use of public-records laws and wide-ranging reporting, documented that Arizona and other states had obtained supplies improperly until their source was cut off, then switched to the barbiturate pentobarbital. But pentobarbital manufacturers soon put in place sales controls to avoid its use for executions. Some halted because assisting in executions is prohibited by European law. And some just didn't want to be known as a company that sells drugs that kill people. By the end of 2013, pentobarbital also became unavailable for executions.

Since then, death-penalty states have been scrambling to come up with alternatives. Some have turned to compounding pharmacies to custom-make pentobarbital; others have turned to midazolam, a drug related to Valium. Executions carried out with midazolam in Florida, Ohio and Oklahoma suggested that the drug worked less quickly and less efficiently in putting people to death than thiopental or pentobarbital. When Arizona announced that it would use midazolam in combination with the narcotic hydromorphone to execute double-murderer Joseph Rudolph Wood, Wood's attorneys fought to the U.S. Supreme Court. The execution took place Wednesday. Kiefer was a news-media witness. What follows is his account of what he saw.

The first glimpse was from above, framed by two closed-circuit TVs. Joseph Rudolph Wood was strapped to a gurney in an orange jumpsuit as prison medical staff prepared to set intravenous lines in his arms. It was 1:30 in the afternoon at Housing Unit 9, the small, one-story, free-standing stucco building where executions are carried out at the Arizona Prison Complex-Florence. The viewing room is 15 feet by 12 feet, painted in calming tones of blue, with three rows of risers that climb from the big window that looks into the lethal-injection chamber in front to the bay windows of the gas chamber behind. Federal law requires that witnesses to executions see every phase, including the setting of IV lines. But in Arizona, it's done on camera.

Wood's eyes flitted back and forth, and his eyebrows arched as men in scrubs, their faces out of camera range, fussed with blood-pressure cuffs and trays of IV needles. The lines went in easily. They don't usually; Arizona is one of three states that will surgically cut a catheter into a condemned man's groin after failing to find veins in the arms or hands, a process used in nine of the past 14 executions. Then, the curtains opened.

According to Arizona Republic reporter Michael Kiefer, Wood was unconscious by 1:57 p.m.. At about 2:05, he started gasping. Wood turned his head and looked curiously at the 20 or so witnesses in the room. He found the family of his victims, the sisters and brother-in-law of Debra Dietz, the estranged girlfriend he killed, along with her father, Eugene, in Tucson in 1989. He grinned, seemed to laugh at them and jerked his head back to look at the ceiling. Next to me, Wood's chaplain, a priest in a collar, counted beads on a rosary. His lips moved silently in prayer. Three of Wood's attorneys sat behind him.

Wood pronounced his last words: There was no apology to the family, only a statement about how he had found Jesus, who he hoped would forgive them all. "Are those your last words?" the warden asked. "Yes, sir." It was 1:54. The drugs had already begun to flow through the IVs. The execution had begun.

This was the fifth execution I've witnessed. They don't look like much. The condemned person usually wears an expression of dumbfounded embarrassment and stares absurdly at the ceiling. Then, his eyes close slowly and he stops moving, except for a few chest-raising breaths that slow and then stop. The face slackens, the mouth gapes. It's usually over in 10 or 11 minutes. Wood's execution was no different — at first. Maybe he was smiling, but just slightly. He took a few gulps of air and closed his eyes. The priest stopped praying and watched

Four minutes into the procedure, the doctor appeared on the other side of the window. He checked Wood's eyes and pulse and then said over the microphone, "It is confirmed that he is sedated." There had been concern about the drugs used in this execution, a cocktail of the Valium-like midazolam and a narcotic called hydromorphone. Witnesses to an execution in Florida, where the drug was used last October, noted that it seemed to take longer than usual. An Ohio execution in January took more than 20 minutes and death-penalty attorneys claimed that was too long.

Wood's attorneys filed motions in state and federal courts expressing concerns over the drugs and the Arizona Department of Corrections' refusal to provide information about the specific batches of the drugs that it had obtained. The execution was stayed twice. The first stay was lifted Tuesday by the U.S. Supreme Court. A second stay was imposed Wednesday morning, which pushed the execution back from 10 a.m. to 1 p.m. The Arizona Supreme Court lifted it before noon Wednesday. At the start of Wood's execution, none of those concerns seemed warranted.

Then at 2:05, Wood's mouth opened. Three minutes later it opened again, and his chest moved as if he had burped. Then two minutes again, and again, the mouth open wider and wider. Then it didn't stop. He gulped like a fish on land. The movement was like a piston: The mouth opened, the chest rose, the stomach convulsed. And when the doctor came in to check on his consciousness and turned on the microphone to announce that Wood was still sedated, we could hear the sound he was making: a snoring, sucking, similar to when a swimming-pool filter starts taking in air, a louder noise than I can imitate, though I have tried. It was death by apnea. And it went on for an hour and a half. I made a pencil stroke on a pad of paper, each time his mouth opened, and ticked off more than 640, which was not all of them, because the doctor came in at least four times and blocked my view. I turned to my friend Troy Hayden, the anchor and reporter from Fox 10 News, who was sitting next to me. Troy and I witnessed another execution together in 2007, and he had seen one before that, so he also knows what it looks like. "I don't think he's going to die," I said. A moment later, Troy turned to me and whispered, "I think you're right."

The priest laid a crucifix at the end of the rosary on the bench and stared into the face of Jesus. I wondered if there were a Plan B, some other dose of drugs, something to speed up the death. Or someone to stop it. In fact, as Wood was drowning in air, two of his attorneys left the room. I later learned they had filed motions to try to get the execution stopped. Finally, Wood started to gasp less frequently. Once, twice, minutes apart; he stopped at 3:36. At 3:40 and 3:48, the doctor examined him and pronounced him "still sedated."

A minute later, Arizona Department of Corrections Director Charles Ryan appeared in the window next to Wood's gurney, like some kind of narrator. It was like a scene featuring the stage manager in Thornton Wilder's play, "Our Town." Or maybe like Rod Serling in "Twilight Zone." The execution had been completed, he said. The curtains closed. The witnesses filed out. One of Wood's lawyers said, "The experiment failed."
 

State v. Wood, 180 Ariz. 53, 881 P.2d 1158 (Ariz. 1994).(Direct Appeal)

Defendant was convicted of two counts of first-degree murder and two counts of aggravated assault and sentenced to death for each murder after jury trial in the Superior Court, Pima County, No. CR–28449, Thomas Meehan, J. Defendant appealed. The Supreme Court, Feldman, C.J., held that: (1) defendant's prior physical abuse of and threats against victim were relevant to show state of mind and were properly admitted; (2) hearsay statements about victim's fear and desire to end relationship with defendant were admissible to explain defendant's motive under exception to hearsay for then existing state of mind, emotion, or intent; (3) error in admitting neighbor's testimony that victim had told her that defendant had threatened her life was harmless; (4) evidence was sufficient to support aggravated assault conviction; and (5) aggravating circumstances outweighed mitigating circumstances requiring imposition of death penalty. Affirmed.

FELDMAN, Chief Justice.

A Pima County jury convicted Joseph Rudolph Wood, III (“Defendant”) of two counts of first degree murder and two counts of aggravated assault. The trial court sentenced him to death for each murder and to imprisonment for the assaults. Appeal to this court from the death sentences is automatic. Ariz.R.Crim.P. 26.15, 31.2(b). We have jurisdiction under Ariz. Const. art. VI, § 5(3), A.R.S. §§ 13–4031 and 13–4033(A), and Ariz.R.Crim.P. 31.

FACTS AND PROCEDURAL HISTORY

Defendant shot and killed his estranged girlfriend Debra Dietz (“Debra”) and her father Eugene Dietz (“Eugene”) on Monday, August 7, 1989, at a Tucson automotive paint and body shop (“the shop”) owned and operated by the Dietz family. Since 1984, Defendant and Debra had maintained a tumultuous relationship increasingly marred by Defendant's abusive and violent behavior. Eugene generally disapproved of this relationship but did not actively interfere. In fact, the Dietz family often included Defendant in dinners and other activities. Several times, however, Eugene refused to let Defendant visit Debra during business hours while she was working at the shop. Defendant disliked Eugene and told him he would “get him back” and that Eugene would “be sorry.” Debra had rented an apartment that she shared with Defendant. Because Defendant was seldom employed, Debra supported him financially. Defendant nevertheless assaulted Debra periodically.FN1 She finally tried to end the relationship after a fight during the 1989 July 4th weekend. She left her apartment and moved in with her parents, saying “I don't want any more of this.” After Debra left, Defendant ransacked and vandalized the apartment. She obtained an order of protection against Defendant on July 8, 1989. In the following weeks, however, Defendant repeatedly tried to contact Debra at the shop, her parents' home, and her apartment.FN2

FN1. Debra was often bruised and sometimes wore sunglasses to hide blackened eyes. A neighbor who often heard “thuds and banging” within Debra's apartment called police on June 30, 1989, after finding Debra outside and “hysterical.” The responding officer saw cuts and bruises on Debra. FN2. Defendant left ten messages on Debra's apartment answering machine on the night of Friday, August 4, 1989. Some contained threats of harm, such as: “Debbie, I'm sorry I have to do this. I hope someday somebody will understand when we're not around no more. I do love you babe. I'm going to take you with me.”

Debra and Eugene drove together to work at the shop early on Monday morning, August 7, 1989. Defendant phoned the shop three times that morning. Debra hung up on him once, and Eugene hung up on him twice. Defendant called again and asked another employee if Debra and Eugene were at the shop. The employee said that they had temporarily left but would return soon. Debra and Eugene came back at 8:30 a.m. and began working in different areas of the shop. Six other employees were also present that morning. At 8:50 a.m., a Tucson Police officer saw Defendant driving in a suspicious manner near the shop. The officer slowed her patrol car and made eye contact with Defendant as he left his truck and entered the shop. Eugene was on the telephone in an area where three other employees were working. Defendant waited for Eugene to hang up, drew a revolver, and approached to within four feet of him. The other employees shouted for Defendant to put the gun away. Without saying a word, Defendant fatally shot Eugene once in the chest and then smiled. When the police officer saw this from her patrol car she immediately called for more officers. Defendant left the shop, but quickly returned and again pointed his revolver at the now supine Eugene. Donald Dietz, an employee and Eugene's seventy-year-old brother, struggled with Defendant, who then ran to the area where Debra had been working.

Debra had apparently heard an employee shout that her father had been shot and was trying to telephone for help when Defendant grabbed her around the neck from behind and placed his revolver directly against her chest. Debra struggled and screamed, “No, Joe, don't!” Another employee heard Defendant say, “I told you I was going to do it, I have to kill you.” Defendant then called Debra a “bitch” and shot her twice in the chest. Several police officers were already on the scene when Defendant left the shop after shooting Debra. Two officers ordered him to put his hands up. Defendant complied and dropped his weapon, but then grabbed it and began raising it toward the officers. After again ordering Defendant to raise his hands, the officers shot Defendant several times.

A grand jury indicted Defendant on two counts of first degree murder and two counts of aggravated assault against the officers. Although he did not testify, Defendant did not dispute his role in the killings but argued he had acted impulsively and without premeditation. A jury found Defendant guilty on all counts. The trial court sentenced him to death for each of the murders and to concurrent fifteen-year prison terms for the aggravated assaults, to be served consecutively to the death sentences. This appeal followed.

DISCUSSION

A. Trial issues

Defendant makes many ineffective assistance of counsel claims. Such claims generally should be pursued in post-conviction relief proceedings pursuant to Ariz.R.Crim.P. 32. Because they are fact-intensive and often involve matters of trial tactics and strategy, trial courts are far better-situated to address these issues. State v. Valdez, 160 Ariz. 9, 14–15, 770 P.2d 313, 318–19 (1989). We decline to address them here and turn instead to the other issues presented.

1. Admission of alleged “other act,” hearsay, and irrelevant testimony

Defendant alleges that the trial court improperly admitted testimony from various witnesses, violating his confrontation and due process rights. Unfortunately, appellate counsel has failed to articulate separate grounds of objection to each portion of testimony.FN3 We will, therefore, separate and address the challenged testimony in seven categories. Because the trial court is in the best position to judge the admissibility of proffered testimony, we review most evidentiary claims on a discretionary standard. See, e.g., State v. Prince, 160 Ariz. 268, 274, 772 P.2d 1121, 1127 (1989); State v. Chapple, 135 Ariz. 281, 297 n. 18, 660 P.2d 1208, 1224 n. 18 (1983). FN3. Defense counsel reproduced 20 excerpts of trial testimony amounting to 14 pages in his opening brief and then made a generic claim that all the testimony was improperly admitted on hearsay, relevance, opinion testimony, or Rule 404 grounds. To say the least, this is an unhelpful appellate practice. On appeal, counsel must clearly identify the objectionable portions of testimony and the specific basis for each claimed error. See Ariz.R.Crim.P. 31.13(c)(1)(iv). Because this is a capital case and we must search for fundamental error, we will examine the evidentiary claims before considering the question of any waiver by appellate counsel.

a. Character evidence and prior acts

The trial court denied Defendant's motion to suppress evidence of his prior bad acts. Defendant alleges that the trial court improperly admitted testimony concerning his alleged violent acts against Debra in violation of Ariz.R.Evid. 404(a). We disagree. Rule 404(a) generally precludes admission of other acts to prove a defendant's character or “to show action in conformity therewith” on a particular occasion. State v. Bible, 175 Ariz. 549, 575, 858 P.2d 1152, 1178, cert. denied, 511 U.S. 1046, 114 S.Ct. 1578, 128 L.Ed.2d 221 (1993). Evidence of certain types of prior acts is admissible, however, “for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Ariz.R.Evid. 404(b). This list of permissible purposes is merely illustrative, not exclusive. State v. Jeffers, 135 Ariz. 404, 417, 661 P.2d 1105, 1118 (1983), cert. denied, 464 U.S. 865, 104 S.Ct. 199, 78 L.Ed.2d 174 (1983), rev'd on other grounds, Jeffers v. Ricketts, 832 F.2d 476, 480–81 (9th Cir.1987); Morris K. Udall et al., Arizona Practice–Law of Evidence § 84, at 179 n. 6 (3d ed. 1991).

This court has “long held that where the existence of premeditation is in issue, evidence of previous quarrels or difficulties between the accused and the victim is admissible.” Jeffers, 135 Ariz. at 418, 661 P.2d at 1119 (citing Leonard v. State, 17 Ariz. 293, 151 P. 947 (1915)). Such evidence “tends to show the malice, motive or premeditation of the accused.” Id. at 418, 661 P.2d at 1119 (emphasis added). In some cases, of course, such evidence may also show lack of premeditation. In either event, it is relevant. Defendant's abuse of Debra falls squarely within this rule and, under the facts of this case, tends to show both motive and premeditation. Premeditation was the main trial issue. The defense was lack of motive to kill either victim and the act's alleged impulsiveness, which supposedly precluded the premeditation required for first degree murder. See A.R.S. § 13–1105(A)(1). Defendant's prior physical abuse of and threats against Debra were relevant to show his state of mind and thus were properly admitted under Rule 404(b). See State v. Featherman, 133 Ariz. 340, 344–45, 651 P.2d 868, 872–73 (Ct.App.1982) (evidence of prior assault on victim admissible to show defendant's intent in murder prosecution).

b. Hearsay statements of Debra Dietz

A number of witnesses testified to statements made by Debra about her fear of Defendant and her desire to end their relationship. Defendant claims the trial court erred in admitting this testimony over a continuing objection that the statements were irrelevant and hearsay.FN4 We address each contention. FN4. The trial court denied Defendant's pretrial motion to suppress all hearsay testimony relating to statements by Debra and recorded defense counsel's continuing objection to such testimony. This is a proper method of preserving error for appeal. State v. Christensen, 129 Ariz. 32, 36, 628 P.2d 580, 584 (1981).

Evidence is relevant “if it has any basis in reason to prove a material fact in issue or if it tends to cast light on the crime charged.” State v. Moss, 119 Ariz. 4, 5, 579 P.2d 42, 43 (1978); Ariz.R.Evid. 401. We have found similar testimony relevant in analogous cases. For instance, in State v. Fulminante, evidence of the victim's fear of the defendant and their acrimonious relationship was relevant to the defendant's motive and admissible to refute defense claims that the relationship was harmonious. 161 Ariz. 237, 251, 778 P.2d 602, 616 (1989), aff'd, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).FN5 Contrary to Defendant's assertion, State v. Charo, 156 Ariz. 561, 754 P.2d 288 (1988), and State v. Christensen, 129 Ariz. 32, 628 P.2d 580 (1981), are consistent with this general rule. Those cases hold merely that evidence of the victim's fear of the defendant is not relevant to prove the defendant's conduct or identity. Charo, 156 Ariz. at 564–65, 754 P.2d at 291–92; Christensen, 129 Ariz. at 36, 628 P.2d at 584. In the present case, by contrast, Defendant's conduct and identity were undisputed. FN5. Other jurisdictions follow this approach. See, e.g., United States v. Donley, 878 F.2d 735, 738 (3d Cir.1989) (victim's statements regarding plan to end relationship relevant to defendant's mental state in murder prosecution), cert. denied, 494 U.S. 1058, 110 S.Ct. 1528, 108 L.Ed.2d 767 (1990); State v. Payne, 327 N.C. 194, 394 S.E.2d 158, 165, cert. denied, 498 U.S. 1092, 111 S.Ct. 977, 112 L.Ed.2d 1062 (1990).

The statements about Debra's fear and desire to end the relationship helped explain Defendant's motive. The disputed trial issues were Defendant's motive and mental state—whether Defendant acted with premeditation or as a result of a sudden impulse. The prosecution theorized that Defendant was motivated by anger or spite engendered by Debra's termination of the relationship.FN6 Debra's statements were relevant because they showed her intent to end the relationship, which in turn provided a plausible motive for premeditated murder. See Fulminante, 161 Ariz. at 251, 778 P.2d at 616. In addition, Debra's statements were also relevant to refute Defendant's assertion that he and Debra had secretly maintained their relationship after July 4, 1989. Id. FN6. Immediately after the murders, Defendant repeatedly said that “if he and Debra couldn't be together in life, they would be together in death.”

Defendant contends that even if the statements were relevant, they were still inadmissible hearsay. Although hearsay, these statements fall within a well-established exception allowing admission of hearsay statements concerning the declarant's then-existing state of mind, emotion, or intent, if the statements are not offered to prove the fact remembered or believed by the declarant. Ariz.R.Evid. 803(3). Debra's statements were not offered to prove any fact. Instead, they related solely to her state of mind when the statements were made and thus fit within the Rule 803(3) exception. Fulminante, 161 Ariz. at 251, 778 P.2d at 616 (victim's desire to move from defendant's home properly admitted under Rule 803(3)). The trial court did not err in admitting this testimony.

c. The neighbor's testimony

The following exchange occurred during the state's direct examination of a neighbor who lived next to the apartment shared by Defendant and Debra: Q. Did she [Debra] ever have another conversation with you later on when she related the same information to you? A. Yes, she did. I remember that instance very clearly ... she told me that she did not want to stay at the apartment because Joe had threatened her life. FN7 FN7. Reporter's Transcript (“R.T.”), Feb. 20, 1991, at 46–47 (emphasis added).

Neither Defendant nor the state addressed why this particular testimony may have been offered, either at trial or on appeal. The statement that Defendant had threatened Debra does not reflect Debra's state of mind but rather appears to be a statement of “memory or belief to prove the fact remembered or believed.” Ariz.R.Evid. 803(3). This declaration therefore falls outside the state of mind exception and should not have been admitted. Charo, 156 Ariz. at 563–64, 754 P.2d at 190–91; Christensen, 129 Ariz. at 36, 628 P.2d at 584. Defendant preserved this claim by his continuing objection at trial, so we must consider the effect of its admission.

We review a trial court's erroneous admission of testimony under a harmless error standard. Bible, 175 Ariz. at 588, 858 P.2d at 1191. Unless an error amounts to a structural defect, it is harmless if we can say “beyond a reasonable doubt that the error had no influence on the jury's judgment.” Id.; see also Sullivan v. Louisiana, 508 U.S. 275, ––––, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993) (error is only harmless if guilty verdict “was surely unattributable to the error”). We consider particular errors in light of the totality of the trial evidence. State v. White, 168 Ariz. 500, 508, 815 P.2d 869, 877 (1991), cert. denied, 502 U.S. 1105, 112 S.Ct. 1199, 117 L.Ed.2d 439 (1992). An error that requires reversal in one case may be harmless in another due to the fact-specific nature of the inquiry. Bible, 175 Ariz. at 588, 858 P.2d at 1191. Premeditation was the key trial issue, and we recognize that a prior threat is relevant to that issue. Premeditation requires proof that the defendant “made a decision to kill prior to the act of killing.” State v. Kreps, 146 Ariz. 446, 449, 706 P.2d 1213, 1216 (1985). The interval, however, can be short. Id. Either direct or circumstantial evidence may prove premeditation. State v. Hunter, 136 Ariz. 45, 48, 664 P.2d 195, 198 (1983).

Initially, we note that a tendency to act impulsively in no way precludes a finding of legal premeditation. Defendant offered little evidence to support his claim that he acted without premeditation on the morning of the murders. A defense expert briefly testified that Defendant displayed no signs of organic brain damage or psychotic thinking. The essence of his testimony militating against premeditation was that Defendant “appeared to be an individual that would act in an impulsive fashion, responding more to emotions rather than thinking things out.” This expert, however, examined Defendant for a total of six hours more than thirteen months after the murders, and there was no testimony correlating this trait to Defendant's conduct on August 7, 1989. Other witnesses testified that Defendant had, at various times, acted violently for no apparent reason. These instances usually occurred, however, when Defendant had been abusing alcohol or drugs. There was no evidence that Defendant consumed alcohol or drugs before the murders. There was, on the other hand, a great deal of evidence that unequivocally compels the conclusion that Defendant acted with premeditation. See Bible, 175 Ariz. at 588, 858 P.2d at 1191. Defendant disliked and had threatened Eugene. Three days before the killing, Defendant left threatening phone messages with Debra showing his intent to harm her.FN8 Defendant called the shop just before the killings and asked whether Debra and Eugene were there. Although Defendant regularly carried a gun, on the morning of the murders he also had a spare cartridge belt with him, contrary to his normal practice. Defendant calmly waited for Eugene to hang up the telephone before shooting him. There was no evidence that Eugene did or said anything to which Defendant might have impulsively responded. Finally, Defendant looked for Debra after shooting Eugene, found her in a separate area, and held her before shooting her, stating, “I told you I was going to do it, I have to kill you.” FN8. See supra, note 2.

The hearsay statement about threats came from the state's first witness on the first day of a five-day trial. The prosecutor neither emphasized it nor asked the witness to elaborate. Nor did the prosecutor mention the statement in closing argument. Cf. Charo, 156 Ariz. at 563, 754 P.2d at 190 (noting prosecution's emphasis of improperly-admitted evidence during closing argument in finding reversible error). We note, also, that other statements, properly admitted, established that Defendant had threatened Debra on other occasions. We stress that this court cannot and does not determine an error is harmless merely because the record contains sufficient untainted evidence. Bible, 175 Ariz. at 590, 858 P.2d at 1193. Given this record, however, we are convinced beyond a reasonable doubt that the statement did not influence the finding of premeditation implicit in the verdict. See State v. Coey, 82 Ariz. 133, 142, 309 P.2d 260, 269 (1957) (finding no reversible error in admission of hearsay statement bearing on pre-meditation). The error was harmless.

d. Constitutional claims

Defendant urges that admission of this and other hearsay statements violated his right to confront witnesses in contravention of the Sixth and Fourteenth Amendments. The state claims that Defendant failed to properly raise this claim in either this or the trial court. We need not reach these issues, however, because of our disposition of Defendant's hearsay claims. There is no Confrontation Clause violation when the hearsay testimony of a deceased declarant is admitted pursuant to a firmly-rooted hearsay exception. White v. Illinois, 502 U.S. 346, 356, 112 S.Ct. 736, 743, 116 L.Ed.2d 848 (1992); Bible, 175 Ariz. at 596, 858 P.2d at 1199. The Rule 803(3) state of mind exception is such a recognized exception. See, e.g., Lenza v. Wyrick, 665 F.2d 804, 811 (8th Cir.1981). Additionally, as in this case, a Confrontation Clause violation can be harmless error. Harrington v. California, 395 U.S. 250, 253, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284 (1969); State v. Wilhite, 160 Ariz. 228, 233, 772 P.2d 582, 587 (Ct.App.1989).

e. Hearsay statements of Eugene Dietz

Defendant alleges next that several witnesses improperly testified about hearsay statements made by Eugene Dietz. To the extent these statements concerned Eugene's state of mind about the animosity between him and Defendant, the statements, like Debra's, were relevant and properly admitted under Rule 803(3). See Fulminante, 161 Ariz. at 251, 778 P.2d at 616. One witness testified, however, that Eugene said, “Nobody is going to stop [Defendant] until he kills somebody.” This does not fall within the Rule 803(3) state of mind exception because it is a statement of belief to prove the fact believed. Christensen, 129 Ariz. at 36, 628 P.2d at 584. Defendant did not object to this testimony, however, nor was it the subject of any pretrial motion. This claim thus is waived unless it rises to the level of fundamental error. State v. West, 176 Ariz. 432, 445, 862 P.2d 192, 205 (1993), cert. denied, 511 U.S. 1063, 114 S.Ct. 1635, 128 L.Ed.2d 358 (1994). Error is only fundamental if it goes to the essence of a case, denies the defendant a right essential to a defense, or is of such magnitude that the defendant could not have received a fair trial. State v. Cornell, 179 Ariz. 314, 329, 878 P.2d 1352, 1367 (1994). The “essence” of this case was Defendant's mental state at the time of the murders. Eugene's statement of belief does not clearly establish premeditation nor refute Defendant's defense of impulsivity. Given the clear quantum of evidence supporting premeditation, admission of this lone statement did not deprive Defendant of a fair trial. See id. at 51. We conclude that admission of Eugene's hearsay statement does not meet the “stringent standard” of fundamental error. Bible, 175 Ariz. at 573, 858 P.2d at 1176.

f. Defendant's statements

Defendant next claims that his own statements were hearsay and improperly admitted. This claim is meritless. A defendant's out-of-court statements are not hearsay when offered by the state. Ariz.R.Evid. 801(d)(2)(A); State v. Atwood, 171 Ariz. 576, 635, 832 P.2d 593, 652 (1992).

g. Other evidentiary claims

On appeal, Defendant objects for the first time to the admission of testimony revealing that Defendant had been fired from two jobs, once for fighting with a co-worker and once due to his “temperament.” Because these claims were not raised below, we review only for fundamental error. West, 176 Ariz. at 445, 862 P.2d at 204. Arguably, this testimony concerns prior bad acts inadmissible under Rule 404. The state claims Defendant made a tactical decision not to object to the testimony because it tended to show Defendant's impulsivity. We decline to resolve the issue, however, because even if the testimony was erroneously admitted, its admission does not rise to the level of fundamental error. The testimony in both instances was perfunctory and undetailed. Moreover, there was other compelling evidence of Defendant's ill temper, much of it introduced by Defendant himself on the issue of impulsivity. Defendant's final evidentiary claim concerns testimony of a witness who related a neighbor's report that Defendant had vandalized Debra's apartment. This testimony was hearsay and should not have been admitted. See Ariz.R.Evid. 801 and 802. Again, Defendant did not object to this testimony. Because other witnesses presented direct testimony on the same issue, we conclude Defendant was not prejudiced. See Fulminante, 161 Ariz. at 250, 778 P.2d at 615. We find no fundamental error.

2. Failure to instruct on manslaughter

The trial court instructed the jury on both first and second degree murder under A.R.S. §§ 13–1105(A)(1) and 13–1104. Defendant claims the trial court committed reversible error by failing to sua sponte instruct the jury on the lesser-included offense of manslaughter. We disagree. It is true that in capital cases, trial courts must instruct on all lesser-included homicide offenses supported by the evidence. State v. Comer, 165 Ariz. 413, 422, 799 P.2d 333, 342 (1990), cert. denied, 499 U.S. 943, 111 S.Ct. 1404, 113 L.Ed.2d 460 (1991). It is equally true, however, that such instructions need not be given if unsupported by the evidence. State v. Clabourne, 142 Ariz. 335, 345, 690 P.2d 54, 64 (1984).

The manslaughter statute provides, in relevant part: A. A person commits manslaughter by: 1. Recklessly causing the death of another person; or 2. Committing second degree murder ... upon a sudden quarrel or heat of passion resulting from adequate provocation by the victim; or 3. Committing second degree murder ... while being coerced to do so by the use or threatened immediate use of unlawful deadly physical force ... A.R.S. § 13–1103(A). There was no evidence to support a manslaughter instruction. These were not reckless shootings. Nor was there evidence Defendant was provoked or coerced. Defendant intentionally shot both victims at close range. The claim is meritless. See State v. Ortiz, 158 Ariz. 528, 534, 764 P.2d 13, 19 (1988).

3. Sufficiency of evidence of aggravated assault

The trial court denied Defendant's motion for directed verdicts on the aggravated assault counts. Defendant now alleges those convictions are not supported by sufficient evidence because neither police officer testified to a subjective fear of imminent physical harm. We have previously rejected this same argument. Valdez, 160 Ariz. at 11, 770 P.2d at 315. To be guilty of aggravated assault, “the defendant need only intentionally act using a deadly weapon or dangerous instrument so that the victim is placed in reasonable apprehension of imminent physical injury.” Id. Either direct or circumstantial evidence may prove the victim's apprehension. There is no requirement that the victim testify to actual fright. Id. There was ample circumstantial evidence supporting the conclusion that the officers were apprehensive or in fear of imminent harm. The police officers knew that at least one victim had been shot and that other shots had been fired. Defendant grabbed his revolver and began to aim at the officers despite their orders not to do so. Police officers, of course, are not immune from the fear that anyone would reasonably feel under these circumstances. See In re Juvenile Appeal No. J–78539–2, 143 Ariz. 254, 256, 693 P.2d 909, 911 (1984) (sufficient evidence of apprehension where police officer-victim drew gun and assumed protective stance). The jury could have concluded the officers must have acted with apprehension or fear when they used deadly force against Defendant. The evidence certainly supports that conclusion.

4. Prosecutorial misconduct

Defendant alleges the prosecutor “ran amok” at trial, particularly in his cross-examination of Dr. Allender, Defendant's psychological expert. FN9 Because defense counsel made no trial objection, again we review these claims only for fundamental error. Bible, 175 Ariz. at 601, 858 P.2d at 1204. In determining whether a prosecutor's conduct amounts to fundamental error, we focus on the probability it influenced the jury and whether the conduct denied the defendant a fair trial. See id. FN9. Defendant styles several additional alleged instances of prosecutorial misconduct as ineffective assistance of counsel claims, based on his defense counsel's failure to object. As previously noted, these claims are better left to Rule 32 proceedings. See Valdez, 160 Ariz. at 14–15, 770 P.2d at 318–19. We do not address them.

Subject to Rule 403 limitations, expert witnesses may disclose facts not otherwise admissible if they form a basis for their opinions and are of a type normally relied on by experts. Ariz.R.Evid. 703; State v. Lundstrom, 161 Ariz. 141, 145, 776 P.2d 1067, 1071 (1989). If such facts are disclosed, they are admissible only to demonstrate the basis for the expert's testimony. Lundstrom, 161 Ariz. at 146, 776 P.2d at 1071. However, to offset the potential advantage this rule bestows on the proponent of expert opinion, “it is proper to inquire into the reasons for [the] opinion, including the facts upon which it is based, and to subject the expert to a most rigid cross-examination concerning his opinion and its sources.” State v. Stabler, 162 Ariz. 370, 374, 783 P.2d 816, 820 (Ct.App.1989); Ariz.R.Evid. 705. This latitude on cross-examination extends to matters otherwise inadmissible. United States v. A & S Council Oil Co., 947 F.2d 1128, 1135 (4th Cir.1991) (“Rule 703 creates a shield by which a party may enjoy the benefit of inadmissible evidence by wrapping it in an expert's opinion; Rule 705 is the cross-examiner's sword, and, within very broad limits, he may wield it as he likes.”).

With these principles in mind, we turn to the alleged misconduct. On direct examination, defense counsel asked Dr. Allender what materials he reviewed in preparing to examine Defendant. Dr. Allender replied, in part, “a variety of police reports from the Tucson Police Department, as well as from the Las Vegas Police Department.” On cross-examination, the following exchange occurred: Q. Directing your attention, you said you had some Las Vegas police reports? A. Yes. Q. You had police reports from 1979? A. I believe I did. I would have to flip through and look for it if you want me to. Q. Do you recall in 1979 an incident when he was arrested from some criminal activity? A. I think I found a report from '79 from Las Vegas. R.T., Feb. 22, 1991, at 160–61. Defendant alleges this was improper because the trial court had ruled inadmissible Defendant's 1979 Las Vegas misdemeanor assault conviction. On cross-examination, however, the prosecutor simply asked Dr. Allender to elaborate on the reports he first mentioned on direct examination. The jury never learned the details of the conduct underlying Defendant's Las Vegas arrest. Because Dr. Allender relied on the reports in forming his opinion of Defendant, the prosecutor's cross-examination was proper.

Defendant was entitled, however, to a limiting instruction that references to the Las Vegas police reports were admissible only to show the basis of Dr. Allender's opinions. See Lundstrom, 161 Ariz. at 148, 776 P.2d at 1074. Defense counsel did not request such an instruction. On this record, we conclude that the absence of such an instruction did not deprive Defendant of a fair trial. There was no fundamental error. Defendant also argues that the prosecutor improperly cross-examined Dr. Allender about the possibility of testing Defendant to determine the validity of his claim that he had no memory of the day of the murders. The full extent of that questioning was as follows: Q. Didn't Dr. Morris [another psychologist who examined Defendant] suggest that hypnosis or amobarbital might be ideal to discover whether this defendant was malingering? A. He suggested that those might be techniques. Q. With hypnosis, you place them under hypnosis in order to find out what the truth of the matter was? A. [Answer about the theory of hypnosis and amobarbital.] Q. So you didn't, did you attempt, did you request a hypnosis evaluation? A. I didn't because I'm not as convinced about those techniques as Dr. Morris. Q. Amobarbital, is that a truth serum? A. That is what they call it, that is what people have called it along the way. R.T., Feb. 22, 1991, at 173–74.

Defendant claims this exchange prejudiced him much like questioning a defendant about refusing to take a polygraph test. It is true that, as with polygraph test results, courts generally exclude testimony induced or “refreshed” by drugs or hypnosis. Jeffers, 135 Ariz. at 431, 661 P.2d at 1132; State v. Mena, 128 Ariz. 226, 228–29, 624 P.2d 1274, 1276–77 (1981). Defendant's analogy, however, is misguided. The prosecutor's cross-examination was not intended to impugn Defendant but to test the basis and credibility of Dr. Allender's opinions concerning whether Defendant was faking his asserted memory loss at the time of the murders. Dr. Morris had examined Defendant and recommended the disputed testing. Dr. Allender relied in part on Dr. Morris's written evaluation in forming his own opinions about Defendant. Without reaching the issue of admissibility of expert testimony based upon the results of hypnotic or amobarbital examination of a subject, we conclude the prosecutor acted within the wide latitude permitted on cross-examination. Stabler, 162 Ariz. at 374, 783 P.2d at 820.

5. The Wussler instruction

Defendant next claims the trial court violated his due process rights by instructing the jury that it must acquit Defendant of the principle charge before considering any lesser included offenses. Although we have previously rejected a similar claim, see State v. Wussler, 139 Ariz. 428, 429–30, 679 P.2d 74, 75–76 (1984), we need not address it here.FN10 The record reveals that the trial court refused the state's request to give such an instruction. Rather, the trial court instructed the jury that if it determined Defendant was guilty of either first or second degree murder, but had a reasonable doubt as to which one, it must find him guilty of second degree murder. That instruction was not improper. FN10. We presently have before us a case raising the so-called Wussler issue. See State v. Cañez, Ariz.Sup.Ct. No. CR–93–0161–PR.

6. Alleged plea bargain veto by victims' family

On appeal, Defendant urges for the first time that his due process and equal protection rights were violated when the victims' family allegedly “vetoed” a plea bargain in which the state would not seek the death penalty in exchange for a guilty plea to all counts. Defendant attacks the family's involvement in both the plea bargaining process and the decision to seek the death penalty. Defendant rests his claim on the following passage from his trial counsel's opposition to a motion to continue, which the state filed at the request of the victims' family: FN11. At one time, Defendant's trial was set for December 12, 1991. The victims' family asked the state to seek a continuance until after the holiday season because they feared jurors might be “more concerned with the fast approaching Christmas Holiday.” The family communicated these concerns to the trial court in a letter. The court denied the state's motion. Subsequently, the trial court continued the trial at the parties' mutual request due to scheduling conflicts.

In this case, the family has already put the quietus on any plea negotiations. Undersigned counsel and the prosecutor had earlier discussions about the defendant entering into a guilty plea to two counts of First Degree Murder, with two life sentences.... Upon conferring with the Dietz family, the prosecutor announced he could not make such an offer. Clearly the County Attorney has permitted the family to put the finishing stroke to a fair and economical end to this case. Opposition to Motion to Continue Trial, filed Nov. 19, 1990, at 2. The state properly may consider the wishes of the victim's family in deciding whether to seek the death penalty, so long as it does not accord undue weight to those wishes. State v. Lavers, 168 Ariz. 376, 397, 814 P.2d 333, 354 (1991), cert. denied, 502 U.S. 926, 112 S.Ct. 343, 116 L.Ed.2d 282 (1991). Moreover, Arizona crime victims have a constitutional and procedural right to confer with the state on any prospective plea bargain. See Ariz. Const. art. II, § 2.1(A)(4); Ariz.R.Crim.P. 39(b)(7). In the present case we need not consider the breadth of that right because the record does not support Defendant's contention that the family's wishes were the controlling factor in the state's decision to forego a plea and pursue the death penalty. Other than the passage quoted above, the record is silent on plea negotiations and the state's decision to seek death. Since that passage appears to be little more than defense counsel's rhetorical comment, and there is no evidence in the present record that the state gave any undue consideration to the desires of the victims' family, we find no error. See Lavers, 168 Ariz. at 397–98, 814 P.2d at 354–55.

B. Sentencing issues

In all capital cases we independently review the aggravating and mitigating circumstances to determine whether the former outweigh the latter and warrant imposition of the death penalty. State v. Johnson, 147 Ariz. 395, 400, 710 P.2d 1050, 1055 (1985). Our duty is to ensure that Arizona's capital sentencing scheme “genuinely narrow[s] the class of persons eligible for the death penalty.” Arave v. Creech, 507 U.S. 463, ––––, 113 S.Ct. 1534, 1542, 123 L.Ed.2d 188 (1993).

1. Aggravating circumstances

Following an aggravation-mitigation hearing, the trial court entered a special verdict pursuant to A.R.S. § 13–703(D). The trial court found two aggravating circumstances beyond a reasonable doubt: (1) Defendant was convicted of one or more other homicides, as defined in A.R.S. § 13–1101, which were committed during the commission of each offense; and (2) in the commission of the offenses Defendant knowingly created a grave risk of death to another person or persons in addition to the victims of the offenses. See A.R.S. §§ 13–703(F)(8) and (F)(3). There is no question about the first aggravating circumstance. Defendant does not challenge the trial court's finding that he was convicted of another homicide during the commission of each offense. This was a double murder. The trial court properly found the A.R.S. § 13–703(F)(8) aggravating circumstance. See Lavers, 168 Ariz. at 393, 814 P.2d at 350.

The trial court also found beyond a reasonable doubt that in the commission of the murders, Defendant knowingly created a grave risk of death to another person in addition to the victims. See A.R.S. § 13–703(F)(3). Defendant urges that this finding was erroneous because he did not actually shoot at any person other than the victims and because no bystanders were within his “line of fire.” Although there is merit to Defendant's arguments, we reject such a narrow reading of this aggravating circumstance under the unusual facts of this case. The “grave risk of death to another” factor applies only if the defendant's “murderous act itself put other people in a zone of danger.” See, e.g., State v. McCall, 139 Ariz. 147, 160–61, 677 P.2d 920, 933–34 (1983) (citing cases), cert. denied, 467 U.S. 1220, 104 S.Ct. 2670, 81 L.Ed.2d 375 (1984). We have never, however, limited this factor to cases in which another person was directly in the line of fire. For example, we have found a zone of danger where the defendant shot his intended victim while a third person was nearby and then pointed his gun at the third person before returning his attention to the victim. State v. Nash, 143 Ariz. 392, 405, 694 P.2d 222, 235, cert. denied, 471 U.S. 1143, 105 S.Ct. 2689, 86 L.Ed.2d 706 (1985). We noted there that in the absence of such a combination of factors—the third person's proximity during the actual shooting and the defendant's pointing his gun—the general rule is that mere presence of bystanders or pointing a gun at another to facilitate escape does not bring a murderous act within A.R.S. § 13–703(F)(3). Id. at 405, 684 P.2d at 235 (citing Jeffers, 135 Ariz. at 429, 661 P.2d at 1130 (pointing gun to quiet third person)); see also State v. Smith, 146 Ariz. 491, 503, 707 P.2d 289, 301 (1985) (risk to others factor could not be found merely because defendant took weapon into crowded public place where bystander could be hurt). No single factor is dispositive of this circumstance. Our inquiry is whether, during the course of the killing, the defendant knowingly engaged in conduct that created a real and substantial likelihood that a specific third person might suffer fatal injury.

In this case, several factors in combination support the conclusion that Defendant knowingly created a grave risk of death to others. FN12 First, at least three other employees were present in the confined garage where Defendant shot Eugene. See State v. McMurtrey, 151 Ariz. 105, 108, 726 P.2d 202, 205, cert. denied, 480 U.S. 911, 107 S.Ct. 1359, 94 L.Ed.2d 530 (1987) (presence of others in immediate area supports grave risk circumstance). One was standing only six to eight feet away from Eugene at the time of the shooting. See Nash, 143 Ariz. at 404–05, 694 P.2d at 234–35. After Defendant shot Eugene, he turned toward another employee as if “he was going to shoot but [that employee] ... really got out of there fast.” FN13 See id. at 405, 694 P.2d at 235 (defendant's aiming at bystander, who dived under desk to escape injury, supports factor). When Defendant pointed his gun at Eugene again, one employee fought with Defendant and even grabbed the gun's barrel. Moreover, a firearms expert testified that the position of the fired and unfired cartridges in the murder weapon showed that Defendant had cocked and uncocked the gun twice between shooting Eugene and Debra. Thus, there is evidence Defendant knowingly prepared the gun to fire both when he assumed a shooting stance toward one employee and when he grappled with the other. All this occurred during Defendant's commission of the two murders. Without retreating from Nash and Smith, we believe that under these circumstances the judge's finding that Defendant created a grave risk of death to at least these two employees is correct.FN14

FN12. In its special verdict, the trial court failed to specify which of the several persons present at the murder scene Defendant placed at grave risk of death. We thus review the record to determine whether the factor applies beyond a reasonable doubt to any of those persons. FN13. R.T., Feb. 20, 1991, at 166. FN14. The state urges also that the A.R.S. § 13–703(F)(3) circumstance was satisfied when, after the murders, Defendant raised his gun toward the two police officers. Our disposition of this issue makes addressing this argument unnecessary. We note, however, that the statutory elements of aggravated assault are not necessarily interchangeable with the requirements for the grave risk of death to another aggravating circumstance. See Jeffers, 135 Ariz. at 428, 661 P.2d at 1129.

2. Mitigating factors

In capital sentencing proceedings, the trial court must consider the mitigating factors in A.R.S. § 13–703(G) as well as any aspect of the defendant's background or the offense relevant to determining whether the death penalty is appropriate. Bible, 175 Ariz. at 605, 858 P.2d at 1208. Defendant must establish mitigating factors by a preponderance of the evidence. Id. We independently examine the record for mitigating evidence to determine whether the death sentence is justified. State v. Fierro, 166 Ariz. 539, 551, 804 P.2d 72, 84 (1991). In its special verdict, the trial court stated it found the following mitigating factors: Lack of any prior felony convictions and any other mitigating circumstances set forth in the presentence report, including all testimony presented by the psychiatrist ... [in] mitigations [sic] of sentence. Including the chemical substance abuse problems which you have suffered from, the Court finds that ... [the] mitigating circumstances are not sufficiently mitigating to outweigh the aggravating factors found by this Court beyond a reasonable doubt. R.T., July 12, 1991, at 32. Defendant argues that the trial court erroneously failed to find several statutory mitigating circumstances. We address each claim in turn.

Defendant urges that the trial court erred in not finding his “capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirement of the law was significantly impaired, but not so impaired as to constitute a defense to prosecution.” A.R.S. § 13–703(G)(1). This factor is phrased disjunctively so that proof of incapacity as to either ability to appreciate or conform establishes the mitigating circumstance. State v. Rossi, 154 Ariz. 245, 251, 741 P.2d 1223, 1229 (1987). Defendant offered expert testimony in support of his claim that his actions were due largely to his chronic alcohol and drug dependency and his impulsive personality. The trial court noted this testimony but nevertheless concluded this mitigating circumstance did not apply. We agree that the record does not support Defendant's mitigation claim under A.R.S. § 13–703(G)(1).

Defendant offered no evidence that he did not appreciate the wrongfulness of his conduct, and we have found none in the record. Indeed, Defendant's own words belie the notion. After police shot him, Defendant heard the police radio dispatcher ask whether “the bad guy” had been apprehended. Defendant, who was conscious and coherent, stated, “I'm the bad guy.” There is no evidence Defendant's capacity to appreciate the wrongfulness of his actions was diminished. We also conclude there is insufficient evidence that Defendant's ability to conform his conduct to the law was significantly impaired. The only evidence for this proposition appears in Dr. Allender's trial testimony and Dr. Breslow's sentencing hearing testimony. Neither could directly address Defendant's conduct on the date of the murders because Defendant maintained during their evaluations that he had no recall of the events of the shootings. The essence of Dr. Allender's testimony was that Defendant “appeared to be an individual who would act in an impulsive fashion, responding more to emotions rather than thinking things out.” Dr. Breslow testified that Defendant has a narcissistic personality, which means “he tends to be very sensitive to any slight criticisms or rejections and tends to respond with anger inappropriately.” In his opinion, Defendant's substance abuse history had a significant impact on his behavior at the time of the killings. FN15. Two factors weaken Dr. Breslow's testimony. First, before examining Defendant but after studying prior evaluations and records, Dr. Breslow stated in a letter to defense counsel that Defendant's “drug and alcohol use was not of an early enough onset and chronicity to result in significant impairment in impulse control or other maturation affecting the ability to process feelings and behavior.” This information may have prompted Defendant to modify his responses in his subsequent interview with Dr. Breslow. Second, Dr. Breslow first examined Defendant only nine days before his sentencing hearing. See Rossi, 154 Ariz. at 251, 741 P.2d at 1229 (commenting on the significance of psychological evaluations based on interviews long after commission of crime).

Generally, “a mere character or personality disorder alone is insufficient to constitute a mitigating circumstance.” See, e.g., State v. Brewer, 170 Ariz. 486, 505, 826 P.2d 783, 802 (1992) (citing cases). Both Dr. Breslow and Dr. Allender stated that Defendant does not suffer from any form of mental illness, but only from a form of personality trait that drug and alcohol abuse often exacerbated. Defendant admitted, however, that he had used no drugs for three days prior to the murders and had consumed only two alcoholic drinks over twelve hours before the murders. This case falls far short of those meeting the A.R.S. § 13–703(G)(1) mitigating circumstance. Cf., e.g., State v. Jimenez, 165 Ariz. 444, 459–62, 799 P.2d 785, 797–800 (1990) (defendant suffered from psychotic illness, experienced hallucinations, and heard voices); Rossi, 154 Ariz. at 249–51, 741 P.2d at 1227–29 (defendant suffered from cocaine intoxication with delusions and hallucinations).

We further believe Defendant's impulsive personality and history of substance abuse merit little, if any, independent consideration in mitigation. As noted, Defendant was not under the influence of any intoxicating substance at the time of the murders. See Bible, 175 Ariz. at 606, 858 P.2d at 1209. The evidence did not show that Defendant's impulsive personality rendered him unable to control his conduct. Poor impulse control, standing alone, has little mitigating weight. Brewer, 170 Ariz. at 506, 826 P.2d at 803. We reject Defendant's claim that he was “under unusual and substantial duress, although not such as to constitute a defense to prosecution.” A.R.S. § 13–703(G)(2). For this mitigating circumstance to apply, “one person must coerce or induce another person to do something against his will.” State v. Castañeda, 150 Ariz. 382, 394, 724 P.2d 1, 13 (1986). Moreover, impulse control problems cannot constitute duress. Id. There is no evidence Defendant was coerced in any way. Thus, the A.R.S. § 13–703(G)(2) mitigating circumstance does not apply.

Defendant also argues that he “could not reasonably have foreseen that his conduct in the course of the commission of the offense for which [he] was convicted would cause, or would create grave risk of causing, death to another person.” A.R.S. § 13–703(G)(4). This claim is meritless. Defendant intentionally murdered both victims in cold blood, drawing his gun and shooting in a confined area where he knew others were present. Despite close scrutiny, the record discloses no other nonstatutory mitigating circumstances. See Bible, 175 Ariz. at 606, 858 P.2d at 1209. The trial court correctly noted Defendant's lack of prior felony convictions as a nonstatutory mitigating factor. See Brewer, 170 Ariz. at 507, 826 P.2d at 804. This carries little weight, however, because Defendant previously pleaded guilty in Nevada to two counts of assault with a deadly weapon, classified there as “gross misdemeanors.” Defendant originally was charged with felonies in Nevada, and the seriousness of his conduct compels us to discount this factor.FN16 See Lavers, 168 Ariz. at 395, 814 P.2d at 352 (prior nonfelony violent acts may rebut claim of no prior felony record). FN16. According to the Nevada presentence report, Defendant parked his motorcycle so it obstructed a truck. The truck owner knocked on Defendant's door and asked him to move his motorcycle. Defendant replied, “Just a minute,” then returned and threatened the owner and his girlfriend with a shotgun. Defendant tried to kick the owner, who retreated. Defendant then fired the shotgun at the owner's feet, injuring him.

Defendant claims as a mitigating factor that he was reared in a dysfunctional family. Nothing in the record substantiates this claim, however, other than his father's alcoholism and his family's periodic moves due to military transfers. Defendant failed, moreover, to demonstrate how his allegedly poor upbringing related in any way to the murders. See State v. Wallace, 160 Ariz. 424, 427, 773 P.2d 983, 986 (1989), cert. denied, 494 U.S. 1047, 110 S.Ct. 1513, 108 L.Ed.2d 649 (1990).

3. State's cross-appeal

The trial court specifically declined to find as an aggravating circumstance that Defendant murdered the victims in an “especially heinous, cruel or depraved manner.” See A.R.S. § 13–703(F)(6). In its cross-appeal, the state urges that the trial court erred in failing to find this factor and asks that this court independently make such a finding. Our disposition of the other issues on appeal, however, makes it unnecessary to reach this issue. See State v. Milke, 177 Ariz. 118, 129, 865 P.2d 779, 790 (1993) (noting that reviewing courts should not address issues that are unnecessary to disposition of an appeal).

4. Propriety of the death sentences

We have independently reviewed the facts establishing the aggravating and mitigating circumstances. State v. Hill, 174 Ariz. 313, 330, 848 P.2d 1375, 1392 (1993). We have also reviewed the record for evidence of additional mitigating evidence and have found none. The state proved the existence of the A.R.S. §§ 13–703(F)(3) and (8) aggravating circumstances beyond a reasonable doubt. After review of the entire record, we conclude there are no statutory and no substantial, nonstatutory mitigating factors. Taken in isolation, Defendant's substance abuse and alleged impulsive personality are not sufficiently substantial to call for leniency. The trial court correctly concluded the aggravating circumstances outweigh the mitigating circumstances. Cf. Cornell, 179 Ariz. 314, 878 P.2d 1352. A.R.S. § 13–703(E) requires imposition of the death penalty.

DISPOSITION

We have examined the entire record for fundamental error pursuant to A.R.S. § 13–4035, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). We have found none. Accordingly, we affirm Defendant's convictions and sentences. MOELLER, V.C.J., and CORCORAN, ZLAKET and MARTONE, JJ., concur.
 

Wood v. Ryan, 693 F.3d 1104 (9th Cir. 2012). (Habeas)

Background: Petitioner sought federal habeas corpus relief after his state-court convictions for murder and aggravated assault and death sentence were upheld on direct appeal, 180 Ariz. 53, 881 P.2d 1158. The United States District Court for the District of Arizona, John M. Roll, J., 2007 WL 3124451, denied petition, and thereafter, 2008 WL 280879, denied petitioner's motion to alter or amend judgment. Petitioner appealed.

Holdings: The Court of Appeals, Thomas, Circuit Judge, held that: (1) state supreme court reasonably applied clearly established federal law in denying claim that prosecutor committed misconduct by asking psychologist whether he had considered hypnotizing or administering amobarbital to petitioner; (2) brief mention of petitioner's prior misdemeanor did not deprive petitioner of fair trial; (3) cross-examining lay witness about petitioner's mental state was not so prejudicial that it rendered trial fundamentally unfair; (4) alleged prosecutorial misconduct did not rise to level of due process violation even when considered in the aggregate; (5) petitioner did not fairly present claims of prosecutorial misconduct to state supreme court; (6) petitioner did not receive ineffective assistance of counsel; and (7) petitioner was not entitled to evidentiary hearing on federal habeas review. Affirmed.

THOMAS, Circuit Judge: Joseph R. Wood III, an Arizona state prisoner, appeals the district court's denial of his habeas corpus petition challenging his state convictions for murder and aggravated assault and the imposition of the death penalty. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

I

Petitioner Joseph Wood shot and killed his estranged girlfriend, Debra Dietz, and her father, Eugene Dietz, on August 7, 1989 at a Tucson automotive paint and body shop owned and operated by the Dietz family. The Arizona Supreme Court described the facts as follows: Since 1984, Defendant and Debra had maintained a tumultuous relationship increasingly marred by Defendant's abusive and violent behavior. Eugene generally disapproved of this relationship but did not actively interfere. In fact, the Dietz family often included Defendant in dinners and other activities. Several times, however, Eugene refused to let Defendant visit Debra during business hours while she was working at the shop. Defendant disliked Eugene and told him he would “get him back” and that Eugene would “be sorry.” Debra had rented an apartment that she shared with Defendant. Because Defendant was seldom employed, Debra supported him financially. Defendant nevertheless assaulted Debra periodically. [FN1]. She finally tried to end the relationship after a fight during the 1989 July 4th weekend. She left her apartment and moved in with her parents, saying “I don't want any more of this.” After Debra left, Defendant ransacked and vandalized the apartment. She obtained an order of protection against Defendant on July 8, 1989. In the following weeks, however, Defendant repeatedly tried to contact Debra at the shop, her parents' home, and her apartment. [FN2].

FN1. Debra was often bruised and sometimes wore sunglasses to hide blackened eyes. A neighbor who heard “thuds and banging” within Debra's apartment called police on June 30, 1989, after finding Debra outside and “hysterical.” The responding officer saw cuts and bruises on Debra. FN2. Defendant left ten messages on Debra's apartment answering machine on the night of Friday, August 4, 1989. Some contained threats of harm, such as: “Debbie, I'm sorry I have to do this. I hope someday somebody will understand when we're not around no more. I do love you babe. I'm going to take you with me.”

Debra and Eugene drove together to work at the shop early on Monday morning, August 7, 1989. Defendant phoned the shop three times that morning. Debra hung up on him once, and Eugene hung up on him twice. Defendant called again and asked another employee if Debra and Eugene were at the shop. The employee said that they had temporarily left but would return soon. Debra and Eugene came back at 8:30 a.m. and began working in different areas of the shop. Six other employees were also present that morning. At 8:50 a.m., a Tucson Police officer saw Defendant driving in a suspicious manner near the shop. The officer slowed her patrol car and made eye contact with Defendant as he left his truck and entered the shop. Eugene was on the telephone in an area where three other employees were working. Defendant waited for Eugene to hang up, drew a revolver, and approached to within four feet of him. The other employees shouted for Defendant to put the gun away. Without saying a word, Defendant fatally shot Eugene once in the chest and then smiled. When the police officer saw this from her patrol car she immediately called for more officers. Defendant left the shop, but quickly returned and again pointed his revolver at the now supine Eugene. Donald Dietz, an employee and Eugene's seventy-year-old brother, struggled with Defendant, who then ran to the area where Debra had been working.

Debra had apparently heard an employee shout that her father had been shot and was trying to telephone for help when Defendant grabbed her around the neck from behind and placed his revolver directly against her chest. Debra struggled and screamed, “No, Joe, don't!” Another employee heard Defendant say, “I told you I was going to do it, I have to kill you.” Defendant then called Debra a “bitch” and shot her twice in the chest. Several police officers were already on the scene when Defendant left the shop after shooting Debra. Two officers ordered him to put his hands up. Defendant complied and dropped his weapon, but then grabbed it and began raising it toward the officers. After again ordering Defendant to raise his hands, the officers shot Defendant several times. State v. Wood, 180 Ariz. 53, 881 P.2d 1158, 1165–66 (1994). Wood was arrested and indicted on two counts of first degree murder and two counts of aggravated assault against the police officers who subdued him. Id. at 1166.

At trial, Wood conceded his role in the killings, but argued that they were impulsive acts that were not premeditated. Id. After a five-day trial, the jury found Wood guilty on all counts. Id. at 1169. Following an aggravation and mitigation hearing, the trial court sentenced Wood to imprisonment for the assaults and to death for each murder. Id. at 1165.

In 1994, the Arizona Supreme Court affirmed Wood's convictions and sentences. Id. The court also independently reviewed the evidence of aggravating and mitigating circumstances and determined that the trial court correctly concluded that the aggravating circumstances outweighed the mitigating circumstances, thereby supporting the imposition of the death penalty. Id. The United States Supreme Court denied certiorari, Wood v. Arizona, 515 U.S. 1147, 115 S.Ct. 2588, 132 L.Ed.2d 836 (1995), and Wood's petition for rehearing, Wood v. Arizona, 515 U.S. 1180, 116 S.Ct. 24, 132 L.Ed.2d 907 (1995).

In 1996, Wood filed a state petition for post-conviction review (PCR). The state post-conviction court and the Arizona Supreme Court denied relief. In 2002, Wood filed a second PCR petition. The state post-conviction court and Arizona Supreme Court again denied relief.

In 1998, Wood filed a Petition for Writ of Habeas Corpus in federal district court, followed by the filing of an Amended Petition later that year. In 2006, the district court issued an order on the procedural status of Wood's claims, finding certain claims properly exhausted and ordering merits briefing on those claims and dismissing others as procedurally barred. Order Re: Procedural Status of Claims, Wood v. Schriro, No. CV–98–053–TUC–JMR, 2007 WL 3124451 (D.Ariz. Mar. 21, 2006), ECF No. 63. In 2007, the district court denied Wood's remaining habeas claims on the merits. Wood v. Schriro, No. CV–98–053–TUC–JMR, 2007 WL 3124451, at *46 (D.Ariz. Oct. 24, 2007).

We review the district court's denial of Wood's habeas petition de novo and its findings of fact for clear error. Stanley v. Schriro, 598 F.3d 612, 617 (9th Cir.2010). We review the denial of Wood's request for an evidentiary hearing for an abuse of discretion. Id. Wood filed his habeas petition after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act (“AEDPA”) applies. Woodford v. Garceau, 538 U.S. 202, 204–07, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003). To obtain relief under AEDPA, Wood must show that the state court's decision (1) “was contrary to” clearly established federal law as determined by the Supreme Court, (2) “involved an unreasonable application of” such law, or (3) “was based on an unreasonable determination of the facts” in light of the record before the state court. Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011) (quoting 28 U.S.C. § 2254(d)).

II

The district court correctly determined that Wood was not entitled to habeas relief on his claims that the prosecutor committed prejudicial misconduct in violation of his rights to due process and a fair trial. The district court denied five claims on the merits and concluded that four claims were procedurally barred.

A

The district court was correct in its denial of Wood's prosecutorial misconduct claims on the merits. Wood argues that the prosecutor committed prejudicial misconduct by: (1) cross-examining a psychologist about whether another doctor had considered hypnotizing or administering amobarbital to Wood; (2) eliciting testimony about a prior arrest, his employment history, and his personal relationships with previous girlfriends and with Ms. Dietz; (3) cross-examining a psychologist about Wood's mental state; (4) cross-examining a lay witness about Wood's mental state; and (5) committing cumulative error.

A prosecutor's actions constitute misconduct if they “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). The “appropriate standard of review for such a claim on writ of habeas corpus is ‘the narrow one of due process, and not the broad exercise of supervisory power.’ ” Id. (quoting Donnelly, 416 U.S. at 642, 94 S.Ct. 1868). On habeas review, constitutional errors of the “trial type,” including prosecutorial misconduct, warrant relief only if they “had substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637–38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (internal quotation marks omitted).

The district court properly denied Wood's claim that the prosecutor committed misconduct by asking Dr. Allender, a psychologist called as an expert witness by the defense, whether he had considered hypnotizing or administering amobarbital to Wood. Wood, 2007 WL 3124451, at *6–8. On direct examination, Wood's counsel asked Dr. Allender questions about Wood's alleged inability to remember the shootings. On cross-examination, the prosecutor probed Dr. Allender's understanding of Wood's alleged memory loss. Wood alleges the prosecutor committed misconduct by asking the following line of questions:

Q: Didn't Dr. Morris [another psychologist who examined Wood] suggest that hypnosis or amobarbital might be ideal to discover whether [Wood] was malingering? A: He suggested that those might be techniques. Q: With hypnosis, you place them under hypnosis in order to find out what the truth of the matter was? A: What the theory would be is if it is an unconscious process, that you can probably do hypnosis or use the sodium amobarbital to get past the conscious defense or unconscious defense mechanisms. Q: So you didn't, did you attempt, did you request a hypnosis evaluation? A: I didn't because I didn't, I'm not as convinced about those techniques as Dr. Morris is. Q: Amobarbital, is that a truth serum? A: That is what they call it, that is what people have called it along the way.

The Arizona Supreme Court denied this claim on direct review. Wood, 881 P.2d at 1172–73. In doing so, the Arizona Supreme Court reasonably applied clearly established law. Although Wood argues that the evidence obtained by hypnosis or sodium amobarbital would have been scientifically unreliable, the Arizona Supreme Court acknowledged that “courts generally exclude testimony induced or ‘refreshed’ by drugs or hypnosis” but determined that the prosecutor's questions about amobarbital and hypnosis in Wood's case were “within the wide latitude permitted on cross-examination” because they were “not intended to impugn [Wood] but to test the basis and credibility of Dr. Allender's opinions concerning whether [Wood] was faking his asserted memory loss at the time of the murders.” Id. at 1172–73. Wood also contends that Dr. Allender appeared unqualified because he did not consider this potential evidence, but the record belies this assertion. Dr. Allender testified that he did not perform hypnosis or administer amobarbital because he was not convinced about the reliability of these tests. By questioning the reliability of the tests, Dr. Allender demonstrated his credibility as an expert by showing that a competent psychologist questions the use of methods and practices that do not provide credible results. The prosecutor's questions did not “so infect[ ] the trial with unfairness as to make the resulting conviction a denial of due process.” Darden, 477 U.S. at 181, 106 S.Ct. 2464.

The district court also correctly denied Wood's claims that the prosecutor committed misconduct by eliciting testimony about Wood's prior arrest, employment history, personal relationships with previous girlfriends, and self-centered relationship with Ms. Dietz. Wood, 2007 WL 3124451, at *8–11. The Arizona Supreme Court addressed the prior arrest and employment history claims. Wood, 881 P.2d at 1170–72. However, it did not address the claims about Wood's prior relationships with other girlfriends or his allegedly self-centered relationship with Ms. Dietz, so we must review these two claims de novo. See Stanley v. Cullen, 633 F.3d 852, 860 (9th Cir.2011).

The Arizona Supreme Court reasonably determined that the prosecutor's passing reference to Wood's prior arrest on cross-examination did not violate Wood's right to due process. On direct examination, Dr. Allender testified that he reviewed police reports from the Tucson and Las Vegas police departments. The prosecutor then followed up on cross-examination by asking questions about these reports: Q: Directing your attention, you said you had some Las Vegas reports? A: Yes. Q: You had police reports from 1979? A: I believe I did. I would have to flip through and look for it if you want me to. [The Court]: Maybe if you ask— Q: Do you recall in 1979 an incident when [Wood] was arrested for some criminal activity? A: I think I found a report from '79 from Las Vegas.

The Arizona Supreme Court determined that this line of questioning did not deprive Wood of a fair trial because “the prosecutor simply asked Dr. Allender to elaborate on the reports he first mentioned on direct examination. The jury never learned the details of the conduct underlying Defendant's Las Vegas arrest.” Wood, 881 P.2d at 1172. The court concluded that “[b]ecause Dr. Allender relied on the reports in forming his opinion of Defendant, the prosecutor's cross-examination was proper.” Id. This brief mention of Wood's prior misdemeanor did not deprive him of a fair trial. The prosecutor referred to the misdemeanor only in passing during the examination and he did not mention it in his closing argument. The trial court had granted a motion in limine excluding the introduction of this prior misdemeanor into evidence, and the Arizona Supreme Court determined that Wood would have been entitled to a limiting instruction that references to the police reports were admissible only to show the basis of Dr. Allender's opinions had he objected. Id. at 1172. But to the extent Wood argues this merits reversal, “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67–68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).

The prosecutor's references to Wood's employment history, prior relationships, and self-centered relationship with Ms. Dietz also do not rise to the level of a due process violation. The Arizona Supreme Court properly concluded that the challenged testimony regarding Wood's employment history was merely “perfunctory and undetailed” such that “its admission d[id] not rise to the level of fundamental error.” Wood, 881 P.2d at 1170. Similarly, the prosecutor's questions that elicited Wood's former girlfriend's testimony that Wood was unfaithful and Margaret Dietz's testimony that Wood was selfish in his relationship with Debra Dietz were also perfunctory and undetailed and they did not violate Wood's due process rights.

The prosecutor did not commit prejudicial misconduct by cross-examining Dr. Allender about Wood's mental state. Wood alleges that the prosecutor committed misconduct by improperly raising the issue of Wood's mental state at the time of the incident in the following line of questions: Q. Let me ask you, sir, I don't know, you are talking about impulsivity here today. Of the defendant. You said the defendant has a trait of acting impulsively? A. [Dr. Allender] That's my belief, yes. Q. Under the facts of this case as you understand them, sir, how would a person who was not impulsive have committed this offense? A. Had it been thought through and premeditated, then I would say it was not impulsive. I see impulsivity as acting without forethought. Q. Well, how would a non-impulsive person have committed this offense? A. I think they would have planned it out. Q. So what you are saying is that this wasn't planned out, from what you know about the facts of this case it wasn't planned? A. It is hard for me to say whether it is planned. Well, I think Mr. Wood behaved in a general sequence but given his lack of recall for the specific offense, it is hard for me to know whether this was planned out or not.

The district court correctly concluded that this line of cross-examination did not warrant the grant of habeas relief. Even if the prosecutor's questions arguably touched on Wood's state of mind at the time of the crimes, Dr. Allender's answers did not. He merely testified that he was not certain if Wood had planned the shootings. This testimony did not conflict with Wood's impulsivity theory and did not deprive Wood of a fair trial.

The prosecutor did not commit prejudicial misconduct by cross-examining Mona Donovan, a mutual friend of Wood and Ms. Dietz, about Wood's mental state. On direct examination, Donovan testified that Wood sometimes acted impulsively. On cross-examination, the prosecutor asked Donovan about her pre-trial statement that Wood's anger increased as a situation worsened. Wood argues that the prosecutor committed misconduct by asking the following questions about an incident at Ms. Dietz's apartment: Q: When [Wood] trashed the apartment, he trashed the apartment to get some of his possessions and avenge his anger? I was reading the question [defense counsel] asked you on page 11, do you know why he broke in? Answer, to get some of his possessions, to avenge some of his anger by breaking possessions of [Ms. Dietz's]. Do you recall that? A: Yes. Q: In fact I think there was a telephonic interview that you gave to a legal assistant in my office on the 9th of October, do you recall when you were asked why he did that, indicating that he probably, he was probably very angry and did it out of spite? A: I don't recall the telephone conversation. Q: Does that sound like something you would say? A: I really don't know, I don't remember. Q: Would you agree with that statement? A: That he would do it out of spite? The Court: Let's quit asking this witness, the witness why this defendant did or didn't know why he did something, there's no way she could know it. Q: You indicated did you not that he avenged some of his anger by breaking and destroying some possessions of [Ms. Dietz's]? A: Yes. The Court: Did you hear what I just said, quit asking her about his mental state. Quit asking her about his mental state. Q: Well, when you say the word avenge, what do you mean by the word avenge? Do you mean to get revenge? A: Yeah, I guess so.

Wood contends the prosecutor committed misconduct by asking Ms. Donovan to speculate about Wood's mental state after the trial judge ruled that the question was improper. Because the Arizona Supreme Court did not address this claim on the merits, we review it de novo. Stanley, 633 F.3d at 860. The district court correctly concluded that the questioning did not violate Wood's right to a fair trial. Although the prosecutor should have dropped this line of questioning after the trial judge admonished him once, the improper follow-up question about Wood's mental state during an event unrelated to the killings was not so prejudicial that it rendered the trial fundamentally unfair. The fact that Wood had vandalized Ms. Dietz's apartment had already been established. Additionally, the information elicited by the prosecutor was consistent with the defense theory that Wood was impulsive and had anger-control problems. Donovan's testimony regarding Wood's motives in vandalizing the apartment was only tangentially related to the issue of Wood's state of mind at the time of the shootings.

Finally, the cumulative impact of each of the incidents of alleged prosecutorial misconduct did not violate Wood's right to a fair trial. Even when separately alleged incidents of prosecutorial misconduct do not independently rise to the level of reversible error, “[t]he cumulative effect of multiple errors can violate due process.” United States v. Nobari, 574 F.3d 1065, 1082 (9th Cir.2009) (internal quotation marks omitted). However, Wood's allegations of prosecutorial misconduct do not rise to the level of a due process violation even when considered in the aggregate.

B

Wood raises additional prosecutorial misconduct claims that the district court dismissed as procedurally defaulted. Wood claims that the prosecutor committed prejudicial misconduct by: (1) eliciting evidence that Wood was incarcerated while awaiting trial; (2) eliciting false testimony regarding the position of the bullets in the gun's cylinder; (3) impugning defense counsel's motives; and (4) eliciting inflammatory victim impact evidence. We affirm the district court's dismissal of these claims because they were not fairly presented to the state courts. To fairly present a claim in state court, a petitioner must describe the operative facts supporting that claim. Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir.2008); see also Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982); Picard v. Connor, 404 U.S. 270, 275–78, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). Wood concedes that the specific facts underlying these claims were not presented on direct appeal, but he argues that they merely constitute additional particular instances of prosecutorial misconduct that do not fundamentally alter the claim raised on direct appeal. However, a general allegation that a prosecutor engaged in pervasive misconduct is not sufficient to alert a state court to separate specific instances of purported misconduct. See Picard, 404 U.S. at 275–78, 92 S.Ct. 509.

In the alternative, Wood argues that the first and last of these claims—that the prosecutor committed misconduct by eliciting evidence that Wood was incarcerated while awaiting trial and eliciting inflammatory victim impact evidence—were not defaulted because they were incorporated by reference to his state PCR petition in his petition for review. The district court properly determined that these claims were not fairly presented to the Arizona Supreme Court. As the Supreme Court has explained: [O]rdinarily, a state prisoner does not “fairly present” a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as the lower court opinion in the case, that does so. Baldwin v. Reese, 541 U.S. 27, 32, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004).

Additionally, “a habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance.” Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Arizona law requires that a petitioner present the issues and material facts supporting a claim in a petition for review and prohibits raising an issue through incorporation of any document by reference, except for appendices. Ariz. R.Crim. P. 32.9(c)(1)(iv). Wood failed to comply with these requirements and thereby failed to fairly present these claims to the Arizona Supreme Court.

Finally, Wood argues that even if his false testimony claim is procedurally defaulted, the district court erred by not reaching the merits of this claim because failure to do so would cause a fundamental miscarriage of justice. To establish a “fundamental miscarriage of justice,” Wood must show that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (internal quotation marks omitted). He must demonstrate that “it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Id. As a result, the Supreme Court has noted that this exception “would remain ‘rare’ and would only be applied in the ‘extraordinary case.’ ” Id. at 321, 115 S.Ct. 851.

Wood does not meet this burden because considerable evidence of his premeditation was introduced at trial. The morning of the crime, Wood called the shop to determine whether Debra and Eugene Dietz were there and, although he regularly carried a gun with him, he brought more ammunition to the shop than was his habit. Wood, 881 P.2d at 1169. He waited to shoot Eugene until after Eugene had hung up the telephone, actively searched for Ms. Dietz, and held her before shooting her, stating, “I told you I was going to do it, I have to kill you.” Id. Evidence was also introduced detailing Wood's history of violence against Ms. Dietz, as were taped messages in which Wood threatened her life. Id. at 1165 nn. 12. Given this evidence against Wood, it is not more likely than not that no reasonable juror would have found him guilty of premeditated murder beyond a reasonable doubt.

III

The district court correctly determined that Wood was not entitled to habeas relief on his claims that he was denied effective assistance of counsel at trial, sentencing, and on appeal. To establish ineffective assistance of counsel, a petitioner must show that counsel's performance was deficient and that he was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687–88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Deficient performance is established when “counsel's representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. In determining deficiency, “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. at 689, 104 S.Ct. 2052 (internal quotation marks omitted). To establish prejudice, Wood must show “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. Under AEDPA review, “[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard.” Richter, 131 S.Ct. at 785.

Ineffective assistance of counsel at sentencing claims are also assessed according to the Strickland standard. 466 U.S. at 695, 104 S.Ct. 2052. The test for prejudice at sentencing in a capital case is whether “there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Id. AEDPA's “objectively unreasonable” standard also applies to ineffective assistance of counsel at sentencing claims that are considered and denied by a state PCR court. See Bell v. Cone, 535 U.S. 685, 698–99, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002).

A

The district court correctly dismissed Wood's claims that his trial counsel's performance was constitutionally ineffective. He contends that his trial counsel performed deficiently by inadequately investigating and preparing his mental health defense and failing to object to alleged instances of prosecutorial misconduct.

Wood's counsel's investigation and preparation of Wood's mental health defense was not constitutionally ineffective. At trial, Wood conceded his role in the killings but argued that they were not premeditated because he had acted impulsively. Wood, 881 P.2d at 1166. Wood alleges that his counsel rendered ineffective assistance in asserting an impulsivity defense by failing to provide Dr. Allender with sufficient background material to testify effectively about his mental health at trial. The record indicates that counsel adequately prepared Dr. Allender for his testimony. At counsel's request, Dr. Allender thoroughly examined Wood over the course of two days. During these examinations, Dr. Allender administered several psychological tests and discussed Wood's drug and alcohol abuse, hospitalization history—including his history of head injuries—and the incident itself. Dr. Allender also reviewed psychological evaluations by Dr. Boyer, Dr. Morris, and Dr. Morenz, the three other mental health experts who also examined Wood. Each of these evaluations discussed Wood's personal history of alcohol abuse, his suicide attempts, and his head injuries. Given this background preparation, Dr. Allender was prepared to testify about Wood's mental state.

Furthermore, Wood has not demonstrated prejudice. Counsel presented an impulsivity defense and Wood has not demonstrated a reasonable probability that a different or more comprehensive presentation of that defense would have resulted in a different verdict, especially in the face of the overwhelming evidence of premeditation. See Williams v. Calderon, 52 F.3d 1465, 1470 (9th Cir.1995). Thus, the PCR court did not unreasonably apply Strickland when it rejected this claim. The district court properly rejected Wood's claims that his trial counsel was constitutionally ineffective for failing to object to the alleged incidents of prosecutorial misconduct. The PCR court did not unreasonably apply Strickland in determining that Wood failed to demonstrate prejudice. Many of counsel's decisions not to object at trial were consistent with his presentation of an impulsivity defense. For example, evidence elicited by the prosecutor concerning instances of Wood's erratic behavior was consistent with the strategy of offering Wood's impulsive personality as a defense to the element of premeditation. See Wood, 881 P.2d at 1170. Additionally, the jury's finding of premeditation was supported by strong evidence at trial. See Wood, 881 P.2d at 1169. In light of this evidence, Wood has not demonstrated a reasonable probability that the result of the trial would have been different had defense counsel objected to the alleged instances of prosecutorial misconduct.

B

The district court also properly dismissed as procedurally defaulted Wood's claim that his trial counsel was constitutionally ineffective for failing to impeach three witnesses. Wood claims that his trial counsel rendered ineffective assistance by failing to impeach Anita Sueme, Eric Thompson, and Donald Dietz for allegedly giving prior statements inconsistent with their trial testimony. We affirm the district court's dismissal of this claim because it was not fairly presented to the state courts. To fairly present a claim in state court, a petitioner must describe the operative facts supporting that claim. Davis, 511 F.3d at 1009; see also Anderson, 459 U.S. at 6, 103 S.Ct. 276; Picard, 404 U.S. at 275–78, 92 S.Ct. 509. Wood concedes that he did not raise these particular claims on direct appeal, but as with some of his claims of prosecutorial misconduct, see supra Section II.B, he argues that they merely constitute additional particular instances of ineffective assistance of counsel that do not fundamentally alter the claim raised on direct appeal. However, as with the claims of prosecutorial conduct discussed previously, a general allegation of ineffective assistance of counsel is not sufficient to alert a state court to separate specific instances of ineffective assistance. See Picard, 404 U.S. at 275–78, 92 S.Ct. 509.

C

The district court did not err in denying Wood's claim that his counsel failed to effectively assist him at sentencing. Specifically, Wood contends that his counsel failed to prepare and present evidence of his diminished capacity, failed to prepare him for his pre-sentence interview, and failed to assert his military service as a mitigating factor.

Wood argues that his counsel failed to properly marshal evidence of Wood's personality changes following head injuries and his social background, including his alcoholism and mental illness. However, information regarding each of these issues was put before the trial court. Evidence of Wood's reported head injuries was presented through Dr. Allender's testimony during the guilt stage of the trial. Dr. Allender testified that Wood's head injuries did not cause a significant behavioral change. Wood's head injuries were also discussed in the other mental health experts' Rule 11 reports. Counsel was not ineffective for failing to present additional evidence and argument at sentencing about Wood's head injuries because it had already been presented at trial. See Bell, 535 U.S. at 699–700, 122 S.Ct. 1843. Additional evidence of Wood's social background, including his history of substance abuse, was also presented at sentencing by Dr. Breslow, a psychiatric chemical dependency expert. Dr. Breslow reviewed Wood's medical and military records, statements from trial witnesses, and the mental-health evaluations prepared by Dr. Morris, Dr. Morenz, and Dr. Allender. He testified that Wood suffers from alcohol, stimulant, amphetamine, and cocaine dependencies. He explained that Wood's substance abuse had a profound effect on Wood's personality by impairing his judgment, making him more impulsive, and likely impacting his behavior at the time of the killings. Thus, counsel developed and presented this mitigating evidence in detail and the PCR court reasonably rejected Wood's claim.

Wood also argues that his counsel never requested or acquired an in depth neurological evaluation. However, the PCR court found that Wood's counsel requested a brain mapping test, on Dr. Breslow's recommendation, although that request was denied by the trial court. Counsel attempted to acquire the recommended evaluation and his failure to obtain it does not render his performance constitutionally ineffective.

The district court properly concluded that the PCR court reasonably denied Wood's ineffective assistance of counsel claim that his counsel failed to prepare him for his pre-sentence interview. Wood argues that he was not adequately prepared because he did not express remorse for his actions in his interview with the probation officer. But Wood included expressions of remorse in a letter delivered by counsel to the sentencing judge. The record also indicates that the court did not consider Wood's lack of remorse in the presentence report as a factor in his sentence. Therefore, Wood does not demonstrate prejudice from counsel's performance because he “has failed to show that the information relative to remorse contained in the pre-sentence report had any effect on the sentencing court's decision to impose the death penalty.” Clark v. Ricketts, 958 F.2d 851, 857–58 (9th Cir.1991).

The district court properly concluded that the PCR court reasonably denied Wood's ineffective assistance of counsel claim on the ground that his counsel did not explicitly present his military service as a mitigating factor in sentencing. Counsel presented Wood's military records for consideration by the trial court and the sentencing judge is presumed to have known and applied the law correctly, which meant giving consideration to this mitigating evidence.

The district court did not err in concluding that the PCR court reasonably denied Wood's claim that the cumulative effect of trial counsel's deficiencies entitles him to a new trial and sentencing proceeding. “Separate errors by counsel at trial and at sentencing should be analyzed together to see whether their cumulative effect deprived the defendant of his right to effective assistance.” Sanders v. Ryder, 342 F.3d 991, 1001 (9th Cir.2003) (citations omitted). Wood's assertion of cumulative error fails because his individual claims of his counsel's errors at trial and sentencing are not supportable, and they do not entitle him to relief even when aggregated.

D

The district court correctly denied Wood's claim that he was denied effective assistance of counsel because one of his appellate attorneys had an alleged conflict of interest, but did not withdraw from representation. Wood did not raise this particular ineffective assistance claim on direct appeal or in his PCR proceedings, so the district court dismissed it as unexhausted and procedurally defaulted.

IV

The district court properly denied Wood's claim that the state trial court erred by denying Wood's request for funding to obtain a neurometric brain mapping test. The district court dismissed this claim as procedurally defaulted because Wood did not fairly present it to the state courts. Wood contends that he properly exhausted this claim by presenting it to the Arizona Supreme Court on direct appeal and by presenting it in post-conviction proceedings. He also contends that the Arizona Supreme Court necessarily considered this claim during its independent sentencing review. Wood did not exhaust his claim on direct review. Wood discussed the denial of the funding request only in his description of the trial court's proceedings; he did not argue that the denial of the funding request violated his constitutional rights. This passing reference was not sufficient to fairly alert the Arizona Supreme Court to this claim. See Castillo v. McFadden, 399 F.3d 993, 1002–03 (9th Cir.2005).

Wood also did not properly exhaust this claim in post-conviction proceedings. Although Wood raised this claim in the PCR petition, he did not include it in his petition for review to the Arizona Supreme Court. Wood argues that he incorporated his PCR petition by reference into his petition for review before the Arizona Supreme Court. Again, as discussed in Part II.B of this opinion, this incorporation by reference was not a sufficient method of fairly presenting this claim to the Arizona Supreme Court. See Baldwin, 541 U.S. at 32, 124 S.Ct. 1347.

The Arizona Supreme Court's independent sentencing review did not serve to exhaust this claim. In capital cases, the Arizona Supreme Court independently reviews the facts that established the aggravating and mitigating factors in order to justify the sentence imposed. Correll v. Ryan, 539 F.3d 938, 951 (9th Cir.2008). However, this independent review does not necessarily exhaust all claims of constitutional error. See Moormann v. Schriro, 426 F.3d 1044, 1057–58(9th Cir.2005). We agree with the district court that the Arizona Supreme Court would not necessarily consider whether the trial court's denial of a funding request limited Wood's ability to present mitigating evidence.

V

Finally, the district court did not abuse its discretion by denying Wood's request for an evidentiary hearing, evidentiary development, and expansion of the record. During PCR proceedings, Wood requested, but did not receive, an evidentiary hearing on his ineffective assistance of counsel claims. The district court concluded that Wood may have diligently attempted to develop the factual basis for his claims, but the district court still denied these requests under 28 U.S.C. § 2254(e)(2) after determining that Wood had not alleged the existence of disputed facts which, if true, would entitle him to relief.

Wood contends that he was prejudiced by counsel's deficient handling of mental health evidence at the guilt and sentencing stages of trial. However, the record details counsel's performance, including his effort to investigate, prepare, and present a guilt-stage defense based on Wood's character trait of impulsivity. Therefore, Wood is not entitled to an evidentiary hearing because his ineffective assistance of counsel claims can be “resolved by reference to the state court record.” Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir.1998) (citations omitted). Furthermore, Wood is not entitled to an evidentiary hearing or additional discovery in federal court because this ineffective assistance of counsel claim is governed by 28 U.S.C. § 2254(d)(1), as it was adjudicated on the merits in the PCR proceedings. Review of such claims “is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011).

VI

For these reasons, we therefore affirm the district court's denial of Wood's habeas petition and request for an evidentiary hearing. AFFIRMED.
 

Wood v. Ryan, ___ F.3d ___ (9th Cir. 2014). (Sec. 1983)

Background: Death row inmate filed § 1983 action seeking information from state department of corrections regarding method of his execution. The United States District Court for the District of Arizona, Neil V. Wake, J., 2014 WL 3385115, denied inmate's motion for preliminary injunction, and he appealed.

Holding: The Court of Appeals, Thomas, Circuit Judge, held that preliminary injunction delaying inmate's execution until he received information was warranted. Reversed. Bybee, Circuit Judge, dissented and filed opinion.

THOMAS, Circuit Judge:

Joseph Wood (“Wood”) is scheduled to die by lethal injection on July 23, 2014. Wood seeks information from the Arizona Department of Corrections (“Department”) regarding the method of his execution, which the Department has not provided. Wood argues that, by withholding this information, the Department has violated his First Amendment rights. He seeks a preliminary injunction delaying his execution until he receives the information. The district court denied Wood's motion. Although we do not reach the ultimate merits of the case, we conclude that Wood has presented serious questions going to the merits of his claim, and that the balance of hardships tips sharply in his favor. We therefore reverse the district court's denial of the motion for a preliminary injunction.

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On April 30, the head of Arizona's Federal Public Defender's Capital Habeas Unit, Dale Baich, sent the Department the first of four letters inquiring about the method the Department would use to execute Wood. He asked first about the two-drug protocol, inquiring about how the Department chose the amounts to be used of both drugs, the name and manufacturer of both drugs, the source of the drugs, and the credentials of those who would administer them. He requested similar information concerning the Pentobarbital protocol and also asked how long the Department would plan to look for that drug.

The Department responded on May 6, indicating that it would use the new two-drug protocol on Wood if the warrant were granted, and that it had chosen the amounts of both drugs based on declarations and sworn testimony in “the Ohio Execution Protocol litigation.” It also indicated that the drugs would be domestically obtained and FDA-approved, although it would not release other identifying information, citing Arizona's confidentiality law, Ariz.Rev.Stat. § 13–757. It noted that the qualifications of the IV team had not changed since the Department updated its protocol in 2012 to “include assurances of the” team's qualifications. Finally, the Department added that it will “continue to look for a source of pentobarbital indefinitely.”

Baich responded on May 9. He again requested the drug manufacturer information, along with lot numbers and expiration dates for the two drugs. He also asked for copies of the actual documents in the Ohio litigation upon which the Department relied in devising its new protocol. Baich asked for clarification of the Department's claims that it would use the new two-drug protocol, but also continue to search for Pentobarbital. Finally, given the recent problematic execution in Oklahoma and past criticism of the Department by the district court in Arizona, Baich asked for the qualifications of the medical professionals who would perform the execution.

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Because we conclude that Wood has raised serious questions as to the merits of his First Amendment claim; that the balance of equities tips sharply in his favor; that he will face irreparable harm if the injunction is not granted; and that the injunction is in the public interest; we conclude that the district court abused its discretion in denying Wood's preliminary injunction request. We do not decide with certainty that a First Amendment right exists to the information Wood seeks, nor do we resolve the merits of the Plaintiffs' underlying § 1983 claim. We do, however, reverse the district court's denial of Wood's preliminary injunction motion. We grant a conditional preliminary injunction, staying Wood's execution until the State of Arizona has provided him with (a) the name and provenance of the drugs to be used in the execution and (b) the qualifications of the medical personnel, subject to the restriction that the information provided will not give the means by which the specific individuals can be identified. Once he has received that information, the injunction shall be discharged without more and the execution may proceed. REVERSED.

BYBEE, Circuit Judge, dissenting:

Arizona intends to execute Joseph R. Wood III on July 23, 2014. On the eve of his execution, Wood asserts a generalized First Amendment right of public access to information in the government's possession regarding the State's supplier of lethal drugs, its execution personnel, and the manner in which the State developed its lethal-injection protocol. Wood asks this court to stay his execution pending the resolution of his request for information. The majority not only finds that Wood's novel First Amendment argument will likely prevail, but also that he is entitled to a stay of his execution until the State complies. Both are unprecedented.

The majority's newfound right of access is a dramatic extension of anything that we or the Supreme Court have previously recognized, and it is in direct conflict with a very recent decision of the Eleventh Circuit, Wellons v. Comm'r, Ga. Dep't of Corr., No. 14–12663–P, 2014 WL 2748316, ––– F.3d –––– (11th Cir. June 17, 2014), and a recent decision of the Georgia Supreme Court, Owens v. Hill, 758 S.E.2d 794 (Ga.2014). The remedy is equally novel. Even if there were a First Amendment right of access, Wood would have no more right to the information than any other member of the public. It is unthinkable that if anyone else had brought this suit we would stop a lawful execution until the State yielded the information. The majority has charted a new course, one I cannot follow. I respectfully dissent.

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VII

The decision to inflict the death penalty is a grave and solemn one that deserves the most careful consideration of the public, the elected branches of government, and the courts. We must be cognizant that a life is at stake. But we cannot conflate the invocation of a constitutional right belonging to the public at-large—such as the First Amendment right of public access to certain proceedings and documents—with a policy judgment about if and when the death penalty ought to be imposed. In so doing, we usurp the authority of the Arizona legislature and disregard the instructions of the Supreme Court. The district court did not abuse its discretion when it denied Wood's request for a preliminary injunction. I would affirm the district court's judgment. I respectfully dissent.

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