Arizona inmate put to death by lethal injection

By JJ Hensley and Jim Walsh - Azfamily.com

May. 25, 2011

FLORENCE - An emotional Donald Beaty used his last words to apologize to the family of his victim, 13-year-old Christy Ann Fornoff, moments before he was put to death by lethal injection Wednesday at Arizona State Prison Complex-Florence. "I'm sorry, I'm sorry," Beaty, 56, said, his lips quivering as he lay on the death gurney awaiting the injection of a lethal three-drug cocktail. "God will let you see her again."

Beaty was convicted of the 1984 murder in Tempe of the young Phoenix Gazette newspaper carrier. After he died, Fornoff's family could be seen hugging and consoling each other.

"We are here to bring closure to the loss of our beloved daughter and sister, Christy Ann Fornoff," the victim's mother, Carol, said in a statement she read after the execution. "Her life was not in vain. Even in death, she has brought light to the darkness of evil that surrounded her when she was murdered."

Beaty was pronounced dead at 7:38 p.m., more than nine hours after his execution had initially been scheduled. When the lethal drugs were injected, Beaty almost immediately appeared to go sleep, letting out a large yawn. Beaty's execution had been delayed for most of the day Wednesday as his defense team tried to challenge the Arizona Department of Corrections' decision to substitute pentobarbital for sodium thiopental in the state's execution-drug formula.

Eight hours of legal debate took place in three cities - Phoenix, Washington, D.C., and San Francisco - before appeals were exhausted and final preparations were made for the execution. In arguing for a stay, Beaty's attorneys said more time was needed to determine if the last-minute drug substitution, which was announced late Tuesday, would infringe on Beaty's constitutional rights or constitute cruel and unusual punishment. They also suggested that corrections officials should have taken more time to train executioners in the use of pentobarbital, since it was not a part of the state's existing execution-drug protocol. One filing called the last-minute change "unconscionable."

Those arguments were first made before the Arizona Supreme Court on Wednesday morning, but the state's high court rejected them several hours later after meeting on the matter behind closed doors. Rejections continued throughout the afternoon: first in U.S. District Court, then twice at the 9th U.S. Circuit Court of Appeals. Meanwhile, the U.S. Supreme Court rejected two other legal arguments put forth to block the execution.

Final decision

In the end, the courts recognized the state's right to substitute pentobarbital for thiopental. One judge noted during oral arguments that pentobarbital already had been reviewed by other courts and approved for executions. Arizona Attorney General Tom Horne, meanwhile, called the daylong delay a "slap in the face" to the Fornoff family. By 6 p.m., however, prison officials were cleared to proceed with the execution after the U.S. Supreme Court declined to consider further appeals.

Disappearance

Fornoff disappeared on the evening of May 9, 1984, while collecting money on her newspaper-delivery route at a Tempe apartment complex. Her mother, who was accompanying her, had let her out of her sight just long enough to chat with a neighbor, and within hours, police were combing the complex with canine units as Fornoff's parents and neighbors knocked on doors.

Two days later, Beaty, the complex's maintenance man, was seen standing over Fornoff's body, which had been wrapped in a sheet and laid next to a garbage bin. Beaty told the man who saw him that he had just found the body and had already called police. But his story didn't add up. He had not called police when he said he did, for example. He was arrested May 22, 1984, and charged with murder and sexual assault.

Evidence linked Beaty to the crime. Fornoff's vomit was found in his closet, along with hairs that matched hairs found on the body.

Beaty's first trial ended in a hung jury, but during his second trial, prosecutors learned that a psychiatrist had been overheard saying that Beaty had confessed to the murder. Prosecutors took the matter to the Arizona Court of Appeals to overrule the doctor-patient privilege that would ordinarily attach to conversations between Beaty and the psychiatrist. The doctor was ordered to testify. On the stand, he testified that Beaty had not intended to kill the girl, but had put his hand over her mouth to muffle her screams and she suffocated on her own vomit. Beaty was found guilty and sentenced to death.

Finally at peace

Beaty was fed a last meal Tuesday night of a chimichanga, a double cheeseburger with fries, ice cream and a Diet Pepsi. Afterward, he was transported from the state's death row at the Eyman Complex to a holding cell at ASPC-Florence. He wasn't taken to the death chamber to prepare for his lethal injection until early Wednesday evening.

After Beaty was pronounced dead, the Fornoff family stood together before the media and said they felt at peace with the outcome. But the Fornoffs also said that, in hindsight, they do not condone the death penalty. When their daughter was murdered, a sentence of life without parole was not a legal option. "We pray for the family of Donald Beaty, as they too have suffered through the years," Carol Fornoff said.

Arizona Inmate Put to Death

By Julie Rose - MyfoxPhoenix.com

Wednesday, 25 May 2011

FLORENCE, Ariz. - After spending 27 years on death row, Donald Beaty has been put to death by lethal injection of a new drug. The drug was administered at 7:27 p.m. Wednesday, and 56-year-old Beaty was pronounced dead at 7:38 p.m.

Beaty was convicted of the rape and murder of 13-year-old Christy Ann Fornoff in 1984. She was a paper girl and a neighbor of Beaty -- at the time of her disappearance, he participated in the search for her, and feigned concern while attending the funeral.

His last words were: "I just want to say to the Fornoff family, I'm sorry, I'm sorry. God will let you see her again. Freddy, I love you, I kept my promise. Thank you for being here for me." Freddy is Beaty's brother, who was a witness. He tearfully mouthed 'I love you' to members of his family, and then turned to the Fornoffs and mouthed 'I'm sorry.'

The Fornoff family finally got an apology from their daughter's killer. Carol Fornoff told us that in 27 years, Beaty had never expressed regret or asked for forgiveness.

Beaty asked for a hefty last meal -- he had a beef chimichanga with salsa and guacamole, a double cheeseburger with all the fixings, fries, 14 ounces of rocky road ice cream, and a diet Pepsi.

The Fornoff family says they finally have peace -- an end to the nightmare -- one that almost didn't come. "We will be praying for his soul," said Carol Fornoff. "Because he is a human being... it has been such a tough time for just hoping and thinking and hoping that it will be over."

Last-minute bids for appeal and defense attorneys' concern over a new drug cocktail put the execution on hold Wednesday morning. It was originally scheduled for 10 a.m. Lawyers questioned whether the new drug rushed proceedings and made for "cruel and unusual punishment." They wanted extra time to test out the drug, but courts rejected those pleas.

Beaty's execution is the second in Arizona this year. There are 127 inmates sitting on Arizona's death row.

Arizona executes convicted child killer

By David Schwartz - Reuters.com

May 26, 2011

PHOENIX (Reuters) - An Arizona apartment complex custodian was put to death by lethal injection on Wednesday for the 1984 rape and murder of a 13-year-old girl, after a flurry of last-minute court appeals failed, prison officials said. Donald Edward Beaty, 56, died at 7:38 p.m. local time at a state prison in Florence, Arizona, officials said, in an execution delayed for more than nine hours by a legal dispute over one of the drugs used to kill him.

Beaty, convicted of killing newspaper carrier Christy Ann Fornoff, had won a temporary stay from the Arizona Supreme Court after his lawyers objected to the last-minute substitution of a drug to be used in the lethal-injection mix. But the court lifted the stay after conducting a special hearing on Wednesday morning, rejecting arguments that the state breached Beaty's constitutional due process rights and protections against cruel and unusual punishment. Petitions to the 9th U.S. Circuit Court of Appeals and the U.S. Supreme Court were unsuccessful.

With his last words, Beaty apologized to the murder victim's parents. He told them "God will let you see her again," Barrett Marson, an Arizona Department of Corrections spokesman said Marson added that Beaty was "very emotional" and difficult to understand. Beaty's final meal included a double cheeseburger, a shredded beef chimichanga and rocky road ice cream.

Arizona switched the sedative in the three-drug "cocktail" it planned to administer to Beaty from sodium thiopental to pentobarbital on Tuesday after federal officials said the state failed to fill out a required form to bring the substitute drug into the country. Sodium thiopental, which renders the prisoner unconscious, has been at the center of a debate over appropriate execution drugs. Supplies have become scarce in the United States, and efforts to buy stocks overseas have stirred controversy and been turned down flat by some manufacturers.

Beaty was convicted of snatching Fornoff from her newspaper route in Tempe, Arizona, in May 1984. He sexually assaulted her, then suffocated her in what was then one of the state's more sensational criminal cases. Court records said he kept the body inside his apartment for two days. She was later found wrapped in a sheet behind a dumpster there.

A jury deadlocked in Beaty's first trial. He was convicted of murder and sexual assault when a psychologist testified that he confessed to the killing in a group therapy session. In last-ditch appeals, Beaty's lawyers unsuccessfully maintained his life should be spared because he did not have effective legal representation.

He is the second inmate executed in Arizona this year, and the 26th since the death penalty was reinstated there in 1992. Nineteen people have been executed in the United States so far this year, according to the Death Penalty Information Center.

Donald Edward Beaty

On May 9, 1984, thirteen-year-old Christy Ann Fornoff disappeared at a Tempe, Arizona apartment complex while making collections for her newspaper route. Donald Beaty, a maintenance person for the complex, actively assisted the police in searching for Christy Ann. Although the police located her collection book near the complex, she was nowhere to be found.

In the early morning of May 11, Joseph Kapp, a tenant, encountered Beaty while throwing out his trash. Beaty told Kapp that he had found a body behind the dumpster and that he had called the police. Kapp observed the body, spoke with Beaty for a few minutes, and then returned to his apartment. The police later arrived and determined that the body was Christy Ann's.

A medical examiner concluded that Christy Ann had been asphyxiated by smothering and that she had been sexually assaulted, either contemporaneously with or shortly after her death. The examiner also opined that she had died within two hours of her disappearance. The police focused their investigation upon Beaty. Vomit smeared on the body matched a substance found in Beaty's closet. The blood, semen, and hair found on the body was consistent with Beaty's. Hair found on Beaty's closet carpet, couch, bedroom, and bathroom was consistent with Christy Ann's. Fibers found on the body matched Beaty's carpet and a blanket in his bedroom. Ferret hair was found on the body; the tenant who lived in Beaty's apartment a few months prior to the murder owned a ferret.

Police records showed that Beaty had called the police at 5:52 a.m. According to Kapp, he had returned to his apartment at 5:50 a.m. The timing suggested that Beaty had lied to Kapp about having called the police. The police also speculated that Beaty had moved the body after speaking with Kapp. Robert Jark drove his truck in front of the dumpster at approximately 4:50 that morning. As with Kapp, Jark was sure that a body was not visible from in front of the dumpster. However, when the police arrived, the body stuck out noticeably beyond the dumpster's edge.

Beaty told police that he was with George Lorenz, a tenant, at the time Christy Ann disappeared, and that Teresa Harder, another tenant, saw them together. However, Lorenz denied being with Beaty that night, and Harder similarly denied seeing them together. Beaty also claimed that the police had searched his apartment the night Christy Ann disappeared. However, the two officers who searched the complex claimed that they did not enter Beaty's apartment. Finally, the police found it suspicious that Beaty had attempted, unsuccessfully, to borrow a friend's car at 11:30 p.m. the night after Christy Ann disappeared. The police speculated that Beaty wanted to borrow a car to move the body.

On May 21, 1984, Beaty was arrested and charged with Christy Ann's murder and sexual assault. A day later, Dr. George O'Connor, a prison psychiatrist, met with Beaty for about an hour. O'Connor routinely met with newly admitted, high-profile inmates to determine whether they were a threat to themselves. The record does not reveal much about their conversation. O'Connor apparently inquired whether Beaty felt depressed and whether he wished to talk with someone on a regular basis. O'Connor and Beaty also discussed a medical problem Beaty was having with his foot and Beaty's family's reaction to his arrest. After the conversation, O'Connor concluded that Beaty was not suffering from any significant psychiatric problems. Nonetheless, O'Connor decided that he would occasionally drop by and check up on him. The following day, O'Connor spoke with Beaty about his foot and arranged for him to be seen by an orthopedic doctor. The record does not reveal whether O'Connor and Beaty discussed anything other than Beaty's foot problem.

Approximately two months later, O'Connor recommended transferring Beaty from the main jail to the jail's psychiatric facility. O'Connor's supervisor approved the recommendation, and Beaty did not object to the transfer. Several factors motivated O'Connor's recommendation to transfer Beaty. First, Beaty needed space to rehabilitate his injured foot. Beaty had been confined to his cell from the time of incarceration because of several death threats from other inmates. Second, the jail's psychiatric facility offered a safer place for Beaty because it was isolated from the jail's general population. Third, Beaty was becoming increasingly agitated and depressed, perhaps because of his confinement to his cell.

Indeed, Beaty underwent a hunger strike, and he also repeatedly complained that inmates were harassing him. The record is unclear as to the nature and the extent of the treatment Beaty received while at the psychiatric unit. In any event, Beaty participated in a “counseling group” moderated by O'Connor. The group consisted of five female and five male inmates, including Beaty. The purpose of the group was to foster respect between male and female inmates by bringing them together in a small group. O'Connor described the group's purpose as “bringing men and women prisoners together to explore the difficulties that they may have had in interrelating with members of the opposite sex in their personal lives.” O'Connor chose Beaty for the group. while Beaty had the option of not participating, he likely would have been transferred back to the main jail if he had refused. Beaty, along with the rest of the group participants, signed a document entitled “Interpersonal Relationships Group Contract.” The document stated that any information disclosed to the group would be kept confidential. Specifically, it stated, “I understand that all group communication is confidential and therefore group business cannot be discussed outside of group. Only in this way can I feel free to express my feelings.”

The group met twice a week and each session lasted between an hour and an hour-and-a-half. During these sessions, group members occasionally harassed Beaty regarding the nature of his crime. In particular, some group members called him “cold blooded.” After a few weeks, Beaty approached O'Connor at the end of a session. It was about five to ten minutes after the session had formally ended, but some of the group was still milling around. Beaty and O'Connor were conversing casually. when Beaty suddenly complained that the group had unfairly labeled him a “terrible thing.” He told O'Connor that he did not mean to kill Fornoff. He explained that he accidentally suffocated her when he put his hand over her mouth to muffle her screams.

While O'Connor was surprised by Beaty's confession, he described the statement as an “overflow of feelings from that particular group.” O'Connor did not immediately disclose Beaty's confession to anyone, and the case proceeded to trial. The state's case rested primarily on the physical evidence tying Beaty to the crime. The state also stressed the events surrounding Beaty's discovery of the body and the fact that two witnesses discredited his alibi. Beaty, in turn, attacked the reliability of the state's physical evidence. He stressed that Kapp had been playing a “drinking game” that morning. Beaty suggested that another unknown tenant committed the murder and he faulted the police for not thoroughly investigating the other tenants. Finally, Beaty emphasized that he had actively assisted the police in searching for Fornoff the night she disappeared.

On March 18, 1985, the trial court declared a mistrial after the jury deadlocked ten to two in favor of guilt. On May 8, 1985, Beaty's second trial commenced. Two days later, O'Connor went to state court to testify in an unrelated case. While waiting to testify, O'Connor spoke casually with a detention officer. During the course of the conversation, O'Connor disclosed Beaty's confession. The prosecution quickly learned about the conversation and contacted O'Connor. O'Connor refused to testify but, after an evidentiary hearing, the trial court ordered him to do so.

During the second trial, the state presented much of the same evidence as it had offered at the first trial, but with the addition of O'Connor's testimony. The jury unanimously found Beaty guilty of first degree murder and sexual assault. The judge thereafter conducted a sentencing hearing without a jury. The judge imposed the death penalty after finding one aggravating circumstance and no mitigating circumstances. Specifically, the judge found that the murder was committed in an especially cruel, heinous, or depraved manner. The judge also sentenced Beaty to a consecutive twenty-eight-year term for sexual assault.

Christy Ann's parents, Carol and Roger Fornoff, became involved in victims support groups such as Parents of Murdered Children and created "Christy's House in the Pines," a mountain retreat for victims' family members. They also worked for the passage of a Victim's Bill of Rights in Arizona in 1990. They described Christy Ann as a "dream child" and decorated their cabin with butterflies, which remind them of Christy.

UPDATE:

An emotional Donald Beaty used his last words to apologize to the family of his victim, 13-year-old Christy Ann Fornoff, moments before he was put to death by lethal injection Wednesday at Arizona State Prison Complex-Florence. "I'm sorry, I'm sorry," Beaty, 56, said, his lips quivering as he lay on the death gurney awaiting the injection of a lethal three-drug cocktail. "God will let you see her again." After the execution, Fornoff's family spoke to the media. "We are here to bring closure to the loss of our beloved daughter and sister, Christy Ann Fornoff," said the victim's mother, Carol. "Her life was not in vain. Even in death, she has brought light to the darkness of evil that surrounded her when she was murdered."

State v. Beaty, 158 Ariz. 232, 762 P.2d 519 (Ariz. 1988). (Direct Appeal)

Defendant was convicted in the Superior Court, Maricopa County, No. CR–140790, Rufus C. Coulter, J., of first-degree murder and sexual assault committed while on probation or parole for prior felony conviction. Defendant appealed and also sought review of denial of petition for postconviction relief alleging ineffective assistance of counsel. The Supreme Court, Cameron, J., held that: (1) statements defendant made to psychiatrist employed by county jail were admissible; (2) aggravating circumstances warranted imposition of death penalty; (3) death penalty statute was not unconstitutional; and (4) defense counsel was not ineffective. Affirmed.

CAMERON, Justice.

I. JURISDICTION

Defendant Donald Edward Beaty appeals from verdicts and judgments of guilt for the crimes of first-degree murder (A.R.S. § 13–1105(A)(1)) and sexual assault (A.R.S. § 13–1406). Defendant also seeks review of the denial of his petition for post conviction relief, Ariz.R.Crim.P. 32, alleging ineffective assistance of counsel. We have jurisdiction pursuant to Ariz. Const. art. 6 § 5(3) and A.R.S. §§ 13–4031, –4033, and –4035.

II. QUESTIONS

We must answer the following issues: 1. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN REFUSING TO EXCLUDE TESTIMONY OF DEFENDANT'S STATEMENTS TO DR. O'CONNOR BECAUSE: a. The statements were protected by the physician-patient privilege? b. The statements were not voluntarily made? c. The statements were made in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1062, 16 L.Ed.2d 694 (1966)? 2. DID THE TRIAL COURT ERR IN DENYING DEFENDANT'S MOTION IN LIMINE TO BAR THE ADMISSION OF PHOSPHOGLUCOMUTASE (PGM) TEST RESULTS? 3. DID THE TRIAL COURT ERR UNDER A.R.S. § 13–703(D) IN IMPOSING THE DEATH PENALTY? 4. DID THE TRIAL COURT ERR IN CONSIDERING VICTIM IMPACT EVIDENCE AT THE SENTENCING PHASE OF THE TRIAL? 5. DID THE TRIAL COURT ERR IN IMPOSING CONSECUTIVE SENTENCES FOR MURDER AND SEXUAL ASSAULT? 6. DID THE TRIAL COURT ERR BY FAILING TO STATE ON THE RECORD OR IN ITS SPECIAL VERDICT THAT IT FOUND THE EXISTENCE OF AGGRAVATING FACTORS TO HAVE BEEN PROVEN BEYOND A REASONABLE DOUBT? 7. IS ARIZONA'S DEATH PENALTY STATUTE A.R.S. § 13–703 UNCONSTITUTIONAL BECAUSE: a. The statute fails to require the trial court to support its findings in the special verdict? b. The statute fails to require the prosecution to prove beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors? c. The statute mandates that a death sentence be imposed whenever the court finds one aggravating and no mitigating circumstances regardless of the trial court's belief that a death sentence is unwarranted under the facts of the case? d. The statute allows inadequate standards to be utilized by the trial court in balancing aggravating circumstances against mitigating circumstances? e. The appellant is denied his sixth amendment right to a jury trial on the issues of the existence or nonexistence of both aggravating and mitigating circumstances as well as on the issue of the propriety of a death sentence? 8. WAS THE DEATH PENALTY IN THIS CASE PROPORTIONAL TO OTHER DEATH SENTENCES FOR CRIMES OF A LIKE NATURE? 9. WAS DEFENDANT'S MOTION FOR POST CONVICTION RELIEF DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL PROPERLY DENIED?

III. FACTS

The victim, Christy Ann Fornoff, a 13–year–old female newscarrier for the Phoenix Gazette, disappeared on 9 May 1984 while attempting to collect her newspaper accounts at the Rock Point Apartments in Tempe, Arizona. The victim's mother had accompanied her and waited outside the apartment complex while the victim went inside. The victim did not return. A search of the apartment complex took place. The victim's collection book was discovered by a fence near the complex, but the victim was not found.

Two days later, Donald Edward Beaty, the defendant and resident maintenance manager at the apartment, reported to the Tempe police that he had found the victim's body near a trash container in the parking lot of the apartment complex. The body was wrapped in a white sheet. Evidence was collected, including pubic hairs and fibers that were consistent with the pubic hairs of the defendant and fibers found in the apartment of the defendant. There was also a vomit-like substance on the victim's face and the sheet which matched vomit found in defendant's apartment. From the autopsy it appeared that the victim lost consciousness due to asphyxiation and never regained it before she died. The autopsy also indicated that the victim was sexually assaulted either contemporaneous with or shortly after death.

Defendant's first trial began 29 January 1985 and ended on 18 March 1985 with a mistrial when the jury was unable to arrive at a unanimous verdict. The defendant's second trial began on 8 May 1985 and ended on 20 June 1985. Retrial involved most of the same evidence presented in the first trial, some additional evidence and the testimony of Dr. George O'Connor, given over defendant's objection.

The jury convicted defendant of one count of first-degree murder and one count of sexual assault. The trial judge imposed the death penalty for murder finding one aggravating circumstance and no mitigating circumstances. A.R.S. § 13–703. The judge also imposed an aggravated, enhanced sentence of 28 years imprisonment for the sexual assault. The court then ordered that the latter be served consecutively to the sentence imposed on the murder count. At the sentencing phase of the trial, the judge received victim impact statements from various sources. After filing a notice of appeal, the defendant filed a petition for post conviction relief, pursuant to Ariz.R.Crim.P. 32, alleging ineffective assistance of counsel at trial. The appeal was stayed pending the outcome of the Rule 32 proceeding. Ariz.R.Crim.P. 31.4(a)(1). The trial court denied relief and defendant petitioned this court for review. The appeal and the petition for review were consolidated pursuant to Ariz.R.Crim.P. 31.4(b)(2).

IV. ISSUES

1. ADMISSIBILITY OF DR. O'CONNOR'S TESTIMONY

Dr. O'Connor is a psychiatrist employed by the Maricopa County Jail which houses adult inmates. He first contacted the defendant shortly after his arrest as part of a routine check on the prisoners. Dr. O'Connor referred the defendant for orthopedic surgery on his foot and prescribed pain medication. No major psychiatric problems were noted. In August, the defendant was transferred from the main jail to the hospital unit at Durango. The transfer was made partly because prison officials thought that his foot would heal better at Durango, where he would have access to an outside yard where he could exercise. Dr. Jack Potts, also a psychiatrist, was to be his treating physician for the foot injury. The move was also made to put him in an area where his safety could be better protected because he was being harassed by other prisoners at the main jail.

Defendant was not transferred to receive psychiatric treatment. Even though the Durango facility offered group therapy sessions and individual counseling sessions on Mondays, Wednesdays and Fridays, defendant did not attend these sessions. The defendant did, however, participate in group counseling sessions involving five women and four other men on Tuesdays and Thursdays. The purpose of these sessions was to see if by bringing prisoners closer together they would not see each other as sex objects, but rather as human beings and become more respectful toward one another. The facility had previously had problems with inmates creating disturbances by yelling profanities back and forth. The defendant was asked to volunteer because he had been displaying adolescent-type behavior toward the female inmates. The group was experimental and organized as a research project for Dr. O'Connor, although the leaders hoped it would be beneficial to the participants. Dr. O'Connor testified that he was not treating the defendant in particular during the sessions. Rather, it was a group activity for all ten people. Testimony during the trial revealed that:

A. [By Dr. O'Connor] In the jail, most of the male inmates tend to become extremely lax in their attitudes, especially their behavior when they are around female staff members, personnel and other female inmates that they may meet going back and forth to Court. They can get quite vulgar and profane. It was our hope to experiment and see if we brought them into a closer proximity, closer contact, that they could then start to have a feeling that, indeed, that that was not simply a sex object over there but a human being, and become more respectful. What we were hoping to show was that the consequence to that type of group activity, there [would] be a great assemblance of respect and dignity in our unit, and we were hoping to extrapolate that to the entire jail. * * * Q. [By Mr. Thurston] Your testimony is that it was or wasn't treatment? What were you treating Mr. Beaty for? A. I wasn't treating Mr. Beaty in particular at that particular time. It was a group activity for all ten of the people.

Prior to participating in this group counseling, the defendant signed a document entitled: “Interpersonal Relationships Group Contract” Please read the following guidelines and sign below. 1. I will attend each group meeting unless I have other “official” committments e.g. court because I am an important part of this group; I AM this group. 2. I have the ability to observe my own behavior; I can distinguish my actions as [appropriate] or inappropriate. Should I choose to behave inappropriately, I will be asked to leave the group. 3. I understand that all group communication is confidential and therefore group business cannot be discussed outside of group. Only in this way can I feel free to express my feelings. 4. I am committed to myself, and therefore to this group to learning about myself, my feelings and my behavior about relationships. I understand that growth will come from examining my thoughts, feelings and behavior in my relationships. Finally I accept the responsibility of being good to myself. I, Donald E. Beaty have read the guidelines listed above and I agree to follow them as a group member. [s] Donald Beaty 722862 Name 11–15–84 Date I, Lilly Epler understand that my job as therapist is to assist Don with his/her growth in relationships, I am personally committed to this goal with Donald Beaty. [s] Lilly Epler Name Nov. 15, 1984 Date

After one of the sessions had ended, some of the members, including the defendant, stood in line to wait to talk to Dr. O'Connor. When it was the defendant's turn, he told Dr. O'Connor that he had suffocated the victim. Dr. O'Connor testified: [That] Mr. Beaty approached me and said that he did not feel that he was the terrible thing that people, meaning the group members, had accused him of being; that he did not mean to kill the little Fornoff girl; that she had become rather loud, I [believe] implicated that her mom was just outside or downstairs and that he then motioned as if to show me that he went to muffle her, keep her from screaming by muffling her by putting his hand over her face.

Dr. O'Connor testified further: Q. [By Mr. Thurston] And at the time that the statements were made, what room were you in out there? A. [By Dr. O'Connor] It would be part of the physical plant called the multi-purpose room, it's a very large center area. It would be like an atrium. Q. Approximately how long after the conclusion of the experimental research session was it that Mr. Beaty was making the statements? A. I don't remember exactly, it would have been within minutes, could have been 15 minutes. Q. And at the time that the statements were made, were there other persons present? A. Oh, there were other people present. Q. Okay. And besides yourself and Mr. Beaty, who else? A. Probably some of the detention guards and various of the ten-people-group that tended to cluster around after the group to get our attention and ask for medication increases or whatever.

a. Physician–Patient Privilege

Defendant first contends that his statements to Dr. O'Connor were protected by the physician-patient privilege. The trial court admitted Dr. O'Connor's testimony by finding that no privilege existed.FN1 FN1. The trial court based its decision on the exception to the physician-patient privilege in A.R.S. § 13–3620. Because we find that the privilege did not exist, we need not consider this exception. We do not believe under the facts in this case, that the defendant's statements to Dr. O'Connor were protected by the physician-patient privilege. In Arizona, the physician-patient privilege statute provides that:

A person shall not be examined as a witness in the following cases: * * * 4. A physician or surgeon, without consent of his patient, as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient. A.R.S. § 13–4062(4) (1983).

The purpose of the physician-patient privilege is to insure that patients will receive the best medical treatment by encouraging full and frank disclosure of their medical history and symptoms to their doctors. Lewin v. Jackson, 108 Ariz. 27, 31, 492 P.2d 406, 410 (1972). To be privileged, information must be acquired by the physician in an examination or consultation with the patient under circumstances in which it is intended that the communication be private and confidential. M. UDALL & J. LIVERMORE, ARIZONA PRACTICE: LAW OF EVIDENCE § 75 at 144 (2d ed. 1982).

The statute applies only if all of its elements are met. First, the patient must not consent to the testimony. Second, the witness must be a physician or surgeon. Third, the information was imparted to the physician while he was attending the defendant. Finally, the information must be necessary to enable the physician to prescribe or act for the treatment of the defendant.

In the instant case, the defendant (patient) did not consent. Under the statute, a psychiatrist is treated as a physician. State v. Vickers, 129 Ariz. 506, 511, 633 P.2d 315, 320 (1981), rev'd on other grounds, Ricketts v. Vickers, 798 F.2d 369 (9th Cir.1986) (habeas corpus proceeding), cert. denied, 479 U.S. 1054, 107 S.Ct. 928, 93 L.Ed.2d 980 (1987). Thus the first two elements have been met. We do not find, however, that the information was given while Dr. O'Connor was attending the defendant or that the information was necessary to enable Dr. O'Connor to treat the defendant. The defendant's statements were made outside the counseling session. As Dr. O'Connor stated, “I wasn't treating Mr. Beaty in particular at that particular time. It was a group activity for all ten of the people.”

Also, the statements were made in the presence of others. The presence of third parties can eliminate the confidential character of the interview and destroy the privilege. As we have stated: For information acquired by a physician to be privileged it must have been acquired under circumstances from which it appears that the examination was intended to be privileged. Cf. Wigmore on Evidence, Third Edition, Vol. VIII. para. 2381. When third persons are casually present their very presence neutralizes the confidential character of the interview and the privilege should not attach. State v. Thomas, 78 Ariz. 52, 63, 275 P.2d 408, 416 (1954), overruled in part on other grounds, State v. Pina, 94 Ariz. 243, 383 P.2d 167 (1963). We do not believe the physician-patient privilege (A.R.S. § 13–4062(4)) applies.

b. Involuntariness of defendant's statement

Defendant next claims his statements to Dr. O'Connor were involuntary because they were induced by a promise of confidentiality. The defendant claims that the Interpersonal Relationships Group Contract he signed contained a promise that makes his inculpatory statements to Dr. O'Connor involuntary. He claims that he only spoke to Dr. O'Connor because he believed all his communications with the psychiatric staff were confidential. We do not agree.

The defendant's inculpatory statements were not regarding group business nor were they given during the group session. The statements were not induced or coerced by defendant's membership in the group. They were unrelated to the group sessions and were spontaneously made.

c. Miranda Warnings

Defendant next contends that his statements to Dr. O'Connor were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Defendant asserts that the statements were elicited purely for correctional or law enforcement purposes in violation of Miranda. Defendant contends that the use of jail psychiatrists as a source of inmate confession evidence is the type of interrogation requiring that Miranda warnings be given. Defendant cites State v. Vickers, 129 Ariz. 506, 633 P.2d 315 (1981), rev'd on other grounds, Ricketts v. Vickers, 798 F.2d 369 (9th Cir.1986) (habeas corpus proceeding), cert. denied, 479 U.S. 1054, 107 S.Ct. 928, 93 L.Ed.2d 980 (1987) and Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), as support for his position. We do not believe that the cases apply. In Vickers, the defendant was custodially interrogated for the purpose of conducting a mental status examination. The psychologist did, however, question Vickers about the crime and obtained a confession without first advising the accused of his Miranda rights. The United States Supreme Court dealt with the same issue in Estelle in 1981. In that case, the trial court had appointed a psychiatrist to examine the defendant's competency to stand trial, and for 90 minutes the psychiatrist specifically questioned him concerning the commission of the crime itself. Estelle, 451 U.S. at 457, 101 S.Ct. at 1870. The Supreme Court held that the examiner's failure to advise the defendant of his Miranda rights precluded the use of his testimony for purposes other than to establish competency to stand trial. Estelle, 451 U.S. at 468, 101 S.Ct. at 1876.

In both of these cases, the medical person specifically questioned the accused concerning the commission of a crime. In the instant case, the defendant's statements were spontaneous and not the result of interrogation. Statements volunteered by defendant and not prompted by the interrogation are admissible. Miranda, 384 U.S. at 478, 86 S.Ct. at 1630; State v. Carter, 145 Ariz. 101, 106, 700 P.2d 488, 493 (1985). We believe that where the statements are entirely spontaneous, and are not solicited by questions or acts reasonably likely to elicit a confession, Miranda warnings are not a prerequisite for admissibility.

2. PGM TEST RESULTS

The state took blood samples from the defendant. From these samples, slides were made and a phosphoglucomutase (PGM) analysis was made. No photographs of the slides were taken and the slides were destroyed. The blood samples were, however, preserved and defendant's expert was provided with samples for testing. Defendant argues that since the prosecution's expert destroyed the slides from which he made a PGM analysis, and failed to photographically preserve the results of his testing procedure, exculpatory evidence in a processed form was destroyed and prevented the defendant from challenging the forensic procedure of electrophoresis. Defendant asserts that the trial court improperly denied a motion in limine to exclude testimony and test results of the identification and grouping of dried blood stains. We do not agree.

The state has an affirmative duty to preserve evidence which might be expected to play a significant role in a suspect's defense. State v. Escalante, 153 Ariz. 55, 60, 734 P.2d 597, 602 (App.1986) (citing California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)); State v. Youngblood, 153 Ariz. 50, 52, 734 P.2d 592, 594 (App.1986), cert. granted, Arizona v. Youngblood, 485 U.S. 903, 108 S.Ct. 1072, 99 L.Ed.2d 232 (1988); State v. Mitchell, 140 Ariz. 551, 555, 683 P.2d 750, 754 (App.1984). Moreover, when such evidence can be collected and preserved by the state, failure to preserve the evidence is tantamount to prosecutorial suppression of the evidence, even though the loss of the evidence is inadvertent and not the result of bad faith. Escalante, 153 Ariz. at 60, 734 P.2d at 602. Additionally, if the evidence is not preserved, the case may be dismissed. Youngblood, 153 Ariz. at 55, 734 P.2d at 597.

With regard to this position, the United States Supreme Court as recently as 1984 dealt with the issue of preservation of evidence in breath sample analysis test results used at trial. California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). In that case, the United States Supreme Court ruled that the due process clause of the fourteenth amendment did not require that law enforcement agencies preserve breath samples in order to introduce the results at trial. Trombetta, 467 U.S. at 491, 104 S.Ct. at 2535.

In applying this rationale to the slides used to analyze semen and blood samples, under the United States Constitution, the defendant's right to analyze the samples was not abridged. Likewise, under the rules set forth in Arizona, defendant had a right to analyze the sample, but not necessarily the specific slides.

Since in the instant case the samples were frozen, retained, and delivered to the defense's expert for analysis, we believe there was no denial of due process through destruction of the slides used by the state's expert. Moreover, defendant was not denied the opportunity to impeach the state's expert or procedure, since defendant had an opportunity to independently analyze the samples and cross-examine the witness. We find no error in the trial court's denial of the motion in limine.

Defendant goes further, however, and contends that the PGM test failed to meet the test for admissibility of evidence based upon the application of a new scientific technique under Frye v. United States, 293 F. 1013 (D.C.Cir.1923). We do not agree. PGM or blood grouping tests are a well-recognized and admissible means for identification of blood semen samples. See generally State v. Escalante, 153 Ariz. 55, 734 P.2d 597 (App.1986); State v. Youngblood, 153 Ariz. 50, 734 P.2d 592 (App.1986), cert. granted, Arizona v. Youngblood, 485 U.S. 903, 108 S.Ct. 1072, 99 L.Ed.2d 232 (1988); State v. Mitchell, 140 Ariz. 551, 683 P.2d 750 (App.1984). We find no error.

3. WAS THE DEATH PENALTY PROPERLY IMPOSED?

We have the duty to independently review the existence of aggravating or mitigating circumstances and to determine whether the death penalty was improperly imposed or should be reduced to life. State v. Roscoe, 145 Ariz. 212, 226, 700 P.2d 1312, 1326 (1984), cert. denied, Roscoe v. Arizona, 471 U.S. 1094, 105 S.Ct. 2169, 85 L.Ed.2d 525 (1985); State v. Richmond, 114 Ariz. 186, 196, 560 P.2d 41, 51 (1976), cert. denied, Richmond v. Arizona, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1101 (1977). The state bears the burden of proving the existence of aggravating circumstances beyond a reasonable doubt. A.R.S. § 13–703(C); State v. Jordan, 126 Ariz. 283, 286, 614 P.2d 825, 828, cert. denied, Jordan v. Arizona, 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980).

Defendant was found guilty of one count of first-degree murder and one count of sexual assault. The trial judge by special verdict, A.R.S. § 13–703(D), found as an aggravating circumstance that the murder was committed in an especially cruel, heinous or depraved manner, and because he found no mitigating circumstances sufficiently substantial to outweigh this aggravating circumstance, sentenced the defendant to death.

Defendant contends that the trial court improperly imposed the death penalty by finding the existence of the aggravating factor of a cruel, heinous, or depraved murder. A.R.S. § 13–703(F)(6) establishes as an aggravating circumstance the fact that a defendant commits a murder in an especially cruel, heinous, or depraved manner. These terms are considered disjunctive; the presence of any one of three factors is an aggravating circumstance. State v. Correll, 148 Ariz. 468, 480, 715 P.2d 721, 733 (1986).

a. Cruelty

Cruelty is manifested by a murder “disposed to inflict pain esp. [especially] in a wanton, insensate or vindictive manner: sadistic.” State v. Knapp, 114 Ariz. 531, 543, 562 P.2d 704, 716 (1977), cert. denied, Knapp v. Arizona, 435 U.S. 908, 98 S.Ct. 1458, 55 L.Ed.2d 500 (1978). Cruelty involves the pain and suffering of the victim, including any mental distress suffered prior to death. State v. Castaneda, 150 Ariz. 382, 393, 724 P.2d 1, 12 (1986); State v. Bracy, 145 Ariz. 520, 537, 703 P.2d 464, 481 (1985), cert. denied, Bracy v. Arizona, 474 U.S. 1110, 106 S.Ct. 898, 88 L.Ed.2d 932 (1986). Thus, to suffer pain or distress, the victim must be conscious at the time the offense is committed. If the evidence is inconclusive on consciousness, the factor of cruelty cannot exist. State v. Gillies, 135 Ariz. 500, 513, 662 P.2d 1007, 1020 (1983), cert. denied, Gillies v. Arizona, 470 U.S. 1059, 105 S.Ct. 1775, 84 L.Ed.2d 834 (1985). In the instant case the evidence showed that there was the presence of vomit in the girl's mouth. Surely the process of holding the victim against her will, clamping a hand over her mouth to muffle her screams, thus causing her to vomit reflects the terror and horror that must have been present in the victim's mind. We find the presence of cruelty.

b. Heinous and Depraved

A murder is especially heinous if it is “hatefully or shockingly evil.” Knapp, 114 Ariz. at 543, 562 P.2d at 716. A murder is depraved if “marked by debasement, corruption, perversion or deterioration.” Knapp, 114 Ariz. at 543, 562 P.2d at 716. The terms, “heinous” and “depraved,” focus upon a defendant's state of mind at the time of the offense, as reflected by his words and acts. State v. Summerlin, 138 Ariz. 426, 436, 675 P.2d 686, 696 (1983).

This court has set forth five factors to determine the existence of heinous or depraved conduct: 1. relishing of the murder by the defendant; 2. the infliction of gratuitous violence on the victim beyond that necessary to kill; 3. mutilation of the victim's body; 4. the senselessness of the crime; and 5. helplessness of the victim. State v. Gretzler, 135 Ariz. 42, 52–53, 659 P.2d 1, 11–12, cert. denied, Gretzler v. Arizona, 461 U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983).

In finding that a killing was especially heinous or depraved, we have said: The victim in this case is 78 years old. She had limited mental capabilities and was easily manipulated. She was helpless at the hands of appellant. He could have accomplished whatever criminal goals he desired without killing her.... We find that by sexually assaulting Winifred Duggan and senselessly killing her, knowing full well that by virtue of her advanced age and limited mental capabilities she was easy prey, appellant demonstrated a shockingly evil and corrupt state of mind. State v. Zaragoza, 135 Ariz. 63, 69–70, 659 P.2d 22, 28–29, cert. denied, Zaragoza v. Arizona, 462 U.S. 1124, 103 S.Ct. 3097, 77 L.Ed.2d 1356 (1983).

This court has also stated that in application of these standards to the rape and murder of a young girl: Abduction, violent sexual penetration and strangulation of a helpless seven year old child are circumstances that lead to only one conclusion. The senseless killing and the entire nature of the attack are repugnant to a civilized society. The elements of a heinous crime and a depraved state of mind are present. State v. Roscoe, 145 Ariz. 212, 226, 700 P.2d 1312, 1326, cert. denied, Roscoe v. Arizona, 471 U.S. 1094, 105 S.Ct. 2169, 85 L.Ed.2d 525 (1985). (Because the victim was helpless at the time of the attack, and the murder was by its own terms senseless, these factors contribute to a finding of heinousness and depravity.)

We believe the record supports the findings of especially heinous or depraved conduct in the case before us. Defendant senselessly killed a helpless victim, and as reprehensible as this may be, sexually assaulted her either contemporaneously with or shortly after her death. We find that the statutory aggravating circumstances are present to uphold the propriety of the death sentence.

4. VICTIM IMPACT STATEMENTS

Prior to sentencing, the court received victim impact statements pursuant to a statute which reads: F. The victim of any felony or the immediate family of the victim if the victim has died as a result of the conduct of the defendant may appear personally or by counsel at any aggravation or mitigation proceeding to present evidence and express opinions concerning the crime, the defendant or the need for restitution. The court in imposing sentence shall consider the evidence and opinions presented by the victim or the victim's immediate family at any aggravation or mitigation proceeding or in the presentence report. G. Nothing in this section shall affect any provision of law which imposes the death penalty, which expressly provides for imprisonment for life or which authorizes or restricts the granting of probation and suspending the execution of sentence. A.R.S. § 13–702(F), (G).

In death penalty cases, the permissible aggravating circumstances which may be considered are set forth in A.R.S. § 13–703(F). The victim impact statement statute does not purport to add to that list. Victim impact statements may, nevertheless, be considered in non-death penalty cases such as sexual assault for which the defendant was found guilty in this case by the trial court prior to sentencing. Defendant contends that the trial court improperly received the victim impact statements at the sentencing phase contrary to the eighth amendment to the United States Constitution as determined by the United States Supreme Court in Booth v. Maryland, 482U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). We do not agree.

In Booth, the defendant had been convicted of two counts of capital murder. He chose to have the jury, rather than the judge, determine his sentence under the statute that gave him the option. The Maryland statute, MD.ANN.CODE art. 41, § 4–609(c)(a) (1986), required the preparation of a victim impact statement addressing the impact of the offense on the victim's family. This document was required to be presented to the jurors during the sentencing phase of the trial either by reading the text, or by live testimony of the family members. In Booth, the expressions and opinions of the victim's family were read to the jurors as required by the statute. Booth was sentenced by the jurors to death on one of the two murder counts.

The United States Supreme Court, in a five to four decision, held that the personal characteristics of the victim, the emotional impact on the victim's family, and the family's opinions of the crime and defendant, were irrelevant to a capital sentencing decision. The Court further held that the admission of such evidence in a jury situation “creates a constitutionally unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner.” Booth, 482 U.S. at ––––, 107 S.Ct. at 2533. The Court in Booth reasoned that a victim impact statement could divert the jurors' attention from the defendant and the offense to the victim's family, matters probably not even considered by the defendant when he formed the decision to kill. Because this type of information is inflammatory by its very nature, the jurors might well vote for capital punishment because of the impact on the family, rather than the defendant's character or the circumstances of the crime.

The United States Supreme Court presumed that the jury in Booth would be adversely affected by such emotional evidence. Such a presumption does not, however, exist where the judge is the sentencer. A judge is trained in the law and is a professional decision maker. State v. Rossi, 154 Ariz. 245, 247, 741 P.2d 1223, 1225 (1987); State v. Perkins, 141 Ariz. 278, 286, 686 P.2d 1248, 1256 (1984). A judge can separate the admissible from the inadmissible. For example, a trial judge sitting as the trier-of-fact can hear evidence, rule on its inadmissibility and not consider it when later making his or her decision. State v. Cameron, 146 Ariz. 210, 215, 704 P.2d 1355, 1360 (App.1985).

Most recently, for example, Booth was considered in a case in which victim impact statements were presented to a three-judge panel in its sentencing decision for capital murder. State v. Post, 32 Ohio St.3d 380, 383, 513 N.E.2d 754, 757 (1987), cert. denied, Post v. Ohio, 484 U.S. 1079, 108 S.Ct. 1061, 98 L.Ed.2d 1023 (1988). In that case, the court noted that it indulges: [I]n the usual presumption that in a bench trial in a criminal case the court considered only the relevant, material, and competent evidence in arriving at its judgment unless it affirmatively appears to the contrary. (citations omitted). Post, 32 Ohio St.3d at 383, 513 N.E.2d at 759 (citing State v. White, 15 Ohio St.2d 146, 151, 44 Ohio Op.2d 132, 239 N.E.2d 65, 70 (1968)).

In Arizona, it is the trial judge, not the jurors, who determines whether the penalty shall be life imprisonment or death. A.R.S. § 13–703. Absent proof to the contrary, the trial judge in a capital case must be presumed to be able to focus on the relevant sentencing factors and to set aside the irrelevant, the inflammatory, and the emotional factors. We do not believe that Booth, supra, applies. We find no error.

5. CONSECUTIVE SENTENCES

The trial judge, under A.R.S. § 13–708, ordered that the sentences be served consecutively, stating; [B]ased on the record before the court the court further finds cause exists for imposing consecutive sentencing: The defendant is a dangerous and violent person and a grave danger to society and, therefore, should be removed from society for the maximum time possible.

Defendant contends that the trial court erred in requiring that the sentences on the murder and sexual assault charges run consecutively to one another because A.R.S. § 13–604(H) bars consecutive periods of sentence enhancement for “spree” offenses that occur on the same occasion. The statute reads: Convictions for two or more offenses not committed on the same occasion but consolidated for trial purposes may, at the discretion of the state, be counted as prior convictions for purposes of the section. Convictions for two or more offenses committed on the same occasion shall be counted as only one conviction for purposes of this section. (Emphasis added.) A.R.S. § 13–604(H).

The limits articulated in the second sentence of § 13–604(H) are applicable only in determining the number of prior convictions. State v. Noble, 152 Ariz. 284, 285, 731 P.2d 1228, 1229 (1987). Moreover: Section 13–604 is a “repetitive offenders” statute, and under § 13–604(N), the defendant's sentence is enhanced because he has prior convictions for serious crimes committed on multiple occasions. Thus, the focus is on the defendant's prior, rather than present, convictions.

By limiting application of the second sentence of § 13–604(H) to prior convictions, we do not intimate that convictions for presently charged offenses in a multiple-charge indictment may never be deemed prior convictions under § 13–604(H). If any of the presently charged offenses were not committed on the same occasion, they may be considered prior convictions. Id. at 285–86, 731 P.2d at 1229–30. We do not believe that § 13–604(H) applies to the sentencing in this case.

Defendant however contends that the double-punishment statute also prevents the imposition of consecutive sentences in this case. The section provides: An act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent. A.R.S. § 13–116.

This statutory restriction precludes the trial court from ordering consecutive sentences if the offender's conduct is deemed a single act. The offender's conduct is deemed a single act if, after eliminating evidence supporting elements of one charge, remaining evidence will not support elements of the additional charges. Noble, 152 Ariz. at 286, 731 P.2d at 1130 (citing State v. Griffin, 148 Ariz. 82, 85, 713 P.2d 283, 286 (1986); State v. Newman, 141 Ariz. 554, 559, 688 P.2d 180, 185 (1984)).

Here, defendant was charged with first degree murder and sexual assault. Evidence showed that defendant murdered and sexually assaulted the victim. After eliminating the evidence supporting the sexual assault, sufficient evidence remained to support the murder conviction. After eliminating the elements of the murder, the sexual assault is still supportable. Because the evidence supports separate convictions, the trial judge had authority to order the sexual assault sentence to be served consecutive to the murder sentence without violating A.R.S. § 13–116.

6. DID THE TRIAL COURT ERR BY FAILING TO STATE ON RECORD OR IN ITS SPECIAL VERDICT THAT IT FOUND THE EXISTENCE OF AGGRAVATING FACTORS TO HAVE BEEN PROVEN BEYOND A REASONABLE DOUBT?

The trial court did not state on the record that it found the existence of the aggravating factors to have been proven beyond a reasonable doubt. The special verdict merely reflects that the trial court found the existence of one aggravating factor, not that the court had been convinced beyond a reasonable doubt of its existence. The defendant contends the death sentence should be vacated and the matter remanded to the trial court for further proceedings. We do not agree.

In State v. Jordan, 126 Ariz. 283, 286, 614 P.2d 825, 828, cert. denied, Jordan v. Arizona, 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980), this court held that the State must prove the existence of aggravating circumstances beyond a reasonable doubt. Whenever the evidence of aggravating factors is inconclusive, this court will reduce a death penalty to life imprisonment. See, e.g., State v. Madsen, 125 Ariz. 346, 353, 609 P.2d 1046, 1053, cert. denied, Madsen v. Arizona, 449 U.S. 873, 101 S.Ct. 213, 66 L.Ed.2d 93 (1980); State v. Verdugo, 112 Ariz. 288, 292, 541 P.2d 388, 392 (1975).

The trial judge, however, is not required to state on the record that he or she found the factors beyond a reasonable doubt any more than a jury must state that they found the defendant guilty beyond a reasonable doubt. As long as a jury is properly instructed, we can assume they applied the proper burden of proof. We can also assume the judge applied the proper burden. We find no error.

7. DEATH PENALTY STATUTE

Defendant contends that our death penalty statute, A.R.S. § 13–703, is unconstitutional.

a. Whether the Arizona death penalty statute is unconstitutional because it fails to require the trial court to support its findings in the special verdict? [31] At sentencing in the instant case, the trial court in its two and a half page “special verdict” recited its conclusions with regard to the existence or non-existence of the statutory aggravating factors. No mitigating factors were found to exist.

Defendant contends that this court should direct trial courts to fully support their findings on aggravation and mitigation in an extensive and detailed written special verdict such as the detailed special verdict rendered in State v. Ceja, 126 Ariz. 35, 612 P.2d 491 (1980). The defendant states that requiring the trial court to set forth in writing its reasoning on this subject would reduce the likelihood of the death penalty being imposed in a wanton, freakish and arbitrary manner. Defendant further contends that the capital defendant is constitutionally entitled to this, and insofar as the statute does not require this, it is unconstitutional as a denial of due process. We do not agree.

Although detailed findings might be helpful in reviewing the trial court's action in sentencing, such detailed and exhaustive findings as were made in Ceja, supra, are not mandated by statute or case law. The closest we have come to this is in noting that “the better practice” would be for the trial court to list all the factors considered in mitigation so that on appeal we can be certain that all mitigating factors were in fact considered. State v. Leslie, 147 Ariz. 38, 50, 708 P.2d 719, 731 (1985). The judge in the instant case did list all the mitigating circumstances he considered even though he found none to exist. We find no error.

b. Whether Arizona's death penalty statute is unconstitutional because it fails to require the government to prove beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors?

Defendant contends that Arizona's death penalty statute is unconstitutional because it does not require the prosecutor to prove beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors. We have previously considered this argument and rejected it. See State v. Schad, 129 Ariz. 557, 574, 633 P.2d 366, 383 (1981), cert. denied, Schad v. Arizona, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 693 (1982), rev'd on other grounds, State v. Schad, 142 Ariz. 619, 691 P.2d 710 (1984).

c. Whether Arizona's death penalty statute is unconstitutional because the statute mandates that a death sentence be imposed whenever one aggravating and no mitigating circumstances are found, regardless of the trial court's belief that a life sentence is warranted under the facts of the case?

In Arizona, under A.R.S. § 13–703(E), the trial court must impose a sentence of death if it finds the existence of one statutory aggravating factor and does not find the existence of any mitigating factor (or one or more mitigating circumstances substantial enough to call for leniency). A death sentence is thus required regardless of the trial court's belief that a life sentence is appropriate. Under Section 13–703(E) if a case involves one or more of seven enumerated aggravating circumstances and no mitigating circumstances sufficiently substantial to call for leniency then the trial court is required to impose a sentence of death. State v. Zaragoza, 135 Ariz. 63, 69, 659 P.2d 22, 28, cert. denied, Zaragoza v. Arizona, 462 U.S. 1124, 103 S.Ct. 3097, 77 L.Ed.2d 1356 (1983). The statute takes the human element out of the imposition of the death penalty and in doing so supports the constitutionality of the statute. Under the statute, a defendant will stand the same chance of receiving the death penalty from a judge who does not philosophically believe in the death penalty as from a judge who does. By taking the human factor out of the sentencing process the death penalty is then reserved for those who are above the norm of first-degree murderers or whose crimes are above the norm of first-degree murders, as the legislature intended. State v. Blazak, 131 Ariz. 598, 604, 643 P.2d 694, 700, cert. denied, Blazak v. Arizona, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982). We find no error.

d. Whether Arizona's death penalty statute is unconstitutional because inadequate standards are utilized by trial courts in balancing aggravating circumstances against mitigating circumstances?

Defendant contends that in Arizona, the death penalty is imposed wantonly, arbitrarily and freakishly because no ascertainable standards are provided to the sentencing judge to measure the relative weights to be given the aggravating and mitigating factors that have been found to exist. This issue has been rejected numerous times by this Court. State v. Gretzler, 135 Ariz. 42, 53–54, 659 P.2d 1, 12–13, cert. denied, Gretzler v. Arizona, 461 U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d 327 (1983); State v. Greenawalt, 128 Ariz. 150, 175, 624 P.2d 828, 853, cert. denied, Greenawalt v. Arizona, 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981); State v. Mata, 125 Ariz. 233, 241–42, 609 P.2d 48, 56–67, cert. denied, Mata v. Arizona, 449 U.S. 938, 101 S.Ct. 338, 66 L.Ed.2d 161 (1980). We find no error.

e. Was appellant denied his sixth amendment right to a jury trial on the issues of the existence or non-existence of both aggravating and mitigating circumstances as well as on the issue of the propriety of a death sentence?

Defendant asserts that the sixth amendment to the United States Constitution requires that a jury trial be held on the question of the existence or non-existence of both aggravating and mitigating factors. It is further asserted that a jury trial is constitutionally required on the issue of the propriety of a death sentence. We have previously disposed of this question. State v. Gretzler, 135 Ariz. 42, 56, 659 P.2d 1, 15, cert. denied, Gretzler v. Arizona, 461 U.S. 976, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983); State v. Blazak, 131 Ariz. 598, 602, 643 P.2d 694, 698 (1982); State v. Schad, 129 Ariz. 557, 574, 633 P.2d 366, 383 (1981), cert. denied, Schad v. Arizona, 455 U.S. 983, 102 S.Ct. 1492 (1982), rev'd on other grounds, State v. Schad, 142 Ariz. 619, 691 P.2d 710 (1984); State v. Steelman, 126 Ariz. 19, 20–21, 612 P.2d 475, 476–77, cert. denied, Steelman v. Arizona, 449 U.S. 913, 101 S.Ct. 287, 66 L.Ed.2d 141 (1980). This argument was also rejected by the United States Supreme Court. Proffitt v. Florida, 428 U.S. 242, 252, 96 S.Ct. 2960, 2966, 49 L.Ed.2d 913 (1976). We find no error.

8. PROPORTIONALITY REVIEW

We must conduct a proportionality review to determine whether imposition of death violated the eighth amendment. Our purpose in conducting a proportionality review is to determine “whether the sentences of death are excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and defendant.” State v. LaGrand, 153 Ariz. 21, 37, 734 P.2d 563, 579, cert. denied, LaGrand v. Arizona, 484 U.S. 872, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987); State v. Bracy, 145 Ariz. 520, 538, 703 P.2d 464, 482 (1985), cert. denied, Bracy v. Arizona, 474 U.S. 1110, 106 S.Ct. 898, 88 L.Ed.2d 932 (1986). A similar case is State v. Castaneda, 150 Ariz. 382, 724 P.2d 1 (1986), where defendant abducted and sexually assaulted two twelve-year-old boys, later killing one of the victims. This court found that the murder was committed in an especially cruel, heinous, and depraved manner and the death penalty was properly imposed. Castaneda, at 395, 724 P.2d at 14.

Likewise, in State v. Roscoe, 145 Ariz. 212, 700 P.2d 1312 (1984), cert. denied, Roscoe v. Arizona, 471 U.S. 1094, 105 S.Ct. 2169, 85 L.Ed.2d 525 (1985), defendant abducted, sexually assaulted and strangled a helpless seven-year-old girl. This court found that the murder was committed in a cruel, heinous and depraved manner and the death penalty was properly imposed. Id. 145 Ariz. at 226, 700 P.2d at 1326. We have also considered the following similar cases in which we found the death penalty properly imposed: State v. Clabourne, 142 Ariz. 335, 347–48, 690 P.2d 54, 66–67 (1984); State v. Gillies, 142 Ariz. 564, 570, 691 P.2d 655, 697 (1984), cert. denied, Gillies v. Arizona, 470 U.S. 1059, 105 S.Ct. 1775, 84 L.Ed.2d 834 (1985); State v. Summerlin, 138 Ariz. 426, 436, 675 P.2d 686, 696 (1983). In each of these cases the defendant both sexually assaulted and murdered the victim, and received the death penalty based on one or more aggravating circumstances.

Additionally, we have considered cases where the death penalty was reduced to life imprisonment by this court. See State v. Johnson, 147 Ariz. 395, 710 P.2d 1050 (1985) (defendant did not create grave risk of danger to others or commit murder in cruel, heinous or depraved manner, and no aggravating circumstances existed); State v. McDaniel, 136 Ariz. 188, 665 P.2d 70 (1983) (there is a good deal of evidence which suggests the defendant and his accomplice did not intend to kill the victim because the car in which the victim was locked was left in an apartment complex where people would likely hear him in the trunk); State v. Graham, 135 Ariz. 209, 660 P.2d 460 (1983) (substantial mental impairment due to drug addiction, neurological problems and brain damage; vulnerability to influence; lack of prior record of violence); State v. Valencia, 132 Ariz. 248, 645 P.2d 239 (1982) (youth of defendant); State v. Watson, 129 Ariz. 60, 628 P.2d 943 (1981) (change of character and goals while in prison; youth of defendant; murder occurred as a result of shootout begun by victim); State v. Brookover, 124 Ariz. 38, 601 P.2d 1322 (1979) (substantial mental impairment due to brain lesion). We find that imposition of the death penalty in this case is proportional to the penalties imposed in similar cases in this state.

Neither do we find the sentence disproportionate to death sentences in other jurisdictions. The defendant's sentence is similar to sentences received by other defendants for similar crimes in other jurisdictions. See generally State v. Morales, 32 Ohio St.3d 252, 513 N.E.2d 267, 276–277 (1987), cert. denied, Morales v. Ohio, 484 U.S. 1047, 108 S.Ct. 785, 98 L.Ed.2d 871 (1988); State v. Loyd, 489 So.2d 898, 906 (La.1986), stay granted, 491 So.2d 1348 (1986), cert. denied, Loyd v. Louisiana, 481 U.S. 1042, 107 S.Ct. 1984, 95 L.Ed.2d 823 (1987); Davis v. State, 477 N.E.2d 889, 900–901 (Ind.1985); Adams v. State, 412 So.2d 850, 855–857 (Fla.1982), cert. denied, Adams v. Florida, 459 U.S. 882, 103 S.Ct. 182, 74 L.Ed.2d 148 (1982); State v. Simants, 197 Neb. 549, 566, 250 N.W.2d 881, 891, cert. denied, Simants v. Nebraska, 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158 (1977). In each of these cases the victims were children, who were either sexually assaulted or cruelly beaten during the perpetration of the crime, and the death penalty was imposed. We find, therefore, that the disposition in the instant case is not disproportionate to other sentences in capital cases involving the murder of children.

9. INEFFECTIVE ASSISTANCE OF COUNSEL.

Defendant contends he was denied effective assistance of counsel on four grounds: (1) the failure to object to the admissibility of Dr. O'Connor's testimony on the basis that defendant's statements to him were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). (2) The failure to argue that defendant's statements to Dr. O'Connor were involuntary as induced by a promise of confidentiality. (3) The failure to place into evidence a copy of defendant's “Interpersonal Relationships Group Contract.” (4) The failure to pursue alleged juror misconduct as grounds for a mistrial.

We have stated: In deciding whether trial counsel was ineffective and whether such ineffectiveness warrants a new trial, this court applies a two-pronged test: 1) was counsel's performance reasonable under all the circumstances, i.e. was it deficient? State v. Nash, 143 Ariz. 392, 694 P.2d 222 (1985) (applying to cases tried or pending on appeal on or after January 9, 1985, State v. Gerlaugh, supra ); and 2) was there a “reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different,” the prejudice requirement. State v. Lee, 142 Ariz. 210, 214, 689 P.2d 153, 157 (1984) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984)) (applied retroactively to cases after State v. Watson, 134 Ariz. 1, 653 P.2d 351 (1982)). State v. Salazar, 146 Ariz. 540, 541, 707 P.2d 944, 945 (1985). In deciding an ineffectiveness claim, this court need not approach the inquiry in a specific order or address both prongs of the inquiry if the defendant makes an insufficient showing on one. Salazar, 146 Ariz. at 541, 707 P.2d at 945.

In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result. Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2069 (1984).

In the instant case, we deem it appropriate to apply the prejudice component first. Thus, assuming arguendo that counsel's performance was deficient, we examine whether there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. State v. Lee, 142 Ariz. 210, 214, 689 P.2d 153, 157 (1984).

Considering the totality of the evidence before the jury, we do not believe counsel's alleged errors would have affected the result of the proceeding. First, the defendant's statements to Dr. O'Connor were not inadmissible due to the absence of Miranda warnings. Moreover, defendant was not entitled to his Miranda rights because, although he was in custody, he was not being interrogated by Dr. O'Connor.

Secondly, the evidence overwhelmingly shows that the defendant's statements to Dr. O'Connor were voluntary and were not based on the promise of confidentiality, nor were they protected by the physician-patient privilege.

Thirdly, the failure of defendant's counsel to introduce a copy of defendant's “Interpersonal Relationships Group Contract” was not error. Because defendant's statements were made to Dr. O'Connor outside the auspices of the group counseling session and in the presence of third persons, any rights existing under the group contract had no bearing on the admission of Dr. O'Connor's statements.

Finally, the defendant contends that counsel should have taken steps to secure the removal of a juror for misconduct during the trial. In reviewing the evidence, the trial court did consider a claim of juror misconduct, and this matter appears in the record on appeal. Moreover, the trial judge, upon agreement by both the defendant personally and his counsel, questioned the juror as to alleged comments to other persons concerning the trial. Subsequent to the procedure utilized, defense counsel requested an evidentiary hearing to introduce testimony of witnesses who would contradict the juror's statements. Upon suggestion of the trial court, defense counsel was to file affidavits of these witnesses. The affidavits were never filed.

The fact that defense counsel did not present witnesses does not establish ineffectiveness. Matters of trial strategy and tactics are committed to defense counsel's judgment, and claims of ineffective assistance cannot be predicated thereon. State v. Vickers, 129 Ariz. at 514, 633 P.2d at 323 (1981) (quoting State v. Streett, 11 Ariz.App. 211, 215, 463 P.2d 106, 110 (1969)).

A new trial is not required every time a juror has been placed in a potentially compromising situation. State v. Garcia, 141 Ariz. 580, 583, 688 P.2d 206, 209 (App.1984). Defendant's claim of juror misconduct is insufficient to establish that counsel was ineffective for failing to pursue a mistrial or a new trial. Defendant has failed to show that the alleged ineffective assistance of trial counsel caused any prejudice. We need not reach the performance question. We find no error.

IV. HOLDING

We have reviewed the 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 495 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). We find none. The convictions and judgments are affirmed.

GORDON, C.J., FELDMAN, V.C.J., and HOLOHAN and MOELLER, JJ., concur.

Beaty v. Schriro, 509 F.3d 994 (9th Cir. 2007). (Habeas)

Background: Prisoner filed petition for writ of habeas corpus, challenging state court conviction of murder and sexual assault. Following remand, 303 F.3d 975, the United States District Court for the District of Arizona, Susan R. Bolton, J., denied petition. Prisoner appealed.

Holdings: The Court of Appeals, O'Scannlain, Circuit Judge, held that: (1) prisoner's inculpatory statements to prison psychologist were voluntary within meaning of Fifth Amendment; (2) purported coercion by fellow participants in prison group was not state action; and (3) prisoner's participation in group was not involuntary. Affirmed.

O'SCANNLAIN, Circuit Judge:

We previously remanded this capital habeas appeal to the district court with instructions to conduct an evidentiary hearing on whether Petitioner's inculpatory statements to a prison psychologist were voluntary within the meaning of the Fifth Amendment. We must now decide whether the district court erred in subsequently concluding that such statements were constitutionally voluntary and therefore properly admitted at Petitioner's trial.

I

A

Donald Edward Beaty was convicted in Arizona state court for the murder and sexual assault of thirteen-year-old Christy Ann Fornoff. The facts surrounding this crime were detailed in our previous opinion: On May 9, 1984, thirteen-year-old Christy Ann Fornoff disappeared at a Tempe, Arizona apartment complex while making collections for her newspaper route. Donald Beaty, a maintenance person for the complex, actively assisted the police in searching for Fornoff. Although the police located her collection book near the complex, she was nowhere to be found.

In the early morning of May 11, Joseph Kapp, a tenant, encountered Beaty while throwing out his trash. Beaty told Kapp that he had found a body behind the dumpster and that he had called the police. Kapp observed the body, spoke with Beaty for a few minutes, and then returned to his apartment. The police later arrived and determined that the body was Fornoff's. A medical examiner concluded that Fornoff had been asphyxiated by smothering and that she had been sexually assaulted, either contemporaneously with or shortly after her death. The examiner also opined that she had died within two hours of her disappearance.

The police focused their investigation upon Beaty. Vomit smeared on the body matched a substance found in Beaty's closet. The blood, semen, and hair found on the body was consistent with Beaty's. Hair found on Beaty's closet carpet, couch, bedroom, and bathroom was consistent with Fornoff's. Fibers found on the body matched Beaty's carpet and a blanket in his bedroom. Ferret hair was found on the body; the tenant who lived in Beaty's apartment a few months prior to the murder owned a ferret.

Police records showed that Beaty had called the police at 5:52 a.m. According to Kapp, he had returned to his apartment at 5:50 a.m. The timing suggested that Beaty had lied to Kapp about having called the police. The police also speculated that Beaty had moved the body after speaking with Kapp. Robert Jark drove his truck in front of the dumpster at approximately 4:50 that morning. As with Kapp, Jark was sure that a body was not visible from in front of the dumpster. However, when the police arrived, the body stuck out noticeably beyond the dumpster's edge.

Beaty told police that he was with George Lorenz, a tenant, at the time Fornoff disappeared, and that Teresa Harder, another tenant, saw them together. However, Lorenz denied being with Beaty that night, and Harder similarly denied seeing them together. Beaty also claimed that the police had searched his apartment the night Fornoff disappeared. However, the two officers who searched the complex claimed that they did not enter Beaty's apartment. Finally, the police found it suspicious that Beaty had attempted, unsuccessfully, to borrow a friend's car at 11:30 p.m. the night after Fornoff disappeared. The police speculated that Beaty wanted to borrow a car to move the body.

On May 21, 1984, Beaty was arrested and charged with Fornoff's murder and sexual assault. Beaty v. Stewart, 303 F.3d 975, 980–81 (9th Cir.2002) (hereinafter Beaty I ) (footnote omitted).

B

After his arrest, Beaty was incarcerated at the Maricopa County Jail (“the main jail”). He initially was classified as a “high-risk” inmate because he appeared depressed and distraught over his arrest and his family's reaction to his arrest. As a high-risk inmate, Beaty was visited by a staff psychiatrist who was to perform an intake evaluation. That staff psychiatrist was Dr. George O'Connor, who spoke with Beaty for about an hour and decided that he was not suffering from a serious psychological condition. Id. In addition, Dr. O'Connor learned that Beaty had a painful foot condition. In late August 1984, Beaty was transferred to the Durango Psychiatric Unit (“Durango”) on the recommendation of Dr. O'Connor. As we previously noted, this transfer served three purposes: (1) Beaty needed space to rehabilitate his injured foot; (2) Durango offered a safer place for Beaty because it was isolated from the jail's general population; and (3) Beaty was becoming increasingly agitated and depressed and undertook a hunger strike. Id. at 981.

At Durango, inmates were encouraged to participate in some type of therapy, and both group therapy or one-on-one therapy were provided. When an inmate transferred into Durango, the staff worked with the inmate to develop a treatment plan tailored for that particular inmate; the resulting document was treated as an agreement by the inmate to fulfill the obligations contained in the treatment plan.

The staff at Durango developed a coed therapy group as an experiment to improve the relationship between male and female inmates. Beaty was asked to participate in this group, and he agreed.FN1 The coed therapy group was led by Dr. O'Connor and by Lily Epler, an intern and graduate student at the University of Arizona. At the first meeting of the group, on Thursday, November 15, 1984, Beaty and the other inmates signed a document entitled “Interpersonal Relationships Group Contract” (“IPG contract”), which provided in relevant part: “I understand that all group communication is confidential and therefore group business cannot be discussed outside of group. Only in this way can I feel free to express my feelings.”

FN1. Although there is a dispute over how and why Beaty was chosen to participate in such an experimental group, the district court found that his participation in the Tuesday/Thursday group was voluntary, and that finding is not clearly erroneous.

During the group's second meeting, Beaty became agitated after a discussion of his alleged crime was raised by another participant (a female juvenile in the group named Sherry). Beaty felt that he was being verbally attacked and that discussion of his crime was outside the scope of the group's goals. He approached Dr. O'Connor when the group session ended and, after waiting in line while others spoke to Dr. O'Connor, finally was able to get Dr. O'Connor alone. Beaty testified that he conveyed to Dr. O'Connor that he “was upset that my case got brought up when it was my understanding that the group was supposed to be about relationships.” He stated that he never told Dr. O'Connor anything about his alleged crime or about the victim.FN2 Although Beaty contends that he never confessed to Dr. O'Connor, he may still argue that the confession, which was introduced at his trial, was coerced within the meaning of the Fifth Amendment. See Lee v. Mississippi, 332 U.S. 742, 745, 68 S.Ct. 300, 92 L.Ed. 330 (1948).

Dr. O'Connor's memory of their conversation paints a starkly different picture. Dr. O'Connor stated that Beaty was extremely agitated during this conversation and stated that “he was not a terrible person and did not mean to kill Christy Fornoff.” Dr. O'Connor testified that Beaty used, along with these words, hand motions (“gestalt”) to indicate that he only intended to muffle the girl's mouth. Dr. O'Connor testified that the clear message he took away from this altercation was that Beaty “had done it.” Immediately after Beaty made the statement, Dr. O'Connor, who was in a rush to leave, extricated himself from the therapy room. Dr. O'Connor testified that the statement made him uncomfortable.

Beaty attended the next meeting of the coed group but, according to his testimony, he decided to quit after he felt he was unfairly attacked again. There is a dispute over what prompted his transfer from the Durango facility, but it is undisputed that Beaty was returned to the main jail on Thursday, November 29, 1984. The district court suggested that such transfer was likely in preparation for his first trial, which was slated to begin in mid-December and explicitly concluded that Beaty was not transferred “as a punishment for quitting the coed group.”

C

Dr. O'Connor did not immediately disclose Beaty's inculpatory statements and gestures to anyone, and Beaty's case proceeded to trial. The state's case rested primarily on the physical evidence tying Beaty to the crime. On March 18, 1985, the trial court declared a mistrial after the jury deadlocked ten to two in favor of guilt. As we recounted in Beaty I:

On May 8, 1985, Beaty's second trial commenced. Two days later, O'Connor went to state court to testify in an unrelated case. While waiting to testify, O'Connor spoke casually with a detention officer. During the course of the conversation, O'Connor disclosed Beaty's confession. The prosecution quickly learned about the conversation and contacted O'Connor. [He] refused to testify but, after an evidentiary hearing, the trial court ordered him to do so.

During the second trial, the state presented much of the same evidence as it had offered at the first trial, but with the addition of O'Connor's testimony. The jury unanimously found Beaty guilty of first degree murder and sexual assault. The judge thereafter conducted a sentencing hearing without a jury. The judge imposed the death penalty after finding one aggravating circumstance and no mitigating circumstances. 303 F.3d at 982–83.

After the conclusion of his state review, Beaty filed a habeas petition under 28 U.S.C. § 2254. The district court initially rejected all of Beaty's claims and denied his petition, but granted a certificate of probable cause allowing Beaty to appeal.

On appeal, we declined to issue a Certificate of Appealability (“COA”) on nearly all of Beaty's claims. Beaty I, 303 F.3d at 994. As to Beaty's claims surrounding the admission of his confession to Dr. O'Connor, we rejected outright Beaty's claim that he was entitled to Miranda warnings prior to his participation in the group because we concluded that Beaty's admission was spontaneous and not the result of interrogation. Id. at 991. We also declined to issue a COA on Beaty's claim that the admission of O'Connor's testimony violated his Sixth Amendment right to counsel. Id. at 991–92.

We concluded, however, that a COA should be granted with respect to Beaty's claim that his statement to Dr. O'Connor was involuntary under the Fifth Amendment. We reasoned that the record was not fully developed as to “the reasonableness of Beaty's asserted belief that his statements were protected by the terms of the agreement, taking into account the circumstances surrounding Beaty's statements to O'Connor and the group discussion preceding this encounter.” Id. at 993. “In light of the grave consequences at stake, [we believed] that an evidentiary hearing on this issue before the district court [was] necessary.” Id. We therefore remanded the appeal to the district court with instructions to conduct an evidentiary hearing and to determine whether Beaty's belief that his statements were confidential was reasonable. Id. at 994.

D

The district court held an evidentiary hearing on Beaty's voluntariness claim from October 19–21, 2004. During this hearing, the court heard testimony regarding the coed group therapy of which Beaty was a part. Witnesses at the hearing included (1) Dr. O'Connor; (2) Beaty; (3) a mental health expert called by Beaty (Dr. Overbeck); (4) three members of the coed therapy group (Lisa Valandingham, Donald Guyer, and Geraldine Nosie); (5) two other jail psychiatrists at the Durango facility (Dr. Potts and Dr. Garcia–Bunuel); and (6) a jail counselor (Thomas Haines).

In June 2005, the district court issued a Memorandum of Decision and Order denying Beaty's claim that his confession was involuntary under the dictates of the Fifth Amendment. The court concluded that “the attendant circumstances of Petitioner's confession discredit the reasonableness of his assertion that the contract was an unqualified promise of complete confidentiality.” It also concluded that even assuming a limited promise of confidentiality, such a promise did not cause Beaty to confess and did not overbear his will against self-incrimination. In addition, the district court declined to consider Beaty's Miranda claim, ruling that the previous decision in Beaty I foreclosed the issue. Beaty filed a timely notice of appeal.

II

A

We think it important to note at the start that the circumstances of this case are hardly typical of situations in which questions about the voluntariness of a confession arise. As the Seventh Circuit has stated in a similar context, “[t]his case, unlike so many others that we see in the course of our work, does not involve formal police interrogation in a government facility dedicated to law enforcement work. Nor does it involve the usual face-to-face confrontation between law enforcement officers and the defendant.” United States v. D.F., 115 F.3d 413, 419 (7th Cir.1997) ( D.F. II ). Instead, this case involves the interaction between an inmate and a prison psychiatrist, the degree to which there were promises of confidentiality between the two, and the degree to which any such promises overbore the inmate's will to avoid self-incrimination. The difficulty of this case thus lies in the need to apply our well-settled law on voluntariness to a unique factual situation.

The Fifth Amendment, made applicable to the states through the Fourteenth Amendment, commands that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. We have interpreted this proposition to mean that an inculpatory statement is voluntary “only when it is the product of a rational intellect and a free will.” United States v. Leon Guerrero, 847 F.2d 1363, 1365 (9th Cir.1988). “The test is whether, considering the totality of the circumstances, the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect's will was overborne.” Id. at 1366 (citing Haynes v. Washington, 373 U.S. 503, 513–14, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963)).FN3 Importantly, the voluntariness test does not ask whether the suspect would have given the statement “but for” the government conduct. As we noted in Leon Guerrero:

Causation, including but-for causation, has never been the test for voluntariness. Hutto v. Ross, 429 U.S.[28,] 30, 97 S.Ct. 202, 50 L.Ed.2d 194 [ (1976) (per curiam) ]. If the test was whether a statement would have been made but for the law enforcement conduct, virtually no statement would be deemed voluntary because few people give incriminating statements in the absence of some kind of official action. See Schneckloth v. Bustamonte, 412 U.S. 218, 224–25, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). 847 F.2d at 1366 n. 1.

In other words, a statement may be considered involuntary if it is “extracted by any sorts of threats or violence, [or] obtained by any direct or implied promises, however slight, [or] by the exertion of any improper influence.” Hutto, 429 U.S. at 30, 97 S.Ct. 202 (internal quotation marks omitted). But the breadth of this rule is circumscribed by the requirement that “[t]he promise must be sufficiently compelling to overbear the suspect's will in light of all attendant circumstances.” Leon Guerrero, 847 F.2d at 1366 (citing Hutto, 429 U.S. at 30, 97 S.Ct. 202).

B

Beaty contends that, in discussing his case with Dr. O'Connor, he reasonably relied upon the State's promise of confidentiality contained in the IPG contract. He argues that he followed the “letter and spirit” of the contract by not revealing group communication and by being candid with the group psychiatrist. Beaty points to our decision in Pens v. Bail, 902 F.2d 1464, 1465 (9th Cir.1990) (per curiam), as support for his argument that when a psychiatrist promises confidentiality to facilitate a discussion of a prisoner's problem, anything said by the prisoner to the doctor is inadmissible. In his view, the district court erred in distinguishing Pens on the basis that the defendant in that case was undergoing compulsory counseling, whereas Beaty was voluntarily participating in the group; he argues that even assuming that participation was voluntary, he was induced to participate in the group by the promise of confidentiality. Beaty also argues that the promise contained in the IPG contract was not contingent and that the only reasonable interpretation is that group business could not be discussed outside the group by anyone. He therefore asks us to conclude both that the conversation with Dr. O'Connor was in fact confidential and that his confession was induced by this promise of confidentiality.

The State of Arizona contends that, in order for his confession to be suppressed, Beaty needed to establish (1) coercion (2) by the State, which (3) caused his will to be overborne. In their view, Beaty did not establish any of these elements at the evidentiary hearing, let alone all of them. In particular, the State points out that the district court found, as a matter of fact, that Beaty's relationship with Dr. O'Connor was not intended to elicit a confession or to induce him to confess. The State also notes that the district court found that “[t]he facts show that the promised confidentiality did not reasonably extend to Petitioner's conversation with Dr. O'Connor after the group therapy session had ended.” Thus, in the State's view, the district court correctly held that there existed no coercive promise from the State. Moreover, Arizona argues that even if either Beaty's relationship with the doctor or the group contract was classified as a coercive promise, such promise did not overbear Beaty's will.

C

In Beaty I, 303 F.3d at 993, we remanded to the district court for an evidentiary hearing on the “critical question ... whether Beaty reasonably believed that his statements were protected by the state's confidentiality agreement.” On remand, the district court found, as facts, that Beaty made his statements to Dr. O'Connor outside the group communications that were the subject of the confidentiality agreement, and thus outside the limited promise of confidentiality, and that he confessed spontaneously after seeking out Dr. O'Connor, rather than in response to questioning. The district court simply did not believe Beaty when he testified that he thought that the contract was across-the-board and when he claimed that he had a close “nurturing” relationship with Dr. O'Connor.

The district court started by examining the IPG contract and stating that it was reasonable to interpret it as applying to a conversation with Dr. O'Connor outside the group, immediately following a session. But then the court went into detail about what actually happened and found—applying specific facts to that theoretical construct—that “the attendant circumstances of Petitioner's confession discredit the reasonableness of his assertion that the contract was an unqualified promise[ ] of complete confidentiality.” In other words, although the district court acknowledged that in theory Beaty's belief could have been reasonable, in fact his belief, even if genuine, was not reasonable because of the surrounding circumstances.FN4 We agree.

FN4. We review for clear error the district court's factual findings. United States. v. Wolf, 813 F.2d 970, 974 (9th Cir.1987). Nevertheless, “ ‘the ultimate issue of “voluntariness” is a legal question....’ ” Arizona v. Fulminante, 499 U.S. 279, 287, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (quoting Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985)).

First, the scope of the IPG contract is not as broad as Beaty would have it. As the district court noted, by its terms, the promise of confidentiality applies only to “group” communications. Beaty himself testified that he understood the contract to mean “we couldn't go back into our pods and discuss what was in—what we talked about in the group.” He further stated that the remedy for breaching this group confidentiality “was never discussed. We were just told not to go back into the pods and talk about group business.”

In other words, the contract extended only to what was talked about amongst the group. It did not serve to establish a full patient-physician privilege and did not guarantee complete confidentiality for any statement made by Beaty, however unrelated it might have been to the group. And further, during a discussion of the contract in the group, participants were told that it meant they could not go back to their pods and discuss group business; at no point were they told that they were assured complete confidentiality for any and all statements that they made. In this situation, the lack of clear, broad language extending the promise of confidentiality outside the confines of the group session, and the lack of any such broad promise by the therapists running the group, support the district court's conclusion that Beaty could not have relied upon the contract itself to establish a reasonable belief in confidentiality. FN5. Indeed, we note that a similar conclusion was reached many years ago by the Arizona Supreme Court, which held that Beaty's “inculpatory statements were not regarding group business nor were they given during the group session. The statements were not induced or coerced by defendant's membership in the group.” State v. Beaty, 158 Ariz. 232, 762 P.2d 519, 527 (1988).

Second, there was a window of time between the end of the group session and Beaty's statement. According to Beaty's own testimony at the hearing, he waited patiently with his knee on a chair while another inmate spoke with Dr. O'Connor. When that conversation ended, Beaty approached Dr. O'Connor as he was in the process of putting some paperwork in a satchel. It is not disputed that it took at least five minutes, and perhaps as long as 15 minutes, from the end of the group session to the time that Beaty began to speak with Dr. O'Connor. This lapse in time supports the conclusion that the “group session” had ended; that any alleged “mandatory” attendance requirement had ended; and that any statements made by Beaty were not necessarily group communication. Further, the fact that Beaty waited to be alone with Dr. O'Connor before making his statement indicates that Beaty himself did not believe this was the type of conversation he would share with the group; in other words, it was not “group communication.” Thus, the reasonableness of Beaty's belief that his statement fell within the scope of the “group” contract is diminished both by the significant lapse in time from the end of the group and from Beaty's desire to speak with Dr. O'Connor outside the group context.

Relatedly, inmates were told that they should not discuss their crimes with the staff, especially during the group session. At oral argument, Beaty's counsel emphasized that Beaty was attempting to follow the directive of Drs. O'Connor, Potts, and Garcia not to talk about his crime in the group when he approached Dr. O'Connor well after the session ended. Yet at the same time, Beaty claims that his inculpatory statement constituted group business and thus fell within the confidentiality parameters of the IPG contract. There is clear internal tension in this argument; if Beaty were attempting to follow the directive of Durango staff when he approached Dr. O'Connor, such action discredits the reasonableness of his belief that the IPG contract itself would cover communications regarding Beaty's crime.

The reading of the IPG contract's confidentiality provision offered by Beaty at the evidentiary hearing is, quite simply, unlimited in scope. And although the district court entertained the possibility that Beaty's belief was reasonable in the abstract, it ultimately determined that such a broad, unlimited reading of the scope of the contract was not reasonable in the context of these facts. We agree with the district court that, under the attendant circumstances, Beaty's belief in the unlimited nature of the IPG contract's confidentiality provision was not reasonable.

D

The district court also concluded that even if the IPG contract could be viewed as a limited “coercive promise,” it did not in this case overcome Beaty's will against self-incrimination. In reaching this conclusion, Beaty contends that the district court erred in distinguishing his confession from those suppressed as involuntary in Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948 (1954), and Pens, 902 F.2d at 1465. We agree with the district court that any promise that might have existed did not rise to the level of overcoming Beaty's will.

In Leyra, the petitioner's aged parents were found murdered. 347 U.S. at 558, 74 S.Ct. 716. Suspicion quickly focused on Leyra and he was subjected to repeated interrogations, including full days and nights of questioning. During one such all-night questioning, Leyra complained of a sinus attack. The police arranged for a doctor to provide medical relief, but, in reality, the doctor “was not a general practitioner but a psychiatrist with considerable knowledge of hypnosis.” Id. at 559, 74 S.Ct. 716.

For an hour and a half or more the techniques of a highly trained psychiatrist were used to break petitioner's will in order to get him to say he had murdered his parents. Time and time and time again the psychiatrist told petitioner how much he wanted to and could help him, how bad it would be for petitioner if he did not confess, and how much better he would feel, and how much lighter and easier it would be on him if he would just unbosom himself to the doctor. Id. at 559–60, 74 S.Ct. 716. The Supreme Court reversed the denial of Leyra's habeas corpus application, holding “that use of confessions extracted in such a manner from a lone defendant unprotected by counsel is not consistent with due process of law as required by our Constitution.” Id. at 561, 74 S.Ct. 716.

Beaty's attempts to analogize his case to Leyra are unavailing. Leyra involved repeated interrogation, sleep deprivation, and trickery. In Beaty I, we held in the Miranda context that no custodial interrogation occurred in this case. In addition, unlike in Leyra, where the deceptive use of the psychiatrist was clearly intended to elicit a confession, we previously noted that “[t]he factual record clearly reveals that the group sessions were not deliberately designed to elicit incriminating remarks. The purpose of the group was to explore interaction between male and female inmates. The group was not organized to collect incriminating information to be used at trial.” Beaty I, 303 F.3d at 991; see also id. at 992 (“The group sessions were not court-ordered and were not designed to acquire information to be used at trial.”). The type of “overreaching” police or state conduct which was present in Leyra is simply absent in this case. See Colorado v. Connelly, 479 U.S. 157, 163, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) (noting that “the [voluntariness] cases considered by this Court ... have focused upon the crucial element of police overreaching”).

Pens is distinguishable on similar grounds. Pens was convicted on two counts of first-degree rape and committed to the Western State Hospital (WSH). The treating therapists assured Pens that “information he revealed during treatment would not be disclosed to the courts.” Pens thereafter confessed to additional attempted and completed rapes. After three years, WSH returned Pens to court along with a report detailing the confessions and concluding that he was not safe to be at large. The Ninth Circuit reasoned that “Pens was committed under court order to a psychiatric treatment program at a locked state facility. Full confession and cooperation were represented as necessary for successful treatment and eventual release.” 902 F.2d at 1465. Thus, the court concluded the confession was involuntary and improperly formed the basis for an exceptional sentence.

But here, as discussed above, Beaty was never assured of complete confidentiality for any statements he made, nor was he told that information revealed to Dr. O'Connor “would not be disclosed to the courts.” In addition, Beaty was not committed to the mental ward by the state, but instead sought out a transfer to Durango and voluntarily participated in counseling. Beaty I, 303 F.3d at 992 (“The group sessions were not court-ordered and were not designed to acquire information to be used at trial.”). Whereas in Pens, “[f]ull confession and cooperation were represented as necessary for successful treatment and eventual release,” 902 F.2d at 1465, no similar quid pro quo was established here. Beaty's treatment was largely incidental to his incarceration and his cooperation in the treatment program was by no means a prerequisite for his eventual release. Moreover, Beaty agreed that it was his decision to remain behind after the group ended and that no one forced him to speak to Dr. O'Connor. Thus, there is no reason to doubt the district court's conclusion that any “coercive” aspect of Beaty's treatment program was not the cause of his confession. FN6. This deficiency also distinguishes Fulminante, where the Supreme Court deemed involuntary a statement made by a prisoner to his cellmate, a government agent. The government agent/cellmate promised to protect Fulminante from “credible threats of violence” if he confessed his crime. 499 U.S. at 288, 111 S.Ct. 1246. The court found that such an agreement, considered in light of the fact that Fulminante could be hurt or killed without protection, had overborne his will against self-incrimination. Id. The promise here was not coercive as it was in Fulminante: Beaty did not face specific threats of violence at the main jail and, even if he did, Beaty was not presented with the stark choice either to confess or to be sent back to that jail. At most, Beaty was asked to participate passively in the group, and perhaps to discuss his feelings about personal relationships, which is a far cry from being coerced to confess. Moreover, the district court found as a matter of fact that participation in the coed group was voluntary and that Beaty was not transferred back because of his refusal to participate in the group. See infra at III.B.

Finally, the Seventh Circuit's decision in D.F., although it may present the closest analogy in existing case law, is also distinguishable. In D.F., the defendant, a juvenile girl, was admitted against her will by her aunt and legal guardian to the county mental health facility after two of her infant cousins were found dead in the span of a week. United States v. D.F., 63 F.3d 671, 673 (7th Cir.1995) ( D.F.I ). The defendant had a history of assaultive behavior and drug and alcohol abuse; there was also evidence that she had suffered physical and sexual abuse during her childhood. While at the facility, D.F., then 14 years old, participated in a group therapy session. At one session, D.F. “spontaneously told the group that she had killed her cousins.” Id. at 675. The district court suppressed the statements, ruling:

After considering the totality of the circumstances, I conclude that D.F.'s inculpatory statements were secured through psychological coercion and were not the “product of a rational intellect and free will.” circumstances under which they were employed, the various “encouragement” techniques employed by the staff were highly coercive. A reasonable person of D.F.'s age, intellect, and mental state would have felt coerced. Id. at 676 (quoting Blackburn v. Alabama, 361 U.S. 199, 208, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960)) (internal citation omitted).

The Seventh Circuit affirmed, concluding that the “district court's findings of historical fact were solidly rooted in the record.” D.F. II, 115 F.3d at 421.FN7 The critical finding of fact fatal to Beaty's analogy is that in the D.F. case, FN7. In D.F.I, the Seventh Circuit reviewed the district court's decision under a clear error standard of review. 63 F.3d at 677. After that decision was vacated by the Supreme Court in light of Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), the Seventh Circuit adhered to its earlier reasoning under a de novo standard of review in D.F.II, 115 F.3d at 421.

Staff at the Center went to great lengths to encourage and develop her trust. They also employed a wide range of tactics to “encourage” her to talk about the crimes she had committed. Privileges were accorded based on, among other things, frank admission of crimes. Criminal admissions were forgiven subject to continued cooperation and disclosure. Individual staff questioned D.F. directly about her past crimes. Protective Services Staff were provided with information about her crimes, and were allowed to question her about further crimes. Id. No similar findings of fact were made here by the district court; indeed, the district court's findings of fact are to the contrary. The district court concluded that “neither the contract nor Dr. O'Connor asked Petitioner to reveal anything potentially inculpatory;” Beaty waited 5 to 10 minutes to talk to Dr. O'Connor, during which time he was free to leave; Dr. O'Connor's conduct within the coed group did not coerce Beaty's statement; Dr. O'Connor did not bring up Beaty's charges, other group members did; Beaty was asked to volunteer for the group, and not forced to join; Beaty was discouraged from discussing his crimes in the group; and Beaty was a relatively high-functioning inmate who, his own expert testified, had I.Q. scores that were “average to superior.” FN8 Unlike in D.F., therefore, the structure of treatment did not encourage confessions, no rewards were gained from confessions, criminal admissions were not forgiven, and Beaty was not forced to participate.

FN8. The district court made additional findings of fact regarding Beaty's mental functioning. In particular, the district court considered evidence from Dr. Overbeck about a hemisphere discrepancy in Beaty's brain which might make him more susceptible to coercive tactics. The district court noted nonetheless that not only were Beaty's IQ scores above average but that, during his testimony at the evidentiary hearing, Beaty appeared poised, alert, and articulate.

In addition, although the D.F. court acknowledged that prison counselors could be considered “law enforcement surrogates,” they emphasized that any questioning “must be of a nature that reasonably contemplates the possibility of criminal prosecution.” D.F. I, 63 F.3d at 683. Whereas in D.F. the “[s]taff members at the Center were either enlisted or volunteered to act as law enforcement surrogates in eliciting confessions from troubled teens,” D.F. II, 115 F.3d at 420, no similar relationship has been established here between the police and the staff at Durango. Indeed, Dr. Potts, Dr. Garcia–Bunuel, and Dr. O'Connor all testified that discussion of criminal activities was not part of their group therapy process; and as we previously stated, “[t]he factual record clearly reveals that the group sessions were not deliberately designed to elicit incriminating remarks.” Beaty I, 303 F.3d at 991.

In short, considering the district court's findings of facts, we conclude that Beaty's will against self-incrimination was not overborne by the limited promise of confidentiality contained in the IPG contract.

E

In conclusion, we agree with the district court's determination that Beaty's reliance upon the IPG contract to protect the confidentiality of his confession was not reasonable given the surrounding facts and circumstances. We also agree that any promise that existed, whether in the form of a contract or a relationship, was not sufficiently compelling or coercive to have overborne Beaty's will against self-incrimination. Accordingly, Beaty's inculpatory statement was voluntary within the meaning of the Fifth Amendment and therefore properly admitted at his second trial.

III

There are two additional issues that we must resolve with respect to Beaty's voluntariness claim. In Beaty I, we reserved judgment and left for the district court Beaty's arguments that his statements were involuntary (1) because he was coerced by his fellow group members and (2) because he was forced to participate in the group sessions. 303 F.3d at 994 n. 11. FN9 The district court addressed these contentions on remand and determined that neither of Beaty's arguments merited habeas relief. FN9. We also reserved judgment in our original disposition on Petitioner's claim that the decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), applies retroactively to habeas proceedings. Beaty I, 303 F.3d at 994 n. 12. Because that issue has been determined conclusively by the Supreme Court to Beaty's disfavor, see Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (holding that the rule of Ring does not apply to death penalty cases already final on direct review), we need not address it.

A

Beaty first claims that his statement was involuntary because it was coerced by his fellow group members. The district court rejected this contention because it found a lack of state action that was reasonably likely to illicit a confession. See Connelly, 479 U.S. at 164, 107 S.Ct. 515 (“Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.”). First, the district court concluded that Dr. O'Connor was not the person who brought up Beaty's charges in the group. As discussed above, a juvenile member of the group attacked Beaty as being a “very unfeeling person.” According to Beaty's own testimony, “either Dawn or Sherry,” not Dr. O'Connor or Lily Epler, brought up his charges initially. Thus, the district court's factual finding that it was not a state actor who initiated the discussion of Beaty's “unfeeling nature” and his crime was not clearly erroneous.

Further, as we stated in our previous opinion in another context, “[t]he factual record clearly reveals that the group sessions were not deliberately designed to elicit incriminating remarks. The purpose of the group was to explore interaction between male and female inmates. The group was not organized to collect incriminating information to be used at trial.” Beaty I, 303 F.3d at 991. Nothing said or introduced at the evidentiary hearing undermines our conclusion. This stands in stark contrast to other cases, such as D.F., where a confession was deemed involuntary. In D.F., the staff at the treatment facility “employed a wide range of tactics to‘encourage’ her to talk about the crimes she had committed.” D.F. II, 115 F.3d at 421. Furthermore, privileges were accorded based on the frank admission of crimes and such admissions were forgiven subject to continued cooperation and disclosure. Id. In this case, no such state action existed during the group sessions or in their formation. Indeed, at the evidentiary hearing, all staff members who testified agreed that inmates were not encouraged to discuss their crimes in the group.

Based upon these findings, we agree with the district court that there was insufficient state action on the part of the group participants sufficient to render Beaty's statement involuntary.

B

Beaty next argues that his confession was involuntary because he was forced to participate in the group under threat of being returned to the main jail. The district court concluded that Beaty was not forced to participate in the coed group therapy. In addition, the court noted that Beaty's transfer to the main jail was not a result of his withdrawal from the therapy group. Indeed, it found, as a matter of fact, (1) that Beaty never told anyone he planned to quit the group, and (2) that Beaty was transferred from Durango prior to the time of the fourth group session (which would have been his first missed session). Thus, the court concluded that Beaty's transfer to the main jail was unrelated to his personal decision not to participate any further in the coed therapy group. We discern no clear error in these findings. See Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir.2004) (“Factual findings and credibility determinations made by the district court in the context of granting or denying the [habeas] petition are reviewed for clear error.”).

Of the witnesses who testified at the evidentiary hearing, only Beaty claimed that he was affirmatively compelled to participate in the group. The district court failed to credit Beaty's testimony, instead accepting the testimony of the other witnesses, who testified at the evidentiary hearing that they were asked to participate in the group, not forced to participate.

One witness, Geraldine Nosie, testified that she could have chosen not to participate in the group if she wanted and noted that “it was a trial group and, basically, I guess they were just selecting people that they felt should be there.” She further testified that she “probably begged, cried, and whined to get in to the group.” Another group member who testified, Lisa Valandingham, stated that she was not required to join the group and was not punished when she finally decided to drop out of the group. Finally, Donald Guyer, another group member, stated that he didn't “recall feeling that I was compelled.” He further testified “there was no compulsion. I didn't have to. I wasn't told I had to go there or I'd have to leave the [Durango] facility.” The district court's decision to credit the testimony of these witnesses over Beaty's was not clearly erroneous. Thus, because there was no compulsion by the state to participate in the coed group, the district court did not err in concluding that his participation in the group was not itself coercive.

Moreover, even assuming that Beaty harbored a subjective belief that his participation in the coed therapy group was mandatory to avoid being sent back to the main jail, this case is unlike Fulminante because in that case, “[t]he Arizona Supreme Court found a credible threat of physical violence unless Fulminante confessed.” 499 U.S. at 287, 111 S.Ct. 1246. Fulminante's finding of involuntariness was premised on the idea that “it was fear of physical violence, absent protection from his friend (and Government agent) Sarivola, which motivated Fulminante to confess.” Id. at 288, 111 S.Ct. 1246. But as Fulminante also makes clear, fear in the abstract was not enough; the threat of physical violence had to be real and imminent to constitute improper coercion. The Arizona state courts made no finding here regarding the credibility of threats of violence, and there is nothing in the record that suggests “credible” threats were made against Beaty. Moreover, participation in the group cannot be equated with a requirement of confession. Accordingly, Fulminante cannot control.

IV

Finally, we address Beaty's extensive pro se filings, which purport to be: (1) an application to file a second or successive petition for habeas relief under 28 U.S.C. § 2254 (including a motion, buried in a footnote, to appoint capital counsel), filed May 21, 2007, and (2) “Motion for a Procedural Order; Motion for Reconsideration; and/or Motion for En Banc Review,” filed July 18, 2007. Although originally filed under a new case number, such number was later terminated and these filings were erroneously docketed with the instant appeal.

We ordered Beaty's counsel of record to explain these voluminous filings. In response, he provided a procedural history of Beaty's travails in state and district court but failed to explain the filings. Instead, counsel invited us to “appoint counsel to brief the issues presented by Beaty in his application.” However, the purported application under 28 U.S.C. § 2244(b)(3)(A) fails to conform with Ninth Circuit Rule 22–3, which governs such applications. In particular, Beaty fails to comply with Rule 22–3(a)(2), which requires him to “state as to each claim presented whether it previously has been raised in any state or federal court and, if so, the name of the court and the date of the order disposing of such claim(s).” Many of the claims made by Beaty in his purported application have been repeatedly raised and rejected below, yet he makes no effort to comply with our requirement that he state each claim's prior history.

Consequently, to the extent that Beaty's May 21 filing purports to be an application under 28 U.S.C. § 2244(b)(3)(A), it is denied without prejudice to refiling in the proper form. To the extent that Beaty's May 21 filing requests appointment of counsel, it is denied as moot. Since we deny the application, Beaty's July 18 motion, which appears to relate to the closing of the new case number, is also denied as moot.

V