Arizona Department of Corrections

Inmate: SAMUEL V. LOPEZ
DOC#: 043833
DOB: 06/30/1962
Gender: Male
Height 67"
Weight: 142
Hair Color: Brown
Eye Color: Brown
Ethnic: Mexican
Sentence: DEATH
Admission: 06/30/1987

Conviction Imposed: MURDER 1ST DEGREE (DEATH), Kidnapping (21 years), Sexual Assault (21 years), Burglary 1st Degree (21 years).
County: Maricopa
Case#: 0163419
Date of Offense: 10/29/1986

Arizona killer Samuel Lopez executed for 1986 rape, murder

By Bob Ortega - AZCentral.com

Jun. 27, 2012

An Arizona inmate was put to death Wednesday for a 1986 brutal rape and killing, in the state's first execution allowing witnesses to watch prison officials inject a lethal drug into a prisoner. The U.S. Supreme Court late Thursday denied death-row inmate Samuel Lopez's final appeal, clearing the way for his execution at 10 a.m. today in Florence.

Lopez's attorney, assistant federal public defender Kelley Henry, said there would be no other efforts to block his execution. Lopez, 49, was convicted in 1987 of raping and murdering Estefana Holmes in her Phoenix apartment. On Friday, the Arizona Supreme Court also denied a stay, and Arizona's Board of Executive Clemency denied a commutation bid. His execution was the first in which witnesses will watch, via closed-circuit TV, the insertion of the catheters that deliver the fatal drug pentobarbital. Attorneys for inmates in prior executions condemned the practice of inserting catheters into the prisoners' groins. Officials said the executioners had found it difficult to find suitable veins in the arms and legs.

In earlier executions, witnesses only saw the prisoner after the catheters had been inserted.

Two more condemned prisoners whose appeals are nearing their end could be executed by the end of the year, which would put the state on pace to match its busiest year for executions and among the busiest death-penalty states in the nation. Of the 126 inmates on Arizona's death row, only five have been there longer than Lopez.

The U.S. Supreme Court turned down his last appeal on Tuesday, paving the way of the execution. He also lost a number of last-minute efforts to avoid the death penalty, including a request with the state Supreme Court to delay his execution until Arizona has a new governor. He claimed that Gov. Jan Brewer and the state's clemency board were prejudiced against him. Brewer denied his lawyer's allegations that she placed "political cronies" on the board who'll never recommend lessening a death-row inmate's sentence to life in prison.

In denying him clemency, the board members called him "the worst of the worst." Defense attorney Kelley Henry didn't dispute Lopez's guilt, but focused on the fact that trial attorneys failed to present any evidence that Lopez had a horrific childhood -- a mitigating factor that could have gotten him a sentence of life in prison. A neuropsychiatrist testified that Lopez's childhood was filled with poverty, neglect, abuse and periods of homelessness during which he often had to sleep in cemeteries. Lopez dropped out of school in the ninth grade and became addicted to sniffing paint.

In an affidavit provided to the board, Lopez wrote that he has no memory of the crime because he had been spending so much time sniffing paint that he would forget entire days.

Lopez was convicted of killing Holmes, a poor seamstress and grandmother who lived alone. On Oct. 30, 1986, police found her half-naked body with three major stab wounds to her head, one on her face, and 23 in her left breast and upper chest. She had been blindfolded and gagged with her own clothing, and her throat had been slit. Blood was splattered on walls in the kitchen, bathroom and bedroom. Semen found on her body matched Lopez's after the 24-year-old was arrested in a separate rape less than a week later.

The state Supreme Court in 1993 upheld Lopez's death sentence, saying that the state of Holmes' apartment and her body showed "a terrific struggle for life" and calling the killing a "grisly and ultimately fatal nightmare."

He later wrote in the affidavit to the clemency board that "what happened to Ms. Holmes was so horrible and so wrong. I've been always been sorry for what she went through that night and for what her family has gone through ever since." Lopez did not know Holmes, who was described by her family as hard-working, loving and deeply religious. Nearly a dozen of her family members, some of whom planned to witness the execution, pleaded with the clemency board to allow the execution to proceed.

"Let me ask you, Mr. Lopez, did our sister plead for her life as you stabbed her two dozen times?" said Sarah Bryant, one of Holmes' sisters. "Did she beg you not to rape her? Did she plead with you to spare her life as you almost decapitated her? Did she?" "Nothing will bring her back, but you should pay for it," she said.

Arizona executes killer who fought clemency board

By David Schwartz - Reuters.com

Jun 27, 2012

(Reuters) - A convicted murderer who challenged the fairness of Arizona's clemency board and won a temporary reprieve was executed by lethal injection on Wednesday for raping, beating and stabbing a woman to death in 1986. Samuel Villegas Lopez, 49, was executed at the state prison complex in Florence, about 60 miles southeast of Phoenix. The execution began at 10:08 a.m. local time and he was pronounced dead at 10:37 a.m., state officials said.

Lopez was sentenced to death in 1987 for raping 59-year-old Estafana Holmes and stabbing her to death in a violent, drawn-out assault at her Phoenix apartment. Authorities found her body with her eyes blindfolded with her pajama pants and her mouth stuffed tightly with a lace scarf. She was naked from the waist down and had been stabbed 23 times in the chest and three times in the abdomen. During questioning several days later on an unrelated matter, court records show that Lopez asked about a woman who had been stabbed and had her throat slashed. Information about the victim's throat being cut had not been publicly released by police. His fingerprints and bodily fluids also matched those found at the scene, records show. He was convicted of first-degree murder, sexual assault, kidnapping and burglary.

Arizona Attorney General Tom Horne said: "Almost 26 years later, justice has been served for the family of Essie Holmes." "The judge who sentenced Lopez to death found that the crime was especially heinous, cruel and depraved, and among the worst he had ever seen," Horne said in a statement. "Now that Samuel Villegas Lopez has paid the penalty for his terrible crime, it is my hope that his victims and their families will find some peace that justice has been carried out," he added.

Lopez won a temporary reprieve on May 15 after successfully arguing that he would not get a fair hearing from the state Board of Executive Clemency as some members had not completed their training. The Arizona Supreme Court ordered a temporary stay so that the board members could complete a mandatory four-week training course. Lopez then sought a second stay arguing that Republican Governor Jan Brewer had appointed "political cronies" to the board, making a fair hearing impossible, which was rejected by the state Supreme Court.

On Friday, the clemency board unanimously rejected his bid to have his sentence commuted to life in prison or receive a reprieve. Lopez had no last words. His final meal consisted of one red and one green chili burrito, Spanish rice, jalapeno, avocado, cottage cheese, french fries, vanilla ice cream and pineapple.

He was the fourth Arizona inmate executed this year and the 32nd since the state reinstated the death penalty in 1992. Twenty-three people have been executed in the United States this year, according to the Death Penalty Information Center.

(Writing by Tim Gaynor; Editing by Cynthia Johnston and Richard Chang)

State v. Lopez, 163 Ariz. 108, 786 P.2d 959 (Ariz. 1990). (Direct Appeal)

Following a jury trial, the Superior Court, Maricopa County, No. CR–163419, Peter T. D'Angelo, J., convicted defendant of first-degree murder, kidnapping, sexual assault, and burglary, and sentenced defendant to death for murder and to aggravated, consecutive terms of 21 years for each of the other convictions. Defendant appealed. The Supreme Court, Moeller, J., held that: (1) trial court's instructing jury on two theories of first-degree murder but submitting only one form of verdict for first-degree murder did not violate due process or amount to fundamental error; (2) defendant was not entitled to instruction on second-degree murder; (3) prior conviction for resisting arrest could not be used as aggravating circumstance under statute; and (4) constitutional provision did not preclude legislature from authorizing judges to impose death penalties. Affirmed in part, and remanded for resentencing.

MOELLER, Justice.

JURISDICTION

Defendant, Samuel Villegas Lopez, was convicted of first degree murder, kidnapping, sexual assault, and burglary. He was sentenced to death for the murder and to aggravated, consecutive terms of twenty-one years for each of the other convictions. He appeals. We have jurisdiction under Ariz. Const. art. 6, § 5(3), and A.R.S. § 13–4031.

ISSUES PRESENTED

1. Whether the trial court erred by instructing the jury on two theories of first degree murder but submitting only one form of verdict for first degree murder. 2. Whether the trial court erred by denying defendant's motion for directed verdicts on the sexual assault charges. 3. Whether the trial court erred by not instructing the jurors on second degree murder. 4. Whether the trial court committed fundamental error by failing to give a Willits instruction sua sponte. 5. Whether the jury instruction on dangerousness constituted fundamental error. 6. Whether the trial court erred by finding that defendant's prior conviction for resisting arrest was a felony “involving the use or threat of violence on another person” within the meaning of A.R.S. § 13–703(F)(2). 7. Whether the trial court erred by finding that the murder was especially cruel within the meaning of A.R.S. § 13–703(F)(6). 8. Whether the trial court erred by finding that defendant failed to establish as a mitigating circumstance that his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired. 9. Whether art. 4, pt. 1, § 1(6) of the Arizona Constitution precludes the Arizona Legislature from authorizing judges to impose death penalties.

FACTS

On October 29, 1986, sometime around 11:00 a.m., a Phoenix police officer made a “check welfare” call at the apartment residence of the murder victim. The check was in response to a call from the victim's fellow employees expressing concern that the consistently prompt victim inexplicably failed to arrive at work. Approaching the apartment, officers noticed a broken window next to the front door. Entering the apartment, they discovered the partially nude body of the victim. Overturned and broken furnishings in the blood-splattered apartment indicated that a tremendous struggle took place prior to the murder. A scarf had been stuffed into the victim's mouth, and she had been blindfolded with her pajama pants. An autopsy revealed that her throat had been slashed, and she had been stabbed twenty-three times in her left breast and upper chest and three times in her lower abdomen. Seminal fluid was found in both her vagina and anus.

Defendant had been seen in the neighborhood the night of the crime. He was also seen in the early morning after the murder walking down the street, soaking wet, as if he had recently washed himself. Several days after the murder, the police were questioning defendant about an unrelated matter when he mentioned something about a woman who had been stabbed and whose throat had been slashed. The information that the victim's throat had been slashed had never been released to the public. Realizing that only the murderer would know of the slashing, the police focused their investigation upon defendant. A check of his fingerprints matched those found at the victim's apartment and his body fluids matched those obtained from the victim's body.

A jury convicted defendant of first degree murder, sexual assault, kidnapping, and burglary. After a sentencing hearing, the trial judge found two statutory aggravating circumstances: (1) the defendant had a prior conviction for resisting arrest, which was considered a death-qualifying conviction under A.R.S. § 13–703(F)(2); and (2) the murder was committed in an especially heinous, cruel or depraved manner under A.R.S. § 13–703(F)(6). In support of mitigation, defendant argued that his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired. The trial court found that defendant did not prove this mitigating factor by a preponderance of the evidence. Finding no other mitigation, the trial judge sentenced defendant to death for the murder and to aggravated, consecutive terms of twenty-one years for each of the other convictions.

DISCUSSION

1. First Degree Murder Verdict Form

Defendant contends that the state's use of two theories of first degree murder (premeditated and felony murder) and the use of two felonies supporting the felony murder charge (sexual assault and burglary) denied him due process of law and the right to a unanimous jury verdict.

We have held that it is permissible to submit one form of verdict to a jury for first degree murder although the state proceeds under both premeditation and felony murder theories. See State v. Smith, 160 Ariz. 507, 513, 774 P.2d 811, 817 (1989). In a case predating Smith, we held that, although a unanimous jury verdict is required on whether the defendant committed the criminal act charged, a “defendant is not entitled to a unanimous verdict on the precise manner in which the act was committed.” State v. Encinas, 132 Ariz. 493, 496, 647 P.2d 624, 627 (1982). In the Smith case, we did urge trial courts in the future to submit alternate forms of verdict when alternate theories of first degree murder are submitted to a jury. The instant case was tried prior to the issuance of the Smith opinion.

In this case, the defendant refines somewhat the argument made and rejected in Smith and Encinas. Defendant challenges the use of one verdict form when two felonies in support of the felony murder theory are alleged. He contends this deprived him of a unanimous jury verdict and due process. We note, however, that defendant was in fact unanimously convicted of both of the underlying felonies of sexual assault and burglary. Thus, defendant clearly was not prejudiced. In any event, we see no distinction between the state's use of dual felony murder theories and the state's use of dual first degree murder theories. In neither event is a defendant entitled to a unanimous verdict on the precise manner in which the crime is committed. See Encinas, 132 Ariz. at 496, 647 P.2d at 627.

2. Motion for Directed Verdict on Sexual Assault

Defendant was charged with two counts of sexual assault. The state's theory was that one assault occurred with vaginal penetration and the other assault occurred with anal penetration. A toxicologist testified that it was possible that the seminal fluid leaked from the vagina to the rectum. After the state rested its case, defendant moved for a directed verdict on the sexual assault counts. The court denied the motion. During deliberations, the jury inquired whether one count related to anal intercourse and one to vaginal intercourse. After being informed that such was the case, the jury convicted on one count of sexual assault and acquitted on the other. On appeal, defendant contends the evidence is insufficient to support the one guilty verdict.

Under A.R.S. § 13–1406(A), sexual assault is committed “by intentionally or knowingly engaging in sexual intercourse ... with any person without consent of such person.” Defendant contends that there is a lack of evidence of force or fear accompanying the sexual act and that the evidence precludes a finding that consent was withheld. In part, defendant appears to argue that the intercourse may have occurred after death. For purposes of determining the sufficiency of the evidence, the toxicologist's testimony that his tests showed that the sexual act “happened right prior to death” disposes of this argument. R.T. 5/22/87, at 24. In determining the sufficiency of the evidence, we view the evidence in the light most favorable to sustaining the verdict and resolve all reasonable inferences against the defendant. State v. Long, 121 Ariz. 280, 589 P.2d 1312 (1979). Our task is to determine whether sufficient evidence existed so that a rational trier of fact could have found guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Our review of the evidence, some of which is referred to in the above statement of facts, leads inexorably to the conclusion that the trial court properly denied the motion for directed verdict.

3. Instructing the Jury on Second Degree Murder

Defendant contends the jury should have been instructed on second degree murder based on evidence of defendant's intoxication. The jury did receive an instruction informing it as to the legal effect of intoxication. The trial court, however, denied defendant's request for a second degree murder instruction. As previously discussed, the state proceeded on dual theories of first degree murder in this case, i.e., premeditated and felony murder. No lesser-included homicide offense exists for felony murder; thus, the trial court did not err by failing to so instruct on the felony murder theory. State v. Celaya, 135 Ariz. 248, 255, 660 P.2d 849, 856 (1983) (citing State v. Arias, 131 Ariz. 441, 641 P.2d 1285 (1982)).

Under A.R.S. § 13–1101(1), premeditated murder occurs if the defendant intends or knows that his acts will kill another and his intention or knowledge precedes the killing by a length of time sufficient to permit reflection. See State v. Rankovich, 159 Ariz. 116, 122, 765 P.2d 518, 524 (1988). The jury may consider voluntary intoxication to negate the mental state of “intentionally” but not the mental state of “knowingly.” See A.R.S. § 13–503; State v. Ramos, 133 Ariz. 4, 6, 648 P.2d 119, 121 (1982). See also State v. Neal, 143 Ariz. 93, 98, 692 P.2d 272, 277 (1984) (“first degree murder requires an ‘intentional’ or ‘knowing’ mens rea on the part of the assailant and voluntary intoxication only negates the ‘intentional’ mens rea.”). Assuming arguendo the jurors found that defendant was intoxicated, they could properly convict defendant of first degree murder if they believed he “knowingly” caused the victim's death. Because a defendant need only act knowingly in committing a premeditated murder, evidence of defendant's intoxication did not require the trial court to instruct the jury on second degree murder. The jurors were properly instructed that intoxication could negate intention, although they obviously rejected that possibility because they found him guilty of several intentional acts.

4. Willits Instruction

On cross-examination, the state's serology expert acknowledged that additional scientific tests existed that, if performed, could possibly have further defined and narrowed the blood groups identified. Defendant argues that because these tests, if performed, might have excluded him, he was entitled to a Willits instruction although he did not request one. A Willits instruction is appropriate when the state destroys or loses evidence potentially helpful to the defendant. See State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964); see also State v. Hansen, 156 Ariz. 291, 295, 751 P.2d 951, 955 (1988) ( Willits instruction upon proof that (1) the state failed to preserve material evidence that was accessible and might have tended to exonerate the defendant, and (2) prejudice resulted). Having preserved the evidence and given defendant an opportunity to test it, the state does not violate due process by failing to perform any particular tests. Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988).

Because defendant did not request a Willits instruction, he recognizes that he cannot be heard to complain on appeal unless the error, if any, rises to the level of fundamental error. However, we find no error, fundamental or otherwise. In this case, the blood samples were collected, tested, and preserved by the state. The blood and saliva samples from defendant, the blood sample from the victim, another blood sample from the apartment, and the filter paper with the victim's vaginal smear were all released to defendant for independent testing at the Institute of Forensic Sciences in Oakland, California. Defendant had an expert analyze the blood evidence but did not call that expert at trial. Clearly, defendant had ample opportunity to have any additional test conducted which might exonerate him. The record does not support defendant's present claim that the trial court should have sua sponte given a Willits instruction.

5. Instruction on Dangerous Offense

Shortly after the indictment, the state filed an allegation of dangerousness, pursuant to A.R.S. § 13–604, alleging that the crimes were committed with a deadly weapon or dangerous instrument, to wit: a knife or knife-type instrument. At trial, the trial court instructed the jury, without objection, that a dangerous offense involves the “use of a deadly weapon or dangerous instrument, or the intentional or knowing infliction of serious bodily injury upon another.” Although defendant did not object to this instruction at trial, he contends on appeal that it constitutes fundamental error because it (1) was duplicitous, and (2) allowed punishment to be increased by the jury's finding on a basis not charged. The trial court did not err by giving the instruction. The defendant's first argument, relating to alleged duplicity, is without merit. In State v. O'Brien, 123 Ariz. 578, 582, 601 P.2d 341, 345 (App.1979), duplicity was defined as “charging multiple offenses in a single count.” The court of appeals continued that “a count is not considered duplicitous merely because it charges alternate ways of violating the same statute.” Id. at 583, 601 P.2d at 346. Similarly, we find that an instruction that tracks the statutory language of A.R.S. § 13–604 in defining alternate ways for a finding of dangerousness is not “duplicitous.”

Defendant's second argument concerning the instruction on dangerousness is also meritless, and is disposed of by State v. Villafuerte, 142 Ariz. 323, 690 P.2d 42 (1984), cert. denied, 469 U.S. 1230, 105 S.Ct. 1234, 84 L.Ed.2d 371 (1985). In Villafuerte, the state's allegation of dangerousness was cast only in terms of the “intentional or knowing infliction of serious physical injury upon another.” 142 Ariz. at 329, 690 P.2d at 48. The trial court instructed the jury that use of a dangerous instrument could render the felony dangerous. Defendant contended on appeal that the allegation relative to injury was insufficient to put him on notice or to convict him of a dangerous felony based upon a finding of the use of a dangerous instrument. Following a discussion of earlier cases, we held in Villafuerte that the allegation of dangerousness by reason of injury was adequate to support a conviction with a finding of dangerousness by use of an instrument. This case represents merely the flip side of the same coin. We find no error.

6. Prior Felony Conviction Under A.R.S. § 13–703(F)(2)

With respect to the death penalty, one of the two statutory aggravating circumstances found by the court was that defendant was previously convicted of a felony “involving the use or threat of violence on another person” under A.R.S. § 13–703(F)(2). The prior conviction was for resisting arrest under A.R.S. § 13–2508. Citing State v. Gillies, 135 Ariz. 500, 662 P.2d 1007 (1983), defendant argues that, for a prior felony to qualify under A.R.S. § 13–703(F)(2), it must by its statutory definition necessarily involve the use or threat of violence upon another person. We recently followed and explained Gillies in State v. Romanosky, 162 Ariz. 217, 227, 782 P.2d 693, 703 (1989), where we held “[i]f, under the statutory definition the defendant could have committed and been convicted of the crime without using or threatening violence, the prior conviction may not qualify as a statutory aggravating circumstance under A.R.S. § 13–703(F)(2).” Id. at 228, 782 P.2d at 704.

Accordingly, we need to examine the statute under which defendant was previously convicted. A.R.S. § 13–2508(A)(1), (2) defines resisting arrest as: 1. Using or threatening to use physical force against the peace officer or another; or 2. Using any other means creating a substantial risk of causing physical injury to the peace officer or another.

Defendant notes that although subsection (1) defines resisting as involving the use or threat of physical force, subsection (2) defines resisting as including “any other means” that would create a substantial risk of physical injury to a person. The state argues that because the “any other means” must involve “a substantial risk of causing physical injury,” it necessarily involves the use or threat of violence. However, under the state's reading of the statute, which is tortuous at best, subsection (2) is a mere rescript of subsection (1). We believe that subsection (2) was intended to and does apply to situations where the person did not use or threaten to use violence upon an officer or another, but still created a substantial risk that someone would be physically injured. Because one can commit the crime of resisting arrest under A.R.S. § 13–2508(A) without using or threatening violence, a conviction under it does not qualify as a statutory aggravating circumstance under A.R.S. § 13–703(F)(2). Accordingly, the trial court's finding must be set aside.

7. Finding of Cruelty

A.R.S. § 13–703(F)(6) provides that an aggravating circumstance exists if the crime is committed in “an especially heinous, cruel or depraved manner.” The trial court found that each of the three alternative factors was present. Although defendant does not challenge the findings of heinousness or depravity, our independent review of the record satisfies us that these elements were properly found. Defendant does, however, challenge the finding of cruelty.

Defendant contends that absent proof of “extended consciousness of the victim substantiating awareness of the pain of each of the multiple wounds,” a finding of cruelty cannot be sustained. “Cruelty” involves the victim's pain or suffering before death. State v. Richmond, 136 Ariz. 312, 666 P.2d 57, cert. denied, 464 U.S. 986, 104 S.Ct. 435, 78 L.Ed.2d 367 (1983). Evidence must exist beyond a reasonable doubt that the victim was conscious during the act of violence or infliction of wounds preceding the victim's death. State v. Poland, 144 Ariz. 388, 405, 698 P.2d 183, 200, aff'd, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1985). Our case law does not support defendant's assertion that a finding of cruelty requires that the victim be conscious for each and every wound.

When the officers arrived at the victim's residence, the apartment's condition evinced that a bloody battle had raged throughout every room in the apartment. Blood was splattered throughout the apartment and there were blood drops on the bathroom and kitchen floors. A concentration of blood drops in the kitchen, as well as the stream of dried blood down the victim's body and onto her bloodstained feet, indicated the victim stood for some time while being stabbed. The victim had three lacerations on her scalp and a stab wound to the left cheek. These injuries, although not fatal, caused a considerable amount of bleeding. The victim had lacerations on her right arm and bruises and cuts on her left hand, all of which were characteristic of defensive wounds. From the evidence of a vicious and prolonged beating, stabbing and rape, the trial judge could and did conclude that the victim endured great pain and suffering prior to death. We uphold the finding that the murder was committed in an especially cruel manner under A.R.S. § 13–703(F)(6).

8. Mitigating Circumstances

Defendant contends the trial court erred by not finding his alleged intoxication at the time of the murder a mitigating circumstance under A.R.S. § 13–703(G)(1). Defendant offered no evidence concerning intoxication at his sentencing hearing. He relied instead on the state's opening statement and the testimony of two trial witnesses as proof that his intoxication was a significant impairment. Intoxication, by itself, does not constitute mitigation. State v. Woratzeck, 134 Ariz. 452, 458, 657 P.2d 865, 871 (1982). Ample evidence exists that defendant's intoxication was not pronounced enough to impair significantly his capacity to appreciate his conduct or to conform to the law. Based upon our review of the record, we agree with the trial court's assessment of the evidence.

9. Initiative Measure on Jury Sentencing

Defendant contends that the Arizona legislature lacked the authority in 1973 to alter, by statute, a 1918 initiative providing for jury sentencing in first degree murder cases. The 1918 initiative provided: Every person guilty of murder in the first degree shall suffer death or imprisonment in the state prison for life, at the discretion of the jury trying the same, or, upon the plea of guilty the Court shall determine the same. Thus, prior to 1973, the jury or judge (in case of a guilty plea) was allowed full discretion in imposing the death sentence. See State v. McGee, 91 Ariz. 101, 111–112, 370 P.2d 261, 267–68, cert. denied, 371 U.S. 844, 83 S.Ct. 75, 9 L.Ed.2d 79 (1962). In response to the United States Supreme Court's decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the Arizona legislature enacted a new death penalty statute. It provided for the death penalty only in limited circumstances and provided for judge-sentencing. Laws 1973, ch. 138, § 5. See generally Note, Resurrection of the Death Penalty, Validity of Arizona's Response to Furman v. Georgia, 1974 Ariz.St.L.J. 257. Defendant contends that the 1973 statute violates article 4, part 1, § 1(6) of the Arizona Constitution which provides, in pertinent part: The ... power of the Legislature, to repeal or amend, shall not extend to initiative ... measures approved by a majority vote of the qualified electors. Ariz. Const. art. 4, pt. 1, § 1(6).

Defendant argues that the 1973 statute was an attempt by the legislature to repeal jury sentencing in death penalty cases as established by the 1918 initiative and is, therefore, void. Although we are remanding this particular case for resentencing, we deal with defendant's argument because we have not previously done so and its resolution determines the availability of the death sentence in this case as well as in other cases. Defendant's argument is controlled by Adams v. Bolin, 74 Ariz. 269, 247 P.2d 617 (1952). In Adams, we noted that there was a “marked distinction between a law approved by a majority of the qualified electors and a law approved by a majority of the electors voting thereon.” Id. at 279, 247 P.2d at 620. We held that the anti-repeal provision of article 4 applied only to initiative measures approved by a majority of qualified electors, not merely a majority of those actually voting.

For the November 5, 1918 election, at which the death penalty amendment was approved, the record shows there were 79,357 registered voters in Arizona. The election results show that 20,443 voted for the amendment, 10,602 voted against. Laws of Arizona, 1919 at 21. Thus, like the initiative in question in Adams, it passed by a majority of the electors who actually voted, but not by a majority of all qualified electors. As noted in Adams, if the framers intended “qualified electors” under subsection 1(6) to be limited to those who actually voted upon the measure, the words “voting thereon” could have been added. Id. at 273, 247 P.2d at 619. Furthermore, as one commentator noted: The original proposition provided that the governor could not veto any “measures initiated by or referred to the people.” It is a fair inference that the final language—with “qualified electors” substituted for “people”—[is consistent with] the broad reading accorded it by the Adams court. Bakken, The Arizona Constitutional Convention of 1910, 1978 Ariz.St.L.J. 1, 12. Adams has been on the books for nearly 40 years. Defendant argues that it was wrongly decided and that we should overrule it. We decline to do so.

DISPOSITION

With respect to the convictions, the issues raised on appeal present no error, and our independent review reveals no fundamental error. Therefore, the convictions are affirmed, as are all the sentences except the death sentence on the murder count. Because one of the two statutory aggravating circumstances found by the trial court must be set aside, we remand for resentencing on the murder count because we do not know and cannot ascertain what result would have obtained but for that finding. In doing so, we are cognizant that defendant has also made several other attacks on the Arizona death penalty scheme. These attacks are not peculiar to this particular case and we have recently dealt with most, if not all, of them in other cases. In the event defendant again receives the death penalty, another appeal is mandated. See Rules 31.2(b), Ariz.R.Crim.P., 17 A.R.S. In that eventuality, we will consider any death penalty arguments defendant then advances given the state of the record and the law at that time.

GORDON, C.J., FELDMAN, V.C.J., and CAMERON and CORCORAN, JJ., concur.

State v. Lopez, 175 Ariz. 407, 857 P.2d 1261 (Ariz. 1993). (Direct Appeal After Remand)

After his conviction for murder was affirmed but sentence of death was reversed, 163 Ariz. 108, 786 P.2d 959, defendant was again sentenced to death by the Superior Court, Maricopa County, Peter T. D'Angelo, J., and he appealed. The Supreme Court, Moeller, Vice Chief Justice, held that: (1) evidence sustained finding that homicide was cruel, heinous, and depraved; (2) evidence sustained rejection of intoxication as mitigating factor; and (3) defendant's conduct during incarceration was not a mitigating factor sufficient to relieve him from the death penalty. Affirmed.

MOELLER, Vice Chief Justice.

PROCEDURAL HISTORY A jury convicted defendant of first degree murder and other offenses. The trial court then sentenced him to death. In an earlier appeal, all the convictions were affirmed, but the death sentence was vacated and remanded for resentencing. State v. Lopez, 163 Ariz. 108, 786 P.2d 959 (1990) ( Lopez I ). The trial court then conducted a second sentencing hearing and again sentenced defendant to death. The sentence has been automatically appealed to this court, and we have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 13-4031.

FACTS

On October 29, 1986, Phoenix police responded to a “check welfare” call at an apartment in Phoenix. There police found the victim's body and evidence of a terrible and prolonged struggle. A window had been broken from the inside out, scattering glass for seven to eight feet. A screen door bore a concave impression matching the shape of a body. A bookcase was knocked over, and broken pieces of ceramic were found on the bed, the floor, and in the victim's hair. Blood was splattered on the walls in the kitchen, bedroom, and bathroom. Blood was smeared on the screen door, and, in the kitchen, police found bloody footprints, blood on the refrigerator, blood on the stove, and diluted blood around the kitchen sink.

The victim was a 59-year-old woman, 5' 2? tall, and weighed 124 pounds. Her face was covered with a pillow, she was blindfolded with her pajama bottoms, and her mouth was gagged with a scarf. She had three stab wounds in the left scalp that extended to her skull, a stab wound on her left cheek, approximately 23 stab wounds in her left breast and upper chest, and her throat had been cut. Death was caused by the slit throat and multiple stab wounds to the chest. All of the wounds were inflicted pre-mortem or, at least, a very short time after death. In addition to the stab wounds, the victim had bruises on her left cheek and left hand, and defensive wounds on her right arm. From the flow of blood, the medical examiner determined that she had been standing at some point after having been stabbed. Semen was found in her vagina and anus.

At the second sentencing hearing, additional evidence was submitted in addition to that which was already before the court. On the issue of whether the murder was especially cruel, heinous, or depraved, the defense introduced the testimony of Dr. Phillip Keen, a Yavapai County medical examiner. On the issue of intoxication, the defense submitted the videotaped deposition of Dr. Otto Bendheim, a psychiatrist, and the taped pretrial statements of two witnesses who had seen the defendant on the night of the murder. Dr. Robert Dean, a psychiatrist, testified for the state on the intoxication issue and some arrest records were received in explanation of his opinion testimony. On the issue of mitigation by reason of defendant's in-custody behavior, the court received certain prison records and the testimony of Deputy Sheriff Rick Bailey. The trial judge again sentenced defendant to death, finding, as he had at the first sentencing, that the murder was especially cruel, heinous, and depraved and that there were no mitigating factors sufficiently substantial to call for leniency.

QUESTIONS PRESENTED

1. Was the murder especially cruel, heinous, or depraved under A.R.S. § 13-703(F)(6)? 2. Did the defendant present intoxication evidence sufficient to establish a statutory mitigating factor under A.R.S. § 13-703(G)(1)? 3. Did defendant prove, as a mitigating circumstance, that he was pathologically intoxicated? 4. Did the trial court erroneously refuse to consider intoxication evidence as a nonstatutory mitigating factor? 5. Did the defendant prove that his conduct during incarceration was a nonstatutory mitigating factor sufficiently substantial to call for leniency? 6. Is death by infliction of lethal gas cruel and unusual punishment? 7. Was the defendant constitutionally entitled to a jury determination of aggravating and mitigating factors? 8. Is the Arizona capital sentencing scheme unconstitutional because it does not sufficiently channel the sentencer's discretion? 9. Is this court required by the United States Constitution to conduct a proportionality review in capital cases?

DISCUSSION

I. Was the murder Especially Cruel, Heinous, or Depraved Under A.R.S. § 13-703(F)(6)? Defendant argues that the finding that the murder was committed in an especially cruel, heinous, and depraved manner is not supported by the evidence. The state contends that, because this court already determined, in the first appeal, that the murder was especially cruel, heinous, and depraved, see Lopez I, 163 Ariz. at 114-15, 786 P.2d at 965-66, we should not reexamine the issue. However, some of the new evidence offered at the second sentencing bears on this issue; therefore, we will reexamine it.

A. Cruelty

Dr. Phillip Keen testified for defendant that, in his opinion, the wounds defendant inflicted on the victim over a three-to-fifteen minute period were all directed at killing her. From this testimony, defendant argues that none of the wounds was inflicted solely to cause pain. He claims there is no evidence of torture; he simply continued to stab the victim until she died. Defendant argues that the especially cruel aggravating factor is intended to ferret out those murderers who inflict gratuitous physical abuse on their victim. Because he did not do that, he argues, the murder was not especially cruel. We disagree.

A victim need not be physically tortured for a murder to be especially cruel. State v. Lavers, 168 Ariz. 376, 392, 814 P.2d 333, 349, cert. denied, 502 U.S. 926, 112 S.Ct. 343, 116 L.Ed.2d 282 (1991). A murder is especially cruel if the victim consciously experiences physical abuse or mental anguish before death. State v. Amaya-Ruiz, 166 Ariz. 152, 177, 800 P.2d 1260, 1285 (1990), cert. denied, 500 U.S. 929, 111 S.Ct. 2044, 114 L.Ed.2d 129 (1991); State v. Fulminante, 161 Ariz. 237, 255, 778 P.2d 602, 620 (1988), aff'd, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Mental suffering includes uncertainty over one's ultimate fate. State v. Gillies, 135 Ariz. 500, 513, 662 P.2d 1007, 1020 (1983), cert. denied, 470 U.S. 1059, 105 S.Ct. 1775, 84 L.Ed.2d 834 (1985). The victim's suffering, however, must have been foreseeable to the defendant. State v. Hinchey, 165 Ariz. 432, 438, 799 P.2d 352, 358, cert. denied, 499 U.S. 963, 111 S.Ct. 1589, 113 L.Ed.2d 653 (1991).

The victim in this case was stabbed 23 times in the upper chest and three times in the abdomen. Her throat was cut. She was sexually assaulted and had semen in both her vagina and anus. She had defensive wounds on her forearms. There were bruises on her body. The apartment was knocked asunder, evidencing a terrific struggle for life during which time the victim was obviously conscious. The top of the victim's shoes were bloodied, indicating that she had been standing up at some point after being stabbed. This grisly and ultimately fatal nightmare lasted from three minutes to as long as 15 minutes. Obviously, the victim endured great physical and mental suffering over a relatively protracted period of time while she struggled for her life. Her suffering was not only foreseeable, it was unavoidably obvious to the defendant. This murder was undoubtedly especially cruel. See Lavers, 168 Ariz. at 393, 814 P.2d at 350 (in determining whether a murder is especially cruel, this court looks at the entire murder transaction).

B. Heinousness and Depravity

Defendant also argues that the trial court's especially heinous and depraved finding should be set aside. Even if we agreed, the A.R.S. § 13-703(F)(6) aggravating factor would still be satisfied because the elements of cruelty, heinousness, or depravity are stated in the disjunctive, and the presence of any of the three is sufficient. See Fulminante, 161 Ariz. at 254, 778 P.2d at 619. Nonetheless, we have reexamined the record in light of defendant's argument. In the first appeal, defendant did not challenge the findings of heinousness and depravity. Our independent review of the record, however, led us to agree with the trial court's findings. Lopez I, 163 Ariz. at 114-15, 786 P.2d at 965-66. At the second sentencing, the trial court made the following finding: 7. The Defendant did commit the offense in an especially heinous and depraved manner. The Defendant's sexual assault of the victim, whether it occurred before or after death, the securing of the pajama bottoms about her eyes, the cramming of a scarf in the victim's mouth, all constitute evidence of the Defendant's heinous and depraved mind.

Defendant argues that the trial court's findings do not comply with the standards set forth in State v. Gretzler, 135 Ariz. 42, 51-52, 659 P.2d 1, 10-11, cert. denied, 461 U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). His argument suggests that because the judge did not specifically mention the Gretzler factors in the special verdict, it is deficient. There is no such requirement.

Heinousness and depravity focus on the defendant's state of mind at the time of the offense. State v. Amaya-Ruiz, 166 Ariz. at 178, 800 P.2d at 1286. In Gretzler, the court set forth several specific factors, which earlier cases suggested could appropriately be considered in determining whether a murder was especially heinous or depraved. They were: (1) whether defendant relished the murder; (2) whether defendant inflicted gratuitous violence beyond that necessary to kill; (3) whether the defendant mutilated the victim's body; (4) whether the crime was senseless; and (5) whether the victim was helpless. Gretzler, 135 Ariz. at 51-52, 659 P.2d at 10-11.

Several of these items are satisfied here. The defendant inflicted gratuitous violence on the victim. Notwithstanding Dr. Keen's testimony that the wounds were all consistent with an attempt to inflict death, and the defendant's interpretation of that testimony as meaning that he repeatedly stabbed the victim out of surprise that she did not immediately die, the clear fact is that the multiple stab wounds in the chest and the abdomen, along with the throat cutting, certainly qualify as gratuitous violence. We reject defendant's argument that he should be credited with a wholesome mind because he chose a murder weapon that did not cause death instantaneously. Moreover, the knife wounds to the face, the sexual assault, the binding of the victim's eyes, and the gagging of her mouth were not directed toward killing the victim and clearly bespeak gratuitous violence.

The murder also was senseless. Although the defendant clearly intended to kill the victim, there was no reason to do so. The sexual assault could have been committed without the murder, and no other reason for the killing is apparent from the record. Nothing in the record suggests that the defendant and the victim knew each other or had any prior contact. This case also meets the “helplessness” test of Gretzler. The victim was a 59-year-old, 124-pound woman. The defendant is a young man, then aged 24, and in apparent good health. The victim was gagged so she could not call for help. At some point, she was blindfolded so she could not see. Although there was evidence of a prolonged struggle, for all practical purposes this uneven match was over after the first serious wounds were inflicted on the victim. In prior cases, we have held that a victim is helpless when disabled and unable to resist the murder. See State v. Chaney, 141 Ariz. 295, 312-13, 686 P.2d 1265, 1282-83 (1984) (victim had already been shot, and defendant knew that the victim could not resist when he shot him again); State v. Harding, 137 Ariz. 278, 670 P.2d 383 (1983) (although originally resisting, the victims were tied up and unable effectively to resist prior to being killed), cert. denied, 465 U.S. 1013, 104 S.Ct. 1017, 79 L.Ed.2d 246 (1984). In short, on this second appeal we again agree with the trial court's finding that this killing was especially heinous and depraved within the meaning of A.R.S. § 13-703(F)(6).

II. Intoxication as a Mitigating Factor

Defendant contends that the trial court should have mitigated his death penalty to life imprisonment because of his alleged intoxication at the time of the crimes. He advances three separate, but related, arguments concerning intoxication. We address them separately.

A. Statutory Mitigation for Intoxication Under A.R.S. § 13-703(G)(1)

Any mental or physical condition, including intoxication, is considered mitigation if “the defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution.” A.R.S. § 703(G)(1). Although defendant had always denied he was intoxicated at the time of the offense, he urged intoxication as a statutory mitigating circumstance at both of his sentencings. At the first sentencing, the trial court weighed and rejected intoxication as a statutory mitigating factor by the trial court. We agreed with that finding in Lopez I, 163 Ariz. at 115, 786 P.2d at 966.

At the second sentencing, defendant used the taped pretrial statements of two women to supplement their trial testimony. These two witnesses lived together in an apartment. One of them talked to defendant at a park near her apartment early in the evening of the murder and described him as then being “calm.” Later, when defendant appeared at the witnesses' apartment to “talk,” one of them described him as drunk. In a seeming invitation, defendant asked one of the witnesses if she “got high”; she said no, and defendant then went behind her apartment. According to one of the witnesses, when he returned approximately five minutes later, defendant was shaking and unable to stand up without leaning on a pole. He then tried to prevent the witness from going inside, and the other witness came to help her. This other witness stated that defendant was “on something.” The events at the apartment occurred between 11:30 p.m. and midnight. The murder occurred at approximately 1:30 a.m.

The trial court weighed this new evidence along with all of the other evidence in the record. The judge again found it wanting. Given the totality of the evidence, the time lapse involved after the witnesses' observations, the defendant's own denial of intoxication, and the defendant's obvious recollection of details of the crime, see Lopez I, 163 Ariz. at 111, 786 P.2d at 962, we are also satisfied that defendant has failed to carry his burden under A.R.S. § 13-703(G)(1).

B. Idiosyncratic or Pathological Intoxication

At his second sentencing, defendant advanced a new theory that he might have been suffering from idiosyncratic or pathological intoxication, as distinguished from normal intoxication. Idiosyncratic or pathological intoxication is a condition, quite rare, in which an individual exhibits sudden and unpredictable behavior very shortly after ingesting a very small amount of alcohol. Defendant argues that he proved by a preponderance of the evidence that he suffers from this condition and that the trial court erred when it failed to find this a mitigating circumstance.

Defendant presented the testimony of Dr. Otto Bendheim, who noted that defendant has displayed antisocial behavior at other times while intoxicated. Dr. Bendheim said that persons who suffer from pathological intoxication often deny their intoxication, as did this defendant. Because he lacked adequate confirmatory evidence, such as that the defendant would go “really wild” after only a beer or two, Dr. Bendheim could not make a diagnosis of pathological intoxication with any degree of medical certainty. He did, however, tender a tentative diagnosis of pathological intoxication stating, “I will emphasize that I will speculate, but on fairly good grounds, that this murder would not have occurred,” but for the defendant's intoxication.

Dr. Dean, a psychiatrist, testified that defendant did not suffer from idiosyncratic intoxication disorder, although he did become sexually aggressive when drinking. He testified that those few persons suffering from this disorder usually have a predisposing physical condition, such as brain damage. Both doctors agreed there was no evidence of any such predisposing condition. Furthermore, four days after the murder in this case, and before he was apprehended, defendant, while admittedly intoxicated, planned and methodically carried out a sexual assault. Dr. Dean concluded that these actions were inconsistent with pathological intoxication. After considering all of the factual evidence in the case and the expert testimony on the issue of pathological intoxication, the trial court made the following finding:

Testimony was presented on behalf of the Defendant that he possibly suffered from a condition known as “pathological intoxication.” Said testimony did not rise to any level of medical certainty, but rather was based upon a “hypothesis” or “speculation.” The State presented evidence to rebut the “hypothesis” and “speculation,” and the Court specifically finds that the Defendant failed to meet his burden of proof of establishing this mitigating factor by a preponderance of the evidence.

Even though this court reviews the evidence on sentencing issues in capital cases independently, the fact that the trial court found that the evidence did not establish a mitigating factor is an important factor in our analysis. State v. Fierro, 166 Ariz. 539, 553, 804 P.2d 72, 86 (1990) (court deferred to trial judge's determination that the evidence was insufficient to establish that the defendant's intoxication impaired his ability to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law, because the determination was based on credibility and weight). See State v. Wallace, 160 Ariz. 424, 426, 773 P.2d 983, 985 (1989) (court not compelled to accept the opinion of a defense expert where other psychiatric testimony contradicted that opinion and the defendant himself contradicted the expert's factual testimony), cert. denied, 494 U.S. 1047, 110 S.Ct. 1513, 108 L.Ed.2d 649 (1990); State v. McMurtrey, 151 Ariz. 105, 109, 726 P.2d 202, 206 (1986) (no finding of significant impairment when the state experts are unequivocal in their findings while defense experts are less exact in their findings), cert. denied, 480 U.S. 911, 107 S.Ct. 1359, 94 L.Ed.2d 530 (1987). Based on our independent review, we agree with the trial court's determination that defendant failed to prove that he suffered from idiosyncratic or pathological intoxication. Therefore, it is not a mitigating circumstance, statutory or otherwise.

C. Did the Trial Court Refuse to Consider Intoxication As a Non-Statutory Mitigating Factor?

Defendant contends that our ruling in Lopez I, as well as other Arizona case law, led the trial court to the erroneous conclusion that it must disregard evidence of intoxication unless such evidence rose to the statutory standard specified in A.R.S. § 13-703(G)(1). Under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), defendant contends that his death sentence is unconstitutional and must be vacated. We disagree. In making this argument, defendant overlooks or ignores established Arizona statutory provisions and case law dealing with the precise issue and, instead, seeks to contort a selected passage from Lopez I dealing with an entirely different issue.

Before Lockett, Arizona's death penalty statute, then A.R.S. § 13-454, listed certain mitigating circumstances without any “catchall” provision. At that time, this court believed that it could only consider mitigating factors that had been specified by the legislature. See State v. Bishop, 118 Ariz. 263, 269, 576 P.2d 122, 128, vacated, 439 U.S. 810, 99 S.Ct. 69, 58 L.Ed.2d 103 (1978). Indeed, the statute itself confined the court's consideration of both aggravating and mitigating circumstances to those listed in the statute. See Laws 1973, ch. 138, § 5. Lockett changed all that. In Lockett, the Court, in a landmark death penalty case, held “in all but the rarest kind of capital case [the sentencer must] not be precluded from considering as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Lockett, 438 U.S. at 604, 98 S.Ct. at 2964-65 (footnotes omitted). In State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978), cert. denied, 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1979), the defendant had been sentenced under the old statute and the trial court had refused to consider any evidence of mitigation of a type not enumerated in that statute. Lockett was decided while Watson's appeal was pending in this court. This court, recognizing the constitutional infirmity of the Arizona statute barring evidence of mitigating factors not expressly enumerated, declared that portion of the statute unconstitutional, stating:

It is apparent that this restriction on the use of mitigating circumstances does not now pass constitutional muster. We hold that A.R.S. § 13-454(F), insofar as it limits the right of the defendant to show additional mitigating circumstances, is unconstitutional. Watson, 120 Ariz. at 444-45, 586 P.2d at 1256-57. Shortly after Watson, the Arizona legislature amended the mitigation portions of the death penalty statute to conform to the constitutional requirements of Lockett and Watson. See A.R.S. § 13-703(G)(1). This amended statute, under which this defendant was sentenced, provides: Mitigating circumstances shall be any factors proffered by the defendant or the state which are relevant in determining whether to impose a sentence less than death, including any aspect of the defendant's character, propensities or record and any of the circumstances of the offense, including but not limited to the following: [then follows a list of statutorily recognized mitigating circumstances, including subsection (1) on capacity]. (emphasis added.)

Thus, Arizona case law and statutory law both comply with the constitutional command of Lockett that the only limitation on mitigating evidence is that it be relevant. In 1983, this court had before it subsection (1) of the mitigation statute, the same subsection implicated in this case. We clearly prescribed what a trial court must do with evidence of lack of capacity that falls short of statutorily prescribed mitigation: In order to remain faithful to Lockett and Watson, ... [t]he court must consider the offered evidence further to determine whether it in some other way suggests that the defendant should be treated with leniency.... The trial court is not required to find a mitigating circumstance; nor is it required to make a statement that none has been found. The trial court must, however, consider the evidence. State v. McMurtrey, 136 Ariz. 93, 102, 664 P.2d 637, 646, cert. denied, 464 U.S. 858, 104 S.Ct. 180, 78 L.Ed.2d 161 (1983).

In Fierro, 166 Ariz. at 553-54, 804 P.2d at 86-87, this court applied the Lockett principles in an intoxication case. In Fierro, although the defendant did not raise mental impairment as a defense to the crime itself, at sentencing he offered evidence of mental impairment through intoxication. The trial court concluded that the evidence fell short of showing the subsection (1) statutory mitigating circumstance. Although deferring to the trial court's finding, pursuant to its obligation to independently review all mitigating evidence, this court concluded that the evidence of intoxication, while not rising to the level of establishing that the defendant was “significantly impaired” as used in section 13-703(G)(1), nevertheless constituted appropriate evidence of mitigation. When combined with other factors, this finding warranted relief from the death penalty. Id. Although it is true that Fierro was not issued until some months after the second sentencing in this case, it is equally clear that Fierro announced no new point of law in Arizona, but merely applied the case law and the statute that have existed since the Lockett case.

Notwithstanding this extensive Arizona statutory and case law background, the defendant takes our 1990 language in Lopez I out of context to argue that the trial court must somehow have felt precluded from considering the evidence of intoxication. In Lopez I, defendant argued that the trial court erroneously concluded that the evidence of intoxication did not satisfy A.R.S. § 13-703(G)(1). No other argument concerning intoxication evidence was presented. In reviewing the issue that was presented and decided, we stated: Intoxication, by itself, does not constitute mitigation. State v. Woratzeck, 134 Ariz. 452, 458, 657 P.2d 865, 871 (1982). Ample evidence exists that defendant's intoxication was not pronounced enough to impair significantly his capacity to appreciate his conduct or to conform to the law. Based upon our review of the record, we agree with the trial court's assessment of the evidence. Lopez I, 163 Ariz. at 115, 786 P.2d at 966.

In Woratzeck, there is also no indication that the defendant made other than a statutory argument. The burden of proving mitigation is on the defendant, A.R.S. § 13-703(C), and the duty to call such evidence to the court's attention also is on the defendant. It is inconceivable that the trial judge in this case read the isolated language in Lopez I dealing with one issue as overruling other cases, including those of the United States Supreme Court. Defendant does not even attempt to explain how anyone would also read the Lopez I language as overruling the post- Lockett mitigation statute.

The trial judge in this case was not misled. In his special verdict, he expressly stated that “the prosecution and defendant were given the opportunity to present evidence and argument as to the adequacy or inadequacy of the evidence to establish the existence of ... any of the mitigating circumstances set forth in A.R.S. § 13-703(G) and any of the mitigating circumstances of any nature whatsoever whether specified in the statute or not.” (emphasis added.) In his concluding portion of the special verdict he reiterated that “the prosecution and the defendant have been permitted to rebut any information received at the hearing, including information presented at the trial, and were given fair opportunity to present argument as to the adequacy of the information to establish the existence ... of any mitigating circumstances whether listed in A.R.S. § 13-703(G) or not.” (emphasis added.) We note parenthetically that the defendant did not argue in the trial court what he argues here, i.e., that the trial court should expressly consider the intoxication evidence as mitigation even if it fell short of statutory mitigation, nor did the state ever argue to the contrary. When the statute and case law so clearly show that the defendant may offer anything in mitigation, unlimited by statutory constraints, we will not presume that the trial judge made up a contrary rule of law and silently applied it, all the while denying it.

The defendant points out, however, that while this case was pending in this court, a divided panel of the United States Court of Appeals for the Ninth Circuit issued its opinion in Jeffers v. Lewis, 974 F.2d 1075 (9th Cir.1992) (2-1 decision). In that case, two members of the Ninth Circuit construed Arizona law much as the defendant in this case would have us construe it. Id. at 1079. Because we disagree with the defendant's arguments, we also necessarily respectfully disagree with the conclusions of our two Ninth Circuit colleagues.

III. Defendant's Conduct During Incarceration

Defendant argues that the trial court should have found that his adjustment to incarceration was a mitigating factor sufficient to relieve him from the death penalty. He contends that he has evolved into a model prisoner and, under State v. Watson, 129 Ariz. 60, 628 P.2d 943 (1981), this fact should be considered as mitigation. In Watson, we held that behavior in custody after a death penalty has been imposed may be considered in mitigation. Id. at 63-64, 628 P.2d at 946-47. The court there found the defendant's adjustment to incarceration to be mitigating where the defendant had not only been a model prisoner but had also furthered his education while in prison. Even in Watson, the in-custody behavior was only one of several mitigating circumstances that led this court to reduce a death penalty to life. Id. at 64, 628 P.2d at 947. The court also relied on several other substantial mitigating factors: defendant was only 21 at the time of the crime, the victim had shot twice at the defendant before the defendant shot at him, and the co-defendants had received only a life sentence. Id. In Watson, these factors, in combination with the factor of defendant's in-custody behavior, led the court to reduce Watson's sentence.

We believe, however, that we should subject claims of in-custody good behavior to close scrutiny. On this point, the facts offered in mitigation are not persuasive. Defendant was, at best, a model prisoner only while at the county jail awaiting resentencing. Before that, he had a long history of disciplinary problems while in prison, including several incidents while originally on death row. The trial court correctly observed that defendant would be expected to behave himself in county jail while awaiting resentencing. Given his overall prison record, the trial court found defendant's behavior in prison was not mitigating. We agree with the trial court. See State v. Atwood, 171 Ariz. 576, 655, 832 P.2d 593, 672 (1992) (finding that even where the defendant had changed his goals and behavior in prison, that was not enough to find that the defendant was a model prisoner and was therefore not a mitigating circumstance), cert. denied, 506 U.S. 1084, 113 S.Ct. 1058, 122 L.Ed.2d 364 (1993).

IV. Other Issues

The defendant advances, no doubt in order to preserve them for federal review, several additional contentions that have been decided adversely to him by this court. He contends that death by infliction of lethal gas is cruel and unusual punishment. This court has rejected that argument. State v. Greenway, 170 Ariz. 155, 160, 823 P.2d 22, 27 (1992); State v. Stanley, 167 Ariz. 519, 532, 809 P.2d 944, 957, cert. denied, 502 U.S. 1014, 112 S.Ct. 660, 116 L.Ed.2d 751 (1991); State v. Williams, 166 Ariz. 132, 142, 800 P.2d 1240, 1250 (1987), cert. denied, 500 U.S. 929, 111 S.Ct. 2043, 114 L.Ed.2d 128 (1991). At least one federal court has rejected this argument as well. Gray v. Lucas, 710 F.2d 1048, 1061 (5th Cir.), cert. denied, 463 U.S. 1237, 104 S.Ct. 211, 77 L.Ed.2d 1453 (1983).

Defendant argues that he was entitled to a jury trial on aggravating and mitigating factors. The Ninth Circuit has rejected this argument. See Clark v. Ricketts, 958 F.2d 851, 859 (9th Cir.1991) (relying on Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990)), cert. denied, --- U.S. ----, 113 S.Ct. 117, 121 L.Ed.2d 73 (1992). We have agreed with the Ninth Circuit in State v. Landrigan, 176 Ariz. 1, 6, 859 P.2d 111, 116 (1993); see also State v. Spencer, 176 Ariz. 36, 859 P.2d 146 (1993).

Defendant contends that the Arizona death penalty statutes violate the Eighth Amendment because they do not sufficiently channel the sentencer's discretion. We rejected this argument in Greenway, 170 Ariz. at 164, 823 P.2d at 31. Finally, defendant contends that we should conduct a proportionality review, but we rejected proportionality reviews in State v. Salazar, 173 Ariz. 399, 844 P.2d 566 (1992), cert. denied, 509 U.S. 912, 113 S.Ct. 3017, 125 L.Ed.2d 707 (1993).

DISPOSITION

Having conducted an independent review of the record, we agree with the trial judge that the defendant murdered the victim in an especially cruel, heinous, and depraved manner and that there are no mitigating circumstances, statutory or otherwise, sufficiently substantial to call for leniency. The sentence of death is affirmed.

FELDMAN, C.J., and CORCORAN, ZLAKET and MARTONE, JJ., concur.

Lopez v. Ryan, 630 F.3d 1198 (9th Cir. 2011). (Habeas)

Background: State prisoner petitioned for writ of habeas corpus after he was convicted of first-degree murder and sentenced to death and he was denied relief on his direct appeal and petitions for post-conviction relief, 163 Ariz. 108, 786 P.2d 959 and 175 Ariz. 407, 857 P.2d 1261. The United States District Court for the District of Arizona, Stephen M. McNamee, J., 2008 WL 2783282 and 2008 WL 4219079, denied petition. Prisoner appealed.

Holdings: The Court of Appeals, McKeown, Circuit Judge, held that: (1) prisoner had not been denied individualized sentencing determination; (2) prisoner had not been diligent in his state post-conviction proceedings in developing claim that his attorney at sentencing had provided ineffective assistance by not furnishing psychiatric expert with broad range of biographical data and family and social history that were necessary for proper diagnosis of pathological intoxication; (3) prisoner had not been prejudiced by counsel's alleged ineffective assistance by not providing expert with eyewitness testimony; (4) handwritten note that outlined evidence which resulted in conclusion that prisoner should not be prosecuted for subsequent sexual assault was not material under Brady; and (5) legal opinions contained in note, concluding that evidence was not sufficient to prosecute prisoner for subsequent sexual assault, did not constitute Brady material. Affirmed.

McKEOWN, Circuit Judge:

We consider here a challenge to the denial of habeas relief from a death sentence. Samuel Villegas Lopez, an Arizona state prisoner, appeals the district court's denial of his petition for a writ of habeas corpus challenging his capital sentence for first-degree murder. Lopez argues that, in violation of his Eighth and Fourteenth Amendment rights, he was denied an individualized sentencing determination because of then-binding Arizona law requiring that mitigating evidence be causally related to the crime; Lopez also argues that his attorney at his resentencing rendered ineffective assistance of counsel by failing to furnish his psychiatric expert with eyewitness testimony and background information necessary to an assessment of pathological intoxication, “a condition, quite rare, in which an individual exhibits sudden and unpredictable behavior very shortly after ingesting a very small amount of alcohol.” State v. Lopez (“ Lopez II ”), 175 Ariz. 407, 857 P.2d 1261, 1267 (1993). Finally, Lopez argues that, in violation of the Fourteenth Amendment's Due Process Clause, the government suppressed exculpatory evidence regarding an unrelated sexual assault arrest. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The record belies Lopez's arguments. The sentencing court expressly indicated that it considered all the mitigating evidence at Lopez's sentencing proceedings, and the Arizona Supreme Court independently reviewed the record on appeal. Id. at 1264–71. There is no basis to presume that the state court imposed a causal nexus requirement sub silentio. Although Arizona has a checkered past on this issue, the Arizona courts did not uniformly impose a causation requirement in capital sentencing cases during the time period in question. The state court examined all the mitigating evidence and found that it did not warrant leniency.

Lopez's ineffective assistance of counsel claim fails as well. Even assuming the district court erred in addressing procedural default sua sponte, Lopez is independently barred from seeking relief through his expanded allegations of ineffective assistance of counsel because he did not develop the factual basis for this claim in state court. See 28 U.S.C. § 2254(e)(2). Although Lopez raised in state court his narrower claim that counsel failed to provide his expert with eyewitness testimony, he cannot show that counsel's failure caused him prejudice. The trial court found the murder especially heinous, cruel, or depraved, and underscored that he had never seen a case “as bad as this one.” There is no “reasonable probability” that the duplicative testimony cited by Lopez would have changed the sentence.

Lopez's Brady claim is also without merit. The information in the undisclosed note was not “material” for Brady purposes. The note included legal opinions, which are not covered by Brady in the first instance, and facts cumulative of information available in previously released police reports. Lopez also cannot demonstrate that had the note been properly disclosed, the result of the sentencing proceeding would have been different. Consequently, under the deference owed to the state court under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104–132, 110 Stat. 1214, we affirm the decision of the district court.

Background

In 1987, Lopez was convicted of first-degree murder, two counts of sexual assault, kidnapping, and burglary for the rape and murder of a fifty-nine-year-old woman, Estefana Holmes.FN1 The trial court sentenced him to death on the basis of two aggravating circumstances: a prior felony conviction “involving the use or threat of violence on another person,” Ariz.Rev.Stat. § 13–703(F)(2) (1992), and the commission of an especially heinous, cruel, or depraved manner, id. § 13–703(F)(6) (1992); see also State v. Lopez (“ Lopez I ”), 163 Ariz. 108, 786 P.2d 959, 962 (1990). The Arizona Supreme Court affirmed the convictions, but held that Lopez's prior conviction for resisting arrest did not qualify as a felony offense under Arizona Revised Statutes § 13–703(F)(2) (1992). The court accordingly remanded for resentencing on the murder count. Lopez I, 786 P.2d at 965, 967. FN1. The facts of the crime, which are brutal, are summarized by the Arizona Supreme Court at State v. Lopez, 163 Ariz. 108, 786 P.2d 959, 961–62 (1990), and Lopez II, 857 P.2d at 1263–64. Because this appeal does not turn on these facts, we do not restate them here.

Lopez's resentencing was held in 1990. The trial court again sentenced Lopez to death, finding that the murder was committed in an especially cruel, heinous, or depraved manner and that no mitigating circumstances were sufficient to warrant leniency. Lopez II, 857 P.2d at 1264. After an independent review of the record, the Arizona Supreme Court affirmed. Id. at 1271.

Lopez petitioned for post-conviction relief. The trial court held that “no material issue of fact or law exist[ed] which would be served by any further proceedings” and dismissed the petition. With respect to Lopez's claims of ineffective assistance of counsel, the court found that Lopez failed to show that his counsel's “performance fell below prevailing professional norms” and that there was no “reasonable probability that the result of the trial or sentencing procedures would have been different [but for] counsel's alleged ineffective assistance.” The Arizona Supreme Court summarily denied Lopez's petition for review.

Lopez then filed a petition for a writ of habeas corpus in federal district court. The district court denied Lopez's petition. In particular, the district court rejected claim 7 of Lopez's petition, which alleged that the trial judge failed to consider mitigating evidence at sentencing due to Arizona law impermissibly precluding consideration of such evidence absent a causal nexus to the crime. The district court also found that portions of claim 1(C)—Lopez's ineffective assistance claim challenging counsel's failure to prepare his psychiatric expert at sentencing—substantially altered the claim he had presented in his state post-conviction proceeding and were therefore procedurally barred. The district court denied the exhausted portion of claim 1(C) on the merits. The district court also denied Lopez's Brady claim as procedurally defaulted because Lopez failed to present the issue in state court. The district court held that even if the government's failure to disclose the information constituted cause to excuse the procedural default, Lopez failed to establish that the note was prejudicial.

Analysis

Because Lopez filed his habeas petition in 1998, AEDPA applies. We review de novo a district court's denial of a § 2254 habeas corpus petition. Luna v. Cambra, 306 F.3d 954, 959, as amended, 311 F.3d 928 (9th Cir.2002). In conducting review of a state court decision, we “look to the last reasoned state-court decision.” Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir.2003). Under AEDPA, courts may grant habeas relief only if the state court's decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 407–09, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). This is a “highly deferential standard for evaluating state-court rulings,” Lindh v. Murphy, 521 U.S. 320, 333 n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), which “demands that state-court decisions be given the benefit of the doubt,” Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam). In addition, a petitioner may be entitled to relief if the state court's factual determination rested on an unreasonable evidentiary foundation. 28 U.S.C. § 2254(d)(2). However, state court findings of fact are presumed correct unless rebutted by clear and convincing evidence. Id. § 2254(e)(1).

I. Whether Lopez was denied an individualized sentencing determination (claim 7)

We begin with Lopez's claim that he was denied an individualized sentencing determination because the state court ignored relevant mitigating evidence. As a preliminary matter, we note that the trial judge—at both Lopez's original sentencing in 1987 and resentencing in 1990—expressly stated that he considered all the mitigating evidence and found that it did not warrant leniency. The Arizona Supreme Court also affirmed the sentencing court's analysis after an independent review of the record. Lopez I, 786 P.2d at 966; Lopez II, 857 P.2d at 1264–68, 1270–71. Nonetheless, Lopez argues that, at the time of his sentencing, Arizona law unconstitutionally barred consideration of mitigating evidence that was not causally related to the crime. Because the state court presumably adhered to this rule, Lopez argues, we should infer that it did not consider all the mitigating evidence and thus denied him an individualized sentencing in violation of his Eighth and Fourteenth Amendment rights. See Lockett v. Ohio, 438 U.S. 586, 608, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (holding that Eighth and Fourteenth Amendments require the individualized consideration of all mitigating factors in capital cases); Tennard v. Dretke, 542 U.S. 274, 287, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004) (same).

Lopez's claim is at odds with the law and the evidence. As we explained in Schad v. Ryan, “[a]bsent a clear indication in the record that the state court applied the wrong standard, we cannot assume the courts violated ... constitutional mandates.” 606 F.3d 1022, 1047 (9th Cir.2010) (per curiam), petition for cert. filed, 79 U.S.L.W. 3129 (U.S. Aug. 27, 2010) (No. 10–305). See also Bell v. Cone, 543 U.S. 447, 455, 125 S.Ct. 847, 160 L.Ed.2d 881 (2005) (per curiam) (explaining that “[f]ederal courts are not free to presume that a state court did not comply with constitutional dictates on the basis of nothing more than a lack of citation”). Here, there is no indication that the state court applied an impermissible requirement of a causal nexus between mitigating evidence and the crime. Indeed, the state court said the opposite—i.e., that it considered all the mitigating evidence on an independent review of the record and found that it did not warrant the exercise of leniency. As the Arizona Supreme Court forcefully stated:

The trial judge in this case was not misled.... In his concluding portion of the special verdict he reiterated that “the prosecution and the defendant have been permitted to rebut any information received at the hearing, including information presented at the trial, and were given fair opportunity to present argument as to the adequacy of the information to establish the existence ... of any mitigating circumstances whether listed in A.R.S. § 13–703(G) or not.” (emphasis added.) Lopez II, 857 P.2d at 1270.

Contrary to Lopez's argument, we have no reason to presume that a tacit causation rule underpinned the state court's decision. Our recent decision in Schad makes this clear. In Schad, the petitioner similarly argued that, contrary to the Supreme Court's dictates in Lockett and Tennard, “the [Arizona] state courts did not consider the evidence of his troubled childhood because they unconstitutionally required a ‘nexus' between his childhood abuse and his commission of [the] murder.” 606 F.3d at 1045. Reviewing Arizona case law, we explained that, “[b]efore Tennard was decided, Arizona courts recognized a nexus test, similar to that rejected in Tennard, to preclude consideration of evidence of childhood abuse unless the abuse bore a causal connection to the crime of conviction.” Id. at 1045–46. After Tennard, the Arizona Supreme Court “clarified that the nexus test affects only the weight of mitigating evidence, not its admissibility.” Id. at 1046 (citing State v. Newell, 212 Ariz. 389, 132 P.3d 833, 849 (2006)).FN2 However, the fact that the Arizona courts clearly did, at times, employ (or “recognize[ ]”) a causal nexus requirement does not mean that they always did so. Indeed, in Schad itself, we concluded that the Arizona courts did not apply a causation requirement when considering the defendant's mitigating evidence even though he was sentenced to death before Tennard was decided. Id. at 1046–47.

FN2. In his opening brief, Lopez argues that the Supreme Court's decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), marks the watershed in the Arizona courts' treatment of mitigating evidence. However, Ring has no bearing on whether Arizona courts applied an impermissible causation requirement in capital sentencing cases, and Lopez understandably backed away from this position in his reply brief.

Our review of the case law confirms Arizona's unsettled past with respect to this issue. Some cases decided prior to Tennard applied a causal nexus requirement in an impermissible manner.FN3 Other cases, however, properly looked to causal nexus only as a factor in determining the weight or significance of mitigating evidence.FN4 See Eddings v. Oklahoma, 455 U.S. 104, 114–15, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (holding that “[t]he sentencer, and the Court of Criminal Appeals on review, may determine the weight to be given relevant mitigating evidence”). Indeed, in several cases, the Arizona Supreme Court expressly took mitigating evidence into consideration when reducing a death sentence to life, regardless of any causal nexus to the crime.FN5

FN3. See, e.g., Styers v. Schriro, 547 F.3d 1026, 1035 (9th Cir.2008) (per curiam), cert. denied, ––– U.S. ––––, 130 S.Ct. 379, 175 L.Ed.2d 233 (2009). FN4. See, e.g., State v. Bocharski, 218 Ariz. 476, 189 P.3d 403, 426 (2008); State v. Pandeli, 215 Ariz. 514, 161 P.3d 557, 575 (2007); State v. Newell, 212 Ariz. 389, 132 P.3d 833, 849 (2006); State v. Djerf, 191 Ariz. 583, 959 P.2d 1274, 1289 (1998); State v. Mann, 188 Ariz. 220, 934 P.2d 784, 795 (1997); State v. Towery, 186 Ariz. 168, 920 P.2d 290, 310–11 (1996); State v. Medrano, 185 Ariz. 192, 914 P.2d 225, 229 (1996). FN5. See, e.g., State v. Trostle, 191 Ariz. 4, 951 P.2d 869, 888 (1997) (reducing sentence in light of various mitigating factors, including abusive childhood); State v. Rockwell, 161 Ariz. 5, 775 P.2d 1069, 1079 (1989) (concluding that “defendant's character and background, together with his age at the time of the murder and the unique circumstances of his conviction, cause us to conclude that a sentence of death is inappropriate”); Bocharski, 189 P.3d at 426 (reducing sentence to life, in part, because of defendant's difficult family background).

In light of this backdrop, which highlights a range of treatment of the nexus issue, there is no reason to infer unconstitutional reasoning from judicial silence. Rather, we must look to what the record actually says. See Schad, 606 F.3d at 1046–47. Because the state court made clear that it considered all the mitigating evidence and found it wanting, Lopez's claim fails.

II. Ineffective assistance of counsel (claim 1C)

A. Section 2254(e)(2)

We next turn to Lopez's ineffective assistance claim. At his resentencing in 1990, Lopez unsuccessfully sought to establish a mitigating factor of pathological intoxication based on the evaluation of his psychiatric expert, Dr. Otto Bendheim. Lopez attributes this failure to ineffective assistance of counsel. In his petition for post-conviction relief (“PCR petition”), Lopez specifically complained that counsel failed to provide Dr. Bendheim with the pretrial statements and trial testimony of Pauline Rodriguez and Yodilia Sabori describing his behavior on the night of the murder. This omission constituted ineffective assistance, Lopez argued, because Rodriguez and Sabori's statements were “stronger evidence of pathological intoxication than any items previously submitted to Dr. Bendheim.” The trial court declined to hold an evidentiary hearing and dismissed the petition. Lopez raised the same claim in his petition for review in the Arizona Supreme Court, which also ordered dismissal.

Lopez went on to broaden his ineffective assistance claim in his amended federal habeas petition. Coupled with his claim regarding the two witnesses, Lopez newly alleged that counsel failed to furnish Dr. Bendheim with a broad range of biographical data and family and social history that were necessary for a proper diagnosis. This information included the abandonment of Lopez's family by his father, his family's extreme poverty, Lopez's history of substance abuse and exposure to toxic substances, and his low education level. Lopez argued that an investigation into his personal history was necessary for Dr. Bendheim to establish a base line for his cognitive functioning, compare his functioning when intoxicated with the base line, determine if intoxication exacerbated any underlying psychiatric problems, assess him for any addictive disease, determine any neurologic deficits and the effects of intoxication on such deficits, and evaluate any other influences on his behavior or thought processes during the murder. FN6. Lopez denies that he broadened his claim in federal court. Rather, he argues that he fairly presented his claim to state court by alleging that counsel failed to provide Dr. Bendheim “all of the obviously relevant information” that was “necessary ... to render a complete diagnosis.” This argument fails as it is clear specifically from the face of the PCR petition that, by “relevant evidence,” Lopez meant the pretrial statements and trial testimony of Rodriguez and Sabori.

The state initially conceded that Lopez's ineffective assistance claim was “properly exhausted.” Nearly eight years later, however, the state sought to retract its concession, contending that Lopez's ineffective assistance claim went “far beyond” what was presented to the state court. The district court agreed with the state and dismissed claim 1C as procedurally defaulted. The parties strongly contest whether the state waived procedural default and whether the district court erred in reaching this issue sua sponte. We need not and do not address this issue, however, because we affirm the dismissal of Lopez's claim on an alternate ground. Even assuming that the district court should not have reached the issue of procedural default, Lopez failed to present any of the evidence in support of his expanded claim in state court. Thus, he is separately barred from seeking relief under 28 U.S.C. § 2254(e)(2).

Section 2254(e)(2) imposes a high bar on expanding the record to include evidence that was not presented in state court. The section provides: If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that— (A) the claim relies on— (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2). These “same restrictions apply a fortiori when a prisoner seeks relief based on new evidence without an evidentiary hearing.” Holland v. Jackson, 542 U.S. 649, 653, 124 S.Ct. 2736, 159 L.Ed.2d 683 (2004) (per curiam); accord Cooper–Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir.2005). The parties here chiefly dispute whether the statute's trigger—namely, the petitioner's “fail[ure] to develop the factual basis of a claim in State court proceedings”—applies to Lopez. FN7. Lopez argues that the state waived this argument by failing to raise it in district court. However, in its merits brief to the district court, the state expressly argued that Lopez did not satisfy § 2254(e)(2).

A petitioner “fail[s] to develop the factual basis of a claim in State court proceedings” under the opening clause of § 2254(e)(2) where “there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel.” Williams, 529 U.S. at 432, 120 S.Ct. 1479. Diligence “depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court; it does not depend ... upon whether those efforts could have been successful.” Id. at 435, 120 S.Ct. 1479. Lopez was not diligent in developing his claim. In his post-conviction proceedings, Lopez did not allege that his attorney at sentencing was ineffective in failing to investigate Lopez's personal history and to furnish Dr. Bendheim with those facts, but rather complained only that counsel failed to provide the doctor with the statements and testimony of Rodriguez and Sabori. The problem, then, is not simply that Lopez failed to develop the factual underpinnings of his claim—Lopez failed to present this claim altogether.

Although state law required Lopez to attach “[a]ffidavits, records, or other evidence currently available to [him] supporting the allegations” to his PCR petition, Ariz. R.Crim. P. 32.5, Lopez submitted none of the contested evidence regarding his childhood, mental health, or family and social history. Rather, consistent with his narrow ineffective assistance claim, the only evidence that Lopez attached to his PCR petition relating to claim 1C consisted of the pretrial interviews of Rodriguez and Sabori, and an affidavit of Dr. Bendheim attesting that these “new materials [made his] earlier diagnosis of pathological intoxication more probable than previously expressed.” Notably, Lopez does not contend that he lacked access to the information from his family members regarding family history even though he could presumably obtain it without court order and with minimal expense. See Dowthitt v. Johnson, 230 F.3d 733, 758 (5th Cir.2000) (holding that the petitioner was not diligent where he failed to present affidavits from family members and did not show that they could not be obtained absent an order for discovery or a hearing). Because Lopez was not diligent in presenting the new evidence at issue, no evidentiary hearing is required. Section 2254(e)(2) applies.FN8 In addition, Lopez cannot meet the requirements of § 2254(e)(2)(A)—that is, show that he makes a claim based on a new, retroactively applicable rule of constitutional law or “a factual predicate that could not have been previously discovered through the exercise of due diligence.” Thus, he is barred from seeking relief. See Cooper–Smith, 397 F.3d at 1241–42.

FN8. Lopez's claims that he was diligent in his state proceedings are unavailing. Lopez argues that the new evidence at issue merely “supplement [s] the facts supporting the claim [he] made in state court and would have been uncovered had the state court granted an evidentiary hearing.” But given the narrow nature of his ineffective assistance claim, the state court was justified in finding that “no material issue of fact or law exists which would be served by any further proceedings” and dismissing his petition without a hearing.

B. Original ineffective assistance of counsel claim

Because Lopez cannot rely on evidence that he failed to present in state court, we will only determine whether Lopez established his original ineffective assistance claim—namely, his claim that counsel performed deficiently and prejudicially by failing to furnish Dr. Bendheim with the statements and testimony of Rodriguez and Sabori. To prevail on an ineffective assistance claim, Lopez must show that counsel's performance was objectively deficient and that the deficient performance caused him prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Williams, 529 U.S. at 391, 120 S.Ct. 1495 (holding that Strickland is the “clearly established” federal law governing habeas claims of ineffectiveness of counsel under AEDPA). We “need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Rather, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ..., that course should be followed.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052.

To prepare his evaluation for the 1987 sentencing, Dr. Bendheim interviewed Lopez and reviewed police reports regarding the murder; prior charges and arrests; a statement by Raymond Hernandez, Pauline Rodriguez's husband; and descriptions of the crime scene. On this basis, Dr. Bendheim “hypothesi[zed]” that Lopez suffered from pathological intoxication, which he described as a condition that causes individuals who consume small amounts of alcohol to react in an “unexpected, unpredictable” manner that is “characterized frequently by extreme violence.” In particular, Dr. Bendheim noted a statement by Hernandez that Lopez was “mild and meek” when sober but “very mean” when drunk, along with information from defense counsel that other character witnesses described similar behavior patterns on Lopez's part. Although Lopez told Dr. Bendheim that he was not intoxicated on the night of the murder, the doctor did not believe him because other evidence indicated to the contrary.

At resentencing, Lopez's new counsel provided Dr. Bendheim with additional criminal records detailing other incidents in which Lopez had engaged in criminal and violent behavior—in particular, the pre-sentence investigation relating to his conviction for resisting arrest and a police report regarding an alleged sexual assault in 1986. Dr. Bendheim found that this new information corroborated his initial assessment. Based on the totality of the evidence, the doctor “speculate[d] that with a great preponderance of probability[,] not certainty, but probability” that but for Lopez's intoxication on the night of the crime, “the murder would not have occurred.” However, Dr. Bendheim underlined that he could offer only a “tentative diagnosis” of pathological intoxication, not a diagnosis with “medical certainty,” and that his diagnosis was “to a very large degree ... speculative.” This uncertainty was due to the fact that he was not present at the time of the crime to observe Lopez's behavior and that Lopez himself “could not confirm that he undergoes a significant personality change when intoxicated.”

In rebuttal, the state presented the testimony of Dr. Robert Dean, a psychiatrist and expert on alcoholism. Dr. Dean never met Lopez and had experienced only one encounter with a person presumed to suffer from pathological intoxication during his residency. However, Dr. Dean had read considerable amounts of material on the disorder and reviewed the documents on which Dr. Bendheim relied in order to assess Dr. Bendheim's evaluation.

Dr. Dean rejected Dr. Bendheim's diagnosis. Dr. Dean stated that pathological intoxication was uncommon, and he was not aware of any cases in his twenty-five years of psychiatric practice. He also noted that Lopez lacked the predisposing conditions to the disorder, such as advanced age and organic pathology in the brain. Focusing on a police report describing Lopez's behavior in the alleged sexual assault of Cecilia Rodriguez,FN9 Dr. Dean concluded that Lopez did not suffer a consistent, pathological response to minimal quantities of alcohol and that he did not show a pathological response to alcohol within the window of time that is typical of the disorder. Dr. Dean also specifically reviewed the pretrial statements and trial testimony of Rodriguez and Sabori and testified that those materials did not change his opinion. FN9. Cecilia Rodriguez is a different person than Pauline Rodriguez, whom we refer to throughout this opinion as “Rodriguez.”

At the resentencing, the judge found that Lopez failed to show pathological intoxication as a mitigating factor. In the court's view, Dr. Bendheim's testimony did not rise to any level of medical certainty, but rather rested upon a “ ‘hypothesis' or ‘speculation.’ ” In addition, “[t]he state presented evidence to rebut the ‘hypothesis' and ‘speculation.’ ” Lopez “failed to meet his burden of proof of establishing this mitigating factor by a preponderance of the evidence,” and thus the “mitigating circumstance [did] not exist.” The Arizona Supreme Court affirmed after an independent review of the record. Lopez II, 857 P.2d at 1267–68.

In his post-conviction proceedings, Lopez argued that sentencing counsel was ineffective for failing to furnish Dr. Bendheim with the eyewitness statements and testimony of Rodriguez and Sabori regarding Lopez's behavior on the night of the murder so that the doctor could make a more definitive diagnosis. Sabori attested in particular that she met Lopez in a neighborhood park on the night of the murder and talked with him from around 8 p.m. to 11:15 p.m. Sabori then went home to Rodriguez's apartment, where she was staying. About ten or fifteen minutes later, Lopez appeared at her front door drunk. Lopez asked Sabori if she got high, and she told him no. At that point, Lopez disappeared down an alley for a few minutes; when he returned he was shaking, unsteady, and belligerent. When Sabori tried to go into the house, Lopez closed the door on her hand to prevent her from leaving. Ultimately, with the help of Rodriguez, Sabori broke free and went inside.

Rodriguez generally corroborated Sabori's statement. Rodriguez “believe[d] [Lopez] was on something” that night and observed that “he wasn't[,] you know [,] hi[m]self.” Rodriguez stated that Lopez came to the house around three times a week when he was drunk. When Lopez was sober, he was “quiet” and “real nice,” but he would “get[ ] really heavy on people” when drunk. The evening of the murder he was belligerent and yelled obscenities at Rodriguez. In his new affidavit submitted with the PCR petition, Dr. Bendheim stated that, in light of the statements of Rodriguez and Sabori, he could “now make a more certain diagnosis of pathological intoxication.” Nonetheless, the state court denied Lopez's ineffective assistance claim, finding that there was no “reasonable probability that the result of the ... sentencing procedures would have been different because of [this] alleged ineffective assistance.”

The state court's holding does not constitute an unreasonable application of Strickland. Lopez cannot show a “reasonable probability that, absent the errors [Lopez alleges], the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S.Ct. 2052. Here, the statements of Rodriguez and Sabori were largely duplicative of other information provided to Dr. Bendheim. For example, one of the documents given to Dr. Bendheim for the 1987 sentencing proceeding was a police report containing Rodriguez's statements that Lopez was “drunk or high” several hours before the murder, and that he tried to force his way into her apartment. Lopez's counsel also provided Dr. Bendheim with the statement from Raymond Hernandez that Lopez was “very mean” when drunk and “mild and meek” when sober, and Lopez's counsel told Dr. Bendheim of other witnesses who claimed that Lopez became “like another person when he drinks.” Lopez's counsel at the 1990 resentencing similarly provided Dr. Bendheim with further evidence of Lopez's violent behavior when drunk, which served to corroborate Dr. Bendheim's opinion. Dr. Bendheim underlined, through his testimony at sentencing, that his assessment of Lopez was only “tentative,” lacked “medical certainty,” and was “to a very large degree ... speculative.” It is true that Dr. Bendheim later testified that, had he reviewed the additional testimony of Rodriguez and Sabori, his original diagnosis would have been “more probable” and “more certain.” But we are not convinced that his “more probable” diagnosis would have changed the outcome of the sentencing proceeding. The new evidence would have done little to refute Dr. Dean's contrary assessment that Lopez did not suffer from pathological intoxication. As Dr. Dean pointed out, pathological intoxication is an extremely rare condition, Lopez did not exhibit any of the predisposing factors, and the evidence from his criminal file indicated that he did not react pathologically to alcohol or show reactions within the typical time-frame after drinking. After Dr. Dean examined Rodriguez and Sabori's statements, he found nothing in them to alter his opinion, and those statements were otherwise available in the record for the court's consideration.

Finally, the sentencing court made a strong finding as to the especially heinous, cruel, or depraved nature of the murder, remarking that in his years on the bench he had “never seen [a first-degree murder case] as bad as this one,” and the Arizona Supreme Court affirmed in similarly forceful terms. See Lopez II, 857 P.2d at 1264–66. Ultimately, the absence of Rodriguez and Sabori's testimony from Dr. Bendheim's assessment did not affect the balance of the aggravating and mitigating factors. Lopez has not shown a “reasonable possibility” that, but for counsel's alleged errors, the sentencer would have concluded that Lopez did not deserve a death sentence. See Strickland, 466 U.S. at 695, 104 S.Ct. 2052.

III. Suppression of Brady Material (claim 10)

As a final matter, we address Lopez's Brady claim with respect to an unrelated sexual assault.FN10 Less than a week after Holmes' death, Lopez was arrested for the sexual assault of Cecilia Rodriguez. See supra p. 1207–08. Although Lopez's trial counsel received police reports documenting the incident, the government failed to provide Lopez with a handwritten note that was later discovered in a police file. The note, whose author is unknown, opines that there was an insufficient factual basis to support a conviction of Lopez for the assault and that the victim was not credible. Specifically, the note states that there were “no findings by a physician indicating sexual assault”; that the victim's claims “were not corroborated by [the] physician's report”; and that the victim had a previous consensual sexual relationship with Lopez. Lopez was never charged with a crime as a result of the incident. However, the note was not made available to Lopez until his habeas claims were pending in federal court, long after the state court proceedings. FN10. On September 16, 2010, we granted Lopez a certificate of appealability with respect to this claim and directed the government to file a responsive brief.

Lopez, who introduced evidence of the sexual assault to corroborate his pathological intoxication mitigation defense, now claims that the note, which undermines the sexual assault allegation, would have been favorable to his defense. He argues that the government's failure to disclose the note violated his constitutional due process rights under Brady, 373 U.S. at 87, 83 S.Ct. 1194. The district court concluded that because Lopez failed to present the issue in state court and no state remedy remained available, the claim was “technically exhausted but procedurally defaulted,” but that Lopez had shown no prejudice to overcome the default. Lopez argues on appeal that there is cause and prejudice to excuse the procedural default and that habeas relief must be granted. We conclude that there was no constitutional violation under Brady; it likewise follows that Lopez is unable to establish prejudice to excuse the procedural default.

Under Brady, the prosecution must disclose exculpatory evidence to a defendant if it is “material” either to guilt or to punishment. 373 U.S. at 87, 83 S.Ct. 1194. However, “[f]ailure to disclose information only constitutes a Brady violation if the requested information is ‘material’ to the defense.” Sanchez v. United States, 50 F.3d 1448, 1454 (9th Cir.1995). Materiality rests on “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

The handwritten note fails the materiality test in several respects. To begin, the note offers no new factual evidence. “Evidence that is merely cumulative is not material.” United States v. Strifler, 851 F.2d 1197, 1202 (9th Cir.1988). The note included underlying facts regarding the alleged sexual assault and legal opinions of the unknown author. The facts laid out in the note were merely cumulative of the facts contained in the police reports, which were available to Lopez and submitted by Lopez's counsel at the 1990 resentencing. Accordingly, this information was not “material” for Brady purposes. See Barker v. Fleming, 423 F.3d 1085, 1099 (9th Cir.2005) (new evidence that “very nearly replicated evidence already admitted” into evidence is not “material” under Brady ); United States v. Vgeri, 51 F.3d 876, 880 (9th Cir.1995) (same). To the extent the note included legal opinions, we have previously held that “a prosecutor's opinions and mental impressions of the case are not discoverable under Brady unless they contain underlying exculpatory facts.” Morris v. Ylst, 447 F.3d 735, 742 (9th Cir.2006). Applying the same rationale here, we conclude that the legal opinions contained in the note do not constitute Brady material required to be provided to Lopez.

Lopez also fails to demonstrate that the note was “material” in that “had the [note] been disclosed, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682, 105 S.Ct. 3375. Lopez argues that the note provided “important exculpatory evidence which would have rebutted non-statutory aggravating evidence relied upon by the prosecution and considered by the trial court as outlined above.” However, Arizona does not recognize non-statutory aggravating evidence, see Ariz.Rev.Stat. § 13–703(F), and there is no indication that the trial court considered such evidence at Lopez's sentencing. As Lopez acknowledges, the trial court found only one statutory aggravating factor—that Holmes' murder was committed in a cruel, heinous, or depraved manner. Lopez II, 857 P.2d at 1264. Lopez identifies no evidence indicating that the trial court considered the unrelated sexual assault in finding this aggravating factor.

Nor has Lopez, who relied on the existence of the alleged assault to corroborate his mitigation defense, demonstrated how this exculpatory evidence as to the unrelated assault would have influenced the state court's findings as to mitigation. Indeed, to the extent that the note would have influenced the sentencing proceeding, it would have undermined Lopez's foundation of pathological intoxication.

We conclude that the handwritten note is not “material” for Brady purposes. The facts contained in the note were cumulative of information previously available in the police reports and Lopez has not remotely shown that “had the evidence been disclosed, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682, 105 S.Ct. 3375. Accordingly, the district court appropriately denied relief on Lopez's Brady claim. AFFIRMED.