On the afternoon of November 3, 1973, Michael Sandberg was washing his white Datsun in the parking lot of his condominium complex in Tucson when two men who had just stolen a Pontiac Firebird forced him to take them inside. His wife, Patricia, was studying. The men kept the couple bound and gagged for hours, Michael on his bed and Patricia on the living-room couch. Douglas Gretzler dyed his blond hair brown, and he and Willie Steelman changed into Michael Sandberg’s slacks and coats. When night fell, Gretzler shot Michael in the head through a pillow and then shot Patricia, who lay covered by a blanket, and Steelman fired one more shot into her body to make sure. That is how the Arizona Supreme Court told it in 1980, and it called the murders “but two events in an essentially undisputed chain” in which the two men killed at least seventeen people that autumn.
The same opinion lays the chain out. Two men, known only as Preacher and his brother, died in Phoenix in a drug dispute Steelman went to settle. Ken Unrein and Mike Adshade were kidnapped in their own Volkswagen van and garroted and stabbed in Stanislaus County, California, on October 17. A hitchhiker named Steve Loughren was killed near the Superstition Mountains, and on October 25 Bob Robbins and Yafah Hacohen were killed in their trailer because they could connect the pair to Unrein and Adshade. Gilbert Sierra, who gave them a ride in Tucson, was killed on November 2. After the Sandbergs, Gretzler and Steelman drove to Lodi, California, took hostage everyone in the home of the Walter Parkin family and everyone who arrived later, and forced Parkin to open the safe in his store. Gretzler pleaded guilty in California on June 6, 1974, to nine counts of first-degree murder and received nine life terms; California had no death penalty. Arizona then tried him for the Sandbergs.
There are five rulings here. The 1980 opinion affirmed the convictions and sent the case back for resentencing under State v. Watson, and the 1983 opinion, on the same docket number, affirmed the new death sentence over a partial dissent by Vice Chief Justice Gordon. In April 1997 the Ninth Circuit affirmed the denial of federal habeas relief, with Judge Pregerson dissenting on Gretzler’s claim that he had been denied proper psychiatric help, and in August it refused rehearing. The last ruling is dated June 3, 1998, the day Arizona had scheduled the execution for 3:00 p.m.: Gretzler argued that more than two decades on death row made the execution cruel and unusual, and the court denied every motion but the one for a certificate of appealability. He was executed by lethal injection at Florence that afternoon, the first daytime execution in Arizona, after apologizing from the gurney for murdering Patricia and Michael Sandberg. Steelman had died on death row.
Every person the opinions name as killed is named here. The living people they name have been reduced to initials: V.A., the driver who was kidnapped for his Firebird on November 3 and escaped from the moving car; D.S., who traveled with the pair after the Sandbergs and left them at a gas stop in Pine Valley without knowing what they had done; J.N., the manager of the Sandbergs’ complex; the witnesses M.M. and J.M.; and Gretzler’s sister, J.G. None of them was accused of anything, and the record does not tell us who among them is still alive.
The opinions spell the Superstition Mountains victim Loughren; other published lists spell him Loughran, and the court’s spelling is kept. The lists of seventeen dead that circulate elsewhere do not match the chain in the 1980 opinion name for name: they omit Preacher and his brother and include a victim these opinions never mention, and the Lodi victims are counted but not named in the court’s text. The description that came with the file calls this two opinions on one docket number; it holds five rulings, the three federal ones added to the two Arizona appeals.
These are public records of the Supreme Court of Arizona and the United States Court of Appeals for the Ninth Circuit, reproduced in full from the official reporters as digitized by the Caselaw Access Project at Harvard Law School: 126 Ariz. 60, 135 Ariz. 42, 112 F.3d 992, 123 F.3d 1275 and 146 F.3d 675. An affirmance is not a new finding of fact. It holds that the trial court’s verdict and sentence could stand on the record the court describes.
612 P.2d 1023
The STATE of Arizona, Appellee, v. Douglas Edward GRETZLER, Appellant.
No. 3750.
Supreme Court of Arizona, In Banc.
April 21, 1980.
Rehearing Denied June 3, 1980.
Robert K. Corbin, Atty. Gen. by William J. Schafer III and Crane McClennen, Asst. Attys. Gen., Phoenix, for appellee.
Hoffman & Brown, P. C. by David S. Hoffman, Tucson, for appellant.
[OPINION BY CAMERON, Justice. type=majority]
CAMERON, Justice.
Defendant, Douglas Gretzler, was charged in two indictments by a Pima County grand jury with one count of burglary, A.R.S. § 13-302; one count of kidnapping for robbery with a gun, A.R.S. §§ 13-491, —492; two counts of robbery with a gun, A.R.S. §§ 13-641, -643(B); and two counts of first degree murder, A.R.S. §§ 13-451, —452, —453. After jury verdicts and judgments of guilt, Gretzler was sentenced as follows: death for the crime of first degree murder, two counts; not less than twenty-five years nor more than fifty years each for the crimes of robbery, burglary and kidnapping, to run concurrently. Notice of appeal to this court was filed by the Clerk of the Pima County Superior Court pursuant to Rule 26.15 of the Arizona Rules of Criminal Procedure, 17 A.R.S.
The defendant raises some fifty-four questions on appeal. For purposes of convenience, we have grouped these questions under the following headings:
1. Challenges to the Grand Jury.
2. Extradition and Speedy Trial.
3. Consolidation and Severance.
4. Defendant’s Competence to Stand Trial.
5. Objections to Identification Witnesses.
6. Alleged Failure of the State to Make Full Disclosure to the Defense.
7. Claims Concerning the Jury.
8. Admissibility of Defendant’s Confessions.
9. Objections to Evidentiary Rulings.
10. Challenges to Miscellaneous Rulings Made During Trial.
11. Objections to Rulings Involving the Expenditure of Public Funds for the Defense.
12. Alleged Misconduct of Trial Judge and Prosecutor’s Office.
13. Constitutionality of the Death Penalty.
The acts on which the instant prosecution was based were the kidnapping of V.A. and the murders of Patricia and Michael Sandberg in Tucson, Arizona, on 3 November 1973. These crimes were but two events in an essentially undisputed chain of episodes involving Douglas Gretzler and Willie Steelman. See State v. Steelman, 120 Ariz. 301, 585 P.2d 1213 (1978). Gretzler and Steelman were responsible for the deaths of at least seventeen human beings in the autumn of 1973.
In late December of 1972, Gretzler abandoned his wife and infant daughter in New York City, leaving no word of his intentions or whereabouts. He- drove to Casper, Wyoming, and then to Denver, Colorado, where he met and moved in with Willie Steelman and Steelman’s sister. At this point, Gretzler’s criminal record consisted of minor traffic charges and one count of vagrancy.
On 11 October 1973, Gretzler, Steelman and a woman friend left Denver for Phoenix, Arizona. In Globe, Arizona, the two men committed an armed robbery of a sunbathing couple; the robbery netted them five dollars. Later on the same day, they picked up a hitchhiker, tied him to a tree and stole his clothes, a ring and twenty dollars. On 15 October, the trio arrived in Phoenix where they pawned the ring and robbed a woman of twenty dollars and some checks.
Shortly after the trio’s arrival in Phoenix, the woman set forth on her own. Steelman and an Arizona acquaintance known as “Preacher” went out to settle a drug-related dispute involving Preacher’s brother. Both Preacher and his brother died in the resulting melee.
Through two young men, Ken Unrein and Mike Adshade, Gretzler and Steelman learned that acquaintances of Steelman named Bob Robbins and Yafah Hacohen were living at an area trailer park. All four visited the couple. Following the visit, Gretzler and Steelman kidnapped Unrein and Adshade in their Volkswagen van and drove to Stanislaus County, California, where, on 17 October 1973, the pair garroted and stabbed Unrein and Adshade to death. They hid the bodies and continued to drive the Volkswagen until it stopped running, at which point they began to hitchhike. On 20 October, they kidnapped a young couple who stopped for them near Petaluma, California. Steelman raped the woman captive, but eventually both victims were released at an underground garage, where Gretzler and Steelman stole another car.
Concerned that Bob Robbins and Yafah Hacohen would eventually connect them with the disappearance of Unrein and Adshade, Gretzler and Steelman decided to return to Arizona and silence the couple. On the way to Phoenix, they picked up a hitchhiker named Steve Loughren. The three stayed overnight with Robbins and Hacohen; the following evening, Gretzler and Steelman murdered Loughren in an isolated area near the Superstition Mountains. They then returned to their friends’ trailer. On 25 October, while Hacohen was at work, they garroted and shot Robbins to death and hid his body. When Hacohen returned home, she, too, was murdered.
Gretzler and Steelman then moved on to Tucson where they shared a “crash pad” with some local street people. On 2 November, while hitchhiking with some of their Tucson acquaintances, they were picked up by Gilbert Sierra, whom they murdered later that night. They drove the victim’s car to a parking lot, where they wiped their fingerprints off the vehicle and abandoned it.
On 3 November, Gretzler and Steelman kidnapped V.A. who stopped for them while they were again hitchhiking. V.A. escaped from his moving car and notified police of his abduction and the theft of his vehicle. His captors drove his Pontiac Firebird to a Tucson condominium complex, where Michael Sandberg was washing his white Datsun in the parking lot. They parked the Firebird in an inconspicuous corner of the lot and forced Sandberg to take them to his condominium where his wife Patricia was studying. While in the Sandbergs’ home, Gretzler dyed his blond hair to brown. Both he and Steelman changed from jeans to slacks and coats belonging to Michael Sandberg. They bound and gagged both hostages, Michael on his bed and Patricia on the living-room couch. When night fell, Gretzler shot Michael in the head, muffling the gun with a pillow. He then shot Patricia, who was entirely covered by a blanket. Steelman took the gun and fired one more shot into her body, to make certain she was dead. The two then wiped down the condominium in an attempt to eliminate their fingerprints, gathered together credit cards, checks, a camera and other items belonging to the Sandbergs, and drove away in the couple’s car.
They went to the place where they had arranged to meet acquaintances with whom they planned to drive to California. The only person at the meeting-place was D.S., and the three set off together. D.S. knew that he was riding in a stolen car, and he testified that he saw Steelman pay for motel rooms and automobile service with Michael Sandberg’s American Express Card. However, D.S. apparently was unaware of his companions’ other crimes. He had been told by them that he was free to leave them if things became “too much” for him. D.S. did leave when Gretzler and Steelman stopped for gas in Pine Valley, California. The two continued to Lodi, California, where they entered the home of the Walter Parkin family and took as hostages all present, as well as others who arrived later. Gretzler and Steelman forced Parkin to open the safe in his nearby store and stole between $3,000 and $4,000, of which Gretzler’s share was about half. Afterwards, Gretzler shot to death seven adults, whom he had previously bound and gagged. He went to a bedroom where Steelman had pulled a blanket over the heads of two sleeping children, shot one of them to death and waited while Steelman shot the second.
On 8 November 1973, California police arrested Gretzler and Steelman as suspects in the Parkin homicides. In addition the two were named in Arizona warrants for crimes committed in Maricopa County. Gretzler was incarcerated in Stockton, California, the county seat of San Joaquin County, where the Parkin crimes were committed. He was appointed a lawyer, George Dedekam. On 9 November, California and Arizona authorities began intensive questioning of both suspects.
It was only after Gretzler and Steelman were arrested that the Sandberg murders were discovered. California authorities notified Pima County that the two had been driving a car registered to Michael Sandberg. Tucson police then went to the Sandberg home, where they found the couple’s bodies and lifted fingerprints later determined to be those of Gretzler and Steelman. While in custody in California, Gretzler confessed to the murders of Michael and Patricia Sandberg.
On 6 June 1974, Gretzler pleaded guilty to nine counts of first degree murder for the nine California killings. A month later, judgment was pronounced in accordance with his plea, and he was sentenced to nine concurrent life sentences. Arrest warrants pursuant to Pima County indictments based on the V.A. and Sandberg crimes were served on 17 September 1974. Gretzler was booked into Pima County Jail on 18 September 1974 and he was arraigned on 25 September 1974. Various trial dates were set and continued, and Gretzler was finally brought to trial on 14 October 1975.
The jury found Gretzler guilty of all charges. After an aggravation-mitigation hearing pursuant to A.R.S. § 13-454, the court, on 15 November 1976, sentenced Gretzler to death for each of the two murders. Gretzler appeals.
CHALLENGES TO THE GRAND JURY
On 16 November 1973, a Pima County grand jury heard evidence concerning the crimes at issue here. The jury unanimously voted true bills resulting in indictments against Gretzler and Steelman for burglary, robbery, kidnapping for robbery with a gun, robbery with a gun, and two counts of first degree murder. Defendant claims that the trial court erred in denying several motions to dismiss these grand jury indictments.
a. May a prosecutor who observes part of the police investigation in a case conduct grand jury proceedings concerning that case?
William Stevens, the prosecutor who presented the State’s evidence to the grand jury, was present for about an hour while police conducted their investigation of the Sandbergs’ condominium. Stevens did not direct that investigation, and he did not touch, take, or mark any evidence. Stevens did not testify before the grand jury or at trial. Gretzler contends that Stevens as a witness, should not have prosecuted a case before the grand jury and that his doing so offends due process. We do not agree.
Our Court of Appeals has held that a prosecutor who was present when a drug raid was made on the home of the defendant could properly conduct the grand jury hearing in the case:
“While he could not testify as a witness and then act as the prosecutor at the grand jury proceedings, the mere fact that the prosecutor witnessed some of the events does not disqualify him from acting as a prosecutor as long as he limits himself to that role only.” State v. Steele, 23 Ariz.App. 73, 77, 530 P.2d 919, 923 (1975).
In the instant case, the prosecutor was merely present while others were obtaining evidence. Where a prosecutor limits himself to only one role, his having observed part of the police investigation will not disqualify him from appearing before the grand jury in the role of a prosecutor. Steele, supra. We find no error.
b. May prosecutors who are not presenting evidence attend grand jury proceedings?
Gretzler also contends that it was a violation of due process and Rule 12.5, Arizona Rules of Criminal Procedure, 17 A.R.S., for three Pima County prosecutors who did not actually present evidence to be present in the grand jury room. All three were authorized deputies of the Pima County Attorney.
Rule 12.5, supra, lists the persons who may attend grand jury sessions:
“No person other than the witness under examination, counsel for the witness if the witness is a person under investigation by the grand jury, prosecutors authorized to present evidence to the grand jury, the reporter, and the interpreter, if any, shall be present during sessions of the grand jury. * * * ”
Rule 12.5 uses the plural form of “prosecutors,” as opposed to the singular “witness under examination,” “interpreter,” and “reporter.” We believe that the rule itself contemplates that more than one prosecutor may be present. This is in conformity with the general rule that
“[t]he right of the prosecuting attorney to appear and assist in the grand jury investigation usually embraces assistants, deputies, and special assistants duly authorized to assist the prosecuting attorney in the performance of his duties.” 38 Am.Jur.2d, Grand Jury, § 35 at 980. See Commonwealth v. Favulli, 352 Mass. 95, 224 N.E.2d 422 (1967); Franklin v. State, 89 Nev. 382, 513 P.2d 1252 (1973); Berard v. Moeykens, 132 Vt. 597, 326 A.2d 166 (1974).
We find no error.
c. Was the grand jury tainted by pretrial publicity?
Gretzler also contends that the grand jury members were prejudiced by news media accounts of the Gretzler-Steelman cases.
The ultimate question in cases where it is alleged that a grand jury is tainted is whether each “juror can base his decision solely on the evidence presented to him and the law.” State v. Salazar, 27 Ariz.App. 620, 624, 557 P.2d 552, 556 (1976). The record indicates that the jurors were instructed as to the need for impartiality. Just prior to presenting the Sandberg case, Stevens admonished the jurors at length that they must excuse themselves if they could not decide the case solely on the evidence and without considering anything they might have learned from the news media. All the jurors agreed that they would confine their deliberations to the facts before them. There is no evidence before this court to indicate that any of the grand jurors based their decisions on evidence other than the evidence presented. We find no error.
d. Were the indictments defective?
On 21 March 1975, Gretzler moved that the murder indictment should be dismissed because the grand jury was not informed that the State intended to seek a death penalty. At the hearing on these motions, Gretzler also argued that the indictment was vague and ambiguous.
Rule 12.9(b), Arizona Rules of Criminal Procedure, 17 A.R.S., in effect at the time, provided that any challenge to the grand jury proceedings must be made within ten days after the grand jury transcript and minutes were filed. The present rule requires that the challenge be made within twenty-five days. Rule 12.9(b), Arizona Rules of Criminal Procedure, 17 A.R.S., as amended 7 May 1975. The transcripts and minutes in the instant case were filed on 17 November 1973, and the motion to dismiss the indictment was not raised until six months after the filing.
The trial judge denied the defendant’s motion because it was untimely, State v. Lopez, 27 Ariz.App. 408, 555 P.2d 667 (1976), and because he found the indictment adequate under Arizona law. Since the challenge to the grand jury was not timely, we need go no further. We find no error.
EXTRADITION AND SPEEDY TRIAL
The right to speedy trial is guaranteed to a criminal defendant. It is, however, fundamentally distinct from the other rights essential to a fair criminal trial, in that there “is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused.” Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Society is concerned that criminal defendants be tried expeditiously so that dangerous offenders will be quickly restrained from further depredations. Convictions will be more reliable if based on fresh and accurate evidence, and punishments will be more effective if they closely follow culpable acts. State ex rel. Berger v. Superior Court, 111 Ariz. 335, 529 P.2d 686 (1974). While an innocent defendant will probably share society’s concern for speedy trial, a guilty one is “usually content to allow the trial date to be continued until such time as the witnesses have * * * disappeared, the passions of the victims have cooled, and the zeal of the prosecutor has been dampened.” Berger, supra, 111 Ariz. at 339, 529 P.2d at 690.
Gretzler contends that Arizona’s speedy trial provision as set forth in Rule 8 of the Arizona Rules of Criminal Procedure, 17 A.R.S., was violated, as well as his federal constitutional right to a speedy trial.
a. Was extradition faulty because of alleged constitutional defects in Rule 8.3 of the Arizona Rules of Criminal Procedure, 17 A.R.S.?
On 19 November 1973, Detective Larry Hust of the Tucson Police Department traveled to California where he filed warrants based on the 16 November indictments against Gretzler with the San Joaquin Sheriff’s Department. He personally apprised Gretzler of the Pima County charges pending against him: “I * * * showed him the charges left with the San Joaquin County Jail as a hold placed against him.” Gretzler was convicted in California and sentenced on 8 July 1974. He was then extradited by Arizona and taken into custody by Arizona authorities on 17 September 1974.
Rule 8.3(a) and (b), supra, provides for notice of detainer to persons held in the state, but not to persons held without the state. According to Gretzler, Rule 8.3 violates equal protection principles guaranteed by the Constitution of the United States because it provides in-state prisoners with notice of detainers filed against them, while out-of-state prisoners are given no such notice. Rule 8.3(a), supra, however, must be read in light of the Interstate Agreement on Detainers to which both California and Arizona are signatories. A.R.S. § 31-481 (Title 31, Ch. 3, Article 6, Agreement on Detainers); West’s Ann.Cal.Pen.Code § 1389. A.R.S. § 31-481, Art. III(c) reads as follows:
“The warden, commissioner of corrections, or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment, information or complaint on which the detainer is based.”
Gretzler does not suggest that the above procedure was not, in fact, followed in his case. In addition, as we have noted, Detective Hust testified that he personally notified the defendant of the charges on which the instant prosecution was based within three days of the return of the indictments by a Pima County grand jury. We find no error.
b. Was the time limit from arraignment to trial violated?
Gretzler submits that the trial court erred in denying his motions to dismiss for violation of Arizona’s Rule 8.2(a) and 8.2(b), Arizona Rules of Criminal Procedure, 17 A.R.S. Rule 8.2(a) provides that a defendant must be tried within 150 days from issuance of the warrant, and Rule 8.2(b) provides the defendant must be tried within ninety days from his initial appearance or sixty days from arraignment, whichever is the lesser.
Gretzler’s reliance upon Rule 8.2 is misplaced. Since Gretzler was being held by California authorities, Rule 8.3(a) Arizona Rules of Criminal Procedure, 17 A.R.S., not Rule 8.2, applies. Rule 8.3(a) provides that a person must be brought to trial within ninety days from the date he has been delivered into the custody of the appropriate authorities of this State. In computing this time, excluded periods are allowed by Rule 8.4 and 8.5 Arizona Rules of Criminal Procedure, 17 A.R.S. Gretzler was taken into custody by Pima County authorities on 17 September 1974. If there were no excluded periods or valid continuances, 16 December 1974 would have been the ninetieth day.
On 21 November 1974, the defense filed a motion under Rule 11, Arizona Rules of Criminal Procedure, 17 A.R.S. The resulting examinations and hearings as to Gretzler’s competency for trial lasted until 11 February 1975, when he was found competent by the court. The delay from 22 November until 11 February is excluded time under Rule 8.4(a), since “filing of the motion under Rule 11 effectively stops or suspends the trial of the defendant until his mental competency is established.” State v. Landrum, 112 Ariz. 555, 560, 544 P.2d 664, 669 (1976). See also State v. Ceja, 113 Ariz. 39, 546 P.2d 6 (1976); Berger v. Rozar, 112 Ariz. 62, 537 P.2d 932 (1975).
On 11 February 1975, Gretzler moved for suppression of all statements made by him. On 18 February, the court reset trial for 18 March 1975, to allow for the resolution of this motion. On 14 March, Gretzler filed a motion for change of venue and a hearing under State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969), cert. denied 397 U.S. 965, 90 S.Ct. 1000, 25 L.Ed.2d 257 (1970). The court set the venue hearing for 21 March, took the motion to suppress under advisement, and set the Dessureault hearing for not less than two days prior to trial. Because these matters could not be resolved prior to 18 March, that trial date was vacated and the matter continued subject to call. Defense counsel stated that it “was not possible” to have his motions “heard prior to the 18th,” but he indicated that he was not surrendering his right to object to any speedy trial violation.
On 9 June, the trial court granted the motion for the change of venue. On 10 June, the State moved that a trial date be set within two weeks. Defense counsel opposed the motion, arguing he had further preparation to do, and requested a September trial date. On 16 July 1975, the trial court denied defendant’s motion to suppress and set trial for 2 September.
Trial did not commence on 2 September because the defense filed fourteen motions just prior to that date. One motion was for certain transcripts; the trial court granted the motion and continued the trial to 29 September to allow the transcripts to be prepared, the other defense motions to be resolved, and a Dessureault hearing to be had. The defense at this point was still emphasizing its need for more time. The State again indicated it was ready for trial and protested the continuance. For various reasons, primarily because requested transcripts could not be available to the defense until 22 September, a week before the 29 September trial date, the defense asked for one more continuance. Trial was then set for 14 October 1975, and jury selection began on that day.
Our rule reads:
“The following periods shall be excluded from the computation of the time limits set forth in Rules 8.2 and 8.3:
a. Delays occasioned by or on behalf of the defendant, including, but not limited to, delays caused by an examination and hearing to determine competency, the defendant’s absence or incompetence, or his inability to be arrested or taken into custody in Arizona.” Rule 8.4(a), supra.
Though he urged the continuances that were granted, Gretzler now protests that the continuances were improper. A defendant may not obtain a continuance and then assert, on appeal, failure to comply with the rule as ground for retrial. See State v. Stoneman, 115 Ariz. 594, 566 P.2d 1340 (1977); State v. Barnett, 112 Ariz. 210, 540 P.2d 682 (1975); State v. Armenta, 25 Ariz.App. 62, 540 P.2d 1281 (1975). The continuances herein were obtained by Gretzler as a result of the motions he was entitled in law to make and were “on behalf of the defendant.” Rule 8.4(a), supra. We find no Rule 8 speedy trial violation.
We must comment, however, on the delay in bringing this matter to trial. We do not criticize the prosecutor who continuously urged for an early trial. We do feel, however, that the court was lax in not insisting that the defendant, as well as the State, prepare for trial expeditiously. Admittedly, some delay was necessary because of the complex nature of the case, but a review of the record leads us to believe that the trial court did not adequately protect society’s interest in a prompt determination of the accused’s guilt or innocence.
c. Was the statutory limit of 150 days from issuance of a warrant to trial violated?
Defendant contends that, pursuant to Rule 8.2(a), Arizona Rule of Criminal Procedure, 17 A.R.S., every accused must be tried “within 150 days of the issuance of the warrant.” The indictments on which the instant prosecution is based were issued on 16 November 1973. Three days later, Detective Larry Hust left warrants resulting from these indictments “with San Joaquin County Jail as a hold placed against Gretzler.” Hust personally informed Gretzler of the Pima County charges. Gretzler was not tried until October of 1975.
As noted above, Rule 8.2(a), which requires a trial within 150 days of the issuance of the warrant, does not apply to defendants being held without the State when the warrant is issued. Rule 8.3(a), Arizona Rules of Criminal Procedure, 17 A.R.S. We find no violation of Rule 8.2(a).
It is contented, however, and we agree, that incarceration in another jurisdiction does not abrogate the State’s duty to seek an early determination of the charges against the defendant. Our rules provide that within
“90 days after receipt of a written request from any person charged with a crime and incarcerated without the state, or within a reasonable time after otherwise learning of such person’s incarceration without the state, the prosecutor shall take action as required by law to obtain such person’s presence for trial.” Rule 8.3(a), Arizona Rules of Criminal Procedure, 17 A.R.S.
In November of 1973, evidence was presented to the Pima County grand jury which indicated Gretzler and the California authorities were notified and a “hold” placed on Gretzler. The record does not contain any evidence that Gretzler at any time requested a transfer to Arizona for trial. Neither does the record indicate that Arizona was less than diligent in obtaining custody of Gretzler for trial. The delay complained of resulted from California’s exercising its right to try and convict Gretzler before releasing him to Arizona. The Arizona authorities did not procrastinate. As soon as it became possible to obtain custody of Gretzler, the Arizona authorities moved to bring him to Arizona for trial. The time Gretzler was in California was excluded from computation of speedy trial limits because the delay was caused by the defendant’s “inability to be arrested or taken into custody in Arizona.” Rule 8.4(a), Arizona Rules of Criminal Procedure, 17 A.R.S. We find no error.
d. Was the defendant denied his federal constitutional right to a speedy trial?
On appeal, the defendant asserts that he was severely prejudiced by violation of his federal constitutional right to speedy trial. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967).
Barker v. Wingo, supra, sets forth the factors that must be weighed in determining whether federal speedy trial rights have been violated: (1) length of delay, (2) reasons for delay, (3) defendant’s assertion of his right, and (4) prejudice cause to the defendant. See State v. Soto, 117 Ariz. 345, 572 P.2d 1183 (1977).
Of all these factors, the length of delay weighs least in the balance. Barker v. Wingo, supra. It serves primarily to trigger analysis. State v. Wright, 113 Ariz. 313, 553 P.2d 667 (1976). As our discussion of our speedy trial rules indicates, the reasons for the delay were the voluminous defense motions and the unavailability of Gretzler due to his California charges. As in Barker v. Wingo, supra, the record here “strongly suggests that while he hoped to take advantage of the delay * * * and thereby obtain a dismissal of the charges, [the defendant] definitely did not want to be tried.” 407 U.S. at 535, 92 S.Ct. at 2194, 33 L.Ed.2d at 119. Two weeks before trial, Gretzler was still seeking continuances while the prosecution was urging that a trial date be set. There was no genuine demand that trial begin.
Gretzler contends, however, that he was prejudiced by the delay, in that psychiatrists who examined him in Arizona could not establish his state of mind at the time of the Tucson crimes. We do not find prejudice in this regard. The California psychologists who examined him within a short time after the crimes were in substantial agreement with those who examined him in Arizona.
Gretzler also claims that his California counsel, George Dedekam, died before trial and might have aided his Arizona defense. Mr. Dedekam was available to the defense for at least two months after Gretzler was brought to Arizona. Arizona counsel was granted funds to be used to go to California to talk with Dedekam, and he spent those funds.
Finally, Gretzler argues that a witness, M.M., became unavailable through passage of time. Again, defense counsel in fact talked with his witness before he dropped out of sight. Counsel made no effort to record his testimony in any way and made no showing of how testimony M.M. would have given at trial would have aided the defense. The mere assertion that a witness was not available at time of trial “is insufficient to show that a denial of due process has occurred.” State v. Torres, 116 Ariz. 377, 379, 569 P.2d 807, 809 (1977). See also United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). We find no federal speedy trial violation.
CONSOLIDATION AND SEVERANCE
When Gretzler and Steelman were returned to Arizona for trial, the Sandberg murders and the V.A. kidnapping were filed as separate cases with Gretzler and Steelman as co-defendants in each of the two cases. Steelman and the State entered into an agreement to sever the trial of Steelman from Gretzler and to consolidate the Sandberg and V.A. cases. Neither Gretzler nor his attorney participated in this agreement, and Gretzler opposed both the severance of the defendants and the consolidation of the cases. The court granted the motions to consolidate the murder and kidnapping trials and to sever the trial of Steelman and Gretzler.
a. Did the trial court abuse its discretion in ordering that Gretzler and Steelman should be tried separately?
Rule 13.4(a) of the Arizona Rules of Criminal Procedure, 17 A.R.S., states that “the court may on its own initiative, and shall on motion of a party,” order severance when it “is necessary to promote a fair determination of the guilt or innocence of any defendant.” The rule does not suggest that the co-defendant must agree to the severance, and we do not think that such agreement is required. Also, it would appear that consolidation would have been prejudicial under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Bruton held that admission of a non-testifying co-defendant’s confession may violate a defendant’s Sixth Amendment right of confrontation. Gretzler’s counsel stated to the trial court that, because - of the co-perpetrator’s voluminous statements to the police, “there was * * as large a Bruton problem as I have ever seen in any case at any time.” The court followed Rule 13.4(a) and there was no prejudice to Gretzler. We find no error.
b. Did the trial court abuse its discretion in consolidating the V.A. and Sandberg crimes for trial?
The defense also objected to the trial court’s consolidating the Sandberg and V.A. cases. Our rules provide:
“c. Consolidation. If such offenses or such defendants are charged in separate proceedings, they may be joined in whole or in part by the court or upon motion of either party, provided that the ends of justice will not be defeated thereby.” Rule 13.3(c), Arizona Rules of Criminal Procedure, 17 A.R.S.
As we have stated:
“The appellant must demonstrate a clear abuse of discretion with respect to the trial court’s decision to join the offenses, ‘based on the showing at the time the motion is made and not what ultimately transpires at the trial.’ (citation omitted)” State v. Dale, 113 Ariz. 212, 215, 550 P.2d 83, 86 (1976).
It is evident that the V.A. and Sandberg crimes were both part of Gretzler’s and Steelman’s continuing effort to get out of Tucson without attracting police attention following the murder of Gilbert Sierra. Having no car they kidnapped V.A. to get his Pontiac Firebird. Since V.A. escaped them and could give police descriptions of his captors and of his stolen vehicle, they had to dispose of the Pontiac immediately. They did so by parking it inconspicuously in the lot of the Sandbergs’ condominium, where Michael Sandberg was washing his own car. They forced Sandberg into his home at gunpoint, and, after changing their appearance, murdering the Sandbergs and stealing their belongings, escaped Arizona in the couple’s Dat-son. It was the manager of the Sandbergs’ condominium who first discovered V.A.’s car and reported it to the police.
The V.A. and Sandberg crimes were “connected together in their commission” and were a “part of a common scheme or plan.” The offenses would have been properly joined pursuant to Rule 13.-3(a)(2) and (3), Arizona Rules of Criminal Procedure, 17 A.R.S., and were properly consolidated pursuant to Rule 13.3(c), supra.
DEFENDANT’S COMPETENCE TO STAND TRIAL
On 21 November 1974, defense counsel filed a motion requesting examinations and a hearing into Gretzler’s competency to stand trial, pursuant to Rule 11, Arizona Rules of Criminal Procedure, 17 A.R.S. Rule .11.1 states:
“A person shall not be tried * * * while, as a result of a mental illness or defect, he is unable to understand the proceedings against him or to assist in his own defense.”
The court granted the motion and appointed two psychiatrists to examine the defendant: Dr. Alan Beigel, requested by the State, and Dr. David B. Gurland, requested by the defense. The Rule 11 hearing was held on 11 February 1975. At the hearing, both experts testified that Gretzler was suffering from no thought disorders and that he had good recall of the events which occurred in the autumn of 1973. They agreed that he was able to understand the proceedings against him and could aid in his defense. Both psychiatrists rejected defense counsel’s suggestion that Gretzler’s recall of the period at issue here was greatly damaged by amphetamines he was supposed to have taken at the time. They stated that, while there were some gaps in the defendant’s memory, impairment was at worst “moderate.” We have stated that examinations into competency to stand trial focus
“on an extremely narrow issue: whether whatever is afflicting the defendant has so affected his present capacity that he is unable to appreciate the nature of the proceedings or to assist his counsel in conducting his defense.” State v. Steelman, 120 Ariz. 301, 315, 585 P.2d 1213, 1227 (1978).
In the instant case, the experts agreed that Gretzler was able to understand the nature of the proceedings against him and to aid in his defense. We find that the trial court’s decision that Gretzler was competent to stand trial was supported by the evidence.
OBJECTIONS TO IDENTIFICATION WITNESSES
Gretzler moved, pursuant to State v. Dessureault, supra, to preclude the identification of Gretzler by D.S. and V.A. because of unduly suggestive police procedures. After hearing, the court denied the motions to suppress as to both D.S. and V.A. On appeal, Gretzler contends the denial of these motions was error.
a. D.S.
At the Dessureault hearing, D.S. described himself as a “fellow street person” with Gretzler and Steelman. He knew them as “Doug” and “Bill” during the time they lived in Tucson. One night he shared a “crash pad” with them, and he spent two-and-a-half days with them in the Sandbergs’ car en route to California. While he had been previously shown police photographs of Gretzler, the trial court ruled that his identification of Gretzler was based on an independent recollection and not on the police photographs. The defense did not object to this ruling. We agree with the trial court. We find no error.
b. V.A.
V.A. testified that he stopped to pick up Gretzler and Steelman as they were standing, at midday, by the side of the road and that he spent about thirty minutes with them before he escaped. Gretzler sat next to V.A., in the front seat, while Steelman, in back, held a gun to V.A.’s ribs. When V.A. claimed to be too nervous to drive, he stopped the car so that Gretzler could get out, walk around the front of the car and take over the wheel.
At the hearing, V.A. testified that between his kidnapping and that day, he had seen Gretzler only once, when he happened to be watching a television news story concerning the California murders. Recognizing his captors, he notified Tucson police that it was Gretzler and Steelman who had kidnapped him. Prior to that time, he had worked with the police to produce composite drawings of his then unidentified assailants. At Steelman’s trial, he again saw the Gretzler composite. At no time was V.A. shown mug shots or a police line-up.
On the eve of the Dessureault hearing, V.A. had the following exchange with a Tucson policeman:
“ARMSTRONG: I just asked him — I said, T imagine — I imagine Gretzler looks different now.’ And he says, ‘He’s been cleaned up.’ ”
Immediately prior to the Dessureault hearing, V.A. caught sight of Gretzler coming out of the courtroom after another proceeding. At the Dessureault hearing, V.A. identified Gretzler, testifying that the defendant’s hair had been longer and blonder at the time of the kidnapping. He also noted that Gretzler had not worn a mustache at that time, though he wore one at the hearing. After V.A.’s testimony at the Dessureault hearing, the defense moved that his identification of Gretzler be precluded at trial because it was tainted by the comment, “He’s been cleaned up,” and by V.A.’s glimpse of Gretzler just before the Dessureault hearing. The court disagreed.
Our review of the evidence leads us to concur with the trial court that V.A.’s in-court identification of Gretzler was based on his own experience and independent recollection. We find no error. State v. McGill, 119 Ariz. 329, 580 P.2d 1183 (1978); State v. Ware, 113 Ariz. 340, 554 P.2d 1267 (1976).
DISCLOSURE
The defendant contends that, in several instances, the Pima County Attorney’s Office and the trial court were “guilty of withholding information which was valuable and in some cases essential to the defense of the matter.”
Rule 15, Arizona Rules of Criminal Procedure, 17 A.R.S., governs discovery in criminal prosecutions. Section 15.1 of the rule specifically sets forth the obligations of the prosecutor to make disclosure to the defendant. As noted in the commentary to the rule, subsection 15.1(a)(7) clarifies “the prosecutor’s constitutional obligations under Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).” Brady held that when the defense requests evidence favorable to the accused, the prosecutor must produce all information in his possession that is “material either to guilt or to punishment.” 373 U.S. at 87, 83 S.Ct. at 1197, 10 L.Ed.2d at 218. Arizona’s Rule 15 reaches beyond Brady as to what must be disclosed and it also requires the State to make disclosure regardless of whether there is a defense request. For failure to comply with Rule 15.1, the rules provide:
“If at any time * * * a party has failed to comply with * * * this rule or any order issued pursuant thereto, the court may impose any sanction which it finds just under the circumstances * * .” Rule 15.7, Arizona Rules of Criminal Procedure, 17 A.R.S.
a. Background information on prospective jurors.
Prior to jury selection, the prosecutor and the defense counsel stipulated that the prosecutor would provide the defense with any information he had concerning the thirty-six individuals from which the ultimate jury would be selected. No such information was provided. Shortly before trial, the defense made a motion that the State disclose this material. The prosecutor stated to the court that, while he had requested a check on the thirty-six jurors, he had received no information. The prosecutor also stated he had directed the State’s investigator to share his juror findings with the defense. The prosecutor participated in jury selection without any information from his investigator. After jury selection, the prosecutor stated that upon checking with the investigator, he found that a “background check” had been done on the thirty-six jurors but that there was nothing returned one way or the other. The investigator gave him no report, and he had nothing to pass on to the defense.
We might rule differently if the prosecutor was using this procedure in order to withhold from the defense useful information possessed by the State’s investigator. Our reading of the record leads us to conclude, as did the trial court, that there was no information to be passed on to the defense. We find no error.
b. Did the prosecutor or court deny the defendant other Rule 15 or Brady information?
In addition to the juror background information, Gretzler contends on appeal that certain other materials and “valuable information” were withheld by the State and trial court.
We have reviewed the portions of the record designated in support of this contention and in almost every instance the record to which he refers indicates that the requested information was delivered. For example, Gretzler alleges that the prosecutor refused to disclose the addresses of potential witnesses M.M., J.M., and D.S.. The record reveals that the prosecutor agreed from the first to share this information when his office had the addresses and that he in fact did so. The defendant alleges that he was denied information from Pinal County, Arizona, police reports and from Stanislaus County, California, police reports. The record shows that the prosecution disclosed all Gretzler-Steelman police reports in its possession, as well as reports it obtained on defense request. The Pinal and Stanislaus County reports were delivered to the defense on 28 March 1975.
Gretzler also alleges that there was not adequate disclosure of the testimony of witnesses in the Steelman trial. The record shows that the prosecutor provided the defense with transcripts of all State witnesses in the Steelman trial and agreed additionally to transcribe any material the prosecution believed to be required by Brady, supra. At all times, the entire Steelman trial record was available for the defense.
Gretzler further alleges that the State withheld its responses to motions made by co-defendant Steelman. These responses were deemed by the trial court, under its Rule 15.1(e) discretion, to be necessary to the Gretzler defense. The record shows that some of this material failed to reach the defense promptly, through no fault of the State. Gretzler received the material in time to use it for his defense. We find no error.
Finally Gretzler contends that the State withheld information concerning an organized crime “family” named Smaldone, which v/as supposed to exist in Denver, Colorado. Gretzler had suggested in a statement to police that he was threatened by Steelman with retaliation by the Smaldones if he did not commit the crimes in question. Gretzler also suggests that prior to sentencing the State had proof that the Smaldone family did, in fact, exist. The record before this court does not substantiate these allegations. We find no error.
CLAIMS CONCERNING THE JURY
a. Excessive publicity
Both Steelman and Gretzler filed a motion for change of venue based upon prejudicial pretrial publicity which the court granted. In order to protect the new venues from undue publicity, they were kept secret from all but the parties and court officials until trial began. Steelman was tried first, in St. Johns, Apache County. Gretzler was tried in Prescott, Yavapai County.
The distance between Tucson, the county seat of Pima County, and Prescott, the county seat of Yavapai County, is 212 miles. More importantly, the two counties are served by different metropolitan daily newspapers. Over a year had elapsed between the first Pima County newspaper stories of the crimes and the beginning of trial in Prescott on 14 October 1975. Prior to trial, one hundred prospective jurors were asked to fill out extensive questionnaires which both the State and defense helped to write. The trial judge then orally questioned each of these persons at length, supplementing his own questions with those suggested by the attorneys. Occasionally, the attorneys themselves asked questions. The original group of one hundred was narrowed to a panel of thirty-six, from which sixteen trial jurors were ultimately chosen.
No one on the thirty-six member panel indicated a knowledge of the instant case. No one knew that Steelman’s trial had occurred. One person, not an ultimate juror, overheard in a coffee shop that Gretzler had been given a life sentence in California. Four panel members knew that he had been extradited from California for the present trial. Two individuals recalled Steelman’s name, but knew nothing about him; and one knew that he had been accused of murder, but not that he. had been tried.
It would appear that this panel had substantially less knowledge of the case and the defendant than is required for a finding of jury taint. Neither prior knowledge of the case nor an opinion concerning the defendant’s guilt will disqualify a juror unless there is evidence that is he unable to set aside such knowledge or opinion in evaluating the evidence presented at trial. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); State v. Smith, 116 Ariz. 387, 569 P.2d 817 (1977); State v. Endreson, 109 Ariz. 117, 506 P.2d 248 (1973) (half of trial jury had knowledge of the case); State v. Schmid, 109 Ariz. 349, 509 P.2d 619 (1973) (all jurors had knowledge of the case). We find no error.
b. Was the jury panel unconstitutionally selected?
On 22 October 1975, Gretzler moved to quash both the panel of one hundred jurors provided by Yavapai County and the panel of thirty-six narrowed from the original group through voir dire, as being unrepresentative of the community from which they were drawn.
The statistical information submitted by Gretzler indicates that Yavapai County had an estimated population of 50,700 in 1976. The figures show that 87% of the total population is “Anglo-American,” while the remainder is “Spanish-American,” “Indian,” “Negro,” or “Other.” Gretzler contends that there should have been thirteen Spanish-Americans instead of two.
In Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), the United States Supreme Court held that petit juries must be drawn from a source fairly representative of the community, and that the defendant need not be a member of the group allegedly excluded in order to raise this question. The United States Supreme Court has also set forth the elements a challenger must show to establish a prima facie violation of the fair cross-section requirement. These are:
“(1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579, 587 (1979).
We note that jurors in Arizona were selected at that time from voter registration lists as provided in A.R.S. § 21— 301(A). The use of voter registration lists as a sole source of jurors is not constitutionally infirm absent a showing of systematic exclusion in the compiling of such lists:
“* * * we note that even if defendant does establish that blacks do not register in proportion to their share of the community population, which is all he seeks to show, he will have failed to demonstrate any systematic exclusion of blacks for jury duty. Although the registered voters list from which jurors are drawn may not parallel exactly the proportion of each minority within the community, that in no way establishes or even demonstrates systematic exclusion. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). * * * ” State v. Watson, 114 Ariz. 1, 16, 559 P.2d 121, 136 (1976), cert. denied 430 U.S. 986, 97 S.Ct. 1687, 52 L.Ed.2d 382 (1977). See also State v. Lee, 114 Ariz. 101, 559 P.2d 657 (1976); United States v. James, 453 F.2d 27 (9th Cir. 1971).
And:
“A defendant is not entitled to a jury which is composed of, with material precision, the exact proportion of his race as exists in the general population. All that is required is a jury selected by a process where the members of his race are not systematically excluded.” State v. Taylor, 109 Ariz. 267, 272, 508 P.2d 731, 736 (1973).
Even though there may have been underrepresentation as to this particular jury venire, we do not find this underrepre-sentatiori is due to systematic exclusion in the jury selection process. We find no error.
c. Did the trial court abuse its discretion as to voir dire?
On 13 October 1975, the defense filed a motion to “allow defense counsel to conduct a full blown voir dire examination of the jury panel.” The trial court denied this motion. A written questionnaire consisting of eighty-four questions was jointly formulated by the prosecutor, defense attorney, and trial judge. Each of the one hundred original jurors answered the questionnaire. Then each of the one hundred was questioned outside the presence of the other jurors by the trial judge. The defense attorney and prosecutor asked questions when they deemed it necessary to do so. Although defense counsel did not conduct voir dire, he actively participated in the questioning of the jurors at each stage. The defense was not foreclosed from asking any relevant questions. See Rule 18.5(d), Arizona Rules of Criminal Procedure, 17 A.R.S.; State v. Melendez, 121 Ariz. 1, 588 P.2d 294 (1978). We find no error.
d. Did the trial court err in limiting the defense to ten peremptory challenges?
On 14 October 1975, the defense filed a motion requesting that it be allowed an unspecified number of peremptory challenges, in addition to the ten specified by Rule 18.4, Arizona Rules of Criminal Procedure, 17 A.R.S. The defense argued that the extra challenges were necessary to vitiate the impact of pretrial publicity on the jury panel. The trial court denied this motion.
We have stated above that there was no significant prejudice among potential jurors from any alleged pretrial publicity. The defendant cites no authority for the proposition that the trial court should have granted him more than ten peremptory challenges provided him under Rule 18.4, nor does he suggest any way in which he was damaged by having only ten challenges rather than more. We find no error.
e. Sequestration of the jury.
On 14 October 1975, the defense moved that the jury be sequestered. This motion was denied by the trial court. Our rule states:
“19.4 Separation and detention of jurors “The court in its discretion may permit jurors to separate or, on motion of any party, may require them to be sequestered in charge of a proper officer whenever they leave the jury box. The court shall admonish the jurors not to converse among themselves or with anyone else on any subject connected with the trial, or to permit themselves to be exposed to news accounts of the proceeding, or to form or express any opinion thereon until the action is finally submitted to them. If the jurors are permitted to separate, they shall also be admonished not to view the place where the offense allegedly was committed.” Rule 19.4, Arizona Rules of Criminal Procedure, 17 A.R.S.
Publicity is the chief factor a trial judge should consider when determining whether to sequester a jury. Although the publicity in Pima County was sufficient to convince the trial judge to grant the motions for change of venue, the publicity in Yavapai County was not such that it was necessary to sequester the jury. As we have indicated above, the jury panel had no members who were aware of even the bare facts of the crimes with which Gretzler was charged. The trial court cautioned the jurors at the beginning and end of every session to avoid exposure to news stories or conversations concerning the trial, in accordance with Rule 19.4, supra. After the panel of thirty-six was selected, and before the final twelve were chosen, two members of the jury responded affirmatively to the court’s questions as to whether they had heard anything about the case during a week-end recess. The court promptly investigated the kind and extent of their exposure to outside information to the satisfaction of both State and defendant. The publicity was not inflammatory or excessive.
“When * * * publicity is not sensational nor inflammatory, there is no need to sequester the jury particularly when the jury has been cautioned not to read the newspapers, listen to the radio or watch television during the trial and there is no indication that the court’s instructions were violated.” Collins v. State, 589 P.2d 1283, 1291 (Wyo.1979). See also State v. Richmond, 112 Ariz. 228, 540 P.2d 700 (1975); State v. Lippard, 26 Ariz.App. 417, 549 P.2d 197 (1976); Annotation, 72 A.L.R.3d 100.
Gretzler contends, however, that because the newspapers the jury received were censored, the jury knew this was a sensational case. Just prior to the beginning of trial, the trial court explained to the jurors that they had to forego newspapers and news broadcasts for the duration of the trial. The judge informed them that newspapers in which stories concerning the case were excised would be provided for the jury to read during recesses. Censored newspapers were provided during jury selection as well. Gretzler alleges that these newspapers were themselves prejudicial because the excisions indicated to the jurors the fact that the trial was newsworthy. We do not agree.
It is not uncommon to provide censored newspapers and magazines for jurors in a long trial so that they will not, as the trial court put it in this case, “feel totally left out of the news that [is] going on in the world.” We believe the court’s concern for the jury was commendable, and we do not believe that the excised portions of the newspapers indicated that the trial was more important than the facts presented to the jury would reasonably be expected to indicate. We find no error. See State v. Braun, 82 Wash.2d 157, 509 P.2d 742 (1973).
Finally, in his pretrial caution to the jury, the judge made the following statement:
“One of the ways in which a court can insure that jurors don’t hear or read anything about the case while they’re sitting on the jury is to sequester them, which means to put them in a hotel and not let them go home to their families and go about their daily affairs. But it is not the intention of the court to do that in this particular case. If the court finds that it loses one or two jurors because they aren’t following the admonitions of the court in not talking about the case or hearing anything about it or discuss it, it may be that that admonition won’t be sufficient, and that it — as to the balance of the jurors that may remain, they would have to be sequestered.”
Gretzler objected that this statement was a threat which would so intimidate the jurors that they would not dare reveal to the court that they had been exposed to prejudicial statements. Gretzler has shown no instance where a juror was exposed to prejudicial statements. Neither do we believe that jurors are so easily intimidated. The court merely gave them the alternative to sequestration. We find that the statement is a proper admonition of the kind contemplated under Rule 19.4, supra. We find no error.
ADMISSIBILITY OF DEFENDANT’S CONFESSIONS
On 8 November 1973, at about 10:10 a. m., Gretzler was arrested in a hotel in Sacramento, California, on warrants arising out of the murders that occurred in Maricopa County, Arizona, and San Joaquin County, California. Immediately on arrest he was advised of his Miranda rights. The accused was them taken to the Sacramento Police Department where he was strip-searched and again advised of his Fifth and Sixth Amendment rights. He said he understood his rights, but wished to make a statement. Gretzler was questioned two more times by California authorities about the California crimes, always after being advised of his Miranda rights. He was also interviewed by two California psychiatrists who later testified as to Gretzler’s competency.
The following morning, 9 November, at about 10:00 a. m., the defendant was again advised of his Miranda rights. Once more he waived them. He was again interviewed by San Joaquin authorities, this time accompanied by Detectives Arellanes and Miller from Maricopa County. During this tape recorded interview, Arellanes made the following comment:
“Okay, Douglas, from what we understand you have been real cooperative with these gentlemen here and you told them — you have gone right down the line and told them everything, right? Okay. We would appreciate it at this time if you would do the same thing with us. Chances are that we may not be able to prosecute you in Arizona.”
The questioning was interrupted twice. Once the defendant was taken via elevator to a courtroom in the same building for arraignment, but returned to the interview room because the magistrate was not ready for him. The second time he was taken to the court, arraigned, and appointed a lawyer.
At his Arizona voluntariness hearing, Gretzler testified that during the second elevator ride he had been coerced into admitting the Maricopa County murders:
“My hands were chained to my sides on a chain belt. I was standing in the elevator. It’s got two sections, a front like out there (indicating), and the back has a cage. They put you in there and some of the guys in there grabbed me and pressed me up against the wall.”
Gretzler also testified that no one ever hit him or otherwise hurt him while he was in custody. The Maricopa detectives testified at the hearing that they had told Gretzler in the elevator that they believed he was lying about the Maricopa crimes, but that there had been no physical harassment of the defendant. Up until this elevator ride, Gretzler maintained that Bob Robbins and Yafah Hacohen, the couple he and Steelman murdered in a Maricopa County trailer park, were, as far as he knew, still alive. While in the elevator, he admitted they were dead and agreed to give Arizona detectives a statement concerning their deaths.
Following his arraignment and the appointment of counsel, the two Maricopa County officers concluded their conversation with Gretzler. The newly appointed lawyer, George Dedekam, was present, as the following excerpt from a tape-recording of the session indicates:
“Detective Ambrose: Defendant Douglas Edward Gretzler. The date 11-9-73. The time is 11:50 hours. Approximately twenty minutes before this interview, another interview was held. This interview was discontinued to take Mr. Gretzler before Municipal Court Judge for his first arraignment. At this Court Attorney George Dedington (sic) was appointed as the attorney of record for Mr. Gretzler. “Douglas, the reason I put that in the recording — the reason I’ve advised you and recorded on here that we went to the Court and you were appointed an attorney is because now officially you have an attorney representing you. All right, before we can question you any further we’re going to contact your attorney and we’re going to talk with him and have you talk with him and advise him that you are going to make further statements to us. Do you understand that?
“GRETZLER: I understand that. Now, I am willing to make a statement, with or without him.
“Q You want to make a statement with or without him; is that correct?
“A Yes, yes.
“Q All right. We’re not going to ask you any questions from this point on until we have Mr. Dedekam on the phone or here in person.
“A Right.
“Q You understand that?
“A Yes, I understand that. Can I have these removed, these shackles from my legs?
“Q Beginning to bite in a little bit? “A Yeah, they hurt. Okay, I think I’ll go along with that, okay for now.
“Q The reason we’re trying to get ahold of you we brought him down, he was making statements. (Talking to Dedekam)
“DEDEKAM: He indicated that I hadn’t told him not to; I didn’t have a chance in Court.
“GRETZLER: No, that’s all right. I did it wilfully.
“DEDEKAM: Okay, no more statements, then, okay?
“DETECTIVE AMBROSE: And for your information, Mr. Dedekam, there has been no questioning at all. We advised him of this, that he would have to talk with you first.
“DEDEKAM: Seriously, okay? They do not have very many reports at this time, so it’ll probably be sometime next week before I come out to see you, because I want to review the reports, before I talk to you okay?
“DEDEKAM: Okay, now I’ll be out to see you. A number of the inmates are going, if they’re near or around you, they’re going to be wanting to question you.
“GRETZLER: I’m sure, but they’re not, I’m in maximum security anyway. “DEDEKAM: Don’t talk. I don’t think they would be * * * if they do * *. (GARBLED)
“GRETZLER: I won’t say anything. “DEDEKAM: Then I’ll be up to see you, okay?
The interview concluded about noon.
Late that night, Detectives Bunting and Tucker of the Tucson Police Department spoke with the defendant for the first time about the Tucson murders. They told Gretzler they were investigating the Sierra and Sandberg murders and that he would probably be prosecuted for these crimes. At the voluntariness hearing, Bunting testified as follows about this conversation:
“We explained to him that we could not talk to him unless he waived his rights to an attorney.
He explained his attorney advised him not to speak to anybody, that he would like to talk unofficially if he could.
We explained we could not talk unofficially; that anything he said would be used against him, and there was no way we could speak with him unofficially. We explained he had certain rights that we would have to advise him of.
He told us he had been advised of his rights many times, and that he was fully aware of his rights, and that’s all he had heard since he was arrested was his rights, and that he was just completely aware of them; that he did not want to make a statement, but he would talk to us verbally.
“Q What happened next?
“A After I was satisfied in my mind he knew his rights, we went ahead and spoke with him about it first explaining to him that it would be used against him.”
Gretzler testified that he understood his statements could be used against him and that he spoke willingly to Bunting and Tucker. This conversation lasted about an hour; no tape recording was done because the defendant did not want the tape recorder running. At the end of the interview, Gretzler said he might be willing the next day to make a tape recording. In Bunting’s words: “He wanted time to think about it and [said] to come back.”
At about 1 p. m. on 10 November, Detectives Bunting and Tucker returned to talk with Gretzler to see whether he would tape-record a statement about the Tucson crime. He was advised of his rights and agreed to answer questions on tape. In this brief interview, Gretzler admitted his role in the V.A. kidnapping and told of going to the Sandberg condominium complex afterward. He did not admit that he had entered the Sandberg home or killed the couple.
At 1:30 p. m. the same day, Gretzler was visited by California detectives Ambrose and Wagner, whom he had requested to see. He was advised of his rights and waived them both orally and in writing. It was during the long interview which followed that Gretzler first admitted his active role in the crimes of the preceding weeks; he confessed to the Lodi and Tucson murders. Gretzler made the following statements in waiving his right to counsel:
“Q All right, before we get started I want you to understand that yesterday your attorney talked with you.
“A Yes, he did.
“Q And said certain things to you.
“A Right. He advised me not to say anything.
“Q All right.
“A But I’m waiving those rights, I’m going to.
“Q All right, I’m going to advise you of your rights again, and then you can—
“A Right.”
The officer then read the defendant his Miranda rights:
“Q I’ve advised you before of these rights. Do you, do you still understand those rights?
“A Yes, I do.
“Q All right, your attorney is George Dedekam?
“A Yes.
“Q Do you desire to call him at this time or would you like to just—
“A I would like to talk to him later, not at this time, I don’t.”
Gretzler then signed a waiver form provided by Detective Ambrose:
“DETECTIVE AMBROSE: Q Do you not desire your counsel to be here?
“A I do not, and this is voluntary.”
This interview ended at about 5 p. m.
Larry Hust of the Tucson Police Department interviewed Gretzler on 19 November 1973, and Gretzler again reiterated that his statements were made voluntarily and in full knowledge of his rights.
Of the statements outlined above, three were used by the State as trial evidence. The first was the tape recording taken by Detectives Bunting and Tucker on the afternoon of 10 November. In this interview, Gretzler admitted that he had participated in the V.A. kidnapping and claimed he was outside the Sandberg home while Steelman spent several hours inside. The second confession was made shortly after the first, to California detectives. It was Gretzler’s first acknowledgement that he, himself, had murdered numerous people, including eight of the Lodi victims and both of the Sandbergs. The third statement introduced at trial was Gretzler’s 19 November avowal that earlier conversations with the police had been voluntary.
a. Did the evidence before the trial court support a finding that Gretzler’s confessions were voluntarily made?
Gretzler moved to suppress all statements made by him to authorities while he was in police custody. A voluntariness hearing was held and ten witnesses, including Gretzler, testified. The trial court listened to all tape recorded statements in their entirety. Following the hearing, the court found that Gretzler was fully advised of his Miranda rights and that he knowingly, intelligently and voluntarily waived these rights. Gretzler’s motion to suppress was therefore denied. On appeal, Gretzler alleges that the trial court’s finding was reversible error because it was unsupported by the evidence. We do not agree.
“[C]onfessions are prima facie involuntary and the burden is on the state to show by a preponderance of the evidence that a confession was freely and voluntarily made.” State v. Edwards, 122 Ariz. 206, 212, 594 P.2d 72, 78 (1979). See also Rule 16.2(b), Arizona Rules of Criminal Procedure, 17 A.R.S.; State v. Hall, 120 Ariz. 454, 586 P.2d 1266 (1978). A confession will be found involuntary where the court, considering all the circumstances, determines that one of the following factors exists: (1) impermissible conduct by police, (2) coercive pressures not dispelled, or (3) confession derived directly from prior involuntary statement. State v. Steelman, supra, 120 Ariz. at 309, 585 P.2d at 1221. None of these factors exist in this case. Neither is a confession made involuntary by the mere fact that it was made outside the presence of an attorney. State ex rel. Berger v. Superior Court, 105 Ariz. 553, 468 P.2d 580 (1970).
“[A] blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, * * * would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests.” Michigan v. Mosley, 423 U.S. 96, 102, 96 S.Ct. 321, 326, 46 L.Ed.2d 313, 320 (1975). See also United States v. Rodriguez-Gastelum, 569 F.2d 482 (9th Cir.), cert. denied 436 U.S. 919, 98 S.Ct. 2266, 56 L.Ed.2d 760 (1978).
Gretzler was fully informed of his constitutional right to counsel and right to remain silent as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). There is no question that he understood the rights he was waiving when he confessed to the crimes he had committed in Pima County.
The facts fully support the trial court’s finding that the State met its burden of proving Gretzler’s statements voluntary. See State v. Sample, 107 Ariz. 407, 489 P.2d 44 (1971). There was no error in the denial of defendant’s motion to suppress.
b. Was there a violation of defendant’s right to counsel, rendering his statements inadmissible?
As further grounds for suppression of his California statements, defense counsel argued both at trial and on appeal that Gretzler’s right to counsel was violated. He contends that “confessions obtained by Arizona authorities without the benefit of Arizona counsel,” must be suppressed. The defense cites no authority to support this view. We find nothing to require that an attorney must be provided by a state to a defendant before that defendant is brought into and within the custody and jurisdiction of that state. Of course, if the defendant asks for an attorney, he may not be questioned until he has one appointed, but an attorney in the state in which he is then in custody will satisfy the requirements of defendant’s right to counsel.
In the instant case, we note that Gretzler, of his own accord, largely disregarded the advice to remain silent given him by his California attorney. Where waiver of right to counsel in California so unequivocally followed the proper Miranda warnings, subsequent statements made in California were not rendered inadmissible by the fact that Gretzler had not yet been appointed Arizona counsel.
c. Did the trial court wrongly limit the defense challenge of voluntariness of certain evidence by not allowing the defense to question its admissibility before the jury?
Gretzler argues on appeal that the trial court prevented him from adequately presenting the issue of voluntariness to the jury. At trial, the State introduced Tucson policeman Larry Hust to lay the foundation for the playing of the tape recording of the 19 November 1973 conversation between Gretzler and Hust. Defense counsel argued that he should be allowed to voir dire Hust as to voluntariness prior to the tape’s being played. The judge ruled that, since he had found the statement admissible, it would be played to the jury without prior questioning by the defense. The defense would be allowed to raise the voluntariness issue in its cross-examination of Hust, after the jury had heard the recording. The defense renewed this argument as each Gretzler statement was introduced, and each time it was overruled.
We believe the judge’s rulings follow from a correct interpretation of the law concerning the respective roles of judge and jury in weighing voluntariness as set forth by the United States Supreme Court in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
“The only issue decided in the Jackson case is the correct trial procedure when a purported confession is offered and a question is raised as to whether it is voluntary or involuntary. In Jackson, the Supreme Court held that when this question is raised the trial judge must first hear the evidence regarding the confession outside the presence of the jury. He must then make a definite determination whether the purported confession was voluntary or involuntary. If he determines it was involuntary it may not be admitted in evidence. If he determines it was voluntary, he may admit it for consideration by the jury. He may not submit it to the jury merely upon a finding that there is a conflict in the evidence, without himself first definitely resolving the conflict.” State v. Owen, 96 Ariz. 274, 275, 394 P.2d 206, 207 (1964). See also Rule 16.2, Arizona Rules of Criminal Procedure, 17 A.R.S.
Once the court has found his statements admissible, a defendant may, of course, present evidence tending to refute the statements’ validity. The jury is the ultimate arbiter of voluntariness, and is free, “in effect, [to] disagree with the judge, and reject the confession.” State v. Owen, supra, 96 Ariz. at 277, 394 P.2d at 208. Once the evidence had been admitted as the result of a hearing outside the presence of the jury, the defendant may not challenge the statement’s admissibility before the jury although he may challenge its voluntariness on cross-examination.
d. Did the court’s granting the State’s motion to prohibit mention of the death penalty unduly limit the defense’s arguments on voluntariness?
During a recess before the playing of the Hust tape to the jury, the trial court heard a State motion in limine that there should be no reference at trial to the death penalty. The State argued that punishment is a matter for the judge and should not be considered by the jury in determining guilt or innocence. The motion was opposed by the defense, but was granted by the trial court. On appeal, the defense asserts that the court’s ruling was reversible error because it precluded testimony or argument that Gretzler’s confession was obtained by threats of capital punishment. In a previous case of this court we stated:
“It appears from the record that the trial court’s reason for precluding evidence of the penalty the witness could have received was to prevent the jury from learning of the penalty the defendants in this case might receive if convicted of first degree murder. Whatever merit this reason may have, it cannot outweigh the right of the defendant to cross-examine the State’s major witness on what he expects in return for his testimony. The fact that the witness faced a possible death penalty if he did not testify for the State surely would be a factor if not the factor in the witness’s decision to testify. The trial court’s refusal to allow inquiry into the penalty the witness would have faced had he not agreed to testify was reversible error.” State v. Morales, 120 Ariz. 517, 520, 587 P.2d 236, 239 (1978).
In Morales, supra, the threat of the death penalty was an inducement for the witness to testify. We held that foreclosing reference to the death penalty was prejudicial to the defense and thus outweighed the policy against allowing punishment to be mentioned before a jury not charged with determining sentence.
In the instant case, the death penalty was not a factor in Gretzler’s confession since Gretzler admitted he did not know Arizona had the death penalty. At the voluntariness hearing outside the presence of the jury, Gretzler stated:
“Q Do you understand now what my questions are trying to find out?
“A No.
“Q The 19th was the day you gave the statement to Mr. Hust. You remember Mr. Hust with the very short haircut that came in and testified? “A Yes.
“Q You remember giving the statement to him?
“A Yeah.
“Q That was the last statement that you gave that’s been introduced into this proceeding. Is that your recollection? “A Yeah. I think so.
“Q Prior to that, did you know that life imprisonment was the maximum penalty for the charges against you in California?
“A I guess I figured it probably was, but I wasn’t sure.
“Q Between the 8th and 19th when you gave the statement to Hust, did you ever know what the penalty was for the Arizona charges?
“A For the Arizona charges?
“Q Yes, what the maximum was for those charges?
“A No, not for sure.
“Q What did you think, if you thought about it at all? Did you?
“A I figured probably — I don’t know, twenty years, I don’t know.
“Q Did you think about it?
“A No, not really.”
We find no error.
OBJECTIONS TO EVIDENTIARY RULINGS
a. Were defendant’s prior convictions admissible for impeachment purposes?
On appeal, Gretzler renews his trial objection to a ruling that his California convictions, based upon crimes that occurred after the crimes for which he was being tried, could be used to impeach him if he testified in his own behalf. Impeachment goes to the credibility of a witness. Conviction of a felony is material to a witness’s credibility. A witness may be impeached by a prior felony conviction even if the witness is also the defendant and the prior felony conviction was for a crime that occurred after the crime for which the witness is being tried as a defendant. The fact that its application may have prevented Gretzler from taking the stand is not material. Spencer v. Texas, 385 U.S 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967); State v. Myers, 117 Ariz. 79, 570 P.2d 1252 (1977), cert, denied 435 U.S. 928, 98 S.Ct. 1498, 55 L.Ed.2d 524 (1978). We find no error.
b. Did the trial court erroneously limit the testimony which could be offered in support of Gretzler’s drug intoxication defense?
Before ruling on a State motion in limine to preclude psychiatric testimony other than opinions as to M’Naghten insanity and competency, the court heard offers of proof and testimony of expert witnesses outside the presence of the jury. On this basis, the court admitted expert testimony as to the general impact of certain drugs on the average person. The court barred testimony as to the possible impact of certain drugs on Gretzler, because no expert could either state to a reasonable medical certainty what the impact upon Gretzler would be or had personally observed Gretzler in a drug-intoxicated state. The court also refused to allow expert opinion on personality defects other than M’Naghten insanity or incompetence. Testimony of the defendant’s sister, J.G., as to occasions when she had seen him take drugs, was admitted over the State’s argument that such evidence was too remote to have probative value; Ms. G. having last seen her brother on Christmas Day, 1972. She was precluded, however, from testifying about the defendant’s hospitalization for drug overdose, in 1969, because she had no first-hand knowledge of that event.
At the conclusion of trial on 3 November 1975, the defense moved for a mistrial based on the court’s limitation of psychiatric and lay witnesses of proof of drug intoxication. The court denied the motion.
Evidence of voluntary intoxication is admissible only to negate specific intent. A.R.S. § 13-132. See also State v. Steelman, supra; State v. Cooper, 111 Ariz. 332, 529 P.2d 231 (1974). Testimony concerning intoxication should be limited to the time of the crime for which the defendant is being tried. State v. Durgin, 110 Ariz. 250, 517 P.2d 1246 (1974). In the instant case, it appeared that no one could testify as to the effect of drugs on Gretzler at the time of the crimes. We find no error.
c. Did the trial court err in admitting photographs of the murder victims into evidence?
Defendant objects to the admission into evidence of two photographs of the Sandbergs’ corpses. The pictures were taken at the couple’s apartment. Each black and white photograph shows a fully dressed victim, bound and gagged, as discovered by the Tucson police.
The admission or exclusion of photographs of murder victims is left to the trial judge’s discretion. State v. Thomas, 110 Ariz. 120, 515 P.2d 865 (1973). As long as the photographs have probative value they are admissible, even though they may arouse the emotions of the jury. State v. Ferrari, 112 Ariz. 324, 541 P.2d 921 (1975). Here, as in Ferrari, supra, the pictures tended to corroborate the State’s theory of how the homicide was committed, to illustrate and explain testimony, and to prove malice aforethought. We find no abuse of discretion in the trial court’s ruling.
d. Was there adequate foundation for the admission of fingerprint evidence?
At trial, the defense argued that fingerprint evidence was inadmissible for lack of foundation, in that the I.D. technician, Reese, was uncertain as to who lifted which prints. This objection is reiterated on appeal. Our reading of the trial transcript reveals that Reese clearly testified that he himself lifted all of them. His testimony fully describes the process by which each print was lifted and labelled, who labelled each print, and the location from which each was taken. The trial court properly admitted the fingerprint evidence.
e. Did the trial court err in admitting into evidence a hearsay account of a statement made by co-perpetrator Steelman?
At trial, witness D.S. testified that while he, Gretzler, and Steelman were riding in the Sandbergs’ car, Steelman said it was stolen from two people who had gone to Hawaii. Defense counsel objected that his hearsay account of Steelman’s statement was erroneously admitted into evidence and argued that it was grounds for a mistrial. The court denied his mistrial motion. We agree with the trial court that the statement was admissible as an extrajudicial comment of a co-conspirator made in the course and furtherance of the conspiracy. See State v. Speerschneider, 25 Ariz. App. 340, 543 P.2d 461 (1975). We find no error.
f. Was the testimony of J.N. erroneously admitted into evidence?
J.N., the manager of the condominium complex in which the Sandbergs lived, testified at Gretzler’s trial. J.N. was not asked to identify Gretzler at trial. He testified that he was a friend of the Sandbergs, that they were students, that he saw a blue Pontiac Firebird, later shown to be V.A.’s drive into the housing complex and eventually reported its presence to the police. He also testified that he saw Michael Sandberg walk to his condominium with two men and that Sandberg did not respond to his friend’s greeting. At the conclusion of this testimony, defense counsel moved that it be stricken from the record. He asserted that the testimony was irrelevant because it did not connect Gretzler to the crime. We do not agree.
J.N.’s testimony was probative of several links in the chain of events leading from the kidnapping of V.A. to the murder of the Sandbergs. For example, he testified as to the approximate arrival time of the Firebird and stated that two men, at a time not long after V.A.’s kidnapping, accompanied an apparently uncomfortable Sandberg up the stairs to his condominium. Such testimony was relevant despite the fact that it did not specifically identify Gretzler. State v. Kennedy, 122 Ariz. 22, 592 P.2d 1288 (App.1979); State v. Mosley, 119 Ariz. 393, 581 P.2d 238 (1978). See also Rule 402, Arizona Rules of Evidence, 17A A.R.S.; State ex rel. LaSota v. Corcoran, 119 Ariz. 573, 583 P.2d 229 (1978). The trial judge did not err in refusing the defendant’s motion to strike J.N.’s testimony.
g. Further evidentiary issues raised on appeal.
In what he calls “Issue XXXII” of his brief, Gretzler states that twenty-four additional evidentiary rulings of the trial court were erroneous. The brief merely lists objections made at trial; the defendant in no way argues the merits of his objections. See Rule 31.13(c)(l)(iv) of the Arizona Rules of Criminal Procedure, 17 A.R.S. We have reviewed the issues and find no fundamental error.
Finally Gretzler asserts, without argument, that he was prejudiced by the court’s admission of evidence that he was arrested by California police. The fact that Gretzler was arrested by somebody prior to trial was obvious to the jury. We are unable to perceive how testimony that Gretzler was held in another state on Arizona indictments would damage his case before the jury.
CHALLENGES TO MISCELLANEOUS RULINGS MADE DURING TRIAL
a. Did the trial court improperly limit the scope of cross-examination?
Gretzler contends that the trial court erroneously prevented his cross-examining a State’s witness as to whether Gretzler had said during a taped confession that he had never been arrested previously. Our review of the record reveals that Gretzler misstates the trial court’s ruling. In fact, the court ruled that such cross-examination was improper as long as Gretzler’s character was not in issue and that the court might rule differently if the defense chose to raise the issue of character.
Since Gretzler did not choose to raise his character as an issue and face the risks inherent in that choice, it was not error for the trial court to preclude cross-examination on that issue. State v. Fierro, 108 Ariz. 268, 496 P.2d 129 (1972); Singh v. State, 35 Ariz. 432, 280 P. 672, 67 A.L.R. 129 (1929).
The trial court also refused to allow the defense to cross-examine witness V.A. concerning either a polygraph examination he took when the police investigated his kidnapping or his reasons for leaving a job with the Tucson Police Department. In a hearing outside the jury, it was shown that neither the polygraph test nor V.A.’s job record contained any evidence relevant to Gretzler’s guilt or innocence. We have held that the
“absolute right to cross-examine ‘within the proper bounds’ does not license the defendant for a fishing expedition into completely irrelevant matter.” State v. Shaw, 93 Ariz. 40, 44, 378 P.2d 487, 490 (1963). Accord, State v. Williams, 120 Ariz. 600, 587 P.2d 1177 (1978). See also State v. Robison, 125 Ariz. 107, 608 P.2d 44 (1980).
We find no error.
b. Did the trial court err in refusing a defense motion to continue after the jury was impaneled?
On 22 October 1975, after the jury was impaneled, the defense moved that the trial be continued. The two chief grounds for the request were that the defense was unable to find M.M., whom it wished to call as a witness, and that the defense wanted to obtain the results of ballistics and fingerprint tests prior to making an opening statement. The trial court, which, as we have discussed above, had been generous in granting continuances prior to im-panelment of the jury, denied the motion.
The statement taken by police from the missing witness, M.M., indicates that his testimony would have been cumulative to that of J.M. and D.S., who did testify at trial. In addition, there is “no indication that this testimony would influence the outcome of the trial or would otherwise be helpful to the defendant.” State v. Lacquey, 117 Ariz. 231, 235, 571 P.2d 1027, 1031 (1977). See also State v. Ebert, 110 Ariz. 408, 519 P.2d 1149 (1974). Gretzler has not shown that either the ballistics or the fingerprint evidence would have benefited his case. We find no error.
c. Did the trial court err in upholding Willie Steelman’s assertion of a Fifth Amendment right to remain silent when called to testify at Gretzler’s trial?
Prior to trial, the defense notified the State that it intended to subpoena Gretzler’s codefendant, Willie Steelman, to testify at Gretzler’s trial. Steelman, both personally and through his attorney, on Fifth Amendment grounds, consistently maintained that he would not testify or even speak to Gretzler’s counsel.
The State made a motion in limine to preclude Steelman’s appearing before the jury, if he intended to do no more than invoke his Fifth Amendment privilege. The trial court held a hearing outside the jury to determine whether Steelman still intended to remain silent. At this hearing, Steelman refused to utter a word. His attorney stated that he had advised his client to invoke the Fifth Amendment in order to protect his rights on appeal. Gretzler moved that, faced with Steelman’s silence, the court order him to testify or order an examination into his competency. The court denied Gretzler’s motions. Gretzler maintains that the judge erred in denying his defense motions to order Steelman to testify or to have him examined for competency.
The Fifth Amendment privilege is available to a convicted person when his conviction or sentence is being appealed. See State v. Moncayo, 115 Ariz. 274, 564 P.2d 1241 (1977); State v. Cota, 102 Ariz. 416, 432 P.2d 428 (1967), cert. denied 390 U.S. 1008, 88 S.Ct. 1256, 20 L.Ed.2d 109 (1968). See also Cota v. Eyman, 453 F.2d 691 (9th Cir. 1971).
In the present case, Steelman appealed both his conviction and his sentence, and they had not been finally disposed of on appeal. In these circumstances, he was entitled to claim his Fifth Amendment rights. The trial court correctly denied the defense motion to order Steelman to testify or undergo an examination for competency.
d. Did the trial court err in precluding Steelman from asserting his Fifth Amendment privilege in the presence of the jury?
The trial court also granted the State’s motion in limine to preclude Steelman from appearing before the jury if he intended to remain silent. Gretzler contends that this was error and we agree. The “privilege against self-incrimination is a personal immunity for the witness and does not disqualify him from being called * * State v. Cota, supra, 102 Ariz. at 421, 432 P.2d at 433. In State v. Ortiz, 113 Ariz. 60, 546 P.2d 796 (1976), the trial court ruled that the defense should be precluded from calling two witnesses who would certainly invoke their privilege against self-incrimination. We reversed on Sixth Amendment grounds. We held that while the defendant’s Sixth Amendment right to call witnesses would not enable him to force them to speak, he was entitled to show that he had presented “all the relevant evidence at [his] disposal.” Ortiz, supra, 113 Ariz. at 61, 546 P.2d at 797.
We believe the trial court erred in precluding Steelman from appearing before the jury even though it was apparent that he would claim the privilege and not testify. We do not believe, however, that this error reasonably could be thought to have “contributed to the conviction.” Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171, 173 (1963). The defense in the instant case was deprived of only the bare right to show Steelman to the jury. It was not likely that Steelman’s absence would have any weight whatever on the trial. Gretzler did not indicate, by means of an offer of proof, what he hoped to gain from Steelman or the questions that would be asked of him. Gretzler’s conviction was based on solid evidence, including eye witness testimony, his use of property stolen from victims, fingerprints, and copious statements from Gretzler himself. Steelman’s non-appearance at trial could not have contributed to the verdict. We believe that while the trial court erred in denying Gretzler’s Sixth Amendment right to compel witnesses in his behalf, Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); Ortiz, supra; this error was “harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 711 (1967). See also Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 f. (1969).
e. Did the trial court require Gretzler to offer proof on any element of first degree murder?
The State brought evidence to prove beyond a reasonable doubt every element of first degree murder, including malice aforethought. A.R.S. § 13-451. The defense then had the opportunity to present evidence of drug intoxication to negate the State’s evidence of specific intent.
Gretzler argued that the allocation to the defense of the burden of persuasion as to drug intoxication was impermissible under Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). In Mullaney, the United States Supreme Court invalidated a newly revised Maine murder statute which allowed the jurors to presume malice from a deliberate killing and required the defendant to negate this presumption by proof that he acted in the heat of passion. In Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), however, the court upheld a New York murder statute requiring the state to prove the intent element and establishing extreme emotional disturbance as an affirmative defense the defendant must prove by a preponderance in order to reduce the crime to manslaughter. The United States Supreme Court held that defendants may be required to prove affirmative defenses where the prosecution is required to prove intent, and every other element of the crime charged, beyond a reasonable doubt. Patterson, supra. See also Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952).
The procedure followed at Gretzler’s trial is distinguishable from the Maine procedure condemned by Mullaney. Here the State was granted no presumption as to any element of first degree murder. As in Patterson, the State was required to prove intent beyond a reasonable doubt. We find no error.
Did the trial court err in denying Gretzler’s motion for acquittal?
At the conclusion of the State’s case, Gretzler made a motion for judgment of acquittal. The court denied this motion and the defense now argues that the denial was error. We do not agree. There was substantial evidence that Gretzler committed the crimes with which he was charged. State v. Parker, 113 Ariz. 560, 558 P.2d 905 (1976). We find no error.
g. Did the trial court err in instructing the jury?
Gretzler reasserts on appeal his objections to the trial judge’s refusal to give a number of his suggested jury instructions. Considering the instructions as a whole, as we must, State v. Carr, 108 Ariz. 203, 495 P.2d 134 (1972), we find that most of the instructions about which the defendant complains were substantially covered by the court’s own instructions. If the substance of proposed instructions is adequately covered by instructions actually given by the court, there is no error in their being refused. State v. Cookus, 115 Ariz. 99, 563 P.2d 898 (1977). See also State v. Melendez, supra.
Defendant’s suggested instruction Number 9 read as follows:
“The testimony of any witness whose self-interest or attitude is shown to be such as might tend to prompt testimony unfavorable to the accused, should always be considered with caution and weighed with great care.”
This instruction was properly refused as an improper comment on the evidence. State v. Settle, 111 Ariz. 394, 531 P.2d 151 (1975). See Art. 6, § 27, Arizona Constitution.
The trial court also refused defense instruction Number 34 which stated:
“You are instructed that where a robbery is completed prior to the death of the decedent, you may not consider the instructions concerning felony-murder insofar as determining whether the defendant is guilty of first degree murder. In other words if the robbery was completed before the time of the Sandberg’s deaths, you will find the defendant not guilty of murder first degree under the felony-murder theory.”
This instruction incorrectly states the felony-murder rule which does not refer to the time of death of the victim, but focuses on whether a death-causing act is committed in the course of and in furtherance of the felony offenses. State v. Ferrari, supra. A felony-murder victim might well die some time after the underlying felony is completed. The trial court properly refused this instruction. State v. Richmond, 114 Ariz. 186, 560 P.2d 41 (1976), cert. denied 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1101 (1977).
In addition, Gretzler objects to certain of the instructions actually given the jury. Specifically, he challenges the court’s reasonable doubt instruction and those covering voluntary intoxication and its effects on the intent element of the various crimes with which he was charged. In neither case does he give specific grounds for his objections, and we have found none.
As to the instruction on reasonable doubt, we find no error. State v. Carr, supra.
Neither do we find the court’s intoxication instruction defective. The instruction adequately covered the impact of voluntary intoxication on the intent in the various crimes with which Gretzler was charged and correctly stated the law. State v. Richardson, 110 Ariz. 48, 514 P.2d 1236 (1973), cert. denied 415 U.S. 929, 94 S.Ct. 1439, 39 L.Ed.2d 487 (1974). We find no error.
OBJECTIONS TO RULINGS INVOLVING THE EXPENDITURE OF PUBLIC FUNDS FOR THE DEFENSE
Gretzler, an indigent, makes numerous claims that the court erroneously limited the expenditure of public money needed to aid the defense. The defendant was denied funds for an extra attorney, for certain out-of-state travel and investigation (some money was allowed for these purposes), and for more extensive neurological and physical examinations.
A.R.S. § 13-1673(B), now A.R.S. § 13-4013(B), allows a court in a capital case to appoint for an indigent “such investigators and expert witnesses as are reasonably necessary adequately to present his defense * * * The Ninth Circuit Court of Appeals, in interpreting a substantially identical federal provision, 18 U.S.C. § 3006A(e)(l), has held that the fundamental issue in reviewing trial court rulings under such statutes is “whether the denial or restriction of investigative funds has substantially prejudiced the defendant * * *Mason v. Arizona, 504 F.2d 1345, 1352 (9th Cir. 1974), cert. denied 420 U.S. 936, 95 S.Ct. 1145, 43 L.Ed.2d 412 (1975).
We have stated:
“A.R.S. § 13 — 1673(B) is not to be construed as mandating, in every case, an appointment of investigators or experts, nor the expenditure of public money for their use, merely upon application. There must be a finding, by the trial court, (1) that the defendant is unable to pay for such services himself and (2) that the appointment and expenditure is reasonably necessary to present an adequate defense. This determination, like so many others, rests in the sound discretion of the trial court. In the absence of a showing that the determination was an abuse of that discretion, it will not be disturbed on appeal. A.R.S. § 13-1673(B). Accord, State v. Frideaux, 207 Kan. 790, 487 P.2d 541 (1971). Cf.Mason v. State of Arizona, supra.” State v. Knapp, 114 Ariz. 531, 540-41, 562 P.2d 704, 713-14 (1977), cert. denied 435 U.S. 908, 98 S.Ct. 1458, 55 L.Ed.2d 500 (1978).
Gretzler first asserts that the trial court failed to provide adequate psychiatric examinations for him. Prior to trial, Gretzler was examined by two Arizona doctors to determine his competence to stand trial and whether he was M’Naghten same. See DEFENDANT’S COMPETENCE TO STAND TRIAL, supra. Prior to sentencing, Gretzler was given a full battery of psychological tests and examined by the diagnostic psychiatrists at Arizona State Prison, and was given neurological tests and sleeping and waking EEG examinations. He was also granted funds and a continuance so that the defense could telephone and write a California psychiatrist in order to determine whether examination by that doctor and/or further psychiatric and neurological tests would be at all likely to produce mitigating material for the defense. The California psychiatrist did not advise that further examinations were necessary, or even particularly desirable. Gretzler never met either the conditions of A.R.S. § 13-1673(B), supra, or the conditions of Rule 11.3(f) of the Arizona Rules of Criminal Procedure, 17 A.R.S., which provides that additional expert assistance may be made available when an appointed expert advises the court that such examinations are necessary. We find no error in the court’s refusal to grant further examinations. 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).
Secondly, Gretzler argues that it was error for the trial court to deny some of his requests for transcripts to be provided at State expense. Voluminous transcripts were provided him and he has not shown that he was denied transcripts reasonably necessary to help his defense. We find no error.
Gretzler finally contends that it was error to deny his request for daily transcripts. The court ruled:
“THE COURT: Based upon the holding of the Court in State v. Casey I’ll deny the motion. Casey indicates that if you want a particular witness’ testimony and you state why, then I can, perhaps, order that to be transcribed. So as we get into the trial, I’m going to ask that we take notes as to what witnesses are saying, and if you find you need an exact quote of a witness and would require that transcription, I can rule on it at that time.
“MR. HOFFMAN: The problem I have, I don’t know if all lawyers have it, it’s impossible for me to take notes when I’m examining witnesses, and the other problem I have, when I take notes when someone else is examining the witness more frequently than not I can’t read my handwriting.
“THE COURT: I don’t know how to help you with the latter two problems.”
We find no error. State v. Casey, 10 Ariz.App. 516, 460 P.2d 52 (1969).
ALLEGED MISCONDUCT OF THE TRIAL JUDGE AND THE PROSECUTOR’S OFFICE
a. Should the trial judge have disqualified himself from sentencing?
On 15 September 1976, Gretzler filed a motion for change of judge, arguing that the trial judge, William E. Druke, should disqualify himself from sentencing because he was biased against the defense by publicity utilized by Stephen Neely in his campaign for Pima County Attorney, or because he involved himself in preparing that publicity. After a two-day hearing, the Associate Presiding Judge of the Pima County Superior Court denied the motion.
Stephen Neely was a deputy prosecutor in the office of the Pima County Attorney. In 1976, Neely became a candidate for the office of Pima County Attorney, and, before Gretzler had been sentenced, the Neely campaign used the Gretzler-Steelman crimes in advertising to convey the notion that Neely would be “tougher on crime” than his opponent. The advertising appeared after the jury finding of guilt. The record indicates that the trial judge never saw the published advertisements and was not aware of the additional publicity they generated until it was called to his attention by the defense.
We are satisfied that Judge Druke was not prejudiced by the campaign publicity and that he in no way participated in, or approved of, the Neely advertising. The defense failed to show bias or prejudice on Judge Druke’s part and was properly denied a change of judge. State v. Myers, supra; State v. Neil, 102 Ariz. 110, 425 P.2d 842 (1967).
b. Was the Pima County Attorney’s Office guilty of misconduct in regard to the Neely publicity or in seeking the death penalty in Gretzler case?
Prior to sentencing, the defense alleged that the prosecutor’s office had abused its discretion in using the Steelman and Gretzler trials to generate pro-Neely publicity. Gretzler was unable to show that Neely’s fellow prosecutors had, in fact, been involved in Neely’s advertising. To the extent that Neely’s fellow prosecutors may have aided him in his campaign, they did not injure the defense. The verdict against Gretzler was reached long before the Neely campaign began, and it did not prejudice the sentencing judge.
Gretzler urges, however, that the prosecutor’s decision to seek a death penalty was an abuse of discretion and hinted that it was politically motivated. We find no reason to believe that the decision was anything other than a valid exercise of discretion. Indeed, the facts of this case are such that it would be most surprising if the State had not asked for the death penalty. The fact that a prosecutor has discretion in charging and deciding whether to ask for the death penalty does not render the imposition of capital sentences unconstitutionally arbitrary. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976).
DEATH PENALTY
Defendant’s challenge to the constitutionality of A.R.S. §§ 13 — 451 to -454, this State’s death penalty statute, is based on contentions answered by this court in State v. Watson, supra.
EVIDENCE OF AGGRAVATING CIRCUMSTANCES PRESENTED AT SENTENCING
Gretzler raises seven issues concerning evidence received and findings made at the aggravation and mitigation hearing. Since Gretzler will have to be resentenced and will be entitled to a new hearing before sentencing, we need not consider these questions at this time.
CONCLUSION
The verdicts and judgments of guilt are affirmed. The sentences other than the death penalty are affirmed, and the matter is remanded for resentencing on the two murder convictions pursuant to State v. Watson, supra, within 90 days of the issuance of the mandate herein.
STRUCKMEYER, C. J., HOLOHAN, V. C. J., and HAYS and GORDON, JJ., concur.
Except where otherwise noted, Title 13 citations in this opinion are to the Arizona Criminal Code as it existed pnor to its extensive revision effective 1 October 1978.
Neither Gretzler nor Steelman has ever been prosecuted for any crime committed in Maricopa County.
Citations to various portions of Rule 8 are < 1975, effective 1 August 1975. the rule existed prior to amendments of 7 May
659 P.2d 1
STATE of Arizona, Appellee, v. Douglas Edward GRETZLER, Appellant.
No. 3750-2.
Supreme Court of Arizona, In Bane.
Jan. 6, 1983.
Rehearing Denied Feb. 16, 1983.
See also 128 Ariz. 583, 627 P.2d 1081.
Robert K. Corbin, Atty. Gen., Phoenix by William J. Schafer, III and Jessica Gifford, Asst. Attys. Gen., for appellee.
Cary Sandman, Tucson, for appellant.
[OPINION BY CAMERON, Justice. type=majority]
CAMERON, Justice.
Defendant, Douglas Edward Gretzler, was sentenced to death for two counts of first degree murder, following remand for resentencing pursuant to 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). This court has jurisdiction of this appeal under Art. 6, § 5(3) of the Arizona Constitution, and A.R.S. §§ 13-4031 and 13-4035.
The issues raised on appeal are:
I. Is capital punishment an unconstitutionally excessive penalty for any person found to have impaired mental capacity under A.R.S. § 13-454(FX1)?
II. Did the court’s finding of two additional aggravating factors in the second sentencing proceeding violate the prohibition against double jeopardy?
III. Did the defendant commit these murders in expectation of receiving anything of pecuniary value?
IV. Is the statutory aggravating circumstance of killing in an “especially heinous, cruel, or depraved manner” unconstitutionally broad or vague, and did the defendant commit these murders in such a manner?
V. Does the Arizona death penalty statute provide adequate guidance for the use of sentencing discretion to comply with the eighth and fourteenth amendments?
VI. Is there a constitutional right to jury sentencing in capital cases?
VII. Did resentencing pursuant to State v. Watson, supra:
a. Violate the prohibition against ex post facto laws,
b. Violate double jeopardy, or
c. Constitute judicially created penalties in violation of due. process and separation of powers?
VIII. Was it error to consider the defendant’s prior convictions in aggravation of sentence?
IX. Does this court, in its independent review of the evidence, find that the death sentence was inappropriate punishment for this offense and this offender?
Although the facts of this case have been fully described in previous appeals, see State v. Gretzler, 126 Ariz. 60, 612 P.2d 1023 (1980) [Gretzler I]; see also State v. Steelman, 120 Ariz. 301, 585 P.2d 1213 (1978) [Steelman I], a summary of these facts is included here as necessary for the determination of this appeal.
The defendant was convicted in the instant case of kidnapping one V.A., of murdering and robbing a young couple, Michael and Patricia Sandberg, and of burglarizing the couple’s home. This incident comprises only a small part of a series of crimes engaged in by Douglas Gretzler and Willie Steelman in the fall of 1973, involving kidnapping, armed robbery, rape, burglary, and the murders of at least seventeen people.
This series of crimes began on 11 October 1973 when Gretzler and Steelman arrived in Arizona and during the succeeding four days robbed four persons in three separate incidents. On 17 October they next kidnapped two young men, commandeered their van, drove them to Stanislaus County, California, and murdered them. Three days later Gretzler and Steelman were hitchhiking near Petaluma, California. They kidnapped a young couple who stopped for them, with Steelman raping the female victim before the couple was released. They then returned to Arizona in a stolen car. On the way they picked up a hitchhiker, whom they murdered near the Superstition Mountains. In Phoenix, on 25 October, they murdered two more persons, a couple that had been friends of Steelman’s and had seen Gretzler and Steelman in the company of the two young men murdered the week before. Gretzler and Steelman now proceeded to Tucson. While hitchhiking near Tucson on 2 November, they killed and robbed a man who stopped to give them a ride. Then began the events upon which the instant convictions and sentencing are based.
On 3 November, Gretzler and Steelman were again hitchhiking in Tucson. They kidnapped V.A. when he stopped for them, holding him at gunpoint. V.A. escaped, however, by diving out of the moving automobile. He then reported his abduction and theft of his car to the police.
Gretzler and Steelman continued on in V.A.’s car to the condominium complex where the Sandbergs resided. They accosted Michael Sandberg, who was washing his automobile in the parking lot. Steelman displayed his gun to Sandberg, and the two men forced Sandberg to take them to his condominium where his wife Patricia was studying. While inside the men tried to change their appearance, forcing Pat to assist them, and trading their clothing for some of Michael’s. Gretzler and Steelman then tied up the Sandbergs; the couple was put in the bathroom while their captors finished preparations to leave. Michael and Patricia were both gagged and bound, tied at the wrists with heavy twine. After about an hour in the bathroom, Patricia became so terrified that her captors gave her some of her own Valium in an attempt to calm her down. The Sandbergs were then separated, with Patricia being placed in the living room and Michael in the bedroom; each was now also bound at the legs. Patricia was placed face down on the living room couch and was covered entirely by a blanket. Michael was placed in a crouched position on his bed, and his legs were attached with heavy twine to more twine around his neck, so that he would choke if his legs were straightened. The couple was forced to remain in these positions for some time. Gretzler then went into the bedroom and shot Michael in the head. Next Gretzler returned to the living room and shot Patricia in the head. Steelman took the gun and fired one more shot into Patricia’s body, to be completely satisfied that they had killed her. Gretzler and Steelman then thoroughly wiped down the apartment in an attempt to eliminate their fingerprints. They gathered together those items in the apartment they had decided to steal, including credit cards, checks, an expensive camera, and other personal property belonging to the Sandbergs. They then took the Sandbergs’ car, making their escape.
They returned to California, where, near the town of Lodi, they entered the home of a local family and forced the father to open his safe, from which they stole between $3,000 and $4,000. Gretzler bound and gagged the four adults and three teenagers in the home, and then shot each of them to death. Afterwards, he proceeded to a bedroom where Steelman had pulled a blanket over the heads of two sleeping children. Gretzler shot one sleeping child to death, and then waited while Steelman shot and killed the other child.
Gretzler and Steelman were arrested by California authorities on 8 November 1973 in connection with the mass murder in Lodi. Each was convicted of nine counts of first degree murder. The pair was then brought to Arizona on charges arising from the Sandberg murders and V.A. kidnapping. Each was tried separately, and each was convicted on the first degree murder and related charges. They received prison sentences for the related charges, and were sentenced to death for the murders. Their convictions, and the sentences received for the related charges, were affirmed on appeal. In light of new constitutional interpretations in State v. Watson, supra, each of their death sentences was vacated, and their cases remanded to the Superior Court for resentencing. Steelman I, supra; Gretzler I, supra. Upon remand, each was again sentenced to death. We have already reviewed and affirmed the death sentence of Steelman in State v. Steelman, 126 Ariz. 19, 612 P.2d 475 (1980) [Steelman II]. While Gretzler has brought some isolated issues regarding his sentencing before this court previously on special action, State v. Superior Court of Arizona, Douglas Edward Gretzler, Real Party in Interest, 128 Ariz. 583, 627 P.2d 1081 (1981) [Gretzler II], it is our present task to examine the propriety of his resentence to death.
I
IS PARTIAL MENTAL IMPAIRMENT AN ABSOLUTE BAR TO THE DEATH PENALTY?
The defendant did not raise an insanity defense at trial, and in fact the psychiatric testimony which was adduced for the purpose of sentencing supports the conclusion that defendant was legally sane at the time of the killings. Under the M’Naghten rule adopted in Arizona, this specifically means that defendant Gretzler both understood the nature and quality of his actions, and knew that they were wrong. See Steelman I, supra, 120 Ariz. at 311-13, 585 P.2d at 1223-25; State v. Schantz, 98 Ariz. 200, 207, 403 P.2d 521, 525 (1965), cert. denied 383 U.S. 1015, 86 S.Ct. 628, 15 L.Ed.2d 530 (1966).
At resentencing, however, the trial judge found that the mitigating circumstance described in former A.R.S. § 13-454(F)(1), presently § 13-703(G)(1), was established— that “defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired, but not so impaired as to constitute a defense to prosecution.” We thus have a situation in which defendant’s mental capacity was only partially, though significantly, impaired.
While Arizona has not adopted the standard of “partial” responsibility in complete abrogation of criminal responsibility, State v. Sehantz, supra, our capital sentencing statute specifically requires that significant mental impairment be taken into account as a mitigating circumstance in determining sentence. This mitigating circumstance, together with other mitigating circumstances, is to be carefully weighed against aggravating circumstances present in the case, to determine whether leniency is appropriate. Former A.R.S. § 13-454(D), presently § 13-703(E). Defendant attacks this procedure, claiming that a finding of significant impairment calls for leniency in every case, regardless of the degree of that impairment and the other circumstances of the case. Defendant contends that partial mental impairment of a defendant always renders death an unconstitutionally excessive penalty, citing the eighth and fourteenth amendments to the United States Constitution. Defendant correctly notes that the United States Supreme Court has stated that
“a punishment is ‘excessive’ and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime.” Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982, 989 (1977).
Defendant does not argue that the death penalty is grossly out of proportion to the severity of the crime, and indeed it would be surprising if he did, considering the number of human lives he has taken. We need only examine, therefore, whether in this case a death sentence would serve acceptable goals of punishment.
The retributive justification of punishment has been explained in Gregg v. Georgia:
“In part, capital punishment is an expression of society’s moral outrage at particularly offensive conduct. This function may be unappealing to many, but it is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs.
‘The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they “deserve,” then there are sown the seeds of anarchy — of self-help, vigilante justice, and lynch law.’ Furman v. Georgia, supra, at 308, 92 S.Ct. at 2726 (Stewart, J., concurring).” 428 U.S. 153, 183, 96 S.Ct. 2909, 2930, 49 L.Ed.2d 859, 880 (1976) (judgment of the Court and opinion of Stewart, Powell, and Stevens, JJ., footnote omitted). See also Furman v. Georgia, 408 U.S. 238, 452-54, 92 S.Ct. 2726, 2835-36, 33 L.Ed.2d 346, 472-74 (1972). (Burger, C.J., dissenting).
Retribution thus serves the twin purposes of reaffirming societal values regarding wrongdoing and dispensing punishment that fits the crime. As discussed above, Gretzler took innocent lives knowing the nature and quality of his acts, and knowing that he was doing wrong. He is thus the proper subject for societal retribution. While the court may take into account defendant’s somewhat diminished volitional capacities in determining proper sentence, see infra, it does not follow that partial incapacity will fully exempt defendant from society’s condemnation in all instances. Such exemption is certainly not mandated in the instant case.
The second and dominant goal of punishment in our judicial system is deterrence. Our first consideration is the specific deterrence of Douglas Gretzler. As United States Supreme Court Justice White has pointed out, “It [is] clear enough that death finally forecloses the possibility that a prisoner will commit further crimes, whereas life imprisonment does not.” Roberts v. Louisiana, 428 U.S. 325, 354, 96 S.Ct. 3001, 3015-16, 49 L.Ed.2d 974, 993 (1976) (White, Blackmun, Rehnquist, JJ., Burger, C.J., dissenting). Incarceration is intended to serve the goal of isolation of dangerous individuals, but the prison system is a human enterprise, and thus it cannot serve this goal perfectly no matter how diligent the effort. This state has learned through sad experience that even after incarceration a violent person may become a menace to other prisoners, see e.g. State v. Vickers, 129 Ariz. 506, 633 P.2d 315 (1981) (prison inmate committed violent strangulation and stabbing murder of another prisoner; he later killed yet another prisoner by burning him to death, see No. 5698, State v. Vickers), or may escape and become a menace to the public at large, see e.g. State v. Greenawalt, 128 Ariz. 150, 624 P.2d 828 (1981), cert. denied 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981) (Greenawalt and fellow inmate Tison escaped prison and murdered four people, including a 22 month old baby). At some point a violent individual has caused so much harm and destruction of human life that society is entitled to foreclose the possibility of further deprivation.
The next consideration is that of general deterrence. Gretzler argues that, in view of his partial mental impairment, capital punishment for him will not deter other similarly impaired persons, because such persons cannot be deterred. He further argues that punishing him in this way will not deter unimpaired persons either, because such persons cannot identify with those like Gretzler. We disagree. Gretzler’s volitional impairment is only partial, and it does not follow that persons like Gretzler cannot be deterred from aberrant behavior. Also, Gretzler’s mental impairment is not so substantial as to make his punishment seem meaningless to unimpaired citizens. Throughout defendant’s brief, Gretzler characterizes his plight as that of a “mad man” facing execution. He is not a “mad man,” however, and in fact was found sane at trial. Gretzler’s condition thus does not make him an improper subject for either the retributive or deterrence justifications of punishment. Acceptable goals of punishment are served by submitting Gretzler’s case to capital sentencing consideration.
In considering Gretzler’s sentence, his partial mental impairment is taken into account, along with other aggravating and mitigating factors, in deciding the appropriate sentence under A.R.S. § 13-703. The eighth and fourteenth amendments require no more. The United States Supreme Court has upheld the constitutionality of similar capital sentence statutes in other states that require the balancing of such aggravating and mitigating circumstances. Gregg v. Georgia, supra; Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Proffitt v. Florida, 423 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). Further, the law upheld in Proffitt v. Florida, like the Model Penal Code section from which our statute is adopted (§ 210.6, Proposed Official Draft 1962), specifically includes partial mental impairment as one of the statutory mitigating circumstances. A finding of partial mental impairment does not bar the imposition of the death penalty. See A.R.S. § 13-703(E).
II
DOES THE FINDING OF TWO ADDITIONAL AGGRAVATING CIRCUMSTANCES ON RESENTENCING VIOLATE DOUBLE JEOPARDY?
After conviction for first degree murder, defendant originally was sentenced to death upon a finding of two statutory aggravating circumstances, based upon his nine earlier convictions for first degree murder, and no substantial mitigating circumstances. The two aggravating circumstances specifically found were former A.R.S. § 13-454(E)(1), presently § 13-703(FX1), prior convictions for crimes punishable by life imprisonment or death, and former A.R.S. § 13-454(E)(2), presently § 13-703(F)(2), prior convictions for felonies involving the use or threat of violence. On resentencing, defendant again was sentenced to death. This time, however, in addition to the two aggravating circumstances cited above, the court found two additional aggravating circumstances. The court found that Gretzler committed the offense in expectation of receiving something of pecuniary value. See former A.R.S. § 13-454(E)(5), presently § 13-703(F)(5). Also, it found that Gretzler murdered the Sandbergs in “an especially heinous, cruel, or depraved manner.” See former A.R.S. § 13-454(E)(6), presently § 13-703(F)(6). As noted above, the court additionally found as a mitigating factor that Gretzler’s mental capabilities were partially impaired, see former A.R.S. § 13-454(F)(1), presently § 13-703(G)(1), but that this impairment was not “sufficiently substantial to call for leniency.” See former A.R.S. § 13-454(D), presently § 13-703(E). Defendant challenges the propriety of finding the two additional aggravating circumstances on resentencing.
He first argues that these additional findings violate the double jeopardy provision of the fifth amendment, relying on Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981). The argument that Bullington controls cases like defendant’s has been presented to, and rejected by, the Ninth Circuit Court of Appeals in Knapp v. Cardwell, 667 F.2d 1253 (1982), cert. denied - U.S. -, 103 S.Ct. 473, 74 L.Ed.2d 621 (1982). Bullington held that once a defendant is “acquitted” of the death penalty in a formal jury sentencing procedure resembling trial, receiving instead life imprisonment, he may not be given the death penalty in a later proceeding if his underlying conviction is reversed and he is retried. The Ninth Circuit Court in Knapp stated that, “The present case is clearly distinguishable from Bullington.” Id. at 1265. It pointed out that the defendants in Knapp, including Gretzler, received the death penalty at their original sentencing, not life imprisonment. Thus, “There exists no implied ‘acquittal’ in the case. The sentence that can be imposed on resentencing here cannot be more severe than that previously assessed.” Id. at 1265 (citation omitted).
In the instant case, the state was justified in its attempt to establish two additional aggravating factors on resentencing, as the law on both of these factors had been substantially clarified since the time of the original sentencing. In 1980 in State v. Clark, 126 Ariz. 428, 616 P.2d 888, cert. denied 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980), this court interpreted the “pecuniary gain” circumstance of A.R.S. § 13-454(E)(5), expressly holding for the first time that this factor was not limited to the “hired gun” situation. 126 Ariz. at 436, 616 P.2d at 896. In 1980 in Steelman II, supra, we also substantially clarified the meaning of the words “especially heinous, cruel, or depraved manner” used in A.R.S. § 13-454(E)(6), and specifically held that the Steelman/Gretzler slaying of the Sandbergs met this statutory wording. 126 Ariz. at 26, 612 P.2d at 482. These clarifications of law were not available to the judge at the initial sentencing, but were properly brought to the court’s attention upon resentencing.
The purpose of the sentencing procedure is to obtain the appropriate punishment for the particular crime and the particular offender, and the trial court upon remand may take into account new interpretations of the death penalty statute occurring between the first and second sentencing. See State v. Poland, 132 Ariz. 269, 286, 645 P.2d 784, 801 (1982). The resentencing court did not err in considering the two aggravating factors not found at the initial sentencing. However, even if we were to set aside the two additional findings of aggravating circumstances, we would hold that, considering the two aggravating circumstances previously found by the trial court and found again at the resentencing, as well as the newly found mitigating circumstance, the death penalty was properly imposed.
Ill
WERE THE MURDERS COMMITTED WITH THE EXPECTATION OF RECEIVING ANYTHING OF PECUNIARY VALUE?
On resentencing, the trial judge found the aggravating circumstance set out by former A.R.S. § 13-454(EX5), presently § 13-703(FX5):
“5. The defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value.”
In State v. Madsen, 125 Ariz. 346, 353, 609 P.2d 1046, 1053 (1980), cert. denied 449 U.S. 873, 101 S.Ct. 213, 66 L.Ed.2d 93 (1980), we stated, “A.R.S. § 13-454(E)(5) requires that the murder must have been committed for the consideration of financial gain. To comply with the statute, the receipt of the [property] must be a cause of the murder * * In State v. Clark, supra, also decided in 1980, we specifically elaborated that this aggravating circumstance was not limited to the “hired gun” or “contract” type killing. Rather, it involves any murder committed for a “financial motivation.” 126 Ariz. at 436, 616 P.2d at 896. Accord State v. Poland, supra, 132 Ariz. at 285-86, 645 P.2d at 800-01; State v. Blazak, 131 Ariz. 598, 605, 643 P.2d 694, 701 (1981). In State v. Clark, we found that this circumstance was met, observing,
“After killing the Thumms the appellant took their credit cards, some money, two valuable diamond rings, and their 1976 Chevrolet station wagon. The circumstances surrounding the total episode reflect that the expectation of financial gain was a cause of the murders.” 126 Ariz. at 436, 616 P.2d at 896.
Similarly, in the present case, after killing the Sandbergs, the defendant took their credit cards, blank checks, an expensive camera, and their automobile. These circumstances likewise reflect a financial motivation.
More specifically, in State v. (Raymond) Tison, 129 Ariz. 546, 555, 633 P.2d 355, 364 (1981), we held that A.R.S. § 13-454(E)(5) was established where we concluded that “the homicides were committed to secure a vehicle with which to continue their flight.” Gretzler and Steelman likewise murdered the Sandbergs to obtain a substitute car in which they could continue their flight. The automobile of V.A. which they had been driving was known to the police to be stolen. In the words of Gretzler’s own confession, “[W]e needed their car. So we tied them up and did them in.” We find no error.
IV
IS THE AGGRAVATING CIRCUMSTANCE OF KILLING IN AN “ESPECIALLY HEINOUS, CRUEL, OR DEPRAVED MANNER” UNCONSTITUTIONALLY BROAD OR VAGUE, AND WAS THIS CIRCUMSTANCE ESTABLISHED IN THE INSTANT CASE?
Defendant argues the aggravating circumstance established by former A.R.S. § 13-454(E)(6), presently § 13-703(F)(6), that the “defendant committed the offense in an especially heinous, cruel, or depraved manner,” is unconstitutionally broad and vague. We have already considered an identical claim in another case and have held this aggravating circumstance was not defined in an unconstitutionally broad or vague manner. State v. Ortiz, 131 Ariz. 195, 206, 639 P.2d 1020, 1031 (1981), cert. denied 456 U.S. 984, 102 S.Ct. 2259, 72 L.Ed.2d 863 (1982). We have also twice pointed out that the United States Supreme Court, in Proffitt v. Florida, supra, has approved of “strikingly similar terms” in another state’s capital sentencing statute. State v. Knapp, 114 Ariz. 531, 543, 562 P.2d 704, 716 (1977), cert. denied 435 U.S. 908, 98 S.Ct. 1453, 55 L.Ed.2d 500 (1978); State v. Richmond, 114 Ariz. 186, 197, 560 P.2d 41, 52 (1976), cert. denied 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1101 (1976). In Proffitt, the Supreme Court considered Florida’s statutory aggravating circumstance of “especially heinous, atrocious, and cruel.” The Court stated, “We cannot say that the provision,” as construed by the Florida Supreme Court, “provides inadequate guidance to those charged with the duty of recommending or imposing sentences in capital eases.” 428 U.S. at 255-56, 96 S.Ct. at 2968, 49 L.Ed.2d at 925.
The application of such a provision may be constitutionally infirm for either of two reasons. First, a state’s highest tribunal may fail to adopt a construction of its statute sufficiently narrow to make sentencing discretion “suitably directed and limited.” Gregg v. Georgia, supra, 428 U.S. at 189, 96 S.Ct. at 2932, 49 L.Ed.2d at 883 (1976) (judgment of the Court and opinion of Stewart, Powell, and Stevens, J.J.) (upholding Georgia’s death penalty statute). Secondly, the state tribunal may stray in an individual case from an otherwise constitutionally narrow construction. See Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (reversing one individual application of Georgia’s death penalty statute). Neither of these problems are present here. We believe that the statutory phrase “especially heinous, cruel, or depraved” has been construed in a constitutionally narrow fashion, and has been properly applied in individual cases. A summary of the law which has been developing in the area supports this conclusion.
Our initial interpretations of this statutory phrase recognized that the words “especially heinous, cruel, or depraved” were not intended to apply to all first degree murders. Rather, they apply to “a killing wherein additional circumstances of the nature enumerated * * * set the crime apart from the usual or the norm.” State v. Knapp, supra, 114 Ariz. at 543, 562 P.2d at 716, citing State v. Dixon, 283 So.2d 1, 9 (Fla.1973). We have more recently reiterated that we will not allow this provision to be used as a “catch-all for those first degree murders where no other aggravating circumstance applies.” State v. Ortiz, supra, 131 Ariz. at 206, 639 P.2d at 1031.
In State v. Knapp, supra, 114 Ariz. at 543, 562 P.2d at 716, we set forth the following definitions of the words heinous, cruel, and depraved:
“heinous: hatefully or shockingly evil; grossly bad.
cruel: disposed to inflict pain esp. in a wanton, insensate or vindictive manner: sadistic.
depraved: marked by debasement, corruption, perversion or deterioration.”
We have explained on numerous occasions that cruelty involves the pain and distress visited upon the victims, and that heinous and depraved go to the mental state and attitude of the perpetrator as reflected in his words and actions. State v. Poland, supra, 132 Ariz. at 285, 645 P.2d at 800; State v. (Ricky) Tison, 129 Ariz. 526, 543, 633 P.2d 335, 352 (1981); State v. Bishop, 127 Ariz. 531, 534, 622 P.2d 478, 481 (1981); State v. Clark, supra, 126 Ariz. at 436, 616 P.2d at 896; State v. Ceja, 126 Ariz. 35, 39, 612 P.2d 491, 495 (1980); State v. Lujan, 124 Ariz. 365, 372, 604 P.2d 629, 636 (1979). We have also pointed out that “it [is] not necessary that all three elements, heinous, cruel, or depraved, be present in the murder. The statutory expression is in the disjunctive, so either all or one could constitute an aggravating circumstance.” State v. Clark, supra, 126 Ariz. at 436, 616 P.2d at 896, citing State v. Ceja, supra, 126 Ariz. at 39, 612 P.2d at 495. Accord State v. Bishop, supra, 127 Ariz. at 534, 622 P.2d at 481. We therefore consider these circumstances separately.
Cruelty has been specifically defined to involve the infliction of pain on the victims. This element was appropriately found in State v. Knapp, supra, in which defendant burned to death his two infant daughters. This court remarked, “We can hardly think of a more ghastly death than this for anyone.” 114 Ariz. at 543, 562 P.2d at 716. Another example of a case in which cruelty was found is State v. Mata, 125 Ariz. 233, 609 P.2d 48 (1980), cert. denied 449 U.S. 938, 101 S.Ct. 338, 66 L.Ed.2d 161 (1980), in which the killers performed successive rapes and severe beatings on the victim prior to murdering her.
We have also stated that our concept of cruelty involves not only physical pain, but also “mental * * * distress visited upon the victims.” State v. Clark, supra, 126 Ariz. at 436, 616 P.2d at 896, citing State v. Ceja, supra, 126 Ariz. at 39, 612 P.2d at 495. A case where this was found to be present is State v. (Ricky) Tison, supra, in which the victims were held by their heavily armed captors for an extended period, forced at gunpoint to move from place to place, and finally had to witness the killing of other family members prior to their own deaths. We found cruelty based on the “great degree of mental pain” suffered by the victims. Id. at 543, 633 P.2d at 352. Accord Steelman II, discussed infra.
Where, however, there is no evidence that the victims actually suffered physical or mental pain prior to death, or where the evidence presented is inconclusive, we have held that cruelty was not shown. See e.g. State v. Ortiz, supra, 131 Ariz. at 210, 639 P.2d at 1035; State v. Bishop, supra, 127 Ariz. at 534, 622 P.2d at 481; State v. Clark, supra, 126 Ariz. at 436, 616 P.2d at 896; State v. Ceja, supra, 126 Ariz. at 39, 612 P.2d at 495.
In contrast to the emphasis upon the victim’s suffering and feelings in the case of cruelty, the statutory concepts of heinous and depraved involve a killer’s vile state of mind at the time of the murder, as evidenced by the killer’s actions. Our cases have suggested specific factors which lead to a finding of heinousness or depravity.
The first such factor is the apparent relishing of the murder by the killer. In State v. Clark, supra, we found a depraved state of mind where defendant murdered four people and then “kept a spent bullet as a grisly souvenir of his crime.” 126 Ariz. at 437, 616 P.2d at 897. Similarly, in State v. Bishop, supra, we found a heinous and depraved mental state where defendant killed the victim by striking him in the head repeatedly with a claw hammer, tied him up, caused him to fall down a mine shaft, and threw rocks on the victim as he lay twitching. As defendant drove away from the scene, he turned around and waved, saying, “Good-bye, Norman. I hope we never see you again.” 127 Ariz. at 534, 622 P.2d at 481. The killers in these cases clearly relished their crimes.
Another factor we have found to demonstrate a heinous or depraved state of mind is the infliction of gratuitous violence on the victim. This factor was held to be present in State v. Ceja, supra. In that case defendant shot the female victim twice in the chest, dragged her into the bedroom, and then shot her four more times in the head for no apparent reason. He shot the male victim three times, and after his victim had fallen, shot him once more in the back. He then began kicking the male victim in the face repeatedly, at a time when the victim was already unconscious or dead. We said,
“We think that defendant’s conduct in continuing his barrage of violence, inflicting wounds and abusing his victims, beyond the point necessary to fulfill his plan to steal, beyond even the point necessary to kill, is such an additional circumstance of a * * * depraved nature so as to set it apart from the ‘usual or the norm.’ ” 126 Ariz. at 40, 612 P.2d at 496, quoting State v. Ceja, supra, 115 Ariz. at 417, 565 P.2d at 1278.
Closely related to the above two factors, and also demonstrating a heinous or depraved state of mind, is the needless mutilation of the victim. This occurred, for example, in State v. Vickers, supra. There, after strangling his cellmate to death, inmate Vickers carved the word “Bonzai” into the victim’s back. We held that “Defendant’s actions subsequent to the death of [the victim] indicate that the offense was committed in an especially depraved manner * * * [reflecting] a mental state that is ‘marked by debasement’ * * 129 Ariz. at 515, 633 P.2d at 324. Accord State v. Smith, 131 Ariz. 29, 638 P.2d 696 (1982) (offense heinous or depraved where defendant mutilated female murder victims’ breasts and sex organs).
Other factors considered by this court are the senselessness of the crime, and the helplessness of the victim. Either or both of these factors, considered together with other circumstances present in a particular case, may lead to the conclusion that an offense was heinous or depraved. For example, in State v. Tison, supra, we found the crime to be heinous or depraved, stating:
“The senselessness of the murders, given the inability of the victims to thwart [their captors’] escape, especially in such an isolated area, and the fact that a young child, less than two years old, who posed no threat to the captors, was indiscriminately shot while in the arms of his mother, compels the conclusion that the actual slayers possessed a shockingly evil state of mind.” 129 Ariz. at 543, 633 P.2d at 352.
We similarly found a heinous and depraved state of mind to exist in State v. Ortiz, supra, where after stabbing the mother to death, defendant made indiscriminate violent attacks on her three young children, attempting to stab and burn them to death. 131 Ariz. at 210, 639 P.2d at 1035. Accord State v. Clark, supra, 126 Ariz. at 436-37, 616 P.2d at 896-97 (senseless killings of former friends and co-workers, “totally without regard for human life” found depraved). The mere existence of senselessness or helplessness of the victim, in isolation, need not always lead to a holding that the crime is heinous or depraved, however. See State v. Lujan, supra, 124 Ariz. at 373, 604 P.2d at 637 (defendant’s killing of victim already rendered unconscious in continuing attack by other members of gang involved in robbery not “especially heinous or depraved”); State v. Blazak, supra, 131 Ariz. at 604, 643 P.2d at 700 (unnecessary killing of bystander to robbery, in addition to killing of victim of robbery, not heinous or depraved).
Where no circumstances, such as the specific factors discussed above, separate the crime from the “norm” of first degree murders, we will reverse a finding that the crime was committed in an “especially heinous, cruel, or depraved manner.” See e.g. State v. Blazak, supra, 131 Ariz. at 604, 643 P.2d at 700; State v. Madsen, supra, 125 Ariz. at 352, 609 P.2d at 1052; State v. Lujan, supra, 124 Ariz. at 373, 604 P.2d at 637; State v. Brookover, 124 Ariz. 38, 41, 601 P.2d 1322, 1325 (1979); State v. Watson, supra, 120 Ariz. at 447-48, 586 P.2d at 1259-60.
We must then consider whether the facts here fit within our definition of the terms “especially heinous, cruel, or depraved.” We have already had the opportunity to review the facts of this particular crime in light of this statutory standard in Steelman II, supra. There we held the Sandberg murders to be heinous, cruel, or depraved, concluding:
“First degree murder is by its nature willful, cruel and repugnant. But the facts of this case set it ‘apart from the norm of first degree murders.’ State v. Brookover, 124 Ariz. 38, 601 P.2d 1322 (1979).” 126 Ariz. at 26, 612 P.2d at 482.
We believe the same result is mandated in Gretzler’s case.
Michael Sandberg was kept tied up in a crouched position on his bed. A single stand of heavy parcel post twine extended up Michael’s back in a V-pattern from his ankles to around his neck. It was configured in such a way as to choke Michael if his legs were straightened. He was confined in this manner for a sustained period. As we stated:
“There can be no doubt that the victims suffered mental anguish as a result of being held prisoner for an extended period. Patricia, for example, had to take medication for her highly emotional condition as a result of being held prisoner. They knew that their captors were armed, hiding from the police, and anxious to escape. It may be inferred that throughout their imprisonment, they were uncertain as to their ultimate fate. This uncertainty had to be intensified when they were taken to separate rooms, bound and gagged.” Id.
Patricia also had to endure the unimaginable terror of having her husband shot to death within her hearing, and then having to wait for her own turn to come.
The Sandbergs clearly suffered the kind of “mental and physical distress” we have held constitutes cruelty. State v. Tison, supra, 129 Ariz. at 543, 633 P.2d at 352. We thus find that this statutory aggravating circumstance is present in the instant case.
V
CONSTITUTIONALITY OF THE ARIZONA DEATH PENALTY STATUTE
Defendant next contends that the Arizona death penalty statute, former A.R.S. § 13-454, presently § 13-703, is unconstitutional because it fails to provide adequate standards to guide sentencing discretion. This issue has been previously considered and rejected by this court on numerous occasions. State v. Blazak, supra, 131 Ariz. at 601, 643 P.2d at 697; State v. Jordan, 126 Ariz. 283, 285, 614 P.2d 825, 827 (1980), cert. denied 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980); State v. Mata, supra, 125 Ariz. at 241-42, 609 P.2d at 56-57; State v. Richmond, supra, 114 Ariz. at 194-95, 560 P.2d at 49-50.
Our statute, derived from the Model Penal Code (§ 210.6, Proposed Official Draft, 1962), and similar to the captial sentencing statutes upheld in Gregg v. Georgia, supra, and Proffitt v. Florida, supra, sets out specific lists of aggravating and mitigating circumstances to be considered in capital sentencing decisions. Our statute also requires the court to consider any other relevant mitigating circumstances. We have explained that the statutory scheme is intended to “resolv[e] the need for flexibility in order to afford individualized decision-making in capital cases and the need for standards to prevent arbitrariness when unbridled discretion rests with the sentencer * * State v. Greenawalt, supra, 128 Ariz. at 175, 624 P.2d at 853 (1981), cert. denied 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981), citing State v. Mata, supra, 125 Ariz. at 242, 609 P.2d at 57. We have also stated that
“the purpose of an aggravation/mitigation hearing is to determine the character and propensities of the defendant. The punishment should fit the offender and not merely the crime. Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949).” State v. Valencia, 124 Ariz. 139, 141, 602 P.2d 807, 809 (1979).
Our capital sentencing statute applies only to those found guilty of first degree murder, and requires the trial judge to choose either a sentence of death, or life imprisonment without the possibility of parole for twenty-five years, based on the evidence of aggravating and mitigating circumstances. Former A.R.S. § 13-454(D), presently § 13-703(E).
In view of the gravity of the death penalty, we have also held that in all capital cases, automatically appealed to this court under Rule 31.2(b), Arizona Rules of Criminal Procedure, 17 A.R.S., we will conduct an independent review of all matters of aggravation and mitigation, and will decide independently whether the death sentence should be imposed in each case. State v. Richmond, supra, 114 Ariz. at 196, 560 P.2d at 51. We also conduct a proportionality review in each case to consider “whether the sentences are excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” Id., (citations omitted).
Where none of the statutory aggravating circumstances are found to be present, our statute prohibits the death penalty. Former A.R.S. § 13 — 454(D), presently § 13-703(E). See e.g. State v. Madsen, supra, 125 Ariz. at 353, 609 P.2d at 1053; State v. Lujan, supra, 124 Ariz. at 373, 604 P.2d at 637.
Where one or more statutory aggravating circumstance is found, and no mitigation exists, the statute requires the death penalty. Former A.R.S. § 13-454(D), presently § 13-703(E). See e.g. State v. Smith, supra, 131 Ariz. at 35, 638 P.2d at 702; State v. Jordan, supra, 126 Ariz. at 290, 614 P.2d at 832.
Where both aggravating and mitigating circumstances are found in a given case, the trial judge, and then this court on review, must determine whether the mitigating circumstances are “sufficiently substantial to call for leniency.” Former A.R.S. § 13-454(D), presently § 13-703(E). This necessarily involves the difficult weighing and balancing of the aggravating and mitigating circumstances present. We have stated that the number of aggravating and mitigating circumstances is not dispositive, but rather their gravity:
“The statute does not require that the number of aggravating circumstances be weighed against the number of mitigating circumstances. One mitigating circumstance, for example, may be ‘sufficiently substantial’ to outweigh two aggravating circumstances. The converse is also true — one aggravating circumstance could be so substantial that two or more mitigating circumstances would not be ‘sufficiently substantial to call for leniency.’ A.R.S. § 13 — 454(D). Both the trial court and this court must then ‘weigh’ the mitigating circumstances against the aggravating circumstances to determine if leniency is required[.]” State v. Brookover, supra, 124 Ariz. at 42, 601 P.2d at 1326.
In arriving at a just result, the court must carefully consider all the “compassionate or mitigating factors stemming from the diverse frailties of humankind.” Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976) (judgment of the Court and opinion of Stewart, Powell, and Stevens, JJ.). In some cases the mitigating circumstances are found to outweigh the aggravating factors, and the defendant is spared the death sentence. For example in State v. Brookover, supra, defendant’s impaired capacity to appreciate the wrongfulness of his conduct, caused by a medical condition (a brain lesion of a type frequently producing anti-social behavior), outweighed a prior conviction of a drug offense. 124 Ariz. at 41—42, 601 P.2d at 1325-26. The extreme youth of an offender can also be a compelling mitigating circumstance, as demonstrated recently in State v. Valencia, 132 Ariz. 248, 645 P.2d 239 (1982). There, the defendant’s prior convictions arising from a previous violent incident were outweighed by the fact that defendant was only sixteen years old at the time of each crime. We cited the United States Supreme Court in Eddings v. Oklahoma, which stated “chronological age of a minor is itself a relevant mitigating factor of great weight.” 455 U.S. 104, 116, 102 S.Ct. 869, 877, 71 L.Ed.2d 1, 12 (1982). 132 Ariz. at 250-51, 645 P.2d at 241-42. In some cases the combined weight of a number of mitigating factors outweighs the aggravation. For example, in State v. Watson, 129 Ariz. 60, 63-64, 628 P.2d 943, 946-47 (1981), the facts that the murder occurred as the result of an unexpected shootout with the robbery victim in which the victim fired first, that defendant was twenty one years old at the time of the crime, and that there was evidence defendant had done a great deal of genuine soul searching after the crime, had been a model prisoner while going through the appellate process, had set new goals for himself, and attempted to further his education in prison, outweighed his prior conviction for robbery.
In other cases, however, the mitigating factors are not “sufficiently substantial” to call for leniency. For instance in State v. Knapp, supra, defendant’s lack of prior criminal record did not outweigh the extreme cruelty of burning his two children to death. 114 Ariz. at 543, 562 P.2d at 716, resentence aff’d 125 Ariz. 503, 504-05, 611 P.2d 90, 91-92 (1979). Similarly in State v. Ortiz, supra, defendant’s lack of prior criminal record did not excuse his heinous and depraved murder, involving a grave risk of death to others, in which he stabbed a woman to death and then made senseless, indiscriminate attempts to stab and burn to death her three young children. 131 Ariz. at 211, 639 P.2d at 1036. In State v. Bishop, supra, defendánt’s lack of prior criminal record and below average intelligence were not sufficiently substantial to outweigh the heinous and depraved killing which defendant obviously relished. 127 Ariz. at 534-35, 622 P.2d at 481-82. In like manner, in State v. Clark, supra, defendant’s age (20 years old), poor home life as a child, lack of adult criminal record, and emotional problems were found insufficiently substantial to outweigh his senseless, depraved killing of four persons with total disregard of human life, and with undoubted relish, keeping a souvenir of the occasion. 126 Ariz. at 437, 616 P.2d at 897.
We feel that the statute, as interpreted by our case law, provides constitutionally adequate guidance to the trial judges in deciding whether to impose a capital sentence. As an additional safeguard, this court independently reviews the record of each capital case to determine the propriety of the sentence. State v. Richmond, supra. Where the death penalty has been erroneously imposed, we will set it aside in favor of a life sentence. See e.g. State v. Valencia, supra, 132 Ariz. at 251, 645 P.2d at 242; State v. Watson, supra, 129 Ariz. at 63-64, 628 P.2d at 946-47; State v. Madsen, supra, 125 Ariz. at 353, 609 P.2d at 1053; State v. Lujan, supra, 124 Ariz. at 373, 604 P.2d at 637; State v. Brookover, supra, 124 Ariz. at 42, 601 P.2d at 1326.
The United States Supreme Court has stated that the Florida statute, which is similar to ours,
“ * * * passes constitutional muster. That legislation provides that after a person is convicted of first-degree murder, there shall be an informed, focused, guided, and objective inquiry into the question whether he should be sentenced to death. If a death sentence is imposed, the sentencing authority articulates in writing the statutory reasons that led to its decision. Those reasons, and the evidence supporting them, are conscientiously reviewed by a court which, because of its statewide jurisdiction, can assure consistency, fairness, and rationality in the evenhanded operation of the state law.” Proffitt v. Florida, supra, 428 U.S. at 259-60, 96 S.Ct. at 2970, 49 L.Ed.2d at 927.
We believe that our procedure likewise passes constitutional muster, and we do not agree with defendant’s argument that the Arizona capital sentencing procedure is unconstitutional.
VI
RIGHT TO JURY
Defendant argues that he has a right under the sixth amendment of the United States Constitution to have a jury participate in the capital sentencing decision. This argument was rejected by the United States Supreme Court in Proffitt v. Florida, supra, 428 U.S. at 252, 96 S.Ct. at 2966, 49 L.Ed.2d at 922-23, and has also been rejected by this court on several occasions. State v. Blazak, supra, 131 Ariz. at 602, 643 P.2d at 698; State v. Schad, 129 Ariz. 557, 574, 633 P.2d 366, 383 (1981), cert. denied 455 U.S. 1492, 102 S.Ct. 1492, 71 L.Ed.2d 693 (1982); Steelman II, supra, 126 Ariz. at 20-21, 612 P.2d at 476-77; State v. Valencia, 121 Ariz. 191, 198, 589 P.2d 434, 441 (1979), sentence modified on other grounds 132 Ariz. 248, 645 P.2d 239 (1982); State v. Watson, supra, 120 Ariz. at 447, 586 P.2d at 1259; State v. Richmond, supra, 114 Ariz. at 196, 560 P.2d at 51.
VII
RESENTENCING UNDER WATSON
Defendant argues that his resentencing under State v. Watson, supra, violates various constitutional rights.
a. Ex post facto laws
He first argues that such resentencing violates the ex post facto restriction of the United States Constitution. This argument was decided adversely to defendant’s position in State v. Blazak, supra, 131 Ariz. at 600, 643 P.2d at 696; State v. Smith, supra, 131 Ariz. at 29-30, 638 P.2d at 696-97; State v. Schad, supra, 129 Ariz. at 574, 633 P.2d at 383; State v. Greenawalt, supra, 128 Ariz. at 174, 624 P.2d at 852; State v. Bishop, supra, 127 Ariz. at 533, 622 P.2d at 480; State v. Jordan, supra, 126 Ariz. at 286, 614 P.2d at 828; Steelman II, supra, 126 Ariz. at 20-21, 612 P.2d at 476-77; State v. Arnett, 125 Ariz. 201, 202, 608 P.2d 778, 779 (1980); State v. Watson, supra, 120 Ariz. at 453-54, 586 P.2d at 1265-66.
b. Double jeopardy
Defendant next argues that the resentencing violates the double jeopardy prohibition. We rejected this claim in State v. Blazak, supra, 131 Ariz. at 600, 643 P.2d at 696; State v. Smith, supra, 131 Ariz. at 29-30, 638 P.2d at 696—97; State v. Bishop, supra, 127 Ariz. at 533, 622 P.2d at 480; State v. Jordan, supra, 126 Ariz. at 286, 614 P.2d at 828; Steelman II, supra, 126 Ariz. at 20-21, 612 P.2d at 476-77; State v. Arnett, supra, 125 Ariz. at 202, 608 P.2d at 779; State v. Watson, supra, 120 Ariz. at 453, 586 P.2d at 1265.
c. Judicially created penalties
Defendant’s last argument is that the resentencing under Watson is a judicially created penalty in violation of due process and separation of powers. This assertion has been previously rejected in State v. Blazak, supra, 131 Ariz. at 600, 643 P.2d at 696; State v. Greenawalt, supra, 128 Ariz. at 174, 624 P.2d at 852; State v. Jordan, supra, 126 Ariz. at 286, 614 P.2d at 828; State v. Mata, supra, 125 Ariz. at 241, 609 P.2d at 56.
Each of these three resentencing arguments has also been considered and rejected by the Ninth Circuit Court of Appeals in Knapp v. Cardwell, 667 F.2d 1253, 1259-64 (1982), cert. denied - U.S. -, 103 S.Ct. 473, 74 L.Ed.2d 621 (1982).
VIII
CONSTITUTIONALITY OF PRIOR CONVICTIONS
Defendant states that the trial court erred in considering his nine prior convictions for first degree murder in California, claiming that these convictions were unconstitutionally obtained. This issue was specifically decided adversely to defendant in his prior special action proceeding, Gretzler II, supra, 128 Ariz. at 585-86, 627 P.2d at 1083-84, where we held that those convictions were constitutionally obtained, and that the trial court may take them into account on resentencing.
IX
INDEPENDENT REVIEW OF SENTENCE
As stated above, this court reviews the record of each capital case to independently determine the correctness of the findings of the trial court as to aggravating and mitigating circumstances, and to independently determine the propriety of the sentence. The trial court correctly found the two statutory aggravating circumstances of former A.R.S. § 13-454(EX1), presently § 13-703(F)(1), and former A.R.S. § 13 — 454(E)(2), presently § 13-703(F)(2), based on the defendant’s nine prior convictions for first degree murder in California. These circumstances are respectively, previous conviction of another offense for which life imprisonment or death was imposable, and previous conviction of a felony involving the threat or use of violence. As discussed above, the judge on resentencing found two additional aggravating circumstances to be present in this case, former A.R.S. § 13 — 454(E)(5), presently § 13-703(FX5) — the defendant committed the offense in expectation of the receipt of anything of pecuniary value, and former A.R.S. § 13-454(E)(6), presently § 13-703(F)(6) — the defendant committed the offense in an especially heinous, cruel, or depraved manner. We have already independently reviewed each of these findings, supra, and have stated our opinion that each of these aggravating circumstances was indeed present in the instant case. We need not, however, rely on these additional findings. As we have stated above, the other aggravating circumstances found at the original sentencing are sufficiently grave to support our result.
In mitigation, the trial judge found the statutory mitigating circumstance of former A.R.S. § 13 — 454(F)(1), presently § 13-703(GX1), as discussed above, that defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the law was significantly impaired, but not so impaired as to constitute a defense to prosecution. We believe that the evidence, although somewhat equivocal, supports this finding of the sentencing judge. The record reflects that defendant turned to drugs at about the age of thirteen, in order to escape the daily pressures of his home environment, and used drugs continuously for a period of over nine years. There was medical testimony that this continuous use of drugs likely impaired defendant’s volitional capabilities, although it appears he can distinguish right from wrong and can exercise some control over his behavior. It thus appears that defendant’s mental capabilities were significantly, but only partially, impaired.
As additional mitigation defendant has offered evidence that he had an unhappy childhood, in which his father was very demanding of achievement and gave him little approval or encouragement. He explains his turn to drugs as largely motivated by his desire to escape this parental pressure. As the United States Supreme Court has noted, “Evidence of a difficult family history and of emotional disturbance is typically introduced by defendants in mitigation.” Eddings v. Oklahoma, supra, 455 U.S. at 115, 102 S.Ct. at 876, 71 L.Ed.2d at 11 (citation omitted). While the high court stated that such evidence is “particularly relevant” in the case of a minor, it is suggested that relatively less weight may be accorded such evidence for an adult offender. Id. We agree. Although the evidence is relevant and has been considered in mitigation, we ascribe to adult offenders such as defendant a greater degree of personal responsibility for their actions than to minors involved in crime. Defendant has also presented in mitigation evidence of his favorable adjustment to prison.
We feel that the mitigation offered by defendant Gretzler is not sufficiently substantial to outweigh the aggravating circumstances and call for leniency. We feel compelled to comment that the crime on which defendant’s previous convictions are based, the cold blooded mass murder of nine persons, including the shooting of sleeping children as they lay in their beds, is more than sufficiently offensive to place the defendant well above the norm of first degree murderers. The mitigation evidence presented by defendant Gretzler is not of sufficient magnitude to outweigh the aggravating circumstances. The death sentence is appropriate in the instant case.
PROPORTIONALITY REVIEW
In addition to making an independent determination of the propriety of sentence in each capital case, the court also conducts a “proportionality review” to determine “whether the sentences of death are excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” State v. Richmond, supra, 114 Ariz. at 196, 560 P.2d at 51. Accord State v. Ortiz, supra, 131 Ariz. at 206-07, 639 P.2d at 1031-32. This type of review was cited with approval by the United States Supreme Court in Gregg v. Georgia, supra, 428 U.S. at 204-06, 211-12, 223-24, 96 S.Ct. at 2939-40, 2943, 2948-49, 49 L.Ed.2d at 891-93, 895-96, 902-03, and was recently held to be required within the Ninth Circuit by Harris v. Pulley, 692 F.2d 1189, 1196-97 (9th Cir.1982).
We initially note that defendant Gretzler’s sentence is identical to the sentence received by his accomplice Steelman. In Steelman II, supra, Willie Steelman was also sentenced to death for his participation in the Sandberg killings. The same aggravating circumstances based on the same underlying facts were found as to Steelman (except that the pecuniary gain circumstance was not relied on because Steelman’s resentencing predated State v. Clark, discussed supra). In mitigation, the judge also found that Steelman’s mental capabilities were significantly impaired, on medical testimony somewhat stronger than that introduced in the present case. We found, however, that the aggravation outweighed the mitigation and affirmed the death sentence, consistent with our current resolution.
Another similar case is presented by the decisions in State v. Tison (Ricky, Raymond), supra, which also involved a multiple murder in the course of flight from the law. The same statutory aggravating circumstances found in the instant case were also found to be present there. See 129 Ariz. at 542-44, 633 P.2d at 351-53. (In mitigation these defendants argued that another member of the gang actually pulled the trigger.) The Tison brothers also received the death penalty for their participation in these crimes on facts closely resembling the present ease.
In addition, we have considered the following cases, which we find to contain resolutions proportional to the present ease: State v. Clark, supra; State v. Jordan, supra; State v. Ceja, supra; State v. Evans, 120 Ariz. 158, 584 P.2d 1149 (1978), sentence aff’d 124 Ariz. 526, 606 P.2d 16 (1980), cert. denied 449 U.S. 891, 101 S.Ct. 252, 66 L.Ed.2d 119 (1980). In each of these cases the defendant both robbed and murdered their victims, and received the death penalty based on one or more of the aggravating circumstances found in the instant case, and no other aggravating circumstances.
We further find that the disposition in the instant case is not disproportionate to cases such as State v. Watson and State v. Valencia, discussed supra, in which we held that leniency was called for in light of more compelling mitigating circumstances than were present here.
We have examined the entire record for fundamental error pursuant to A.R.S. § 13-4035, and find none.
The sentence of death is affirmed.
HOLOHAN, C.J., and HAYS and FELDMAN, JJ., concur.
[OPINION BY GORDON, Vice Chief Justice type=concurring-in-part-and-dissenting-in-part]
GORDON, Vice Chief Justice
(concurring in part and dissenting in part):
I agree that the trial court properly found three aggravating circumstances— previous convictions of another offense for which life imprisonment or death was impossible, previous conviction of a felony involving the threat or use of violence, and that the defendant committed the offense in an especially heinous, cruel or depraved manner. I also agree that no mitigating circumstances existed sufficiently substantial to call for leniency. Therefore, I concur in the correctness of the imposition of the sentence of death in this matter. However, to be faithful to my position in State v. Clark, 126 Ariz. 428, 616 P.2d 888 (1980), I cannot agree with the majority’s interpretation of the aggravating circumstance concerning pecuniary gain.
“We have also considered acts done immediately after the actual killing to determine the murderer’s mental state at the time of the killing.” State v. Lujan, supra, 124 Ariz. at 372, 604 P.2d at 636.
We have held that our death penalty statute is not a recidivist or enhancement statute, the purpose of which is to serve as a warning to convicted criminals and encourage their reformation. Rather, “We have stated that the ‘purpose of an aggravation /mitigation hearing is to determine the character and propensities of the defendant. * * * Revelation of subsequent lawless acts of violence would help to attain the objectives of the sentencing statute.’ State v. Valencia, 124 Ariz. 139, 141, 602 P.2d 807, 809 (1979).” Steelman II, supra, 126 Ariz. at 25, 612 P.2d at 481. Convictions entered prior to a sentencing hearing may thus be considered regardless of the order in which the underlying crimes occurred, State v. Jordan, supra, 126 Ariz. at 287, 614 P.2d at 829, or the order in which the convictions were entered. State v. Valencia, supra, 124 Ariz. at 141, 602 P.2d at 809. Any language suggesting the contrary in State v. Ortiz, supra, 131 Ariz. at 211, 639 P.2d at 1036, is hereby disapproved. In Ortiz, we found the trial court erred in considering a contemporaneous conviction for conspiracy to commit murder as aggravation for the murder. This exclusion from consideration is best understood as having been required because both convictions arose out of the same set of events.
Douglas Edward GRETZLER, Petitioner-Appellant, v. Terry L. STEWART, Director, of the Arizona Department of Corrections, Respondent-Appellee.
No. 95-99023.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Sept. 27, 1996.
Decided April 30, 1997.
Cary Sandman and James W. Stuehringer, Waterfall, Eeonomidis, Caldwell, Hanshaw & Villamana, Tucson, AZ, for petitioner-appellant.
Crane MeClennen, Assistant Attorney General, Phoenix, AZ, for respondent-appellee.
Before: FARRIS, PREGERSON, and LEAVY, Circuit Judges.
[OPINION BY LEAVY, Circuit Judge. type=majority]
LEAVY, Circuit Judge.
Douglas Edward Gretzler, an Arizona prison inmate currently under a state court sentence of death, appeals from the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.
FACTS AND PRIOR PROCEEDINGS
The relevant underlying facts are largely undisputed and were adequately summarized by the Supreme Court of Arizona:
In late December of 1972, Gretzler abandoned his wife and infant daughter in New York City, leaving no word of his intentions or whereabouts. He drove to Casper, Wyoming, and then to Denver, Colorado, where he met and moved in with Willie Steelman and Steelman’s sister. At this point, Gretzler’s criminal record consisted of minor traffic charges and one count of vagrancy.
On 11 October 1973, Gretzler, Steelman and a woman friend left Denver for Phoenix, Arizona. In Globe, Arizona, the two men committed an armed robbery of a sunbathing couple; the robbery netted them five dollars. Later on the same day, they picked up a hitchhiker, tied him to a tree and stole his clothes, a ring and twenty dollars. On 15 October, the trio arrived in Phoenix where they pawned the ring and robbed a woman of twenty dollars and some checks.
Shortly after the trio’s arrival in Phoenix, the woman set forth on her own. Steelman and an Arizona acquaintance known as “Preacher” went out to settle a drug-related dispute involving Preacher’s brother. Both Preacher and his brother died in the resulting melee.
Through two young men, Ken Unrein and Mike Adshade, Gretzler and Steelman learned that acquaintances of Steelman named Bob Robbins and Yafah Hacohen were living at an area trailer park. All four visited the couple. Following the visit, Gretzler and Steelman kidnapped Unrein and Adshade in their Volkswagen van and drove to Stanislaus County, California, where, on 17 October 1973, the pair garroted and stabbed Unrein and Adshade to death. They hid the bodies and continued to drive the Volkswagen until it stopped running, at which point they began to hitchhike. On 20 October, they kidnapped a young couple who stopped for them near Petaluma, California. Steelman raped the woman captive, but eventually both victims were released at an underground garage, where Gretzler and Steelman stole another car.
Concerned that Bob Robbins and Yafah Hacohen would eventually connect them with the disappearance of Unrein and Adshade, Gretzler and Steelman decided to return to Arizona and silence the couple. On the way to Phoenix, they picked up a hitchhiker named Steve Loughren. The three stayed overnight with Robbins and Hacohen; the following evening, Gretzler and Steelman murdered Loughren in an isolated area near the Superstition Mountains. They then returned to their friends’ trailer. On 25 October, while Hacohen was at work, they garroted and shot Robbins to death and hid his body. When Hacohen returned home, she, too, was murdered.
Gretzler and Steelman then moved on to Tucson where they shared a “crash pad” with some local street people. On 2 November, while hitchhiking with some of their Tucson acquaintances, they were picked up by Gilbert Sierra, whom they murdered later that night. They drove the victim’s car to a parking lot, where they wiped their fingerprints off the vehicle and abandoned it.
On 3 November, Gretzler and Steelman kidnapped V.A. who stopped for them while they were again hitchhiking. V.A. escaped from his moving car and notified police of his abduction and the theft of his vehicle. His captors drove his Pontiac Firebird to a Tucson condominium complex, where Michael Sandberg was washing his white Datsun in the parking lot. They parked the Firebird in an inconspicuous corner of the lot and forced Sandberg to take them to his condominium where his wife Patricia was studying. While in the Sandbergs’ home, Gretzler dyed his blond hair to brown. Both he and Steelman changed from jeans to slacks and coats belonging to Michael Sandberg. They bound and gagged both hostages, Michael on his bed and Patricia on the living-room couch. When night fell, Gretzler shot Michael in the head, muffling the gun with a pillow. He then shot Patricia, who was entirely covered by a blanket. Steelman took the gun and fired one more shot into her body, to make certain she was dead. The two then wiped down the condominium in an attempt to eliminate their fingerprints, gathered together credit cards, checks, a camera and other items belonging to the Sandbergs, and drove away in the couple’s car.
They went to the place where they had arranged to meet acquaintances with whom they planned to drive to California. The only person at the meeting-place was D.S., and the three set off together. D.S. knew that he was riding in a stolen car, and he testified that he saw Steelman pay for motel rooms and automobile service with Michael Sandberg’s American Express card. However, D.S. apparently was unaware of his companions’ other crimes. He had been told by then that he was free to leave them if things became “too much” for him. D.S. did leave when Gretzler and Steelman stopped for gas in Pine Valley, California. The two continued to Lodi, California, where they entered the home of the Walter Parkin family and took as hostages all present, as well as others who arrived later. Gretzler and Steelman forced Parkin to open the safe in his nearby store and stole between $3,000 and $4,000, of which Gretzler’s share was about half. Afterwards, Gretzler shot to death seven adults, whom he had previously bound and gagged. He went to a bedroom where Steelman had pulled a blanket over the heads of two sleeping children, shot one of them to death and waited while Steelman shot the second.
State v. Gretzler, 126 Ariz. 60, 612 P.2d 1023, 1028-30 (1980).
A few days later, Gretzler and Steelman were arrested in California as suspects in the Parkin homicides. Upon learning from California authorities that Gretzler and Steelman had been driving a car registered to Michael Sandberg, Tucson police went to the Sandberg home where they discovered the couple’s bodies. Shortly thereafter, Gretzler confessed to the murders of Michael and Patricia Sandberg.
Gretzler pleaded guilty in California to nine counts of first degree murder for the Parkin killings, for which he was sentenced to nine concurrent terms of life imprisonment. He and Steelman were then extradited to Arizona to stand trial for the murders, burglary and robbery of Michael and Patricia Sandberg, and for the kidnapping and robbery of V.A. The jury found Gretzler guilty on all counts. He was sentenced to death for the two murders, and to concurrent terms of imprisonment, ranging from twenty-five to fifty years, on the remaining counts.
The Arizona Supreme Court affirmed Gretzler’s convictions on all counts, upheld his sentences on the kidnapping, robbery and burglary counts, but remanded for resentencing on the two murder counts. State v. Gretzler, 612 P.2d at 1055. On remand, the trial court found as aggravating circumstances that (1) Gretzler had nine prior convictions punishable by either death or life imprisonment in Arizona, (2) these nine prior convictions were for crimes of violence, (3) the two Arizona murders had been committed for pecuniary gain, and (4) the killings were especially heinous, cruel, or depraved. The court found as a mitigating circumstance that Gretzler had a significantly impaired capacity to appreciate the wrongfulness of his conduct and/or to conform his conduct to the requirements of the law, but rejected Gretzler’s contention that the mitigating circumstance was substantial enough to warrant a call for leniency. The court resentenced Gretzler to death on both counts. The sentences were affirmed on appeal. State v. Gretzler, 135 Ariz. 42, 659 P.2d 1, cert. denied, 461 U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983).
Gretzler filed a petition for post-conviction relief (“PCR”) in state court in 1983. Following a hearing with oral argument, the trial court denied relief in 1984, and rejected Gretzler’s request for rehearing in 1985. After the Arizona Supreme Court denied review, Gretzler filed a second PCR (subsequently amended) in state court. Shortly thereafter, Gretzler filed the instant petition for federal habeas relief. The district court stayed its proceedings pending resolution of Gretzler’s second PCR. In 1986, the state court denied relief and rehearing in the second PCR, and the Arizona Supreme Court denied review in 1987.
The district court lifted its stay in 1987, and granted a motion for partial summary judgment in favor of the respondent the following year. The court again stayed the proceedings, this time pending resolution of the appeal in Adamson v. Ricketts, 865 F.2d 1011 (9th Cir.1988) (en banc), cert. denied sub nom. Lewis v. Adamson, 497 U.S. 1031, 110 S.Ct. 3287, 111 L.Ed.2d 795 (1990). The district court lifted its second stay in 1991, and Gretzler filed an amended petition for writ of habeas corpus in 1992. In his amended petition, Gretzler raised a total of twenty-six issues. Following additional briefing by the parties and a review of the complete state court record, the district court granted the respondent’s motion for summary judgment and dismissed Gretzler’s amended petition in 1995. Gretzler has timely appealed.
ANALYSIS
Standard of Review
A district court’s decision to grant summary judgment in favor of the state respondent in a federal habeas petition is subject to de novo review. Ceja v. Stewart, 97 F.3d 1246, 1249 (9th Cir.1996).
Discussion
Gretzler asserts the following issues on appeal, each of which will be discussed in turn:
(1) The trial court violated Gretzler’s Eighth and Fourteenth Amendment rights when it denied him access to psychiatric experts needed to assist with the defense;
(2) Gretzler was denied his Sixth Amendment right to the effective assistance of counsel when his lawyer failed to pursue a psychiatric or drug intoxication defense;
(3) The trial court violated Gretzler’s Fifth, Sixth, and Fourteenth Amendment rights when it admitted statements Gretzler had made to the California authorities after invoking his Miranda rights;
(4) The trial court violated Gretzler’s Eighth Amendment rights when it considered Gretzler’s California guilty pleas to nine counts of first degree murder as death penalty aggravating factors;
(5) The trial court and the Arizona Supreme Court violated Gretzler’s Eighth and Fourteenth Amendment rights when they considered an unconstitutionally vague circumstance as a death penalty aggravating factor;
(6) The trial court and the Arizona Supreme Court violated Gretzler’s Fifth Amendment protection against double jeopardy when they considered his California convictions as two death penalty aggravating factors;
(7) The trial court violated Gretzler’s Eighth and Fourteenth Amendment rights when it failed to require proof of the existence of aggravating factors beyond a reasonable doubt;
(8) The Arizona Supreme Court violated Gretzler’s Eighth Amendment rights when it considered non-statutory aggravating factors in its review of Gretzler’s sentence;
(9) The trial court violated Gretzler’s Eighth and Fourteenth Amendment rights when it considered a pro-death penalty statement from the father of one of the victims; and
(10) The trial court violated Gretzler’s Fourteenth Amendment rights when it engaged in ex parte communication with a deputy prosecutor concerning publicity surrounding the death penalty.
I. Access to Psychiatric Experts
A. New Rule/Retroactive Application
Citing Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 58 (1985), Gretzler argues that he was deprived of his Eighth and Fourteenth Amendment rights when the trial court denied him the assistance of a qualified psychiatrist to help with his defense. Ake holds, in relevant part, that
when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.
470 U.S. at 83, 105 S.Ct. at 1096.
Although his Arizona trial and conviction antedate Ake by ten years, Gretzler insists that Ake should nevertheless apply to the facts of his case because the Supreme Court’s holding did not represent a new rule. “A decision announces a new rule ‘if the result was not dictated by precedent existing at the time the defendant’s conviction became final.’ ” Harris v. Vasquez, 949 F.2d 1497, 1518 (9th Cir.1991) (as amended; quoting Penry v. Lynaugh, 492 U.S. 302, 314, 109 S.Ct. 2934, 2944-45, 106 L.Ed.2d 256 (1989); emphasis in original), cert. denied, 503 U.S. 910, 112 S.Ct. 1275, 117 L.Ed.2d 501 (1992). “[Ojur task is to determine whether a state court considering [Gretzler’s] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [Gretzler] seeks was required by the Constitution.” Saffle v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257, 1260, 108 L.Ed.2d 415 (1990).
Gretzler’s contention that Ake did not announce a new rule, but was instead a logical and predictable extension of existing constitutional principles, finds no support in the law. See United States ex rel. Smith v. Baldi, 344 U.S. 561, 568, 73 S.Ct. 391, 394-95, 97 L.Ed. 549 (1953) (state had no constitutional duty, even upon defense request, to appoint psychiatrist for pretrial examination of defendant’s sanity). As we noted in Harris, “Up to that time [i.e., prior to 1985], without Ake, a state court had no reason to conclude that a criminal defendant had a constitutional right to state-funded psychiatric assistance at any stage of a criminal proceeding.” 949 F.2d at 1518. Accordingly, we reject Gretzler’s contention that Ake did not constitute a new rule.
Gretzler argues in the alternative that, even if Ake did announce a new rule, that rule should apply retroactively. “Under Teague [ v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) ], new rules will not be applied ... in cases on collateral review unless they fall into one of two exceptions.” Graham v. Collins, 506 U.S. 461, 467, 113 S.Ct. 892, 897, 122 L.Ed.2d 260 (1993). This restriction against the retroactive application of new rules governs capital as well as non-capital cases. Id.
“The first exception to Teague permits retroactive application of a new rule that places a class of private conduct beyond the state’s power to prohibit or addresses a substantive categorical constitutional guarantee, such as a rule prohibiting a certain category of punishment.” Harris, 949 F.2d at 1519. The first exception is clearly inapposite.
“The second exception is for “watershed rules of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.” Saffle, 494 U.S. at 495, 110 S.Ct. at 1264 (quoting Teague, 489 U.S. at 311, 109 S.Ct. at 1075-76). This, exception is meant to apply to those procedures without which the accuracy of a conviction would be seriously diminished. Butler v. McKellar, 494 U.S. 407, 416, 110 S.Ct. 1212, 1218, 108 L.Ed.2d 347 (1990). As the Supreme Court recently noted,
Whatever the precise scope of this exception, it is clearly meant to apply only to a small core of rules requiring observance of those procedures that ... are implicit in the concept of ordered liberty. As the plurality cautioned in Teague, because we operate from the premise that such procedures would be so central to an accurate determination of innocence or guilt, we believe it unlikely that many such components of basic due process have yet to emerge.
Graham, 506 U.S. at 478, 113 S.Ct. at 903 (citations and quotations omitted).
We are not convinced that the right to psychiatric assistance as expounded in Ake is a “watershed rule of criminal procedure” lying in that “small core of rules” that are “implicit in the concept of ordered liberty.” The only Court of Appeals to squarely decide the issue has reached the same conclusion. See Bassette v. Thompson, 915 F.2d 932, 938-39 (4th Cir.1990) (Ake not retroactive; second Teague exception does not apply), cert. denied, 499 U.S. 982, 111 S.Ct. 1639, 113 L.Ed.2d 734 (1991); see also Stewart v. Gramley, 74 F.3d 132, 134 (7th Cir.) (Ake not retroactive) (dictum), cert. denied, — U.S. -, 117 S.Ct. 113, 136 L.Ed.2d 65 (1996).
Further, even if Ake applied, it would be of no help to Gretzler. Ake requires that a defendant seeking the appointment of a psychiatrist make a preliminary showing that his sanity will likely be a significant issue at trial. Williams v. Calderon, 52 F.3d 1465, 1473 (9th Cir.1995), cert. denied, - U.S. -, 116 S.Ct. 937, 133 L.Ed.2d 863 (1996). As discussed more extensively in Section I.B, infra, Gretzler made no such showing; the trial court found, based on the testimony of two psychiatrists, that Gretzler’s sanity was not an issue. The court’s decision to afford no further psychiatric assistance was therefore not a constitutional violation.
B. Ariz.Rev.Stat. § 13 — 1013(B)
Citing Ariz.Rev.Stat. § 13-4013(B), Gretzler contends that he had a protected liberty interest by operation of state law in a right to the assistance of a psychiatric expert, and the State improperly deprived him of that right. Section 13-4013(B) states:
When a person is charged with a capital offense the court may on its own initiative and shall upon application of the defendant and a showing that the defendant is financially unable to pay for such services, appoint such investigators and expert witnesses as are reasonably necessary adequately to present his defense at trial and at any subsequent proceeding. Compensation for such investigators and expert witnesses shall be such amount as the court in its discretion deems reasonable and shall be paid by the county.
The State concedes the first half of Gretzler’s argument by acknowledging that the mandatory language of section 13-4013(B) creates a protected liberty interest and that due process requires its fulfillment. See Hewitt v. Helms, 459 U.S. 460, 471-72, 103 S.Ct. 864, 871-72, 74 L.Ed.2d 675 (1983). The State denies that Gretzler was deprived of any due process. The only question before us, then, is “whether the process afforded [Gretzler] satisfied the minimum requirements of the Due Process Clause.” Id. at 472, 103 S.Ct. at 871. We conclude that it did.
The district court’s findings on this point bear quotation at some length:
In this case, the trial court allowed Gretzler and the State to each choose a psychiatric expert. Gretzler chose Dr. Gurland; the State chose Dr. Beigel. The Court ordered those experts to determine whether Gretzler was competent to stand trial and whether he was sane at the time of the Sandberg killings. The trial court stated that it wanted to make sure Gretzler had adequate psychiatric representation. After hearing the results, the trial [court] found Gretzler competent to stand trial. Later, Hoffman [defense counsel] filed a motion asking the trial court to appoint an investigator and to appoint psychiatric experts to determine whether Gretzler, although not insane under M’Naghten, could be considered a lunatic under Arizona law; to determine the effects of amphetamine and cocaine on Gretzler; and to determine Gretzler’s ability to form specific intent. The trial court granted the motion for the investigator with the limit of $250 and provided that Hoffman could return to the court once those funds were exhausted to show why additional funds were needed. The trial court took under advisement the request for additional experts.
At a hearing on September 2, 1975, the trial court noted that approximately one week prior, it had met in chambers with Hoffman and the prosecutor and telephoned Dr. Beigel, who stated that it would not have been necessary to have spent more time with Gretzler in order to give an opinion on either Gretzler’s mental state at the time of the killings or his competence to stand trial. Dr. Beigel also stated that further examination would not assist him in forming an opinion about the extent of Steelman’s control over Gretzler and whether Gretzler’s drug usage would have caused him to commit acts which he might not have otherwise committed.
Hoffman had discussed those same questions with Dr. Gurland and had reported to the trial court that Dr. Gurland likewise had stated that additional time would not assist him in forming an opinion on either Gretzler’s mental state or competence to stand trial. Consequently, the trial court ruled that because Hoffman had presented no reasonable grounds to indicate that additional testing would assist the psychiatrists to render an opinion, it denied the motion for additional mental examinations. Hoffman then requested funds to travel to California to interview the doctors who had examined Gretzler. The trial court instructed Hoffman to telephone the doctors and to report back to the court with more information. The trial court reserved further ruling pending Hoffman’s conversations with the doctor. Hoffman spoke with one of the California doctors, Dr. Peal who was here in Arizona testifying in Steelman’s case. Dr. Peal told Hoffman that he was willing to examine Gretzler. Hoffman apparently never told the trial court about this offer nor sought the funds to obtain Dr. Peal’s services.
C.R. # 124, at 17-19 (internal citations omitted).
Citing such cases as Ake and Smith v. McCormick, 914 F.2d 1153 (9th Cir.1990), Gretzler argues that it was not enough for the trial court to allow the defense and the State each to select a psychiatric expert to examine Gretzler and then report their findings to the court concerning his sanity at the time of the Sandberg killings and his ability to stand trial: “The right to psychiatric assistance does not mean the right to place the report of a ‘neutral’ psychiatrist before the court; rather it means the right to use the services of a psychiatrist in whatever capacity defense counsel deems appropriate^]” Smith, 914 F.2d at 1157.
We reject this line of argument. We have already concluded that Ake does not apply, and Gretzler’s reliance on Smith is misplaced, as that decision is based entirely on Ake. Moreover, even “Ake makes clear that psychiatric assistance is a contingent, not an absolute, right: it holds that when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial the state must provide psychiatric assistance.” Williams v. Calderon, 52 F.3d 1465, 1473 (9th Cir.1995) (emphasis in original; citation and internal quotation omitted), cert. denied, — U.S. -, 116 S.Ct. 937, 133 L.Ed.2d 863 (1996).
Here, the trial court did not simply reject Gretzler’s request for the assistance of a psychiatric expert. Rather, the court held that, if the results of his Rule 11 examination indicated the likelihood of an insanity defense, Gretzler could seek such additional assistance. Based on the testimony of the two psychiatrists, the court found that Gretzler had been sane at the time he committed the Sandberg killings and that he was competent to stand trial. The trial court’s exercise of its discretion in this matter complied with the requirements of Ariz.Rev.Stat. § 13-4013(B) and did not constitute a denial of due process. Cf. Gretzler, 612 P.2d at 1053 (requirements of Ariz.Rev.Stat. § 13-1673(B) within court’s sound discretion; relying on Mason v. Arizona, 504 F.2d 1345, 1352 (9th Cir.1974) (similar provision under federal law), cert. denied, 420 U.S. 936, 95 S.Ct. 1145, 43 L.Ed.2d 412 (1975)).
II. Ineffective Assistance of Counsel
Gretzler next argues that he was denied his right to the effective assistance of counsel by virtue of his lawyer’s failure to exercise due diligence in pursuing a psychiatric or drug intoxication defense. Before we can proceed to discuss the merits of this contention, however, we must first determine whether this issue is even properly before us.
A. Procedural Default
The State insists that review of this claim is barred because Gretzler proeedurally defaulted when he failed to assert it in his first post-conviction relief petition. The general rule with respect to procedural default is simple and straightforward:
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991). This requirement of “an independent and adequate state procedural rule” is a strict one: “[F]ederal courts on habeas corpus review of state prisoner claims ... will presume that there is no independent and adequate state ground for a state court decision when ... the adequacy and independence of any possible state law ground is not clear from the face of the opinion.” Id. at 734-35, 111 S.Ct. at 2557.
In Gretzler’s second PCR, the state trial court did not clearly set forth an independent and adequate state law basis for rejecting the ineffective assistance claim. Moreover, the trial court chose to reach the merits of the claim, and did so by applying federal law. Finally, the preclusive language of the trial court’s minute entry order appears to apply only to a single issue, viz., the previously raised Ake claim, and not to the ineffective assistance claim, which was not included in the first PCR. Accordingly, we find no error in the district court’s determination that Gretzler’s ineffective assistance claim was not proeedurally barred.
B. Performance/Prejudice
In order to show that his counsel was ineffective, Gretzler must demonstrate both deficient performance and resultant prejudice. See United States v. Ricardo, 78 F.3d 1411, 1418 n. 15 (9th Cir.1996). More specifically, United States v. Baramdyka, 95 F.3d 840, 844 (9th Cir.1996).
A defendant claiming ineffective assistance of counsel must demonstrate that (1) counsel’s actions were outside the wide range of professionally competent assistance, and (2) that defendant was prejudiced by reason of counsel’s actions. Strickland v. Washington, 466 U.S. 668, 686-90, 104 S.Ct. 2052, 2064-66, 80 L.Ed.2d 674 (1984). However, to establish such a claim, a petitioner must overcome the “strong presumption that counsel’s conduct falls within a wide range of reasonable professional assistance.” Id. (citations omitted).
On November 21, 1984, the trial court found that Gretzler’s attorney (Hoffman) had failed to exercise due diligence with respect to the testimony of Doctors Peal and Smith concerning Gretzler’s mental state. Gretzler argues that this finding not only satisfies the first (deficient performance) prong of Strickland, but also indicates a reasonable probability that the results of his trial would have been different if the testimony on drug-induced psychosis or insanity had been introduced, thereby satisfying the second (prejudice) prong. We disagree.
Whatever may be said of Hoffman’s failure to follow up on Drs. Peal and Smith, this is clearly not a case in which counsel conducted no investigations. Moreover, we must “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (citation and internal quotation omitted).
Hoffman’s defense theory was that Gretzler’s mental condition and drug usage made him a “follower” who would obey whatever commands Steelman gave him. This strategy was based on an overriding concern that the facts of Gretzler’s prior bad acts be kept from the jury. The presentation of this theory, however, depended on the state of the law as it then existed.
At the time of Gretzler’s trial, evidence of intoxication, whether induced by alcohol or drugs, was admissible to show lack of specific intent to commit the crime charged. State v. Durgin, 110 Ariz. 250, 517 P.2d 1246, 1249 (1974). However, it was also the law at the time of Gretzler’s trial that an expert could not render an opinion based on facts not in evidence. State v. Drury, 110 Ariz. 447, 520 P.2d 495, 504 (1974). Thus, Gretzler might have had to take the witness stand in order for Hoffman to lay the proper foundation necessary to get the psychiatrists’ testimony before the jury. Even then, such experts could not have given opinions concerning whether Gretzler had acted with specific intent when he killed the Sandbergs. See State v. Christensen, 129 Ariz. 32, 628 P.2d 580, 583-84 (1981). Moreover, any testimony Dr. Peal would have given concerning Gretzler’s alleged insanity at the time of the crimes would have been countered by the State submitting the testimony of Drs. Austin, Beigel, Gurland, and Rogerson, all of whom would have said that Gretzler was sane under M’Naghten. Finally, all of Gretzler’s prior bad acts could have been admissible had he presented a defense of either lack of specific intent due to drug usage or insanity. See State v. Neal, 143 Ariz. 93, 692 P.2d 272, 280 (1984).
Under the circumstances, it is difficult to believe that the outcome of Gretzler’s trial would have been different if the jury had heard about the brutal deaths of fifteen other people as detailed in Gretzler’s confessions. Accordingly, we find no error in the district court’s conclusion that Gretzler failed to satisfy both prongs of the Strickland test.
III. Admission of Custodial Statements
Gretzler’s third argument is that the trial court violated his Fifth, Sixth and Fourteenth Amendment rights when it admitted into evidence certain statements he made that were obtained in violation of the standards set forth in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). While conceding that Edwards does not apply retroactively, Gretzler contends that retroactivity is not at issue; i.e., although his judgment of conviction had been affirmed by the Arizona Supreme Court more than a year before Edwards was decided, that conviction was not yet final because the Arizona Supreme Court had remanded for resentencing, and his resentencing was not affirmed until January 6, 1983, and the Supreme Court did not deny certiorari until May 31,1983, some two years after Edwards. We reject this position as finding no support in the law.
The Supreme Court has said that, “By ‘final,’ we mean a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied.” Griffith v. Kentucky, 479 U.S. 314, 321 n. 6, 107 S.Ct. 708, 712 n. 6, 93 L.Ed.2d 649 (1987) (citing United States v. Johnson, 457 U.S. 537, 542 n. 8, 102 S.Ct. 2579, 2583 n. 8, 73 L.Ed.2d 202 (1982) and Linkletter v. Walker, 381 U.S. 618, 622 n. 5, 85 S.Ct. 1731, 1734 n. 5, 14 L.Ed.2d 601 (1965)). Where a judgment of conviction has been upheld by a state’s highest tribunal and the vacation of a sentence is on grounds wholly unrelated to the conduct of the trial, that conviction is final for purposes of retroactivity analysis. United States v. Judge, 944 F.2d 523, 526 (9th Cir.1991), cert. denied, 504 U.S. 927, 112 S.Ct. 1988, 118 L.Ed.2d 585 (1992); United States v. Baron, 721 F.Supp. 259, 261 (D.Haw.1989). Accord Richardson v. Gramley, 998 F.2d 463, 464 (7th Cir.1993), cert. denied, 510 U.S. 1119, 114 S.Ct. 1072, 127 L.Ed.2d 390 (1994).
Gretzler’s judgment of conviction had been affirmed on direct appeal, and the time in which he could have filed a petition for writ of certiorari to the Supreme Court had elapsed months before Edwards. The fact that he chose not to file a petition for writ of certiorari in 1980 is irrelevant. As the State notes, Edwards himself, in the very ease upon which Gretzler now relies, obtained relief from the Supreme Court of the United States, even though the Arizona Supreme Court had affirmed his judgment of conviction but remanded for resentencing for the identical reason it remanded Gretzler’s case. See State v. Edwards, 122 Ariz. 206, 594 P.2d 72, 82 (1979), cert. granted sub nom. Edwards v. Arizona, 446 U.S. 950, 100 S.Ct. 2915, 64 L.Ed.2d 807 (1980), rev’d, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
Even if we were to agree with Gretzler that this argument is properly before us, we would nevertheless reject his contention that the trial court’s admission of the statements ran afoul of Edwards. Gretzler made no unambiguous request for counsel that would have required the officers to cease questioning him. See Davis v. United States, 512 U.S. 452, 458-60, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994). Moreover, the record shows that it was Gretzler who insisted on talking with the detectives, despite admonitions from his attorney and warnings from the officers that they could not talk “unofficially” with him. Gretzler was repeatedly read, and he just as often waived, his Miranda rights. There was no error.
IV. Consideration of California Convictions
Gretzler’s fourth argument is that the trial court erred by considering at sentencing his nine California murder convictions, arguing that the guilty pleas underlying those convictions were invalid due to ineffective assistance of counsel which rendered them unknowing and involuntary. Citing Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994), the district court held that Gretzler could not mount a collateral attack on his prior convictions because those prior convictions were not void for Gideon violations.
We believe that the district court has read Custis too broadly. That case stands for the proposition that, absent a Gideon violation, a defendant in a federal sentencing proceeding has no constitutional right to attack collaterally the validity of previous state convictions used to enhance his federal sentence. 511 U.S. at 496, 114 S.Ct. at 1738-39. The underlying state sentences, however, remain subject to attack in state court “or through federal habeas review.” Id. at 497, 114 S.Ct. at 1739 (citing Maleng v. Cook, 490 U.S. 488, 492, 109 S.Ct. 1923, 1926, 104 L.Ed.2d 540 (1989)). See also Brock v. Weston, 31 F.3d 887, 890 (9th Cir. 1994) (“The Court’s constitutional holding was, as its citation to Maleng evidences, clearly premised on the fact that collateral attacks based on other defects may be heard on habeas review.”).
The gist of Gretzler’s argument is that his California lawyer was ineffective (more accurately, the California trial judge had misled him) because Gretzler had not been informed about the possible consequences in Arizona of his nine California convictions. At his hearing on resentencing, Gretzler filed a motion in limine, seeking to preclude the State from introducing the California convictions as aggravating factors at sentencing. The trial court found that the California judge who accepted Gretzler’s guilty pleas to nine counts of murder had misled Gretzler into thinking that his California convictions would not have any effect on any other proceedings.
After reviewing the California record, the Arizona Supreme Court set aside the trial court’s grant of the motion in limine, holding as follows:
The failure of the California judge to accurately inform the defendant of the consequences in Arizona of defendant’s plea in California does not, however, render the California judgments void. The law does' not require a judge in one state to accurately explain the law of a sister state before a plea of guilty to a crime in the pleading state may be accepted as voluntary. The record shows that in the instant case defendant pled guilty to nine murders pursuant to a plea bargain. There was a factual determination by the California court that he was in fact guilty of those nine murders and that the pleas were voluntarily made. We find no violation of the requirements of Boykin v. Alabama, [395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)] supra, in the acceptance of the defendant’s pleas of guilty in the California court which would render the judgments void.
The California judgments were entered in good faith. There was no indication that defendant was purposely misled, or that he pled guilty to crimes that he did not commit. Any violation of the Boykin requirements was technical in nature and not made less technical by the fact that the death penalty was involved. The judgments of guilt to the nine murders are the kind of aggravating circumstances that the legislature intended the courts of this state to consider in deciding whether to impose the death penalty. The judgments are not void, Burgett v. Texas, [389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967) ] supra, and not subject to collateral attack in Arizona. United States v. Timmreck, [441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979)] supra; United States v. Lopez-Beltran, [619 F.2d 19 (9th Cir.1979) ], supra.
State v. Superior Court, 128 Ariz. 583, 627 P.2d 1081, 1083-84 (1981).
In light of the above, we conclude that the trial court did not commit error of constitutional magnitude by considering as aggravating factors Gretzler’s nine California murder convictions.
V. Unconstitutional Vagueness
Gretzler’s fifth argument is that, at the time of his resentencing, the “heinous, cruel, or depraved” standard of Ariz.Rev.Stat. § 13-703(F)(6) (former section 13-454(E)(6)) was unconstitutionally vague; i.e., it was only in his case that the Arizona Supreme Court properly narrowed the definition of that standard as an aggravating factor at sentencing. Because we reject this contention for the same reasons so ably set forth in the district court’s Order and Memorandum of September 26, 1995, we quote that portion of its decision in its entirety:
Gretzler II [i.e., State v. Gretzler, 135 Ariz. 42, 659 P.2d 1 (Ariz.1983)] did not announce a new narrowing definition of which Gretzler could not have been aware. This is self evident from the language of the opinion. In the first paragraph on this topic, the Arizona Supreme Court states:
[w]e have already considered an identical claim in another case and have held this aggravating circumstance was not defined in an unconstitutionally broad or vague manner. State v. Ortiz, 131 Ariz. 195, 206, 639 P.2d 1020, 1031 (1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2259, 72 L.Ed.2d 863 (1982).
We believe that the statutory phrase ... has been construed in a constitutionally narrow fashion, and has been properly applied in individual eases.
Gretzler II, 135 Ariz. at 50, 659 P.2d at 9 (emphasis added). The Arizona Supreme Court then proceeded to review prior case law which supported its conclusion.
Citing some six prior cases, the Arizona Supreme Court stated, “We have explained on numerous occasions that cruelty involves the pain and distress visited upon the victims and that heinous and depraved go to the mental state and attitude of the perpetrator as reflected in his words and actions.” Gretzler II, 135 Ariz. at 50, 659 P.2d at 9 (emphasis added) (citations omitted). It then recognized that it had previously stated that “cruelty involves not only physical pain, but also ‘mental ... distress visited upon the victims.’ ” Id. 135 Ariz. at 51, 659 P.2d at 10 (citing State v. Clark, 126 Ariz. 428, 436, 616 P.2d 888, 896 (Ariz.[), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612] (1980)). Describing the physical pain Michael Sandberg had to endure, the mental anguish both victims suffered for having been held hostage for hours, and the extreme mental anguish Patricia Sandberg had to endure as she listened to her husband being shot to death, the Arizona Supreme Court found that “[t]he Sandbergs clearly suffered the Mnd of ‘mental and physical distress’ we have held constitutes cruelty.” Gretzler II, 135 Ariz. at 53, 659 P.2d at 12 citing State v. Tison, 129 Ariz. 526, 543, 633 P.2d 335, 352 (Ariz.1981) (emphasis added) [, cert. denied, 459 U.S. 882, 103 S.Ct. 180, 74 L.Ed.2d 147 (1982) ]. It is apparent from its prior decisions and the opinion in Gretzler II, that Arizona did not perceive itself as announcing any new narrowing definition. Rather, it applied well-developed case law.
The United States Supreme Court has not held that Gretzler II marks the moment at which Arizona’s cruel and heinous aggravating circumstance became constitutional. In Walton v. Arizona, 497 U.S. [639,] at 654, 656, 110 S.Ct. [3047,] at 3057-58 [1990], the constitutionality of Arizona’s cruel, heinous and depraved aggravating circumstance was evaluated. Walton held that while the statutory language is unconstitutionally vague, the defect had been cured by the Arizona Supreme Court through the development of narrowing definitions. Id., 497 U.S. [at] 654, 110 S.Ct. at 3057. Nowhere in that opinion did Walton identify Gretzler II as the sole and ultimate source of the Arizona [Supreme Court]’s narrowing definition.
In Lewis v. Jeffers, 497 U.S. 764, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990), the Supreme Court observed that in Gretzler II the Arizona Supreme Court “recently delineated factors to be considered in determining whether the offense was committed in a heinous or depraved manner.” Id., 497 U.S. at 771, 110 S.Ct. at 3097. When noting that infliction of gratuitous violence was one such factor, however, the Supreme Court cited both to Gretzler II and State v. Ceja, 115 Ariz. 413, 565 P.2d 1274 (Ariz.), cert. denied, 434 U.S. 975, 98 S.Ct. 533, 54 L.Ed.2d 467 (1977). Thus, the Court concludes that Jeffers does not support a finding that prior to Gretzler II Arizona’s cruel, heinous and depraved aggravating circumstance was unconstitutionally vague.
Gretzler also claims that Richmond v. Lewis, 506 U.S. 40, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992) demonstrates that the aggravating circumstance was not constitutionally defined until Gretzler II. In Richmond, as in this case, the application of this aggravating circumstance was redetermined by the Arizona Supreme Court during appellate review. Gretzler II was subsequent to Richmond’s resentencing but prior to the United [States] Supreme Court’s review. In Richmond, the State did not argue the constitutionality of the trial court’s application of the aggravating circumstance but rather argued only the constitutionality of the Supreme Court’s application. The State has done the same thing here. The State had no need to prove the former when it could so easily prove the latter. This Court will not read into that approach, a concession that prior to Gretzler II the aggravating circumstance, as applied by the courts, was unconstitutional.
This Court recognizes that recently the Arizona Supreme Court remarked in a footnote that the cruel, heinous and depraved aggravating factor:
had not yet been adequately narrowed pursuant to Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), at the time of defendant’s second sentencing. This did not occur until State v. Gretzler, 135 Ariz. 42, 659 P.2d 1, cert. denied, 461 U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). See Jeffers v. Lewis [Lewis v. Jeffers], 497 U.S. 764, 784, 110 S.Ct. 3092, 3104, 111 L.Ed.2d 606 (1990) (holding that Gretzler accomplished such a narrowing).
State v. Richmond, 180 Ariz. 573, 576 n. 1, 886 P.2d 1329, 1332 n. 1 (Ariz.1994). The Court considers this language as dicta since the issue before the court was not Gretzler’s present claim. Given the significance of such a holding on pending death penalty habeas cases, the Court will not elevate dicta in a footnote to a holding. Moreover, even if Gretzler’s case is found to have narrowed the cruel and heinous aggravating circumstance, it would not invalidate his sentence. Gretzler’s argument that he had no notice of the criteria is unpersuasive.
First, the Arizona Supreme Court specifically relied on 1980 and 1981 eases in summarizing the criteria to determine if a murder was cruel. These included the infliction of emotional distress on the victims, State v. Clark, supra, and being held at gun point for an extended period of time and witnessing the killing of other family members was cruel [sic]. State v. (Ricky) Tison, 129 Ariz.526, 633 P.2d 335 (Ariz. 1981). Gretzler had the benefit of these cases available to him at the time his second sentence was appealed. He was not forced to “forecast” a narrowing definition. Second, the Arizona Supreme Court found the aggravating circumstance itself based on the facts: the fact that Michael and Patricia were held prisoner for an extended period; the fact that Patricia Sandberg “had to endure the unimaginable terror of having her husband shot to death within her hearing, and then having to wait for her own turn to come.” Gretzler II, 135 Arizona at 53, 659 P.2d at 12. Gretzler knew these were the relevant facts based on easting case law. No change in Gretzler’s argument could alter the facts.
Gretzler relies on Moore v. Clark [Clarke], 904 F.2d 1226, 1230-31 (8th Cir.1990), cert. denied, 504 U.S. 930, 112 S.Ct. 1995, 118 L.Ed.2d 591 (1992) for the proposition that defendants should not be required to forecast narrowing definitions. In Moore, the state attempted to rely on a narrowing definition presented in a case decided six years after Gretzler’s sentencing to prove that the aggravating circumstance was constitutional at the time of sentencing. There the Eighth Circuit expressly found that the new ease did not merely clarify existing law because the new case could not be reconciled with prior case law. That is not the case here. Nothing stated in Gretzler II is claimed to be in conflict with prior cases. In addition, the new law announced in Moore did not rectify the constitutional infirmity. Thus, the Court finds Moore inapposite.
Gretzler II did not announce new law. It merely reviewed existing law to further describe a constitutionally acceptable aggravating circumstance.
C.R. # 124, at 50-54 (brackets added; footnote omitted; minor typographical errors corrected).
VI. Double-Counting
Gretzler’s sixth argument is that the sentencing court and the Arizona Supreme Court subjected him to double jeopardy by double-counting his California murder convictions; ie., his California convictions were used as the basis for two separate aggravating factors in prescribing the death penalty. We disagree.
The relevant statute, Ariz.Rev.Stat. § 13-703(E)-(G) (former section 13-454(D)-(F)),
does not require that the number of aggravating circumstances be weighed against the number of mitigating circumstances. One mitigating circumstance, for example, may be “sufficiently substantial” to outweigh two aggravating circumstances. The converse is also true — one aggravating circumstance could be so substantial that two or more mitigating circumstances would not be “sufficiently substantial to call for leniency.”
State v. Brookover, 124 Ariz. 38, 601 P.2d 1322, 1326 (1979) (quoting former section 13-454(D)). Nevertheless, although one fact (e.g., a single conviction) may be used to establish two aggravating circumstances, that fact may be weighed only once. State v. Tittle, 147 Ariz. 339, 710 P.2d 449, 455 (1985).
In reviewing the trial court’s resentencing of Gretzler, the Arizona Supreme Court considered only those facts associated directly with the convictions. While recognizing that there were two aggravating circumstances based on the nine California murder convictions, the Arizona Supreme Court limited its focus to the fact of the convictions and the nature of the crime on which those convictions were based:
We feel compelled to comment that the crime on which defendant’s previous convictions are based, the cold blooded mass murder of nine persons, including the shooting of sleeping children as they lay in their beds, is more than sufficiently offensive to place the defendant well above the norm of first degree murderers.
State v. Gretzler, 659 P.2d at 17. As the district court noted, “Nowhere did the court indicate that it was influenced by the fact that such a crime was an aggravating circumstance both because it was punishable by life imprisonment or death, and because it involved the threat or use of violence.” C.R. # 124, at 56 (internal citations omitted). Accordingly, we find no merit to this contention.
VII. Proof of Aggravating Factors Beyond a Reasonable Doubt
Gretzler’s seventh argument is that the trial court did not understand, and therefore did not properly apply, the correct standard when it failed to require proof beyond a reasonable doubt for the existence of aggravating circumstances that warranted imposition of the death penalty. We reject this contention.
The Supreme Court has declared that “[t]rial judges are presumed to know the law and to apply it in making their decisions.” Walton v. Arizona, 497 U.S. 639, 653, 110 S.Ct. 3047, 3057, 111 L.Ed.2d 511 (1990). In 1980, well before the trial court resentenced Gretzler, the Arizona Supreme Court expressly held that the standard to be applied in such situations was that of beyond a reasonable doubt. State v. Jordan, 126 Ariz. 283, 614 P.2d 825, 828, cert. denied, 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980). While the trial judge expressed some concern that the law governing two of the aggravating circumstances appeared difficult to reconcile, we agree with the district court that this evidence is insufficient to overcome the presumption that the court knew and applied the correct law. The fact that the trial judge did not clearly and unambiguously make such an express finding on the record is not determinative. See Clark v. Ricketts, 958 F.2d 851, 859-60 (9th Cir.) (as amended), cert. denied sub nom. Clark v. Lewis, 506 U.S. 838, 113 S.Ct. 117, 121 L.Ed.2d 73 (1992).
VIII. Consideration of Non-Statutory Aggravating Factor
Gretzler’s eighth argument is that the Arizona Supreme Court improperly relied on a non-statutory aggravating factor, ie., the high court considered the facts underlying his nine California murder convictions. Gretzler concedes that he failed to present this issue to the state courts, and he did not raise the issue before the district court by including it in either his original or amended petition for writ of habeas corpus. Accordingly, we decline to reach the merits of this argument.
IX. Review of Statement of Victim’s Father
Gretzler’s ninth argument is that the trial court improperly considered a statement from the victim’s family, viz., a letter from Patricia Sandberg’s father asking that Gretzler be sentenced to death. This contention fails.
Evidence about a victim’s characteristics and the impact of the murder on the victim’s family is relevant and admissible at a death penalty sentencing proceeding. Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720 (1991). Admission of such evidence will only be deemed unconstitutional if it is so unduly prejudicial that it renders the sentence fundamentally unfair. Id. at 825, 111 S.Ct. at 2608. As the district court properly noted, the comments of Patricia’s father were admissible not for their truth, but as a reflection of the anguish her death caused to her family. Moreover, the letter was not submitted in its entirety to a sentencing jury, but was reviewed by the judge. Accordingly, and in the absence of any evidence to the contrary, we must assume that the trial judge properly applied the law and considered only the evidence he knew to be admissible. See Walton, 497 U.S. at 653, 110 S.Ct. at 3057.
X. Communication with Prosecutor
Gretzler’s final argument is that his constitutional rights were violated when the trial judge had a conversation with Steve Neely, one of the attorneys in the prosecutor’s office, concerning the local publicity surrounding Gretzler’s prosecution. Neely was not the attorney who prosecuted Gretzler; there was no evidence showing that anything improper occurred; and, following an extensive hearing on Gretzler’s motion demanding that the trial judge recuse himself, the judge assigned to the matter found no grounds for recusal. The state court’s finding that the trial judge was impartial is not only supported by the record, but is a finding of historical fact that is entitled to a presumption of correctness. Cf. Greenawalt v. Ricketts, 943 F.2d 1020, 1029 (9th Cir.1991) (finding that jury was impartial is historical fact entitled to presumption of correctness • on collateral review; citing Patton v. Yount, 467 U.S. 1025, 1036-40, 104 S.Ct. 2885, 2891-94, 81 L.Ed.2d 847 (1984)), cert. denied sub nom. Greenawalt v. Lewis, 506 U.S. 888, 113 S.Ct. 252, 121 L.Ed.2d 184 (1992).
CONCLUSION
Because we find no merit to any of Gretzler’s arguments, the district court’s decision to grant summary judgment in favor of the respondent is
AFFIRMED.
[OPINION BY PREGERSON, Circuit Judge, type=dissent]
PREGERSON, Circuit Judge,
dissenting:
Douglas Edward Gretzler has been sentenced to death following a trial that lacked fundamental fairness. In denying Gretzler’s habeas petition, United States District Judge Richard M. Bilby observed:
This case represents everything that is wrong with death penalty litigation-an inexperienced lawyer (only three years experience with no death penalty cases); a parsimonious criminal system that would not grant the defendant sufficient funds to adequately defend himself; and an overzealous prosecutor who did his best, successfully, to deprive the defendant of needed funds for an adequate defense.
Gretzler v. Lewis, No. 85-537 TUC RMB, slip op. at 67 n. 9 (D.Ariz. Sep. 26, 1995).
The crucial issue at Gretzler’s trial was whether Gretzler could form the specific intent necessary to sustain a conviction for first-degree murder. Gretzler’s counsel repeatedly requested that the trial court appoint an independent psychiatrist to assist in the preparation and presentation of an adequate defense on this issue. The court denied these requests. The trial court’s failure to provide Gretzler with the assistance of an independent psychiatrist violated Gretzler’s due process rights. Therefore, I would reverse Gretzler’s conviction and grant him a new trial.
I.
Evidence discovered after Gretzler’s conviction supports his claim that he lacked the necessary intent to commit first-degree murder. The evidence includes the following:
(1) at age 13, Gretzler was diagnosed as suffering from anxiety and depression;
(2) from age 13 until the time the murders were committed, Gretzler used amphetamines and LSD as a means of self-medication;
(3) when Gretzler was 16, his older brother killed himself;
(4) Gretzler suffered from a significant mental disorder — “schizophrenic reaction, paranoid type” — throughout most of his life;
(5) at the time of the offenses, Gretzler was taking intravenous doses of amphetamines, had gone without sleep for several days, and likely suffered from amphetamine-induced psychosis;
(6) amphetamine-induced psychosis can impair the ability to premeditate and lead to paranoia and hyper-suggestibility — a condition which causes a person to follow commands or suggestions without any thought as to whether the action is right, wrong, or even possible;
(7) the amphetamine-induced psychosis may have permitted Gretzler’s companion, Willie Steelman, to control Gretzler’s actions;
(8) a person in an amphetamine-induced psychosis would generally meet the M’Naghten insanity test;
(9) amphetamine-induced psychosis is associated with a high incidence of uncontrollable violence; and
(10) at the time of the offenses, Gretzler did not know the nature and quality of his acts or that what he did was wrong.
Gretzler claims that the trial court’s refusal to appoint an independent psychiatrist to assist in the defense prevented his attorney, David Hoffman, from placing before the jury critical evidence on Gretzler’s mental state.
Defense counsel Hoffman made his first request for the assistance of an independent psychiatrist under Arizona Revised Statutes § 13-1673(B) (now Ariz.Rev.Stat. § 13-4013(b)) which provides:
When a person is charged with a capital offense the court may on its own initiative and shall upon the application of the defendant and a showing that the defendant is financially unable to pay for such services, appoint such investigators and expert witnesses as are reasonably necessary adequately to present his defense at trial and at any subsequent proceeding.
Id. (emphases added). This section expressly mandates the appointment of expert witnesses needed by indigent capital defendants like Gretzler. Nevertheless, the trial court denied Hoffman’s request.
At the court’s direction, Hoffman then filed a motion for a psychiatric examination of Gretzler under Rule 11 of the Arizona Rules of Criminal Procedure. Under Rule 11, the trial court may appoint one expert nominated by the accused and one expert nominated by the state. Ariz.R.Crim.P. 11.3. Rule 11 further provides that “[t]he court may, in its discretion, appoint additional experts ... when advised by an appointed expert that such examinations are necessary to an adequate determination of the defendant’s mental condition.” Id. 11.3(f). Hoffman nominated Dr. David Gurland on Gretzler’s behalf; the state nominated Dr. Allan Beigel. The doctors were to determine whether Gretzler was competent to stand trial and examine his mental state at the time of the murders. Id. 11.2. The doctors reported their results directly to the trial court. Rule 11 did not require either doctor to assist Hoffman in the evaluation, preparation, or presentation of Gretzler’s defense.
Dr. Gurland spent approximately two hours preparing for the exam and about one hour with Gretzler. Dr. Beigel examined Gretzler for about forty-five minutes. Both doctors found Gretzler competent to stand trial. Both doctors also found that at the time of the murders, Gretzler was impaired by his drug use but could form intent. Although Dr. Gurland did explore Gretzler’s drug use, he did not know the quantity of drugs involved. Dr. Beigel concluded that at the time of the murders, Gretzler was probably in “an acute paranoid state and possibly paranoid schizophrenic.” Based on these reports, the trial court found Gretzler competent to stand trial.
Hoffman then made a second request for the assistance of an independent psychiatrist under Ariz.Rev.Stat. § 13-1673(B). Hoffman based the request on the insufficiency of the Rule 11 examinations and on the state’s disclosure that Gretzler had engaged in heavy drug use at the time of the murders. Hoffman stated:
[Defendant is in dire need of the appointment of a psychiatrist ... to determine the effect of amphetamine-based drugs and cocaine taken in combination upon the defendant; to determine the defendant’s ability to form specific intent; and to do a complete psychiatric and psychological examination of the defendant in order to assist counsel in the preparation and presentation of his defense.
Four months later, before the trial court had ruled on Hoffman’s second request for the assistance of an independent psychiatrist, Hoffman submitted a new request for extensive psychological testing of Gretzler. This request specifically noted Gretzler’s previous institutionalization for mental illness and Dr. Beigel’s conclusion that Gretzler was probably in “an acute paranoid state and possibly paranoid schizophrenic” at the time of the murders. The trial court denied Hoffman’s request because both Dr. Gurland and Dr. Beigel had indicated that an additional examination was unnecessary.
Finally, near the end of Gretzler’s trial, Hoffman, for the fourth time, again sought additional psychiatric examinations based on the insufficiency of the Rule 11 exams and Dr. Beigel’s failure to question Gretzler about drug intoxication, an issue which had become central to the case. The trial court again denied Hoffman’s request.
II.
In Ake v. Oklahoma, the Supreme Court decreed that indigent individuals have a right to the assistance of a psychiatrist in their defense. The Supreme Court held:
[W]hen a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.
470 U.S. 68, 83, 105 S.Ct. 1087, 1096, 84 L.Ed.2d 53 (1985).
In interpreting Ake, this court has noted: “Ake makes clear that psychiatric assistance is a contingent, not an absolute, right: it holds that ‘when a defendant has made a preliminary shoioing that his sanity at the time of the offense is likely to be a significant factor at trial’ the state must provide psychiatric assistance.” Williams v. Calderon, 52 F.3d 1465, 1473 (9th Cir.1995) (quoting Ake, 470 U.S. at 74, 105 S.Ct. at 1091-92), cert. denied, — U.S. -, 116 S.Ct. 937, 133 L.Ed.2d 863 (1996).
In the present ease, the majority concludes that Hoffman failed to make the preliminary showing required under Ake because the trial court found Gretzler to be sane at the time of the murders and competent to stand trial. The trial court based its decision on the testimony and reports of Dr. Gurland and Dr. Beigel. I disagree with the majority’s conclusion.
In cases decided after Ake, it is clear that the accused must make a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial. In cases decided before Ake, such as the present case, the inquiry is whether counsel could have made the preliminary showing. See Castro v. Oklahoma, 71 F.3d 1502, 1513 (10th Cir.1995) (noting that in pre-Ake eases, the inquiry is whether petitioner could have made a preliminary showing) (citing Liles v. Saffle, 945 F.2d 333, 336 (10th Cir.1991), cert. denied, 502 U.S. 1066, 112 S.Ct. 956, 117 L.Ed.2d 123 (1992)). Thus, Gretzler only has to show that defense counsel Hoffman could have made a preliminary showing that Gretzler’s mental state would be a significant factor at trial. Nevertheless, even if Hoffman were required to make a preliminary showing, he satisfied that burden.
Hoffman challenged the trial court’s reliance on Dr. Gurland and Dr. Beigel’s testimony and reports. Hoffman pointed out the inadequacy of the Rule 11 exam and explained that the effect of Gretzler’s mental state and drug usage on his ability to form specific intent could not be addressed without the assistance of an independent psychiatrist. See Starr v. Lockhart, 28 F.3d 1280, 1289 (8th Cir.) (finding court-appointed mental health examiners’ report inadequate because it did not explain how mild retardation affected the accused’s appreciation of the results of actions he admittedly knew were wrong), cert. denied, 513 U.S. 995, 115 S.Ct. 499, 130 L.Ed.2d 409 (1994).
Furthermore, Hoffman presented the trial court with sufficient evidence to demonstrate that Gretzler’s mental state at the time of the murders would be “a significant factor at trial.” Ake, 470 U.S. at 74, 105 S.Ct. at 1091. First, Hoffman made repeated requests that the court appoint an independent psychiatrist to assist Gretzler in his defense, including one request during the trial after Gretzler’s drug intoxication had been raised as an issue. Compare Cowley v. Stricklin, 929 F.2d 640, 643 (11th Cir.1991) (finding that “repeated, timely, and specific requests for expert assistance” satisfied the preliminary showing required under Ake) with Williams, 52 F.3d at 1474 (finding no preliminary showing where counsel never moved for appointment of independent psychiatrist nor attempted to demonstrate that mental state would be at issue). Second, Hoffman offered Dr. Beigel’s report that concluded that Gretzler was probably in an “acute paranoid state and possibly paranoid schizophrenic” at the time of the murders. Third, the evidence revealed that Gretzler engaged in heavy drug use at the time of the murders. Taken as a whole, this evidence clearly satisfies the preliminary showing under Ake that the assistance of an independent psychiatrist was needed because Gretzler’s mental state would be a “significant factor at trial.”
The Rule 11 exam by Dr. Gurland and Dr. Beigel did not, however, satisfy Gretzler’s right to the assistance of an independent psychiatrist under Ake. Both the Supreme Court and this court have made it clear that the requirement of psychiatric assistance is not satisfied by the appointment of a neutral psychiatrist answerable to the court. Ake, 470 U.S. at 83, 105 S.Ct. at 1096; Williams, 52 F.3d at 1473. As this court reasoned in Smith v. McCormick, “to grant court-appointed psychiatric assistance only on condition of automatic full disclosure to the fact finder impermissibly compromises presentation of an effective defense, by depriving [the defendant] of ‘an adequate opportunity to present [his] claims fairly within the adversary system.’” 914 F.2d 1153, 1159 (9th Cir.1990) (quoting Ake, 470 U.S. at 77, 105 S.Ct. at 1093). “Instead, due process requires the appointment of one psychiatrist for use by the defense in whatever fashion defense counsel sees fit.” Williams, 52 F.3d at 1473 (emphasis added).
In this case, the Rule 11 examinations were not confidential. Dr. Gurland and Dr. Beigel reported their findings directly to the trial court. Furthermore, Rule 11 did not specifically require either psychiatrist to assist Hoffman in the evaluation, preparation, or presentation of Gretzler’s defense. Accordingly, Gretzler never received an independent psychiatrist “for use by the defense in whatever fashion defense counsel sees fit.”
Hoffman presented the trial court with sufficient evidence to demonstrate that Gretzler’s mental state would be a significant issue at trial. Gretzler thus had the right to an independent psychiatrist to assist in evaluating, preparing, and presenting his defense. By denying Gretzler such assistance, the trial court violated Gretzler’s due process rights and deprived him of a fundamentally fair trial.
III.
The question remains how to treat the trial court’s error in denying Gretzler the assistance of an independent psychiatrist. I believe that the trial court’s error is structural and requires reversal.
Structural error occurs when the “entire conduct of the trial from beginning to end is obviously affected.” Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991). As the Supreme Court stated in Chapman v. California, “there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.” 386 U.S. 18, 23, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705 (1967); see, e.g., Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (right to correct jury instruction on reasonable doubt); Vasquez v. Hillery, 474 U.S. 254, 266, 106 S.Ct. 617, 624-25, 88 L.Ed.2d 598 (1986) (right to a racially nondiscriminatory grand jury selection); Waller v. Georgia, 467 U.S. 39, 49 n. 9, 104 S.Ct. 2210, 2217 n. 9, 81 L.Ed.2d 31 (1984) (right to public trial); McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 950 n. 8, 79 L.Ed.2d 122 (1984) (right to self-representation); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (right to counsel); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (right to an impartial judge).
Some circuits subject an Ake violation to a harmless error analysis. See, e.g., Tuggle v. Netherland, 79 F.3d 1386, 1392-93 (4th Cir.), cert. denied, — U.S.-, 117 S.Ct. 237, 136 L.Ed.2d 166 (1996); Brewer v. Reynolds, 51 F.3d 1519, 1529 (10th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 936, 133 L.Ed.2d 862 (1996); Starr v. Lockhart, 23 F.3d 1280, 1291-92. (8th Cir.), cert. denied, 513 U.S. 995, 115 S.Ct. 499, 130 L.Ed.2d 409 (1994). Ake itself, however, simply reversed the conviction .without discussing harmless error analysis. See also Smith v. McCormick, 914 F.2d at 1170 (reversing conviction without engaging in harmless error analysis); Ford v. Gaither, 953 F.2d 1296 (11th Cir. 1992) (same); Cowley v. Stricklin, 929 F.2d 640 (11th Cir.1991) (same).
In Vickers v. Arizona, Justice Marshall, Ake’s author, stated that:
[The Arizona Supreme Court] wrongly subjects Ake claims to harmless-error analysis. In Ake, we did not endeavor to determine whether the petitioner’s case had been prejudiced by the lack of a psychiatrist. Rather, we determined that, in general, psychiatric assistance is of extreme importance in cases involving an insanity defense, and that without that assistance “the risk of an inaccurate resolution of sanity issues is extremely high.” Because the petitioner had made the threshold showing that his sanity was a significant issue at trial and the State had failed to offer psychiatric assistance, we reversed and remanded for a new trial.
497 U.S. 1033, 1037, 110 S.Ct. 3298, 3300, 111 L.Ed.2d 806 (1990) (Marshall, J., dissenting from denial of certiorari) (citations omitted). See also Starr, 23 F.3d at 1294—95 (McMillian, J., concurring) (stating that Ake errors require per se reversal).
Ake is based on a determination that to deny psychiatric assistance when the accused’s mental state at the time of the offense is at issue creates an extremely high probability of an erroneous factual determination on that issue. Ake, 470 U.S. at 82, 105 S.Ct. at 1095-96. Therefore, “competent psychiatric assistance in preparing the defense is a ‘basic tool’ that must be provided to the defense.” Smith, 914 F.2d at 1159 (quoting Ake, 470 U.S. at 77, 105 S.Ct. at 1093).
In this case, the trial court’s failure to appoint an independent psychiatrist to assist in Gretzler’s defense affected the entire trial from beginning to end. The only real issue at trial was whether Gretzler had the necessary mental state when the murders were committed. The defense therefore needed an independent psychiatrist to examine Gretzler, draw conclusions about his mental state, help develop effective questions for cross-examination of state witnesses, and explain medical terms. Furthermore, an independent psychiatrist could have supplied critical testimony to persuade a jury that Gretzler lacked the requisite intent.
The evidence discovered after Gretzler’s conviction casts serious doubt on Gretzler’s ability to form the intent required to sustain a conviction for first-degree murder. Without the assistance of an independent psychiatrist, however, Gretzler was precluded from effectively raising his mental state as a defense, and denied the opportunity to present any effective defense.
For all these reasons, the trial court’s failure to appoint an independent psychiatrist to assist in Gretzler’s defense constitutes structural error which requires automatic reversal.
IV.
In Harris v. Vasquez, this court determined that Ake announced a new constitutional rule of criminal procedure. 949 F.2d 1497, 1518 (9th Cir.1990), cert. denied, 503 U.S. 910, 112 S.Ct. 1275, 117 L.Ed.2d 501 (1992). “Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those eases which have become final before the new rules are announced.” Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 1075, 103 L.Ed.2d 334 (1989). One Teague exception states that “a new rule should be applied retroactively if it requires the observance of those procedures that ... are implicit in the concept of ordered liberty.” Id. at 307, 109 S.Ct. at 1073 (internal quotations omitted); see also Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 1263-64, 108 L.Ed.2d 415 (1990) (noting that Teague allows retroactivity for ‘“watershed rules of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding”) (quoting Teague, 489 U.S. at 311, 109 S.Ct. at 1075-76) (emphasis added).
Because Gretzler’s conviction became final prior to the Ake decision, Ake’s rule cannot be applied retroactively to this case unless an exception applies. Whether Ake applies retroactively is still an open question in this circuit. See Harris, 949 F.2d at 1519 (stating that “we ... do not decide Ake’s retroactivity”). But see Bassette v. Thompson, 915 F.2d 932, 938-39 (4th Cir.1990) (holding that Ake’s rule does not apply retroactively).
The majority summarily concludes that it is not convinced that Ake’s rule “is a Vatershed rule of criminal procedure’ lying in that ‘small core of rules’ that are ‘implicit in the concept of ordered liberty.’” I disagree. Ake’s rule applies retroactively because it implicates the fundamental fairness and accuracy of Gretzler’s trial.
In Ake, the Supreme Court stated:
This Court has long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on the Fourteenth Amendment’s due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.
Ake, 470 U.S. at 76, 105 S.Ct. at 1092.
Whether a new constitutional rule of criminal procedure is a “watershed rule” requiring retroactive application turns on society’s interests in conducting a fair proceeding. As the Supreme Court noted in Ake, “a criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense.” Ake, 470 U.S. at 77, 105 S.Ct. at 1093. Where an indigent’s defense in a capital case rests on his mental state at the time of the offense, the assistance of an independent psychiatrist is “integral to the building of an effective defense.” Id.
Ake’s rule is also critical to ensure accurate verdicts. “[W]ithout the assistance of a psychiatrist to conduct a professional examination on issues relevant to the defense, to help determine whether the insanity defense is viable, to present testimony, and to assist in preparing the cross-examination of a State’s psychiatric witnesses, the risk of an inaccurate resolution of sanity issues is extremely high.” Id. at 82, 105 S.Ct. at 1096 (emphasis added). In Harris, this court echoed Ake’s concern for accuracy in stating: “[W]e recognize that a defendant’s access to a competent psychiatrist might increase the likelihood of an accurate conviction.” Harris, 949 F.2d at 1520 (emphasis added). See also id. at 1529 (“If [a new] rule enhances the accuracy of the determination of the facts and goes to fundamental fairness, the rule is applied retroactively. The Ake rule is of this kind.”) (Noonan, J. concurring in part, dissenting in part).
In this case, the only real issue at trial was Gretzler’s mental state at the time of the murders. The appointment of an independent psychiatrist to assist in Gretzler’s defense clearly would have increased the likelihood of a fair and accurate verdict. Because the Ake rule implicates fundamental fairness and will increase the likelihood of an “accurate conviction,” Ake should apply retroactively.
For the above-stated reasons, I would reverse the conviction and remand for a new trial.
We had previously directed the parties to brief the issue of whether the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (the "Act”) applied to this appeal. That question has now been answered in the negative. See Jeffries v. Wood, 103 F.3d 827, 827 (9th Cir. 1996).
Steelman was tried separately and convicted on all counts. State v. Steelman, 120 Ariz. 301, 585 P.2d 1213 (1978), appeal following remand, 126 Ariz. 19, 612 P.2d 475, cert. denied, 449 U.S. 913, 101 S.Ct. 287, 66 L.Ed.2d 141 (1980).
At the time of Gretzler's trial and conviction, Ariz.Rev.Stat. § 13-4013(B) appeared on the statute books as § 13-1673(B). The section was renumbered in 1977 but not otherwise changed.
Rule 11 of the Arizona Rules of Criminal Procedure concerns claims of incompetency and provides for mental examinations. Rule 11.2 requires a motion to determine a defendant’s competency to stand trial or his sanity at the time the crime was committed. If such a motion is made, Rule 11.3 provides a vehicle for appointing at least two medical experts to conduct such an examination.
In light of our holding on this point, wc need not and do not reach the merits of Grctzler's argument that the trial court’s handling of this matter constituted structural error not subject to harmless error analysis.
THE COURT: Now, Mr. Gretzler, and Mr. Dedekam, if it has been explained to you, all right, but if not, I would like to explain to you, that you understand that the pleas you have entered in this proceeding, of course, will not affect any other charge or charges which may be pending in any other jurisdiction? You understand that? DEFENDANT GRETZLER: Yes. THE COURT: This only takes care of the matters that are before this court in this county. DEFENDANT GRETZLER: That means they do not affect either way? THE COURT: That’s right. That’s correct. It has nothing to do with any other proceeding which may or has been initiated. Excuse me. I have been advised by counsel there is some proceeding in another state. And there’s some proceeding in one or two other counties. Now I am not certain of that. But you understand, of course, whatever action is taken here, and your plea here does not affect those proceedings at all. You understand that? DEFENDANT GRETZLER: Right. I understand that. State v. Superior Court, 128 Ariz. 583, 627 P.2d 1081, 1082 (1981).
Gretzler’s contention that he had no opportunity to present the issue in a timely manner is meritless. He made no effort to present the issue to the Arizona Supreme Court in, e.g., a petition for rehearing, and his passing reference to the issue in his cross-motion for summary judgment hardly justifies his failure to present the issue in either his original or amended petitions for writ of habeas corpus.
The Rule 11 exam was also inadequate because Dr. Beigel examined Gretzler only to determine his competency to stand trial, not to determine his mental state at the time of the murders. See Ford v. Gaither, 953 F.2d 1296, 1299 (11th Cir. 1992) (finding an Ake violation where psychiatriste evaluated defendant but failed to assess defendant’s competency at the time of the offense); Cowley v. Stricklin, 929 F.2d 640, 645 (11th Cir.1991) (noting that Ake is not satisfied by a psychiatrist who failed to determine defendant’s mental state at the time of the offense).
"Denial of the assistance of a psychiatrist does more them hinder the defendant in raising an effective insanity defense; it prevents [the accused] from raising the defense at all." Note, Michael J. Lorenger, Ake v. Oklahoma and Harmless Error: The Case for a Per Se Rule of Reversal, 81 Va.L.Rev. 521, 547 (1995) (arguing that Ake violations should be subject to automatic reversal because the indeterminate effect that psychiatric testimony has on a lay jury makes quantifying the error mere guesswork).
Douglas Edward GRETZLER, Petitioner-Appellant, v. Terry L. STEWART, Director of Arizona Department of Corrections, Respondent-Appellee.
No. 95-99023.
United States Court of Appeals, Ninth Circuit.
Aug. 27, 1997.
Before: FARRIS, PREGERSON, and LEAVY, Circuit Judges.
Judges Farris and Leavy have voted to deny appellant’s petition for rehearing. Judge Pregerson has voted to grant the petition for rehearing. Judge Pregerson has voted to grant the suggestion for rehearing en banc, and Judges Farris and Leavy have recommended rejecting the suggestion for rehearing en banc.
The full court was advised of the suggestion for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonreeused active judges in favor of en banc consideration. Fed. R.App. P. 35.
The petition for rehearing is DENIED and the suggestion for rehearing en bane is REJECTED.
Douglas Edward GRETZLER, Petitioner-Appellant, v. Terry L. STEWART, Director of the Arizona Department of Corrections, et al., Respondents-Appellees.
Nos. 98-80394, 98-99019.
United States Court of Appeals, Ninth Circuit.
Submitted June 3, 1998.
Decided June 3, 1998.
Cary Sandman, Waterfall, Economidis, Caldwell, Hanshaw & Villamana, P.C., Tucson, Arizona, for the petitioner-appellant.
Paul J. McMurdie, Chief Counsel, Criminal Appeals Section for the State of Arizona, Phoenix, Arizona, for the respondents-appel-lees.
Before: SCHROEDER, FARRIS, and PREGERSON, Circuit Judges.
[OPINION BY Order; Dissent by Judge PREGERSON. type=majority]
Order; Dissent by Judge PREGERSON.
Douglas Edward Gretzler seeks to appeal the district court’s denial of his second petition for habeas corpus relief under 28 U.S.C. § 2254 and the denial of his application for stay of his execution scheduled for 3:00 p.m., Wednesday, June 3, 1998. We grant his motion for a Certificate of Appealability and deny the remaining motions as moot. The facts and procedural background are set forth in our disposition of the first petition. See Gretzler v. Stewart, 112 F.3d 992, (9th Cir.1997).
Gretzler here claims that his execution would be cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution because he has been on death row since 1975 and his execution would no longer serve any deterrent or retributive purpose. His claim is similar to the one we rejected in Ceja v. Stewart, 134 F.3d 1368 (9th Cir.1998), as barred by the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2244(b)(3). In addition, Gretzler’s prior § 2254 petition was amended in 1992. Gretzler could have included this claim in that petition, when he had already been on death row 17 years. See Stewart v. Martinez-Villareal — U.S. -, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998) (recognizing exception to AEDPA for claim that could not have been adjudicated in prior habeas petition). See also Lackey v. Texas, 514 U.S. 1045, 115 S.Ct. 1421, 131 L.Ed.2d 304 (1995) (Stevens, J. dissenting from denial of certiorari) where petitioner had been on death row 17 years. Although Gretzler contends that his claim was not ripe until his death warrant was signed, his case is unlike Martinez-Villareal. There the competency claim could not have been evaluated until execution was imminent. Here, Gretzler challenges his death sentence in light of the years on death row he has already served.
The district court’s order dismissing the petition and denying the stay of execution is AFFIRMED.
[OPINION BY PREGERSON, Circuit Judge, type=dissent]
PREGERSON, Circuit Judge,
dissenting,
I would grant the stay and remand to the district court to consider the merits of the petition. See Martinez-Villareal — U.S. -, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998).