Arizona executes man convicted of killing two girls in 1991

By David Schwartz - Reuters.com

Dec 5, 2012

PHOENIX | (Reuters) - An Arizona man convicted of kidnapping, raping and murdering two 13-year-old girls then tossing their bodies down an abandoned mineshaft in 1991 was put to death by lethal injection on Wednesday. Richard Dale Stokley, 60, was pronounced dead at 11:12 a.m. MDT in the state prison in Florence, about 60 miles southeast of Phoenix, state officials said. He had no final words.

Stokley was convicted in 1992 of first-degree murder and other related charges in the killings of Mandy Meyers and Mary Snyder during an Independence Day festival near Elfrida, about 230 miles from Phoenix. An accomplice to the killings, Randy Brazeal, confessed to second-degree murder under a plea deal and served 20 years in prison before being released last year, authorities said.

According to court records, Stokley attended the weekend community celebration to work as a stunt man in an Old West re-enactment. The girls camped out at the festival site along with numerous other children from the area. Stokley and Brazeal kidnapped the girls and took them to a remote area where they raped them. Prosecutors said Stokley, fearing the consequences, determined that both girls should be killed. He strangled one of the girls and Brazeal the other. The bodies were "stomped upon with great force," with one of the girls bearing the imprint from Stokley's tennis shoe on her chest, shoulder and neck, records show.

Both victims, who were likely unconscious at the time, were stabbed in the right eye with Stokley's knife, records state. Their bodies were dragged and thrown down a water-filled mineshaft. Brazeal later surrendered to police, and Stokley was arrested. Both men led authorities to the mineshaft where the bodies were hidden.

Stokley was later convicted of two counts of first-degree murder and kidnapping and one count of sexual conduct with a minor. In his last-ditch appeals, he argued that the courts did not consider evidence to mitigate his sentence and argued that Brazeal was more culpable and received a lesser sentence. The U.S. Supreme Court turned down Stokley's appeals on Tuesday. He had no other appeals outstanding in any court. "One can only imagine the terrible pain the families of these victims have endured for more than 21 years since these brutal crimes were committed," Arizona Attorney General Tom Horne said in a statement. "My hope is now that the sentence has been carried out, they will find some measure of peace," he added.

Stokley was the sixth person to die by lethal injection in Arizona this year and the 34th since the state reintroduced the death penalty in 1992. Forty-two people have been executed in the United States so far this year, according to the Death Penalty Information Center.

Stokley requested a last meal of a porterhouse steak, french fries, fried okra, a salad with blue cheese, cheddar cheese, two biscuits, a banana, an apple, a peach, a cream soda and chocolate ice cream, the state's Department of Corrections said.

Stokley makes no apology, is executed

By Kim Smith - Azstarnet.com

December 06, 2012

FLORENCE - For 20 years, Patty Hancock refused to buy new Christmas stockings for her children because they wouldn't match the one that belonged to her slain daughter, Mandy. After the execution Wednesday of one of the two men who raped and murdered Mandy and her friend Mary Snyder on July 8, 1991, Hancock announced she was ready to begin a new phase in her life. It is OK to get new stockings. Richard Dale Stokley, 60, was pronounced dead at 11:12 a.m. after receiving an injection of pentobarbital.

Stokley was sentenced to die in July 1992 for killing Mandy Meyers and her friend Mary. Both girls were 13. His death was witnessed by more than a dozen family members and lawyers involved in the case. Stokley was chatty with the medical personnel who spent 52 minutes trying to find veins that could be used to administer the pentobarbital - a drug used to both sedate an inmate and stop his heart. But when Stokley was asked if he had any final words, he simply responded, "Nah." He warned the medical team he had hepatitis, told a phlebotomist joke and assured them he was doing fine. "I grew up a long time ago," Stokley said. "I do wish I could die doing something meaningful, you know. This seems like such a waste." After finally assessing the final vein they needed, one of the team members told Stokley he "did good." "Thank you," Stokley replied. "You did too, all of you young guys and all of you all."

The pentobarbital rendered Stokley unconscious five minutes after the first dose was administered. The second dose was then given. At 11:03 a.m. Stokley's body convulsed one time. He was pronounced dead nine minutes later. He never looked at the crowd watching from the other side of the glass.

Hancock said Stokley should have apologized to the families but wasn't surprised he did not. "What do you expect from a heartless man with no soul?" she asked. Dennis Hancock married Patty Hancock, 56, exactly one week prior to Mandy's death. "We'll finally have a holiday where we don't have someone on death row or in prison," Dennis Hancock said. "I hope it will be a joyous one, but there will always be someone missing." Mary's sister, Elisha Gonzales, broke down when recounting all of the milestones her sister never got to experience. Stokley's execution was a "long time in coming" and now there will hopefully be a time of healing and peace, Gonzales, 39, said. Her parents were not emotionally up to witnessing the execution, but were on the grounds of the prison, Gonzales said.

On July 7, 1991, Mary and Mandy went to a community celebration near Elfrida. Witnesses said they saw 20-year-old Randy Brazeal talking to the girls at their campsite and later while next to Brazeal's father's car with Stokley beside him. About 1 a.m., the girls told friends they were going to the restroom, and they were never seen alive again. The next day, Brazeal turned himself in to Chandler police and Stokley was arrested in Benson. The girls' nude bodies were found in an abandoned mine shaft. They'd been raped, strangled, stabbed and stomped.

Brazeal was sentenced to two concurrent terms of 20 years after being allowed to plead guilty to second-degree murder. He had invoked his right to a speedy trial, and prosecutors said they offered him a plea agreement for fear they would not have the DNA evidence back from the lab before his trial date. Brazeal was released from prison last year and is now living in another state, Hancock said. Although Stokley is now dead, there will never really be closure for her because Brazeal is out there, Hancock said. "I'm worried I will get a phone call that he murdered someone else's children," Hancock said. The U.S. Supreme Court rejected Stokley's final appeal on Tuesday.

At the time of this sentencing on July 14, 1992, Stokley said he did not deny culpability, but said there was no premeditation on his part. He also said he'd been made a scapegoat. "What I am guilty of is being an irresponsible person for most of my life, running from responsibility, living in a fantasy world, and it was my irresponsibility on the night that this incident occurred that involved me in the incident. ... There is no words that can express the grief and the sorrow and the torment I have experienced over this, but I am just going to leave everything in the hands of God because that's where it is anyway."

For his last meal Stokley ordered a porterhouse steak, french fries, fried okra, a salad, a 2-ounce wedge of cheddar cheese, two biscuits, a banana, an apple, a peach, chocolate ice cream and cream soda. Stokley was the sixth person to be executed in Arizona this year.

Arizona inmate executed for girls’ murders

By Michael Kiefer - AZCentral.com

Dec 5, 2012

FLORENCE — Convicted murderer Richard Dale Stokley, was executed Wednesday morning at the Arizona State Prison complex in Florence for the 1991 murders of two Cochise County teenage girls. Stokley, 60, spent Tuesday meeting with his attorneys and reading letters sent by friends. At 6 p.m., he had his last meal of porterhouse steak, french fries, okra, cauliflower, salad, fruit and ice cream. At 10 a.m. Wednesday, the execution team began setting intravenous lines, but had difficulty setting the two lines required and had to cut into the femoral vein in his leg.

Witnesses watching on closed-circuit TV said that Stokley joked with the execution team and was heard saying, “I do wish I could die doing something meaningful. You know, this seems such a waste.” But when the curtain from the execution chamber opened at 10:52 a.m., Stokley had no last words and did not even look in the direction of the witnesses. He was pronounced dead at 11:12 a.m.

"He was a coward from the beginning and he died a coward," said Patty Hancock, the mother of one of the girls. "He never looked at us." It was the sixth execution for Arizona this year, and the third in which a man was executed and his accomplice in murder, Randy Brazeal, 41, is already out of prison and living as a free man. "It could have been Brazeal on that table and not him," Hancock said.

Stokley was 38 in 1991, when he and 19-year-old Randy Brazeal took two 13-year-old girls from a Fourth of July weekend fair in the southeastern Arizona town of Elfrida. They drove the girls, Mandy Meyers and Mary Snyder, out into the desert and raped and murdered them, then threw their bodies down an abandoned mineshaft. Brazeal saved his own life by entering into a plea agreement before DNA analysis could prove his role in the rapes and murders. He claimed that Stokley had done the killing. Brazeal pleaded guilty to two counts of second-degree murder and was sentenced to 20 years in prison. Brazeal, now 41, was released in July 2011 and moved to Arkansas, where he married. When reached by phone for comment last week, he said, “Good riddance to him,” referring to Stokley.

Stokley went to trial, and prosecutors in the Cochise County Attorney’s Office proved that Stokley had raped and killed one of the girls and Brazeal raped both and killed one. The girls had been strangled and stomped and stabbed in the eye. Stokley’s attorneys at the Federal Public Defender’s Office petitioned the U.S. Supreme Court on claims that Stokley’s initial appellate attorney abandoned his case and that his punishment was disproportionate to that of his co-defendant, Brazeal. But the court denied both petitions Tuesday afternoon, clearing the way for the execution.

Arizona has already executed five Death Row prisoners this year: Robert Moormann, Robert Towery, Thomas Kemp, Samuel Lopez and Daniel Cook. The Arizona Attorney General’s Office has asked the state Supreme Court to set an execution date for another Death Row prisoner, Edward Schad, who murdered a Bisbee man in 1978. And Dale Hausner, the so-called Serial Shooter convicted of six murders in 2005 and 2006 in metropolitan Phoenix, is undergoing psychological evaluation to determine whether he is competent to waive appeals of his death sentences to speed up his execution date.

Richard Dale Stockley

ProDeathPenalty.com

On the Fourth of July weekend in 1991, two thirteen-year-old girls, Mary Snyder and Mandy Meyers, attended a community celebration near Elfrida, Arizona. 38-year-old Richard Dale Stokley also attended the festival to work as a stuntman in Old West reenactments. Mary and Mandy, along with numerous other local children, camped out at the celebration site on July 7. That night co-defendant Randy Brazeal, age twenty, showed up at the campsite. Brazeal had previously dated Mandy's older sister and knew Mandy.

During the evening, Brazeal approached the girls' tent and had a discussion with Mary and Mandy. The girls were also seen standing next to Brazeal's car speaking to Brazeal, who was in the driver's seat, while Stokely was in the passenger seat. Around 1:00 a.m. on July 8, 1991, the girls told a friend they were going to the restroom. They never returned.

The next day Brazeal surrendered himself and his car to police in Chandler, Arizona. The hood of the car had semen stains, as well as dents matching the shape of human buttocks. Palm prints on the hood matched Brazeal. The back seat had semen stains matching Stokley and also had blood stains. Police found a bloody pair of men's pants in the car. Meanwhile, Stokley called a woman in Elfrida asking her to send someone to pick him up in Benson, Arizona. The woman asked about the missing girls, to which Stokley replied, "What girls? I don't know anything about any girls."

Police arrested Stokley that same day at a Benson truck stop. Police found blood stains on his shoes, and his pants looked as if they had recently been cut off at the knee. After reading Stokley his Miranda rights, police questioned him at the Benson police station. At first he denied any knowledge of the girls, but after hearing about Brazeal's arrest and being asked about "a particular mine shaft around Gleason," he admitted that he and Brazeal had sexually assaulted the girls. He admitted having sex with "the brown haired girl" (Mandy) and stated that Brazeal had sex with both of them. He also said he and Brazeal had discussed killing the girls, after which Stokley choked one and Brazeal strangled the other. He admitted, "I choked 'em. There was one foot moving though I knew they was brain dead but I was getting scared. They just wouldn't quit. It was terrible." Stokley also admitted using his knife on both girls. After killing the girls, they dumped the bodies down a mine shaft. Stokley led the police to the abandoned mine shaft and expressed hope that the trial would not take long so he could "get the needle and get it over with." After explaining how they had moved timbers covering the shaft to dump the bodies, he pointed out where he and Brazeal had burned the girls' clothes. Police recovered the nude bodies from the muddy mine shaft.

Autopsies showed that both girls had been sexually assaulted, strangled (the cause of death), and stabbed in the right eye. The strangulation marks showed repeated efforts to kill, as the grip was relaxed and then tightened again. Both victims suffered internal and external injuries to their necks. Mandy also had stomp marks on her body that matched the soles of Stokley's shoes. Evidence was consistent with each victim being killed by a different perpetrator. In particular, Mary's body had a mark on the neck consistent with Brazeal's boot, whereas bruise marks on Mandy matched the soles of Stokley's shoes. And more force was used in strangling Mandy than Mary.

DNA analysis indicated that both defendants had intercourse with Mandy. Mary's body cavities were filled with mud, making DNA analysis impossible. The jury found Stokley guilty of two counts of kidnapping, one count of sexual conduct with a minor under the age of fifteen (Mandy), and two counts of premeditated first degree murder. It acquitted him on two counts of sexual assault (Mary and Mandy) and one count of sexual conduct with a minor under the age of fifteen (Mary). Stokley and the state stipulated to sentences on the noncapital offenses. The trial court accepted the stipulation and sentenced accordingly.

Following a sentencing hearing on the capital counts, the trial court rendered a detailed, twelve-page special verdict. The trial court found that the facts established beyond a reasonable doubt that (1) both adults engaged in sex with the girls, (2) the defendants agreed to kill both girls, (3) Stokley intentionally killed Mandy, (4) Brazeal intentionally killed Mary, (5) both Mary and Mandy suffered great physical pain and mental anguish during strangulation, (6) Stokley admitted choking both victims, (7) both bodies were stomped, with that of Mandy bearing the imprint of Stokley's sneaker, (8) Stokley stabbed both girls, Mandy through the right eye and Mary in the vicinity of the right eye, and (9) although alcohol was involved, Stokley had sufficient recall and understanding of the events the next day. The trial court found three statutory aggravating circumstances for both murders: (1) victim under age fifteen; (2) multiple homicides; and (3) especially heinous, cruel or depraved. The court rejected all the claimed mitigating circumstances offered by Stokley, including law-abiding past, cooperation with police, alcohol use, prior head injuries, and co-defendant Brazeal's twenty-year sentence. The trial court also expressly stated that it was unable to find any other mitigating circumstances not expressly offered by defense counsel. The court sentenced Stokley to death for both murders.

State v. Stokley, 182 Ariz. 505, 898 P.2d 454 (Ariz. 1995). (Direct Appeal)

Defendant was convicted in the Superior Court, Cochise County, No. CR–91–00284A, Matthew W. Borowiec, J., of two counts of first-degree murder, two counts of kidnapping, and one count of sexual conduct with minor under the age of 15, and he was sentenced to death. On appeal, the Supreme Court, Moeller, V.C.J., held that: (1) pretrial publicity did not warrant change of venue; (2) autopsy photographs of victims were admissible; (3) death penalty statute was not unconstitutional; (4) in addition to two other aggravating circumstances under death penalty statute, murders were especially heinous, cruel, and depraved; (5) defendant failed to show, as mitigating circumstances, that his ability to control his actions was significantly impaired by alcohol, prior head injuries or mental disorders; and (6) nonstatutory mitigating circumstances, to extent shown, did not warrant overturning death sentence. Affirmed.

MOELLER, Vice Chief Justice.

JURISDICTION

This is a capital case in which we review Richard Stokley's convictions for two counts of first degree murder, two counts of kidnapping, and one count of sexual conduct with a minor under the age of fifteen. We also review the two death sentences imposed on the murder counts. Appeal to this court is automatic. Ariz.R.Crim.P. 31.2(b). We have jurisdiction pursuant to Ariz.Rev.Stat.Ann. (A.R.S.) §§ 13–4031 (1989) and 13–4033 (1989 and Supp.1994). We affirm the convictions and sentences.

FACTS AND PROCEDURAL HISTORY

On the Fourth of July weekend, 1991, two thirteen year old girls, Mary and Mandy,FN1 attended a community celebration near Elfrida, Arizona. The thirty-eight year old defendant also attended the festival to work as a stuntman in Old West reenactments. FN1. We do not use the victims' last names in this published opinion.

Mary and Mandy, along with numerous other local children, camped out at the celebration site on July 7. That night co-defendant Randy Brazeal, age twenty, showed up at the campsite. Brazeal had previously dated Mandy's older sister and knew Mandy. During the evening, Brazeal approached the girls' tent and had a discussion with Mary and Mandy. The girls were also seen standing next to Brazeal's car speaking to Brazeal, who was in the driver's seat, while defendant was in the passenger seat. Around 1:00 a.m. on July 8, 1991, the girls told a friend they were going to the restroom. They never returned. The next day Brazeal surrendered himself and his car to police in Chandler, Arizona. The hood of the car had semen stains, as well as dents matching the shape of human buttocks. Palm prints on the hood matched Brazeal. The back seat had semen stains matching defendant and also had blood stains. Police found a bloody pair of men's pants in the car.

Meanwhile, defendant called a woman in Elfrida asking her to send someone to pick him up in Benson, Arizona. The woman asked about the missing girls, to which defendant replied, “What girls? I don't know anything about any girls.” Police arrested defendant that same day at a Benson truck stop. Police found blood stains on his shoes, and his pants looked as if they had recently been cut off at the knee. After reading defendant his Miranda rights, police questioned defendant at the Benson police station. At first he denied any knowledge of the girls, but after hearing about Brazeal's arrest and being asked about “a particular mine shaft around Gleason,” he admitted that he and Brazeal had sexually assaulted the girls. He admitted having sex with “the brown haired girl” (Mandy) and stated that Brazeal had sex with both of them. He also said he and Brazeal had discussed killing the girls, after which defendant choked one and Brazeal strangled the other. He admitted, “I ... choked 'em.... There was one foot moving though I knew they was brain dead but I was getting scared.... They just wouldn't quit. It was terrible.” Defendant also admitted using his knife on both girls. After killing the girls, they dumped the bodies down a mine shaft. Defendant led the police to the abandoned mine shaft and expressed hope that the trial would not take long so he could “get the needle and get it over with.” After explaining how they had moved timbers covering the shaft to dump the bodies, he pointed out where he and Brazeal had burned the girls' clothes.

Police recovered the nude bodies from the muddy mine shaft. Autopsies showed that both girls had been sexually assaulted, strangled (the cause of death), and stabbed in the right eye. The strangulation marks showed repeated efforts to kill, as the grip was relaxed and then tightened again. Both victims suffered internal and external injuries to their necks. Mandy also had stomp marks on her body that matched the soles of defendant's shoes. Evidence was consistent with each victim being killed by a different perpetrator. In particular, Mary's body had a mark on the neck consistent with Brazeal's boot, whereas bruise marks on Mandy matched the soles of defendant's shoes. And more force was used in strangling Mandy than Mary. DNA analysis indicated that both defendants had intercourse with Mandy. Mary's body cavities were filled with mud, making DNA analysis impossible.

The jury found defendant guilty of two counts of kidnapping, one count of sexual conduct with a minor under the age of fifteen (Mandy), and two counts of premeditated first degree murder. It acquitted him on two counts of sexual assault (Mary and Mandy) and one count of sexual conduct with a minor under the age of fifteen (Mary). Defendant and the state stipulated to sentences on the noncapital offenses. The trial court accepted the stipulation and sentenced accordingly.

Following a sentencing hearing on the capital counts, the trial court rendered a detailed, twelve-page special verdict. The trial court found that the facts established beyond a reasonable doubt that (1) both adults engaged in sex with the girls, (2) the defendants agreed to kill both girls, (3) defendant intentionally killed Mandy, (4) Brazeal intentionally killed Mary, (5) both Mary and Mandy suffered great physical pain and mental anguish during strangulation, (6) defendant admitted choking both victims, (7) both bodies were stomped, with that of Mandy bearing the imprint of defendant's sneaker, (8) defendant stabbed both girls, Mandy through the right eye and Mary in the vicinity of the right eye, and (9) although alcohol was involved, defendant had sufficient recall and understanding of the events the next day. The trial court found three statutory aggravating circumstances for both murders: (1) victim under age fifteen (A.R.S. § 13–703(F)(9) (amended 1993)); (2) multiple homicides (A.R.S. § 13–703(F)(8) (1989)); and (3) especially heinous, cruel or depraved (A.R.S. § 13–703(F)(6) (1989)). The court rejected all the claimed mitigating circumstances offered by defendant, including law abiding past, cooperation with police, alcohol use, prior head injuries, and co-defendant Brazeal's twenty-year sentence. The trial court also expressly stated that it was unable to find any other mitigating circumstances not expressly offered by defense counsel. The court sentenced defendant to death for both murders.

TRIAL ISSUES

I. Change of Venue

Several months before trial, defendant made a motion for change of venue because of pretrial publicity, which the trial court denied, expressly granting leave to renew the motion. Defendant did not renew the motion. Appellate counsel urges us to hold that failure to change venue constituted fundamental error.

A trial court's ruling on a motion for change of venue based on pretrial publicity is a discretionary decision and will not be overturned absent an abuse of discretion and prejudice to the defendant. State v. Salazar, 173 Ariz. 399, 406, 844 P.2d 566, 573 (1992), cert. denied, 509 U.S. 912, 113 S.Ct. 3017, 125 L.Ed.2d 707 (1993). There is a two-step inquiry for pretrial publicity: (1) did the publicity pervade the court proceedings to the extent that prejudice can be presumed?; if not, then (2) did defendant show actual prejudice among members of the jury? The defendant has the burden of showing prejudice. State v. Bible, 175 Ariz. 549, 564, 566, 858 P.2d 1152, 1167, 1169 (1993), cert. denied, 511 U.S. 1046, 114 S.Ct. 1578, 128 L.Ed.2d 221 (1994); Ariz.R.Crim.P. 10.3(b). Because defendant made no effort to show actual prejudice of the jury at the time of trial and because our examination of the voir dire fails to show such prejudice, we consider whether the pretrial motion demonstrated a situation in which prejudice should be presumed. For a court to presume prejudice, defendant must show “pretrial publicity so outrageous that it promises to turn the trial into a mockery of justice or a mere formality.” Bible, 175 Ariz. at 563, 858 P.2d at 1166. To reach a conclusion on presumed prejudice, we review the entire record, without regard to the answers given in voir dire. Id. at 565, 858 P.2d at 1168.

Defendant cites the widespread media coverage of the incident and the trial, the age and popularity of the victims, and the impact the murders had in southern Arizona, including petition drives and fundraisers for the victims' families, as precluding the possibility of obtaining a fair and impartial jury. He submitted to the trial court a copy of a flyer for a fundraiser for the victims' funeral expenses, numerous newspaper articles, and petitions signed by hundreds of area residents requesting that a plea agreement not be given. The newspaper articles generally discussed facts of the incident, arrest, pretrial proceedings, and the plea agreement of co-defendant Brazeal. Defendant fails to show how these articles, the petitions, and the flyer resulted in a trial that was “utterly corrupted.” Id. (quoting Murphy v. Florida, 421 U.S. 794, 798, 95 S.Ct. 2031, 2035, 44 L.Ed.2d 589 (1975)). It would be strange to presume prejudice in a case in which the record negates actual prejudice. The relevant inquiry for actual prejudice is the effect of the publicity on the objectivity of the jurors, not the fact of the publicity itself. Bible, 175 Ariz. at 566, 858 P.2d at 1169. Defendant did not show that the jurors had “formed preconceived notions concerning the defendant's guilt and that they [could not] lay those notions aside.” State v. Chaney, 141 Ariz. 295, 302, 686 P.2d 1265, 1272 (1984). Although almost all of the prospective jurors had heard about the case, the voir dire by both the judge and defense counsel thoroughly probed the issue of publicity. There was extensive voir dire, both collectively and individually. The judge also asked specifically if any of the panel members had signed the “no plea bargain” petition. Anyone who had was subject to further voir dire. Only those prospective jurors that indicated that they could set aside the publicity and decide the case on the evidence presented remained on the jury panel. Jurors who could not be fair or impartial were dismissed. See State v. Atwood, 171 Ariz. 576, 632, 832 P.2d 593, 649 (1992), cert. denied, 506 U.S. 1084, 113 S.Ct. 1058, 122 L.Ed.2d 364 (1993). The empaneled jury was repeatedly warned to avoid media coverage of the trial. There is no basis on which to presume prejudice.

II. Death Qualifying Potential Jurors

During voir dire the panelists were asked whether they had conscientious or religious objections to the death penalty that would prevent them from voting for a first degree murder conviction. Only one panelist raised her hand; she faced further inquiry by the court and stated that it would not influence her decision on whether defendant was guilty. No prospective jurors were excused because of their views on capital punishment. Defendant argues that death-qualified juries are pro-prosecution and therefore biased and that a death-qualified jury is not drawn from a fair cross-section of the community. Because defense counsel made no objection on this basis, the issue would normally be waived. State v. Herrera, 176 Ariz. 9, 15, 859 P.2d 119, 125, cert. denied, 510 U.S. 966, 114 S.Ct. 446, 126 L.Ed.2d 379 (1993). However, defendant appears to be arguing that death qualification of a jury is fundamental error. There is no error, fundamental or otherwise. Defendant acknowledges that accepting his argument would require changing both state and federal case law. See Wainwright v. Witt, 469 U.S. 412, 424 n. 5, 105 S.Ct. 844, 852 n. 5, 83 L.Ed.2d 841 (1985); Salazar, 173 Ariz. at 411, 844 P.2d at 578.

III. Photographs of the Victims

The trial court admitted into evidence five autopsy photographs of the victims. Defendant made no objections at trial. Defendant argues on appeal that admission of these exhibits was fundamental error. Absent fundamental error, the admission of the exhibits cannot be raised on appeal if no objections were made at trial. State v. Harding, 137 Ariz. 278, 291, 670 P.2d 383, 396 (1983), cert. denied, 465 U.S. 1013, 104 S.Ct. 1017, 79 L.Ed.2d 246 (1984); see State v. Wilcynski, 111 Ariz. 533, 535, 534 P.2d 738, 740, cert. denied, 423 U.S. 873, 96 S.Ct. 141, 46 L.Ed.2d 104 (1975). We will find fundamental error only “when it goes to the foundation of the case, takes from a defendant a right essential to the defense, or is of such magnitude that it cannot be said it is possible for the defendant to have had a fair trial.” State v. Cornell, 179 Ariz. 314, 329, 878 P.2d 1352, 1367 (1994). Exhibit 36 is a photograph of the right side of Mandy's face, showing a laceration below the right eye and what appear to be stomp marks below the cheek. Exhibit 37 shows a tennis shoe stomp mark on Mandy's torso. Exhibit 38 shows a stomp mark on her left shoulder, along with a portion of her chin and cheek. Exhibit 39 shows bruise marks below the neck and around the chin of Mandy. Exhibit 40 includes the lower face, neck, and shoulder area of Mary and shows bruises and abrasions around the neck and chin area.

The admission of photographs requires a three-part inquiry: (1) relevance; (2) tendency to incite passion or inflame the jury; and (3) probative value versus potential to cause unfair prejudice. State v. Amaya–Ruiz, 166 Ariz. 152, 170, 800 P.2d 1260, 1278 (1990), cert. denied, 500 U.S. 929, 111 S.Ct. 2044, 114 L.Ed.2d 129 (1991); see Ariz.R.Evid. 401–03. The photographs are relevant if they aid the jury in understanding an issue. Ariz.R.Evid. 401; State v. Moorman, 154 Ariz. 578, 586, 744 P.2d 679, 687 (1987). These photographs show the manner of killing and the identity of the killer, particularly those photos showing stomp marks that match the shoes worn by defendant. They were introduced during the testimony of the forensic pathologist who conducted the autopsies. Although these exhibits show discoloration of the skin, abrasions, stomp and bruise marks, and cuts to the victims' right eyes, they are not gruesome enough to be inflammatory. “Such photographs cannot be deemed sufficiently gruesome to inflame the jurors because ‘the crime committed was so atrocious that photographs could add little to the repugnance felt by anyone who heard the testimony.’ ” State v. Lopez, 174 Ariz. 131, 139, 847 P.2d 1078, 1086 (1992) (citation omitted), cert. denied, 510 U.S. 894, 114 S.Ct. 258, 126 L.Ed.2d 210 (1993). Even if inflammatory, the probative value of the photos outweighs any prejudicial effect. See Ariz.R.Evid. 403; State v. Chapple, 135 Ariz. 281, 288–90, 660 P.2d 1208, 1215–17 (1983); State v. Steele, 120 Ariz. 462, 464, 586 P.2d 1274, 1276 (1978). The trial court did not abuse its discretion in admitting the photographs, Lopez, 174 Ariz. at 139, 847 P.2d at 1086, and certainly did not commit fundamental error.

IV. Verdict

Defendant contends that the jury was instructed on both premeditated murder and felony murder and, therefore, the verdicts of the murder counts may not have been unanimous. Defendant's argument is fundamentally flawed. Contrary to his assertion, the jury was not instructed on felony murder. The jury unanimously found defendant guilty of two premeditated murders. But even if defendant's factual predicate were correct, no error would be presented. Schad v. Arizona, 501 U.S. 624, 645, 111 S.Ct. 2491, 2504, 115 L.Ed.2d 555 (1991); State v. Lopez, 163 Ariz. 108, 111, 786 P.2d 959, 962 (1990); State v. Libberton, 141 Ariz. 132, 136, 685 P.2d 1284, 1288 (1984). “First degree murder is only one crime regardless of whether it occurs as premeditated or felony murder and the defendant is not entitled to a verdict on the precise manner in which the act was committed.” State v. Gillies, 135 Ariz. 500, 510, 662 P.2d 1007, 1017 (1983).

SENTENCING ISSUES

I. Constitutionality of Arizona's Death Penalty Statute

Defendant makes several arguments that we have recently rejected and now deal with summarily. A. There is no constitutional right to have a jury determine aggravating or mitigating circumstances. Walton v. Arizona, 497 U.S. 639, 647–49, 110 S.Ct. 3047, 3054–55, 111 L.Ed.2d 511 (1990); State v. Apelt, 176 Ariz. 369, 373, 861 P.2d 654, 658 (1993), cert. denied, 513 U.S. 834, 115 S.Ct. 113, 130 L.Ed.2d 59 (1994). B. Requiring defendants to prove any mitigating circumstances by a preponderance of the evidence is constitutional. Walton, 497 U.S. at 649–51, 110 S.Ct. at 3055–56. C. Although the state must prove aggravating circumstances beyond a reasonable doubt, State v. Herrera, 174 Ariz. 387, 397, 850 P.2d 100, 110 (1993), the court is not required to find beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating circumstances. State v. Walton, 159 Ariz. 571, 584, 769 P.2d 1017, 1030 (1989), aff'd, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990); cf. Franklin v. Lynaugh, 487 U.S. 164, 179, 108 S.Ct. 2320, 2330, 101 L.Ed.2d 155 (1988) (“[W]e have never held that a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required.”). D. Defendant contends that there is a lack of objective standards for determining whether aggravating circumstances outweigh mitigating circumstances. This argument has been rejected. Salazar, 173 Ariz. at 411, 844 P.2d at 578; State v. Correll, 148 Ariz. 468, 484, 715 P.2d 721, 737 (1986). E. Defendant argues that poor, male defendants are discriminated against in the application of the death penalty. A defendant alleging discrimination must prove “the decisionmaker[ ] in his case acted with discriminatory purpose.” McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 1767, 95 L.Ed.2d 262 (1987). Defendant offers no evidence that his economic status or gender contributed to his sentence or biased the sentencing process. See Jeffers v. Lewis, 38 F.3d 411, 419 (9th Cir.1994), cert. denied, 514 U.S. 1071, 115 S.Ct. 1709, 131 L.Ed.2d 570 (1995); see also State v. White, 168 Ariz. 500, 513, 815 P.2d 869, 882 (1991) (death penalty statute is gender neutral), cert. denied, 502 U.S. 1105, 112 S.Ct. 1199, 117 L.Ed.2d 439 (1992). Absent evidence of purposeful discrimination, this argument has been rejected. Apelt, 176 Ariz. at 373, 861 P.2d at 658. F. The death penalty is not cruel and unusual if it is not imposed in an arbitrary and capricious manner. Gregg v. Georgia, 428 U.S. 153, 195, 96 S.Ct. 2909, 2935–36, 49 L.Ed.2d 859 (1976); State v. Blazak, 131 Ariz. 598, 601, 643 P.2d 694, 697, cert. denied, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982). Although defendant argues that the death penalty is imposed arbitrarily and irrationally in Arizona, that argument has been rejected by this court. Salazar, 173 Ariz. at 411, 844 P.2d at 578. The death penalty statute narrowly defines death-eligible persons as those convicted of first degree murder, where the state has proven one or more statutory aggravating factors beyond a reasonable doubt. State v. Greenway, 170 Ariz. 155, 164, 823 P.2d 22, 31 (1991). G. This court does not conduct proportionality reviews. Salazar, 173 Ariz. at 416, 844 P.2d at 583. H. The especially heinous, cruel, or depraved aggravating circumstance (A.R.S. § 13–703(F)(6)) is constitutional. Walton, 497 U.S. at 655, 110 S.Ct. at 3058.

II. Independent Review

When a death sentence is imposed in Arizona, this court independently reviews the entire record for error, determines whether the aggravating circumstances have been proved beyond a reasonable doubt, considers any mitigating circumstances, and then weighs the aggravating and mitigating circumstances in deciding whether there are mitigating circumstances sufficiently substantial to call for leniency. State v. Brewer, 170 Ariz. 486, 500, 826 P.2d 783, 797, cert. denied, 506 U.S. 872, 113 S.Ct. 206, 121 L.Ed.2d 147 (1992).

III. Aggravating Factors

To make a defendant death eligible, the state must prove beyond a reasonable doubt at least one statutory aggravating circumstance. A.R.S. § 13–703(E) (1989) (amended 1993); Brewer, 170 Ariz. at 500, 826 P.2d at 797. In this case, the trial court found that the state proved three aggravating circumstances: A. Defendant was an adult at the time the crimes were committed and the victims were under the age of fifteen. A.R.S. § 13–703(F)(9) (1989) (amended 1993). B. Defendant has been convicted of one or more other homicides which were committed during the commission of the offense. A.R.S. § 13–703(F)(8) (1989). C. Defendant committed the offense in an especially heinous, cruel, or depraved manner. A.R.S. § 13–703(F)(6) (1989). The first two aggravators are not challenged on appeal. Our review of the record confirms that they were proved beyond a reasonable doubt. See State v. Kiles, 175 Ariz. 358, 369 n. 5, 857 P.2d 1212, 1223 n. 5 (1993), cert. denied, 510 U.S. 1058, 114 S.Ct. 724, 126 L.Ed.2d 688 (1994); see Greenway, 170 Ariz. at 167–68, 823 P.2d at 34–35 (explaining that the (F)(8) aggravating factor applies to multiple murders); State v. Gallegos, 178 Ariz. 1, 15, 870 P.2d 1097, 1111, cert. denied, 513 U.S. 934, 115 S.Ct. 330, 130 L.Ed.2d 289 (1994) (finding (F)(9) aggravating circumstance). We turn, then, to the third aggravating circumstance, which is challenged on appeal.

A. Especially Heinous, Cruel, or Depraved

1. Especially Cruel

The heinous, cruel, or depraved circumstance is phrased in the disjunctive, so if any one of the three factors is found, the circumstance is satisfied. Brewer, 170 Ariz. at 501, 826 P.2d at 798. Cruelty focuses on the victim and is found where there has been an infliction of pain and suffering in a wanton, insensitive, or vindictive manner. Correll, 148 Ariz. at 480, 715 P.2d at 733. A crime is especially cruel when the defendant “inflicts mental anguish or physical abuse before the victim's death.” Walton, 159 Ariz. at 586, 769 P.2d at 1032. Mental anguish results “especially if a victim experiences significant uncertainty as to the ultimate fate.” Brewer, 170 Ariz. at 501, 826 P.2d at 798. The trial court found cruelty, noting: The victims were alive for some minutes from the start of the fatal assaults. They experienced great physical pain and mental anguish as they fought to free themselves. There [was] frequent repositioning of the hands of the killers on the throats of the victims, and the reasserting of the pressure until they were unconscious. Medical evidence cannot establish the moment of cessation of consciousness, when, supposedly, physical pain ceases, but did show that death was not instantaneous. It was a cruel death for both victims, considering the extent of physical injuries to the bodies, much of which must have been experienced while conscious. The defendant entered into an agreement with Brazeal to kill both girls.... The defendant, just as surely as he did with Mandy ..., intended the killing of Mary.... The elements of these aggravating circumstances apply to the defendant as to both murders.

The forensic pathologist who conducted the autopsies testified that the cause of death for both girls was asphyxia due to manual strangulation. The pathologist testified that a victim of strangulation is generally conscious for a few minutes and that death usually takes twelve to fifteen minutes. There was evidence of repetitive gripping of Mary's neck. The abrasions on Mandy's neck were consistent with fingernail scratches. Both suffered injuries, including bruises, abrasions, and stab wounds near or in the right eye that occurred while still alive or shortly after death. Both victims also suffered hemorrhaging in the vaginal area, consistent with sexual activity before death. The stomp marks on Mandy's body, face, and neck were caused while the victim was alive or shortly after death. Mandy also suffered a complete fracture of the cranium and laceration of the skull. Both victims had injuries indicative of a struggle. The evidence showed that at least some of the injuries occurred while the victims were conscious, sufficient for a finding of cruelty under A.R.S. § 13–703(F)(6). See Kiles, 175 Ariz. at 371, 857 P.2d at 1225. “It is clear that [defendant] knew or should have known that his actions would cause suffering.” State v. Runningeagle, 176 Ariz. 59, 65, 859 P.2d 169, 175, cert. denied, 510 U.S. 1015, 114 S.Ct. 609, 126 L.Ed.2d 574 (1993).

2. Especially Heinous or Depraved

Heinousness and depravity “focus on the defendant's mental state and attitude as reflected by his words or actions.” Brewer, 170 Ariz. at 502, 826 P.2d at 799. We look for the following circumstances in determining whether a crime is especially heinous or depraved: (1) apparent relishing of the murder; (2) infliction of gratuitous violence on the victim beyond the murderous act itself; (3) mutilation of the victim's body; (4) senselessness of the crime; and (5) helplessness of the victim. State v. Gretzler, 135 Ariz. 42, 51–52, 659 P.2d 1, 10–11, cert. denied, 461 U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983); see also State v. Barreras, 181 Ariz. 516, 522, 892 P.2d 852, 858 (1995). The last two factors are usually less probative of defendant's state of mind than the first three factors. Barreras, 181 Ariz. at 522, 892 P.2d at 858; State v. King, 180 Ariz. 268, 287, 883 P.2d 1024, 1043 (1994) (“[O]nly under limited circumstances will the senselessness of a murder or helplessness of the victim ... lead to [finding heinousness or depravity].”). Witness elimination is also given some weight in finding the circumstance. State v. Ross, 180 Ariz. 598, 606, 886 P.2d 1354, 1362 (1994). However, the witness elimination factor only applies if: 1) the victim witnessed another crime and was killed to prevent testimony about that crime, 2) a statement by the defendant or other evidence of his state of mind shows witness elimination was a motive, or 3) some extraordinary circumstances show the murder was motivated by a desire to eliminate witnesses. Barreras, 181 Ariz. at 523, 892 P.2d at 859.

The trial court found that the stabbings to the eyes of the victims and stompings were acts of gratuitous violence and mutilations, that the killings were senseless, that the victims were helpless, and that defendant was motivated by a desire to eliminate witnesses—the “young lives were snuffed out, as insects, merely to eliminate them as witnesses.” In particular, the trial court noted in its special verdict that both victims were stabbed in the right eye—“gratuitous violence which, surely, could not have been calculated to lead to death.” The stab wound to Mandy's eye penetrated to the bone, causing the eyeball to completely collapse. The eyelid was not punctured, leading the forensic examiner to conclude that Mandy was most likely unconscious during the stabbing. The court also found the stomping to be “unnecessary and gratuitous violence, designed to still the unconscious bodies and assuage the killers' discomfort from the reflexes of death.” The court concluded, “The manner of killing and disposition of the bodies demonstrate an obdurate disregard for human life and human remains.” “The killing of a helpless child is senseless and demonstrates a disregard for human life satisfying two of the five Gretzler factors.” State v. Stanley, 167 Ariz. 519, 528, 809 P.2d 944, 953, cert. denied, 502 U.S. 1014, 112 S.Ct. 660, 116 L.Ed.2d 751 (1991); see also Kiles, 175 Ariz. at 373, 857 P.2d at 1227 (“The killing of two helpless children is senseless and demonstrates a total disregard for human life ... and is also evidence of a ‘shockingly evil state of mind.’ ”) (citations omitted). The two teenage girls were driven to a remote rural area in the middle of the night, sexually assaulted, stabbed, stomped, stripped, strangled, and thrown down a mine shaft. They were defenseless against the attacks, see Kiles, 175 Ariz. at 373, 857 P.2d at 1227, and suffered from gratuitous violence and needless mutilation.

In addition, defendant's statement to police revealed a motivation to eliminate the girls as witnesses. Defendant stated that his co-defendant proposed that the girls be killed because co-defendant had sexually assaulted them. The following dialogue occurred after defendant described the agreement to kill the girls: Defendant: He [Brazeal] said I'm gonna have to kill them. I said, “Why?” He said, “Well, I fucked this one and I fucked that one and they're gonna rat and they're gonna get you too.” .... Detective: What happened then, after that, after Randy told you that he wanted to kill them? Defendant: He grabbed one and I had to grab the other one ... and I choked 'em. Detective: Okay, you choked both of them? Defendant: No. I didn't choke both of them. I got one and he got the other one ... And they wouldn't quit. It was terrible. Detective: Okay, is that when you used the knife? Defendant: Yup. This dialogue shows witness elimination as a motivation, satisfying one of the three witness elimination factors. We have reviewed the entire record and affirm the findings of the trial court regarding the especially heinous and depraved nature of these crimes.

IV. The Presentence Report

Before referring to the specifics of the statutory and nonstatutory mitigating circumstances, we wish to comment on the presentence report in this case. Generally, the presentence report, prepared pursuant to Rule 26.4, Ariz.R.Crim.P., may be considered on matters of mitigation if it contains information favorable to the defendant. State v. Scott, 177 Ariz. 131, 145, 865 P.2d 792, 806 (1993), cert. denied, 513 U.S. 842, 115 S.Ct. 129, 130 L.Ed.2d 73 (1994); State v. Rumsey, 136 Ariz. 166, 171, 665 P.2d 48, 53 (1983), aff'd, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984). However, in this case, by stipulation of the parties in the trial court, the presentence report was sealed and defense counsel asked the trial court not to read it. In urging this procedure in the trial court, defendant's trial counsel argued that any mitigating evidence contained in the presentence report “can be adequately covered” by other exhibits and defense witnesses. Thus, pursuant to the stipulation and at the express request of defendant, the trial judge did not read the presentence report.

At oral argument, however, defendant's appellate counsel urged us to review the presentence report. We do not approve of the practice of withholding information from the trial court and then presenting it to the appellate court. Counsel are encouraged to present all arguably mitigating evidence to the trial court and not to hold some back for appeal. If counsel is concerned that there is detrimental information in the presentence report that would only be appropriate to consider on the noncapital counts, one possible solution would be to proceed to sentencing on the capital counts first. Even without such precautions, however, trial judges know that, on the capital counts, they are limited to statutory aggravating factors properly admitted and proved beyond a reasonable doubt. A.R.S. § 13–703(C) (Supp.1994); see Rumsey, 136 Ariz. at 172, 665 P.2d at 54. They may not consider other evidence as aggravating. See State v. Beaty, 158 Ariz. 232, 246, 762 P.2d 519, 533 (1988) (judge presumed to apply proper standard), cert. denied, 491 U.S. 910, 109 S.Ct. 3200, 105 L.Ed.2d 708 (1989). Consistent with our obligation in capital cases to independently weigh all potentially mitigating evidence, and pursuant to the request of defendant, we have examined and considered the presentence report that was withheld from the trial judge. Nothing in it persuades us that the trial court erred in imposing the death sentence. We turn, then, to a consideration of the mitigating factors.

V. Statutory Mitigating Circumstances

The sentencing judge must consider “any aspect of the defendant's character or record and any circumstance of the offense relevant to determining whether the death penalty should be imposed.” Kiles, 175 Ariz. at 373, 857 P.2d at 1227 (internal quotations omitted). A defendant must prove mitigating factors by a preponderance of the evidence. Greenway, 170 Ariz. at 168, 823 P.2d at 35. The sentencing court must, of course, consider all evidence offered in mitigation, but is not required to accept such evidence. State v. Ramirez, 178 Ariz. 116, 131, 871 P.2d 237, 252, cert. denied, 513 U.S. 968, 115 S.Ct. 435, 130 L.Ed.2d 347 (1994). Defendant raised only one statutory mitigating circumstance at sentencing: A. Capacity to appreciate wrongfulness of conduct. A.R.S. § 13–703(G)(1) (1989). On appeal, he raises additional statutory mitigating circumstances: B. Relatively minor participation. A.R.S. § 13–703(G)(3) (1989). C. No reasonable foreseeability that conduct would create grave risk of death to another. A.R.S. § 13–703(G)(4) (1989).

We address each in turn.

A. Capacity to Appreciate Wrongfulness of Conduct or to Conform Conduct to Requirements of the Law [44]

Defendant argues that his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired for three reasons: alcohol consumption, earlier head injuries, and mental disorders. This factor is disjunctive, “so that proof of incapacity as to either ability to appreciate or conform establishes the mitigating circumstance.” State v. Wood, 180 Ariz. 53, 70, 881 P.2d 1158, 1175 (1994).

1. Alcohol

Defendant argues that heavy consumption of alcohol seriously undermined “his ability to appreciate the stupidity and illegality of his conduct.” Opening Brief at 37. Voluntary intoxication may be mitigating if the defendant proves by a preponderance of the evidence that his “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.” A.R.S. § 13–703(G)(1); see also Atwood, 171 Ariz. at 650–51, 832 P.2d at 667–68. There was evidence that defendant and co-defendant consumed alcohol on the day of the murders. James Robinson, who was present at the campsite the night of the crimes, testified that defendant consumed beer and whiskey that night, but that he was not so drunk that he could not maneuver himself. Roy Waters, age fifteen, testified that he saw defendant drinking beer in the afternoon and that he appeared drunk. Cory Rutherford, age thirteen, testified that he observed defendant drinking out of a bottle. Various witnesses testified that co-defendant Brazeal was drinking and appeared intoxicated, more so than defendant. At approximately 12:30 a.m. on the morning of the murders, defendant, accompanied by Brazeal, purchased a six-pack of Budweiser and a pint of Jim Beam. The morning after the campout, the owner of the site where the girls camped found an empty quart bottle of whiskey, an empty half pint bottle of whiskey, and an empty package of Budweiser, but these items were never tied to defendant. Based entirely on defendant's self-reported consumption and self-reported blackout on the night of the crimes, a clinical psychologist opined that defendant's capacity to appreciate the wrongfulness of his conduct was significantly impaired at the time of the incident.

However, there is much evidence showing defendant was not significantly impaired by alcohol at the time of the murders and did not suffer a blackout at the time of the crimes. Defendant disposed of the bodies and burned the clothing of the victims, thus showing that he knew the conduct was wrongful. See Gallegos, 178 Ariz. at 17, 870 P.2d at 1113; Atwood, 171 Ariz. at 651, 832 P.2d at 668. He was able to accurately guide the officers back to the crime scene. Defendant also had substantial recall of the events, FN2 see State v. Herrera, 176 Ariz. 21, 33, 859 P.2d 131, 143, cert. denied, 510 U.S. 951, 114 S.Ct. 398, 126 L.Ed.2d 346 (1993), and attempted to cover up the crimes, see Salazar, 173 Ariz. at 413, 844 P.2d at 580, causing the trial court to find that defendant's capacity to appreciate wrongfulness was not substantially impaired. State v. Cook, 170 Ariz. 40, 64, 821 P.2d 731, 755 (1991), cert. denied, 506 U.S. 846, 113 S.Ct. 137, 121 L.Ed.2d 90 (1992). “[S]tacked against the testimony offered in mitigation by defendant is the evidence that defendant did know that his ... conduct was wrongful.” Atwood, 171 Ariz. at 651, 832 P.2d at 668. FN2. For example, during the initial interview, defendant corrected the chronology of events: Detective: So, okay, you guys killed the girls and burned their clothes, threw them down the mine shaft. Defendant: Killed them. Threw them down the mine shaft. Burned their clothes. We agree with the trial court that defendant failed to show that he was significantly impaired during the time of the crimes so as to meet the statutory mitigation requirements.

2. Head Injuries

Head injuries that lead to behavioral disorders may be considered a mitigating circumstance. See State v. Rockwell, 161 Ariz. 5, 15, 775 P.2d 1069, 1079 (1989). Evidence indicates that defendant suffered three head injuries since 1982. A neurologist who reviewed the medical records testified that defendant had suffered a compound depressed skull fracture, underwent surgery, and suffered permanent damage in 1982 from being hit with a heavy beer mug. In 1986, he struck his head on the pavement after jumping onto the hood of his wife's moving vehicle. About a year before the murders, he suffered a severe head injury when another wife hit him with a cast iron skillet. Other head injuries alleged by defendant were uncorroborated. According to the neurologist, such injuries “could impair his ability to understand his environment, to interpret it correctly and to respond correctly to it,” potentially manifesting in decreased control of impulsive behavior and decreased cognitive ability. Alcohol use increases any lack of control. The neurologist concluded that defendant's brain “integrity” was moderately to severely impaired due to previous brain or head injuries, resulting in impulsive behavior. A clinical psychologist said that defendant suffers from an inability to control impulse and that this problem is exacerbated by alcohol.

The trial court found: “Having suffered head injuries and having difficulty with impulse control sheds little light on defendant's conduct in this case. The evidence does not show defendant acted impulsively, only criminally, with evil motive.” While we give more mitigating weight to this element than did the trial court, it is substantially offset by the fact that defendant's test results showed that he has above average intelligence (an I.Q. of 128), and the facts show that he did not exhibit impulsive behavior in the commission of the crimes. See Brewer, 170 Ariz. at 505–06, 826 P.2d at 802–03. Defendant appreciated the wrongfulness of his conduct, id. at 506, 826 P.2d at 803, as evidenced the next day by his comment to the interrogating officer, “I ... choked 'em.... There was one foot moving though I knew they was brain dead but I was getting scared.... And they just wouldn't quit. It was terrible.” His prior head injuries do not show that defendant was unable to conform or appreciate the wrongfulness of his conduct.

3. Mental Disorders

While a patient at a Texas hospital in 1971, defendant was diagnosed with a passive-aggressive personality. In 1978, he was re-admitted to the same hospital for psychotic depression. Defendant reported feeling suicidal, along with a fear that he might harm someone else. The final diagnosis of the second hospitalization was that defendant suffered from a personality disorder with differential to include passive-aggressive personality, antisocial personality, and borderline personality. In a proceeding to determine defendant's competency to stand trial, a clinical psychologist found that defendant “does not appear to be suffering from any psychotic disorder but he has a history of depression and other serious psychological problems,” including a pattern of impulsivity. Defendant's Trial Exhibit 24. Defendant also claimed to have attempted suicide twice. The psychologist testified that defendant suffered from a borderline personality disorder and depression. He concluded that defendant is a “seriously dysfunctional individual.” Character or personality disorders alone are generally not sufficient to find that defendant was significantly impaired. Apelt, 176 Ariz. at 377, 861 P.2d at 662. A mental disease or psychological defect usually must exist before significant impairment is found. Id. Despite this evidence, “[t]his case does not involve the same level of mental disease or psychological defects considered in other cases in which the § 13–703(G)(1) mitigating circumstance was found to exist.” Brewer, 170 Ariz. at 505, 826 P.2d at 802. Defendant failed to show that his ability to control his actions was substantially impaired; his actions showed that he appreciated the wrongfulness of his conduct. Evidence showed that defendant was familiar with the mine shaft and discussed killing the girls with Brazeal. Defendant sexually assaulted Mandy, choked her and stomped on her body, and agreed that Mary should also be killed. Defendant then attempted to cover up the crimes by dumping the bodies in the mine shaft and burning the girls' clothes. “The record reveals that defendant made a conscious and knowing decision to murder the victim[s] and was fully aware of the wrongfulness of his actions.” Id. at 506, 826 P.2d at 803. This evidence fails to meet the statutory burden by a preponderance of the evidence.

B. Relatively Minor Participation

Defendant raises this argument for the first time on appeal. According to A.R.S. 13–703(G)(3), mitigation exists where the defendant shows that he was “legally accountable for the conduct of another ..., but his participation was relatively minor, although not so minor as to constitute a defense to prosecution.” The argument consists of one sentence in the brief: “Given the overwhelming possibility that the jury's guilty verdict was based upon the felony murder theory, this factor should have been considered in mitigation.” Opening Brief at 37. However, as we have previously noted, the trial court did not instruct the jury on felony murder. The jury found defendant guilty of two counts of first degree premeditated murder. Defendant brutally killed Mandy and intended that Mary be killed. His actions were substantial; we therefore reject this argument. See Herrera, 176 Ariz. at 20, 859 P.2d at 130.

C. No Reasonable Foreseeability that Conduct Would Create Grave Risk of Death to Another

In an attempt to come within the ambit of A.R.S. § 13–703(G)(4), defendant argues for the first time on appeal that “[a]t the time this episode first began, it does not appear that any plan existed to cause harm or fatal injury to the victims.” Opening Brief at 38. He cites no facts or evidence to support this argument. After a review of the entire record, we also find no facts or evidence to support this statutory mitigating circumstance. See State v. Greenawalt, 128 Ariz. 150, 173, 624 P.2d 828, 851, cert. denied, 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981).

VI. Nonstatutory Mitigating Circumstances

Nonstatutory mitigating factors raised at trial and discussed in the special verdict were: 1. historic substance abuse; 2. lack of prior felony record; 3. cooperation with police; 4. co-defendant Brazeal's twenty-year sentence; 5. leniency in sentencing; 6. ability to be rehabilitated; 7. difficulty in early years and prior home life; 8. mental condition and behavior disorders; 9. good character of defendant; 10. good behavior while incarcerated; and 11. lack of future dangerousness if confined to prison.

The trial court rejected all of these. The trial court also stated, “[T]his court is unable to glean any mitigating circumstances not suggested by [defendant's] counsel.” In conclusion, the trial court found that even if any or all of the mitigating circumstances existed, “balanced against the aggravating circumstances found to exist, they would not be sufficiently substantial to call for leniency.” Additional nonstatutory mitigating circumstances raised on appeal are: 12. felony murder theory; 13. remorse; and 14. lack of evidence showing that defendant actually killed or intended to kill Mary. As part of our independent review, we will address each alleged mitigating circumstance.

1. Historic Substance Abuse

If impairment does not rise to the level of a statutory mitigating circumstance, the trial court should still consider whether such impairment constitutes nonstatutory mitigation, when viewed in light of defendant's alleged history of alcohol and drug abuse. Gallegos, 178 Ariz. at 17, 870 P.2d at 1113. Various relatives and acquaintances testified that defendant was an alcoholic and that he considered himself to be one. A clinical psychologist agreed with that assessment. Other acquaintances testified that they had seen defendant drunk before. Defendant claims to have consumed at least a pint of whiskey every day and to have used various illicit drugs in the past. In 1977, he was arrested twice for drunkenness; the cases were dismissed. Defendant was convicted of driving while intoxicated in 1986 and 1989. He was arrested in 1991 for driving under the influence of alcohol and the case was dismissed. As we have recommended in past cases, the trial judge here was very thorough in considering the statutory and nonstatutory mitigating circumstances. Gallegos, 178 Ariz. at 22–23, 870 P.2d at 1118–19. With respect to the item of historic substance abuse, the trial court stated in its special verdict, “Alcohol abuse over an extended period of defendant's life, and his drinking at the time of the killings are not mitigating circumstances under the facts of this case.” We have reviewed the entire record and agree with the trial court that defendant has failed to prove his alcohol or drug use is a nonstatutory mitigating factor.

2. Lack of Prior Felony Record

Lack of prior felony convictions may constitute a nonstatutory mitigating circumstance. Scott, 177 Ariz. at 144, 865 P.2d at 805. However, “arrests or misdemeanor convictions may be considered when lack of felony convictions ‘is advanced as a mitigating factor.’ ” Id. at 145, 865 P.2d at 806 (quoting State v. Rossi, 171 Ariz. 276, 279, 830 P.2d 797, 800, cert. denied, 506 U.S. 1003, 113 S.Ct. 610, 121 L.Ed.2d 544 (1992)). Although defendant has no prior felony conviction, he also does not have a law abiding past. He has a history of misdemeanor arrests and offenses including a conviction for disorderly conduct in 1973, two arrests for public drunkenness in 1977, and arrests for assaults on two former wives, one in 1978 and the other in 1986. Unlike the trial court, in our independent reweighing, we conclude that this thirty-eight year old defendant's lack of a felony record is a nonstatutory mitigating circumstance, but the weight to be given it is substantially reduced by his other past problems with the law. See Scott, 177 Ariz. at 144–45, 865 P.2d at 805–06; Cook, 170 Ariz. at 63 n. 12, 821 P.2d at 754 n. 12.

3. Cooperation with Police

Defendant's cooperation with police followed an initial denial of any knowledge of the girls. He only confessed after hearing that co-defendant had been arrested. This does not constitute a mitigating circumstance. State v. Spencer, 176 Ariz. 36, 45, 859 P.2d 146, 155 (1993), cert. denied, 510 U.S. 1050, 114 S.Ct. 705, 126 L.Ed.2d 671 (1994); Atwood, 171 Ariz. at 653, 832 P.2d at 670.

4. Disparity of Co-defendant's Sentence

Although sentences of co-defendants may be considered in mitigation, Cook, 170 Ariz. at 65, 821 P.2d at 756; State v. Watson, 129 Ariz. 60, 64, 628 P.2d 943, 947 (1981), where the difference in sentences is a result of appropriate plea bargaining, it may not be considered in mitigation. State v. Gillies, 142 Ariz. 564, 571, 691 P.2d 655, 662 (1984), cert. denied, 470 U.S. 1059, 105 S.Ct. 1775, 84 L.Ed.2d 834 (1985). “[I]t is not mere disparity between the two sentences that is significant, but, rather, unexplained disparity.” State v. Schurz, 176 Ariz. 46, 57, 859 P.2d 156, 167, cert. denied, 510 U.S. 1026, 114 S.Ct. 640, 126 L.Ed.2d 598 (1993). Where the first degree murder is found especially cruel, heinous, or depraved, “even unexplained disparity has little significance.” Id. The sentence negotiated by co-defendant was the result of a disparity of evidence at the time of co-defendant's trial, causing the state to enter into a plea agreement. In addition, it must be remembered that co-defendant was twenty years old. But see Walton, 159 Ariz. at 589, 769 P.2d at 1035 (affirming death sentence of twenty year old defendant). Defendant was thirty-eight.

5. Leniency in Sentencing

The trial court correctly held that “the claimed right to leniency in the context of the alleged harshness and disproportionality of the death penalty is not a mitigating circumstance.” Special Verdict at 8.

6. Prospect for Rehabilitation Although a criminal justice consultant testified that defendant has the potential for rehabilitation, the trial court found such prospects slim. We agree with the trial court. After a long history of alcohol abuse and tumultuous behavior, defendant showed no evidence of ability to rehabilitate. See Atwood, 171 Ariz. at 654, 832 P.2d at 671 (“[D]efendant's interest in rehabilitation was insufficient to call for leniency when compared to the harm caused by his conduct and his continued threat to the public peace.”).

7. Family History

According to a clinical psychologist, defendant had a chaotic and abusive childhood, never knowing his father and having been raised by various family members. A difficult family background alone is not a mitigating circumstance. State v. Wallace, 160 Ariz. 424, 427, 773 P.2d 983, 986 (1989), cert. denied, 494 U.S. 1047, 110 S.Ct. 1513, 108 L.Ed.2d 649 (1990). This can be a mitigating circumstance only “if a defendant can show that something in that background had an effect or impact on his behavior that was beyond the defendant's control.” Id. Adult offenders have a more difficult burden because of the “greater degree of personal responsibility for their actions.” Gretzler, 135 Ariz. at 58, 659 P.2d at 17. Family history in this case does not warrant mitigation. Defendant was thirty-eight years old at the time of the murders. Although he may have had a difficult childhood and family life, he failed to show how this influenced his behavior on the night of the crimes. See White, 168 Ariz. at 513, 815 P.2d at 882.

8. Mental Condition and Behavior Disorders

Although this element was rejected by the trial court, we conclude, pursuant to our independent review, that defendant's documented mental disorders are entitled to some weight as nonstatutory mitigation. See discussion supra part V(A)(3) (statutory mitigation).

9. Good Character of Defendant

To impeach this alleged mitigating circumstance, the state called two former wives of defendant. Both testified that defendant had physically abused them, threatened them with death, and threatened that their bodies would be thrown down a mine shaft. Defendant failed to prove good character by a preponderance of the evidence.

10. Good Behavior while Incarcerated

Although long-term good behavior during post-sentence incarceration has been recognized as a possible mitigating factor, Watson, 129 Ariz. at 63–64, 628 P.2d at 946–47, we, like the trial court, reject it here for pretrial and presentence incarceration. See State v. Lopez, 175 Ariz. 407, 416, 857 P.2d 1261, 1270 (1993) (“[D]efendant would be expected to behave himself in county jail while awaiting [sentencing].”), cert. denied, 511 U.S. 1046, 114 S.Ct. 1578, 128 L.Ed.2d 221 (1994).

11. Lack of Future Dangerousness if Confined to Prison

Although defendant presented some evidence that he would no longer be dangerous if confined to prison for life, we find that he fails to prove this by a preponderance of the evidence, particularly in view of his history of violence and threats of violence and his actions in this case.

12. Felony Murder Instruction

Defendant claims that a felony murder instruction was given and that this should be considered in mitigation. See supra part V(B) (statutory mitigation). However, there was no felony murder instruction.

13. Remorse

Although remorse may be considered in mitigation, Brewer, 170 Ariz. at 507, 826 P.2d at 804; State v. Tittle, 147 Ariz. 339, 344, 710 P.2d 449, 454 (1985), defendant failed to prove by a preponderance of the evidence that he was remorseful. A criminal justice consultant testified that defendant had feelings of remorse. In addition, during defendant's statement to the court prior to sentencing, defendant stated, I think it's very clever the way I have been made a scapegoat in this case. I do not deny culpability, but there was no premeditation on my part. What I am guilty of is being an irresponsible person for most of my life, running from responsibility, living in a fantasy world and it was my irresponsibility on the night that this incident occurred that involved me in the incident. There is no words that can express the grief and the sorrow and the torment I have experienced over this, but I am just going to leave everything in the hands of God because that's where it is anyway. Defendant's statement and the testimony of the consultant were inadequate to prove the mitigating circumstance by a preponderance of the evidence.

14. Lack of Evidence Showing that Defendant Actually Killed or Intended to Kill Mary

Although defendant claims that there was insufficient evidence to show that he killed or intended to kill Mary, the evidence, including his own statement to police, proves that he and Brazeal agreed that the girls must be killed. In his statement to the detective, defendant acknowledged the agreement to kill the girls and admitted stabbing both girls. Clearly, he was an active participant in the killing of both girls. The jury, in its guilty verdict, and the trial court, in its special verdict, so found. After a review of the entire record, we agree that defendant personally killed Mandy and, at the least, intended that Mary be killed.

CONCLUSION

There are three statutory aggravating circumstances. There are no statutory mitigating circumstances. We have considered the nonstatutory mitigating factors of lack of prior felony record and his mental condition and behavior disorders. We find the mitigation, at best, minimal. Certainly, there is no mitigating evidence sufficiently substantial to call for leniency. We have searched the record for fundamental error and found none. The convictions and sentences are affirmed.

Stokley v. Ryan, 659 F.3d 802 (9th Cir. 2011). (Habeas)

Background: Following affirmance of murder conviction and sentence of death, 182 Ariz. 505, 898 P.2d 454, petition for writ of habeas corpus was filed. The United States District Court for the District of Arizona, Frank R. Zapata, Senior District Judge, 2009 WL 728492, denied the petition. Petitioner appealed.

Holdings: The Court of Appeals, McKeown, Circuit Judge, held that: (1) assuming petitioner's state petition exhausted the sentencing-phase ineffective assistance claim in his federal petition, review was confined to record before state courts; (2) assuming petitioner was not barred from presenting new evidence, the claim would be procedurally barred; and (3) sentencing counsel's investigation into mitigating factors did not fall below an objective standard of reasonableness. Affirmed.

McKEOWN, Circuit Judge:

Richard Dale Stokley was sentenced to death for the murder of two thirteen-year-old girls. Stokley challenges that sentence under 28 U.S.C. § 2254, arguing that he should receive an evidentiary hearing to develop the claim that his trial counsel provided ineffective assistance at sentencing by failing adequately to investigate and present evidence that Stokley suffered from organic brain damage at the time of the murders. Although trial counsel's actions may seem imperfect in hindsight, counsel undertook an extensive investigation into Stokley's mental health, arranged for him to be evaluated by a neuropsychologist, and presented testimony from a psychologist and a neurologist. Under the demanding standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Stokley has not presented a colorable claim that counsel's actions were constitutionally ineffective. We affirm the district court's denial of an evidentiary hearing.

Background

On July 7, 1991, Stokley was in Elfrida, Arizona, working as a stuntman in Independence Day celebrations. According to Stokley, he asked Randy Brazeal to drive him to a location where Stokley could bathe. On the way there, they picked up Mandy and Mary, two thirteen-year-old girls Brazeal had met earlier that evening. Stokley and Brazeal raped, beat, and strangled the girls and dumped their bodies down an abandoned mine shaft. The next day, Brazeal turned himself in to the police, and Stokley was arrested in a nearby town. Stokley confessed his involvement in the crimes, admitting that he raped one of the girls, choked her to death, and stabbed both victims with his knife. Brazeal pled guilty to second-degree murder and was sentenced to twenty years in prison. Stokley proceeded to trial. A jury convicted him of two counts of first degree murder, one count of sexual conduct with a minor, and two counts of kidnaping.

The state sought the death penalty. At sentencing, Stokley's trial counsel endeavored to establish numerous mitigating factors. Among other things, counsel presented evidence that Stokley had a difficult childhood, that he was plagued with a history of substance abuse, that he was intoxicated at the time of the crimes, and that he had the ability to be rehabilitated. Counsel also placed considerable weight on the argument that Stokley's “capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law,” Ariz.Rev.Stat. § 13–751(G)(1), was impaired by both a personality disorder and head injuries. Counsel relied on two medical experts to establish that Stokley did not have the capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law at the time of the crime. Dr. Michael Mayron, a neurologist, testified that Stokley “suffered multiple head injuries throughout his life,” including a blow to the frontal area of his brain with a car jack and an incident in which he suffered “a left parietal compound depressed skull fracture with left parietal lobe contusion” after being hit with a beer mug. Mayron believed that these injuries caused moderate or severe brain damage and weakened Stokley's ability to control his impulses and emotions. Dr. Larry Morris, a psychologist, testified that in his opinion Stokley “experience[s] difficulties with impulse control and poor judgment” and “tends not to study consequences well but responds impulsively instead.” More specifically, Morris diagnosed Stokley with borderline personality disorder and explained that the impulsivity associated with that condition, especially as exacerbated by stress and alcohol, “make[s] it difficult for [Stokley] to conform his behavior to ... th[e] law.”

In addition, counsel sent Stokley to Dr. John Barbour, who administered at least one neuropsychological test. Barbour's test supplemented a report prepared by Dr. Huntley Hoffman, who evaluated Stokley shortly before the murders. Hoffman found that Stokley “has ‘superior’ intelligence” and that he did not have brain damage but might suffer from a “mild to moderate deficit” in “short and long term left brain memory.” Under Arizona's procedure at the time, the sentencing judge determined the applicable aggravating and mitigating factors. The judge found three aggravating factors—the victims were minors; Stokley committed multiple homicides; and Stokley committed the crimes in an especially heinous, cruel, or depraved manner. The judge determined that no factors substantially weighed in favor of mitigation and that even if all of the mitigating circumstances existed, “balanced against the aggravating circumstances found to exist, they would not be sufficiently substantial to call for leniency.” Regarding Stokley's claim of mental incapacity, the court concluded that Stokley's “capacity to appreciate the wrongfulness of his conduct was not significantly impaired” at the time of the crime. In the sentencing court's view, “[h]aving suffered head injuries and having difficulty with impulse control shed [ ] little light on [Stokley's] conduct in this case,” because the evidence “does not show that [Stokley] acted impulsively, only criminally, with evil motive.” The court sentenced Stokley to death.

The Arizona Supreme Court affirmed the death sentence on direct appeal. The court reviewed Stokley's history of head injuries, the mental health evidence, and the testimony of Mayron and Morris and recognized that, in appropriate circumstances, “[h]ead injuries that lead to behavioral disorders may be considered ... mitigating.” State v. Stokley, 182 Ariz. 505, 898 P.2d 454, 470 (1995) (“ Stokley I ”). Although the court gave “more mitigating weight to this element than did the trial court,” it concluded that any “mitigating weight” from Stokley's incapacities “is substantially offset by the fact that [Stokley] ... has above average intelligence” and by facts which show that Stokley “made a conscious and knowing decision to murder the victims and was fully aware of the wrongfulness of his actions,” “did not exhibit impulsive behavior in the commission of his crimes,” and was able “to control his actions” at the time. Id. at 470–71 (quotation marks omitted). In reaching these conclusions, the court noted that Stokley discussed killing Mandy and Mary with Brazeal before the murders occurred and that he attempted to cover up the crimes. See id. To support its finding of non-impulsiveness, the court also expressly relied on Stokley's “comment to the interrogating [police] officer, ‘I ... choked ‘em ... There was one foot moving though I knew they was brain dead but I was getting scared.... And they just wouldn't quit. It was terrible.’ ” Id. at 470.

Stokley's state post-conviction petitions argued, among other things, that trial counsel provided ineffective representation by failing to argue “Stokley's alleged mental incapacity as mitigation for sentencing purposes.” The state post-conviction relief (“PCR”) court rejected this claim on three grounds. It held that the claim was “precluded ... because the Arizona Supreme Court rejected the factual basis of[the] claim on direct appeal.” The PCR court also denied the claim “for lack of sufficient argument” and as “meritless for lack of a showing of prejudice.” On appeal, the state supreme court summarily denied relief. Stokley then filed a § 2254 petition in the district court, raising a melange of claims. In an initial ruling, the district court held that many of these claims were either procedurally barred or obviously without merit. It concluded, however, that four claims were both “properly exhausted and appropriate for review on the merits following supplemental briefing.” Stokley conceded that three of these four arguments could not survive review under the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Stokley's remaining argument was that his trial counsel “failed to adequately investigate [Stokley's] mental state at the time of the crime and thereby failed to present compelling mitigation evidence at sentencing.” Stokley sought an evidentiary hearing on this claim.

Stokley introduced the declarations of four medical experts in support of his request for a hearing. A supplemental declaration from Morris said that “additional neuropsychological testing” was needed to pinpoint Stokley's brain injuries and their behavioral effects, and that he “recommended to Mr. Stokley's lawyers that [organic deficits] be investigated and that consideration be given to having Mr. Stokley tested by a neuropsychologist.” Mayron also provided a new declaration, which stated that he “d[id] not recall” being “consulted by Mr. Stokley's attorneys between the time of [his] examination of Mr. Stokley and the [sentencing hearing], and [that] if [counsel] had contacted [Mayron, he] would have recommended that Mr. Stokley be examined by a qualified neuropsychologist.” The other two declarations used neuropsychological testing to diagnose Stokley with organic damage to both his frontal and parietal lobes, asserted that the previously undiscovered frontal lobe injury had severe behavioral effects, and concluded that because of his brain damage, Stokley was not in control of his actions at the time of his crimes. After considering these declarations, the district court denied Stokley's request for an evidentiary hearing. The district court declined to decide whether an evidentiary hearing was precluded by 28 U.S.C. § 2254(e)(2), which bars a hearing “[i]f the applicant has failed to develop the factual basis of a claim in State court proceedings” and the claim relies on neither “a new rule of constitutional law” nor “a factual predicate that could not have been previously discovered through the exercise of due diligence.” See Stokley v. Ryan, No. CV–98–332, 2009 WL 728492, at *22 (D.Ariz. Mar. 17, 2009) (“ Stokley II ”). Instead, after thorough and careful review of Stokley's petition, the district court held that Stokley had not presented a colorable claim of ineffective assistance of counsel. See id. at *22–*30.

Regarding the ineffectiveness prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the district court found “that [trial] counsel undertook a reasonable investigation into [Stokley's] social, medical, and mental health history,” in part by securing the opinions of Mayron and Morris and the test administered by Barbour. Stokley II, 2009 WL 728492, at *25. The district court rejected Stokley's specific claim that neuropsychological testing was necessary to an adequate presentation of mitigating evidence because “neither Dr. Morris nor Dr. Mayron affirmatively recommended to counsel that [Stokley] be examined only by a neuropsychologist.” Id. at *26. The court therefore held that trial counsel “adequately investigated [Stokley's] mental state” and properly “used the experts ... to argue that [Stokley] was impulsive and that his ability to conform his conduct to the requirements of law was substantially impaired.” Id. at *27. The district court also held that Stokley could not prove prejudice from any ineffectiveness on the part of trial counsel. See id. at *28–*30. It did, however, issue a certificate of appealability regarding Stokley's claim of ineffective assistance at sentencing, see id. at *30–*31, and Stokley appealed.

Following oral argument in this appeal, the Supreme Court decided Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011). The Court held that, when a petitioner seeks habeas relief under 28 U.S.C. § 2254(d)(1), federal courts are restricted to the state court record when deciding claims previously adjudicated on the merits by the state courts. In supplemental briefing, the state argues that Pinholster applies to preclude consideration of the declarations Stokley supplied for the first time in federal court. Stokley, by contrast, now contends that his federal claim of ineffective assistance at sentencing is fundamentally new and different from the ineffective assistance claim presented to the state courts in his supplemental petition. If accepted, Stokley's argument would mean that Pinholster does not apply to his federal claim. We need not determine whether Pinholster bars the consideration of Stokley's new evidence, because the result is the same in either case. If Pinholster applies, it directly bars Stokley from receiving the only relief he seeks—a hearing to present new evidence in federal court. And if Stokley is correct that Pinholster does not apply because his federal ineffective assistance claim was never presented to the state courts, relief still evades him. Even assuming both that Stokley can show cause and prejudice for his failure to present the claim to the state courts and that he has satisfied the diligence requirement of § 2254(e)(2), Stokley has not presented a colorable claim of ineffective assistance of counsel. The net result is that Stokley is not entitled to an evidentiary hearing even if we may consider the evidence presented for the first time to the district court.

Analysis

I.

The Rule in Pinholster AEDPA provides that a federal habeas application may be “granted with respect to any claim that was adjudicated on the merits in State court proceedings” if the adjudication of that claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). In Pinholster, the Supreme Court held that § 2254(d)(1) “requires an examination of the state-court decision at the time it was made” and on the same record. See 131 S.Ct. at 1398. As the Court explained, “[i]t would be strange to ask federal courts to analyze whether a state court's adjudication resulted in a decision that unreasonably applied federal law to facts not before the state court.” Id. at 1399. Pinholster also held that this bar on new evidence is coterminous with the scope of § 2254(d). If a petitioner presents a claim that was not adjudicated on the merits by the state courts, federal review is not necessarily limited to the state record. See id. at 1401. Such is the case, for instance, when a petitioner presents a new and different claim in federal court. See id. at 1401 n. 10. In that situation, “the discretion of federal habeas courts to consider new evidence,” id. at 1401, is instead cabined by the requirement in § 2254(e)(2) that the petitioner must have attempted “to develop the factual basis of [the] claim in State court.”

The Court in Pinholster left at least two questions unresolved. The Court expressly reserved the issue of “where to draw the line between new claims and claims adjudicated on the merits” by the state courts. Pinholster, 131 S.Ct. at 1401 n. 10. Put another way, Pinholster leaves open the question of how to distinguish between a claim that was exhausted in state court and a claim that is transformed by new evidence into a different and novel contention presented for the first time in federal court. The Court in Pinholster also had no occasion to speak to the role that new evidence plays in federal habeas proceedings on those rare occasions when an evidentiary hearing is proper. These unresolved issues are potentially pertinent to our resolution of this case. In his opening brief, Stokley assumed that his ineffective assistance claim had been fairly presented to the state court even though “[n]one of the facts presented in support of the claim were presented in state court.” Indeed, in the district court, Stokley affirmatively argued that his claim was exhausted, and the state agreed. Stokley also posited that he satisfied the requirements of § 2254(e)(2) and therefore should be permitted to supplement the record. After Pinholster, we requested supplemental briefing. Not surprisingly, Stokley shifted his position and now argues that his federal petition presented a new claim that had not yet been adjudicated, such that he remains entitled to an evidentiary hearing. Stokley relies on pre- Pinholster cases in which we provided a framework for assessing whether a claim is unexhausted because new evidence fundamentally altered the factual underpinnings of the claim. See, e.g., Beaty v. Stewart, 303 F.3d 975, 989–90 (9th Cir.2002); Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir.1999) (citing Vasquez v. Hillery, 474 U.S. 254, 260, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986)). Stokley argues that, under this framework, the ineffective assistance claim in his federal petition is fundamentally different from the claim he presented to the state courts.

We decline to reach this issue or to decide the antecedent question of whether Pinholster impliedly overruled our line of cases interpreting the “fundamentally altered” standard. We do so because Stokley is not entitled to relief if Pinholster applies, and he is similarly not entitled to relief even if we construe his federal claim as unexhausted such that we may consider the supplemental evidence he offered to the district court.FN1 In addition, although evidentiary hearings were rare even before Pinholster, the circuits had been essentially uniform in holding that in the appropriate case new evidence from such a hearing could be considered in determining whether a claim could survive review under § 2254(d). See Pinholster, 131 S.Ct. at 1417 (Sotomayor, J., dissenting). It was against this backdrop that Stokley filed his habeas petition and litigated it in the district court. Recognizing that Pinholster dramatically changed the aperture for consideration of new evidence, and further recognizing that this is a capital case, we believe it prudent to consider alternative avenues for resolution.

FN1. There is also a third possibility—that Pinholster does not apply because one or both of the PCR court's enunciated procedural holdings constitutes an adequate and independent state bar to relief. See, e.g., Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (“[T]he adequate and independent state ground doctrine requires the federal court to honor a state [procedural] holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.”). Because neither party made this argument on appeal, we assume without deciding that the state courts adjudicated Stokley's ineffective assistance claim on the merits. See, e.g., Ocampo v. Vail, 649 F.3d 1098, 1100 n. 11 (9th Cir.2011) (declining to consider a potential procedural default not raised by the state).

II. If Pinholster Applies: Review Restricted to the State Record

In this section, we assume that Stokley's state petition exhausted the sentencing-phase ineffective assistance claim in his federal petition, because the essence of the claim—that counsel provided ineffective assistance at sentencing by failing adequately to investigate and argue Stokley's mental health as a mitigating factor—remains the same. Pinholster therefore applies, with two consequences. Our review is confined to the record before the state courts. Pinholster, 131 S.Ct. at 1398. As the Court bluntly put it, “evidence introduced in federal court has no bearing on § 2254(d)(1) review.” Id. at 1400. Pinholster's limitation on the consideration of Stokley's new evidence—the proffered testimony of the neuropsychologist and other medical experts—in federal habeas proceedings also forecloses the possibility of a federal evidentiary hearing, the only relief Stokley currently seeks. If applicable, Pinholster therefore requires us to affirm the denial of Stokley's petition.

III. If Pinholster Does Not Apply: Review of All the Evidence

We now proceed on the alternate assumption that Pinholster does not bar Stokley from presenting new evidence because Stokley's federal ineffective assistance of counsel claim was never presented to the state courts. Even considering the new evidence, we conclude that Stokley has not presented a colorable claim of ineffective assistance of counsel. Because this conclusion bars Stokley from receiving an evidentiary hearing, we only briefly acknowledge—and do not decide—the predicate hurdles Stokley would need to overcome for us to consider his claim, namely whether he could show cause and prejudice for his failure to exhaust and whether he satisfied the diligence requirement of § 2254(e)(2).

A. Further Procedural Matters

When a petitioner fails to present a federal claim to the state courts, the claim is unexhausted, and the petitioner must generally return to state court. See, e.g., Quezada v. Scribner, 611 F.3d 1165, 1168 (9th Cir.2010) (published order). But “[a] claim is procedurally defaulted ‘if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.’ ” Beaty, 303 F.3d at 987 (quoting Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). In this case, assuming that the federal version of Stokley's ineffective assistance claim was never presented to the state courts, those courts would find the claim procedurally barred because Stokley failed to raise it “in [a] previous collateral proceeding.” Ariz. R.Crim. P. 32.2(a)(3); see also Stewart v. Smith, 536 U.S. 856, 859–61, 122 S.Ct. 2578, 153 L.Ed.2d 762 (2002) (holding that Rule 32.2(a)(3) provides an independent and adequate state procedural bar); Stewart v. Smith, 202 Ariz. 446, 46 P.3d 1067, 1071 (2002) (“The ground of ineffective assistance of counsel cannot be raised repeatedly.”). [5] Because Stokley's claim would be procedurally barred, he would satisfy “the technical requirements for exhaustion; there are no state remedies any longer ‘available’ to him.” Coleman, 501 U.S. at 732, 111 S.Ct. 2546 (citations omitted). Federal habeas review of the claim, however, is precluded “unless [Stokley] can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law.” Id. at 750, 111 S.Ct. 2546.FN2 Since Stokley seeks an evidentiary hearing, he must also demonstrate that he diligently attempted to develop the factual basis of his claim in state court. See 28 U.S.C. § 2254(e)(2); Williams v. Taylor, 529 U.S. 420, 436–37, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000).FN3 FN2. Coleman also includes an exception for situations in which “failure to consider [defaulted] claims will result in a fundamental miscarriage of justice.” 501 U.S. at 750, 111 S.Ct. 2546. Stokley does not contend that this exception applies. FN3. Stokley does not argue that his claim rests on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court” or that the evidence he presented to the federal court could not have been discovered during his state proceedings. See 28 U.S.C. § 2254(e)(2)(A)(i)–(ii).

Stokley argues that the actions of the state and his post-conviction counsel allow him to surmount both of these barriers, and we recognize that, at a minimum, Stokley was placed in an untenable and unenviable situation during the state post-conviction proceedings. Harriette Levitt, Stokley's appointed counsel, filed a cursory PCR petition with the state courts. After Stokley filed complaints against Levitt, Levitt withdrew from the case, and Stokley secured the representation of Carla Ryan, who sought to file a more extensive petition on Stokley's behalf. At the state's urging, however, the PCR court reconsidered its order allowing Levitt to withdraw and reappointed her to represent Stokley for the remainder of the post-conviction proceedings. Shortly after her reappointment, Levitt filed a brief arguing that all of the issues raised by Ryan lacked merit. Upon further reflection and at the express invitation of the state supreme court, Levitt reconsidered in part and filed a supplemental petition including the claim of ineffective assistance of counsel at sentencing initially advanced by Ryan. The supplemental petition was as vague as Levitt's initial petition, and it failed to comply with Arizona Rule of Criminal Procedure 32.5, which requires petitioners to submit “[a]ffidavits, records, or other evidence currently available to the defendant” in support of claims to post-conviction relief.

We also recognize, however, that there is “no constitutional right to an attorney in state post-conviction proceedings.” Coleman, 501 U.S. at 752, 111 S.Ct. 2546. Thus, in order to have any hope of meeting the cause and prejudice standard, Stokley must show that the actions taken by Levitt and the state “rose to the level of an external objective factor causing the procedural default.” Smith v. Baldwin, 510 F.3d 1127, 1147 (9th Cir.2007) (en banc). This is a standard met in only exceptional cases: “[A]ny attorney error in post-conviction proceedings is generally attributable to the petitioner himself.” Id. Nevertheless, because Stokley presented a potentially colorable argument that he meets this standard, we assume without deciding that Stokley can show cause and prejudice for his failure to present his claim to the state courts.FN4 We similarly assume that the diligence requirement in § 2254(e)(2) does not prevent Stokley from receiving an evidentiary hearing. See West v. Ryan, 608 F.3d 477, 485 (9th Cir.2010) (making the same assumption); see also Williams, 529 U.S. at 444, 120 S.Ct. 1479 (suggesting that the standard for satisfying § 2254(e)(2) is similar to the standard necessary to establish cause and prejudice). FN4. We note that a case pending before the Supreme Court raises issues regarding cause and prejudice claims arising from the actions of post-conviction counsel. See Maples v. Thomas, ––– U.S. ––––, 131 S.Ct. 1718, 179 L.Ed.2d 644 (2011) (order granting certiorari). Since we do not address the substance of similar claims, we see no need to await the Supreme Court's decision.

B. The Strickland Standard

Proceeding on those assumptions, we review Stokley's request for a hearing. We may overturn the district court's “ultimate denial of an evidentiary hearing” only if that denial constituted an abuse of discretion. Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir.2005). To receive an evidentiary hearing, Stokley must show that he has “a colorable claim of ineffective assistance.” Fairbank v. Ayers, 650 F.3d 1243, 1251 (9th Cir.2011) (internal quotation marks omitted). Stokley must, in other words, demonstrate that “a hearing could enable [him] to prove ... factual allegations” that, “if true, would entitle [him] to federal habeas relief.” Id. (quoting Schriro v. Landrigan, 550 U.S. 465, 474, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007)). Because Stokley's claim is premised on the alleged ineffective assistance of counsel, he must satisfy the two-pronged test in Strickland. Specifically, Stokley must present a colorable claim “that (1) ‘counsel's representation fell below an objective standard of reasonableness' and (2) there is a ‘reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ ” West, 608 F.3d at 485–86 (quoting Strickland, 466 U.S. at 687–88, 104 S.Ct. 2052). “ ‘Surmounting [this] high bar is never an easy task.’ ” Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011) (quoting Padilla v. Kentucky, 599 U.S. ––––, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010)). Stokley cannot overcome the first hurdle—that “counsel's representation fell below an objective standard of reasonableness.” FN5 Strickland, 466 U.S. at 687–88, 104 S.Ct. 2052. FN5. We also note that the PCR court held that Stokley's ineffective assistance claim “is meritless for lack of a showing of prejudice.”

C. Ineffective Assistance

In assessing counsel's performance, we “must apply a strong presumption that counsel's representation was within the wide range of reasonable professional assistance.” Harrington, 131 S.Ct. at 787 (internal quotation marks omitted). We take “every effort to eliminate the distorting effects of hindsight,” Earp, 431 F.3d at 1174 (internal quotation marks omitted), “give the attorneys the benefit of the doubt,” and “entertain the range of possible reasons ... counsel may have had for proceeding as they did,” Pinholster, 131 S.Ct. at 1407 (internal quotation marks and alteration omitted). Thus, “[e]ven under de novo review,” the standard we apply “is a most deferential one.” Harrington, 131 S.Ct. at 788. “The question is whether [counsel's] representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom.” Id. (internal quotation marks omitted).

Stokley's trial counsel undertook an extensive investigation into mitigating factors before sentencing. Most significant to this appeal, counsel secured two medical opinions regarding Stokley's mental health. Morris examined Stokley at counsel's request and diagnosed him with borderline personality disorder. That disorder, Morris told the sentencing court, means that Stokley has “difficulties with impulse control and poor judgment.” Morris characterized these difficulties as “severe” and stated that Stokley's borderline personality disorder would lead to “impulsivity” and “outbursts” of anger. He also expressly tied Stokley's impulse control problems to Arizona's mitigation statute by testifying that Stokley was impaired in his “capacity to appreciate the wrongfulness of his conduct ... at the time of the [crime].” Mayron's neurological examination, meanwhile, demonstrated that Stokley's brain was “moderately to severely impaired” as a result of numerous head injuries. Mayron diagnosed Stokley with “a permanent mild right hemiparesis FN6 and hemisensory deficit” as well as “permanent post-concussion syndrome memory impairment and disturbance [characterized by] increased difficulty with impulse control.” As this diagnosis suggests, Mayron opined that “[h]ead injuries of [the] severity [of Stokley's] are invariably related to” problems with “concentration, attention span ..., memory, personality disturbance, mood disturbance, irritability, depression, [and] impulse control disturbance.” Stokley's “ability to make good judgments,” his “[e]motional control,” and his “ability to plan ahead and to reflect” are all impaired. FN6. “Hemiparesis” is a medical term used to refer to reduced muscular strength on one side of the body and is frequently associated with damage to the portion of the brain charged with controlling that part of the body.

Counsel also knew that at least two neuropsychological tests had been performed on Stokley at the time of sentencing. Barbour administered one such test at counsel's behest. Hoffman's report based on his pre-crime examination of Stokley, meanwhile, found that Stokley's performance on a neuropsychological test “d[id] not indicate [organic] brain damage.” This record compels the conclusion that counsel generally undertook “active and capable advocacy” on Stokley's behalf. Harrington, 131 S.Ct. at 791. In particular, both Morris and Mayron testified at sentencing in ways that directly supported Stokley's case in mitigation. Under Ariz.Rev.Stat. § 13–751(G)(1), a defendant demonstrates the existence of a mitigating circumstance if he proves that his “capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired” at the time of the offense. Morris expressly testified that this mitigating factor was satisfied and told the sentencing court that Stokley had “severe” problems with impulse control.FN7 Mayron said that Stokley had “moderate to severe” brain damage and linked Stokley's impulsivity to that damage. In short, counsel oversaw the investigation of Stokley's mental health from psychological, neurological, and neuropsychological perspectives and elicited testimony that both explicitly and implicitly concluded that Stokley's mental health satisfied the relevant mitigating factor. FN7. While Morris did concede that he was “unable to evaluate” Stokley's state of mind at the time of the crime, this concession stemmed from Stokley's own statements, not from any failing on counsel's part.

Stokley nevertheless claims that, despite counsel's emphasis on his mental health, counsel was required to order an entire battery of neuropsychological tests. We reject this argument. Counsel had no reason to believe that step would be necessary. After examining Stokley, Morris did suggest that Stokley be seen by either a neurologist or a neuropsychologist, and counsel took that advice by sending Stokley to Mayron, a neurologist. Mayron later provided the mirror-image observation that analysis of “[b]ehavioral changes” occurs “by referral to a psychologist or a neuropsychologist.” Although that piece of advice was tendered at the sentencing hearing, counsel had already followed it, too, by having Morris, a psychologist, examine Stokley. In short, neither of the experts counsel hired unequivocally stated that Stokley should be examined by a neuropsychologist—and counsel was under no obligation to seek neuropsychological testing in the absence of any such recommendation. See Babbitt v. Calderon, 151 F.3d 1170, 1174 (9th Cir.1998) (“[C]ounsel did retain medical experts whom he thought well-qualified. The experts he had retained did not state that they required the services of ... additional experts. There was no need for counsel to seek them out independently.”). In fact, it is not even clear that further neuropsychological testing would have been to Stokley's advantage. Hoffman's report said that a previous neuropsychological examination revealed no brain damage.FN8 Counsel was therefore in a position reasonably to conclude that additional neuropsychological testing could undermine Stokley's case rather than aid it. FN8. Stokley argues that Hoffman misinterpreted the results of the neuropsychological test he administered and that those results were actually, under newer standards, positive for brain damage. But at least one of the experts hired by trial counsel reviewed the Hoffman report without noting any irregularity in Hoffman's conclusions. Hoffman's alleged error thus does not provide a basis for impugning counsel's effectiveness. See, e.g., Sims v. Brown, 425 F.3d 560, 585–86 (9th Cir.2005) (“[A]ttorneys are entitled to rely on the opinions of mental health experts, and to impose a duty on them to investigate independently of a request for information from an expert would defeat the whole aim of having experts participate in the investigation.” (internal quotation marks omitted)).

Stokley also argues that, without neuropsychological testing, counsel was unable to demonstrate the link between Stokley's brain injuries and his behavior at the time of the offense. But Mayron's report and testimony at sentencing expressly linked the two; Mayron stated that impulsivity “invariably” followed from the sort of brain injury that he diagnosed. Thus, although Stokley cites our decision in Caro v. Woodford, 280 F.3d 1247, 1258 (9th Cir.2002), for the proposition that evidence that “explain[s] the effects [of] physiological defects” on a petitioner's behavior is crucial, counsel put precisely that kind of evidence before the sentencing court. FN9 For that reason, and because counsel could have reasonably believed that additional neuropsychological testing was neither necessary nor advantageous, we hold that counsel's failure to seek such testing did not constitute ineffective assistance. FN9. We note that this passage occurs in Caro's discussion of the prejudice prong of Strickland. Our ineffectiveness holding in Caro was premised on counsel's failures “to seek out an expert to assess the damage done by [the] poisoning of Caro's brain,” to provide “mental health experts with information needed to develop an accurate profile of the defendant's mental health,” and to present testimony that the petitioner was abused as a child constituted ineffective assistance. See 280 F.3d at 1254–55. Stokley's trial counsel committed none of these failings.

Stokley's contention that counsel acted ineffectively by failing to follow up with Mayron is similarly unpersuasive. Mayron now claims that, had he been consulted by counsel after his examination of Stokley and before the sentencing hearing, he “would have recommended that Mr. Stokley be examined by a qualified neuropsychologist.” This statement contradicts Mayron's testimony at sentencing that either a psychologist or a neuropsychologist would suffice. More importantly, Mayron does not allege that he actually made this recommendation to counsel, and previous neuropsychological testing of Stokley led to a report that undermined Stokley's case by finding no organic brain damage. We are in no position to say that counsel's failure affirmatively to seek out Mayron's advice amounted to constitutionally ineffective assistance. See, e.g., Murtishaw v. Woodford, 255 F.3d 926, 946 (9th Cir.2001) ( “[C]ounsel's actions are not deficient just because, through ‘the fabled twenty-twenty vision of hind-sight,’ a better course of action becomes apparent.”) (quoting Campbell v. Wood, 18 F.3d 662, 673 (9th Cir.1994) (en banc)); Babbitt, 151 F.3d at 1174 (rejecting ineffective assistance “arguments predicated upon showing what defense counsel could have presented, rather than upon whether counsel's actions were reasonable”). In sum, “[t]his is not a case in which the defendant's attorneys failed to act while potentially powerful mitigating evidence stared them in the face.” Bobby v. Van Hook, ––– U.S. ––––, 130 S.Ct. 13, 19, 175 L.Ed.2d 255 (2009). “It is instead a case, like Strickland itself, in which defense counsel's ‘decision not to seek more’ mitigating evidence from the defendant's background ‘than was already in hand’ fell ‘well within the range of professionally reasonable judgments.’ ” Id. (quoting Strickland, 466 U.S. at 699, 104 S.Ct. 2052). Even more importantly, it is a case where counsel pursued the brain damage and mental health strategy. Stokley accordingly has not presented a colorable claim of ineffective assistance of counsel.

Conclusion

Regardless of whether Pinholster bars consideration of Stokley's new evidence, Stokley is not entitled to habeas relief. If Pinholster applies, it precludes the only relief Stokley seeks, and even if we may consider the evidence Stokley introduced in the district court, Stokley has failed to present a colorable claim of ineffective assistance of counsel. We accordingly AFFIRM the district court's denial of relief. FN10. We decline Stokley's request to expand the certificate of appealability to encompass the claim that counsel ineffectively presented a mental state defense at trial. Stokley acknowledges that this precise claim was not included in his state petition. He nonetheless argues that the district court erred by finding the claim to be unexhausted because it is substantively identical to his sentencing-phase ineffective assistance claim. We cannot agree. Stokley contends in his sentencing-phase claim that counsel should have presented evidence to demonstrate that brain damage prevented him from controlling his impulses at the time of the crime. Under Arizona law, however, that type of evidence is inadmissible at trial: “An expert witness may not testify specifically as to whether a defendant was or was not acting reflectively at the time of a killing.” State v. Christensen, 129 Ariz. 32, 628 P.2d 580, 583–84 (1981). The evidence to be weighed when determining whether a different result would have obtained at trial but for counsel's ineffectiveness is very different from the evidence to be weighed when determining whether a different sentence would have resulted but for counsel's ineffectiveness. We accordingly conclude that the two claims are undebatably distinct. See Lopez v. Schriro, 491 F.3d 1029, 1039–40 (9th Cir.2007).