Inmate: DANIEL W. COOK
DOC#: 069007
DOB: 07/23/61
Gender: Male
Height 71"
Weight: 132
Hair Color: Brown
Eye Color: Blue
Ethnic: Caucasion
Sentence: DEATH
Admission: 08/23/88

Conviction Imposed: MURDER 1ST DEGREE (DEATH), Kidnapping (21 years), Sexual Assault (21 years), Burglary 1st Degree (21 years).
County: Mohave
Case#: 0009358
Date of Offense: 07/20/87

Last Meal Request: •Eggplant lasagna •Garlic cheese mash potatoes •Roasted brussel sprouts •Broiled asparagus •Ice cream •Root beer.

Summary: Cook, John Matzke, and Carlos Froyan Cruz-Ramos worked at a restaurant in Lake Havasu City and shared an apartment. On July 19, 1987, Cook stole some money from Cruz-Ramos. When Cruz-Ramos began searching the apartment for the money, Cook and Matzke tied Cruz-Ramos to a chair and began beating him with their fists and a metal pipe. Cook also cut Cruz-Ramos with a knife, sodomized him, and burned his genitals with cigarettes. After several hours of this torture, Matzke and Cook crushed Cruz-Ramos' throat with the pipe. When Kevin Swaney, another co-worker, arrived at the apartment, Cook forced him upstairs and showed him Cruz-Ramos' body. Cook and Matzke then tied Swaney to a chair. Matzke went to sleep while Cook sodomized Swaney. When Cook was finished, he woke Matzke and the two men strangled Swaney to death with a bed sheet. Matzke pled guilty to second-degree murder and testified against Cook.

PROCEEDINGS

Presiding Judge: Steven F. Conn
Prosecutor: Eric Larsen
Start of Trial: June 27, 1988
Verdict: 8 July 7, 1988
Sentencing: August 8, 1988

Aggravating Circumstances: Especially heinous/cruel/depraved, Multiple homicides, Pecuniary gain (Cruz-Ramos murder only)

Mitigating Circumstances: None

PUBLISHED OPINIONS

State v. Cook, 170 Ariz. 40, 821 P.2d 731 (1991)

Arizona Department of Corrections

NEWS RELEASE For Immediate Release
August 8, 2012
Inmate Daniel Cook executed

Florence, Az – Arizona Department of Corrections inmate Daniel Cook, #069007, was executed at 11:03 a.m. Wednesday. Cook’s last meal included, eggplant lasagna, garlic cheese mashed potatoes, roasted brussel sprouts, broiled asparagus, root beer soda, and ice cream, which was served to him Tuesday night. His last words were: "I'd like to say sorry to the victim's family. I know that's not enough…. (significant pause) …Where am I? To my lawyers, thank you. Red Robin, yum. I'm done. I love you". He was executed by lethal injection. The one drug protocol was administered at 10:26 a.m. and the execution was completed 37 minutes later. ###

AZCentral - The Arizona Republic

"Arizona executes inmate for 2 murders in 1987," by Michael Kiefer. (Aug. 8, 2012 09:59 PM)

Daniel Cook, who killed two people in Lake Havasu City in 1987, was executed by injection Wednesday in Florence. Cook, 51, was emotional as he apologized to family members of one of his victims and had trouble finishing his last words. "I'd like to say I'm sorry to the victims' family. I know that's not enough." He sobbed and tried to catch his breath, then suddenly said, "Where am I?" Cook fidgeted, looked around and waved to his attorneys with a restrained hand. Then, he lifted his head suddenly and looked frantically at his lawyers when the drugs hit him. He dropped back to the gurney and passed out. Thirty-five minutes later, eyes and mouth still open, chin jutting forward, he was pronounced dead. His execution was Arizona's fifth this year, and more could be scheduled. The most Arizona has conducted in a year was seven in 1999.

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Arizona executions: Last words, last meals
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Cook's lawyers had filed a last-ditch appeal for a stay of execution with the U.S. Supreme Court, but it was rejected Wednesday morning. On Tuesday night, Cook was provided his last meal, consisting of eggplant lasagna, garlic- cheese mashed potatoes, roasted brussels sprouts, broiled asparagus, ice cream and root beer.

Cook was sentenced to death for the murders of Carlos Cruz Ramos, 26, and Kevin Swaney, 16, in Lake Havasu City.

Cook came within a day of being executed last year, when the U.S. Supreme Court stayed his execution to explore whether he had been poorly defended during his early appeals. He had represented himself at trial, and neither he nor his first appellate lawyers raised the severe sexual and physical abuse that Cook suffered as a child as mitigating evidence. That might have persuaded a judge to sentence him to life in prison instead of death. Ultimately, the Supreme Court turned down the case, and other state and federal courts refused to stay the execution.

The crimes were brutal. Cook shared an apartment with Cruz Ramos and John Matzke; the three worked together at a restaurant. On July 18, 1987, Cook quit his job and started drinking and smoking methamphetamine with Matzke. When Cruz Ramos realized that the other two had stolen $90 from him and he complained, they overpowered him, stripped off his clothing and bound him to a chair. Then, they beat and sodomized him, burned his genitals with cigarettes and put a staple through his foreskin. They tried to strangle Cruz Ramos with a sheet and then put a pipe over his throat and stood on it until he was dead and then threw his body into a closet. Two hours later, Swaney stopped by the apartment. Cook took Swaney to the closet and showed him the body. Then, as Swaney cried, Cook stripped him and sodomized him, too, and then strangled him.

At his clemency hearing Aug. 3, Cook said he had no memory of the murders and only learned of them when Matzke woke him after the binge and showed him the bodies. Matzke went to the police, confessed to the murders and implicated Cook. Matzke was allowed to enter a plea deal for 20 years in prison in exchange for his testimony against Cook. He was released from prison in July 2007.

Under a new protocol established by the Arizona Department of Corrections, the 30 witnesses to Wednesday's execution watched over closed-circuit TV as prison medical staff set intravenous lines in Cook's arms to carry the lethal drugs. Cook looked nervous and doleful and winced as attendants failed twice to get a vein in his right arm. He chatted with a prison official after the microphone was cut off and before the curtain on the viewing window was drawn open to the visitors.

None of Cook's surviving relatives attended the execution, but five of Swaney's siblings did. After the execution, they addressed the media. The oldest, Lynne Pattee, read a prepared statement, criticizing the fact that it took so long for Cook to be executed. "Our hope for other families is it will not take 25 years to get closure." Some family members did not accept Cook's apology. "The only reasons he was sorry was because he got caught," said Bridgette Lester, Swaney's sister. "I thought his words were hollow." Their brother, Shean Stewart, however, said, "I felt sorry for him," stunning the others. He spoke haltingly. "What he did was really wrong, and a lot of years, I used to hate him. I mean hate him. The man I saw on that gurney was scared. By no means am I advocating what he did, but at the same point, no one has to die alone." Pattee took issue. "Why? Kevin did. That's all I have to say." Then, she and Lester abruptly left the room.

Reuters News

"Arizona executes man for 1987 rape, murder of co-workers," by David Schwartz. (PHOENIX | Wed Aug 8, 2012 5:13pm EDT)

(Reuters) - A man who tortured, raped and strangled two co-workers in 1987 was put to death in Arizona on Wednesday, more than a year after the Supreme Court temporarily blocked his execution to consider whether he had adequate counsel. Daniel Wayne Cook, 51, was pronounced dead at 11:03 a.m. from a lethal injection administered at the state prison in Florence, 60 miles southeast of Phoenix, state officials said.

Cook was convicted of first-degree murder for killing Carlos Cruz-Ramos, 26, and Kevin Swaney, 16, in northwestern Arizona, together with an accomplice, a roommate named John Matzke. All four worked together at a restaurant in Lake Havasu City.

Cook initially won a reprieve in April 2011 when the nation's highest court blocked the execution to consider claims that he did not have effective legal counsel during his trial or appeals process. Lawyers for Cook said previous counsel failed to present evidence that he was physically and sexually abused by family members and a foster care worker when he was a child, according to court documents. But the Supreme Court later dismissed the appeal, clearing the way for him to be executed. "I'd like to say I'm sorry to the victim's family. I know that's not enough," Cook said in a final statement before thanking his lawyers, according to prison officials. Moments before he was rendered unconscious, he uttered the words, "Red robin, yum. I'm done. I love you."

His last meal consisted of eggplant lasagna, garlic cheese mashed potatoes, roasted Brussels sprouts, broiled asparagus, ice cream and root beer, state Corrections Department spokesman Bill Lamoreaux said.

Cook was sent to the state's death row for a brutal crime spree that authorities say began on July 19, 1987, when he stole money from Cruz-Ramos, who was also his roommate, then tied him to a chair in their apartment before he and Matzke began beating Cruz-Ramos with their fists and a metal pipe. Cook cut Cruz-Ramos with a knife, burned him with cigarettes and raped him before he and Matzke lethally crushed Cruz-Ramos's throat with the pipe, according to court documents. The ordeal lasted some six hours. Swaney, a dishwasher at the restaurant, arrived the next morning at the apartment, where he had been staying as a guest. He was tied to a chair and raped by Cook before he was strangled with a bed sheet by Cook and Matzke together, court records say. Cook was later arrested at the apartment, where he told police: "We got to partying. Things got out of hand. Now two people are dead." He admitted to choking Swaney to death, but said: "My roommate killed one and I killed the other." Matzke was persuaded by a friend to go to the police to confess, according to court testimony. He later pleaded guilty to second-degree murder and testified against Cook. He was sentenced to 20 years in prison and has since been released.

Cook, who was sentenced to death in 1988, became the fifth person to die by lethal injection in Arizona this year and the 33rd since the state reintroduced the death penalty in 1992. Twenty-six people have been executed in the United States this year, according to the Death Penalty Information Center.

Today's News-Herald

FLORENCE — Daniel Wayne Cook, a Lake Havasu City man convicted of two gruesome murders 25 years ago, was executed by lethal injection Wednesday and the victims’ emotional family members, who witnessed the process, say they now have a sense of closure. Cook, 51, who was convicted of killing 26-year-old Carlos Cruz-Ramos and 16-year-old Kevin Swaney in Lake Havasu City in July 1987, spoke his last — and at times confusing — words to witnesses Wednesday at the Arizona State Prison-Florence. And those words rang hollow for Swaney’s sister, Brigette Lester.

After doctors had set up the line to administer the lethal drug, witnesses who had been watching that process on a TV saw the black curtains removed from the room and Cook spoke. “I’d like to say I’m sorry to the victims,” Cook said. “I know that’s not enough.” “To me, they were hollow,” said Lester, 39, later Wednesday at the Holiday Inn Express in Florence where she and family members were staying. “I do not feel he truly had any remorse.” “People need to know that it was a rightful execution,” Lester said. “He’s not an innocent man.”

Although the lethal drug took longer — about 35 minutes — than what some media witnesses of previous executions said they experienced, it was a far better death than what Swaney and Ramos experienced, Lester said. “It was less painful and they were concerned about his comfort,” Lester said. “I guarantee you that no one (neither Cook nor John Matzke, who admitted to killing Ramos in exchange for testimony against Cook) was concerned about Swaney’s or (Ramos’) condition when they brutally murdered them.”

Cook raped and tortured Swaney for hours. He and John Matzke also raped, tortured and killed Ramos hours before Swaney’s death. Matzke admitted to killing Ramos, an illegal immigrant from Guatemala, and served a 20-year prison sentence in exchange for his testimony against Cook. Matzke was released in 2007. “Daniel Wayne Cook got to live 25 years longer than Kevin and Carlos, that’s not right,” Lester said. “I think the appellate process needs to change,” Lester said. “It’s just too long.”

While the initial words from Cook were audible to the witnesses and understandable given the circumstances, the last words were at times inaudible and a bit incomprehensible. After the initial apology, there was a bit of a pause before he said: “Where am I?” Then the prison shut off the audio because they thought Cook was done, but he wasn’t. “To my lawyers, thank you,” Cook said with the only part that was heard by witnesses being “thank you.” There was another pause and the last part which was relayed by prison officials but not heard by the witnesses was: “Red Robin, yum. I’m done. I love you.”

Witnesses, including three media members, Lake Havasu City Police Chief Dan Doyle, attorney general officials, a retired Lake Havasu City police detective, an Arizona State University law student, and Cook’s defense attorneys sat quietly throughout the proceedings. The final part of the execution involved more than 30 minutes of silence with Cook lying motionless and doctors waiting for his heart to stop. A doctor entered the room at 11:03 a.m. and declared Cook dead.

The execution viewing process — which had been the subject of a federal appeals court ruling — was open whether on the flat screen TV above or through the windows to the room from the time Cook was seen on the padded gurney to the time he was declared dead. Swaney family members, including Lester, Lynne Pattee (sister) and Shean Stewart (brother) did offer formal comments directly after the execution. Stewart offered an opinion that some family members clearly do not agree with. “I felt sorry for him,” Stewart said. He paused for several minutes after making that statement and being asked to elaborate. “What he did was brutal and wrong,” Stewart said. For a lot of years, I used to hate (Cook). The man I saw laying there on that gurney was scared.” As Stewart made his statements, Lester told the assembled media she had to leave the room. Later, Lester said she simply disagreed with Stewart’s perspective.

“His views are not mine,” Lester said later at the Holiday Inn Express. Lester clutched a photo of her brother Kevin at the press conference and later detailed thoughts on how she’s dealt with his murder through the years. “For me personally, he’s always been with me,” Lester said. “But it doesn’t consume my every moment. It can’t. That doesn’t mean I love him any less.” As the execution process moved along from searching for the best vein in his arms (left arm chosen) to administering the drug, Cook gulped several times, appeared to cry and his pupils became wide toward the end.

Cook, first scheduled to be put to death in April 2011, exhausted all his appeals in the last 16 months, including ones before the state clemency board last Friday and others directed to the U.S. Supreme Court. The Supreme Court canceled the April 5, 2011, execution so arguments that Cook received ineffective counsel during his trial after he was convicted and sentenced could be heard. The Supreme Court ruling came down less than 24 hours before Cook was set to die by lethal injection. Late last month, the 9th U.S. Circuit Court of Appeals rejected his appeal on shortcomings in his defense during trial and sentencing because he insisted on representing himself during the trial.

Cook’s past and brain damage he suffered because his mother drank alcohol while she was pregnant with him could have saved him from a death sentence, his petition to the court of appeals stated. But the trial judge refused Cook’s request, which would have allowed such evidence into trial, the petition said. Cook had his last meal Tuesday night, which included eggplant lasagna, garlic cheese mashed potatoes, roasted Brussels sprouts, broiled asparagus, root beer and ice cream.

Phoenix New Times

Daniel Cook was executed today in Florence for the 1987 strangulation murders of 16-year-old Kevin Swaney and 26-year-old Carlos Cruz-Ramos in Lake Havasu City. Appeals made by Cook's defense team were denied by a state board for the final time on August 3, and by the U.S. Supreme Court before his execution earlier this morning. Cook was executed at 11:03 a.m today, after a lethal-injection process that began at 10:26 a.m.

"I'd like to say sorry to the victim's family. I know that's not enough," Cook said as he gave his last words, according to the Arizona Department of Corrections. "Where am I? To my lawyers, thank you. Red Robin, yum. I'm done. I love you". For his last meal, Cook had requested eggplant lasagna, garlic and cheese mashed potatoes, roasted brussel sprouts, broiled asparagus, Ice cream, and root beer.

At the time of the murders, Cook, Cruz-Ramos, and another man named John Matzke shared an apartment together. One day, Cruz-Ramos confronted Cook and Matzke about $90 he said Cook stole from him. Matzke and Cook subdued Cruz-Ramos, then sodomized, tortured, and strangled him to death, according to a report released by the DOC. The other victim, Swaney, came by the apartment around this time, and was shown Cruz-Ramos' body. Cook then sodomized Swaney and strangled him to death. Matzke confessed to his involvement in the murders and accepted a plea bargain for a 20-year prison sentence for his cooperation in helping bring in Cook.

Some controversy arose over his execution, because a psychological and emotional evaluation of Cook shows that he suffered from serious mental trauma. That mental trauma stems from the horrific abuses he suffered as a child. Cook was abused from infancy all the way through most of his teenage years. His parents, grandparents, step-father, step-brothers and foster parents physically and sexually abused him on countless occasions, according to a clemency report submitted for Cook's appeal. Among the many abuses Cook endured growing up included his father's burning his penis with a cigarette when he was an infant, rape and molestation by his mother and grandparents, and a group-home leader's forcing him to undergo circumcision when he was 15.

That wasn't the only strange thing the group-home leader did to Cook. "There was a 'peek-a-boo room' which was used for 'time outs,'" according to the report. "This room had a one-way mirror and Dan, along with other boys, would be subjected to abuse while adults watched from the other side. Dan was forced to spend time in the 'peek-a-boo room,' naked and handcuffed to the bed, while [the group leader] would rape him." The report argued that the gruesome experiences Cook lived through as a child caused him to develop post-traumatic-stress disorder. He also suffered brain damage as a child, because his mother was negligent and used drugs and alcohol during her pregnancy. These factors, coupled with Cook's own struggles with drug addiction, led to his monstrous behavior, his attorneys contend.

The appeal acknowledged that Cook should be punished for his crimes but maintained that he should not be put to death because he wasn't in full control of his actions. Many of the same injuries and methods of torture carried out by Cook in the heinous murders of his victims matched the abuses Cook received as a child. Cook burned the genitals of Cruz-Ramos with a cigarette, sodomized him, then crushed his throat with a metal pipe, according to the DOC report. Cook's defense team appealed the death sentence on grounds that Cook was legally misrepresented during his trial. He represented himself originally -- and asked the court to give him the death penalty, according to the clemency report. He said he was shocked that he could've committed such a horrific crime.

ProDeathPenalty.Com

After Matzke and Ramos returned downstairs, Ramos discovered his money pouch was missing, and Cook suggested that Ramos look for the pouch upstairs. When Ramos went upstairs, Cook grabbed him, Matzke ripped up some bedsheets, and they tied Ramos to a chair in Cook's bedroom. Cook punched and taunted Ramos before putting Ramos in Cook's closet so that Cook and Matzke could look through Ramos's other possessions. Ramos escaped from the closet, but Cook chased him down, took him back upstairs, and re-tied him to the chair. Cook and Matzke began beating Ramos with a metal pipe and a stick. Cook and Matzke also burned Ramos's chest, stomach, and genitals with cigarettes. Cook cut Ramos's chest with a knife, and Matzke put a bandage on the cut to stop the bleeding.

At around 9:45 p.m., Matzke went to the Acoma Stop and Shop to buy beer. When Matzke returned to the apartment, he saw Cook sodomize Ramos. Cook also used a mini-stapler on Ramos's foreskin, stapling it to the chair. Matzke asked Cook why he was torturing Ramos, and Cook replied, “I'm having fun.” At around 11:00 p.m., Matzke told Cook that they could not let Ramos go, and Cook responded, “Well, you can kill him at midnight; ?the witching hour.” Cook and Matzke continued torturing Ramos until midnight, then Matzke attempted to strangle Ramos with a sheet and the pipe. Matzke eventually placed Ramos on the floor, placed the pipe across Ramos's neck, and stood on the pipe until Ramos's heart stopped beating at around 12:15 a.m. After throwing Ramos's body down the stairs, Cook and Matzke placed the body in Matzke's closet.

At around 2:30 or 3:00 a.m., Kevin Swaney arrived at Cook's apartment. At first, Cook told Swaney to leave but then Cook asked Swaney to come into the apartment. Cook told Swaney that they had some drugs they wanted to get rid of, and pushed a couch in front of the door so nobody would come into the apartment. Then Cook and Matzke told Swaney about the dead body. Cook took Swaney upstairs to show him the body and, when they returned downstairs, Cook told Matzke to get bindings and a gag. Cook forced Swaney to take off his clothes, and Matzke and Cook tied Swaney to a chair. Matzke asked Cook what Cook was planning to do, and Cook said he was going to talk to Swaney. Matzke told Cook that if he was going to torture Swaney, Matzke did not want any part of it. Matzke went to the living room and fell asleep. At around 4:30 or 5:00 a.m., Cook woke Matzke. Swaney was still tied up and crying. Cook told Matzke that he sodomized Swaney so now they had to kill him. Cook took a sheet from around his neck and wrapped it around Swaney's neck. Matzke and Cook each took one end of the sheet and pulled, but Matzke's end kept slipping out of his hand. At that point, Cook said “This one's mine,” put Swaney on the floor, and strangled him. Matzke and Cook took Swaney's body up to Matzke's room and placed the body in the closet. Matzke and Cook went back downstairs and slept.

That afternoon, Matzke went to work for two and a half hours before quitting because he was concerned about what Cook would do if he was not there. When Matzke got home, he and Cook went to a bar and drank for several hours. At 10:30 p.m., they returned to the apartment and met Byron Watkins and other friends by the pool of their apartment complex. Cook and Matzke invited their friends into the apartment. The next morning, Matzke showed Watkins the bodies. Watkins convinced Matzke to go to the police. Matzke and Watkins went to the police department, and Matzke gave a videotaped confession. Officers responded to the apartment and arrested Cook at around 4:50 a.m. After Detective David Eaton gave Cook Miranda warnings, Cook said, “we got to partying; things got out of hand; now two people are dead.” Cook then said that “my roommate killed one and I killed the other.” He admitted to choking Swaney to death. After making those admissions, Cook refused to make any further statements.

Arizona Death Row Prisoners Slideshow (AZCentral.Com)

Arizona's History of Executions since 1992 (AZCentral.Com)

Wikipedia: List of People executed in Arizona Since 1976

1. Donald Eugene Harding White 43 M 06-Apr-1992 Lethal gas Allen Gage, Robert Wise, and Martin Concannon
2. John George Brewer White 27 M 03-Mar-1993 Lethal injection Rite Brier
3. James Dean Clark White 35 M 14-Apr-1993 Lethal injection Charles Thumm, Mildred Thumm, Gerald McFerron, and George Martin
4. Jimmie Wayne Jeffers White 49 M 13-Sep-1995 Lethal injection Penelope Cheney
5. Darren Lee Bolton White 29 M 19-Jun-1996 Lethal injection Zosha Lee Picket
6. Luis Morine Mata Latino 45 M 22-Aug-1996 Lethal injection Debra Lee Lopez
7. Randy Greenawalt White 47 M 23-Jan-1997 Lethal injection John Lyons, Donnelda Lyons, Christopher Lyons, and Theresa Tyson
8. William Lyle Woratzeck White 51 M 25-Jun-1997 Lethal injection Linda Leslie
9. Jose Jesus Ceja Latino 42 M 21-Jan-1998 Lethal injection Linda Leon and Randy Leon
10. Jose Roberto Villafuerte Latino 45 M 22-Apr-1998 Lethal injection Amelia Shoville
11. Arthur Martin Ross White 43 M 29-Apr-1998 Lethal injection James Ruble
12. Douglas Edward Gretzler White 47 M 03-Jun-1998 Lethal injection Michael Sandsberg and Patricia Sandsberg
13. Jesse James Gillies White 38 M 13-Jan-1999 Lethal injection Suzanne Rossetti
14. Darick Leonard Gerlaugh Native American 38 M 03-Feb-1999 Lethal injection Scott Schwartz
15. Karl-Heinz LaGrand White 35 M 24-Feb-1999 Lethal injection Kenneth Hartsock
16. Walter Bernhard LaGrand White 37 M 03-Mar-1999 Lethal gas
17. Robert Wayne Vickers White 41 M 05-May-1999 Lethal injection Wilmar Holsinger
18. Michael Kent Poland White 59 M 16-Jun-1999 Lethal injection Cecil Newkirk and Russell Dempsey
19. Ignacio Alberto Ortiz Latino 57 M 27-Oct-1999 Lethal injection Manuelita McCormack
20. Anthony Lee Chaney White 45 M 16-Feb-2000 Lethal injection John B. Jamison
21. Patrick Gene Poland White 50 M 15-Mar-2000 Lethal injection Cecil Newkirk and Russell Dempsey
22. Donald Jay Miller White 36 M 08-Nov-2000 Lethal injection Jennifer Geuder
23. Robert Charles Comer White 50 M 22-May-2007 Lethal injection Larry Pritchard and Tracy Andrews
24. Jeffrey Timothy Landrigan Native American 50 M 26-Oct-2010 Lethal injection Chester Dean Dyer
25. Eric John King African American 47 M 29-Mar-2011 Lethal injection Ron Barman and Richard Butts
26. Donald Beaty White 25-May-2011 Lethal Injection Christy Ann Fornoff
27. Richard Lynn Bible 30-June-2011 Lethal Injection Jennifer Wilson
28. Thomas Paul West 19-July-2011 Lethal Injection Don Bortle
29. Robert Henry Moorman 29-Feb-2012 Lethal injection Roberta Maude Moorman
30. Robert Charles Towery 08-Mar-2012 Lethal injection Mark Jones
31. Thomas Arnold Kemp 25-Apr-2012 Lethal injection Hector Juarez
32. Samuel Lopez 27-June-2012 Lethal Injection Estafana Holmes
33. Daniel Wayne Cook 8-Aug-2012 Lethal injection Carlos Cruz Ramos, and Kevin Swaney

State v. Cook, 170 Ariz. 40, 821 P.2d 731 (Ariz. 1991). (Direct Appeal)

Defendant was convicted in the Superior Court, Mohave County, No. CR–9358, Steven F. Conn, J., of two counts of first-degree murder and sentenced to death. Defendant appealed. The Supreme Court, Feldman, V.C.J., held that: (1) the evidence showed that the defendant was competent to waive counsel and that he voluntarily did so and chose to represent himself; (2) defendant waived his claim that the trial court erroneously prevented him from introducing evidence of intoxication that might have been relevant to his culpable mental state where the defendant did not object to the granting of the State's motion to proceed on a theory that the defendant acted “knowingly,” rather than “intentionally”; (3) comments made by the prosecutor during closing argument did not refer to the defendant's failure to testify or his invocation of his right to remain silent; (4) the trial court did not abuse its discretion in excusing a juror for cause after learning that the juror had discussed the case with her co-workers in violation of the trial court's specific admonition; (5) the trial court did not abuse its discretion in refusing to grant an additional continuance to locate absent witnesses; and (6) the evidence supported the aggravating circumstances that the murders were especially cruel, heinous, or depraved, that one murder had been committed in anticipation of pecuniary gain, and that each murder had been committed during the course of committing the other, and the finding that aggravating circumstances outweighed any possible mitigating circumstances. Affirmed. Moeller, J., concurred specially in part with opinion, in which Corcoran, J., joined.

FELDMAN, Vice Chief Justice.

Defendant Daniel Wayne Cook was convicted of two counts of first degree murder and sentenced to death on both counts. We have jurisdiction over this automatic appeal pursuant to article 6, § 5(3) of the Arizona Constitution, and A.R.S. §§ 13–4031 and 13–4033.

FACTS AND PROCEDURAL HISTORY

Shortly after 4:00 a.m. on July 21, 1987, John Matzke and Byron Watkins arrived at the Lake Havasu City Police Department, where Matzke reported his involvement in two murders committed at his apartment during the evening of July 19 and early morning of July 20. Matzke told officers about the crimes and granted the police consent to enter the apartment. Investigating officers went to the apartment that Matzke shared with Cook. After arresting Cook, officers searched the apartment and discovered the bodies of Carlos Cruz Ramos and Kevin Swaney in the closet of Matzke's bedroom. Autopsies revealed that both victims had been strangled. Cook and Matzke were each indicted on two counts of first degree murder. In return for the state's dismissal of all other charges, Matzke agreed to plead guilty to one count of second degree murder and to testify against Cook. Cook was not offered a plea agreement. At trial Matzke related the following sordid story of bondage, torture, and sodomy, in which Cook was the principal protagonist.

Carlos Cruz Ramos was a Guatemalan national employed at the same restaurant where Cook and Matzke worked. He had recently moved into their apartment. According to Matzke, Cook devised a plan to steal Cruz Ramos' money. While Matzke distracted Cruz Ramos, Cook stole approximately $90 from Cruz Ramos' money pouch. Shortly afterward, Cruz Ramos noticed his money was missing, and asked Cook and Matzke whether they knew anything about it. The two then lured Cruz Ramos into Cook's upstairs bedroom. They pushed Cruz Ramos down on the bed and, using strips torn from Cook's sheets, gagged him and tied him to a chair.

Over the course of the next six or seven hours, Cruz Ramos was cut with a knife, beaten with fists, a metal pipe and a wooden stick, burned with cigarettes, sodomized, and had a staple driven through his foreskin. Matzke suggested that they kill Cruz Ramos because they could not let him go. Cook replied that Cruz Ramos should be killed at midnight, “the witching hour.” When midnight arrived, Matzke first tried to strangle Cruz Ramos with a sheet. Matzke then took Cruz Ramos out of the chair, put him on the floor, and pushed down on his throat with a metal pipe. According to Matzke, because Cruz Ramos still would not die, Cook pressed down on one end of the pipe while Matzke pressed on the other. Finally, Matzke stood on the pipe as it lay across Cruz Ramos' throat and killed him. Matzke and Cook later dressed Cruz Ramos and put him in the closet of Matzke's bedroom. The autopsy revealed that Cruz Ramos had suffered severe lacerations and contusions as a result of his beating, that he had been cut on the chest, and that his stomach and genitals had been burned. The autopsy also revealed that Cruz Ramos had two puncture holes in his foreskin and that his anus was dilated, although no semen was detected.

Kevin Swaney was a sixteen-year-old runaway and sometime guest at the apartment. He was a dishwasher at the restaurant where the others worked. Shortly after 2:00 a.m., approximately two hours after Cruz Ramos' death, Swaney stopped by the apartment. Cook initially told Swaney to leave, but subsequently invited him inside. Cook and Matzke told Swaney they had a dead body upstairs and, according to Matzke, Cook took Swaney upstairs and showed him Cruz Ramos' body. Swaney was crying when he and Cook returned downstairs. Cook reportedly told Swaney to undress, and Swaney complied, and Cook and Matzke then gagged him and tied him to a chair in the kitchen. Matzke said he told Cook that he would not witness or participate in Swaney's torture. Matzke then went into the living room and fell asleep in a chair. Cook later woke Matzke, who said he saw Swaney bound and gagged, sitting on the couch, crying. Cook told Matzke he had sodomized Swaney and that they had to kill him. Matzke said they tried to strangle Swaney with a sheet, but Matzke's end kept slipping out of his hands. Cook then reportedly stated “this one's mine,” placed Swaney on the floor, and strangled him. He carried Swaney's body upstairs and put him in the closet with Cruz Ramos.

The autopsy revealed that Swaney's anus was dilated and semen was present, although the identity of the donor could not be ascertained. Matzke's fingerprints were found on the knife used to cut Cruz Ramos' chest, but no identifiable fingerprints were found on the metal pipe or wooden stick. Cook's fingerprints were found on the chair to which Cruz Ramos had been tied, the closet door, and the stapler. His semen was found on the strips that had been torn from his bedsheets. There was no other physical evidence of Cook's participation. After Swaney's murder, Cook and Matzke fell asleep downstairs. Later in the day, Matzke went to work, but returned a few hours later after quitting his job at the restaurant. Late that evening, some friends came over to the apartment. Early in the morning of July 21, 1987, Matzke took one of the friends, Byron Watkins, outside of the apartment and told him about the murders. Watkins convinced Matzke to go to the police.

When Cook was arrested and brought to the station, he was questioned by Detective David Eaton of the Lake Havasu City Police Department. According to Eaton, he advised Cook of his Miranda rights, then asked him how the two bodies found in the apartment had gotten there. Cook replied that “we got to partying; things got out of hand; now two people are dead.” When asked how they died, Cook said “my roommate killed one and I killed the other.” Cook was initially represented by appointed counsel. Prior to trial, Cook decided to waive his right to counsel and to represent himself. The trial judge strongly advised Cook against representing himself, enumerating the pitfalls he was likely to encounter. The trial court then accepted his waiver of counsel as knowingly, intelligently, and voluntarily given, and appointed Cook's former counsel to be his advisory counsel. Also before trial, the trial court granted the state's motion to preclude all evidence of intoxication, and allowed the state to proceed on the theory that the murders were committed “knowingly.” That is, the state would not have to prove that Cook acted intentionally in the murders of Cruz Ramos and Swaney, and therefore evidence of intoxication, which might negate intent but not knowledge, was precluded. See A.R.S. § 13–503.

The jury convicted Cook on both counts of first degree murder. At the sentencing hearing, Cook stated that the only penalty he would accept was death, and presented no mitigating evidence, though he did mention his lack of any other felony convictions. The state argued that the murder of Cruz Ramos was committed for pecuniary gain under A.R.S. § 13–703(F)(5), and that it was committed in an an especially cruel, heinous, and depraved manner under A.R.S. § 13–703(F)(6). The state also argued that Swaney's murder was especially cruel, heinous, and depraved. The court found these aggravating factors to exist and, sua sponte, found an additional aggravating factor in both murders—that they were committed during the commission of another homicide under A.R.S. § 13–703(F)(8). The trial court found no mitigating factors, and sentenced Cook to death on each count, with the proviso that if the sentences were reduced to life on appeal, they would run consecutively.

The clerk of the Mohave County Superior Court filed a timely notice of appeal on Cook's behalf. See Rule 31.2(b), Ariz.R.Crim.P., 17 A.R.S. (hereinafter Rule __). Cook claims the following errors on appeal: 1. He was denied his sixth amendment right to counsel when: (a) the trial court permitted him to waive his appointed counsel and proceed in propria persona, and (b) he was not permitted hybrid representation. 2. The trial court allowed the prosecution to convict Cook of first degree murder on the culpable mental state of “knowingly” rather than “intentionally,” thus precluding evidence of voluntary intoxication. 3. The prosecutor impermissibly commented on Cook's invocation of his fifth amendment right not to testify. 4. The trial court dismissed a juror after evidence had been presented in the case, based on allegations stemming from the prosecutor's personal investigation of her out-of-court conduct. 5. The trial court denied Cook a fair trial by refusing to continue the trial to allow Cook to secure the testimony of certain witnesses. 6. The admission at trial of a statement made by Cook at his initial appearance violated his right to counsel. 7. Matzke was permitted to testify at trial under a plea agreement requiring him to testify consistently with prior testimony and statements to police. 8. The trial court refused to instruct the jury on second degree murder. 9. The trial court erred in finding as an aggravating circumstance that each homicide was committed during the commission of the other. 10. The trial court erred in finding as an aggravating circumstance that the murder of Carlos Cruz Ramos was committed in an especially “cruel, heinous and depraved” manner. 11. The trial court erred in finding as an aggravating circumstance that the murder of Carlos Cruz Ramos was committed in anticipation of pecuniary gain. 12. The trial court erred in finding as an aggravating circumstance that the murder of Kevin Swaney was committed in an especially “cruel, heinous and depraved” manner. 13. The trial court's pretrial order precluding evidence of voluntary intoxication denied Cook evidence of a mitigating circumstance. 14. The trial court erred in not considering Cook's history of neurological, mental, and psychiatric problems in its determination of mitigating factors. 15. The trial court erred in not considering as a mitigating factor the disparity between the sentence that Matzke received under his plea agreement and Cook's possible death sentence. 16. Cook also argued that the Arizona death penalty statutes are unconstitutional on two grounds. First, the § 13–703(F)(6) aggravating factor of especially cruel, heinous, or depraved is unconstitutionally vague. Second, the statutory provisions governing the sentencing procedures in death penalty cases create an unconstitutional presumption or mandate of the death penalty.

In a recent decision upholding the constitutionality of Arizona's death penalty statute, the United States Supreme Court specifically rejected these two arguments. Walton v. Arizona, 497 U.S. 639, ––––, 110 S.Ct. 3047, 3056–58, 111 L.Ed.2d 511 (1990). We, too, having recently considered these last arguments and discussed the application of Walton, conclude that Cook's contentions are without merit. State v. Amaya–Ruiz, 166 Ariz. 152, 175–77, 800 P.2d 1260, 1283–85 (1990), cert. denied, 500 U.S. 929, 111 S.Ct. 2044, 114 L.Ed.2d 129 (1991). Accordingly, we limit our discussion to claims of error one through fifteen.

DISCUSSION
I. Guilt/Innocence Issues
A. Self–Representation/Denial of Hybrid Representation

Cook claims that he was unconstitutionally permitted to waive counsel and to represent himself. The United States Supreme Court has held that a defendant has a constitutional right to waive his right to counsel and to proceed in propria persona as long as he is competent to waive the right and knowingly and voluntarily exercises the right. Faretta v. California, 422 U.S. 806, 834–36, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975).

When Cook moved to waive his defense counsel and proceed in propria persona, the trial court cautioned him at length about the hazards of self-representation and described the problems Cook was likely to encounter. See Faretta, 422 U.S. at 835, 95 S.Ct. at 2541 (defendant “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ”) (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942)). The trial court then carefully determined that Cook was competent to waive his counsel and that Cook's decision to do so was voluntary. On this record, we find no error. While Cook certainly lacked a lawyer's skills, the record demonstrates that he was intellectually competent, understood the trial process, and was capable of making—and did make—rational decisions in managing his case. This is all the competence that is required. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541 (“a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation.... The record affirmatively shows that [defendant] was literate, competent, and understanding, and that he was voluntarily exercising his informed free will”).

Cook also claims that the trial court erred in denying him hybrid representation.FN1 We disagree. Arizona does not recognize a right to hybrid representation. State v. Rickman, 148 Ariz. 499, 504, 715 P.2d 752, 757 (1986). FN1. Hybrid representation is the representation of a defendant both by himself and by counsel. Such representation is distinguished from advisory counsel, who gives a pro per defendant technical assistance in the courtroom but does not participate in the actual conduct of the trial. State v. Rickman, 148 Ariz. 499, 504 n. 1, 715 P.2d 752, 757 n. 1 (1986). Cook was provided with advisory counsel.

We also reject Cook's arguments that the judge unduly limited the participation of his advisory counsel, denied him lay assistance, and denied him in-court assistance from his court-appointed investigator. Before accepting Cook's motion to proceed in propria persona, the trial judge informed Cook that he would be appointed advisory counsel and explained to Cook what the role of advisory counsel encompassed. The judge reiterated this explanation in Cook's presence during jury selection. During the trial itself, when the judge expressed concern that Cook's advisory counsel may have been offering unsolicited advice—and so potentially infringing on Cook's right to self-representation—Cook explained to the judge that such advice was consistent with what Cook and advisory counsel had mutually arranged.

The judge was also correct in denying Cook's motion to have fellow prisoner Terry Holt, a “jailhouse lawyer,” sit with Cook at the defense table as an “investigator.” The judge determined that Cook wanted Holt to act as advisory counsel, and ruled that Cook already had advisory counsel and that in any case Holt was without authority to render official legal assistance.

B. Conviction on “Knowing” First Degree Murder and Preclusion of Evidence of Defendant's Intoxication

The state's pre-trial motions informed Cook and the court that the state would proceed at trial to prove a culpable mental state of “knowing,” and not “intentional,” first degree murder. See A.R.S. § 13–1105(A)(1). The state simultaneously moved to preclude evidence of Cook's intoxication that might otherwise have been relevant to disprove the culpable mental state of intent. The trial court granted the motion and ruled that neither the state nor the defense would be permitted to present evidence at trial of Cook's intoxication. Cook now argues that the trial court erred in allowing the state to convict him of first degree murder under a mental state of only “knowingly” and not “intentionally.” He contends that the court's ruling wrongfully denied him the opportunity to pursue the defense of voluntary intoxication at trial. He claims that such evidence should have been permitted because the jury was instructed on accomplice liability with respect to the murder of Cruz Ramos, which requires a finding of specific intent. He argues further that he was wrongfully precluded from introducing evidence of intoxication as a mitigating circumstance at the sentencing phase.

A person commits first degree murder if “[i]ntending or knowing that his conduct will cause death, such person causes the death of another with premeditation....” A.R.S. § 13–1105(A)(1). The language of the statute is clearly disjunctive, so a person may be guilty of first degree murder by causing the death of another with premeditation either intentionally or knowingly. State v. Lavers, 168 Ariz. 376, 389, 814 P.2d 333, 346, cert. denied, 502 U.S. 926, 112 S.Ct. 343, 116 L.Ed.2d 282 (1991); see also State v. Rankovich, 159 Ariz. 116, 122, 765 P.2d 518, 524 (1988). Similarly, “[u]nder A.R.S. § 13–1101(1), a defendant premeditates his crime if he either intends or knows that his acts will kill another human being, and his intention or knowledge precedes the killing by a length of time to permit reflection.” Rankovich, 159 Ariz. at 122, 765 P.2d at 524 (emphasis in original). In addition, [a]lthough voluntary intoxication is not a defense to crime, our legislature permits juries to consider the fact that a defendant was intoxicated at the time of the criminal act, when determining the defendant's culpable mental state. However, the legislature allows such consideration only “when the actual existence of the culpable mental state of intentionally or with the intent to is a necessary element to constitute any particular species or degree of offense....” A.R.S. § 13–503. * * * * * * If a defendant is charged with knowingly committing first degree murder, the jury is not permitted to consider the “mental state of intentionally.” ... Because the “mental state of intentionally” was not in issue, [defendant] was not entitled to a voluntary intoxication instruction under A.R.S. § 13–503. Id.; see also Lavers, 168 Ariz. at 389, 814 P.2d at 346; State v. Neal, 143 Ariz. 93, 98, 692 P.2d 272, 277 (1984) (“even assuming [defendant] was intoxicated ... the jury could still properly convict him of first degree murder if they believed he ‘knowingly’ caused the victim's death”).

Whatever the merits of Cook's argument regarding the effect of intoxication on the culpable mental state of “knowing,” we must reject his claim in the present case. At the hearing on the state's motion to proceed on a theory of “knowingly” and to preclude evidence of defendant's intoxication, the trial judge asked Cook whether he had any objection to an order precluding evidence of intoxication. Cook replied that he had none because it “basically does not even apply to my defense.” Reporter's Transcript (R.T.) June 24, 1988, at 16. The court suggested to Cook ways in which such evidence might be relevant and explained to him what the consequences of preclusion would be. Cook reiterated that he had no objection. Further, Cook did not request the trial court to instruct the jury on voluntary intoxication. Cook waived any claim of error on appeal by failing to request a jury instruction at trial. Rule 21.3(c); State v. Whittle, 156 Ariz. 405, 408, 752 P.2d 494, 497 (1988).

The trial judge instructed the jury on accomplice liability under A.R.S. § 13–301, which requires the state to prove that the defendant acted with the intent to promote or facilitate the commission of an offense. Cook failed to object to the judge's jury instruction on accomplice liability. Thus, absent fundamental error, any argument that the judge should not have instructed the jury on accomplice liability because the state chose to proceed on a theory that Cook acted only “knowingly,” and so should be precluded from convicting Cook as an accomplice, is waived. State v. Schrock, 149 Ariz. 433, 440, 719 P.2d 1049, 1056 (1986) (“The failure to object to an instruction either before or at the time it is given waives any error, absent fundamental error.”). Because there was sufficient evidence before the jury to support its finding that Cook acted with the requisite intent to promote or facilitate the murder of Cruz Ramos, we find no fundamental error. Finally, the trial judge's order precluding evidence of intoxication at trial applied only to the trial, and in no way precluded Cook from introducing evidence of intoxication to establish a mitigating factor at the sentencing hearing.

C. References at Trial to Cook's Fifth Amendment Rights

Cook claims that the prosecutor impermissibly drew the jury's attention to his invocation of his fifth amendment privilege not to testify in his defense. In support of his claim, he points to the following excerpts from the prosecutor's closing arguments: Perhaps most importantly from what Mr. Holt has to say ... is he helps him as a legal adviser. He files motions on his behalf; wants to be his investigator at trial to help him out there. They have these long conversations. They talk everyday [sic]. Never once was Terry Holt told by this man where he was. Never once does Dan Cook ... say I wasn't there because I was at McDonalds in Kingman or out of state or somewhere. Why was [Holt] never told where Dan Cook was? * * * * * * John Matzke doesn't have anything to hide. This man does. How do we know that? Remember voir dire when we were selecting everybody? His left forearm has the tattoo of a dagger on it. He has covered that tattoo from the first day of the trial until today. He has had a large band-aid over that dagger. He covered that up. I suppose he didn't want you to think that he does have violent tendencies. If you saw that dagger on his forearm you could suppose that he did have such so he covered it up. We wonder what else he covered up. But we don't have to wonder long. We don't have to wonder hard because he's done a poor job of covering everything else up. * * * * * * There were only four people there at that [sic] time of the deaths; two of them are dead; one is in prison; one is the Defendant. R.T. July 6, 1988, at 78–79, 84.

Cook did not object to these comments at trial. “Opposing counsel must timely object to any erroneous or improper statements made during closing argument or waive his right to the objection, except for fundamental error.” State v. Smith, 138 Ariz. 79, 83, 673 P.2d 17, 21 (1983), cert. denied, 465 U.S. 1074, 104 S.Ct. 1429, 79 L.Ed.2d 753 (1984). Consequently, Cook may be entitled to relief only if the prosecutor's comments rise to the level of fundamental error.

We have previously explained that, in general, it is constitutional error for the prosecution to comment on the defendant's decision not to testify in his own defense. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). Arizona also has a statute precluding such comment. A.R.S. § 13–117(B) (formerly § 13–163(B)). However, to be impermissible, the prosecutor's comments must be calculated to direct the jurors' attention to the defendant's exercise of his fifth amendment privilege. State v. McCutcheon, 159 Ariz. 44, 45, 764 P.2d 1103, 1104 (1988). Such “statements must be examined in context to determine whether the jury would naturally and necessarily perceive them to be a comment on the failure of the defendant to testify.” Schrock, 149 Ariz. at 438, 719 P.2d at 1054; see also State v. Decello, 113 Ariz. 255, 258, 550 P.2d 633, 636 (1976) (prosecutor's comment, “no one, no one, no one got up on this stand and testified to you contrary,” held to be fundamental error); State v. Rhodes, 110 Ariz. 237, 238, 517 P.2d 507, 508 (1973) (prosecutor's comment, “that [defendant] did not have to explain away, or that [defendant] did not explain away off of that witness stand,” held improper) (emphasis omitted).

Considered in the appropriate context, the prosecutor's comment regarding Cook's conversations with Terry Holt was not a comment on Cook's failure to testify or his invocation of his right to remain silent. Cook had listed alibi as one of his defenses, and the prosecutor's statement implies that if Cook had an alibi, he would have mentioned it in his allegedly frequent conversations with Holt. See Schrock, 149 Ariz. at 439, 719 P.2d at 1055 (prosecutor's comment that defendant had no alibi did not create an impermissible inference, but “related only to the fact that the defendant in his statements to the officers did not support the alibi defense defendant had pled”). The prosecutor did not insinuate that Cook had failed to provide an alibi because he had not testified at trial. Cf. State v. Cannon, 118 Ariz. 273, 274, 576 P.2d 132, 133 (1978) (fundamental error for prosecutor to comment in argument that the one question the jury should focus on was where the defendant was, which “ was never answered by the defendant ”) (emphasis in original). Because the prosecutor's comment was not directed at the fact that Cook did not testify, Cook was not denied a fair trial. Nor did the prosecutor's comments regarding Cook's tattoo violate Cook's fifth amendment rights. The comments were part of a rhetorical argument suggesting that Cook had tried to cover up his participation in the murder. There is nothing to suggest that these comments referred to the fact that Cook did not testify or that they were calculated to draw the jury's attention to that fact. Cook's reliance on State v. Ballantyne, 128 Ariz. 68, 623 P.2d 857 (Ct.App.1981), is misplaced. In Ballantyne, the defendant's conviction was reversed because the prosecutor's references to a tattoo during cross-examination and rebuttal were irrelevant and highly prejudicial attempts to prove defendant's bad character and implied the existence of an unsubstantiated and prejudicial factual predicate. The defendant in Ballantyne testified at trial, so the court did not face the issue of improper references to the defendant's fifth amendment rights.

The final comment to which Cook ascribes error arose as a consequence of Cook's attempt to discredit testimony regarding a statement he made to the police. In cross-examining Detective Eaton, Cook attempted to cast doubt on his alleged inculpatory statement by asking why other witnesses' Miranda waivers and statements were recorded, but Cook's alleged inculpatory statement was not: Q. Sir, is it true that everybody else that was interviewed by you was recorded in some way other than myself? A. We recorded Mr. Matzke. At the conclusion of my interview with you, you requested not to be recorded because you didn't want to make a statement. We had the tape playing so we recorded Mr. Watkins. Q. But you didn't record me; is that correct? A. That's correct. You invoked your right to remain silent and I terminated the interview. R.T. June 30, 1988, at 120. Cook immediately objected. After completing his cross-examination, Cook requested that the court declare a mistrial because Eaton had referred to Cook's invocation of his right to remain silent. The court denied the request, stating that the testimony was in response to the line of questioning that Cook had been pursuing for over twenty minutes. Later, during the prosecutor's rebuttal argument, the prosecutor made reference to Eaton's testimony: And what about the videotape. John Matzke made one and we heard continuous cross-examination of the detective about why the Defendant didn't make one. He didn't make one because he, the Defendant, was the one that cut off the interview. If he had made one, you would have had the statements we got to partying a little bit and things got out of hand. My roommate killed one and I killed the other. I killed Kevin. You would have heard the exact same statements. R.T. July 6, 1988, at 84. Cook objected to this comment and, after the arguments were concluded, again moved for a mistrial. The court denied his motion for the same reason it had denied his previous request for a mistrial. The court explained that once the testimony came in, the prosecutor was justified in referring to it in his argument.

We agree with the trial court that any error occasioned by Detective Eaton and the prosecutor's comments was invited by Cook's strategy in questioning why his interview had not been taped. In State v. Arredondo, 111 Ariz. 141, 144, 526 P.2d 163, 166 (1974), we held that remarks by the prosecutor that normally would have been fundamental error were “invited and occasioned by the statements of defense counsel; hence they are not grounds for reversal.” Here, after demonstrating self-restraint that the trial court found remarkable given Cook's questions, Detective Eaton finally explained that Cook did not make a taped statement because Cook himself terminated the interview. Later, to counter Cook's strategy of insinuating that his statement had been coerced or fabricated because it had not been videotaped, the prosecutor explained in his rebuttal argument why no videotape had been made. The prosecutor's point was simply that the fact that Cook's admission had not been videotaped ought not dampen its inculpatory impact. We hold, therefore, that neither Detective Eaton nor the prosecutor violated Cook's fifth amendment rights because their responses were reasonable and pertinent given Cook's entire line of questioning. See State v. Christensen, 129 Ariz. 32, 39, 628 P.2d 580, 587 (1981) (“the remark of the prosecution did not go beyond a pertinent reply and was not reversible error”).

D. Dismissal of Juror

After the state had begun to present its evidence, the court granted a motion by the prosecutor to excuse a juror for cause. In making his motion, the prosecutor informed the court that a juror had attempted to speak with him and has spoken at length in detail with her co-workers concerning the goings on at the trial which she has witnessed. She has also made representatives [sic] as to her opinion as to the guilt or innocence of Mr. Cook.... Based on that, I believe we have a problem with [the juror]. She is incapable of following your admonitions. R.T. July 5, 1988, at 7.FN2 FN2. The judge later asked the prosecutor “out of curiosity” how the matter had come to his attention. The prosecutor explained that the wife of one of the juror's co-workers at the Bureau of Land Management worked for Mohave County; she informed a deputy county attorney, who in turn relayed the information to him.

The trial judge then interviewed the juror on the record with Cook and the prosecutor present. When asked if there was something she had wanted to communicate to the prosecutor, she explained that she had approached him and “asked him if it was proper for me to speak with him. He said no so then I was going to wait and see and speak with you a little later.” She said that a few days earlier, on July 1 (while the court was in recess), the prosecutor had called her office and spoken to her co-workers. She admitted that there had been comments made about the trial between her and co-workers, but denied talking about the trial testimony. She said that she had told her co-workers that she “didn't think it was a well-organized trial and ... some of the witnesses looked—well, made themselves look as if [they] didn't know what they were talking about.” She also said that her “co-workers would say did you hang him yet and I would say no....” She told the trial judge that “if you feel that I should be disqualified because of that, I'm willing to be disqualified because I don't care for my co-workers to be harassed on the job [by the prosecutor].” She also told him that she had formed no opinion as to Cook's guilt or innocence, and denied having said anything to her co-workers that could have been taken to mean that she had.

When questioned by the prosecutor, she admitted having been asked by co-workers whether the photographs and videotape shown at trial had made her sick and having responded that they had not. She also admitted having said that the victims looked in the photographs like they were asleep, but denied having gone into any detail. Cook argued at trial that the juror should not be dismissed because the only basis for excusing her was the prosecutor's own statements, and the juror had denied the prosecutor's allegations. The judge nevertheless excused her from the jury, finding that “even though at least as far as her description of it, it perhaps sounds innocuous,” it was clear that she had disobeyed his admonitions. Fourteen jurors had originally been seated to hear the trial, and one had already been excused, so when the challenged juror was excused the trial proceeded with the remaining twelve jurors.

Cook claims on appeal that the dismissal of the juror denied him the “right to a fair trial by jury.” Cook did not move for a mistrial, nor did he claim error on this ground in his motion for a new trial.FN3 FN3. One of Cook's grounds for a new trial was that the “prosecution is guilty of misconduct, by mingling with the jurors.” At a hearing on Cook's motion, the trial court ruled that there was no evidence before him that the prosecutor had mingled with the jurors. Under the Arizona Rules of Criminal Procedure, [w]hen there is reasonable ground to believe that a juror cannot render a fair and impartial verdict, the court, on its own initiative, or on motion of any party, shall excuse him from service in the case. A challenge for cause may be made at any time.... Rule 18.4(b).FN4 Challenges for cause are permitted even after the jury has begun to hear evidence. State v. Evans, 125 Ariz. 140, 142, 608 P.2d 77, 79 (Ct.App.1980). FN4. An earlier version of this rule, contained in the 1956 Arizona Rules of Criminal Procedure, contained a catalogue of fifteen grounds for dismissing a juror for cause. As the official comments to the current Rule 18.4(b) explain, [t]he omission of the list is intended to direct the attention of attorneys and judges to the essential question—whether a juror can try a case fairly. A challenge for cause can be based on a showing of facts from which an ordinary person would imply a likelihood of predisposition in favor of one of the parties.

Determining whether there are reasonable grounds to believe that a juror cannot render a fair and impartial verdict is within the discretion of the trial judge. Only the trial judge has the opportunity to observe the juror's demeanor and the tenor of his or her answers first hand. Consequently, we will not disturb the decision of the trial court on appeal unless there is a clear showing that the court abused its discretion. State v. Chaney, 141 Ariz. 295, 303, 686 P.2d 1265, 1273 (1984).

We find no abuse of discretion. While the circumstances through which this matter was brought to the court's attention were irregular, it was reasonable for the trial judge to determine that the juror's ability to render a fair and impartial verdict had become suspect. She admitted to the judge that she had commented on the trial with her co-workers despite the judge's clear admonitions not to discuss the case with outsiders. We recognize that some discussion by jurors of their pending cases may be inevitable. See Bruce v. Duckworth, 659 F.2d 776, 781 (7th Cir.1981) (“It is unrealistic and impossible to expect or require that a jury be a laboratory completely sterilized and freed from all external factors.”), cert. denied, 455 U.S. 955, 102 S.Ct. 1464, 71 L.Ed.2d 673 (1982). Nevertheless, the trial court had evidence of specific violations of its admonitions to the jurors. These violations went beyond casual utterances regarding, for example, the length of the trial or similar matters, but instead concerned the conduct of witnesses and the content of specific exhibits. The court did not abuse its discretion in determining that there was cause to strike the juror for violation of its admonition. See Buchanan v. State, 263 Ind. 360, 332 N.E.2d 213, 218 (1975) (juror who admitted violating court's admonition about discussing the case dismissed over defendant's objection). See generally 50 C.J.S. Juries § 290 (1947 & Supp.1991).

We are aware that there was a high probability that the juror in question would have been one of the jurors that deliberated Cook's verdict had she not been excused.FN5 We are also aware that the prosecutor may have been motivated to seek the juror's dismissal at least in part because she had expressed a negative opinion about the presentation of the state's case. In certain circumstances there may be constitutional constraints on the trial court's exercise of discretion regarding whether to excuse a juror for cause, particularly when a juror has indicated that, from the evidence heard, he or she might be disinclined to vote for a conviction. See United States v. Brown, 823 F.2d 591, 596–97 (D.C.Cir.1987) (reversal required under constitutional right to unanimous jury verdict when juror requested to be and was dismissed after deliberations had begun because the request may have stemmed from juror's belief that evidence was insufficient to support a conviction). In other circumstances, when there is no basis for the trial court's dismissal for cause, it may be prejudicial error requiring reversal to dismiss a juror who has disclosed opposition to a verdict sought by the prosecution. People v. Hamilton, 60 Cal.2d 105, 32 Cal.Rptr. 4, 16–17, 383 P.2d 412, 424–25 (1963). FN5. Before the juror was excused, there had been thirteen jurors hearing the case. Because the alternate was to be selected by lot pursuant to Rule 18.5(h), there was a 12 in 13 chance that some other juror would have been the one excused before deliberations began.

We need not adopt or reject these opinions from other jurisdictions because Cook's case can be distinguished. In Hamilton, the reviewing court found that the trial court had erred in dismissing a juror because there was no factual basis to support the reason given by the trial court for the dismissal. The reviewing court went on to address the fact that the juror had expressed ostensible opposition to the verdict sought by the state in order to determine whether the trial judge's error was prejudicial. Here, in contrast, we have held that, given the facts before the trial court, the judge acted within his discretion in excusing the juror for violating his admonition. Because we have found no error, there is no issue of prejudice. In Brown, the juror asked to be dismissed after the jury had begun deliberating, and not because he had violated the trial judge's admonitions but rat her because he felt he could not exercise his duty as an impartial juror. The record indicated that there was a “substantial possibility” that the juror “requested to be discharged because he believed that the evidence offered at trial was inadequate to support a conviction.” 823 F.2d at 596. Here, however, the juror told the judge that she had not yet formed any opinion as to Cook's guilt or innocence. Cf. Hamilton, 32 Cal.Rptr. at 17, 383 P.2d at 425 (to excuse juror who had expressly indicated she was disinclined to render verdict sought by the state was “tantamount to ‘loading’ the jury”).

The fact that we find no error does not excuse the conduct of the prosecutor. What happened in this case serves as a clear illustration of why, in most circumstances, the proper procedure upon becoming aware of possible juror misconduct is to inform the court as soon as possible and let the court conduct whatever investigation it deems warranted. Cf. State v. Cady, 248 Kan. 743, 811 P.2d 1130, 1140 (1991) (“The State's failure immediately to report to the court and to [defense] counsel the possibility of a juror's misconduct casts dark shadows upon the Fourteenth Amendment's guarantees of due process and the fundamental right to a fair trial.”). Regardless of what the juror had actually said or done, and regardless of the source and reliability of the prosecutor's information, by conducting an investigation involving personal contacts with the juror's co-workers, the prosecutor created a situation in which it was only natural for the juror to “have at least an inhospitable attitude toward Counsel for the State.” R.T. July 5, 1988, at 14. Had the court been given an opportunity to conduct its own inquiry, it might have discreetly excused the juror, or determined that the she was still fair and impartial and able to continue on the case. See Cady, 811 P.2d at 1141 (“If the prosecution had immediately reported the incident to the trial judge, the judge could have taken remedial action prior to discharging the alternate jurors.”).

Once the prosecutor had alienated the juror through his unauthorized investigation, the court's only realistic choices were to declare a mistrial or excuse the juror, neither of which is an ideal result.FN6 Furthermore, by conducting his own investigation of the juror, and then contradicting her sworn testimony before the judge based on his personal knowledge, the prosecutor effectively made himself a witness in the case.FN7 See ER 3.7, Rule 42, Ariz.R.Sup.Ct., 17A A.R.S. Finally, regardless of whether it was ultimately appropriate for the trial judge to excuse the juror, we believe that the judge himself should have identified and criticized the irregularity of the prosecutor's conduct in conducting his investigation and at the hearing. Hopefully he did so, although such action does not appear on the record. FN6. Cook did not move for a mistrial when the juror was excused, so we need not and do not decide whether the court would have erred in denying such a motion. Having failed to move for a mistrial, and having thereby gambled on the results of the verdict from the twelve remaining jurors, Cook cannot claim the court erred in not granting a mistrial or in abridging his right to have the trial concluded before the jury that would, to a 12/13 probability, have included the juror that was excused. See ante note 5. The prosecutor is nevertheless fortunate that reasonable grounds (outside of the juror's alleged antipathy toward him) were present to excuse the juror, for otherwise his conduct might have resulted not only in a mistrial, but in a double jeopardy bar to a new trial. See comment to Rule 18.4(b); Evans v. Abbey, 130 Ariz. 157, 634 P.2d 969 (Ct.App.1981); Pool v. Superior Court, 139 Ariz. 98, 677 P.2d 261 (1984). FN7. During his examination of the juror, the prosecutor stated: “Your Honor, I would avow to the Court [the juror's co-worker] gave me a fairly detailed description of the videotape, [sic] of the walk-through and he claimed he had gotten that through conversation with [the juror].” R.T. July 5, 1988, at 13 (emphasis added).

E. Denial of Continuances

Cook claims that the trial court deprived him of a fair trial by refusing to continue the trial to provide him with the opportunity to secure the testimony of two witnesses, Brian Galvin and James Dominic. Grant of a motion to continue “is within the discretion of the trial court, and its decision will only be disturbed upon a showing of a clear abuse of such discretion and prejudice to the defendant.” Amaya–Ruiz, 166 Ariz. at 164, 800 P.2d at 1272. In a hearing on his motion for a continuance, Cook asserted that Galvin would testify to Matzke's past and to the circumstances of the murders. The court stated its assumption—which Cook did not challenge—that the purpose of the testimony would be to show that Matzke was a homosexual and had engaged in various homosexual activities in the past, and that at some time in the past Matzke had beaten a victim with a club. The judge refused to grant a continuance because he believed that Galvin's testimony would be cumulative since these facts could be established by other witnesses, including Matzke himself.

During the trial, Cook informed the court that he wanted to call Dominic to the stand, but that he and his investigator had not yet been able to contact and interview him. Cook said that Dominic would testify to the character of Matzke, Cruz Ramos, and Swaney, and that he believed his investigator was currently conducting the interview. The court did not believe that Cook's offer of proof contained relevant information regarding Cruz Ramos or Swaney, but believed that further impeachment of Matzke would be cumulative and would “pale in comparison” to what Matzke himself had already admitted in court. The court therefore ruled that it would not continue the trial to wait for Dominic's possible testimony. The court did, however, agree not to rule out the possibility that Cook might be allowed to reopen his case and present Dominic's testimony should the interview produce relevant and significant information, but Cook did not thereafter renew his request to call Dominic to the stand. The trial judge thoroughly considered the circumstances of the requests before determining that the testimony Cook sought to secure would be irrelevant or cumulative. The court had already granted eight defense motions for continuances, including one made by Cook himself after taking over his own defense. Cook has not demonstrated any prejudice stemming from the trial court's rulings. Matzke did, in fact, admit on the stand the facts that Cook had stated he intended to establish through the unavailable witnesses. FN8 Nor did Cook inform the court whether his investigator had been able to locate Dominic, or whether Dominic had any relevant testimony to add. We therefore find that the trial court did not abuse its discretion in denying Cook's requests for continuances. FN8. Matzke took the stand at trial and admitted his participation in the killings and in the torture of Cruz Ramos. He further admitted having had homosexual relationships, having hit a fellow student in the head with a hockey stick in eighth grade, and having previously undergone substance abuse counseling.

F. Edwards Claim

At the initial appearance before the Lakew Havasu City Justice Court on July 21, 1987, the judge appointed an attorney for Cook. At the conclusion of the hearing, the judge asked Cook if he had any questions. According to Officer Richard Funder of the Lake Havasu City Police Department, Cook responded “if I'm found guilty of this, I want the death penalty.” Prior to trial, Cook moved to suppress his statement, arguing that it was obtained in violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). The trial court denied Cook's motion, finding that although Cook was in custody, he was not being interrogated at the time he made the statement, and that his statement was voluntary. Testimony about Cook's statement was ultimately admitted at trial. The trial court was correct in ruling that the Lake Havasu City Court judge did not interrogate Cook when he asked Cook if he had any more questions. Because Cook's statement did not result from a custodial interrogation, his Edwards rights were not violated. Id. at 486–87, 101 S.Ct. at 1885 (citing Rhode Island v. Innis, 446 U.S. 291, 298 n. 2, 100 S.Ct. 1682, 1688 n. 2, 64 L.Ed.2d 297 (1980)).

Cook also challenges the admission of his statement on relevance grounds. He argues that the statement was admitted in contravention of the court's order precluding reference to the possible punishment.FN9 Cook made no objection when Officer Funder testified to his statement at trial. Because Cook did not object, the trial judge had no opportunity to consider the testimony in relation to the order in limine regarding references to punishment or to conduct a Rule 403 hearing. FN9. Cook's motion to suppress the statement and the state's motion in limine regarding references to punishment were argued at the same evidentiary hearing. The motion to suppress was argued first, so at the time that motion was denied, the court had not yet ruled on the motion in limine.

Ordinarily, absent fundamental error, objection for the first time on appeal is waived; however, “where a motion in limine is made and ruled upon, the objection raised in that motion is preserved for appeal, despite the absence of a specific objection at trial.” State v. Burton, 144 Ariz. 248, 250, 697 P.2d 331, 333 (1985). Cook did not raise the issue of relevance in his written motion in limine, but at the hearing on the motion he did argue that the statement was irrelevant because the jury was not to take into consideration any comments about the possible penalty he might face if convicted.FN10 The issue of the statement's relevance was thus arguably preserved for appeal, and we therefore address the merits of Cook's claim. FN10. The trial judge did not expressly rule on the relevance challenge, but simply denied the suppression motion.

Cook's statement would be irrelevant if offered to suggest to the jury that he might face the death penalty if convicted. There is, however, another plausible purpose for the statement: the statement could reasonably be interpreted as evidence of a guilty mind, and would as such be relevant on the issue of guilt. “For Rule 401 purposes, evidence is relevant if it has any tendency to make the existence of any fact that is of consequence more or less probable than it would be without the evidence.” State v. Oliver, 158 Ariz. 22, 28, 760 P.2d 1071, 1077 (1988). If the jury believed the statement to be evidence of Cook's culpable mental state, its probative value would outweigh any unfair prejudice to Cook from having the death penalty merely mentioned in front of the jury. The problem here was one of interpretation, a matter within the province of the jury, and we believe the trial judge did not abuse his discretion by allowing the jury to consider the statement.

G. Matzke's Plea Agreement

Cook claims that the terms of the plea bargain through which the state secured Matzke's testimony against him violated his due process and confrontation rights under the state and federal constitutions. On October 30, 1987, Matzke agreed to plead guilty to one count of second degree murder and to testify against Cook. In return, the state dropped the first degree murder charges against him. The plea agreement contained the following provision: John Eugene Matzke will, during such interviews and during such testimony, provide truthful responses to any questions put to him and will not knowingly make any false or misleading statements. The making by John Eugene Matzke of two or more statements during such testimony or interviews which are inconsistent, so that at least one of them must be false, will be considered a violation of this Agreement without the State being required to establish which statement was false. (Emphasis added.)

Cook does not, and cannot, challenge the requirement that Matzke testify fully and truthfully. Rather, Cook argues that the state improperly influenced Matzke to testify against him. The essence of Cook's argument is that Matzke's trial testimony was wrongly coerced because his plea agreement was conditioned on his testimony being consistent with prior statements he had made to the police and prosecution. If he violated the condition, his plea bargain could be rescinded and first degree murder charges reinstated against him. Matzke had already made a videotaped confession to the police, and if the charges were reinstated he would face, as he was told by the judge who had accepted his guilty plea, “an almost certain death penalty.” We faced a plea bargain raising similar concerns in State v. Fisher, 141 Ariz. 227, 686 P.2d 750, cert. denied, 469 U.S. 1066, 105 S.Ct. 548, 83 L.Ed.2d 436 (1984). Fisher concerned whether a witness was improperly motivated to assert the fifth amendment and refuse to testify at trial to secure the benefits of a plea agreement. That plea agreement contained a provision that “if she is called as a witness ... and required to testify, her testimony will not vary substantially in relevant areas to statements previously given....” Id. 141 Ariz. at 244, 686 P.2d at 767. This court remarked that the plea agreement was “unusual, if not unethical,” but held that the witness' decision to assert the fifth amendment was not necessarily motivated by the plea agreement. We noted that [t]hough we need not determine the validity of this agreement, we do question its propriety. We recognize the benefits to be gained from granting a defendant immunity in exchange for truthful testimony, and for granting plea bargains in the interest of judicial economy.... [Citation omitted.] The instant case involves more than that. The prosecution did not condition conviction for a lesser offense on a defendant's promise to tell the truth. Instead, the prosecution conditioned conviction for a lesser offense on a defendant's promise to be consistent. By doing so, the prosecution may have overstepped the bounds of the law and its ethical responsibility to “scrupulously avoid any suggestion calculated to induce the witness to suppress or deviate from the truth, or in any degree to affect his free and untrammeled conduct when appearing at the trial or on the witness stand.” A.B.A. Canons of Professional Ethics 39. We remind the prosecution that a public prosecutor's duty is “to seek justice, not merely to convict” and that a public prosecutor should not intentionally avoid pursuit of evidence merely because he believes it will damage his case or aid the accused. A.B.A. Model Code of Professional Responsibility, Ethical Consideration 7–13. 141 Ariz. at 244 n. 5, 686 P.2d at 767 n. 5 (emphasis added).

Cook made no pre-trial motion to suppress Matzke's testimony. Nor did he object when Matzke was called to testify at trial or when Matzke's testimony revealed the terms of his plea agreement. Absent fundamental error, Cook thus waived any claim that the trial judge erred in failing to suppress Matzke's testimony because of the offending provision in the plea agreement. Further, the trial judge, having heard no objection on this issue, had no occasion to develop a record or issue an appropriate remedial order.

The record in this case is inadequate to permit us to determine as a factual matter whether Matzke's plea agreement was such that his testimony was coerced, thus denying Cook a fair trial. Matzke testified at trial that his plea agreement provided that “[i]f I change my testimony or deviate from what it was before, I be held [sic] in perjury and plea can be denied,” but he also testified that he had agreed “to tell the truth about what happened that night.” R.T. June 28, 1988, at 18, 52. We have previously suggested that this court is not the appropriate forum in which to raise for the first time a claim of ineffective assistance of counsel because such a determination requires an examination of the record as a whole to establish the reasons behind counsel's actions or inactions. See State v. Valdez, 160 Ariz. 9, 14–15, 770 P.2d 313, 318–19 (1989). It is likewise inappropriate for us to consider the fundamental error issue that Cook raises for the first time here; the trial court has not had the opportunity to conduct an evidentiary hearing on the question and to develop a record on the issue for us to examine on appeal. The preferred procedure is for Cook to raise the issue of whether Matzke's testimony was impermissibly coerced because of the plea agreement in a proceeding for post-conviction relief. See id. at 15, 770 P.2d at 319. Our ruling here does not foreclose this possibility.

We recognize that there is a line of cases holding that when an accomplice testifies under an agreement containing a provision conditioning the agreement on testimony consistent with prior statements, the testimony is so tainted that its admission violates the defendant's right to a fair trial. E.g., People v. Medina, 41 Cal.App.3d 438, 116 Cal.Rptr. 133 (1974). Cf. United States v. Dailey, 759 F.2d 192 (1st Cir.1985); Humboldt County Sheriff v. Acuna, 107 Nev. 664, 819 P.2d 197 (1991) (so long as plea agreement is not contingent upon state obtaining a conviction, and testimony is not scripted, due process is not violated, and existence of plea bargain goes to weight rather than admissibility of evidence). Because we are unable to address the merits of Cook's position on the record before us, we do not decide whether to adopt the rationale of Medina, Dailey, Acuna, or another position. We adhere, however, to our view of the ethical problems inherent in contingent plea agreements that we elaborated in Fisher. We are constrained merely to comment that we consider it strange that such an agreement be made three years after Fisher' s warning about the use of such agreements and that counsel failed to call the issue to the court's attention.

H. Denial of Instruction on Second Degree Murder

Cook requested that the trial court instruct the jury on second degree murder. He claims the court erred in refusing the instruction. “In capital cases, the trial judge must instruct” the jury on all “those lesser included offenses that the evidence will support.” State v. Clabourne, 142 Ariz. 335, 345, 690 P.2d 54, 64 (1984); see also Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980); State v. Schad, 163 Ariz. 411, 417, 788 P.2d 1162, 1168 (1989), aff'd, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991). On the other hand, “the trial judge need not instruct” the jury on “lesser included offenses which are not supported by the evidence.” Clabourne, 142 Ariz. at 345, 690 P.2d at 64. “To warrant the charge of second degree murder, the evidence reasonably construed must tend to show a lack of premeditation and deliberation. ‘ The presence of such evidence is the determinative factor.’ ” Id. (quoting State v. Sorensen, 104 Ariz. 503, 507, 455 P.2d 981, 985 (1969)) (emphasis in original); see also Schmuck v. United States, 489 U.S. 705, 716 n. 8, 109 S.Ct. 1443, 1450 n. 8, 103 L.Ed.2d 734 (1989) (Supreme Court's decision in Schmuck “in no way alters the independent prerequisite for a lesser included offense instruction that the evidence at trial must be such that a jury could rationally find the defendant guilty of the lesser offense, yet acquit him of the greater”).

In this case, the trial court refused Cook's proposed instruction on second degree murder because the court did not see “any basis upon which the jury could feel that the Defendant committed these murders without premeditation.” Matzke's testimony at trial indicated that he and Cook had discussed killing Cruz Ramos and had decided to kill him at least thirty minutes before they actually committed the murder. In addition, Cruz Ramos died from strangulation, and Matzke's testimony further indicated that, because of several unsuccessful attempts, fifteen minutes passed between the time that the attempt to murder Cruz Ramos began and the time that Cruz Ramos appeared to die. Swaney also died from strangulation. Matzke testified that he and Cook tried to strangle Swaney with a sheet, and when they failed Cook said “this one's mine” and proceeded to kill Swaney. There was no evidence that these murders were committed in the heat of passion or as the result of a quarrel. See A.R.S. § 13–1101(1). The record supports the trial court's finding that there was no basis for a jury to find that the murders were committed without premeditation, and we will not disturb that finding.

Cook also argued at trial, and argues again on appeal, that he was entitled to a jury instruction on second degree murder because Matzke was permitted to plead guilty to second degree murder. Cook contends that under Rules 17.3 and 26.2(c) the judge was required to establish that there was a factual basis for Matzke's plea before accepting it; therefore, there must also have been facts warranting an instruction on second degree murder for Cook. Despite its syllogistic appeal, we reject this argument. The fact that a judge accepted Matzke's guilty plea to a charge that did not include an element of premeditation is irrelevant. The overwhelming evidence before the court at trial was that Cook either killed with premeditation or not at all. The trial court did not err in refusing to instruct the jury on second degree murder.

II. Death Penalty Issues

Whenever the trial court imposes the death penalty, we review the record and make a separate and independent determination of whether the death sentence is appropriate. State v. McMurtrey ( McMurtrey I ), 136 Ariz. 93, 101, 664 P.2d 637, 645, cert. denied, 464 U.S. 858, 104 S.Ct. 180, 78 L.Ed.2d 161 (1983). We do this by reviewing the aggravating and mitigating circumstances found by the trial court to ensure that they were properly determined and weighed. State v. Richmond, 114 Ariz. 186, 196, 560 P.2d 41, 51 (1976), cert. denied, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1101 (1977).

A. Aggravation/Mitigation Issues

The trial judge held an aggravation/mitigation hearing, and returned a special verdict pursuant to A.R.S. § 13–703(F). He found the following aggravating circumstances to apply to the murders of both Cruz Ramos and Swaney: (1) each murder was committed in an especially cruel, heinous, and depraved manner under § 13–703(F)(6); and (2) Cook was convicted of another homicide committed during the commission of each murder under § 13–703(F)(8). He also found that the murder of Cruz Ramos was committed in expectation of pecuniary gain under § 13–703(F)(5). The trial judge found no mitigating factors, and therefore sentenced Cook to death on both counts of first degree murder.

1. Aggravating Circumstances
a. Especially Cruel, Heinous, or Depraved

Cook argues that the trial court erred in finding that the murder of Cruz Ramos was especially cruel, heinous, or depraved because it was Matzke, not Cook, who actually killed the victim. Although Cook was not convicted of felony murder, the trial court nevertheless made an Enmund/Tison finding that Cook's involvement in the murder was sufficient to warrant a possible death sentence. See Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). While Matzke ultimately succeeded in strangling Cruz Ramos by himself, he did so only after he had been unable to do so with Cook's assistance in pushing the pipe against Cruz Ramos' throat. The record clearly supports the trial court's finding that Cook assisted in the murder of Cruz Ramos. See State v. Correll, 148 Ariz. 468, 477–78, 715 P.2d 721, 730–31 (1986) (defendant helped bind victims, drove them into desert, and encouraged actual killer to kill one victim). Next, we must determine whether the trial judge properly determined that the murders were especially cruel, heinous, or depraved. “The terms ‘cruel, heinous, or depraved’ are considered disjunctively; a finding of any one of the three constitutes an aggravating circumstance under our statute.” Amaya–Ruiz, 166 Ariz. at 177, 800 P.2d at 1285. “To support a finding of cruelty, the state must prove beyond a reasonable doubt that the victim was conscious and suffered pain or distress at the time of the offense.” State v. Jimenez, 165 Ariz. 444, 453, 799 P.2d 785, 794 (1990) (citing State v. Villafuerte, 142 Ariz. 323, 690 P.2d 42 (1984), cert. denied, 469 U.S. 1230, 105 S.Ct. 1234, 84 L.Ed.2d 371 (1985)). The facts recounted at the beginning of this opinion leave no doubt that the killings were “cruel” as we have defined the term.

“The terms ‘heinous' and ‘depraved’ focus upon a defendant's state of mind at the time of the offense.” Amaya–Ruiz, 166 Ariz. at 178, 800 P.2d at 1286. An especially heinous murder is one “that is ‘hatefully or shockingly evil,’ ” and a “murder is depraved if ‘marked by debasement, corruption, perversion or deterioration.’ ” Id. (quoting State v. Knapp, 114 Ariz. 531, 543, 562 P.2d 704, 716 (1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1458, 55 L.Ed.2d 500 (1978)). The facts of these killings provide a clear example of what we meant in Knapp. We have set forth five factors to be considered in determining whether a defendant's conduct was especially heinous or depraved: 1. the relishing of the murder by the defendant; 2. the infliction of gratuitous violence on the victim beyond that necessary to kill; 3. mutilation of the victim's body; 4. the senselessness of the crime; and 5. the helplessness of the victim. Amaya–Ruiz, 166 Ariz. at 178, 800 P.2d at 1286 (quoting 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)). Again, the facts of these killings fit within the factors enumerated.

The trial court found, and we agree, that both murders were so especially cruel, heinous, and depraved that it was needless to belabor the issue. There is no doubt in our minds that each of these crimes of brutal and senseless torture, sodomy, and murder falls clearly within § 13–703(F)(6), if not at the extreme end of the spectrum.

b. Expectation of Pecuniary Gain

The trial court found that Cook murdered Cruz Ramos in expectation of pecuniary gain under A.R.S. § 13–703(F)(5). The court made an analogy to cases in which murder was committed “to successfully complete or to get away with the robbery.” In State v. LaGrand, 153 Ariz. 21, 35, 734 P.2d 563, 577, cert. denied, 484 U.S. 872, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987), we explained that “the state must show the actor's motivation was the expectation of pecuniary gain,” and that “[p]ecuniary consideration must be a cause of the murder, not merely a result” (quoting State v. Carriger, 143 Ariz. 142, 161, 692 P.2d 991, 1010 (1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 864 (1985); State v. Libberton, 141 Ariz. 132, 139, 685 P.2d 1284, 1291 (1984)). We held that the fact the defendant was in the bank to commit a robbery “infect[ed] all other conduct.” LaGrand, 153 Ariz. at 35, 734 P.2d at 577. We agree with the trial court that the first murder was committed in expectation of pecuniary gain. The events leading to Cruz Ramos' murder began when Cook stole approximately $90 from Cruz Ramos' money pouch. Shortly thereafter, Cruz Ramos noticed his money pouch was missing. Cook told him to look upstairs in the bathroom, and then told him to look in Cook's bedroom. Once in Cook's bedroom, Cook pushed Cruz Ramos down on the bed. Matzke ripped up a couple of bed sheets, and together they tied up Cruz Ramos. Cook then hit Cruz Ramos in the face with his fists and asked him how much money he had. Cruz Ramos replied “about $90,” and Cook took money out of his own pants pocket, said “$97,” and threw the money on the ground. Cook and Matzke subsequently rummaged through Cruz Ramos' possessions to “see if he had anything else stashed.” After Cruz Ramos got loose and tried to flee, Cook and Matzke caught him and bound him more securely. Events then escalated, concluding in Cruz Ramos' murder.

The causal link between the robbery and the murder is clear. Cruz Ramos was bound to a chair after discovering the robbery, both to keep him from escaping and to allow Cook and Matzke to determine whether he had anything else they could steal. When Cruz Ramos tried to escape, he was bound and tortured. When Cook and Matzke decided they could not let him go, he was finally killed. Compare cases in which pecuniary gain was found: State v. Marlow, 163 Ariz. 65, 786 P.2d 395 (1989) (defendant kidnapped man who had been flashing money in Las Vegas, robbed him shortly after driving into Arizona, took him out of the car and kicked him over a cliff, then hit him on the head with a boulder); State v. Rockwell, 161 Ariz. 5, 775 P.2d 1069 (1989) (defendant robbed gas station and killed the attendant); State v. Walton 159 Ariz. 571, 769 P.2d 1017 (1989) (defendant and accomplices robbed victim in parking lot; defendant then took victim into the desert and shot him), aff'd, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990); State v. Stevens, 158 Ariz. 595, 764 P.2d 724 (1988) (defendant robbed co-worker and another victim at gunpoint, then shot the latter); State v. Nash, 143 Ariz. 392, 405, 694 P.2d 222, 235 (defendant shot employee at coin shop, then stole $600; court found “plan to rob and a murder which furthered that plan”), cert. denied, 471 U.S. 1143, 105 S.Ct. 2689, 86 L.Ed.2d 706 (1985); and State v. Hensley, 142 Ariz. 598, 691 P.2d 689 (1984) (defendant made witnesses to bar robbery lie on the floor, then shot them); with cases where pecuniary gain was not established: State v. Prince, 160 Ariz. 268, 772 P.2d 1121 (1989) (defendant killed victim to whom he owed money from drug transactions, but evidence did not demonstrate beyond a reasonable doubt that he had killed victim to escape the debt); State v. Wallace, 151 Ariz. 362, 728 P.2d 232 (1986) (defendant killed his girlfriend and her children, then took $10 from her purse and went in her car to liquor store; court found taking of property to be incidental to the murder), cert. denied, 483 U.S. 1011, 107 S.Ct. 3243, 97 L.Ed.2d 748 (1987); State v. James, 141 Ariz. 141, 685 P.2d 1293 (court would not find pecuniary gain since jury had acquitted defendant on aggravated robbery and theft charges), cert. denied, 469 U.S. 990, 105 S.Ct. 398, 83 L.Ed.2d 332 (1984); and State v. Gillies, 135 Ariz. 500, 662 P.2d 1007 (1983) (defendant kidnapped and repeatedly raped victim, took her to her home and raped her again, and only then rifled through her possessions and took bank card and other valuables before killing her; court found that evidence, including defendant's confession, indicated he killed her to eliminate her as witness to her own rape).

c. Conviction on One Homicide Committed During the Commission of Another

The trial court found as an aggravating circumstance that Cook had “been convicted of one or more other homicides, as defined in § 13–1101, which were committed during the commission of the offense.” A.R.S. § 13–703(F)(8). Cook challenges this finding on two grounds. First, he argues that the trial court improperly considered this aggravating circumstance sua sponte. Second, he argues that, as a factual matter, the two homicides were unrelated and separated by several hours, and thus may not each be considered as “committed during the commission of the [other] offense.” On August 5, 1988, the prosecutor sent a sentencing memorandum to the court and to Cook. The sentencing hearing took place three days later. The prosecutor offered no new evidence at the sentencing hearing, but relied instead on evidence adduced at trial. Cook offered no rebuttal evidence other than a general statement of his innocence and the fact that he had not been charged or convicted of a felony or violent crime prior to his arrest on July 21, 1987. Cook added that the “[o]nly sentence I will accept from this Court at this time is the penalty of death.” R.T. August 8, 1988, at 4.

The trial court noted at the sentencing hearing that the prosecutor had not discussed the applicability of the § 13–703(F)(8) aggravating circumstance in his sentencing memorandum. The judge asked the prosecutor whether he had simply overlooked that factor, or whether he felt that it did not apply to Cook's case. The prosecutor replied that “[i]t was simply overlooked.” The court nevertheless found this aggravating circumstance to be present. We have previously held that due process in a § 13–703 hearing requires that the prosecutor give defendant “(1) disclosure of the aggravating circumstances the state will seek to prove; (2) disclosure of the evidence the state will use; and (3) disclosure sufficiently in advance of the hearing that the defendant will have a reasonable opportunity to prepare rebuttal.” State v. Ortiz, 131 Ariz. 195, 207, 639 P.2d 1020, 1032, cert. denied, 456 U.S. 984, 102 S.Ct. 2259, 72 L.Ed.2d 863 (1982). Even short notice may be timely where a defendant could have offered no rebuttal, did not ask for a continuance of the hearing, and was not prejudiced. Id. 131 Ariz. at 208, 639 P.2d at 1033 (two days' notice to defense sufficient for prosecutor to use defendant's concurrent conspiracy conviction as a § 13–703(F)(1) prior conviction). Cook neither objected to the court's consideration of § 13–703(F)(8) nor requested a continuance. In addition, the fact of Cook's two murder convictions was evident from the verdict itself, so there was nothing for Cook to rebut. Under these circumstances, it is obvious that the prosecutor's failure to notify Cook about this aggravating circumstance did not prejudice Cook in any way.

Cook's contention that the two murders were not sufficiently factually related to establish the § 13–703(F)(8) aggravating factor is without merit. The two murders were committed during “a continuous course of criminal conduct.” Lavers, 168 Ariz. at 394, 814 P.2d at 351. Swaney was detained because he had been shown the corpse of Cook and Matzke's first victim. He was then sodomized and murdered because Cook and Matzke decided they could not let him go after what he had seen. The trial court found that “even though there were perhaps a couple of hours that separated the murders ... they were for all practical purposes committed at the same time and [in] one continuous course of conduct.” R.T. August 8, 1988, at 15. We agree. FN11. We acknowledge that the killings were not committed as part of a common scheme, nor did they arise out of a common intent to commit murder or out of a plan to eliminate witness who came upon the scene. Unlike what occurred in Lavers, the victims were not present together at the crime scene.

Nevertheless, even if Cook were correct that the homicides may not have been committed “during the commission of the offense,” a different aggravating factor would be present. If the homicides were not simultaneous, then they were successive, and the aggravating factor in § 13–703(F)(1) would be present, at least with respect to the murder of Swaney. See State v. Smith, 131 Ariz. 29, 30–31, 638 P.2d 696, 697–98 (1982) (defendant was convicted of two counts of first degree murder, and conviction on each count was used as an aggravating circumstance for the other count). 2. Mitigating Factors Cook offered no evidence in support of any mitigating factors to supplement the evidence already presented at trial. He requested only that the trial court consider the fact that he had never before been charged or convicted of a felony or violent crime. The trial court considered this evidence,FN12 but found no mitigating circumstances. In coming to this conclusion, the trial judge stated that he had reviewed the presentence report, the Rule 11 reports,FN13 the state's sentencing memorandum, all other matters that had been addressed, all hearings that had been held, a letter from Cook to the probation officer who prepared the presentence report, and the testimony at trial.

FN12. The trial judge found that given Cook's extensive history of misdemeanors, his lack of previous felonies or violent crimes was not a circumstance to be weighed in mitigation. FN13. These reports were prepared in the course of determining that Cook was competent to stand trial, and consist of evaluations by mental health professionals. See Rule 11.

a. Defendant's Intoxication and Mental History

Cook argues that the trial court's preclusion of evidence of intoxication at trial resulted in the court's rejection of intoxication as a mitigating factor. We have already explained that the preclusion applied only to the trial, and not to the sentencing hearing, and there is nothing in the record to indicate that Cook was misled to believe otherwise. The mere fact that Cook, who chose to represent himself, did not fully understand this distinction is not grounds for relief. We note again that Cook did not present evidence of intoxication, nor of any other mitigating factor, at the sentencing hearing. Our review of the trial court's finding is therefore based on the evidence in the record before the trial court.

Cook also claims that the trial court erroneously refused to consider his history of mental problems as a mitigating circumstance. He states that the record contained undisputed facts and opinions regarding his psychological and neurological history that the trial court ignored. Under § 13–703(G)(1), the sentencing judge must consider whether the “defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution.” The trial court acknowledged that there was some evidence of intoxication and drug use in the record, but that on the evidence before him, he did not feel justified in finding that Cook was under the influence of alcohol or drugs such that his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the law was affected. The trial court also stated that it had considered Cook's history of mental problems evidenced by the Rule 11 examination reports and the presentence report. He further noted Cook's previous attempts at suicide. He concluded, however, that “I simply do not find there to be any connection between any of these prior mental problems and the offenses that were committed in this case.” He added that Cook's impressive manner of conducting his criminal defense “reinforces my impression that whatever prior mental problems that the Defendant has had are in the past; that they did not directly impact upon the commission of these murders ....” R.T. August 8, 1988, at 19–20. The trial court's ruling that the evidence of intoxication and mental problems was insufficient to establish significant impairment of Cook's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the law was based on the trial judge's assessment of the weight and credibility of the evidence before him. Consequently, we defer to his conclusion.FN14 State v. Fierro, 166 Ariz. 539, 553, 804 P.2d 72, 86 (1990). FN14. The most significant evidence of Cook's possible impairment is contained in the Rule 11 reports prepared by Daniel W. Wynkoop, Ed.D., and Eugene R. Almer, M.D. Their assessments of Cook's intoxication and its possible effects were based, however, on Cook's own statements, and the trial court was free to doubt the veracity of those statements.

Our review, however, does not end here. We have previously held that even if the trial court does not find sufficient evidence to establish the § 13–703(G)(1) mitigating circumstance of “insufficient capacity,” the court must further review all of the evidence for any independent mitigating effect that suggests in some way that the defendant be treated with leniency. Fierro, 166 Ariz. at 553, 804 P.2d at 86; McMurtrey I, 136 Ariz. at 102, 664 P.2d at 646. We are satisfied from the record that the trial judge's consideration of the evidence of Cook's mental history was sufficient to have identified any independent mitigating circumstance weighing in favor of leniency. “The trial court is not required to find a mitigating circumstance; nor is it required to make a statement that none has been found. The trial court must, however, consider the evidence.” McMurtrey I, 136 Ariz. at 102, 664 P.2d at 646. The record indicates that the trial judge did just that. Moreover, after conducting our independent review of the record, we do not believe that Cook's mental history demands or even justifies leniency, especially when balanced against the aggravating factors found to be present in this case.

b. Disparity with Codefendant's Sentence as Mitigation

Cook argues that the trial court erroneously failed to consider as a mitigating factor the fact that Cook's equally culpable codefendant received a twenty-year sentence as the result of a plea bargain. The state points out that the court did not consider this fact in mitigation because Cook never requested the trial court to do so. We note, however, that the trial judge stated in the record that he had considered “to some extent the proceedings as they relate to ... Mr. Matzke.” Cook is correct that, as a general matter, disparity in sentences is a relevant factor to be considered in weighing the appropriateness of the death penalty. In Marlow, the trial court sentenced the defendant to death, while his codefendant received a four-year prison sentence under a plea bargain; the trial court ruled that disparity in sentencing was not a mitigating factor to be balanced against aggravating factors. We disagreed, stating that [s]imply because an accomplice has received leniency does not in itself prevent the imposition of the death penalty. We appreciate the difficult tactical choices that must sometimes be made by the prosecution in obtaining a conviction. However, once that conviction has been obtained, disparity between the sentences of the sort that occurred in this case must be considered and may be found as a mitigating circumstance and weighed against any aggravating circumstances, in determining whether to impose the death penalty. 163 Ariz. at 72, 786 P.2d at 402 (citations omitted); see also State v. Lambright, 138 Ariz. 63, 76, 673 P.2d 1, 14 (1983), cert. denied, 469 U.S. 892, 105 S.Ct. 267, 83 L.Ed.2d 203 (1984).

We believe that Matzke's twenty-year sentence is not so disproportionate to Cook's as to outweigh the aggravating circumstances present in this case. This is not a situation like that in Lambright, in which a “codefendant” was granted immunity from prosecution in return for her testimony, and so served not a single day in jail despite the trial judge's conclusion that she was as guilty as the other defendants who received death sentences. 138 Ariz. at 76, 673 P.2d at 14. Nor is this case like Marlow, in which the probation officer who prepared the presentence report testified that she considered the codefendant's four-year prison sentence a “travesty of justice.” 163 Ariz. at 71, 786 P.2d at 401.

3. Disposition of Aggravation/Mitigation Findings

We have reviewed the record for evidence of aggravating circumstances and mitigating factors. We agree with the trial court that the state has established the existence of the aggravating factors beyond a reasonable doubt. We also agree with the trial court's finding that there is insufficient evidence to establish any of the statutory mitigating factors. We find no evidence supporting any independent mitigating factor warranting leniency. Because the aggravating factors outweigh the mitigating circumstances, we find that the trial court correctly imposed the death sentences.

B. Proportionality Review

We must also conduct a proportionality review to determine whether imposition of the death penalty in this case violates the eighth amendment. The issue is whether the death penalty imposed upon this defendant is excessive or disproportionate to the penalty imposed on defendants in other cases. State v. Roscoe, 145 Ariz. 212, 227, 700 P.2d 1312, 1327, cert. denied, 471 U.S. 1094, 105 S.Ct. 2169, 85 L.Ed.2d 525 (1985). We have reviewed our other cases and find that Cook's death sentence is not disproportionate. The facts of this case require no further elaboration. See id. (egregiousness of facts obviated need for extensive proportionality review).

CONCLUSION We have examined the record for fundamental error pursuant to A.R.S. § 13–4035, and have found none. For the reasons detailed above, we affirm Cook's convictions and sentences. GORDON, C.J., and CAMERON, J., concur.

Cook v. Schriro, 516 F.3d 802 (9th Cir. 2008). (Habeas)

Background: Petitioner sought federal habeas corpus relief after his state-court conviction for two counts of first-degree murder and his death sentence were upheld on direct appeal, 170 Ariz. 40, 821 P.2d 731. The United States District Court for the District of Arizona, Robert C. Broomfield, J., 2006 WL 842276, denied petition. Petitioner appealed.

Holdings: The Court of Appeals, Callahan, Circuit Judge, held that: (1) state court's finding that petitioner's waiver of right to counsel was knowing, intelligent, and voluntary did not warrant habeas relief; (2) rejection of petitioner's argument that trial court had duty to inquire into his reasons for wanting to represent himself did not warrant habeas relief; (3) rejection of petitioner's due process challenge to consistency clause in codefendant's plea agreement did not warrant habeas relief; (4) prosecutor did not violate petitioner's Fifth Amendment right against self-incrimination; (5) rejection of claim that jury instruction on second-degree murder was required did not warrant habeas relief; (6) petitioner procedurally defaulted his claims alleging ineffective assistance of trial counsel; and (7) petitioner procedurally defaulted claim that excluding evidence of intoxication violated his constitutional rights. Affirmed.

CALLAHAN, Circuit Judge:

Petitioner Daniel Wayne Cook appeals the denial of his 28 U.S.C. § 2254 petition. Cook waived counsel and represented himself at trial through sentencing. A jury convicted him of two counts of first-degree murder and the court sentenced him to death under Arizona Revised Statutes §§ 13-503 and 13-703. Cook now claims that his decision to waive counsel was involuntary because his original appointed trial counsel was ineffective; that his co-defendant, John Eugene Matzke's plea agreement violated Cook's right to a fair trial; and that the prosecutor improperly commented on Cook's failure to testify and his post- Miranda silence. In addition, Cook claims that the trial court erred by failing to instruct the jury on second-degree murder. Cook also argues that the ineffectiveness of his appellate counsel excuses his procedural default of some of his remaining claims. Finally, Cook argues that the sentencing court failed to consider evidence of intoxication and his prior mental health history as mitigating factors before imposing the death penalty. We affirm the district court's denial of Cook's petition for a writ of habeas corpus. FACTS (FN1. We recite the facts as found by the Arizona state court. Although Cook disputes some of these facts, under AEDPA we must presume that the state court's findings are correct unless Cook rebuts the presumption with clear and convincing evidence. 28 U.S.C. § 2254(c)(1); Davis v. Woodford, 333 F.3d 982, 991 (9th Cir.2003). He has not done so.)

On July 19, 1987, Cook and Matzke were living together in a two bedroom apartment in Lake Havasu City, Arizona. Carlos Cruz-Ramos, a co-worker at a local restaurant, who recently had moved in with Cook and Matzke, slept on the floor. After Matzke returned from work that afternoon, Cook told Matzke that he knew Ramos had a lot of money and that he wanted to take it. At approximately 6:00 p.m., Cook suggested that Matzke take Ramos upstairs to show him the view from Matzke's bedroom balcony. After Matzke and Ramos returned downstairs, Ramos discovered his money pouch was missing, and Cook suggested that Ramos look for the pouch upstairs. When Ramos went upstairs, Cook grabbed him, Matzke ripped up some bedsheets, and they tied Ramos to a chair in Cook's bedroom. Cook punched and taunted Ramos before putting Ramos in Cook's closet so that Cook and Matzke could look through Ramos's other possessions. Ramos escaped from the closet, but Cook chased him down, took him back upstairs, and re-tied him to the chair. Cook and Matzke began beating Ramos with a metal pipe and a stick. Cook and Matzke also burned Ramos's chest, stomach, and genitals with cigarettes. Cook cut Ramos's chest with a knife, and Matzke put a bandage on the cut to stop the bleeding. At around 9:45 p.m., Matzke went to the Acoma Stop and Shop to buy beer. When Matzke returned to the apartment, he saw Cook sodomize Ramos. Cook also used a mini-stapler on Ramos's foreskin. Matzke asked Cook why he was torturing Ramos, and Cook replied, “I'm having fun.”

At around 11:00 p.m., Matzke told Cook that they could not let Ramos go, and Cook responded, “Well, you can kill him at midnight; the witching hour.” Cook and Matzke continued torturing Ramos until midnight, then Matzke attempted to strangle Ramos with a sheet and the pipe. Matzke eventually placed Ramos on the floor, placed the pipe across Ramos's neck, and stood on the pipe until Ramos's heart stopped beating at around 12:15 a.m. After throwing Ramos's body down the stairs, Cook and Matzke placed the body in Matzke's closet. At around 2:30 or 3:00 a.m., Kevin Swaney arrived at Cook's apartment. At first, Cook told Swaney to leave but then Cook asked Swaney to come into the apartment. Cook told Swaney that they had some drugs they wanted to get rid of, and pushed a couch in front of the door so nobody would come into the apartment. Then Cook and Matzke told Swaney about the dead body. Cook took Swaney upstairs to show him the body and, when they returned downstairs, Cook told Matzke to get bindings and a gag. Cook forced Swaney to take off his clothes, and Matzke and Cook tied Swaney to a chair. Matzke asked Cook what Cook was planning to do, and Cook said he was going to talk to Swaney. Matzke told Cook that if he was going to torture Swaney, Matzke did not want any part of it. Matzke went to the living room and fell asleep.

At around 4:30 or 5:00 a.m., Cook woke Matzke. Swaney was still tied up and crying. Cook told Matzke that he sodomized Swaney so now they had to kill him. Cook took a sheet from around his neck and wrapped it around Swaney's neck. Matzke and Cook each took one end of the sheet and pulled, but Matzke's end kept slipping out of his hand. At that point, Cook said “This one's mine,” put Swaney on the floor, and strangled him. Matzke and Cook took Swaney's body up to Matzke's room and placed the body in the closet. Matzke and Cook went back downstairs and slept. That afternoon, Matzke went to work for two and a half hours before quitting because he was concerned about what Cook would do if he was not there. When Matzke got home, he and Cook went to a bar and drank for several hours. At 10:30 p.m., they returned to the apartment and met Byron Watkins and other friends by the pool of their apartment complex. Cook and Matzke invited their friends into the apartment. The next morning, Matzke showed Watkins the bodies. Watkins convinced Matzke to go to the police. Matzke and Watkins went to the police department, and Matzke gave a videotaped confession.

Officers responded to the apartment and arrested Cook at around 4:50 a.m. After Detective David Eaton gave Cook Miranda warnings, Cook said, “we got to partying; things got out of hand; now two people are dead.” Cook then said that “my roommate killed one and I killed the other.” He admitted to choking Swaney to death. After making those admissions, Cook refused to make any further statements.

PROCEDURAL HISTORY-TRIAL

On July 21, 1987, Cook and Matzke were charged with two counts of first-degree murder, including a death penalty allegation under Arizona Revised Statute § 13-703. Claude Keller was appointed to represent Cook. A grand jury returned an indictment on two counts of first-degree murder against Cook and Matzke. Cook was given psychological evaluations on October 23, and November 17, 1987. The court held a hearing on January 4, 1988, and concluded that Cook was competent to stand trial. Cook's counsel filed a motion for an additional mental examination on January 14, 1988, and a neurological examination was performed on or about February 13, 1988. The results of the February 13, 1988, examination were filed with the court.

On April 11, 1988, Cook filed a pro se motion to waive counsel and have his counsel appointed as advisory counsel. During the April 21, 1988, hearing on Cook's motion to waive counsel, Cook asked for a different advisory counsel, stating, “If you're amenable to my waiver of counsel, I would ask that you not appoint Mr. Keller as my legal advisor.” Cook explained, “Mr. Keller has worked hard for my defense; cares about the outcome of my trial. My personal beliefs is that he cannot advise me according to my defense.” Cook then asked for Mr. O'Brien to be his advisory counsel, but the court indicated that Mr. Forrester was the only other contract counsel available. Cook rejected Mr. Forrester. Judge Steven F. Conn of the Mohave County Superior Court gave Cook a lengthy explanation of the perils of self-representation. Cook still wanted to represent himself. After conducting extensive questioning pursuant to Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the court found that Cook voluntarily, knowingly, and intelligently gave up his right to counsel. The court granted Cook's motion and appointed Mr. Keller as Cook's advisory counsel.

Matzke entered into a stipulated guilty plea and executed an agreement to testify truthfully in a manner consistent with his videotaped confession on October 30, 1987. The trial judge sentenced Matzke to twenty years in prison. Cook's investigators and his advisory counsel attended Matzke's sentencing hearing. Matzke testified at Cook's trial on June 28, 1988, and again on July 5, 1988. On December 16, 1987, the State filed a motion of potential election and motion to preclude evidence of intoxication. At a hearing on June 24, 1988, Cook did not oppose the motion, stating: “What [the prosecutor] brings up in his motion basically does not even apply to my defense, your Honor.” FN2 At trial, Cook elected general denial and alibi theories as his affirmative defenses. Cook reiterated that he did not want to present evidence of drinking or drug use by him or Matzke during a pre-trial conference. FN2. The exchange went, in relevant part, as follows: The Court: Mr. Cook, is there anything that you want to say concerning the motion? Of course, I don't have any idea whether it is your intent to try to present evidence that you were intoxicated but is there anything you want to say concerning [the prosecutor's] motion? The Defendant: What [the prosecutor] brings up in his motion basically does not even apply to my defense, your Honor. The Court: Well, let me ask you this, Mr. Cook, then. Do you have any objection if I were to preclude any evidence concerning whether you were intoxicated or not? This would cover-and I don't know that much whether either of these would apply. I think I recall there was testimony of alcohol consumption. This would include evidence as to whether you had consumed alcohol. If you had consumed any drugs or taken any drugs of any sort, this would preclude evidence that you had taken any drugs. If I were to grant [the prosecutor's] motion that would mean that he would not be asking people whether you were intoxicated on drugs or alcohol and you also would not be able to ask people on cross-examination or establish through questioning of witnesses whether you had been intoxicated as a result of drugs or alcohol. In other words, are you telling me you didn't intend to do that any way? The Defendant: That's exactly what I was stating, your Honor. I have no objection.

Cook also claimed in his opening statement that he “merely repeated the detective's statement and I asked for an attorney and I have nothing further to say,” and denied confessing. During the trial, Cook questioned Detective Eaton extensively about his contact with Cook on July 21. Cook attempted to discredit Detective Eaton's testimony that Cook confessed to killing Swaney by asking about the circumstances of the statement and why the statement was not videotaped. Detective Eaton eventually responded that Cook's confession was not taped because Cook invoked his right to remain silent. Cook asked to approach the bench and later moved for a mistrial. The trial judge denied the motion for a mistrial, finding that Detective Eaton's testimony was in response to Cook's line of questioning and a proper explanation for why Cook's confession was not taped. In Cook's closing argument, he attempted to argue that he was not at the apartment, and blamed Matzke and Watkins for the murders. He argued that he could not tell the jury about any party in his apartment, stating, “Mr. Matzke stated in his testimony there was a party that night at the apartment. I couldn't tell you. I don't know.” Later, Cook claimed that, “[a]t no time did any of the officers ever state that I confessed to killing someone.” Cook argued extensively about Matzke's possible motive to lie.

In the prosecutor's rebuttal argument, he argued that Cook failed to tell defense witness and fellow jail inmate, Terry Holt, where he had been to establish an alibi, and that Cook had something to hide because Cook had covered up his dagger tattoo with a large bandage. In addition, when arguing that Matzke's videotaped statement was reliable, the prosecutor referred to Cook's cross-examination of Detective Eaton about why Cook's statement was not on tape. The prosecutor argued: John Matzke made [a videotaped statement] and we heard continuous cross-examination of the detective about why the Defendant didn't make one. He didn't make one because he, the Defendant, was the one that cut off the interview. If he had made one, you would have had the statements we got to partying a little bit and things got out of hand. My roommate killed one and I killed the other. I killed Kevin. You would have heard the exact same statements. In addition, the prosecutor commented on the potential witnesses to the crime, stating: “There were only four people there at that time of the deaths; two of them are dead; one is in prison; one is the Defendant.” The prosecutor followed this comment by discrediting Cook's alibi defense-noting that Cook's alibi witness was in jail at the time and that a rebuttal witness testified that Cook was present in the apartment on July 19th and 20th. Cook did not object at the time these comments were made, but moved for a mistrial during jury deliberations. The court denied the motion for a mistrial on the same grounds that it denied Cook's earlier motion after Detective Eaton's testimony.

After the conclusion of the testimony, the court distributed its proposed jury instructions to Cook and the prosecutor. The judge specifically informed Cook that he did not include any lesser-included instructions or alternative jury verdicts. Cook did not object to a first-degree murder instruction using “knowingly” as the required mental state. Cook requested the second-degree murder instruction because Matzke had pleaded guilty to second-degree murder under the terms of his plea bargain. After hearing argument, the judge concluded that there was no evidence to show a lack of premeditation and denied Cook's request to give a second-degree murder instruction. The court gave its instructions, and the jury began deliberations at 2:07 p.m. on July 6, 1988. The jury returned with a guilty verdict on both counts later that afternoon at 3:23 p.m.

Cook filed a motion for further mental health evaluation on July 29, 1988. At oral argument on the motion, Cook argued that a post-trial examination under Arizona Rule of Criminal Procedure 26.5 would serve a different purpose from his pre-trial examinations under Arizona Rule of Criminal Procedure 11.2. The trial judge heard argument on the motion on August 4, 1988, and denied the motion, concluding that, unless Cook could articulate a reason that the Rule 11 examinations were insufficient, there was no reason for further examination. The judge informed Cook that, if he wanted the judge to consider the prior mental health evaluations, the judge would consider them when deciding whether or not there were mitigating circumstances.

At sentencing, Cook declined to present any evidence to the court. Cook complained that he was not given proper access to the Mohave County law library, and then said that the “[o]nly sentence I will accept from this Court at this time is the penalty of death, your Honor. I have nothing further.” The court reviewed the pre-sentence report, the Rule 11 mental health evaluations, the State's sentencing memorandum, a letter from Cook, the trial evidence, and matters from hearings in the case. The trial judge found the following aggravating factors: 1) that Ramos was killed for pecuniary gain under Arizona Revised Statutes § 13-703(F)(4); 2) that the murders of Ramos and Swaney were done in an especially heinous, cruel, or depraved manner under Arizona Revised Statutes § 13-703(F)(6); and 3) that multiple murders were committed under Arizona Revised Statutes § 13-703(F)(8). When considering Cook's capacity to appreciate the wrongfulness of his conduct under Arizona Revised Statutes § 13-703(G), the court found that there was insufficient evidence that Cook's intoxication affected his ability to appreciate the wrongfulness of his conduct. In addition, the judge considered Cook's prior history of mental illness, suicide attempts, and other mental problems and found that there was no connection between Cook's prior mental problems and the murders. The court found no mitigating factors to offset the aggravating factors, and sentenced Cook to the death penalty.

PROCEDURAL HISTORY-POST-TRIAL

On direct appeal, Cook raised the following issues: 1) error in denying his Sixth Amendment right to counsel because the trial court allowed him to waive appointed counsel and failed to permit hybrid representation; 2) error in allowing the prosecution to proceed under a “knowingly” rather than “intentionally” theory and in precluding evidence of intoxication; 3) error in refusing to grant a mistrial over the prosecutor's comments on Cook's invocation of his Fifth Amendment rights; 4) error in dismissing a juror during trial; 5) error in refusing to continue the trial to allow Cook to secure additional witnesses; 6) error in admitting Cook's statements at his arraignment; 7) error in admitting of Matzke's testimony pursuant to a coercive plea agreement; 8) error in refusing to instruct the jury on second-degree murder; 9) finding the multiple homicide aggravating circumstance; 10) finding that Ramos's murder was especially “cruel, heinous and depraved”; 11) finding Ramos's murder was for pecuniary gain; 12) finding Swaney's murder “cruel, heinous and depraved”; 13) precluding of evidence of voluntary intoxication for the purposes of mitigation; 14) failing to consider Cook's mental health history as a mitigating factor; 15) failing to consider the disparity between Matzke's and Cook's sentences; and 16) error in failing to conclude that the Arizona death penalty statute was unconstitutional. FN3 State v. Cook, 170 Ariz. 40, 821 P.2d 731, 738-39 (1991). FN3. The Arizona Supreme Court noted that the United States Supreme Court rejected Cook's challenges to Arizona's death penalty statute in Walton v. Arizona, 497 U.S. 639, 648-55, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), and declined to address this issue. Cook, 821 P.2d at 739. Walton was later overturned by Ring v. Arizona, 536 U.S. 584, 588, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), on the issue of whether judges or juries should impose the death penalty. In Schriro v. Summerlin, 542 U.S. 348, 358, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), the United States Supreme Court held that Ring was not retroactive.

While his direct appeal was pending, Cook asked to have his counsel relieved for failing to communicate with him or explain the issues to him. Cook also filed a petition for post-conviction relief (“PCR”) asserting ineffective assistance of appellate counsel. Cook's counsel on direct appeal filed an explanation of his position, and moved to withdraw or, in the alternative, to have the Arizona Supreme Court clarify his status. The Arizona Supreme Court denied the motion to withdraw on December 19, 1990. On February 25, 1991, the Arizona Supreme Court issued a minute order finding Cook's post-conviction petition was premature, appointing a different attorney as counsel for post-conviction proceedings under Arizona Rule of Criminal Procedure 32, and granting additional time to file an amended petition for post-conviction relief if necessary. On December 5, 1991, the Arizona Supreme Court affirmed Cook's conviction and sentence. Cook, 821 P.2d at 756. The United States Supreme Court denied Cook's petition for a writ of certiorari. Cook v. Arizona, 506 U.S. 846, 113 S.Ct. 137, 121 L.Ed.2d 90 (1992).

On September 1, 1993, Cook's PCR counsel filed a Supplement to Petition for Post-Conviction Relief. The supplemental petition raised nine issues: 1) Cook was forced to choose between ineffective counsel and self-representation, denying him of his Sixth Amendment right to counsel; 2) Cook's counsel was ineffective prior to Cook's motion to represent himself, therefore the entire trial was tainted; 3) Matzke's testimony was coerced by an unconstitutional plea agreement; FN4 4) Cook made an unrecorded objection to the testimony of Matzke; 5) Cook was denied access to a law library to prepare his case; 6) the trial court did not conduct the required hearing under State v. Tison, 160 Ariz. 501, 774 P.2d 805 (1989), to determine whether Cook had a reckless indifference to human life under a felony murder theory; 7) the trial court was required to appoint counsel for the penalty phase even if Cook wanted to waive counsel and be put to death; 8) Cook was not competent to represent himself; and 9) Cook's appellate counsel was ineffective for failing to raise these issues. FN4. Cook filed a supplement providing additional arguments concerning claim 3 in light of the Arizona Supreme Court's holding in State v. Fisher, 859 P.2d 179 (Ariz.1993), that plea agreements requiring testimony consistent with a specific statement were unenforceable.

On October 5, 1994, the court issued an order finding that issues 5, 6, and 7 were precluded under Arizona Rule of Criminal Procedure 32.2 because Cook failed to preserve them on direct appeal. The court also ruled that issue 9 failed to raise a colorable claim for relief because any failure by appellate counsel to preserve the issue was caused by Cook. The court then scheduled evidentiary hearings on the remaining claims to hear any newly discovered evidence. The court heard evidence on the PCR petition on August 23, 1994, and December 2, 1994, and denied the petition for post-conviction relief on February 3, 1995.

On April 3, 1995, Cook filed a motion for rehearing under the applicable version of Arizona Rule of Criminal Procedure 32.9, requesting rehearing on: the voluntariness of his decision to represent himself (PCR supp. issue 1); the testimony of Matzke and his plea agreement (PCR supp. issue 3); newly discovered evidence of Matzke's intoxication (a new issue); violation of Cook's due process rights by the trial judge's refusal to recuse himself (a new issue); the denial of access to a law library (PCR supp. issue 5); the trial court's finding that Cook had a reckless disregard for human life (PCR supp. issue 6); and the trial court's failure to appoint counsel at sentencing to put on a mitigation defense (PCR supp. issue 7). The trial court denied the motion for rehearing on April 13, 1995. Cook filed a timely petition for review pursuant to Arizona Rule of Criminal Procedure 32.9 that relied on the statement of issues in his motion for rehearing. The Arizona Supreme Court denied the petition for review on July 5, 1996. The United States Supreme Court denied a petition for writ of certiorari.

Cook filed his federal habeas petition on January 24, 1997. On February 28, 1997, the district court appointed habeas counsel and granted Cook's motion to proceed in forma pauperis. Cook advanced twenty-one claims for relief: 1) Cook's request to represent himself was not knowing, voluntary, and informed because he was forced to choose between ineffective counsel and self-representation; 2) Cook was not competent to represent himself; 3) pre-trial counsel's ineffectiveness, the refusal to grant a continuance, and the lack of access to the law library denied Cook his Sixth Amendment rights; 4) allowing Cook to exercise his right to represent himself violated the Sixth, Eighth and Fourteenth Amendments; 5) admission of Cook's statement at arraignment violated his Fifth Amendment right to remain silent and his right to counsel; 6) Matzke's testimony was coerced by an unconstitutional plea agreement; 7) proceeding under a “knowingly” theory of premeditation and precluding evidence of voluntary intoxication violated Cook's Sixth Amendment right to call witnesses on his behalf; 8) the prosecutor's investigation into the excused juror's activity violated Cook's right to a trial by jury; 9) refusal to give a second-degree murder instruction violated due process under Beck v. Alabama, 447 U.S. 625, 638, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980); 10) the prosecutor's comments on Cook's failure to explain his whereabouts and Cook's silence violated his Fifth Amendment right to remain silent; 11) the trial court's determination that Cook had a reckless indifference to human life when committing the murders was unconstitutional; 12) the trial court's refusal to grant an additional mental health evaluation at sentencing violated Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); 13) the failure to appoint counsel for Cook during the penalty phase violated his Eighth Amendment rights and due process; 14) the failure of the trial court to receive evidence of intoxication as mitigating evidence violated Cook's Eighth Amendment rights; 15) Arizona's death penalty statute was unconstitutional because it allowed judge-imposed sentences, created a presumption in favor of the death penalty, and shifted the burden of proof concerning aggravating and mitigating factors; 16) the trial court's failure to consider Cook's history of neurological trauma, mental dysfunction, and suicide attempts violated his Eighth Amendment rights; 17) the failure of the trial judge to recuse himself after knowingly appointing an incompetent lawyer, accepting Matzke's coercive plea agreement, and making rulings at trial violated Cook's right to due process; 18) the trial court erred in finding the murder of Ramos was “cruel, heinous or depraved”; 19) the trial court's finding that Ramos's murder was for “pecuniary gain”; 20) the trial court's finding that Swaney's murder was “cruel, heinous or depraved”; and 21) the trial court's finding of multiple homicides as an aggravating factor.

On September 17, 1999, the district court issued an order ruling that claims 7, 11, 12, 13, 17, 18, 19, and 20 were procedurally barred because Cook failed to present them to the Arizona Supreme Court. The district court also ruled that claim 3, except the portion claiming that the denial of continuances deprived Cook of due process, and claim 21, except the portion claiming that the State did not give notice of its intent to seek a multiple homicide aggravating factor, were procedurally barred. The district court then considered the remaining claims on the merits, ruled that Cook was not entitled to relief, and denied Cook's petition on March 28, 2006. The district court simultaneously issued a certificate of appealability under Federal Rule of Appellate Procedure 22(b) on claims 1, 2, 6, 10, and the procedural default rulings on claims 17 through 20.FN5 This appeal followed. On October 30, 2007, we issued an order granting a certificate of appealability as to claims 3, 7, 9, 12, and 16. FN5. Cook failed to brief claim 2 on appeal, as well as the procedural default rulings on claims 18 through 20. We deem these claims abandoned. See Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir.1991) (noting failure to raise or brief an issue in a timely fashion may constitute waiver on appeal).

STANDARDS OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),FN6 we may grant habeas relief from a state conviction only if it is contrary to, or an unreasonable application of, clearly established law as determined by the United States Supreme Court, or it was based on an unreasonable determination of the facts in light of the evidence presented in the state courts. See Mitchell v. Esparza, 540 U.S. 12, 15, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (per curiam) (discussing AEDPA standards). We review de novo the district court's decision to grant or deny a petition for a writ of habeas corpus. Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir.2003). We review the last reasoned state-court judgment to determine whether that decision was contrary to, or unreasonably applied federal law. Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). A state court decision is “contrary to” federal law if it misstates or fails to identify the controlling Supreme Court precedent or if it reaches a different result in a case that is materially indistinguishable from a Supreme Court case. Williams v. Taylor, 529 U.S. 362, 405-07, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A decision is an “unreasonable application” of federal law if it is objectively unreasonable. Id. at 409, 120 S.Ct. 1495. FN6. AEDPA applies because Cook filed his federal habeas petition after April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 327, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).

A state court's factual determination may not be overturned unless we cannot “reasonably conclude that the finding is supported by the record.” Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.2004). The burden of proof rests with the petitioner. Woodford v. Visciotti, 537 U.S. 19, 25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam). We review de novo the failure to exhaust state court remedies. Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir.2005).

DISCUSSION
I. Ineffective assistance of pre-trial counsel.

Cook argues that his pre-trial counsel's ineffectiveness forced him to choose to represent himself; therefore, his waiver of counsel was not voluntary. Cook also argues that the trial court had a duty to inquire into his reasons for wanting to represent himself, and that the trial court should have discovered pre-trial counsel's ineffectiveness. The state trial court for Cook's post-conviction relief petition rejected this argument and found that counsel's pre-waiver representation was not ineffective. The district court found that there is no Supreme Court case law that requires a trial court, faced with a defendant who wants to represent himself, to inquire why he wants to exercise his right to self-representation.

Under AEDPA, we defer to the state court's finding that Cook's waiver of the right to counsel was knowing, intelligent, and voluntary unless it is contrary to or an unreasonable application of Faretta, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. See Weaver v. Palmateer, 455 F.3d 958, 963 n. 6 (9th Cir.2006) (noting standard of review for mixed questions of law and fact), cert. denied, --- U.S. ----, 128 S.Ct. 177, 169 L.Ed.2d 120 (2007). A state court's decision may be an “unreasonable application” of Federal law if it “extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable.” Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir.2002). In this case, the state trial court's determination that Cook's waiver of his right to counsel was voluntary after hearing Cook's post-conviction relief petition, was not objectively unreasonable. The state trial court first concluded that Cook failed to show prejudice from any of pre-trial counsel's actions under Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (stating counsel's actions must fall below an objective standard of reasonableness and be prejudicial in order to constitute ineffective assistance of counsel). The trial court, when denying Cook post-conviction relief, also found that Cook could not point to any specific action that was ineffective. The court noted that evidence of pre-trial counsel's reputation was insufficient to establish ineffective assistance of counsel.

Those factual determinations are supported by the record. Cook's claimed prejudice was the lost opportunity to have a stronger presentation on a reasonable doubt defense, to impeach Matzke with Matzke's intoxication, or to challenge Matzke's plea agreement. The record is clear, however, that Cook was aware of Matzke's intoxication, and Cook's own choice of cross-examination questions cannot be imputed to his former counsel.FN7 Cook failed to point to any evidence that his original appointed counsel should have uncovered that would create “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Therefore, the trial court's rulings on Cook's ineffective assistance of counsel claims were not contrary to or unreasonable applications of Strickland. FN7. The Supreme Court has stated that “a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of ‘effective assistance of counsel.’ ” Faretta, 422 U.S. at 834 n. 46, 95 S.Ct. 2525.

Finally, the trial court noted that the federal case law cited by Cook involved clearly-expressed dissatisfaction with appointed counsel and that none of the case law created an obligation for trial courts to inquire into the reasons why a defendant wants to represent himself. The Supreme Court has never held that a defendant who does not inform the court that he wants to represent himself because he believes that his counsel is ineffective was coerced into representing himself; therefore, the trial court's rejection of that argument was not contrary to, or an unreasonable application of Faretta. As noted by the district court, we rejected Cook's argument that the trial court has a duty to inquire into a defendant's relationship with counsel when he invokes the right of self-representation in United States v. Robinson, 913 F.2d 712, 716 (9th Cir.1990). In that case, we concluded that a district court only has a duty to inquire into the relationship between defendant and counsel “once a defendant has made a motion or request for substitute counsel.” Id. In addition, we noted that a defendant's disagreement with counsel over the defenses to pursue does not create the need for further inquiry into the attorney-client relationship or to offer new counsel sua sponte. Id. We held that “a criminal defendant may be asked to choose between waiver and another course of action, so long as the course of action offered is not constitutionally offensive.” Id. at 717.

In this case, like in Robinson, Cook never made a motion for substitute counsel. Although Cook stated that he did not want pre-trial counsel appointed as advisory counsel, he indicated that it was because of the defenses he wanted to advance at trial. When the trial court noted that it could not appoint the attorney Cook requested as his advisory counsel, and offered a local alternative, Cook rejected that option and accepted his previously appointed counsel as advisory counsel. The trial court then conducted a “probing and thorough” colloquy before finding Cook's waiver of his right to counsel was knowing, intelligent, and voluntary, satisfying its obligations under Faretta. See Moran v. Godinez, 57 F.3d 690, 699 (9th Cir.1994), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). The district court and the state trial court properly distinguished the cases cited by Cook because he neither provided notice of ineffective assistance nor moved for substitute counsel. See Schell v. Witek, 218 F.3d 1017, 1024-25 (9th Cir.2000) (en banc) (motion for substitute counsel never addressed); Crandell v. Bunnell, 25 F.3d 754, 754-55 (9th Cir.1994) (per curiam) (defendant informed the court that he had not seen counsel for two months); United States v. Padilla, 819 F.2d 952, 955-56 (10th Cir.1987) (rejecting involuntariness argument where attorneys would not cooperate in presenting defendant's preferred defense). Therefore, the trial court's determination that Cook's decision to represent himself was voluntary was not contrary to or an unreasonable application of Faretta, and Cook is not entitled to habeas relief.

II. Matzke's plea agreement and the truthfulness of Matzke's testimony.

Cook contends that his right to a fair trial under the Due Process Clause was violated because Matzke's testimony was coerced by Matzke's plea agreement. The agreement required that Matzke “agree to be interviewed without the presence of defense counsel” and that he “agree to testify, if requested, at any criminal proceedings brought by the State of Arizona against Daniel Wayne Cook.” The agreement also required that Matzke will, during such interviews and during such testimony, provide truthful responses to any questions put to him and will not knowingly make any false or misleading statements. The making by John Eugene Matzke of two or more statements during such testimony or interviews which are inconsistent, so that at least one of them must be false, will be considered a violation of th [e] Agreement without the State['s] being required to establish which statement was false. (Emphasis added.) Matzke testified at the PCR hearing that he believed the agreement required him to testify consistently with his initial videotaped confession.

Matzke also testified at the PCR hearing that his testimony at trial was truthful. The trial court found that Matzke testified truthfully, and there was no evidence of perjured testimony as a result of the plea agreement. The district court agreed with the state trial court's analysis of the case law and found that there is no Supreme Court case law establishing that consistency clauses in plea agreements violate due process. In addition, the district court also found that there was no evidence that Matzke's testimony was false. We agree that there is no Supreme Court case law establishing that consistency clauses violate due process or any other constitutional provision. Because it is an open question in the Supreme Court's jurisprudence, we cannot say “that the state court ‘unreasonably applied clearly established Federal law’ ” by rejecting Cook's claim based on the consistency agreement. Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 654, 166 L.Ed.2d 482 (2006).

Although the Supreme Court has held that the knowing use of perjured testimony violates the due process clause, there is no real evidence that Matzke's testimony was false in this case.FN8 Matzke reaffirmed the truthfulness of his testimony at the PCR hearing. Although Matzke felt he was still bound by the terms of his agreement to testify consistently, Cook did not produce any witnesses or other evidence that the state knowingly used perjured testimony from Matzke or that Matzke's account was false. Giving due deference to the state trial court's factual findings, there was simply no perjured testimony or deliberate deception to support Cook's claimed due process violation. See Allen v. Woodford, 395 F.3d 979, 995 (9th Cir.2005) (rejecting due process claim where petitioner failed to establish that testimony was false). As a result, Cook is not entitled to relief on his claim that Matzke's testimony was false because he has not shown falsity, and therefore prejudice from the testimony. See Morris v. Ylst, 447 F.3d 735, 745-46 (9th Cir.2006) (discussing need to show false testimony was prejudicial to obtain habeas relief).

FN8. In Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935) (per curiam), the Supreme Court stated: [W]e are unable to approve a narrow view of the requirement of due process. That requirement, in safeguarding the liberty of the citizen against deprivation through the action of the State, embodies the fundamental conceptions of justice which lie at the base of our civil and political institutions. Hebert v. Louisiana, 272 U.S. 312, 316[-17, 47 S.Ct. 103, 71 L.Ed. 270 (1926) ]. It is a requirement that cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance by a State to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation.

The Supreme Court held in Pyle v. Kansas, 317 U.S. 213, 214-16, 63 S.Ct. 177, 87 L.Ed. 214 (1942), that allegations that the State intimidated or coerced perjured testimony from the witnesses against him stated a potential claim for habeas relief under the Due Process Clause, citing Mooney. Cases following Mooney establish that due process is violated if the State knowingly uses perjured testimony or deliberately deceives the court. See Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (witness and the prosecutor stated that there was no plea deal when there was a lenient plea agreement); Miller v. Pate, 386 U.S. 1, 3-4, 6, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967) (prosecutor had expert testify that substance on defendant's shorts was blood when it was paint); Alcorta v. Texas, 355 U.S. 28, 30-32, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957) (per curiam) (prosecutor told witness not to volunteer that he had a sexual relationship with the defendant's wife and witness testified he was not sexually involved with the wife).

III. The prosecutor's rebuttal argument.

Cook argues that the prosecutor violated his right to remain silent and right to not testify against himself by referring to Cook's Miranda invocation and his failure to testify. Cook challenges four types of statements made by the prosecutor: 1. Never once was Terry Holt told by this man where he was. Never once does Dan Cook, ladies and gentlemen say I wasn't there because I was at McDonald's in Kingman or out of state or somewhere. Why was he never told where Dan Cook was? Was Dan Cook afraid of getting beaten again when Holt confirmed that he raped a sixteen-year old rather than just reading it out of a newspaper report? 2. And I'll tell you, ladies and gentlemen, John Matzke doesn't have anything to hide. This man does. How do we know that? Remember voir dire when we were selecting everybody? His left forearm has a tattoo of a dagger on it. He has covered that tattoo from the first day of the trial until today. He has had a large Band-Aid over that dagger. He covered that up. I suppose he didn't want you to think that he does have violent tendencies. If you saw that dagger on his forearm you could suppose that he did have such so he covered it up. We wonder what else he covered up. But we don't have to wonder long. We don't have to wonder hard because he's done a poor job of covering everything else up. 3. When he says John Matzke is a liar, he is not. No man would underrated [sic] himself to the degree that he did not just with the murders but his lifestyle. He's not a liar. He was there. He is one of the remaining people who are alive who were there. The other one sits at that table. There were only four people there at that time of the deaths; two of them are dead; one is in prison; one is the Defendant. 4. And what about the videotape. John Matzke made one and we heard continuous cross-examination of the detective about why the Defendant didn't make one. He didn't make one because he, the Defendant, was the one that cut off the interview. If he had made one, you would have had the statements we got to partying a little bit and things got out of hand. My roommate killed one and I killed the other. I killed Kevin. You would have heard the exact same statements.

The Arizona Supreme Court rejected Cook's claim of error on direct appeal, finding that the prosecutor's comments were not directed at Cook's decision not to testify, and that the comment about the videotape was invited by Cook's cross-examination and argument. Cook, 821 P.2d at 741-43. The district court agreed that the comments were either comments on the state of the evidence or invited by Cook's arguments and cross-examination. In addition, the district court found that, if there was error, it was harmless under Brecht v. Abrahamson, 507 U.S. 619, 631, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).

Comment on the refusal to testify at trial violates a defendant's Fifth Amendment right against self-incrimination. See Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) (holding “that the Fifth Amendment ... forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.”). Also, a prosecutor's comment on a defendant's post- Miranda silence violates the Due Process Clause. See Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (“We hold that the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.”). The Supreme Court, however, concluded that Griffin error did not mandate automatic reversal if it was harmless. Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); see also United States v. Hasting, 461 U.S. 499, 509, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983) (holding that Chapman mandates harmless error analysis of Griffin error). In Brecht, the Supreme Court held that Doyle error does not entitle a petitioner to habeas corpus relief unless it “ ‘had substantial and injurious effect or influence in determining the jury's verdict.’ ” 507 U.S. at 622, 113 S.Ct. 1710 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). The Supreme Court concluded in United States v. Robinson, 485 U.S. 25, 32, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988), that, “where ... the prosecutor's reference to the defendant's opportunity to testify is a fair response to a claim made by defendant or his counsel, we think there is no violation of the privilege.” In Robinson, the defendant's trial counsel “charged that the Government had unfairly denied respondent the opportunity to explain his actions” several times, and “concluded by informing the jury that respondent was not required to testify, and that although it would be natural to draw an adverse inference from respondent's failure to take the stand, the jury could not and should not do so.” Id. at 27-28, 108 S.Ct. 864. The prosecutor then commented on the insurance fraud defendant's prior statements to investigators before saying, “[h]e could have taken the stand and explained it to you, anything he wanted to. The United States of America has given him, throughout, the opportunity to explain.” Id. at 28, 108 S.Ct. 864. The Supreme Court held “that the prosecutor's statement that respondent could have explained to the jury his story did not in the light of the comments by defense counsel infringe upon [the defendant]'s Fifth Amendment rights.” Id. at 31, 108 S.Ct. 864.

A. The comment about Cook's conversations with Holt.

The Arizona Supreme Court and the district court characterized the first argument about Cook's conversations with Holt as commentary on the evidence. Cook, 821 P.2d at 742. Holt testified that he talked with Cook almost every day and acted as a jailhouse lawyer for Cook. Holt also testified that Matzke told him that Cook was not at the apartment during the murders. On cross-examination, Holt testified that Cook had an alibi defense, but that Cook never told Holt where he was.

Prosecutors may comment on the failure of the defense to produce evidence to support an affirmative defense so long as it does not directly comment on the defendant's failure to testify. See Lockett v. Ohio, 438 U.S. 586, 595, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (allowing comments concerning opportunity to call witnesses where defense focused on potential testimony).FN9 In this case, the prosecutor's comment was aimed at attacking the credibility of Holt's testimony concerning the believability of Cook's alibi defense. At most, the prosecutor's comment is a reference to Cook's statements to Holt while in jail together, not a direct comment on Cook's failure to testify. See Sims v. Brown, 425 F.3d 560, 589 (9th Cir.2005) (no violation from questioning about defendant's hearsay statements to a witness). The Arizona Supreme Court's interpretation of this comment was not objectively unreasonable; therefore, there was no Griffin error. FN9. See also United States v. Mares, 940 F.2d 455, 461 (9th Cir.1991) (“The prosecutor may comment on the defendant's failure to present exculpatory evidence, provided that the comments do not call attention to the defendant's own failure to testify.”); United States v. Savarese, 649 F.2d 83, 87 (1st Cir.1981) (“However, defendant chose to call witnesses and put forth an alibi. Having done so, he had no right to expect the government to refrain from commenting on the quality of his alibi witnesses or from attacking the weak evidentiary foundation on which the alibi rested.”).

B. The comments concerning Cook's tattoos.

In addition, the Arizona Supreme Court considered the prosecutor's comment on Cook's bandage covering a dagger tattoo to be a rhetorical device rather than a comment “calculated to draw the jury's attention” to the fact that Cook did not testify. State v. Cook, 821 P.2d at 742. Cook implied during his closing argument that Matzke and Watkins tried to cover up the murders, arguing that Watkins quit his job, disappeared, and helped Matzke dispose of the bodies. The prosecutor's comment was a response to Cook's argument that Matzke had a motive to lie and a comment on readily observable facts in the courtroom that did not deprive Cook of a fair trial. See Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (argument that did not manipulate or misstate evidence or implicate other specific rights and was invited by or responsive to the opening summation of the defense of the defendant did not deprive defendant of a fair trial). Read objectively, the prosecutor's comment was not “manifestly intended to call attention to the defendant's failure to testify, or is of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify.” Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir.1987). Therefore, the state court's factual finding that this comment was rhetorical is supported by the record and objectively reasonable.

C. The prosecutor's comments about Cook's presence at the crime scene.

When evaluating the third group of comments, the district court ruled that the comment arguing that Matzke's eyewitness testimony was accurate was not intended to call attention to Cook's failure to testify, and if there was error, it was harmless. Because neither the Arizona Supreme Court nor the state trial court addressed these comments, we review the district court's decision de novo. See Himes v. Thompson, 336 F.3d 848, 852-53 (9th Cir.2003) (noting this court conducts an “independent review of the record” where there is no reasoned state court decision on an issue). Assuming, without deciding, that the comment was Griffin error, we agree with the district court that any error was harmless. The Supreme Court held that Griffin error is subject to harmless error analysis in Chapman, 386 U.S. at 22, 87 S.Ct. 824. In Anderson v. Nelson, 390 U.S. 523, 524, 88 S.Ct. 1133, 20 L.Ed.2d 81 (1968) (per curiam), the Court announced that Griffin error is reversible error only “in a case where such comment is extensive, where an inference of guilt from silence is stressed to the jury as a basis of conviction, and where there is evidence that could have supported acquittal.” See also Jeffries v. Blodgett, 988 F.2d 923, 934 (9th Cir.1993) (as amended) (adopting that test). In this case, only two references to Cook being the only eyewitness other than Matzke were made in the prosecutor's rebuttal argument. Arguably, the prosecutor was not associating guilt from Cook's silence: rather, the prosecutor merely was emphasizing that Matzke had been an eyewitness.

In addition, the evidence of Cook's guilt was overwhelming. Although Cook introduced Holt's testimony that Matzke had confessed to both murders, the jury found Matzke more credible, and there was no physical or other evidence to impeach Matzke. Matzke testified, and the prosecution played Matzke's videotaped statement before the jury. The physical and forensic evidence largely corroborated Matzke's story, and there was no physical or forensic evidence showing that Matzke tortured or killed Swaney. In addition, Detective Eaton testified that Cook had admitted to killing Swaney. The jury deliberated for just over an hour before returning a guilty verdict on both counts. Given the strong evidence of Cook's guilt, and the relatively minor effect of the two references in the context of the prosecutor's rebuttal argument, it is “clear beyond a reasonable doubt that the jury would have returned a verdict of guilty” even if the prosecution had not referred to his failure to testify. Hasting, 461 U.S. at 511, 103 S.Ct. 1974. Therefore, the district court properly denied Cook's habeas petition because the prosecutor's comment in context did not have a “substantial and injurious effect or influence in determining the jury's verdict.” Brecht, 507 U.S. at 623, 113 S.Ct. 1710(internal quotation marks omitted).

D. The comment about the lack of a videotaped statement from Cook.

The Arizona Supreme Court and the district court both found that the prosecutor's reference to the lack of a videotaped statement from Cook was a fair comment on the evidence and a proper rebuttal to Cook's denial that he confessed to Detective Eaton. Cook, 821 P.2d at 743. In Cook's opening statement, he acknowledged that he made inculpatory statements, but claimed that he was merely repeating what the detective told him. Cook also volunteered that he invoked his right to an attorney during his opening statement. Detective Eaton testified that Cook made the following inculpatory statements: “we got to partying; things got out of hand; now two people are dead”; “my roommate killed one and I killed the other”; when asked by Eaton which one Cook killed, he replied, “Kevin”; and when asked if he was solely responsible for Kevin's death, Cook replied “Yeah, I killed Kevin.” Through cross-examination of Detective Eaton, Cook attempted to argue that he never made those statements, evidenced by the lack of a recording of his statements. Cook's questioning resulted in the following exchange: Cook: Sir, is it true that everybody else that was interviewed by you was recorded in some way other than myself? Eaton: We recorded Mr. Matzke. At the conclusion of my interview with you, you requested not to be recorded because you didn't want to make a statement. We had the tape playing so we recorded Mr. Watkins. Cook: But you didn't record me; is that correct? Eaton: That's correct. You invoked your right to remain silent and I terminated the interview.

The trial court refused to declare a mistrial based on this exchange, finding that Cook had invited error. After the court denied Cook's motion for a mistrial, Cook continued questioning Detective Eaton about his failure to videotape Cook's side of the story. During Cook's closing statement, Cook returned to this evidence, arguing: I was-I was arrested on the morning of July 21, 1987 at my apartment. I had been contacted by several police officers prior to my interview with Mr. Eaton. At no time did any of the officers ever state that I confessed to killing someone. They did, however, state Mr. Matzke confessed to them about killing two people. The prosecutor responded in his rebuttal closing by arguing that, if there had been a videotaped statement, the jury would have seen the statements Detective Eaton testified that Cook made. After Cook objected and moved for a mistrial based on the prosecutor's statements, the trial court denied the motion, finding that Cook had invited the error by his questioning.

We have interpreted Doyle to allow prosecutors to comment on post- Miranda silence in response to defense arguments. See Bradford v. Stone, 594 F.2d 1294, 1296(9th Cir.1979) (per curiam), overruled on other grounds by Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (“By electing to dwell on the justifications for petitioner's silence after arrest, defense counsel opened the door for the prosecutor to suggest contrary inferences.”); see also United States v. Kennedy, 714 F.2d 968, 977 (9th Cir.1983) (allowing invited comment that defendant was “not like every other witness in the case” in response to defense counsel's argument). In this case, the state trial court's interpretation of the comment as a fair comment on the evidence was a reasonable one because Cook attempted to show that he had not made any incriminating statements when he cross-examined Detective Eaton by asking why Cook's alleged confession was not videotaped. Furthermore, the state trial court's decision that the prosecutor's comments were fair rebuttal was reasonable because Cook argued again in his closing that the officers never stated that Cook confessed. The district court properly denied Cook's habeas petition on his Doyle claim.

IV. Withdrawal of a second-degree murder instruction.

Cook objected to the trial court's withdrawal of a second-degree murder instruction, however, stating he wanted the instruction because Matzke was given a second-degree murder conviction under the terms of his plea bargain. The trial court concluded that there was no evidence that the murder was not premeditated and denied Cook's request to give a second-degree murder instruction. On direct appeal, the Arizona Supreme Court affirmed the trial court's finding that “there was no basis for a jury to find that the murders were committed without premeditation.” Cook, 821 P.2d at 750. The district court agreed with the Arizona Supreme Court that there was no evidence that would permit a rational trier of fact to find that the murders were not premeditated.

In Beck v. Alabama, 447 U.S. at 638, 100 S.Ct. 2382, the Supreme Court held that “if the unavailability of a lesser included offense instruction enhances the risk of an unwarranted conviction, Alabama is constitutionally prohibited from withdrawing that option from the jury in a capital case.” The Supreme Court found that an all-or-nothing approach to capital cases was unfair if the evidence supported a lesser crime; stating that: [W]hen the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense-but leaves some doubt with respect to an element that would justify conviction of a capital offense-the failure to give the jury the “third option” of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction. Id. at 637, 100 S.Ct. 2382.

In Hopper v. Evans, 456 U.S. 605, 611, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982), the Court stated that “due process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction.” The defendant in Hopper “made it crystal clear that he had killed the victim, that he intended to kill him, and that he would do the same thing again in similar circumstances.” Id. at 612, 102 S.Ct. 2049. As a result, “[t]he evidence not only supported the claim that [he] intended to kill the victim, but affirmatively negated any claim that he did not intend to kill the victim. An instruction on the offense of unintentional killing during this robbery was therefore not warranted.” Id. at 613, 102 S.Ct. 2049. At trial, Cook denied the murders and claimed that he had an alibi. Cook affirmatively disclaimed intoxication as a defense prior to trial. Now, Cook argues that his statement “we got to partying, things got out of hand, now two people are dead” was evidence of heat of passion. There was no other evidence introduced at trial, however, that the murders were accidental or were committed in the heat of passion, nor did Cook's defenses suggest as much. Rather, the evidence demonstrated that Cook planned to rob Ramos, tortured him, and wanted Ramos killed at midnight, and then participated in strangling Ramos. With Swaney, Cook barred Swaney's exit, took Swaney to see Ramos's body, tortured and sodomized Swaney, and then said, “this one's mine” to Matzke before strangling Swaney to death.

At the time the crimes were committed, Arizona defined premeditation to mean: that the defendant acts with either the intention or the knowledge that he will kill another human being, when such intention or knowledge precedes the killing by a length of time to permit reflection. [A]n act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion. Ariz.Rev.Stat. § 13-1101(1) (1997). In Clabourne v. Lewis, 64 F.3d 1373, 1380 (9th Cir.1995), we affirmed the Arizona Supreme Court's denial of a habeas petition where the petitioner presented minimal evidence of intoxication and “[t]he evidence that [he] acted with premeditation[was] overwhelming.” We concluded that “[t]o prove premeditation, the state was required to show only that Clabourne had had time to reflect after forming the intent to kill; any length of time would have been sufficient, even if it was ‘as instantaneous as [the time] it takes to form successive thoughts in the mind.’ ” Id. (alteration in original) (quoting State v. Neal, 143 Ariz. 93, 692 P.2d 272, 276 (1984)). Because we have similarly interpreted Beck and Hopper not to require a second-degree murder instruction where evidence of premeditation is overwhelming and the petitioner's defenses are not directed at negating premeditation, the Arizona Supreme Court's ruling on the issue was objectively reasonable. See Carriger v. Lewis, 971 F.2d 329, 336 (9th Cir.1992) (en banc) (“Further, the record does not support such an instruction. The killer bound Shaw, beat him over the head with a cast iron skillet and a ring sizer, and then strangled him with a necktie. These acts were premeditated and designed to cause death.”). According to Cook's defenses at trial, either he was not present at the murders, or the murders proceeded as methodically as Matzke described. Therefore, Cook is not entitled to relief.

V. Procedurally defaulted claims.
A. Procedural background.

Cook argues that he did not procedurally default the following substantive claims: 1) that Cook's pre-trial counsel was ineffective for failing to investigate mitigating evidence (claim 3); 2) that the trial court erred in precluding evidence of Cook's intoxication during the guilt phase of his trial (claim 7); 3) that the trial court erred in denying Cook's request for further mental health examination (claim 12); and 4) that the failure of the trial judge to recuse himself violated Cook's right to a fair trial (claim 17). The state trial court found during the PCR proceedings that Cook failed to raise a colorable claim that his appellate counsel was ineffective (PCR claim 9). After the denial of Cook's post-conviction relief petition, Cook moved for rehearing on the following issues: 1) Cook's decision to proceed pro se was not voluntary; 2) Matzke's plea agreement tainted the fact-finding function of the court; 3) newly discovered evidence of Matzke's intoxication impeached his credibility; 4) the trial judge's refusal to recuse himself was unfair; 5) Cook's entitlement to a hearing on a felony murder theory; 6) the court's failure to appoint counsel for sentencing. FN10 Cook's petition for review after the denial of the motion for reconsideration simply stated: “Daniel Wayne Cook, through counsel and pursuant to Rule 32.9 of the Arizona Rules of Criminal Procedure, petitions the Arizona Supreme Court for review.” FN10. Cook also moved for rehearing on the issue of access to the law library. Cook did not pursue that claim in his federal habeas petition, however.

The district court ruled in its order dated September 17, 1999, that most of Cook's claims were procedurally barred. Regarding Cook's ineffective assistance of counsel claim (claim 3),FN11 the district court found that Cook failed to fairly present it because he failed to preserve it in his motion for rehearing. The district court found that Cook failed to present the intoxication evidence at trial (claim 7) as a federal claim on direct appeal, and therefore failed to alert the Arizona Supreme Court that he was raising a federal claim. See Cook, 821 P.2d at 740-41(relying on Arizona state cases exclusively). The district court concluded that claim 12-concerning the trial court's refusal to grant Cook's motion for a mental health evaluation prior to sentencing-was procedurally defaulted because Cook never raised the claim on direct appeal or in his post-conviction relief petition. Finally, the district court concluded that Cook failed to present his judicial bias allegations (claim 17) as a federal claim; therefore it was procedurally barred. The district court further found that Cook failed to establish any cause and prejudice for the defaults. FN11. Cook does not appeal the district court's conclusion that the trial court's refusal to grant continuances did not violate his right to due process (claim 3(b)). Therefore, we deem that claim waived. Martinez, 951 F.2d at 1157.

B. Applicable law.

“Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court.” O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); see also Rose v. Palmateer, 395 F.3d 1108, 1110 (9th Cir.2005) ( “Pursuant to 28 U.S.C. § 2254(b)(1)(A), a federal court may not consider the merits of Rose's Fifth Amendment claim unless he has exhausted all available state court remedies.”). “[E]xhaustion of state remedies requires that petitioners ‘fairly present’ federal claims to the state courts in order to give the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam) (internal quotation marks omitted). We may not “consider any federal-law challenge to a state-court decision unless the federal claim ‘was either addressed by or properly presented to the state court that rendered the decision we have been asked to review.’ ” Howell v. Mississippi, 543 U.S. 440, 443, 125 S.Ct. 856, 160 L.Ed.2d 873 (2005) (per curiam) (quoting Adams v. Robertson, 520 U.S. 83, 86, 117 S.Ct. 1028, 137 L.Ed.2d 203 (1997) (per curiam)).

Federal courts “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). “This rule applies whether the state law ground is substantive or procedural.” Id. In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Id. at 750, 111 S.Ct. 2546. Where a state prisoner's federal claim is waived or precluded by violation of a state procedural rule, it is procedurally defaulted unless the prisoner can demonstrate cause and prejudice. See id. at 732, 111 S.Ct. 2546(noting that “a habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance”); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (applying cause and prejudice standard to contemporaneous objection rule). Preclusion of issues for failure to present them at an earlier proceeding under Arizona Rule of Criminal Procedure 32.2(a)(3) FN12 “are independent of federal law because they do not depend upon a federal constitutional ruling on the merits.” Stewart v. Smith, 536 U.S. 856, 860, 122 S.Ct. 2578, 153 L.Ed.2d 762 (2002) (per curiam).

FN12. Prior to December 1, 1992, Arizona Rule of Criminal Procedure 32.2(a)(3) stated: (a). Preclusion. A petitioner will not be given relief under this rule based upon any ground: (3) Knowingly, voluntarily, and intelligently not raised at trial, on appeal, or in any previous collateral proceeding. Arizona Rule of Criminal Procedure 32.2(a)(3) (1989) (amended 1992).

C. Cook procedurally defaulted his ineffective assistance of trial counsel claim (claim 3).

Cook's claim that the amendment of Rule 32.9(c) somehow excuses the failure of his post-conviction relief counsel to preserve general ineffective assistance of trial counsel claims lacks merit because he failed to preserve any ineffective assistance of trial counsel claim under the applicable rule. Furthermore, he cannot demonstrate cause to excuse the procedural default. Cook failed to raise ineffective assistance of counsel on direct appeal. Cook plainly failed to preserve a general ineffective assistance of trial counsel claim in his motion for rehearing. Furthermore, Cook's petition for review failed to preserve any claims in addition to those preserved by the motion for rehearing.

Prior to 1992, the Arizona Rule of Criminal Procedure 32.9 provided, in relevant part: a. Motion for Rehearing; Response; Reply. Any party aggrieved by a final decision of the trial court in these proceedings may, within 10 days after the ruling of the court, move the court for a rehearing setting forth in detail the grounds wherein it is believed the court erred. There shall be a response filed within 10 days. c. Petition for Review. Upon denial of a motion for rehearing, any party aggrieved may petition the appropriate Appellate Court for review of the actions of the trial court. The petition shall be filed with the clerk of the trial court and within 10 days after the denial of the motion for rehearing. The changes ordered by the Arizona Supreme Court eliminated the requirement of a detailed motion for rehearing-making it optional. Instead, the amended rule made the petition for review into a detailed statement of the case and the issues presented and added an explicit statement that “[f]ailure to raise an issue in the petition or cross-petition for review shall constitute a waiver of appellate review of that issue.” The Arizona Supreme Court explicitly made the new rule applicable to those defendants sentenced after December 1, 1992. Prior to the amendments to Rule 32.9, the failure of the petitioner to file a motion for rehearing setting forth in detail the grounds for rehearing waived further review. See State v. Gause, 112 Ariz. 296, 541 P.2d 396, 397 (1975) (dismissing appeal from denial of post-conviction relief under Rule 32.9(a), where petitioner failed to file a petition for rehearing or a petition for review). When amending Rule 32.9(a) in 1992, the Arizona Supreme Court explicitly stated that “[t]he attached amendments shall be applicable to defendants sentenced after December 1, 1992.” June 2, 1999, Ariz. Supreme Court Order Amending Rule 32, Ariz. R.Crim. P. Furthermore, Cook's post-conviction relief counsel realized that the former Rule 32.9 governed the case and filed an unopposed motion for rehearing to conform to the old rule. Accordingly, preclusion for failure to preserve the issue on the motion for rehearing was proper under Arizona Rule of Criminal Procedure 32.2(a)(3) and Arizona Rule of Criminal Procedure 32.9(c). As a result, Cook must demonstrate cause and prejudice in order to excuse his procedural default. Coleman, 501 U.S. at 750, 111 S.Ct. 2546.

Ordinarily, “cause” to excuse a default exists if the petitioner “can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Examples of sufficient causes include “a showing that the factual or legal basis for a claim was not reasonably available to counsel,” or “that ‘some interference by officials' made compliance impracticable.” Id. (citations omitted) (quoting Brown v. Allen, 344 U.S. 443, 486, 73 S.Ct. 397, 97 L.Ed. 469 (1953)). Ineffective assistance of counsel may be cause to excuse a default only if the procedural default was the result of an independent constitutional violation. See Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000) (“Not just any deficiency in counsel's performance will do, however; the assistance must have been so ineffective as to violate the Federal Constitution.”). Put another way, “[s]o long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington, [the federal courts] discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default.” Murray, 477 U.S. at 488, 106 S.Ct. 2639.

In this case, Cook's post-conviction relief counsel failed to preserve his ineffective assistance of trial counsel claims in the motion for rehearing or in the subsequent petition for review. Thus, post-conviction petition counsel failed to “fairly present” the ineffective assistance of pre-trial counsel claim to the Arizona Supreme Court. Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989). Cook attempts to argue that ineffective assistance of appellate counsel excuses the procedural default. There is no constitutional right to counsel, however, in state collateral proceedings after exhaustion of direct review. Pennsylvania v. Finley, 481 U.S. 551, 556, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (“[I]t is the source of that right to a lawyer's assistance, combined with the nature of the proceedings, that controls the constitutional question. In this case, respondent's access to a lawyer is the result of the State's decision, not the command of the United States Constitution.”). Under Arizona law, a defendant is only entitled to counsel through the disposition of his or her first post-conviction petition. State v. Smith, 184 Ariz. 456, 910 P.2d 1, 4 (1996) (“After counsel or the pro per defendant submits the post conviction petition to the court and the trial court makes its required review and disposition, counsel's obligations are at an end.”). Because Cook had no constitutional right to counsel at the motion for rehearing stage, any errors by his counsel could not constitute cause to excuse the default. See Coleman, 501 U.S. at 752-53, 111 S.Ct. 2546(“Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in [state post-conviction] proceedings.”); Harris v. Vasquez, 949 F.2d 1497, 1513-14 (9th Cir.1990) (“Because [the petitioner] has no constitutional right to counsel in his earlier habeas proceedings, no error by his habeas counsel could constitute a sixth amendment violation or, therefore, cause ....” (citation omitted)). Therefore, Cook cannot show cause to excuse his procedural default. FN13. Because Cook cannot show cause, we need not consider whether he suffered actual prejudice. Engle v. Isaac, 456 U.S. 107, 134 n. 43, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) (“Since we conclude that these respondents lacked cause for their default, we do not consider whether they also suffered actual prejudice.”).

Cook may also qualify for relief from his procedural default if he can show that the procedural default would result in a “fundamental miscarriage of justice.” Schlup v. Delo, 513 U.S. 298, 321, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). To qualify for the “fundamental miscarriage of justice” exception to the procedural default rule, however, Cook must show that a constitutional violation has “probably resulted” in the conviction when he was “actually innocent” of the offense. Murray, 477 U.S. at 496, 106 S.Ct. 2639. “To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Schlup, 513 U.S. at 324, 115 S.Ct. 851. In this case, although Cook presented evidence concerning his pre-trial counsel's reputation in the community, he did not present any evidence that there were actual independent witnesses to support an alibi defense, or that shows that he did not participate in the murders of Ramos and Swaney. As a result, Cook has not shown that pre-trial counsel's ineffective assistance of counsel, if any, resulted in a fundamental miscarriage of justice because he is actually innocent. Therefore, Cook cannot excuse his procedural default and the district court properly found that his ineffective assistance of trial counsel claim was barred from review.

D. Cook procedurally defaulted his claim that precluding evidence of intoxication violated his constitutional rights (claim 7).

On direct appeal, Cook relied exclusively on state law in arguing his claim that voluntary intoxication negated his premeditation for the murder of Ramos. First, the Arizona Supreme Court found that Cook waived this claim by failing to object at trial. Cook, 821 P.2d at 741. Then, the Arizona Supreme Court ruled that Cook failed to establish fundamental error, relying entirely on state law. Id. at 740-41. Under Arizona law, evidence of intoxication alone cannot negate knowledge for the purposes of finding premeditation for first-degree murder. See State v. Schurz, 176 Ariz. 46, 859 P.2d 156, 164-65 (1993) (collecting cases approving of refusal to consider voluntary intoxication under a knowing or knowingly first-degree murder theory); Neal, 692 P.2d at 277 (“[E]ven assuming Neal was intoxicated and the jury believed Dr. Biegal's testimony, the jury could still properly convict him of first degree murder if they believed he ‘knowingly’ caused the victim's death.”).

“A litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state-court petition or brief ... by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim ‘federal.’ ” Baldwin v. Reese, 541 U.S. 27, 32, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004). If a petitioner fails to properly present a federal claim to the state supreme court, and the state supreme court decides the issue on “adequate and independent” state law grounds, federal courts are barred from reviewing the claim. Howell, 543 U.S. at 442-43, 125 S.Ct. 856 (dismissing writ of certiorari as improvidently granted because petitioner's failure to present a federal claim to the state supreme court “prevents us from reaching petitioner's constitutional claim.”).

Here, Cook waived this claim by failing to object at trial and then procedurally defaulted the claim by failing to fairly present it as a federal claim on direct appeal. See Coleman, 501 U.S. at 729, 111 S.Ct. 2546 (failure to present federal claim); Wainwright, 433 U.S. at 87, 97 S.Ct. 2497 (failure to object at trial). Exclusive citation to Arizona state court cases in a counseled petition for review is not sufficient to give a “fair opportunity” to the Arizona Supreme Court to decide a federal claim. Peterson v. Lampert, 319 F.3d 1153, 1159 (en banc) (9th Cir.2003). Because Cook failed to raise an ineffective assistance of appellate counsel claim on this issue, and cannot raise an ineffective assistance of counsel claim as to his own performance under Faretta, 422 U.S. at 834 n. 46, 95 S.Ct. 2525, he cannot show cause to excuse his defaults. See Murray, 477 U.S. at 488, 106 S.Ct. 2639.

As noted above, evidence of voluntary intoxication alone cannot negate premeditation under Arizona law. See State v. Lavers, 168 Ariz. 376, 814 P.2d 333, 346 (1991) (approving of State's strategy to charge “knowingly” rather than “intentionally” to preclude introduction of evidence of defendant's intoxication). Therefore, Cook cannot establish actual innocence based on voluntary intoxication. Furthermore, there is no new evidence to support an actual innocence claim. Schlup, 513 U.S. at 324, 115 S.Ct. 851. Therefore, the district court properly found that Cook procedurally defaulted his claim that the preclusion of voluntary intoxication evidence was erroneous.

E. Cook procedurally defaulted his claim that the trial court erred by failing to order an additional mental health examination prior to sentencing (claim 12).

Cook failed to present the issue of an additional mental health examination prior to sentencing on direct appeal or in his post-conviction relief proceedings. Like his other procedurally defaulted claims, Cook cannot establish cause to excuse the default by showing a non-defaulted claim of ineffective assistance of appellate counsel. Murray, 477 U.S. at 488, 106 S.Ct. 2639. In addition, Cook did not introduce any new evidence to support a finding that there would be a fundamental miscarriage of justice because he was legally insane at the time of the murders, or that his mental state was sufficient to overcome the aggravating factors in his case. See Sawyer v. Whitley, 505 U.S. 333, 350, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992) (requiring petitioner “to show by clear and convincing evidence that but for constitutional error at his sentencing hearing, no reasonable juror would have found him eligible for the death penalty under[state] law”). Therefore, the district court properly found that Cook procedurally defaulted this claim.

F. Cook's claim that the trial judge should have recused himself is barred (claim 17).

On his claim that the trial judge was biased and should have recused himself, Cook argues that he fairly presented the claim to the Arizona Supreme Court through his petition for special action. The district court found that Cook relied exclusively on Arizona law when arguing that the trial judge should have recused himself. The district court found that the federal claim was technically exhausted, but that the state courts would find that the claim was precluded under Arizona Rule of Criminal Procedure 32.2(a)(3). In Cook's recusal motion during the PCR proceedings, he only cited Arizona state cases and Arizona Rule of Criminal 1491 Procedure 10.1 FN14 and 32.4(e).FN15 After an independent judge denied the recusal motion, Cook sought special relief, citing the same rules and Rule 81, Canon 3(c) of the Arizona Rules of Judicial Conduct, which states that a judge should disqualify himself if his impartiality may be reasonably questioned or where the judge has a personal knowledge of disputed evidentiary facts concerning the proceeding. In his motion for rehearing, Cook once again relied exclusively on Arizona state law in arguing that the trial judge was biased and should be recused. FN14. Arizona Rule of Criminal Procedure 10.1 states: “In any criminal case prior to the commencement of a hearing or trial the state or any defendant shall be entitled to a change of judge if a fair and impartial hearing or trial cannot be had by reason of the interest or prejudice of the assigned judge.” FN15. Arizona Rule of Criminal Procedure 32.4(e) provides: “Assignment of Judge. The proceeding shall be assigned to the sentencing judge where possible. If it appears that his testimony will be relevant, he shall transfer the case to another judge.”

Cook failed to “indicate a federal law basis for his claim in a state-court petition or brief” as required by Baldwin, 541 U.S. at 32, 124 S.Ct. 1347. See Peterson, 319 F.3d at 1159. Mere invocations of due process do not meet the “minimal requirement that it must be clear that a federal claim was presented.” Adams, 520 U.S. at 89 n. 3, 117 S.Ct. 1028. Even if Arizona's standards for determining judicial bias are “somewhat similar” to the federal standard requiring a direct, personal, substantial, pecuniary interest in Tumey v. Ohio, 273 U.S. 510, 522, 47 S.Ct. 437, 71 L.Ed. 749 (1927), that is insufficient to raise a federal claim. See Duncan, 513 U.S. at 366, 115 S.Ct. 887 (“[M]ere similarity of claims is insufficient to exhaust.”). Failure to exhaust the claim bars federal review. See Fields v. Waddington, 401 F.3d 1018, 1020-21 (9th Cir.2005) (discussing standards for fairly presenting a federal claim). Furthermore, the district court was correct in concluding that the state courts would find the federal claim precluded under Arizona Rule of Criminal Procedure 32.2. See Peterson, 319 F.3d at 1161 (noting failure to fairly present federal claim coupled with time limits for filing petition for review procedurally defaults the claim, requiring a showing of cause and prejudice). As with Cook's other claims, he has not shown cause to excuse his procedural default. Nor has Cook established that the default results in any fundamental miscarriage of justice. Therefore, the district court properly found that Cook's claim concerning the bias of the trial judge was procedurally defaulted.

VI. Sentencing consideration claims.

The Arizona Supreme Court examined the record and concluded that the trial court considered evidence of Cook's intoxication and history of mental illness when considering and concluding that it did not outweigh the aggravating circumstances of the crime. Cook, 821 P.2d at 755. “AEDPA also requires federal habeas courts to presume the correctness of state courts' factual findings unless applicants rebut this presumption with ‘clear and convincing evidence.’ ” Schriro v. Landrigan, --- U.S. ----, 127 S.Ct. 1933, 1939-40, 167 L.Ed.2d 836 (2007) (quoting 28 U.S.C. § 2254(e)(1)). “Under AEDPA, we must do more than find the statement ambiguous-we would have to conclude that the Arizona Supreme Court was objectively unreasonable in concluding the sentencing court did, in fact review all the proffered mitigating evidence.” Lopez v. Schriro, 491 F.3d 1029, 1037-38 (9th Cir.2007), petition for cert. filed, 76 U.S.L.W. 3289 (U.S. Nov. 19, 2007) (No. 07-683).

The Arizona Supreme Court's finding is amply supported by the record. The trial court acknowledged its obligation to weigh aggravating and mitigating factors before sentencing Cook to death. When weighing mitigating evidence, the trial court specifically cited Arizona Revised Statute § 13-703(G)(1), the capacity to appreciate the wrongfulness of conduct, and found that the evidence concerning intoxication did not show that Cook was so intoxicated that he could not appreciate the gravity of his actions. The sentencing court's analysis is precisely what the Supreme Court requires-consideration of the character and record of the individual and the circumstances of the offense. See Woodson v. N. Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (requiring “consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death”). It is clear that the trial court did consider intoxication as a possible mitigating factor and rejected it during sentencing. Furthermore, the trial court allowed extensive testimony concerning intoxication at the post-conviction relief hearing and still rejected Cook's argument.

The trial court went on to expressly consider Cook's prior history of mental illness as discussed in the psychological reports and found that none of the reports showed that Cook was unable to appreciate the wrongfulness of his actions at the time of the murders. None of the psychiatric or psychological reports state that Cook did not understand what he was doing or could not conform his activity to the confines of the law at the time of the murders. The Arizona Supreme Court's findings that the trial court adequately considered both intoxication and Cook's psychological history when considering mitigation are not objectively unreasonable on this record. See Lopez, 491 F.3d at 1037-38 (concluding that where the sentencing court clearly considered proper mitigating factors, this court could not reverse under AEDPA). Cook has not rebutted the psychological reports with additional, clear and convincing evidence that the sentencing court's findings were clearly erroneous. Therefore, the district court properly denied Cook's claim based on failure to consider mitigating factors.

CONCLUSION