INMATE 040496 SCHAD EDWARD
Date of Birth: 07/27/1942
Executed: October 9, 2013
Defendant: Caucasian
Gender: Male
Height: 70 inches
Weight: 136 pounds
Hair: Brown
Eyes: Brown
Admission: 01-02-80
Offense Date: 08-01-78
Sentencing County: YAVAPAI
Case#: 0008752

ARIZONA DEPARTMENT OF CORRECTIONS
1601 W. JEFFERSON
PHOENIX, ARIZONA 85007 (602) 542-3133
www.azcorrections.gov
JANICE K. BREWER GOVERNOR
CHARLES L. RYAN DIRECTOR

MEDIA ADVISORY
September 25, 2013

Execution Ordered for Convicted Killer Edward Schad: Media Execution Witness Requests Available

PHOENIX (Wednesday, September 25, 2013) – The Arizona Department of Corrections will carry out the Arizona Supreme Court order to execute inmate Edward Schad, #040496, on Wednesday, October 9. The execution is scheduled for 10 a.m. at the Central Unit of ASPC-Florence. Members of the media must be in the media staging area by 8 a.m.

On August 1, 1978, Lorimar Groves, a 74-year-old Bisbee resident, left Bisbee in a new Cadillac on a trip to Everett, Washington, to visit his sister. On August 9, 1978, Groves' badly decomposed body was discovered hidden in the brush just off U.S. Highway 89 south of Prescott. Mr. Groves had been strangled with a rope that was still knotted around his neck. A month later, Schad was stopped for speeding in New York. Schad was driving Mr. Groves' Cadillac, and many of Mr. Groves' personal belongings were in the car.

October 9, 2013
Convicted Murderer Edward Schad Executed

FLORENCE (Wednesday, October 9, 2013) – Arizona Department of Corrections inmate Edward Schad, #040496, was executed by lethal injection at 10:12 a.m. Wednesday, October 9th at the Arizona State Prison Complex - Florence. The one drug protocol was administered at 10:03 a.m. and the execution was completed 9 minutes later. Schad’s last words were: "Well, after 34 years I’m free to fly away home. Thank you, Warden. Those are my last words."

His last meal consisted of a meatball sandwich, French fries, corn on-the-cob, cranberry sauce, apple pie and a vanilla shake. The meal was served to him Tuesday night.

Schad was convicted and sentenced to death for the 1978 murder of Lorimar Groves. On August 1, 1978, Mr. Groves, a 74-year-old Bisbee resident, left Bisbee in a new Cadillac on a trip to Everett, Washington, to visit his sister. On August 8th, Groves' badly decomposed body was discovered hidden in the brush just off U.S. Highway 89 south of Prescott. Mr. Groves had been strangled with a rope that was still knotted around his neck. A month later, Schad was stopped for speeding in New York state. Schad was driving Mr. Groves' Cadillac, and many of Mr. Groves' personal belongings were in the car. Court documents also indicate that Schad had been using Groves’ credit card for approximately one month.

AZCentral - The Arizona Republic

"Killer executed for 1978 murder of Bisbee man," by Michael Kiefer. (The Republic Oct 9, 2013 12:08 PM)

FLORENCE - The oldest man on Arizona's death row was executed this morning after 35 years in custody. Edward Schad, 71, was sentenced to death for the 1978 murder of Lorimer Grove, 74, who was found dead in underbrush by the side of a road south of Prescott. A month later, Schad was arrested in Salt Lake City; he had Grove's Cadillac and his credit cards.

Schad joked with the medical staff as they inserted the catheters that delivered the barbiturate pentobarbital into his veins. He was calm until the last, according to witnesses to the execution. When it was his turn to speak, Schad said, "Well, after 34 years, I'm free to fly away home. Thank you, warden. Those are my last words." The lethal drugs began to flow at 10:03 a.m. Schad was pronounced dead at 10:12.

Last night, Schad had a last meal of a 12-inch meatball submarine sandwich, a large order of french fries with catsup, two ears of corn on the cob, two ounces of cranberry sauce, a slice of apple pie and a 20-ounce vanilla milkshake. He met with his attorney, Assistant Federal Defender Kelley Henry, Tuesday night as well and expressed his gratitude for the kindness of the correctional officers who guarded him during the last 35 days of his life, a period called "death watch," when the condemned prisoners are separated from the other inmates on death row. This morning, Schad met with his longtime spiritual advisor, a Lutheran pastor who administered last rites. The pastor told Henry that Schad was "doing well," and had not yet heard that the U.S. Supreme Court had denied the final requests for a reprieve. Then he went calmly to his death.

Troubled upbringing

Schad says he ended up on death row only because of a misunderstanding. He was a car thief and a forger, not a murderer, he told the Arizona Board of Executive Clemency a week before his execution. His earlier second-degree murder conviction had been a case of mistaken identity, as well, he said. The clemency board did not believe him; neither did the three juries that convicted him, nor a host of judges and justices right up to the U.S. Supreme Court over 34 years of appeals.

Edward Schad was born in 1942 near Syracuse, N.Y. According to his pre-sentence report from 1979 and from his statements at his clemency hearing, he grew up in a troubled home. His father had never recovered from being held in a German prison camp during World War II. He was an alcoholic and abusive. Schad left home after high school and wandered the country, gathering criminal charges in four states, mostly for car theft and forgery.

“I never knew right from wrong until I got in the service,” he said at his clemency hearing. And apparently even then, the lines between right and wrong were blurred. Schad was bounced out of the Army in 1962 after being convicted in civilian court of joyriding. He re-enlisted in 1966. The record and Schad’s statements vary as to whether he was stationed in Germany or at Fort Lewis, Wash. But, in July 1968, he was in Salt Lake City while on leave.

A man named Clare Mortenson was found dead in his Salt Lake home. He was naked, with a white cloth around his face and neck; his hands were bound behind his back, and the autopsy showed he had been sodomized and had sodomized another person. DNA testing was not available. Based on that evidence and the word of Mortenson’s friends that he frequently engaged in dangerous sexual behavior, the medical examiner listed the cause of death as autoerotic asphyxiation. Investigators found a credit-card receipt for an airline flight to Germany booked in Schad’s name, and military police arrested him there. He had Mortenson’s jacket in his duffel bag. Schad was convicted of second-degree murder, sent to prison and paroled in July 1977. He did not stay out of trouble for long.

On the last day of 1977, Schad rented a green Ford Fairlane in Salt Lake City for the weekend. He never returned it. Instead, he drove his girlfriend and her children to New York, Florida and Ohio. He dropped the girlfriend off in Ohio and then took to the road. Because he was on parole, his impromptu road trip made him an absconder and a fugitive.

The murder

Lorimer Grove set out from Bisbee in his new Cadillac on Aug. 1, 1978. He was on his way to Everett, Wash., to visit family. Where Grove encountered Schad remains a mystery. There was no physical evidence linking Schad to Grove’s body. Schad claims he never saw Grove. His story at his clemency hearing was essentially the same as when he was arrested. He said he was at the Roadrunner Truckstop, which was on I-17 just north of McDowell Road, when he ran into a car thief named Travis, whom he knew from prison in Utah. Travis was traveling with a French couple with backpacks in a Cadillac that didn’t belong to them, he said. “I told him he couldn’t just drive a car like that in here and leave it,” Schad told the caseworker who prepared his pre-sentence report in 1979. “I told him to take my car, which wouldn’t draw much attention.”

Travis and the French couple graciously traded the Cadillac for Schad’s stolen Ford rental, Schad claimed. The checks and credit card were in an envelope under the seat or in the glove box, depending on when Schad told the story. He knew Grove’s name from the car registration. There was no money and no trailer, Schad said, though investigators found a mirror contraption in the abandoned Ford that Grove had fashioned to help him back up the trailer. Schad headed east, stopping near Bisbee to purchase gas with Grove’s credit cards. He forged a check in Des Moines, Iowa, and kept driving.

On Sept. 3, 1978, he was pulled over for speeding in New York, but he told the police officer that he was transporting the car for a man named Larry. He drove back to Salt Lake and reunited with his girlfriend. While in Salt Lake City, he told his girlfriend’s roommate that he had a stolen car, and the roommate called police. Schad was arrested. The details came together between Arizona and Utah law-enforcement agencies. Schad was indicted on a charge of first-degree murder, and in March 1979, he was booked into a Yavapai County jail.

Time almost up

Schad’s first conviction for felony murder and the resultant death sentence were overturned by the Arizona Supreme Court because of a faulty jury instruction. Schad was convicted and sentenced to death again in 1985. His attorneys appealed all the way to the U.S. Supreme Court. It was a landmark case that determined that a jury did not have to unanimously choose one or the other alternative type of first-degree murder, but could split its votes between the two.

His appeals have flitted between state and federal courts for decades. He was supposed to be executed in March, but the 9th U.S. Circuit Court of Appeals granted a stay of execution to determine if it mattered that his trial attorney had not presented his mental illness as a reason not to sentence him to death. The U.S. Supreme Court upheld the stay on the day before his scheduled execution. The stay was lifted in June, and since his appeals had run out, the Arizona Supreme Court set today for his execution.

In the last weeks, Schad’s attorneys at the Federal Public Defender’s Office challenged whether members of the Arizona Board of Executive Clemency had been improperly influenced by the Governor’s Office to deny clemency to prisoners. They also questioned the source of the drugs that the Arizona Department of Corrections had obtained for the execution. A U.S. District Court judge in Phoenix ordered the state to reveal the source of the drugs — the state begrudgingly complied in part — but she did not stop the execution.

Reuters News

"Arizona executes man convicted of 1978 strangling," by David Schwartz and Karen Brooks. (Wed Oct 9, 2013)

PHOENIX/AUSTIN (Reuters) - An Arizona death row inmate convicted of strangling a 74-year-old man and fleeing in the victim's new Cadillac more than three decades ago was executed by lethal injection on Wednesday, and another man was due to be executed in Texas later in the day. Edward Harold Schad, who at 71 was Arizona's oldest death row inmate, was pronounced dead at 10:12 a.m. local time at Florence State Prison, Arizona Attorney General Tom Horne said.

Schad was convicted of killing Lorimer Grove in 1978 and leaving his body in some underbrush near Prescott, Arizona, with a rope still knotted around his neck, officials said. "Well, after 34 years, I'm free to fly away home. Thank you, warden. Those are my last words," Schad said immediately before he was put to death, according to Doug Nick, a spokesman for the Arizona Department of Corrections.

Schad's attorneys had sought unsuccessfully to delay his execution because Arizona had not provided information about the drug to be used in carrying out the execution. Arizona answered that challenge by disclosing that it had purchased pentobarbital from Lundbeck LLC, a Danish pharmaceuticals company that no longer sells the drug for executions. Pentobarbital, a barbiturate, has become scarce over the past couple of years as major manufacturers have refused to supply it for that purpose.

Some states have turned to other suppliers such as lightly regulated compounding pharmacies to secure drugs, raising fears among death penalty opponents that use of the alternative drugs will lead to a botched execution. Present for the execution were Schad's attorney and a member of the clergy, as well as two media witnesses and prison officials, Nick said. None of Schad's family members attended, nor did relatives of the victim. The condemned man's last meal consisted of a meatball sandwich, French fries with ketchup, corn on the cob, cranberry sauce, apple pie and a vanilla milkshake, Nick said.

Schad became the first person executed in Arizona in 2013 and Yowell would be the 14th to be put to death in Texas. Wednesday's executions would bring to 30 the number of people executed in the United States this year.

Arizona Daily Star

"Arizona inmate, 71, executed in Bisbee murder," by Bob Christie. (AP October 10, 2013 12:00 am)

FLORENCE — Arizona executed its oldest person on death row Wednesday, nearly 35 years after he was charged with murdering a Bisbee man during a robbery and dumping his body along a highway. The execution of 71-year-old Edward Harold Schad Jr. came about two hours after the U.S. Supreme Court denied his final appeals.

At about 10 a.m., the warden at the state prison in Florence read Schad’s execution warrant and asked him if he had anything to say. Schad responded: “Well, after 34 years, I’m free to fly away home. Thank you, warden. Those are my last words.” He lay quietly and looked at the ceiling as he was given a lethal dose of pentobarbital through IV needles in both arms. He then took a long, deep breath and exhaled. He was pronounced dead at 10:12 a.m.

Schad was sentenced to death for killing Lorimer “Leroy” Grove, whose body was found Aug. 9, 1978, in underbrush off U.S. 89 south of Prescott. A sash-like cord used to strangle Grove was still knotted around his neck. Schad was arrested several weeks later in Utah while driving Grove’s Cadillac. Authorities say he had driven the car across the country, used Grove’s credit cards and forged a check from Grove’s bank account. At the time, Schad was on parole for second-degree murder in the 1968 accidental strangulation death of a male sex partner in Utah.

Schad was convicted in Grove’s death in 1979 and again in 1985 after the previous conviction was thrown out. The conviction was upheld by the state Supreme Court in 1989 but later became tied up in a series of federal court appeals. The U.S. Supreme Court in June lifted a stay put in place by an appeals court, ordering the court to issue the execution authorization.

Although Schad acknowledged driving Grove’s stolen car and using his credit cards, he always maintained he didn’t kill Grove. Regardless, he told the state’s clemency board at a hearing last week that he had accepted his fate. A top Yavapai County prosecutor told the Arizona Board of Executive Clemency that despite Schad’s denial, he was twice convicted by juries that rejected his assertion of innocence. “He doesn’t take any responsibility for what he did,” chief deputy Dennis McGrane told the board. “Accidents two times, died of strangulation? I don’t think so.”

The board refused to recommend to Gov. Jan Brewer that Schad’s sentence be commuted to life in prison.

Schad’s execution was Arizona’s 35th since 1992. It leaves 121 people on death row in the state, including two women. Only a handful of people older than 71 have been executed in the U.S. since 1976, according to the Death Penalty Information Center. The oldest was John Nixon, who was executed in Mississippi in 2005 at age 77.

Schad’s pastor, the Rev. Ronald Koplitz, said Schad’s last words likely were a reference to “I’ll Fly Away,” a Gospel song he gave Schad a couple of weeks ago. Koplitz met Schad when the Lutheran minister first arrived at the Florence prison in 1981 and served as the prison chaplain. Koplitz said he kept in touch with Schad after that and gave him last rites just before the execution. He also served as a witness to Schad’s death. “He was a good guy. Whether he did the murder or not, I don’t know,” Koplitz said afterward. “He always told me he didn’t, like he told everybody else.”

ProDeathPenalty.Com

The victim, Lorimer Grove, a 74-year-old resident of Bisbee, Arizona, and a WWII veteran, was last seen on August 1, 1978, when he left Bisbee driving his new Cadillac, coupled to a trailer, to visit his sister in Everett, Washington. Grove may have been carrying up to $30,000 in cash.

On August 9, 1978, Grove’s body was discovered in thick underbrush down a steep embankment off the shoulder of U.S. Highway 89, several miles south of Prescott, Arizona. The medical examiner determined that the cause of death was ligature strangulation accomplished by means of a sash-like cord, still knotted around the victim’s neck. According to the medical examiner, Grove had been strangled using a significant amount of force, resulting in breaking of the hyoid bone in his neck and the reduction of his neck circumference by approximately four inches. The time of death was estimated to be four to seven days prior to discovery of the body. No physical evidence at the crime scene implicated Schad in Grove’s murder, and there was no evidence of a prior connection between the two men. There was, however, ample evidence establishing Schad’s presence in Arizona at the time of the crime and his possession, after the date Grove was last seen, of Grove’s property, including his Cadillac, credit cards and jewelry.

On August 3, 1978, two days after Grove left Bisbee, and six days before his body was discovered, an Arizona highway patrolman found an abandoned Ford Fairmont sedan along- side Highway 89, approximately 135 miles north of where Grove’s body was discovered. The Ford was unlocked, except for the trunk, and its license plates were missing. A check of the Fairmont’s VIN revealed that Schad had rented the car from a Ford dealership in Utah in December 1977, had failed to return it, and that the dealership had reported it as stolen. According to Schad’s girlfriend, Wilma Ehrhardt, she and Schad, along with Ehrhardt’s children, had driven the car from Utah to New York, Florida, and Ohio between December 1977 and July 1978. In late July, Schad told Ehrhardt he was going to look for work and left Ohio with the Ford. Ehrhardt and the children remained in Ohio, but later returned to Utah. When police impounded the Ford on August 3, 1978, they found in it, among other things, three Arizona newspapers dated July 31 and August 1, 1978, the days just before the estimated date of Grove’s murder, as well as a special mirror device later identified by witnesses as an object Grove invented to help him couple his trailer to his Cadillac.

According to credit card records, on August 2, 1978, Schad began driving the Cadillac from Arizona eastward, using Grove’s credit cards to make purchases in numerous cities along the way. On August 2, Schad used Grove’s credit card to purchase gasoline in Benson, Arizona. On August 3, Schad used the card to purchase gas in Albuquerque, New Mexico. For approximately the next month, Schad continued traveling the country in the Cadillac and using Grove’s credit card. Schad also used Grove’s checkbook to forge a check to himself from Grove’s account, which he cashed on August 7, 1978, in Des Moines, Iowa. In New York state on September 3, 1978, Schad, still driving Grove’s Cadillac, was stopped for speeding by a New York state highway trooper. Schad told the trooper he was delivering the car to New York on behalf of a “rather elderly ” man named Larry Grove. Schad could not produce the car’s registration, and instead gave the trooper the registration for Grove’s trailer. The trooper issued Schad a citation and let him go. Schad then drove back across the country, reuniting with Ehrhardt in Salt Lake City, Utah, on September 7, 1978.

A man who was living with Ehrhardt at the time, John Duncan, contacted Salt Lake City police the same day to report that Schad had told him the Cadillac was stolen. Schad was arrested in Salt Lake City on September 8. After Schad’s arrest, Salt Lake City police impounded and searched the Cadillac. From the Cadillac’s title application, found in the car, the police learned that the vehicle belonged to Grove. Schad told police that he had obtained the Cadillac four weeks before in Norfolk, Virginia, after meeting “an elderly gentleman who was with a young girl” and who asked Schad to trade vehicles temporarily so that he and the girl would not be recognized. Schad also told the Utah police that he “was supposed to leave the Cadillac at the New York City port of entry at a later date for the man to pick up. ” Police found in the Cadillac’s trunk a set of Utah license plates issued to Ehrhardt. Schad had previously installed these plates on the stolen Ford. He left the Cadillac’s original plates on the car while he was driving it across the country. After Schad’s arrest, Ehrhardt went to the Salt Lake City jail and retrieved Schad’s wallet. Duncan then searched the wallet and found the credit card receipts and the New York traffic citation. He again contacted the Salt Lake City police. When Detective Halterman came to Ehrhardt’s home to collect the wallet and the documents, Ehrhardt also handed over a diamond ring she said her daughter had found in the glove compartment of the Cadillac. Witnesses later identified the ring as belonging to Grove. Duncan also visited Schad in jail. Duncan testified that during the visit Schad talked about lying about his presence in Arizona at the time of the crime and destroying evidence of the crime. On October 5, 1979, the jury found Schad guilty of first-degree murder, and the court sentenced Schad to death.

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-August-2012 Lethal Injection Carlos Froyan Cruz-Ramos. Kevin Swaney
34. Richard Dale Stokley 5-December-2012 Lethal Injection Mary Snyder, Mandy Meyers
35. Edward Harold Schad 9-October-2013 Lethal Injection

State v. Schad, 129 Ariz. 557 (Ariz. 1981). (Direct Appeal)

PROCEDURAL POSTURE: The Superior Court of Yavapai County (Arizona) convicted defendant of first degree murder and sentenced him to death. Defendant sought review.

OVERVIEW: The defendant was convicted of first degree murder and sentenced to death. The defendant appealed. The court held that the: (1) search of a stolen car and defendant's wallet did not violate his Fourth Amendment rights because he authorized his girlfriend to take possession of his wallet, the girlfriend consented the search of the wallet, and he lacked a reasonable expectation of privacy in the stolen car; (2) denial of the motion to suppress an informant's statements was not violative of Sixth Amendment rights because the informant was not an agent of the police; (3) statements to police officers were voluntary under Ariz. Rev. Stat. § 13-3988(B)(1)-(2); (4) refusal to sequester the jury was proper because defendant failed to show that publicity prejudiced the jury; (5) suppression hearing transcript was properly admitted under Ariz. R. Evid. 804(b)(1); (6) state complied with Ariz. R. Crim. P. 15.1 and was not obligated to support the defense; (7) photograph of the victim was properly admitted under Ariz. R. Evid. 403, (8) evidence was sufficient for conviction; and (9) mitigating circumstances did not warrant leniency in the death penalty sentence.

OUTCOME: The conviction for first degree murder and sentence of death was affirmed.

The appellant, Edward Harold Schad, Jr. (hereinafter defendant), was convicted by a Yavapai County jury of first degree murder and was sentenced to death. Defendant now appeals both the conviction and the sentence. We have jurisdiction pursuant to A.R.S. § 13-4031. Judgment of conviction and sentence affirmed.

The facts of this case are rather complicated. Accordingly, general facts surrounding the crime will be provided here and other facts which are necessary for resolution of the issues raised by defendant will be developed within the opinion. On August 9, 1978, a badly decomposed body of an elderly male was found approximately nine miles south of Prescott, Arizona, adjacent to a roadway pull-off on U.S. Highway 89. The body was discovered after a highway department worker had detected the odor of decaying human flesh the previous day while driving past the pull-off. Although the worker and his coworker had stopped briefly to investigate the odor on August 8, the body was not actually discovered until the next day due to the fact that it was well concealed in the brush. After the corpse was discovered, the Yavapai County Sheriff's Department and the County Medical Examiner observed a small rope tied around the victim's neck. It was later established that the cause of death was strangulation. Because of the advanced state of decomposition, the body was not identified until October 11, 1978, when it was established that the deceased was Lorimer "Leroy" Grove, a 74-year-old Bisbee resident. Grove had last been seen on August 1, 1978, in Bisbee, Arizona. On that morning, Grove left Bisbee driving a new Cadillac, pulling a camper-trailer. His ultimate destination was Everett, Washington, where he had intended to visit his sister.

On August 3, 1978, a dark green Ford Fairmont was found abandoned 30 miles north of Flagstaff, Arizona, alongside U.S. Highway 89 by a Department of Public Safety Highway Patrolman. It was subsequently determined that the Fairmont had been rented by the defendant from a Ford dealership in Sandy, Utah, on December 31, 1977. Although the vehicle had been rented for the weekend, it was never returned and had been reported as stolen. The vehicle was turned over to the Coconio County Sheriff's Department and was impounded at a local towing yard. On September 12, 1978, two officers examined the vehicle in connection with an investigation of possible homicide charges against defendant. Several items belonging to the victim were found in the Fairmont, including a mirror device which was identified as being similar to one used by the deceased to hook the trailer to the automobile by himself. On September 3, 1978, defendant was stopped by a New York Highway Trooper, for speeding, while driving the victim's Cadillac. When the defendant could not produce a registration on the vehicle, the officer asked for an explanation. Defendant replied that it wasn't his car but that he was delivering it for a friend to an area five or ten miles from where the officer stopped him. Asked who was the friend was, defendant said he was an elderly gentleman by the name of Larry Grove.

Defendant was arrested in Salt Lake City, Utah, on September 8, 1978, for parole violation. Defendant had been on parole from the Utah State Penitentiary where he had been serving a sentence for second degree murder conviction. After defendant was arrested and taken into custody, the Cadillac was taken to the Salt Lake City Police Department impound lot where it was searched. Various personal items were found in the car which were identified as belonging to the victim.

Defendant raises the following arguments for our consideration: 1. The warrantless search of the Cadillac and defendant's wallet violated defendant's fourth amendment rights; 2. An informant's testimony regarding statements made by defendant while in jail violated defendant's sixth amendment rights; 3. Statements made to various police officers were involuntary; 4. The trial court improperly restricted voir dire questioning of the jury; 5. The jury should have been sequestered; 6. Defendant was denied his right of confrontation under the sixth amendment when the trial court admitted into evidence portions of the suppression hearing transcript concerning written and oral statements of the defendant; 7. Defendant's prior prison record should have been admitted; 8. The State deprived defendant of a fair trial by failing to make a good-faith effort to obtain fingerprints of the "French people"; 9. The trial court abused its discretion in admitting a photograph of the deceased; 10. The evidence was insufficient to support the conviction; 11. The trial court improperly instructed the jury; 12. The death penalty was not properly imposed; 13. A.R.S. § 13-454 is unconstitutional in this case.

SEARCH OF CADILLAC AND WALLET

Defendant's first point deals with the trial court's refusal to suppress evidence seized from the warrantless searches of defendant's wallet and the Cadillac. We turn first to the evidence obtained from defendant's wallet. At the time of arrest, defendant was immediately taken into custody and transported to jail. Wilma Horrocks, who was present at the scene of arrest and had been cohabiting with defendant during the preceding year, was asked by defendant to pick up his personal belongings from the jail. Among these items was defendant's wallet which contained two VISA credit cards belong to the murder victim. At the jail, the police inexplicably released the wallet to Horrocks without examining the contents. On the following day, after being informed that the wallet contained stolen credit cards, Detective John Johnson of the Salt Lake City Police Department went to Horrocks' residence in order to try to obtain the credit cards. Once there, Johnson asked Horrocks if she had two stolen credit cards; she answered that she did, retrieved the wallet and gave the cards to Johnson. No warrant was obtained to seize the cards.

Defendant maintains that because the wallet was released to his girlfriend at her request and upon his instructions, defendant had a legitimate expectation of privacy in its contents. Therefore, defendant argues he has standing to object to the "unlawful" search of his wallet without a warrant even though it was in the custody of his girlfriend. It is undisputed that searches and seizures that may be made at the time of arrest may be legally conducted later when the accused arrives at the place of detention. United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974). Thus, at the time defendant was taken into custody, the police would have been acting well within their permissible authority under the fourth and fourteenth amendments had they conducted a search of the wallet at the jail. Admittedly, in this case the police neglected to do this and instead turned the wallet and its contends over to Horrocks. We need not decide whether this gave rise to a legitimate expectation of privacy in the contents of the wallet, however, since Horrocks consented to the search and voluntarily turned over the credit cards to Detective Johnson.

It is well settled that a warrantless search of property is valid if conducted pursuant to a voluntary consent. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); State v. Tucker, 118 Ariz. 76, 78, 574 P.2d 1295, 1297 (1978), cert. denied, 439 U.S. 846, 99 S.Ct. 144, 58 L.Ed.2d 147 (1978). "A consent to search may be evidenced by conduct as well as by words. However, the constitutional protection against unreasonable searches demands a waiver by unequivocal words or conduct expressing consent." State v. Tucker, supra, 118 Ariz. at 78-79, 574 P.2d at 1297-98. [***8] These same principles apply where the consent is given by one who possesses common authority over the premises or effects. In such a situation, the consent is valid as against the absent, nonconsenting person with whom that authority is shared. United States v. Matlock, supra, 415 U.S. at 171, 94 S.Ct. at 993. In the present case it is clear that Horrocks had the authority to consent to the search of the wallet and seizure of the credit cards. The wallet was released to her at defendant's request. By allowing her to take possession and control of the wallet, defendant "assumed the risk" that she would allow someone else to have the contents, here the stolen credit cards. United States v. Matlock, supra; United States v. Miroff, 606 F.2d 777, 779 (7th Cir. 1979).

We also find the consent to the search to have been voluntarily given. There were no overt acts or threats of force by Detective Johnson nor were there any indications of more subtle forms of coercion. Detective Johnson testified that he had no intention to search for the cards, and, if Horrocks had refused to give them to him, he would have left the premises. Horrocks' testimony does not dispute this. The conclusion that her consent was voluntary is also bolstered by the fact that she brought the wallet to the police station a week later and turned it over to Detective Johnson. Defendant also argues that since he had been driving the Cadillac for the previous six weeks, he had standing to assert a legitimate expectation of privacy regarding the seized contents of the Cadillac. In support of this contention, defendant relies heavily on Cotton v. United States, 371 F.2d 385 (9th Cir. 1967), which held that a thief who had possession of a stolen automobile and claimed it as his own had standing to object to a search of the car.

We do not find Cotton to be persuasive in light of Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), where the Supreme Court held that the defendants did not have standing to challenge a search of the automobile in which they were riding as passengers. In so holding, the Court noted that a "legitimate" expectation of privacy by definition means more than a subjective expectation of not being discovered. 439 U.S. at 143 n.12, 99 S.Ct. at 430-31. We find especially significant the fact that the Court in Rakas expressed its [***10] disapproval of the result in Cotton. After emphasizing that the Court in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), was careful to note that "wrongful" presence at the scene of a search would not enable a defendant to object to the legality of the search, the Court went on to observe that "[d]espite this clear statement in Jones, several lower courts inexplicably have held that a person present in a stolen automobile at the time of a search may object to the lawfulness of the search of the automobile. See, e. g., Cotton v. United States (citation omitted) . . ." 439 U.S. at 141 n.9, 99 S.Ct. at 429. Similarly, this court has refused to recognize as "reasonable" any expectation of privacy a thief may have in an automobile which he has stolen. State v. Myers, 117 Ariz. 79, 570 P.2d 1252 (1977), cert. denied, [*564] [**373] 435 U.S. 928, 98 S.Ct. 1498, 55 L.Ed.2d 524 (1978). Defendant attempts to distinguish Myers by pointing to the fact that the stolen automobile in that case had been abandoned. Further, defendant asserts that because there were numerous items of his own property located in the Cadillac he had an expectation of privacy in the automobile.

We do not view Myers so narrowly. We cannot see how lack of abandonment of a stolen vehicle, coupled with the fact that the thief may have some of his own property in the automobile, can elevate defendant's standing to object to a warrantless search. The capacity to claim the protection of the fourth amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the amendment has a legitimate expectation of privacy in the invaded place. Rakas v. Illinois, supra, 439 U.S. at 143, 99 S.Ct. at 430; Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967). Clearly, defendant's expectation is not one that society is prepared to recognize as reasonable, nor are we. See also Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980) (defendant not entitled to challenge search of woman's purse merely because he claimed ownership of drugs in the purse). The items taken from the Cadillac were properly admitted into evidence.

INFORMANT'S TESTIMONY IN RE STATEMENTS MADE BY DEFENDANT WHILE IN JAIL

The Salt Lake City Police learned of defendant's presence in Salt Lake City from information supplied by John Duncan. Duncan had been arrested by Detective Halterman of the Salt Lake City Police Department on a California fugitive warrant but had fought extradition and was eventually released by the Utah authorities. Afterwards, Duncan and his wife were living with Wilma Horrocks when defendant arrived in town driving the victim's Cadillac.

Defendant told Duncan that he was a parole violator and wanted to know the fastest way out of town after his visit with Horrocks. Duncan then informed Detective Halterman of defendant's presence. Halterman checked Duncan's information and discovered that defendant was indeed a parole violator. Duncan told Halterman where defendant had parked the Cadillac, and Halterman arranged for defendant's arrest the next morning. After defendant was arrested as he was attempting to leave town, Duncan contacted Halterman several more times. On these occasions, Duncan told Halterman about the stolen credit cards in defendant's wallet and about some credit card receipts Duncan had recovered. He later turned these receipts over to Halterman. These contacts were all initiated by Duncan. [***13] The police did not direct Duncan's activities nor did they pay Duncan for the information.

Several days later, Duncan volunteered to visit defendant in jail and offered to report the conversation to the police. After this was considered by the police and prosecutorial officials, however, the idea was rejected. Detective Halterman summarized this decision at the suppression hearing: "Q. Was there ever any discussion with [Duncan] as to his talking to Ed Schad and relaying any information that he might learn from him to you or any other officer? "A. There was -- that point was brought up at one time I believe, by Mr. Duncan and I with my captain and also the County Attorney concerning that and determined that that would not be a good idea, and that was discussed and that information was relayed to Mr. Duncan. "Q. What was Mr. Duncan's reaction, if any? "A. That he still was an acquaintance of Mr. Schad and that he would -- if he wanted to visit him he could visit him, I mean, we didn't have the right to tell him he couldn't but that was about it. "Q. Then do you know whether he did visit him or not? "A. I believe he did. "Q. Did Mr. Duncan ever talk to you or tell you what came about from such a visit, if anything? "A. It seems like he told me that he talked to him and told Mr. Schad that the Police Department had the credit cards at that time, and I believe he asked Mr. Schad where the trailer was and Mr. Schad would not tell him. "Q. That is all the information that you learned from Mr. Duncan in regard to that visit? "A. Yes."

Although Duncan wanted "some help from the police" with regard to his California parole violation, this help did not amount to more than a promise from Detective Halterman that he would write a letter to Duncan's judge in California relating Duncan's assistance in the investigation. At the time of trial, Duncan was still serving a sentence in Chino State Prison, California. Based upon the foregoing, defendant contends that Duncan was acting as an agent for the State and was soliciting information by trickery, in violation of defendant's sixth amendment right to counsel. In advancing this position, defendant argues that State v. Smith, 107 Ariz. 100, 482 P.2d 863 (1971), controls the facts of the present case. We cannot agree.

In State v. Smith, supra, this court was presented with facts which indicated an agency relationship existed between an informant and the Maricopa County Attorney's Office. The court summarized the facts leading to this conclusion as follows: "Mahan was a known informer used by the County Attorney on a previous occasion, with the express understanding that in exchange for testimony, parole for Mahan would be obtained; out of 350-400 inmates in the Maricopa County Jail, the defendant was placed next to this known informer; the County Attorney's office had the power to control the placement of inmates; following the performance by Mahan of all the services required of him in connection with his prior activities, he was allowed to remain in the Maricopa County Jail for six months; the notes delivered to the County Attorney's office were specifically marked in such a manner as would require Mahan's testimony at defendant's trial; and notes were made by [the County Attorney] of defendant's oral conversations with Mahan, again indicating the necessity of Mahan's appearance at trial." 107 Ariz. at 103, 482 P.2d at 866. Additionally, after obtaining the evidence from Mahan concerning the defendant, [***16] Mahan's robbery conviction was reduced to grand theft and he was resentenced to time served and released. "In other words Mahan received his quid pro quo." Id. at 104, 482 P.2d at 867. Under these circumstances, this court held that the notes obtained by the informant from the defendant were inadmissible under the doctrine of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). 1

1 More recently, the United States Supreme Court in United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), has identified three factors in determining whether a government agent is deliberately eliciting incriminating statements from the accused within the meaning of Massiah. First, the agent must be acting under instructions as a paid informant for the government; second, the informant is ostensibly no more than a fellow inmate of the accused; and third, the defendant is in custody and under indictment at the time he is engaged in conversation by the informant. 447 U.S. at 270, 100 S.Ct. at 2186. However, we do not believe that any of these factors are applicable to the present case.

Turning to the facts of the present case, we hold that there was no agency relationship between Duncan and the Utah authorities. There was obviously no "quid pro quo" for Duncan's assistance. Duncan initiated the contacts with the police and did so without any tangible promise of pecuniary gain or prospect of release from prison. Additionally, there were no concerted actions on the part of the police aimed at priming Duncan as a witness against defendant at trial, as evidence by the unwillingness of the authorities to deliberately [*566] elicit incriminating statements from defendant during the suggested jail visit. As we pointed out in Smith, "it should be emphasized thatlaw enforcement officials have the right, and indeed the obligation in the prosecution of crimes to use all information that comes into their hands pointing to the guilt of the accused. This is true even though the persons supplying that information may harbor expressed or unexpressed motives of expectation of lenient treatment in exchange for such information. It is only when the state actively enters into the picture to obtain the desired information in contravention of constitutionally [***18] protected rights that the sanction of inadmissibility becomes pertinent." 107 Ariz. at 103, 482 P.2d at 866. Regardless of Duncan's motivations in aiding the police, we cannot say that the police "actively entered into the picture" so as to give rise to an agency relationship. When viewed along with the fact that the information gained through the jail conversation was insignificant, it is apparent that the trial court did not err in denying defendant's motion to suppress the statements.

VOLUNTARINESS OF STATEMENTS MADE TO POLICE OFFICERS

Defendant next argues that the trial court erred in admitting certain statements made to Salt Lake City, Utah, and Yavapai County law enforcement officers. Defendant does not contend that these statements were obtained in violation of his Miranda 2 rights but asserts the statements were involuntary under A.R.S. § 13-3988(B)(1) and (2). 3 Relying on the statute, defendant claims his statements were involuntary because 1) they were made during an unreasonable length of time between his arrest for parole violation on September 8, 1978, and the arraignment on the murder charge on March 21, 1979, and 2) that because he was arrested on [***19] the parole violation charge, he did not know the nature of the offense for which he was charged nor of which he was suspected at the time of making the statements.

2 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 3 A.R.S. § 13-3988(B)(1) and (2) provides: "The trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession, including but not limited to the following: 1. The time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment. 2. Whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession.

We have repeatedly stated that confessions are prima facie involuntary and the burden is on the State to show that they were freely and voluntarily made, and that they were not the product of physical or psychological coercion. [***20] State v. Gretzler , 126 Ariz. 60, 612 P.2d 1023 (1980); State v. Hall, 120 Ariz. 454, 586 P.2d 1266 (1978); State v. Arnett, 119 Ariz. 38, 579 P.2d 542 (1978). Although the statements at issue do not rise to the level of a confession, they served to destroy the defendant's credibility as a witness on his own behalf; therefore, if the statements were involuntary, their use against the defendant at trial would be a denial of due process. See Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408, 2416, 57 L.Ed.2d 290 (1978). Accordingly, the State must shoulder the same burden in showing that these statements were not the product of physical or psychological coercion.

As to defendant's first contention that his statements were involuntary because of the delay between the time of arrest and his first appearance before a magistrate, we have observed that "such a delay is but a factor to be considered and does not ipso facto render such statements involuntary." State v. Arnett, supra, 119 Ariz. at 44, 579 P.2d at 548. Here, defendant does not claim he was subjected to any such practices, but merely points to the time span and the fact that he was not transferred from the Salt Lake County Jail [***21] [*567] to the Utah State Penitentiary as would be the normal practice for a prisoner facing a parole revocation hearing. We do not see how this different procedure made defendant's statements involuntary and must uphold the trial court's determination on this point. We also find defendant's second contention that he did not know the nature of the offense for which he was charged or suspected to be wholly unsupported by the record. On September 12, 1978, Officer Jones asked defendant a number of questions concerning the Cadillac and specifically asked defendant if he knew Larry Grove. On September 19, 1978, Jones told defendant that he thought defendant was involved in the death of Grove. This line of inquiry obviously put defendant on notice that he was a murder suspect, especially in light of the fact that defendant, a habitual criminal, was no stranger to the criminal justice system. The trial court was correct in denying defendant's motion to suppress the statements.

REFUSAL TO USE DEFENDANT'S REQUESTED VOIR DIRE QUESTIONS

Defendant contends that the trial court erred in refusing to ask certain questions submitted by defendant during the voir dire examination. The submitted questions concerned: 1) whether any prospective juror had any conscientious or religious opinions concerning the death penalty; 2) whether the prospective jurors or family members had any knowledge of correctional institutions or parole; 3) whether the prospective juror would have convicted defendant because of his involvement in other crimes; 4) whether the prospective jurors or any family members were personal friends or acquaintances of any other persons serving on the jury panel; and 5) whether the prospective jurors had any disagreement with the law of murder or the law of the alibi defense.

In discussing procedures for selecting a jury in a criminal trial pursuant to 17 A.R.S. Rules of Criminal Procedure, rule 18.5, we have emphasized that the rule "places the responsibility for conducting voir dire examination of the prospective jurors on the court . . . The purpose behind the provisions of Rule 18.5 is to give the trial court authority to limit the scope of examination to those questions reasonably designed to expose possible prejudice on the part of the jurors." State v. Melendez, 121 Ariz. 1, 3, 588 P.2d 294, 296 (1978). "While it is the court's duty to question potential jurors, the extent of voir dire examination to determine the presence or absence of prejudice is left to the sound discretion of the trial court." State v. Smith, 114 Ariz. 415, 418, 561 P.2d 739, 742 (1977). We have reviewed the voir dire examination conducted by the trial court and find that the court adequately questioned the prospective jurors so as to have enabled the parties to exercise intelligently their peremptory challenges and challenges for cause. The trial court propounded questions which more than adequately dealt with the area of concern touched upon by defendant's capital punishment question. This is evidence by the fact that one prospective juror indicated that he had "a strong objection to capital punishment." After listening to the ensuing discussion which occurred between the court and the prospective juror, no other prospective jurors indicated they had any opinions which would prevent them from reaching a just verdict.

Similarly, defendant's second proposed question was properly refused. Defendant claims this question was necessary because defendant had a right to know if any prospective juror was an "expert" on the subject of prisons, correctional institutions and parole. The trial court refused this question in light of the fact that information relating to present or past occupations was elicited from the prospective jury members. Defendant's third proposed question constitutes an attempt to "condition" the jurors by forewarning them of unfavorable facts concerning defendant. We have disapproved of this practice in Melendez, supra, and find no error in the trial court's refusal to give this question. Finally, defendant argues that the fourth and fifth proposed questions were necessary in order to allow him to intelligently exercise his peremptory challenges. In both instances, defendant assumes this information would inform him whether a prospective juror would be more likely than other jurors to violate the court's admonitions and instructions. With respect to the fourth question, we find such an inference to be tenuous, at best. Furthermore, there is no presumption that jurors will disobey instructions given them by the court. State v. Trujillo, 120 Ariz. 527, 587 P.2d 246 (1978). It was not error to refuse to ask the requested questions.

JURY SEQUESTRATION

Defendant argues that the trial court erred when it denied his motion to sequester the jury. Specifically, defendant points to the fact that there were various newspaper articles published concerning the case which mentioned defendant's prior conviction for second degree murder. While conducting the voir dire, the trial court carefully inquired whether any prospective juror had been exposed to any media coverage concerning the case. This inquiry led to the disqualification of one prospective juror. Immediately after the jury was selected and during the course of the trial, the court repeatedly admonished the jurors not to read or listen to any accounts that may appear in the media. The decision to sequester the jury is within the discretion of the trial court and as such will not be disturbed on appeal absent a clear showing of abuse of discretion and resulting prejudice to defendant. State v. Greenawalt, 128 Ariz. 150, 624 P.2d 828 (1981). In claiming that the trial court erred in refusing to sequester the jury, the burden of proving that publicity actually prejudiced the jury is on the defendant. See State v. Lippard, 26 Ariz.App. 417, 549 P.2d 197 (1976). This the defendant has not done. Accordingly, we will not disturb the trial court's discretion in this matter on appeal. State v. Greenawalt, supra, 128 Ariz. at 162, 624 P.2d at 840.

RIGHT OF CONFRONTATION AND CROSS-EXAMINATION

Defendant next claims he was denied his sixth amendment right to confront witnesses against him and was denied sufficient opportunity to cross-examine when the trial court admitted into evidence portions of a suppression hearing transcript of Kent Jones, a Utah probation officer, concerning the voluntariness of statements made to Jones. Defendant attacks the admissibility of the suppression hearing transcript under 17A A.R.S. Rules of Evidence, rule 804(b)(1), 4 by asserting that there was not a similar motive to develop Jones' suppression hearing testimony, where voluntariness was at issue, as was present at trial, where guilt was at issue. Defendant maintains he desired to elicit testimony to the effect that defendant was regarded as a "snitch" at the Utah State Penitentiary. According to defendant, this testimony would have directly related to the issue of guilt since it reflected favorably upon the credibility of the defendant. 5 Defendant also argues that this questioning would not have been relevant to determine whether defendant's statements to Jones were made voluntarily at the suppression hearing. We believe, however, that this line of questioning was relevant to the voluntariness hearing and was germane to the issue of whether statements to Jones were made freely in the first place. We note further that defendant did not even attempt to go into this area on cross-examination, nor did he attempt to subpoena Jones in his own defense.

4 Rule 804(b)(1) provides: (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former testimony. Testimony given as a witness at another hearing of the same or different proceeding, or in deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. 5 Defendant relied on his fear of being labelled a "snitch" in order to explain why he gave numerous fabricated accounts as to how he came into possession of the Cadillac, which differed from defendant's testimony at trial, where he implicated an escaped Utah convict.

It is well within the trial court's discretion to decide if defense counsel had sufficient opportunity to cross-examine the witness at the prior proceeding. State v. Ray, 123 Ariz. 171, 598 P.2d 990 (1979). Absent an abuse of discretion, this judgment will not be disturbed on appeal. Because we are of the opinion that defendant had the opportunity and similar motive to develop Jones' testimony at the suppression hearing as he would have had at trial, we find the transcript testimony to have been properly admitted under the hearsay exception of rule 804(b)(1).

In raising the sixth amendment claim, defendant argues that the testimony should not have been admitted because he did not have a full and meaningful opportunity to cross-examine Jones on the issue of guilt. The Sixth Amendment's Confrontation Clause provides: "In [***29] all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." This sixth amendment right is a fundamental right made applicable to the states by the fourteenth amendment. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). A critical inquiry which arises under the sixth amendment is whether the administration of hearsay testimony by way of exception violates the command of the Confrontation Clause. Because the Confrontation Clause reflects a preference for face-to-face confrontation at trial and a primary interest secured by the clause is the right of cross-examination, Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 2537, 65 L.Ed.2d 597 (1980); Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965), the clause operates to restrict the range of admissible hearsay in two ways. First, the prosecution must demonstrate the unavailability of the declarant whose statement it wishes to use against the defendant; second, once the witness is shown to be unavailable, his prior testimony must bear some "indicia of reliability." [***30] Ohio v. Roberts, supra, 448 U.S. at 66, 100 S.Ct. at 2538-39; Mancusi v. Stubbs, 408 U.S. 204, 213, 92 S.Ct. 2308, 2313, 33 L.Ed.2d 293 (1972). Once the unavailability of the declarant has been established, the Supreme Court has indicated what factors must be present in order to comply with the purposes behind the confrontation requirement. Thus, in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), the Court held preliminary hearing testimony admissible as against a Confrontation Clause attack, noting that (1) the declarant was under oath, (2) the defendant was represented by the same counsel who later represented him at trial, (3) the defendant had every opportunity to cross-examine the declarant, and (4) the proceedings were conducted before a judicial tribunal, equipped to provide a judicial record of the hearings. Id. at 165, 90 S.Ct. at 1938. If these elements are present, the transcript bears a sufficient indicia of reliability and affords the trier of fact a satisfactory basis for evaluating the truth of the prior statement. Ohio v. Roberts, supra, 448 U.S. at 73, 100 S.Ct. at 2542-43.

In the instant case, we hold that defendant was not denied his sixth amendment confrontation right [***31] when the trial court admitted the suppression hearing testimony. It is undisputed that Jones was involved in a serious accident after the suppression hearing and was unable to testify at trial. At the time his testimony was given, Jones was under oath at the suppression hearing and defendant was represented by the same counsel who represented him at trial. Finally, defense counsel conducted a [*570] [**379] thorough cross-examination in an attempt to show that the defendant's statements were involuntary. In short, the demands of the Confrontation Clause were satisfied here. Finally, defendant contends that the trial court erred when it allowed the reading of a written statement prepared by defendant which was given to Jones. Defendant asserts that the statement was improperly admitted because Jones was not available to provide a proper foundation for the statement. In order to prove an admission or declaration it is necessary to show that the statement is relevant and material to the issues of the case and that the statement was, in fact, made by the declarant. See generally 29 Am.Jur.2d, Evidence, § 598. Such matters of determination are within the discretion [***32] of the trial court. See State v. Ray, supra; 17A A.R.S. Rules of Evidence, rule 104. Defendant does not dispute the genuineness of the written statement, nor does he question its relevancy or materiality. Therefore, we find no error.

PRISON RECORDS

On the last day of trial, defendant offered into evidence one page of chronological notes of his prison records made at the Utah State Penitentiary. The portion of the record which defendant sought to introduce reflected that defendant had been placed in maximum security because of his fear of being labeled a "snitch" at the prison. Defendant attempted to introduce these records in order to corroborate his professed fear of being a "snitch" as an explanation for initially lying to investigating officers regarding how he had acquired the Cadillac. Defendant's testimony at trial tended to incriminate an escaped Utah State Prison inmate. The entire prison record was 25 pages in length, of which defendant attempted to introduce only a small portion. The prosecutor objected to its admission, arguing that the portion sought to be introduced was taken out of context and that he had not been given an opportunity to examine the 25-page prison record. The trial court sustained the objection and defendant now maintains this ruling constituted prejudicial and reversible error.

Again, we must observe that the trial court is allowed considerable discretion in determining the admissibility of evidence and such discretion will not be disturbed on appeal unless it has been clearly abused. State v. Tulipane, 122 Ariz. 557, 596 P.2d 695 (1979); State v. Macumber, 119 Ariz. 516, 582 P.2d 162, cert. denied, 439 U.S. 1006, 99 S.Ct. 621, 58 L.Ed.2d 683 (1978). In this instance, the trial court acted well within its discretion by excluding the proffered exhibit. Although the entry offered noted that defendant had requested protection because he had been labeled a "snitch," the very next entry indicated that defendant was "getting no pressure from anyone" and that "everything is going fine." Understandably, defendant did not wish to have this portion of the prison record admitted. This fact indicates the unreliability of the proffered exhibit. The trial court did not err in sustaining the State's objection.

STATE'S EFFORTS TO OBTAIN FINGERPRINTS OF THE "FRENCH PEOPLE" After giving numerous accounts as to how he came into possession of the victim's Cadillac and credit cards, at trial defendant admitted that all of his prior accounts were false. Defendant then testified that he was introduced to a "French couple" by escaped convict James Travis at the Roadrunner Truck Stop in Phoenix. Defendant observed the "French couple" to be very nervous and learned they were driving a new Cadillac. Suspecting the Cadillac to be stolen, defendant "conned" them into trading the Cadillac for his own stolen Ford Fairmont. The couple agreed and an exchange was made at the truck stop. At this time, defendant purportedly received a piece of paper from the "French couple" with their names and addresses in France. As related earlier, the Ford was the vehicle found abandoned north of Flagstaff. A number of unidentified fingerprints were lifted from the vehicle by Coconino County Deputy Sheriffs. Defendant sought to verify whether any such people existed and requested the State to obtain their fingerprints from the United States Department of State. Defendant now maintains that the State did not make a good-faith effort to obtain the fingerprints, thus depriving defendant of a fair trial.

We have said: "[T]he state has an obligation pursuant to rule 15.1 [17 A.R.S. Rules of Criminal Procedure] to disclose such information not in its possession or under its control if the state has better access to the information; if the defendant shows that it has made a good faith effort to obtain the information without success; and if the information has been specifically requested by the defendant." State v. Smith, 123 Ariz. 231, 239, 599 P.2d 187, 195 (1979). Defendant, relying on this statement in Smith, maintains that the United States Department of State and American Consulate in France, being federal government agencies, were more likely to cooperate with the State than the defense and thus the State had better access to the information. We find this argument to be specious.

First, the claim that the State did not make a good-faith effort to obtain the fingerprints of the "French couple" rings hollow in view of the fact that defense counsel had informed the trial court that "[w]e have contacted the Department of Justice and the French Consulate, have made long distance calls to Paris, and reached a blank wall in any further [***36] efforts we can do to get the French people or the passports or pictures which are important. We have requested the State to do this for us. And I think they are all doing it -- I think they are vigorously working on this." (Emphasis added). The prosecutor stated that he contacted the Federal Bureau of Investigation immediately after he and defendant's counsel had discussed the matter. Three weeks later, the trial court inquired how the investigation regarding the French people was coming along. Defense counsel agreed that nothing had been discovered and additionally stated that he was satisfied that all that could be done had been done.

Second, we do not view Smith as controlling here. Defendant would extend our holding in Smith so as to place an obligation on the State to seek out information requested by the defense any time another governmental body is involved. In the context of Smith, we stated that "[a]nother law enforcement authority is far more likely to cooperate with the prosecution than with defense counsel." 123 Ariz. at 239, 599 P.2d at 195. In the present case, the prosecutor contacted the FBI in order to obtain the information requested. This [***37] inquiry proved fruitless. At this point the State did all it was obligated to do under Rule 15.1 and Smith. It did not have the obligation to conduct an extensive investigation in order to support defendant's case nor did it have an obligation to carry this inquiry any further under the flawed assumption that the State would meet with any greater success merely because it was dealing with a governmental body. Defendant does not argue that the Department of State or Consulate was uncooperative nor does he say what more the State could have done. As noted above, defendant did not complain of lack of a good-faith effort on the part of the State in the court below. With these factors in mind we conclude that defendant was not deprived of a fair trial.

PHOTOGRAPH OF THE DECEASED

Defendant complains that the trial court erred in admitting a photograph of the deceased because it was so gruesome and inflammatory that it incited the passions of the jury and prejudiced the defendant. See 17A A.R.S. Rules of Evidence, rule 403. Trial courts have great discretion in the admission of photographs. State v. Clark, 126 Ariz. 428, 616 P.2d 888, cert. denied, [***38] 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980). As long as the photograph has some probative value it is admissible even if inflammatory. Id. Admission is proper where the photograph aids to [*572] [**381] identify the victim, to illustrate how the crime was committed, to aid the jury in understanding testimony, and to show the location of the mortal wounds. State v. Vickers, 129 Ariz. 506, 633 P.2d 315 (1981). The photograph admitted at defendant's trial showed the partially decomposed corpse of the victim with a rope tied around the remains of the neck. The picture is in black and white and without close examination it is difficult to discern that the photograph is actually that of a human body. In our opinion, the photograph was not so gruesome so as to inflame or prejudice the jurors. Further, the photograph was the only one available to show how the cord used for the strangulation was placed around the victim's neck. In addition, the photograph was used by the Yavapai County Medical Examiner in order to explain to the jury now how the cord was knotted. Thus, the photograph illustrated testimony at trial and aided the jury in understanding how the crime was committed. The trial court did not abuse its discretion in admitting the photograph.

SUFFICIENCY OF THE EVIDENCE

Defendant argues that there are no probative facts to support the verdict and thus the conviction should be reversed for lack of substantial evidence. In State v. Tison, 129 Ariz. 546, 633 P.2d 355 (1981), we re-examined the standard of review utilized by Arizona appellate courts in determining whether there is substantial evidence to support a guilty verdict. We concluded that the approach employed in Arizona equates with the mandate in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requiring the reviewing court to find that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. In reaching this conclusion we stated "[o]ur review function will therefore be concerned with whether there exists substantial evidence from the entire record from which a rational trier of fact could have found guilt beyond a reasonable doubt." State v. Tison, supra, 129 Ariz. at 553, 633 P.2d at 362.

The State's case against the defendant consisted entirely of circumstantial evidence. Defendant relies on this absence [***40] of direct evidence in arguing there were no probative facts to support the verdict. However, as we stated in Tison, supra, "[t]he lack of direct evidence of guilt does not preclude [a verdict of guilty] since a criminal conviction may rest solely upon proof of a circumstantial nature. State v. Carriger, 123 Ariz. 335, 599 P.2d 788 (1979), cert. denied, 444 U.S. 1049, 100 S.Ct. 741, 62 L.Ed.2d 736 (1980). It is unnecessary for the prosecution to negate every conceivable hypothesis of innocence when guilt has been established by circumstantial evidence. State v. Olivas, 119 Ariz. 22, 579 P.2d 60 (App. 1978)." 129 Ariz. a 554-555, 633 P.2d at 363-364. After reviewing the entire record, we are of the opinion that there was sufficient evidence from which a rational trier of fact could have found guilt beyond a reasonable doubt. Without recounting every incriminating fact which would support the conviction, we observe that defendant gave numerous contradictory versions as to how he came into possession of the victim's Cadillac; denied using the victim's credit cards, and stated he had never been in Arizona until he discovered that the authorities could place him [***41] there on several occasions; personal effects belonging to the victim were found in the Ford Fairmont; a diamond ring belonging to the victim was found on Wilma Horrocks' finger; although defendant professed to have never met Larry Grove, he apparently knew that the victim was an elderly man when stopped by the New York State Trooper; defendant testified that several items of personal property found in the Cadillac were his, although other witnesses testified that they belonged to the victim. Based upon these facts and other evidence presented by the State, we cannot say that the jury was unjustified in disbelieving defendant's version of how he acquired the Cadillac. We find no error.

JURY INSTRUCTIONS

Defendant urges that the trial court erred in failing to give a portion of defendant's requested instruction which dealt with the question of voluntariness of statements made by him to the police officers. He also contends the trial court erred in refusing to give a requested instruction which would have told the jury, in effect, that they were to exercise their individual opinions when considering the evidence. With respect to the voluntariness instruction, [***42] defendant's counsel made no objection to the trial court's decision to omit a portion of the requested instruction. As such, defendant may not now claim error, 17 A.R.S. Rules of Criminal Procedure, rule 21.3(c), unless the error is fundamental. State v. Dickey, 125 Ariz. 163, 608 P.2d 302 (1980). We find no fundamental error here. As to the "individual opinion" instruction, we agree with the trial court's view that this area was adequately covered by the standard instructions given by the court.

IMPOSITION OF THE DEATH PENALTY

After conducting an aggravation-mitigation hearing pursuant to former A.R.S. § 13-454(C), State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978), cert. denied, 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1979), and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the trial judge found two aggravating circumstances, A.R.S. § 13-454(E)(1) and (2). The trial court stated: "1. The defendant has been convicted of another offense in the United States for which under Arizona law sentence of life imprisonment or death was imposable, namely: He was convicted of second degree murder . . . . "Number 2. The defendant was previously convicted of a felony in the United States involving the use or threat of violence on another person, namely: The murder committed as set forth in circumstance one above was by strangulation."

The trial judge found that the fact that the jury was given a felony murder instruction may be considered a mitigating circumstance, but went on to state that there was "no evidence or information to permit the Court to find that the murder was a mere consequence of the felony." The court also found that the fact that defendant was a model prisoner was a mitigating circumstance. In conclusion, however, the court found that these mitigating circumstances were not sufficiently substantial to call for leniency and sentenced defendant to death. Defendant does not dispute the finding of the aggravating circumstances but disputes the trial court's finding of mitigating circumstances. Defendant contends that the following mitigating circumstances exist and are sufficient to call for leniency: 1. There is doubt of guilt for sentencing purposes. 2. Defendant is a model prisoner who gets along well in prison. 3. A felony murder instruction was given and the evidence [***44] did not show that defendant had a "requisite intent to kill." 4. There was a lack of specific intent to cause death.

Unlike appellate review of non-capital crimes, our duty on review of the death penalty is to conduct an independent examination of the record to determine whether the death penalty was properly imposed. State v. Vickers, 129 Ariz. 506, 633 P.2d 315 (1981); State v. Watson, Ariz., 628 P.2d 943 (1981). From our examination of the record, we conclude that the two aggravating circumstances were properly shown. We agree with the trial court's finding that the giving of a felony murder instruction may be considered as a mitigating circumstance. The fact that defendant is a model prisoner may also be considered by the court. The evidence of circumstances presented by the defendant, we do not consider to be mitigating. First, we have already determined that there was sufficient evidence to support the verdict; thus, there is no merit in defendant's contention that there was doubt of guilt. Defendant's third and fourth mitigating circumstances essentially stand for the same proposition, that there was no showing of a specific intent [***45] to kill the victim. We have recently addressed similar arguments in State v. Jordan, 126 Ariz. 283, 614 P.2d 825, cert. denied, 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980). In Jordan we noted that when a defendant acts with the knowledge that his behavior is substantially likely to cause a result he is considered to intend that result. Id. at 288, 614 P.2d at 830.

In the present case, the victim died by asphyxiation by ligature strangulation. We believe that it is reasonable to conclude, in the absence of any evidence to the contrary, that one who undertakes to strangle another human being, had the purpose of causing death or had the substantial knowledge death would result. Cf. State v. Jordan, supra. Defendant did not introduce any evidence to rebut this inference other than advancing a "theory" that defendant may have specifically intended only to steal an automobile and some money, but in the course of so doing, the victim may have attacked him, causing defendant to grab a rope within reach, resulting in the strangulation. In view of the fact that the victim was a 74-year-old man and the defendant was 35 at the time of the crime, we find defendant's [***46] "theory" to be implausible and insufficient to prove lack of specific intent to cause death. After conducting our independent examination of the record and weighing the aggravating and mitigating circumstances against each other, we must agree with the trial court's determination that the mitigating circumstances are not sufficiently substantial to call for leniency. The sentence of death was properly imposed.

CONSTITUTIONALITY OF THE DEATH PENALTY STATUTE

Finally, defendant maintains that imposition of the death penalty under former A.R.S. § 13-454 is unconstitutional. First, defendant argues that the statute as applied pursuant to State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978), cert. denied, 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1979), is an ex post facto law; second, that the statute is unconstitutional because it does not require the prosecution to prove the totality of the aggravating circumstances outweigh the totality of the mitigating circumstances beyond a reasonable doubt; and finally, the statute is unconstitutional because it leaves the imposition of death to a one-man judge rather than to a jury. As defendant recognizes, we have been [***47] presented with these arguments numerous times and have rejected them. State v. Steelman, 126 Ariz. 19, 612 P.2d 475, cert. denied, 449 U.S. 913, 101 S.Ct. 287, 66 L.Ed.2d 141 (1980); State v. Jordan, supra; State v. Smith, 125 Ariz. 412, 610 P.2d 46 (1980); State v. Watson, supra. The judgment of guilt and sentence of death are affirmed. ,

State v. Schad, 142 Ariz. 619, 620-621 (Ariz. 1984). (Direct Appeal)

PROCEDURAL POSTURE: Defendant appealed from a judgment of the Superior Court of Yavapai County (Arizona), which, upon a jury's verdict, convicted him of first-degree murder.

OVERVIEW: Defendant was found guilty of first-degree murder based upon his participation of a kidnapping and robbery. The jury was instructed on the definitions of the various degrees of murder, but no instructions were given regarding the elements of any underlying felonies. Defendant alleged that the absence of any instructions defining the underlying felonies constituted error. The court agreed and found that the trial court had committed reversible error. The court held that knowledge of the elements of the underlying felonies was vital for the jurors to properly consider the felony murder theory and since the jurors were given only one form of verdict for first degree murder, it could not determine whether they voted for first degree murder based on premeditation or on felony murder. Accordingly, the judgment of the trial court was reversed and the matter was remanded for a new trial.

OUTCOME: The judgment of the trial court, which convicted defendant of first-degree murder, was reversed and the matter was remanded for a new trial.

Petitioner, Edward Schad, Jr., was tried and convicted of first-degree murder and sentenced to death. State v. Schad, Jr., 129 Ariz. 557, 633 P.2d 366 (1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 693 (1982). Later, he filed a petition with the trial court raising numerous issues. See 17 A.R.S. Rules of Criminal Procedure, rule 32. The trial court dismissed the petition. Schad petitioned this court for review, and we granted the petition for consideration of relief on four of the twenty-four issues he raised; relief as to the remaining issues was denied. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and 17 A.R.S. Rules of Criminal Procedure, rule 32.

We address only one issue because it requires reversal of Schad's conviction. Schad contends that the trial court improperly instructed the jury on the crime of felony murder. The court's instruction to the jury reads as follows: Murder is the unlawful killing of a human being with malice. The thing that distinguishes murder from all other killings is malice. There are two kinds of malice. A person has one kind of malice when he deliberately intends to kill. If you determine that the defendant used a deadly weapon in the killing, you may find malice. If you determine that the defendant had no considerable provocation for the killing, you may find malice. There is also a second kind of malice. A person has this kind of malice if he shows a reckless disregard for human life. Once you have determined that there is malice, you must determine whether the murder was in the first or the second degree. First-degree murder is murder which is the result of premeditation. "Premeditation" means "deciding in the mind beforehand." It does not matter how quickly or slowly the decision to kill is followed by the act of killing. Murder by means of poison, lying in wait, or torture, or which is committed in the attempt to commit arson, rape, robbery, burglary, mayhem, kidnapping, or molestation of a child under the age of 14, is also first-degree murder. All other kinds of murder are second-degree murder. If you have a reasonable doubt about which of the two degrees of murder was committed, you must decide it was second-degree murder.

There were two underlying felonies in this case: robbery and kidnapping. For the facts of the case, see Schad, supra. The court did not define either felony in its instructions to the jury. While the prosecutor, in arguing felony murder to the jury, indicated what robbery is, this was not sufficient to take the place of the instruction that should have been given by the trial judge. Thus, the jury was informed that it could convict Schad of the first-degree murder if it found the murder was committed during a felony, yet inexplicably, no underlying felony was defined. Fundamental error is present when a trial judge fails to instruct on matters vital to a proper consideration of the evidence. State v. Laughter, 128 Ariz. 264, 267, 625 P.2d 327, 330 (App.1980). Knowledge of the elements of the underlying [***4] felonies was vital for the jurors to properly consider a felony murder theory. This was absent. Since the jurors were given only one form of verdict for first degree murder, we cannot now determine whether they voted for first degree murder based on premeditation or on felony murder. The possibility that they convicted Schad of first degree murder based on the deficient instruction constitutes fundamental error. Cf. State v. Vickers, 138 Ariz. 450, 451, 675 P.2d 710, 711 (1983); State v. Arnett, 119 Ariz. 38, 48-49, 579 P.2d 542, 552-53 (1978). Reversed and remanded for new trial.

State v. Schad, 163 Ariz. 411, 413-423 (Ariz. 1989). (Direct Appeal)

PROCEDURAL POSTURE: Defendant was convicted of first degree murder and sentenced to death by the Yavapai County Superior Court (Arizona) on remand.

OVERVIEW: The defendant appealed contending that he was denied a fair trial when the state failed to preserve the victim's clothing and fingerprint impressions on items found with the body and that it was improper to use his prior murder conviction as an aggravating factor. The court held that the duty of the State to preserve evidence was limited to evidence that might be expected to play a significant role in the suspect's defense. The court concluded that the chances were extremely low that any of the evidence which was not preserved would have been exculpatory for the defendant. As a result, the court found that he was not so seriously prejudiced by the loss of the evidence that he did not receive a fair trial. The defendant also argued that his previous conviction for second degree murder did not involve violence and that it was an accident involving consenting homosexual partners. The court accepted the trial court's finding that the total mitigation present was not sufficient to overcome any one of the aggravating circumstances, thus, no error occurred.

OUTCOME: The judgment of conviction and sentence was affirmed.

The defendant, Edward Harold Schad, Jr., was convicted by a Yavapai County jury of first degree murder and sentenced to death. State v. Schad, 129 Ariz. 557, 633 P.2d 366 (1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 693 (1982). On the defendant's petition for post-conviction relief, this court reversed the conviction, holding that the trial court committed fundamental error by instructing the jury on felony murder without defining the elements of the underlying felony. State v. Schad, 142 Ariz. 619, 691 P.2d 710 (1984). On remand, the defendant was again convicted of first degree murder and sentenced to death. This appeal followed. We have jurisdiction pursuant to A.R.S. § 13-4031.

The facts of this case are fully set forth in our 1981 opinion, supra. Briefly summarized, the following facts led to the defendant's conviction in the second trial. The victim, Lorimer "Leroy" Grove, was last seen alive on August 1, 1978, when he left Bisbee, Arizona for Everett, Washington in his new Cadillac. His body was discovered August 9, 1978, off the highway just south of Prescott. The corpse was not identified until October 11, 1978, after the defendant's arrest. The killer had strangled the victim to death with a small rope tied around his neck.

The defendant's connection with the homicide is established only by circumstantial evidence. Beginning with the day after the victim left Bisbee, the defendant made numerous purchases with the victim's credit cards. The police recovered credit cards from the defendant's wallet after his arrest. The state also introduced a forged check drawn on the victim's bank account and made to the defendant's order for "wages." A car the defendant had rented, but never returned, was discovered in Flagstaff in early August, 1978. Discovered in this car was a "unique mirror contraption" designed and built by the victim. On September 3, 1978, New York authorities issued the defendant a speeding ticket for an offense he committed while driving the victim's Cadillac. The defendant explained to the citing officer that the car belonged to his friend Leroy Grove. Later in September, the defendant drove the Cadillac to Salt Lake City, Utah. While he was in Utah, the Salt Lake City police arrested the defendant for investigation of a possible parole violation and possession of a stolen vehicle. During his incarceration in the Salt Lake City jail, the defendant spoke with John Duncan n1 and made several inculpatory statements. Thereafter, a Yavapai County Grand Jury indicted the defendant for the murder of Lorimer Grove and the authorities extradited the defendant to Arizona to stand trial.

n1 Duncan had been staying with the defendant's girlfriend when the defendant arrived in Salt Lake City.

The defendant raises the following issues for our consideration: 1. Did admitting statements that the defendant made to John Duncan in the Salt Lake City jail violate the defendant's constitutional rights? 2. Was the defendant denied a fair trial when the state failed to preserve the victim's clothing and preserve fingerprint impressions on items found with the body and on the mirror contraption? 3. Did the trial court commit error by failing to instruct the jury on, and provide a form of verdict for, the lesser-included offense of robbery? 4. Did the trial court err when it refused to give forms of verdict for both premeditated murder and felony murder? 5. Was it proper to use the defendant's prior murder conviction as an aggravating factor? 6. Were the defendant's double jeopardy rights violated when two aggravating factors were found based on a single prior conviction? 7. Were the defendant's rights violated when the trial court found that the the defendant committed the murder for pecuniary gain? 8. Did the court fail to properly weigh the mitigating circumstances? 9. Did the defendant's "inability" to "voir dire" the trial judge deprive him of a fair trial? [***5] 10. Is Arizona's statutory death sentencing scheme unconstitutional?In addition to addressing the issues raised by the defendant, we independently review the aggravating and mitigating circumstances found by the trial judge, determine whether the defendant's sentence is proportional to similar cases, and search the record for fundamental error.

THE STATEMENTS

At the defendant's second trial, as in the first trial, the court permitted the state to present testimony by John Duncan concerning statements the defendant made to him when he visited the defendant in the Salt Lake City jail. The defendant's most incriminating statement was that he would "deny being in any area of Arizona or the State of Arizona, particularly Tempe, Arizona and Prescott, Arizona." This court reviewed the circumstances surrounding Duncan's testimony in our 1981 opinion in light of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). Schad, 129 Ariz. at 565, 633 P.2d at 374. We found that Duncan and the Utah authorities had no agency relationship, that the police did not actively or deliberately solicit Duncan's assistance and that the evidence obtained was insignificant. Therefore, we concluded that the trial court properly denied the defendant's motion to suppress the statement. Schad, 129 Ariz. at 566, 633 P.2d at 375. Nevertheless, the defendant's counsel again moved to suppress the statements prior to the second trial because new evidence allegedly justified a rehearing and established grounds for suppressing the testimony at the new trial. This new evidence consisted of: 1. Testimony from Sergeant Judd of the Coconino County Sheriff's office that Detective Halterman described Duncan as an "informant" and a "confidential informant." 2. Testimony that Detective Halterman had asked Duncan if he would be willing to visit the defendant in jail and arranged the visit for a Monday. Monday was not a normal visiting day, so Duncan could not have made the visit without special arrangements. 3. Detective Halterman arranged for Duncan's release pending extradition.

Despite this "new evidence," the trial court again denied the defendant's motion to suppress. The judge concluded that the use of the word "informant" by Detective Halterman was a matter of semantics rather than of substance. In his ruling the judge stated: The Halterman testimony was rather clear, was extremely clear and unequivocal relative to the witness Duncan's not being, term of art, a confidential informant. The way we come up with the language confidential information and informant in this particular case is from Lieutenant Judd from his police report . . . but of course as you know, Lieutenant Judd had no facts upon which to base a conclusion that . . . Mr. Duncan might be what we have come to know as the confidential informant.R.T. Vol. VI, p. 815. Halterman denied suggesting a visit with the defendant. In fact, Duncan testified it was his idea. R.T. Vol. VI, pp. 672 and 809. The record is less clear on who arranged the visit. Duncan stated that he thought that Detective Halterman or someone from the police department arranged his visit. Id. at 804. Nevertheless, the evidence established that the police did not tell Duncan to visit Schad or what questions he should ask. Furthermore, the homicide investigation had yet to focus on Schad because Detective Halterman did not learn that the owner of the Cadillac was dead until a month after Duncan's visit. Id. at 666, 803. Finally, Duncan's release pending extradition was arranged prior to the Schad case coming to light for reasons separate and apart from Duncan's subsequent assistance in this case. It is unnecessary to review the relevant case law. We do not find the defendant's evidence any more compelling than the last time. The record supports the judge's ruling. We find no error in denying the defendant's motion to suppress.

PRESERVATION OF EVIDENCE

The state did not (1) preserve the victim's clothing; (2) fingerprint items found with the body; or (3) fingerprint the mirror device found in the defendant's abandoned rental car. The trial court did give a Willits instruction. n2 State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964). Despite this instruction, the defendant argues that the state's failure to process these items, especially the mirror, deprived the defendant of exculpatory evidence in violation of his due process right to [***9] a fair trial. The defendant contends that had these items been processed, he could have proved that someone else committed the crime.

n2 The jury was instructed: If you find that the plaintiff, the State of Arizona, has destroyed, caused to be destroyed or allowed to be destroyed any evidence whose contents or quality is in issue, you may infer that the true fact is against their interest. The state counters that the defendant is barred from relief because he failed to raise this issue at the first trial. The only case cited by the state is inapposite because it concerns waiver of issues by failure to object at trial. Although the defendant did not raise this issue until the second trial, we find that his pretrial motions properly preserved this issue for review. The "substantive" issue raised is whether the state had a duty to preserve the victim's clothing, n3 and to collect and process fingerprints from the mirror and other objects. The defendant argues that the state's failure to collect and preserve [***10] potentially exculpatory evidence requires reversal of the conviction and dismissal of the charges. See California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); State v. Mitchell, 140 Ariz. 551, 683 P.2d 750 (App.1984).

n3 It should be noted that the state's expert testified that the victim's clothes were forensically useless due to the advanced state of decomposition.

In Trombetta, the U.S. Supreme Court held that the due process clause of the 14th Amendment does not require the state to preserve breath samples in order to introduce the results of breath-analysis tests at a DUI trial. 467 U.S. at 491, 104 S.Ct. at 2535, 81 L.Ed.2d at 423. Under the Federal Constitution, the state's duty to preserve evidence is "limited to evidence that might be expected to play a significant role in the suspect's defense." Id. at 488, 104 S.Ct. at 2534, 81 L.Ed.2d at 422. This materiality test requires that the evidence (1) possess an exculpatory value that was apparent before the evidence was destroyed and (2) be such that the defendant would be unable to obtain comparable evidence by other reasonable means. Id. at 489, 104 S.Ct. at 2534, 81 L.Ed.2d at 422. The Court concluded that "the chances are extremely low that preserved [breath] samples would have been exculpatory." Id. Recently, we held that a Willits instruction adequately protects a defendant's due process rights where the state has destroyed or failed to preserve evidence unless the defendant is prejudiced or the state acted in bad faith. State v. Tucker, 157 Ariz. 433, 442-43, 759 P.2d 579, 588-89 (1988). Tucker held that the partial latent fingerprints destroyed by the state "had some forensic value in excluding the defendant from having left the prints," but "could not have excluded Tucker from having handled the gun, and certainly could not have excluded him from committing the crime." Id. at 442, 759 P.2d at 588. Thus, we concluded that a Willits instruction adequately protected the defendant's rights. Cf. State v. Hannah, 120 Ariz. 1, 583 P.2d 888 (1978) (where the only items connecting the defendant to the crime were destroyed, we found that the defendant had been so seriously prejudiced by the loss of the evidence that he could not receive a fair trial).

The state concedes that any recoverable fingerprints which may have existed were probably destroyed in the defendant's first trial. The state urges us to consider that the defendant had ample opportunity to analyze the mirror before the prints were destroyed and that defense counsel participated in their destruction. It may well be that the defendant's counsel participated in the destruction of evidence. However, the duty to preserve evidence remains with the state and nothing in the record shows the defendant or his counsel solely responsible or more culpable than the state for the loss. Nevertheless, we find that the Willits instruction adequately protected the defendant's rights. Unlike Hannah, the mirror was not the only piece of evidence linking the defendant with the crime. The defendant was arrested in possession of the victim's credit cards and car. He told the New York patrolman that he was driving the car for the victim. Furthermore, as we found in Tucker, a Willits instruction adequately addressed the loss of the fingerprint evidence. The best possible scenario for Tucker is that an examination of the partial latent prints would have excluded him from the set of persons whose prints were on the gun. However, as stated above, such an exclusion would not have excluded Tucker from ever having handled the gun and certainly would not exonerate Tucker of the alleged crime. As Tucker's expert explained, Tucker could have touched the gun, but not left a print, or the print could have been easily wiped off either intentionally or unintentionally through subsequent handling. We find no reasonable possibility that defendant was prejudiced by the destruction of the partial latent prints. [Citations omitted.]

Moreover, under the Willits instruction, the jury could infer exactly what the destroyed evidence, at best, could have proved -- that Tucker's prints were not on the gun. Under these circumstances, where the destroyed evidence [***14] would not exonerate Tucker, and where the Willits instruction provided the same benefit as any independent examination of the evidence, the Willits instruction protected Tucker's right to a fair trial.Tucker, 157 Ariz. at 443, 759 P.2d at 589. Similarly, in the present case, the best that the defendant could hope for is that none of his fingerprints were on the mirror, clothing or other items. While this would have excluded the defendant from the set of persons whose prints were on these items, it would not have excluded the defendant from ever having handled any of these objects, nor would it have exonerated him of the alleged crime. The Willits instruction accomplished the most that the defendant could have proved -- that his prints were not on these items. We find that the defendant's rights were adequately protected.

FAILURE TO GIVE ROBBERY INSTRUCTION OR FORM OF VERDICT

Here the defendant contests the trial court's failure to give a lesser included offense instruction or to provide a form of [*417] verdict for robbery. Defendant argues that Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), [***15] requires a robbery instruction and form of verdict because: (1) the evidence supported a conviction for the offense of robbery; and (2) the robbery is a lesser-included offense of the felony murder because it was the underlying felony. Although the defendant concedes that he did not request such an instruction or verdict form, he argues that it was fundamental error. He also maintains that counsel ineffectively assisted him in failing to request such instructions. In an Arizona capital case, the trial court must instruct on all lesser-included offenses supported by the evidence. Failure to do so, with or without a request, constitutes fundamental error. State v. Whittle, 156 Ariz. 405, 407, 752 P.2d 494, 496 (1988). However, in Arizona there is no lesser-included offense to felony murder. State v. LaGrand, 153 Ariz. 21, 30, 734 P.2d 563, 572, cert. denied, 484 U.S. 872, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987); see also State v. Leslie, 147 Ariz. 38, 48, 708 P.2d 719, 729 (1985); State v. Martinez-Villareal, 145 Ariz. 441, 446-47, 702 P.2d 670, 675-76, cert. denied, 474 U.S. 975, 106 S.Ct. 339, 88 L.Ed.2d 324 (1985). Although we agree with the defendant that the evidence supported an instruction and conviction for robbery, we disagree that the underlying felony supporting a felony murder conviction requires a lesser-included offense instruction and form of verdict. LaGrand, 153 Ariz. at 30, 734 P.2d at 572. His attorney's failure to request one was not ineffective assistance of counsel.

SINGLE VERDICT FORM FOR FIRST DEGREE MURDER

The defendant next argues that the trial court erred when it submitted to the jury one verdict form for the crime of first-degree murder while instructing them that the crime could be committed in either of two ways -- by premeditation or by the commission of a felony. The defendant's arguments on this issue have all been previously decided by this Court and rejected. In State v. Encinas, 132 Ariz. 493, 647 P.2d 624 (1982), we stated: In Arizona, first degree murder is only one crime regardless whether it occurs as a premeditated murder or a felony murder. See State v. Axley, 132 Ariz. 383, 646 P.2d 268 (1982). Although a defendant is entitled to a unanimous jury verdict on whether the criminal act charged has been committed, State v. Counterman, 8 Ariz.App. 526, 448 P.2d 96 (1968), the defendant is not entitled to a unanimous verdict on the precise manner in which the act was committed.Id. at 496, 647 P.2d at 627. Our decision in State v. Smith, 160 Ariz. 507, 774 P.2d 811 (1989), did not change the substantive rule that it was not error to have one form of verdict for first degree murder even though both premeditation and felony murder were being submitted to the jury. Smith does, however, strongly urge that alternate forms of verdict be submitted to a jury when a case is submitted on alternative theories of premeditated and felony murder. Id. at 507, 774 P.2d at 811.

SENTENCE

In the special verdict on the sentence, the trial court found the existence of three statutory aggravating circumstances: previous conviction of an offense for which a sentence of life imprisonment was possible, previous conviction for a crime involving violence, and commission of the murder for pecuniary gain. The trial court found several mitigating factors, but concluded that they were not sufficiently substantial to call for leniency. The trial court specifically found that the total mitigation was not sufficient to overcome any one of the aggravating circumstances. R.T. August 29, 1985, p. 10. As a result of the court's findings, the defendant was sentenced to death.

THE PRIOR CONVICTION

The defendant's 1968 conviction in the State of Utah for second degree murder was found by the trial court to constitute two aggravating circumstances set out in former A.R.S. § 13-454(E)(1) and (E)(2) (now A.R.S. § 13-703(F)(1) and (F)(2)). n4 The defendant attacks the trial court's use of these factors to enhance the penalty to death because: (1) society no longer recognizes sodomy as a felony; (2) there is no crime of felony second-degree murder in Arizona; (3) the present Arizona sodomy statute is unconstitutional; (4) former § 13-454(E)(2) (now § 13-703(F)(2)) is not applicable because the Utah offense did not involve [***19] violence; and, (5) the Utah conviction is invalid in light of Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).

n4 The current version of the statute provides in relevant part: F. Aggravating circumstances to be considered shall be the following: 1. The defendant has been convicted of another offense in the United States for which under Arizona law a sentence of life imprisonment or death was imposable. 2. The defendant was previously convicted of a felony in the United States involving the use or threat of violence on another person.

The defendant's conviction of second degree murder occurred in connection with mutual acts of sodomy. The victim was found in a closet with his hands and feet bound and two pieces of cloth around his neck. Apparently, the cloth was tied around the victim's neck for the purpose of restricting the flow of blood to the brain in order to heighten erotic stimulus -- a practice known as auto-erotic asphyxiation. [***20] In 1968 sodomy was a felony in both Utah and Arizona. n5

n5 The current Arizona statute, in effect since 1978, provides that sodomy is a misdemeanor. A.R.S. § 13-1411.

The main thrust of the defendant's argument is that the changes in the criminal code, reducing the punishment for sodomy to a misdemeanor and the elimination of the offense of second degree felony murder, require that the defendant's Utah conviction not be considered an aggravating circumstance for sentencing. The defendant's argument seeks not only to have us ignore the requirement that we consider the penalty imposable at the time of the conviction, but it mischaracterizes the nature of the defendant's Utah conviction. In considering a prior offense for sentencing purposes, a court looks at the penalty in effect under Arizona law at the time the defendant was sentenced for the prior offense, not the penalty for the prior offense at the time of sentencing for a subsequent conviction. State v. Tittle, 147 Ariz. 339, 710 P.2d 449 (1985). The defendant concedes that pursuant to former A.R.S. §§ 13-453(B) and -1644, the maximum penalty for second-degree murder in 1968 was life imprisonment. See State v. Williams, 103 Ariz. 284, 440 P.2d 311 (1968). However, the defendant contends that aggravating his sentence under these circumstances would violate his constitutional rights. Contrary to the contention implicit in defendant's argument, the prior conviction in Utah was not merely for committing sodomy. The defendant was found guilty of committing a dangerous act while engaging in sodomy. The Utah Supreme Court specifically found that sodomy performed while engaging in auto-erotic asphyxiation constituted a dangerous felony. See State v. Schad, 24 Utah 2d 255, 470 P.2d 246 (1970). It is so obvious as not to require elucidation that the act of sodomy committed in the manner shown here, with the deceased so bound that he choked to death, was an act "greatly dangerous to the lives of others and evidencing a depraved mind, regardless of human life."Id. at 261, 470 P.2d at 250 (emphasis added). The defendant's second degree murder conviction in Utah was not based on the mere act of sodomy but the manner in which it was performed. Schad, 24 Utah 2d at 261, 470 P.2d at 250. Irrespective of the debate concerning the constitutionality of statutes prohibiting consensual sodomy, n6 it is clear that a state may lawfully punish a person for engaging in conduct exhibiting a knowing or reckless disregard for human life. See A.R.S. §§ 13-1103(A)(1), -1104(A)(3). This is the crux of the defendant's Utah conviction. Under similar circumstances the defendant's conduct would have constituted second degree murder in Arizona.

n6 Both the United States Supreme Court and this court have held that a state may lawfully prohibit consensual sodomy. Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986); State v. Bateman, 113 Ariz. 107, 547 P.2d 6, cert. denied, 429 U.S. 864, 97 S.Ct. 170, 50 L.Ed.2d 143 (1976).

CONVICTION FOR FELONY INVOLVING VIOLENCE

The defendant argues that his previous conviction for second degree murder did not involve "violence" within the meaning of A.R.S. § 13-703(F)(2). He argues that the death was an "accident" involving no physical force because he and the victim were consenting homosexual partners. To support this argument, the defendant points to the medical examiner's reports, admitted at the Utah sentencing, stating that the victim had likely tied himself up to heighten his pleasure. The state argues that murder is inherently a violent crime, and cannot occur absent some type of violence to the victim. Tittle, 147 Ariz. at 345, 710 P.2d at 455 (robbery is inherently violent, and so satisfies § 13-703(F)(2)). It is not necessary for us to resolve this issue because the trial judge, in his special findings, found that the total mitigation present was "not sufficient to overcome any one of the aggravating circumstances." Transcript of Sentencing, August 29, 1985, p. 10. Any one of the other aggravating factors would be sufficient to support the sentence.

TWO AGGRAVATING FACTORS ARISING FROM SINGLE PRIOR CONVICTION

The defendant claims that the use of a single prior conviction as the basis for two aggravating factors violates his double jeopardy rights. Therefore, he argues, we should strike at least one of the aggravating factors. So long as the trial court weighed the aggravating circumstances arising out of the 1968 murder only once, the defendant's rights have not been infringed. Tittle, 147 Ariz. at 345, 710 P.2d at 455. Here the trial judge found that the totality of the mitigating circumstances was insufficient to overcome even a single aggravating factor. Hence, it did not matter that the trial court found two aggravating factors arising from his prior conviction since one was enough to impose the death penalty.

FINDING THAT MURDER WAS COMMITTED FOR PECUNIARY GAIN

The defendant claims that the trial court violated his rights when it found that he murdered for pecuniary gain. Former A.R.S. § 13-454(E)(5) (now A.R.S. § 13-703(F)(5)). The defendant contends that the pecuniary gain aggravating factor (1) is unconstitutionally vague, (2) was unconstitutionally applied ex post facto, (3) violates double jeopardy, and (4) was not proved [***25] beyond a reasonable doubt.

A. Vagueness

The defendant argues that the pecuniary gain factor is vague because it fails to distinguish between a killer for hire and a "routine" felony (e.g. burglary or robbery) where a death occurs. Therefore, a person of average intelligence will not understand that his act is a capital crime. See State v. Bateman, 113 Ariz. 107, 109, 547 P.2d 6, 8, cert. denied, 429 U.S. 864, 97 S.Ct. 170, 50 L.Ed.2d 143 (1976). We have rejected this contention in an earlier case and find no reason to hold otherwise. State v. Nash, 143 Ariz. 392, 400, 694 P.2d 222, 230, cert. denied, 471 U.S. 1143, 105 S.Ct. 2689, 86 L.Ed.2d 706 (1985).

B. Ex Post Facto

In 1980, this court held for the first time that the pecuniary gain aggravating factor was not limited to contract killers. State v. Clark, 126 Ariz. 428, 616 P.2d 888, cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980). [***26] The defendant argues that application of Clark to him constitutes ex post facto enlargement of the penalty for murder motivated by pecuniary gain [*420] [**1171] when his offense occurred before the Clark decision. A judicial decision is not subject to the constitutional bar against ex post facto legislation. United States v. Walsh, 770 F.2d 1490, 1492 (9th Cir.1985). However, a defendant's due process rights are violated when an unforeseeable judicial decision enlarging the scope of a criminal statute is applied retroactively to cover behavior not considered unlawful in the past. Bouie v. City of Columbia, 378 U.S. 347, 353-54, 84 S.Ct. 1697, 1702-03, 12 L.Ed.2d 894, 899-900 (1964). In the present case, the defendant misinterprets Clark. That opinion did not hold that former A.R.S. § 13-454(E)(5) excluded non-contract/hired-killer situations prior to Clark. Clark merely rejected the argument that the factor of pecuniary gain was restricted to "hired guns." The Clark opinion did not create substantive law, it merely recognized the pre-existing scope of [***27] present law. It was not an unforeseeable enlargement nor did it suddenly make lawful conduct unlawful. As in Clark, finding that the defendant committed this crime for pecuniary gain is not a violation of the defendant's due process rights.

C. Double Jeopardy

The defendant also claims violation of his right against double jeopardy. He reasons that use of a general verdict form prevents the court from ascertaining whether the conviction was based on a finding of premeditation or felony murder. The defendant speculates that if premeditation were the basis of the jury's conviction, then the double jeopardy clause would bar pecuniary gain as an aggravating factor since the jury must have "acquitted" him of robbery. Therefore, since it is impossible to determine which type of first degree murder defendant is guilty of, but only that he is guilty of first degree murder, the state failed to prove pecuniary gain beyond a reasonable doubt. State v. Richmond, 136 Ariz. 312, 322, 666 P.2d 57, 67, cert. denied, 464 U.S. 986, 104 S.Ct. 435, 78 L.Ed.2d 367 (1983); A.R.S. § 13-703(C).

Whether the jury "acquitted" the defendant of robbery is irrelevant. The double jeopardy clause protects against a second prosecution for the same offense after acquittal or conviction, and protects against multiple punishments for the same offense. State v. Seats, 131 Ariz. 89, 638 P.2d 1335 (1981). Pecuniary gain is not the same offense as robbery. See A.R.S. § 13-1902. It is an aggravating factor for determining a defendant's sentence in a capital case. In 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), we stated: To prove robbery, the state must show a taking of property from the victim, see A.R.S. § 13-1902(A); to prove pecuniary gain, the state must show the actor's motivation was the expectation of pecuniary gain, see A.R.S. § 13-703(F)(5). Proving a taking in a robbery does not necessarily prove the motivation for a murder, and the state cannot be said to be using one fact to prove two different items.(Emphasis [***29] in original.) Even if we were to assume that the jury specifically found that no robbery occurred, double jeopardy does not prevent the trial judge from finding that the defendant's motivation for killing the victim was the expectation of pecuniary gain.

D. Sufficiency of Evidence

The defendant finally contends that there was insufficient evidence to show the murder was committed for pecuniary gain. He claims that the only evidence suggesting he killed the victim for pecuniary gain was circumstantial and that the act may well have been an afterthought. Prior to encountering the victim, the defendant was driving a stolen car. He abandoned that car and took the victim's car. He also left the murder scene with the victim's wallet, money, credit cards and ring. This provides strong circumstantial evidence that the purpose of the murder was pecuniary gain. Clark, 126 Ariz. at 436, 616 P.2d at 896. The evidence strongly [*421] [**1172] supports the finding by the trial judge that the aggravating circumstance of pecuniary gain existed in this case.

MITIGATING FACTORS

The defendant next argues that the trial court erred by failing to consider the defendant's potential for rehabilitation and the circumstances of the Utah murder. A.R.S. § 13-703(E) requires that the trial court "take into account the . . . mitigating circumstances" and then determine whether those circumstances are "sufficiently substantial to call for leniency." Mitigating circumstances include "any factors . . . which are relevant in determining whether to impose a sentence less than death . . . ." A.R.S. § 13-703(G). Contrary to the defendant's claim, the trial court did find and consider the defendant's potential for rehabilitation. Nevertheless, the trial court found this to be insufficient to overcome any of the aggravating factors. We also reject the defendant's claim that the circumstances surrounding his prior murder conviction should be considered as a mitigating circumstance because the victim experienced "a pleasurable erotic experience" before he died. While it is clear that the Utah murder did not display the depravity present in the case at bar, the trial court did not find the circumstances of the earlier murder to be mitigating and neither do we.

As is required at this point, we conduct our own independent examination of [***31] the record to determine whether the death penalty is properly imposed. State v. Vickers, 129 Ariz. 506, 516, 633 P.2d 315, 325 (1981). We note, however, that in 1981 we considered and affirmed the defendant's death penalty. State v. Schad, 129 Ariz. 557, 633 P.2d 366 (1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 693 (1982). Our review of the record satisfies us that the state proved that the defendant committed the murder for pecuniary gain. The state also properly established an additional aggravating circumstance arising out of the defendant's prior murder conviction. Thus, we find, without question, that there were at least two aggravating circumstances in the present case. We also conclude that the mitigating circumstances are insufficient to outweigh a single aggravating factor. Although the defendant has continued to show exemplary behavior while incarcerated, we do not find this to be sufficiently substantial to call for leniency. The evidence shows that the defendant strangled to death a 74-year-old [***32] man in order to obtain his vehicle and money. At the time the defendant committed this act, he had previously been found criminally responsible for another person's death. The death penalty is appropriate in this case.

VOIR DIRE EXAMINATION OF TRIAL JUDGE

The defendant next contends that lack of an opportunity to examine the trial/sentencing judge for bias and/or prejudice in a capital case violated his rights to due process and a fair trial. The defendant argues that voir dire examination of potential jurors is a constitutional requirement of a fair trial and should similarly apply in a capital sentencing case where the trial judge sits as a fact-finder. We recently addressed this issue in State v. Fulminante, 161 Ariz. 237, 778 P.2d 602 (1988), reconsideration granted on other grounds, (July 11, 1989), and rejected the defendant's claim that he had a constitutional right to voir dire the trial judge. We have also previously held that a defendant must raise this issue at trial or it will be waived. State v. Rossi, 146 Ariz. 359, 369, 706 P.2d 371, 381 (1985). Here the the defendant failed to request voir dire of the trial court, and never expressly or impliedly alleged bias or prejudice. Therefore, he waived this issue.

CONSTITUTIONAL CHALLENGES

n7 We are aware of the decision of the United States Court of Appeals for the Ninth Circuit in Adamson v. Ricketts, 865 F.2d 1011 (9th Cir.1988), petition for cert. filed, Mar. 20, 1989, which holds that Arizona's death penalty statute is unconstitutional. The Ninth Circuit opinion invalidates our death penalty scheme on some of the same grounds the defendant raises here. We note that the grounds on which the Ninth Circuit rested its constitutional holdings are grounds on which different courts may reasonably hold differing views of what the Constitution requires. Until the United States Supreme Court instructs us that our interpretations are incorrect, we will continue to apply them.

The defendant raises several arguments that the Arizona death penalty is [*422] [**1173] unconstitutional. The defendant [***34] first argues that the statutory scheme for capital punishment is unconstitutionally vague because it fails to provide adequate standards for weighing aggravating and mitigating standards. We have previously considered this argument, and we reject it again. Rossi, 146 Ariz. at 366, 706 P.2d at 378. The defendant next contends that Arizona's death penalty statute is mandatory and therefore unconstitutional. As we have done before, we reject this argument. Id. Finally, the defendant asks us to reconsider the Arizona death penalty on the following five grounds: (1) the death penalty is cruel and unusual punishment; (2) it denies the defendant a right to a jury trial on the issue of sentencing; (3) it allows the prosecutor arbitrary discretion to seek the death penalty; (4) it places the burden of proving mitigating circumstances on the defendant; (5) it is arbitrarily, capriciously and freakishly imposed. There is nothing in the defendant's case causing us to reconsider the death penalty on any of these grounds. We have rejected them before and adhere to that view. Id.

PROPORTIONALITY REVIEW

After considering the defendant's claims of error, we make an independent review to determine whether the death penalty is excessive or disproportionate to the penalty imposed in similar cases. Richmond, 136 Ariz. at 321, 666 P.2d at 66. We compare the defendant and his crime to those cases where the death penalty was properly imposed because the crime was committed in a manner raising it above "the norm" of first degree murders, or the defendant's background places him above "the norm" of first degree murderers. State v. Blazak, 131 Ariz. 598, 604, 643 P.2d 694, 700, cert. denied, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982). We also compare the defendant and his crime to those cases where we have lessened the penalty imposed to life imprisonment. State v. McCall, 139 Ariz. 147, 162, 677 P.2d 920, 935 (1983), cert. denied, 467 U.S. 1220, 104 S.Ct. 2670, 81 L.Ed.2d 375 (1984). There are numerous instances where we have upheld the imposition of the [***36] death penalty when the murder was committed for pecuniary gain. State v. LaGrand, 152 Ariz. 483, 733 P.2d 1066, cert. denied, 484 U.S. 872, 108 S.Ct. 206, 98 L.Ed.2d 157 (1987); State v. Harding, 141 Ariz. 492, 687 P.2d 1247 (1984); State v. Blazak, 131 Ariz. 598, 643 P.2d 694, cert. denied, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982); State v. Tison, 129 Ariz. 526, 633 P.2d 335 (1981), cert. denied, 459 U.S. 882, 103 S.Ct. 180, 74 L.Ed.2d 147 (1982). We have also upheld the death penalty in cases where the defendant had prior convictions punishable by life imprisonment. State v. Arnett, 158 Ariz. 15, 760 P.2d 1064 (1988); State v. Castaneda, 150 Ariz. 382, 724 P.2d 1 (1986); State v. Bracy, 145 Ariz. 520, 703 P.2d 464 (1985), [***37] cert. denied, 474 U.S. 1110, 106 S.Ct. 898, 88 L.Ed.2d 932 (1986); State v. Harding, 141 Ariz. 492, 687 P.2d 1247 (1984).

In contrast, we have reduced a defendant's death penalty sentence to life imprisonment where we have found insufficient evidence to support the aggravating circumstances. State v. Johnson, 147 Ariz. 395, 710 P.2d 1050 (1985). We have also reduced the defendant's sentence where the defendant was mentally impaired, State v. Graham, 135 Ariz. 209, 660 P.2d 460 (1983), or very young when he committed the crime. State v. Valencia, 132 Ariz. 248, 645 P.2d 239 (1982). Nothing in the present case leads us to consider that death is a disproportionate punishment. The defendant does not fall within any of the cases where we have reduced the death penalty to life imprisonment. We find nothing in the record otherwise making his sentence disproportionate. The defendant does, however, fall within those cases where the death sentence was properly imposed. Thus, the imposition of the death penalty is justified.

We have examined the record for fundamental error and find none. We affirm the judgment of conviction and the sentence.

Schad v. Arizona, 501 U.S. 624 (U.S. 1991). (Habeas)

PROCEDURAL POSTURE: Petitioner inmate challenged the judgment of the Supreme Court of Arizona, which affirmed his conviction for first-degree murder and death sentence. The inmate contended that his conviction under instructions that did not require the jury to agree on one of the alternative theories of premeditated and felony murder was unconstitutional, and that he was entitled to a jury instruction on robbery as a lesser-included offense.

OVERVIEW: The inmate was convicted in state court on his second trial for first-degree murder and was sentenced to death. The intermediate appellate court affirmed the inmate's conviction and sentence. The court affirmed the lower courts' judgments. It rejected the inmate's contention that his conviction under jury instructions that did not require agreement on whether he was guilty of premeditated murder or felony murder was unconstitutional. The court stated that there was sufficiently widespread acceptance of the two mental states as alternative means of satisfying the mens rea element of the single offense of first-degree murder to persuade it that the state had not departed from the norm. The court was persuaded that the jury's options did not fall beyond the constitutional bounds of fundamental fairness and rationality. It rejected the inmate's argument that he was entitled to a jury instruction on robbery. The court reasoned that the jury was not faced with the all-or-nothing choice between the offense of conviction and innocence which the court's precedent condemned, because a second-degree murder instruction sufficed to ensure the verdict's reliability.

OUTCOME: The court affirmed the intermediate appellate court's judgment, which affirmed the inmate's conviction for first-degree murder and sentence of death.

DECISION: Murder instructions not requiring agreement on premeditation or felony-murder theories held not unconstitutional; capital defendant held not entitled to instructions on all lesser included offenses.

SYLLABUS

After he was found with a murder victim's vehicle and other belongings, petitioner Schad was indicted for first-degree murder. At trial, the prosecutor advanced both premeditated and felony-murder theories, against which Schad claimed that the circumstantial evidence proved at most that he was a thief, not a murderer. The court refused Schad's request for an instruction on theft as a lesser included offense, but charged the jury on second-degree murder. The jury convicted him of first-degree murder, and he was sentenced to death. The State Supreme Court affirmed, rejecting Schad's contention that the trial court erred in not requiring the jury to agree on a single theory of first-degree murder. The court also rejected Schad's argument that Beck v. Alabama, 447 U.S. 625, 65 L. Ed. 2d 392, 100 S. Ct. 2382, required an instruction on the lesser included offense of robbery. Held: The judgment is affirmed.

JUSTICE SOUTER delivered the opinion of the Court with respect to Part III, concluding that Beck, supra -- which held unconstitutional a state statute prohibiting lesser included offense instructions in capital cases -- did not entitle Schad to a jury instruction on robbery. Beck was based on the concern that a jury convinced that the defendant had committed some violent crime but not convinced that he was guilty of a capital offense might nonetheless vote for a capital conviction if the only alternative was to set him free with no punishment at all. See id., at 629, 630, 632, 634, 637, 642-643, and n. 19. This concern simply is not implicated here, since the jury was given the "third option" of finding Schad guilty of a lesser included noncapital offense, second-degree murder. It would be irrational to assume that the jury chose capital murder rather than second-degree murder as its means of keeping a robber off the streets, and, thus, the trial court's choice of instructions sufficed to ensure the verdict's reliability. Pp. 645-648.

JUSTICE SOUTER, joined by THE CHIEF JUSTICE, JUSTICE O'CONNOR, and JUSTICE KENNEDY, concluded in Part II that Arizona's characterization of first-degree murder as a single crime as to which a jury need not agree on one of the alternative statutory theories of premeditated or felony murder is not unconstitutional. Pp. 630-645. (a) The relevant enquiry is not, as Schad argues, whether the Constitution requires a unanimous jury in state capital cases. Rather, the real question here is whether it was constitutionally acceptable to permit the jury to reach one verdict based on any combination of the alternative findings. Pp. 630-631. (b) The long-established rule that a jury need not agree on which overt act, among several, was the means by which a crime was committed, provides a useful analogy. Nevertheless, the Due Process Clause does place limits on a State's capacity to define different states of mind as merely alternative means of committing a single offense; there is a point at which differences between those means become so important that they may not reasonably be viewed as alternatives to a common end, but must be treated as differentiating between what the Constitution requires to be treated as separate offenses subject to separate jury findings. Pp. 631-637. (c) It is impossible to lay down any single test for determining when two means are so disparate as to exemplify two inherently separate offenses. Instead, the concept of due process, with its demands for fundamental fairness and for the rationality that is an essential component of that fairness, must serve as the measurement of the level of definitional and verdict specificity permitted by the Constitution. Pp. 637-638. (d) The relevant enquiry must be undertaken with a threshold presumption of legislative competence. Decisions about what facts are material and what are immaterial, or, in terms of In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90 S. Ct. 1068, what "fact[s] [are] necessary to constitute the crime," and therefore must be proved individually, and what facts are mere means, represent value choices more appropriately made in the first instance by a legislature than by a court. There is support for such restraint in this Court's "burden-shifting" cases, which have made clear, in a slightly different context, that the States must be permitted a degree of flexibility in determining what facts are necessary to constitute a particular offense within the meaning of Winship. See, e. g., Patterson v. New York, 432 U.S. 197, 201-202, 210. Pp. 638-639, 53 L. Ed. 2d 281, 97 S. Ct. 2319. (e) In translating the due process demands for fairness and rationality into concrete judgments about the adequacy of legislative determinations, courts should look both to history and widely shared state practice as guides to fundamental values. See, e. g., id., at 202. Thus it is significant here that Arizona's equation of the mental states of premeditated and felony murder as a species of the blameworthy state of mind required to prove a single offense of first-degree murder finds substantial historical and contemporary echoes. See, e. g., People v. Sullivan, 173 N.Y. 122, 127, 65 N.E. 989, 989-990; State v. Buckman, 237 Neb. 936, 468 N. W. 2d 589. Pp. 640-643. (f) Whether or not everyone would agree that the mental state that precipitates death in the course of robbery is the moral equivalent of premeditation, it is clear that such equivalence could reasonably be found. See Tison v. Arizona, 481 U.S. 137, 157-158, 95 L. Ed. 2d 127, 107 S. Ct. 1676. This is enough to rule out the argument that a moral disparity bars treating the two mental states as alternative means to satisfy the mental element of a single offense. Pp. 643-644. (g) Although the foregoing considerations may not exhaust the universe of those potentially relevant, they are sufficiently persuasive that the jury's options in this case did not fall beyond the constitutional bounds of fundamental fairness and rationality. P. 645.

JUSTICE SCALIA would reach the same result as the plurality with respect to Schad's verdict-specificity claim, but for a different reason. It has long been the general rule that when a single crime can be committed in various ways, jurors need not agree upon the mode of commission. As the plurality observes, one can conceive of novel "umbrella" crimes that could not, consistent with due process, be submitted to a jury on disparate theories. But first-degree murder, which has in its basic form existed in our legal system for centuries, does not fall into that category. Such a traditional crime, and a traditional mode of submitting it to the jury, do not need to pass this Court's "fundamental fairness" analysis; and the plurality provides no persuasive justification other than history in any event. Pp. 648-652.

COUNSEL: Denise I. Young argued the cause for petitioner. With her on the briefs was John M. Bailey. R. Wayne Ford, Assistant Attorney General of Arizona, argued the cause for respondent. With him on the brief were Robert K. Corbin, Attorney General, and Ronald L. Crismon. *

* Briefs of amici curiae urging affirmance were filed for the United States by Solicitor General Starr, Assistant Attorney General Mueller, Deputy Solicitor General Bryson, and Joel M. Gershowitz; and for the Commonwealth of Kentucky et al. by Frederick J. Cowan, Attorney General of Kentucky, and Denise A. Garrison and Ian G. Sonego, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: John K. Van de Kamp of California, John J. Kelly of Connecticut, Charlie M. Oberly III of Delaware, Robert A. Butterworth of Florida, Michael J. Bowers of Georgia, James T. Jones of Idaho, Liniey E. Pearson of Indiana, J. Joseph Curran, Jr., of Maryland, Michael C. Moore of Mississippi, William L. Webster of Missouri, Marc Racicot of Montana, Brian McKay of Nevada, Robert J. Del Tufo of New Jersey, Hal Stratton of New Mexico, Lacy H. Thornburg of North Carolina, Anthony J. Celebrezze, Jr., of Ohio, Robert H. Henry of Oklahoma, Ernest D. Preate, Jr., of Pennsylvania, T. Travis Medlock of South Carolina, Roger Tellinghuisen of South Dakota, Charles Burson of Tennessee, R. Paul Van Dam of Utah, and Mary Sue Terry of Virginia.

JUDGES: SOUTER, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Part III, in which REHNQUIST, C. J., and O'CONNOR, SCALIA, and KENNEDY, JJ., joined, and an opinion with respect to Parts I and II, in which REHNQUIST, C. J., and O'CONNOR and KENNEDY, JJ., joined. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, post, p. 648. WHITE, J., filed a dissenting opinion, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined, post, p. 652.

JUSTICE SOUTER announced the judgment of the Court and delivered the opinion of the Court with respect to Part III, and an opinion with respect to Parts I and II, in which THE CHIEF JUSTICE, JUSTICE O'CONNOR, and JUSTICE KENNEDY join. This case presents two questions: whether a first-degree murder conviction under jury instructions that did not require agreement on whether the defendant was guilty of premeditated murder or felony murder is unconstitutional; and whether the principle recognized in Beck v. Alabama, 447 U.S. 625, 65 L. Ed. 2d 392, 100 S. Ct. 2382 (1980), entitles a defendant to instructions on all offenses that are lesser than, and included within, a capital offense as charged. We answer no to each.

I

On August 9, 1978, a highway worker discovered the badly decomposed body of 74-year-old Lorimer Grove in the underbrush off U.S. Highway 89, about nine miles south of Prescott, Arizona. There was a rope around his neck, and a coroner determined that he had been strangled to death. The victim had left his home in Bisbee, Arizona, eight days earlier, driving his new Cadillac and towing a camper.

On September 3, 1978, petitioner, driving Grove's Cadillac, was stopped for speeding by the New York State Police. He told the officers that he was transporting the car for an elderly friend named Larry Grove. Later that month, petitioner was arrested in Salt Lake City, Utah, for a parole violation and possession of a stolen vehicle. A search of the Cadillac, which petitioner was still driving, revealed personal belongings of Grove's, and petitioner's wallet contained two of Grove's credit cards, which petitioner had begun using on August 2, 1978. Other items belonging to Grove were discovered in a rental car which had been found abandoned off Highway 89 on August 3, 1978; petitioner had rented the car the previous December and never returned it. While in custody in Salt Lake City, petitioner told a visitor that he would "'deny being in any area of Arizona or the State of Arizona, particularly Tempe, Arizona and Prescott, Arizona.'" 163 Ariz. 411, 414, 788 P.2d 1162, 1165 (1989).

A Yavapai County, Arizona, grand jury indicted petitioner on one count of first-degree murder, and petitioner was extradited to stand trial. The Arizona statute applicable to petitioner's case defined first-degree murder as "murder which is . . . wilful, deliberate or premeditated . . . or which is committed . . . in the perpetration of, or attempt to perpetrate, . . . robbery." Ariz. Rev. Stat. Ann. § 13-452 (Supp. 1973). 1 Petitioner was convicted and sentenced to death, [*629] but his conviction was set aside on collateral review. 142 Ariz. 619, 691 P.2d 710 (1984).

1 The full statute provided: "A murder which is perpetrated by means of poison or lying in wait, torture or by any other kind of wilful, deliberate or premeditated killing, or which is committed in avoiding or preventing lawful arrest or effecting an escape from legal custody, or in the perpetration of, or attempt to perpetrate, arson, rape in the first degree, robbery, burglary, kidnapping, or mayhem, or sexual molestation of a child under the age of thirteen years, is murder of the first degree. All other kinds of murder are of the second degree." The statute has since been revised, but both premeditated murder and murder in the course of a robbery still constitute first-degree murder. See Ariz. Rev. Stat. Ann. § 13-1105.A (1989).

At petitioner's retrial, the prosecutor advanced theories of both premeditated murder and felony murder, against which petitioner claimed that the circumstantial evidence proved at most that he was a thief, not a murderer. The court instructed the jury that "first degree murder is murder which is the result of premeditation. . . . Murder which is committed in the attempt to commit robbery is also first degree murder." App. 26. The court also instructed that "all 12 of you must agree on a verdict. All 12 of you must agree whether the verdict is guilty or not guilty." Id., at 27. The defense requested a jury instruction on theft as a lesser included offense. The court refused, but did instruct the jurors on the offense of second-degree murder, and gave them three forms for reporting a verdict: guilty of first-degree murder; guilty of second-degree murder; and not guilty. The jury convicted petitioner of first-degree murder, and, after a further hearing, the judge sentenced petitioner to death.

The Arizona Supreme Court affirmed. 163 Ariz. 411, 788 P.2d 1162 (1989). The court rejected petitioner's contention that the trial court erred in not requiring the jury to agree [**2496] on a single theory of first-degree murder, explaining: "'In Arizona, first degree murder is only one crime regardless whether it occurs as a premeditated murder or a felony murder. Although a defendant is entitled to a unanimous jury verdict on whether the criminal act charged has been committed, the defendant is not entitled to a unanimous verdict on the precise manner in which the act was committed.'" Id., at 417; 788 P.2d at 1168 (quoting State v. Encinas, 132 Ariz. 493, 496, 647 P.2d 624, 627 (1982)) (citations omitted). The court also rejected petitioner's argument that Beck v. Alabama, supra, required an instruction on the lesser included offense of robbery. 163 Ariz. at 416-417, 788 P.2d at 1167 -- 1168. We granted certiorari. 498 U.S. 894 (1990).

II

Petitioner's first contention is that his conviction under instructions that did not require the jury to agree on one of the alternative theories of premeditated and felony murder is unconstitutional. 2 He urges us to decide this case by holding that the Sixth, Eighth, and Fourteenth Amendments require a unanimous jury in state capital cases, as distinct from those where lesser penalties are imposed. See Johnson v. Louisiana, 406 U.S. 356, 32 L. Ed. 2d 152, 92 S. Ct. 1620 (1972);Apodaca v. Oregon, 406 U.S. 404, 32 L. Ed. 2d 184, 92 S. Ct. 1628 (1972).We decline to do so, however, because the suggested reasoning would beg the question raised. Even assuming a requirement of jury unanimity arguendo, that assumption would fail to address the issue of what the jury must be unanimous about. Petitioner's jury was unanimous in deciding that the State had proved what, under state law, it had to prove: that petitioner murdered either with premeditation or in the course of committing a robbery. The question still remains whether it was constitutionally acceptable to permit the jurors to reach one verdict based on any combination of the alternative findings. If it was, then the jury was unanimous in reaching the verdict, and petitioner's proposed unanimity rule would not help him. If it was not, and the jurors may not combine findings of premeditated and felony murder, then petitioner's conviction will fall even without his proposed rule, because the instructions allowed for the forbidden combination.

2 Respondent contends that petitioner waived this contention by failing to raise it in the lower Arizona courts. Brief for Respondent 8-10. The Arizona Supreme Court, however, addressed the contention on the merits, 163 Ariz. 411, 417, 788 P.2d 1162, 1168 (1989), thereby preserving the issue for our review. See Orr v. Orr, 440 U.S. 268, 274-275, 59 L. Ed. 2d 306, 99 S. Ct. 1102 (1979). In other words, petitioner's real challenge is to Arizona's characterization of first-degree murder as a single crime as to [*631] which a verdict need not be limited to any one statutory alternative, as against which he argues that premeditated murder [***565] and felony murder are separate crimes as to which the jury must return separate verdicts. The issue in this case, then, is one of the permissible limits in defining criminal conduct, as reflected in the instructions to jurors applying the definitions, not one of jury unanimity.

A

A way of framing the issue is suggested by analogy. Our cases reflect a long-established rule of the criminal law that an indictment need not specify which overt act, among several named, was the means by which a crime was committed. In Andersen v. United States, 170 U.S. 481, 42 L. Ed. 1116, 18 S. Ct. 689 (1898), for example, we sustained a murder conviction against the challenge that the indictment on which the verdict was returned was duplicitous in charging that death occurred through both shooting and drowning. In holding that "the Government was not required to make the charge in the alternative," id., at 504, we explained that it was immaterial whether death was caused by one means or the other. Cf. Borum v. United States, 284 U.S. 596, 76 L. Ed. 513, 52 S. Ct. 205 (1932) (upholding the murder conviction of three codefendants under a count that failed to specify which of the three did the actual killing); St. Clair v. United States, 154 U.S. 134, 145, 38 L. Ed. 936, 14 S. Ct. 1002 (1894). This fundamental proposition is embodied in Federal Rule of Criminal Procedure 7(c)(1), which provides that "it may be alleged in a single count that the means by which the defendant committed the offense are unknown or that the defendant committed it by one or more specified means."

We have never suggested that in returning general verdicts in such cases the jurors should be required to agree upon a single means of commission, any more than the indictments were required to specify one alone. In these cases, as in litigation generally, "different jurors may be persuaded by different pieces of evidence, even when they agree upon the [*632] bottom line. Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict." McKoy v. North Carolina, 494 U.S. 433, 449, 108 L. Ed. 2d 369, 110 S. Ct. 1227 (1990) (BLACKMUN, J., concurring) (footnotes omitted). The alternatives in the cases cited went, of course, to possibilities for proving the requisite actus reus, while the present case involves a general verdict predicated on the possibility of combining findings of what can best be described as alternative mental states, the one being premeditation, the other the intent required for murder combined with the commission of an independently culpable felony. See State v. Serna, 69 Ariz. 181, 188, 211 P.2d 455, 459 (1949) (in Arizona, the attempt to commit a robbery is "the legal equivalent of . . . deliberation, premeditation, and design"). 3 We see no reason, however, why the rule that the jury need not agree as to mere means of satisfying the actus reus element of an offense should not apply equally to alternative means of satisfying the element of mens rea.

3 See also Wechsler, A Rationale of the Law of Homicide: I, 37 Colum. L. Rev. 701, 702-703 (1937); Perkins, A Rationale of Mens Rea, 52 Harv. L. Rev. 905, 926 (1939).

That is not to say, however, that the Due Process Clause places no limits on a State's capacity to define different courses of conduct, or states of mind, as merely alternative means of committing a single offense, thereby permitting a defendant's conviction without jury agreement as to which course or state actually occurred. The axiomatic requirement of due process that a statute may not forbid conduct in terms so vague that people of common intelligence would be relegated to differing guesses about its meaning, see Lanzetta v. New Jersey, 306 U.S. 451, 453, 83 L. Ed. 888, 59 S. Ct. 618 (1939) (citing Connally v. General Construction Co., 269 U.S. 385, 391, 70 L. Ed. 322, 46 S. Ct. 126 (1926)), carries the practical consequence that a defendant charged under a valid statute will be in a position to understand with some specificity the legal basis of the charge [*633] against him. Thus it is an assumption of our system of criminal justice "'so rooted in the traditions and conscience of our people as to be ranked as fundamental,'" Speiser v. Randall, 357 U.S. 513, 523, 2 L. Ed. 2d 1460, 78 S. Ct. 1332 (1958) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105, 78 L. Ed. 674, 54 S. Ct. 330 (1934)), that no person may be punished criminally save upon proof of some specific illegal conduct. Just as the requisite specificity of the charge may not be compromised by the joining of separate offenses, see United States v. UCO Oil Co., 546 F.2d 833 (CA9 1976), cert. denied, 430 U.S. 966, 52 L. Ed. 2d 357, 97 S. Ct. 1646 (1977), nothing in our history suggests that the Due Process Clause would permit a State to convict anyone under a charge of "Crime" so generic that any combination of jury findings of embezzlement, reckless driving, murder, burglary, tax evasion, or littering, for example, would suffice for conviction. 4 Although our vagueness cases support the notion that a requirement of proof of specific illegal conduct is fundamental to our system of criminal justice, the principle is not dependent upon, or limited by, concerns about vagueness. A charge allowing a jury to combine findings of embezzlement and murder would raise identical problems regardless of how specifically embezzlement and murder were defined.

To say, however, that there are limits on a State's authority to decide what facts are indispensable to proof of a given offense is simply to raise the problem of describing the point at which differences between means become so important that they may not reasonably be viewed as alternatives to a common end, but must be treated as differentiating what the Constitution requires to be treated as separate offenses. See generally Note, 91 Harv. L. Rev. 499, 501-502 (1977). Although we have never before attempted to define what constitutes an immaterial difference as to mere means and what constitutes a material difference requiring separate theories of crime to be treated as separate offenses subject to separate jury findings, there is a body of law in the federal circuits, deriving primarily from the decision of the Fifth Circuit in United States v. Gipson, 553 F.2d 453 (1977) (Wisdom, J.), that addresses this problem.

The defendant in Gipson was charged with violating 18 U. S. C. § 2313 (1982 ed.), which prohibited knowingly "receiving, concealing, storing, bartering, selling or disposing of" any stolen vehicle or aircraft moving in interstate commerce, and was convicted after the trial judge charged the jury that it need not agree on which of the enumerated acts the defendant had committed. The Fifth Circuit reversed, reasoning that the defendant's right to "jury consensus as to [his] course of action" 5 was violated by the joinder in a single count of "two distinct conceptual groupings," receiving, concealing, and storing forming the first grouping (referred to by the court as "housing"), and bartering, selling, and disposing ("marketing") constituting the second. Id., at 456-459. In that court's view, the acts within a conceptual grouping are sufficiently similar to obviate the need for jurors to agree about which of them was committed, whereas the acts in distinct conceptual groupings are so unrelated that the jury must decide separately as to each grouping. A number of lower courts have adopted the standard of "distinct conceptual groupings" as the appropriate test. E. g., United States v. Peterson, 768 F.2d 64 (CA2) (Friendly, J.), cert. denied, 474 U.S. 923, 88 L. Ed. 2d 264, 106 S. Ct. 257 (1985); United States v. Duncan, 850 F.2d 1104, 1113 (CA6 1988), cert. denied [*635] sub nom. Downing v. United States, 493 U.S. 1025, 107 L. Ed. 2d 751, 110 S. Ct. 732 (1990); State v. Baldwin, 101 Wis. 2d 441, 449-450, 304 N.W.2d 742, 747-749 (1981).

5 The court identified this right as a concomitant of the federal criminal defendant's Sixth Amendment right to a unanimous verdict, and subsequent courts following Gipson have adopted that characterization. E. g., United States v. Beros, 833 F.2d 455 (CA3 1987). For the reasons given earlier, we think the right is more accurately characterized as a due process right than as one under the Sixth Amendment. Although this difference in characterization is important in some respects (chiefly, because a state criminal defendant, at least in noncapital cases, has no federal right to a unanimous jury verdict, see Johnson v. Louisiana, 406 U.S. 356, 32 L. Ed. 2d 152, 92 S. Ct. 1620 (1972); Apodaca v. Oregon, 406 U.S. 404, 32 L. Ed. 2d 184, 92 S. Ct. 1628 (1972)), it is immaterial to the problem of how to go about deciding what level of verdict specificity is constitutionally necessary.

We are not persuaded that the Gipson approach really answers the question, however. Although the classification of alternatives into "distinct conceptual groupings" is a way to express a judgment about the limits of permissible alternatives, the notion is too indeterminate to provide concrete guidance to courts faced with verdict specificity questions. See, e. g., [**2499] Rice v. State, 311 Md. 116, 133, 532 A.2d 1357, 1365 (1987) (criticizing Gipson criteria as "not entirely clear" and as "providing little guidance"); Trubitt, Patchwork Verdicts, Different-Jurors Verdicts, and American Jury Theory: Whether Verdicts Are Invalidated by Juror Disagreement on Issues, 36 Okla. L. Rev. 473, 548-549 (1983) (same). This is so because conceptual groupings may be identified at various levels of generality, and we have no a priori standard to determine what level of generality is appropriate. Indeed, as one judge has noted, even on the facts of Gipson itself, "other conceptual groupings of the six acts are possible. [One might] put all six acts into one conceptual group, namely trafficking in stolen vehicles." Manson v. State, 101 Wis. 2d 413, 438, 304 N.W.2d 729, 741 (1981) (Abrahamson, J., concurring); accord, Trubitt, supra, at 548-549 ("It is difficult to see how a court could determine that 'housing' and 'marketing' are ultimate acts in some metaphysical or constitutional sense, and thus prohibit the legislature from including them in the single offense of trafficking"). In short, [***568] the notion of "distinct conceptual groupings" is simply too conclusory to serve as a real test.

The dissent would avoid the indeterminacy of the Gipson approach by adopting an inflexible rule of maximum verdict specificity. In the dissent's view, whenever a statute lists alternative means of committing a crime, "the jury [must] indicate on which of the alternatives it has based the defendant's guilt," post, at 656, even where there is no indication [*636] that the statute seeks to create separate crimes. This approach rests on the erroneous assumption that any statutory alternatives are ipso facto independent elements defining independent crimes under state law, and therefore subject to the axiomatic principle that the prosecution must prove independently every element of the crime. See post, at 656-658 (citing In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970), and Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979)). In point of fact, as the statute at issue in Gipson demonstrates, legislatures frequently enumerate alternative means of committing a crime without intending to define separate elements or separate crimes. 6 The question whether statutory alternatives constitute independent elements of the offense therefore does not, as the dissent would have it, call for a mere tautology; rather, it is a substantial question of statutory construction. See, e. g., United States v. UCO Oil Co., 546 F.2d at 835-838.

6 Because statutes frequently enumerate alternatives that clearly are mere means of satisfying a single element of an offense, adoption of the dissent's approach of requiring a specific verdict as to every alternative would produce absurd results. For example, the Arizona first-degree murder statute at issue here prohibited, inter alia, "wilful, deliberate or premeditated killing." Ariz. Rev. Stat. Ann. § 13-452 (Supp. 1973) (emphasis added). Under the dissent's approach, juries in prosecutions brought under the statute presumably should have been required to deliver specific verdicts as to each of the three: wilfullness, deliberation, and premeditation. In cases, like this one, involving state criminal statutes, the dissent's "statutory alternatives" test runs afoul of the fundamental principle that we are not free to substitute our own interpretations of state statutes for those of a State's courts. If a State's courts have determined that certain statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime, we simply are not at liberty to ignore that determination and conclude that the alternatives are, in fact, independent elements under state law. See Mullaney v. Wilbur, 421 U.S. 684, 690-691, 44 L. Ed. 2d 508, 95 S. Ct. 1881 (1975) (declining to reexamine the Maine [*637] Supreme Judicial Court's decision that, under Maine law, all intentional or criminally reckless killings are aspects of the single crime of felonious homicide); Murdock v. City of Memphis, 87 U.S. 590, 20 Wall. 590, 22 L. Ed. 429 (1875). In the present case, for example, by determining that a general verdict as to first-degree murder is permissible under Arizona law, the Arizona Supreme Court has effectively decided that, under state law, premeditation [**2500] and the commission of a felony are not independent elements of the crime, but rather are mere means of satisfying a single mens rea element. The issue in this case therefore is not whether "the State must be held to its choice," post, at 657-658, for the Arizona Supreme Court has authoritatively determined that the State has chosen not to treat premeditation and the commission of a felony as independent elements of the crime, but rather whether Arizona's choice is unconstitutional.

B

It is tempting, of course, to follow the example of Gipson to the extent of searching for some single criterion that will serve to answer the question facing us. We are convinced, however, of the impracticability of trying to derive any single test for the level of definitional and verdict specificity permitted by the Constitution, and we think that instead of such a test our sense of appropriate specificity is a distillate of the concept of due process with its demands for fundamental fairness, see, e. g., Dowling v. United States, 493 U.S. 342, 352-353, 107 L. Ed. 2d 708, 110 S. Ct. 668 (1990), and for the rationality that is an essential component of that fairness. In translating these demands for fairness and rationality into concrete judgments about the adequacy of legislative determinations, we look both to history and wide practice as guides to fundamental values, as well as to narrower analytical methods of testing the moral and practical equivalence of the different mental states that may satisfy the mens rea element of a single offense. The enquiry is undertaken with a threshold presumption of legislative competence to determine the appropriate relationship between means and ends in defining the elements of a crime.

1

Judicial restraint necessarily follows from a recognition of the impossibility of determining, as an a priori matter, whether a given combination of facts is consistent with there being only one offense. Decisions about what facts are material and what are immaterial, or, in terms of Winship, supra, at 364, what "fact[s] [are] necessary to constitute the crime," and therefore must be proved individually, and what facts are mere means, represent value choices more appropriately made in the first instance by a legislature than by a court. Respect for this legislative competence counsels restraint against judicial second-guessing, cf. Rostker v. Goldberg, 453 U.S. 57, 65, 69 L. Ed. 2d 478, 101 S. Ct. 2646 (1981) ("Lack of competence on the part of the courts" relative to the legislature so counsels), which is particularly appropriate in cases, like this one, that call state definitions into question. "It goes without saying that preventing and dealing with crime is much more the business of the States than it is of the Federal Government, Irvine v. California, 347 U.S. 128, 134, 98 L. Ed. 561, 74 S. Ct. 381 (1954) (plurality opinion), and that we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States." Patterson v. New York, 432 U.S. 197, 201, 53 L. Ed. 2d 281, 97 S. Ct. 2319 (1977).

There is support for such restraint in our "burden-shifting" cases, which have made clear, in a slightly different context, that the States must be permitted a degree of flexibility in defining the "fact[s] necessary to constitute the crime" under Winship. Each of those cases arose because a State defined an offense in [***570] such a way as to exclude some particular fact from those to be proved beyond a reasonable doubt, either by placing the burden on defendants to prove a mitigating fact, see Patterson, supra (extreme emotional disturbance); Martin v. Ohio, 480 U.S. 228, 94 L. Ed. 2d 267, 107 S. Ct. 1098 (1987) (self-defense); see also Mullaney, [*639] supra (heat of passion or sudden provocation), or by allowing the prosecution to prove an aggravating fact by some standard less than that of reasonable doubt, [**2501] McMillan v. Pennsylvania, 477 U.S. 79, 91 L. Ed. 2d 67, 106 S. Ct. 2411 (1986) (possession of a firearm). In each case, the defendant argued that the excluded fact was inherently "a fact necessary to constitute the offense" that required proof beyond a reasonable doubt under Winship, even though the fact was not formally an element of the offense with which he was charged. See, e. g., id., at 90. The issue presented here is similar, for under Arizona law neither premeditation nor the commission of a felony is formally an independent element of first-degree murder; they are treated as mere means of satisfying a mens rea element of high culpability. The essence of petitioner's argument is that, despite this unitary definition of the offense, each of these means must be treated as an independent element as to which the jury must agree, because premeditated murder and felony murder are inherently separate offenses. Both here and in the burden-shifting cases, in other words, a defendant argues that the inherent nature of the offense charged requires the State to prove as an element of the offense some fact that is not an element under the legislative definition.

In the burden-shifting cases, as here, we have faced the difficulty of deciding, as an abstract matter, what elements an offense must comprise. Recognizing "our inability to lay down any 'bright line' test," McMillan, 477 U.S. at 91, we have "stressed that . . . the state legislature's definition of the elements of the offense is usually dispositive." Id., at 85; see also Patterson, supra, at 201-202. We think that similar restraint is appropriate here, although we recognize that, as in the burden-shifting cases, "there are obviously constitutional limits beyond which the States may not go." Patterson, supra, at 210; see also McMillan, supra, at 86.

The use here of due process as a measurement of the sense of appropriate specificity assumes the importance of history and widely shared practice as concrete indicators of what fundamental fairness and rationality require. In turning to these sources we again follow the example set in the burden-shifting cases, where we have often found it useful to refer both to history and to the current practice of other States in determining whether a State has exceeded its discretion in defining offenses. See Patterson, supra, at 202, 207-209, nn. 10-11; see also Martin, supra, at 235-236; Mullaney, 421 U.S. at 692-696. Where a State's particular way of defining a crime has a long history, or is in widespread use, it is unlikely that a defendant will be able to demonstrate that the State has shifted the burden of proof as to what is an inherent element of the offense, or has defined as a single crime multiple offenses that are inherently separate. Conversely, a freakish definition of the elements of a crime that finds no analogue in history 7 or in the criminal law of other jurisdictions will lighten the defendant's burden.

7 We note, however, the perhaps obvious proposition that history will be less useful as a yardstick in cases dealing with modern statutory offenses lacking clear common-law roots than it is in cases, like this one, that deal with crimes that existed at common law.

Thus, it is significant that Arizona's equation of the mental states of premeditated murder and felony murder as species of the blameworthy state of mind required to prove a single offense of first-degree murder finds substantial historical and contemporary echoes. At common law, murder was defined as the unlawful killing of another human being with "malice aforethought." The intent to kill and the intent to commit a felony were alternative aspects of the single concept of "malice aforethought." See 3 J. Stephen, History of the Criminal Law of England 21-22 (1883). Although American jurisdictions [**2502] have modified the common law by legislation classifying murder by degrees, the resulting statutes have in most cases retained premeditated murder and some form of felony murder (invariably including murder committed in perpetrating or attempting to perpetrate a robbery) as alternative means of satisfying the mental state that first-degree murder presupposes. See 2 W. LaFave & A. Scott, Substantive Criminal Law § 7.5, pp. 210-211, and nn. 21, 23, 24 (1986); ALI, Model Penal Code § 210.2, p. 32, and n. 78 (1980). Indeed, the language of the Arizona first-degree murder statute applicable here is identical in all relevant respects to the language of the first statute defining murder by differences of degree, passed by the Pennsylvania Legislature in 1794. 8

8 The Pennsylvania statute provided: "All murder, which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder in the second degree." 1794 Pa. Laws, ch. 1766, § 2.

A series of state-court decisions, beginning with the leading case of People v. Sullivan, 173 N.Y. 122, 65 N.E. 989 (1903), have agreed that "it was not necessary that all the jurors should agree in the determination that there was a deliberate and premeditated design to take the life of the deceased, or in the conclusion that the defendant was at the time engaged in the commission of a felony, or an attempt to commit one; it was sufficient that each juror was convinced beyond a reasonable doubt that the defendant had committed the crime of murder in the first degree as that offense is defined by the statute." Id., at 127, 65 N.E. at 989-990. See People v. Milan, 9 Cal. 3d 185, 507 P.2d 956, 107 Cal. Rptr. 68 (1973); People v. Travis, 170 Ill. App. 3d 873, 525 N.E.2d 1137, 121 Ill. Dec. 830 (1988), cert. denied, 489 U.S. 1024, 109 S. Ct. 1149, 103 L. Ed. 2d 209 (1989); State v. Fuhrmann, 257 N.W.2d 619 (Iowa 1977); State v. Wilson, 220 Kan. 341, 552 P.2d 931 (1976); Commonwealth v. Devlin, 335 Mass. 555, 141 N.E.2d 269 (1957); [***572] People v. Embree, 70 Mich. App. 382, 246 N.W.2d 6, [*642] (1976); State v. Buckman, 237 Neb. 936, 468 N.W.2d 589 (1991); James v. State, 637 P.2d 862 (Okla. Crim. 1981); State v. Tillman, 750 P.2d 546 (Utah 1987); see also Brown v. State, 473 So. 2d 1260 (Fla.), cert. denied, 474 U.S. 1038, 88 L. Ed. 2d 585, 106 S. Ct. 607 (1985). Although the state courts have not been unanimous in this respect, see State v. Murray, 308 Ore. 496, 782 P.2d 157 (1989), there is sufficiently widespread acceptance of the two mental states as alternative means of satisfying the mens rea element of the single crime of first-degree murder to persuade us that Arizona has not departed from the norm.

Such historical and contemporary acceptance of Arizona's definition of the offense and verdict practice is a strong indication that they do not "'offend some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,'" Patterson, 432 U.S. at 202 (quoting Speiser, 357 U.S., at 523), for we recognize the high probability that legal definitions, and the practices comporting with them, are unlikely to endure for long, or to retain wide acceptance, if they are at odds with notions of fairness and rationality sufficiently fundamental to be comprehended in due process. Cf. Jackman v. Rosenbaum Co., 260 U.S. 22, 31, 67 L. Ed. 107, 43 S. Ct. 9 (1922) (Holmes, J.); Snyder, 291 U.S. at 111.

This is not to say that either history or current practice is dispositive. In McMillan, for example, even though many States had made the fact at issue (possession of a weapon) an element of various aggravated offenses, we were unwilling to conclude that Pennsylvania's decision to treat it as an aggravating circumstance provable at sentencing by a mere preponderance of the evidence deviated so far from the constitutional norm as to violate the Due Process Clause. "That [**2503] Pennsylvania's particular approach has been adopted in few other States," we observed, "does not render Pennsylvania's choice unconstitutional." 477 U.S. at 90; see also Martin, 480 U.S. at 235-236 (relying on history, but not current practice); Patterson, supra, at 211. Conversely, "'neither [*643] the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack.'" Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 18, 113 L. Ed. 2d 1, 111 S. Ct. 1032 (1991) (quoting Williams v. Illinois, 399 U.S. 235, 239, 26 L. Ed. 2d 586, 90 S. Ct. 2018 (1970)). In fine, history and current practice are significant indicators of what we as a people regard as fundamentally fair and rational ways of defining criminal offenses, which are nevertheless always open to critical examination.

3

It is, as we have said, impossible to lay down any single analytical model for determining when two means are so disparate as to exemplify two inherently separate offenses. In the case before us, however, any scrutiny of the two possibilities for proving the mens rea of first-degree murder may appropriately take account of the function that differences of mental state perform in defining the relative seriousness of otherwise similar or identical criminal acts. See generally ALI, Model Penal Code § 2.02(2) (1985) (defining differing mental states). If, then, two mental states are supposed to be equivalent means to satisfy the mens rea element of a single offense, they must reasonably reflect notions of equivalent blameworthiness or culpability, whereas a difference in their perceived degrees of culpability would be a reason to conclude that they identified different offenses altogether. Petitioner has made out no case for such moral disparity in this instance.

The proper critical question is not whether premeditated murder is necessarily the moral equivalent of felony murder in all possible instances of the latter. Our cases have recognized that not all felony murders are of identical culpability, compare Tison v. Arizona, 481 U.S. 137, 95 L. Ed. 2d 127, 107 S. Ct. 1676 (1987), with Enmund v. Florida, 458 U.S. 782, 73 L. Ed. 2d 1140, 102 S. Ct. 3368 (1982), and the same point is suggested by examining state murder statutes, which frequently diverge as to what felonies may be the predicate of a felony-murder conviction. Compare, e. g., [*644] Tenn. Code Ann. § 39-13-202 (Supp. 1990) (theft as predicate of first-degree felony murder) with, e. g., Ariz. Rev. Stat. Ann. § 13-1105.A (1989) (theft not such a predicate). The question, rather, is whether felony murder may ever be treated as the equivalent of murder by deliberation, and in particular whether robbery murder as charged in this case may be treated as thus equivalent. This is in fact the very question we considered only three Terms ago in the context of our capital sentencing jurisprudence in Tison, supra. There we held that "the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents [such] a highly culpable mental state . . . that [it] may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though not inevitable, lethal result." Id., at 157-158. We accepted the proposition that this disregard occurs, for example, when a robber "shoots someone in the course of the robbery, utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing the victim as well as taking the victim's property." Id., at 157. Whether or not everyone would agree that the mental state that precipitates death in the course of robbery is the moral equivalent of premeditation, it is clear that such equivalence could reasonably be found, which is enough to rule out the argument that this moral disparity bars treating them [**2504] as alternative means to satisfy the mental element of a single offense. 9

9 The dissent's focus on the "risks of different punishment," post, at 658, and n. 4, for premeditated and felony murder, ignores the fact that the Arizona sentencing statute applicable to petitioner, Ariz. Rev. Stat. Ann. § 13-453 (Supp. 1973), authorized the same maximum penalty (death) for both means of committing first-degree murder. See McMillan v. Pennsylvania, 477 U.S. 79, 87-88, 91 L. Ed. 2d 67, 106 S. Ct. 2411 (1986) (relying on fact that under Pennsylvania law possession of a weapon "neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty"). Moreover, the dissent's concern that a general verdict does not provide the sentencing judge with sufficient information about the jury's findings to provide a proper premise for the decision whether or not to impose the death penalty, post, at 658-659, goes only to the permissibility of a death sentence imposed in such circumstances, not to the issue currently before us, which is the permissibility of the conviction. To make the point by example, even if the trial judge in this case had satisfied any possible specific verdict concerns by instructing the jurors that they were required to agree on a single theory of the crime, the dissent's "insufficient sentencing information" concern would remain unless the judge had also taken the additional step (a step unrelated to petitioner's right to jury agreement on his specific conduct) of requiring them to return separate forms of verdict. The only relevant question for present purposes is what the jury must decide, not what information it must provide the sentencing judge.

We would not warrant that these considerations exhaust the universe of those potentially relevant to judgments about the legitimacy of defining certain facts as mere means to the commission of one offense. But they do suffice to persuade us that the jury's options in this case did not fall beyond the constitutional bounds of fundamental fairness and rationality. We do not, of course, suggest that jury instructions requiring increased verdict specificity are not desirable, and in fact the Supreme Court of Arizona has itself recognized that separate verdict forms are useful in cases submitted to a jury on alternative theories of premeditated and felony murder. State v. Smith, 160 Ariz. 507, 513, 774 P.2d 811, 817 (1989). We hold only that the Constitution did not command such a practice on the facts of this case.

III

Petitioner's second contention is that under Beck v. Alabama, 447 U.S. 625, 65 L. Ed. 2d 392, 100 S. Ct. 2382 (1980), he was entitled to a jury instruction on the offense of robbery, which he characterizes as a lesser included offense of robbery murder. Beck held unconstitutional an Alabama statute that prohibited lesser included [*646] offense instructions in capital cases. Unlike the jury in Beck, the jury here was given the option of finding petitioner guilty of a lesser included noncapital offense, second-degree murder. While petitioner cannot, therefore, succeed under the strict holding of Beck, he contends that the due process principles underlying Beck require that the jury in a capital case be instructed on every lesser included noncapital offense supported by the evidence, and that robbery was such an offense in this case.

10 Petitioner also contends that the jury should have been instructed on the offense of theft, against which respondent argues that any claim for a lesser included theft offense instruction was waived. Given respondent's concession that petitioner has preserved his claim for a robbery instruction, and our view of the scope of Beck, see infra, at 646-648, there is no need to resolve this waiver issue. Petitioner misapprehends the conceptual underpinnings of Beck. Our fundamental concern in Beck was that a jury convinced that the defendant had committed some violent crime but not convinced that he was guilty of a capital crime might nonetheless vote for a capital conviction if the only alternative was to set the defendant free with no punishment at all. We explained: "On the one hand, the unavailability of the third option of convicting on a lesser included offense may encourage the jury to convict for an impermissible reason -- its belief that the defendant is guilty of some serious crime and should be punished. On the other hand, the apparently mandatory nature of the death penalty [in Alabama] may encourage it to acquit for an equally impermissible reason -- that, whatever his crime, the defendant does not deserve death. . . . These two extraneous factors . . . . introduce a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case." Id., at 642 (footnote omitted). We repeatedly stressed the all-or-nothing nature of the decision with which the jury was presented. See id., at 629, 630, 632, 634, 637, 642-643, and n. 19. As we later explained in Spaziano v. Florida, 468 U.S. 447, 455, 82 L. Ed. 2d 340, 104 S. Ct. 3154 (1984), "the absence of a lesser included offense instruction increases the risk that the jury will convict . . . simply to avoid setting the defendant free. . . . The goal of the Beck rule, in other words, is to eliminate the distortion of the factfinding process that is created when the jury is forced into an all-or-nothing choice between capital murder and innocence." See also Hopper v. Evans, 456 U.S. 605, 609, 72 L. Ed. 2d 367, 102 S. Ct. 2049 (1982). This central concern of Beck simply is not implicated in the present case, for petitioner's jury was not faced with an all-or-nothing choice between the offense of conviction (capital murder) and innocence.

Petitioner makes much of the fact that the theory of his defense at trial was not that he murdered Mr. Grove without premeditation (which would have supported a second-degree murder conviction), but that, despite his possession of some of Mr. Grove's property, someone else had committed the murder (which would have supported a theft or robbery conviction, but not second-degree murder). Petitioner contends that if the jurors had accepted his theory, they would have thought him guilty of robbery and innocent of murder, but would have been unable to return a verdict that expressed that view. Because Beck was based on this Court's concern about "rules that diminish the reliability of the guilt determination" in capital cases, 447 U.S. at 638, the argument runs, the jurors should have been given the opportunity "to return a verdict in conformity with their reasonable view of the evidence." Reply Brief for Petitioner 8. The dissent makes a similar argument. Post, at 660.

The argument is unavailing, because the fact that the jury's "third option" was second-degree murder rather than robbery does not diminish the reliability of the jury's capital murder verdict. To accept the contention advanced by petitioner and the dissent, we would have to assume that a jury unconvinced that petitioner was guilty of either capital or second-degree murder, but loath to acquit him completely (because it was convinced he was guilty of robbery), might choose capital murder rather than second-degree murder as its means of keeping him off the streets. Because we can see no basis to assume such irrationality, we are satisfied that the second-degree murder instruction in this case sufficed to ensure the verdict's reliability. That is not to suggest that Beck would be satisfied by instructing the jury on just any lesser included offense, even one without any support in the evidence. Cf. Roberts v. Louisiana, 428 U.S. 325, 334-335, 49 L. Ed. 2d 974, 96 S. Ct. 3001 (1976) (plurality opinion). In the present case, however, petitioner concedes that the evidence would have supported a second-degree murder conviction, Brief for Petitioner 18-19, and that is adequate to indicate that the verdict of capital murder represented no impermissible choice.

The judgment of the Supreme Court of Arizona is Affirmed.

JUSTICE SCALIA, concurring in part and concurring in the judgment. The crime for which a jury in Yavapai County, Arizona, convicted Edward Harold Schad in 1985 has existed in the Anglo-American legal system, largely unchanged, since at least the early 16th century, see 3 J. Stephen, A History of the Criminal Law of England 45 (1883); R. Moreland, Law of Homicide 9-10 (1952). The common-law crime of murder was the unlawful killing of a human being by a person with "malice aforethought" or "malice prepense," which consisted of an intention to kill or grievously injure, knowledge that an act or omission would probably cause death or grievous injury, an intention to commit a felony, or an intention to resist lawful arrest. Stephen, supra, at 22; see also 4 W. Blackstone, Commentaries 198-201 (1769); 1 M. Hale, Pleas of the Crown 451-466 (1st Am. ed. 1847).

The common law recognized no degrees of murder; all unlawful killing with malice aforethought received the same punishment -- death. See F. Wharton, Law of Homicide 147 (3d ed. 1907); Moreland, supra, at 199. The rigor of this rule led to widespread dissatisfaction in this country. See McGautha v. California, 402 U.S. 183, 198, 28 L. Ed. 2d 711, 91 S. Ct. 1454 (1971). In 1794, Pennsylvania divided common-law murder into two offenses, defining the crimes thus: "All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder in the second degree." 1794 Pa. Laws, ch. 1766, § 2. That statute was widely copied, and down to the present time the United States and most States have a single crime of first-degree murder that can be committed by killing in the course of a robbery as well as premeditated killing. See, e. g., 18 U. S. C. § 1111; Cal. Penal Code Ann. § 189 (West 1988 and Supp. 1991); Kan. Stat. Ann. § 21.3401 (Supp. 1990); Mich. Comp. Laws Ann. § 750.316 (West 1991); Neb. Rev. Stat. § 28-303 (1989). * It is Arizona's variant of the 1794 Pennsylvania statute under which Schad was convicted in 1985 and which he challenges today.

* Still other States never established degrees of murder and retain a single crime of "murder" that encompasses both premeditated killing and killing in the course of a robbery. See, e. g., S. C. Code § 16-3-10 (1985).

Schad and the dissenting Justices would in effect have us abolish the crime of first-degree murder and declare that the Due Process Clause of the Fourteenth Amendment requires the subdivision of that crime into (at least) premeditated murder and felony murder. The plurality rejects that course -- correctly, but not in my view for the correct reason. As the plurality observes, it has long been the general rule that when a single crime can be committed in various ways, jurors need not agree upon the mode of commission. See, e. g., People v. Sullivan, 173 N.Y. 122, 65 N.E. 989 (1903); cf. H. Joyce, Indictments §§ 561-562, pp. 654-657 (2d ed. 1924); W. Mikell, Clark's Criminal Procedure §§ 99-103, [*650] pp. 322-330 (2d ed. 1918); 1 J. Bishop, Criminal Procedure §§ 434-438, pp. 261-265 (2d ed. 1872). That rule is not only constitutional, it is probably indispensable in a system that requires a unanimous jury verdict to convict. When a woman's charred body has been found in a burned house, and there is ample evidence that the defendant set out to kill her, it would be absurd to set him free because six jurors believe he strangled her to death (and caused the fire accidentally in his hasty escape), while six others believe he left her unconscious and set the fire to kill her. While that seems perfectly obvious, it is also true, as the plurality points out, see ante, at 633, that one can conceive of novel "umbrella" crimes (a felony consisting of either robbery or failure to file a tax return) where permitting a 6-to-6 verdict would seem contrary to due process.

The issue before us is whether the present crime falls into the former or the latter category. The plurality makes heavy weather of this issue, because it starts from the proposition that "neither the antiquity of a practice nor the fact of steadfast legislative and judicial adherence to it through the centuries insulates it from constitutional attack," ante, at 642-643 (internal quotation marks omitted). That is true enough with respect to some constitutional attacks, but not, in my view, with respect to attacks under either the procedural component, see Pacific Mut. Life Insurance Co. v. Haslip, 499 U.S. 1, 28-38, 113 L. Ed. 2d 1, 111 S. Ct. 1032 (1991) (SCALIA, J., concurring in judgment), or the so-called "substantive" component, see Michael H. v. Gerald D., 491 U.S. 110, 121-130, 105 L. Ed. 2d 91, 109 S. Ct. 2333 (1989) (plurality opinion), of the Due Process Clause. It is precisely the historical practices that define what is "due." "Fundamental fairness" analysis may appropriately be applied to departures from traditional American conceptions of due process; but when judges test their individual notions of "fairness" against an American tradition that is deep and broad and continuing, it is not the tradition that is on trial, but the judges.

And that is the case here. Submitting killing in the course of a robbery and premeditated killing to the jury under a single charge is not some novel composite that can be subjected to the indignity of "fundamental fairness" review. It was the norm when this country was founded, was the norm when the Fourteenth Amendment was adopted in 1868, and remains the norm today. Unless we are here to invent a Constitution rather than enforce one, it is impossible that a practice as old as the common law and still in existence in the vast majority of States does not provide that process which is "due."

If I did not believe that, I might well be with the dissenters in this case. Certainly the plurality provides no satisfactory explanation of why (apart from the endorsement of history) it is permissible to combine in one count killing in the course of robbery and killing by premeditation. The only point it makes is that the depravity of mind required for the two may be considered morally equivalent. Ante, at 643-645. But the petitioner here does not complain about lack of moral equivalence: He complains that, as far as we know, only six jurors believed he was participating in a robbery, and only six believed he intended to kill. Perhaps moral equivalence is a necessary condition for allowing such a verdict to stand, but surely the plurality does not pretend that it is sufficient. (We would not permit, for example, an indictment charging that the defendant assaulted either X on Tuesday or Y on Wednesday, despite the "moral equivalence" of those two acts.) Thus, the plurality approves the Arizona practice in the present case because it meets one of the conditions for constitutional validity. It does not say what the other conditions are, or why the Arizona practice meets them. With respect, I do not think this delivers the "critical examination," ante, at 643, which the plurality promises as a substitute for reliance upon historical practice. In fact, I think its analysis ultimately relies upon nothing but historical practice (whence does it derive even the "moral equivalence" requirement?) -- [*652] but to acknowledge that reality would be to acknowledge a rational limitation upon our power, which bobtailed "critical examination" obviously is not. "The requirement of [due process] is met if the trial is had according to the settled course of judicial proceedings. Due process of law is process due according to the law of the land." Walker v. Sauvinet, 92 U.S. 90, 93, 23 L. Ed. 678 (1876) (citation omitted).

With respect to the second claim asserted by petitioner, I agree with JUSTICE SOUTER's analysis, and join Part III of his opinion. For these reasons, I would affirm the judgment of the Supreme Court of Arizona.

JUSTICE WHITE, with whom JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS join, dissenting.

Because I disagree with the result reached on each of the two separate issues before the [**2508] Court, and because what I deem to be the proper result on either issue alone warrants reversal of petitioner's conviction, I respectfully dissent.

I

As In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970), makes clear, due process mandates "proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the defendant] is charged." Id., at 364. In finding that the general jury verdict returned against petitioner meets the requirements of due process, the plurality ignores the import of Winship's holding. In addition, the plurality [***579] mischaracterizes the nature of the constitutional problem in this case. It is true that we generally give great deference to the States in defining the elements of crimes. I fail to see, however, how that truism advances the plurality's case. There is no failure to defer in recognizing the obvious: that premeditated murder and felony murder are alternative courses of conduct by which the crime of first-degree murder may be established. The statute provides: "A murder which is perpetrated by means of poison or lying in wait, torture or by any other kind of wilful, deliberate [*653] or premeditated killing, or which is committed in avoiding or preventing lawful arrest or effecting an escape from legal custody, or in the perpetration of, or attempt to perpetrate, arson, rape in the first degree, robbery, burglary, kidnapping, or mayhem, or sexual molestation of a child under the age of thirteen years, is murder of the first degree. All other kinds of murder are of the second degree." Ariz. Rev. Stat. Ann. § 13-452 (Supp. 1973). The statute thus sets forth three general categories of conduct which constitute first-degree murder: a "wilful, deliberate or premeditated killing"; a killing committed to avoid arrest or effect escape; and a killing which occurs during the attempt or commission of various specified felonies.

Here, the prosecution set out to convict petitioner of first-degree murder by either of two different paths, premeditated murder and felony murder/robbery. Yet while these two paths both lead to a conviction for first-degree murder, they do so by divergent routes possessing no elements in common except the fact of a murder. In his closing argument to the jury, the prosecutor himself emphasized the difference between premeditated murder and felony murder: "There are two types of first degree murder, two ways for first degree murder to be committed. [One] is premeditated murder. There are three elements to that. One, that a killing take place, that the defendant caused someone's death. Secondly, that he do so with malice. And malice simply means that he intended to kill or that he was very reckless in disregarding the life of the person he killed. . . . . "And along with the killing and the malice, attached to that killing is a third element, that of premeditation, which simply means that the defendant contemplated that he would cause death, he reflected upon that.

"The other type of first degree murder, members of the jury, is what we call felony murder. It only has two components [sic] parts. One, that a death be caused, and, two, that that death be caused in the course of a felony, in this case a robbery. And so if you find that the defendant committed a robbery and killed in the process of that robbery, that also is first degree murder." App. 6-7. Unlike premeditated murder, felony murder does not require that the defendant commit the killing or even intend to kill, so long as the defendant is involved in the underlying felony. On the other hand, felony murder -- but not premeditated murder -- requires proof that the defendant had the requisite intent to commit and did commit the underlying felony. State v. McLoughlin, 139 Ariz. 481, 485, 679 P.2d 504, 508 (1984). Premeditated murder, however, demands an intent to kill as well as premeditation, neither of which is required to prove felony murder. Thus, contrary to the plurality's assertion, see ante, at 639, the difference between the two paths is not merely one of a substitution of one mens rea for another. Rather, each contains separate elements of conduct and state of mind which cannot be mixed and matched at will. 1 It is particularly fanciful to equate an intent to do no more than rob with a premeditated intent to murder.

1 Changes to the Arizona first-degree murder statute since the date of the murder in question make it even clearer that felony murder and premeditated murder have different elements and involve different mentes reae. The statute now provides that the two offenses are alternative means of establishing first-degree murder. First, a person is guilty if "intending or knowing that his conduct will cause death, such person causes the death of another with premeditation." Ariz. Rev. Stat. Ann. § 13-1105.A(1) (1989). Second, a person is guilty if "acting either alone or with one or more other persons such person commits or attempts to commit [any one of a series of specified felonies], and in the course of and in furtherance of such offense or immediate flight from such offense, such person or another person causes the death of any person." § 13-1105.A(2). The antecedent of the current statute, which used substantially the same language, took effect on October 1, 1978, less then two months after the killing at issue occurred. 1977 Ariz. Sess. Laws, Ch. 142, § 60.

Consequently, a verdict that simply pronounces a defendant "guilty of first-degree murder" provides no clues as to whether the jury agrees that the three elements of premeditated murder or the two elements of felony murder have been proved beyond a reasonable doubt. Instead, it is entirely possible that half of the jury believed the defendant was guilty of premeditated murder and not guilty of felony murder/robbery, while half believed exactly the reverse. To put the matter another way, the plurality affirms this conviction without knowing that even a single element of either of the ways for proving first-degree murder, except the fact of a killing, has been found by a majority of the jury, let alone found unanimously by the jury as required by Arizona law. A defendant charged with first-degree murder is at least entitled to a verdict -- something petitioner did not get in this case as long as the possibility exists that no more than six jurors voted for any one element of first-degree murder, except the fact of a killing. 2

2 Even the Arizona Supreme Court has acknowledged that the lack of information concerning juror agreement may call into question the validity of a general jury verdict when the prosecution proceeds under alternative theories. State v. Smith, 160 Ariz. 507, 513, 774 P.2d 811, 817 (1989). Indeed, petitioner's first trial exemplified this danger. There the State proceeded on three theories: premeditated murder, felony murder/robbery, and felony murder/kidnaping. The trial judge failed to instruct the jury on either of the underlying felonies, and the Arizona Supreme Court held this to be fundamental error. 142 Ariz. 619, 620, 691 P.2d 710, 711 (1984). Petitioner's conviction was reversed because it was impossible to tell from the general jury verdict whether petitioner had been found guilty of premeditated murder or felony murder, for which the instructions had been deficient. Id., at 621, 691 P.2d at 712. Cf. Sandstrom v. Montana, 442 U.S. 510, 526, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979).

The means by which the plurality attempts to justify the result it reaches do not withstand scrutiny. In focusing on [*656] our vagueness cases, see ante, at 632-633, the plurality misses the point. The issue is not whether the statute here is so vague that an individual cannot reasonably know what conduct is criminalized. Indeed, the statute's specificity renders our vagueness cases inapplicable. The problem is that the Arizona statute, under a single heading, criminalizes several alternative patterns of conduct. While a State is free to construct a statute in this way, it violates due process for a State to invoke more than one statutory alternative, each with different specified elements, without requiring that the jury indicate on which of the alternatives it has based the defendant's guilt.

The plurality concedes that "nothing in our history suggests that the Due Process Clause would permit a State to convict anyone under a charge of 'Crime' so generic that any combination of jury findings of embezzlement, reckless driving, murder, burglary, tax evasion, or littering, for example, would suffice for conviction." Ante, at 633. But this is very close to the effect of the jury verdict in this case. Allowing the jury to return a generic verdict following a prosecution on two separate theories with specified elements has the same effect as a jury verdict of "guilty of crime" based on alternative theories of embezzlement or reckless driving. Thus the statement that "in Arizona, first degree murder is only one crime regardless whether it occurs as a premeditated murder or a felony murder," State v. Encinas, 132 Ariz. 493, 496, 647 P.2d 624, 627 (1982), neither recognizes nor resolves the issue in this case. The plurality likewise misses the mark in attempting to compare this case to those in which the issue concerned proof of facts regarding the particular means by which a crime was committed. See ante, at 631-632. In the case of burglary, for example, the manner of entering is not an element of the crime; thus, Winship would not require proof beyond a reasonable doubt of such factual details as whether a defendant pried open a window with a screwdriver or a crowbar. [*657] It would, however, require the jury to find beyond a reasonable doubt that the defendant in fact broke and entered, because those are the "fact[s] necessary to constitute the crime." 397 U.S. at 364. 3

3 For similar reasons, the plurality's focus on the statutorily enumerated means of satisfying a given element of an offense, see ante, at 636, n. 6, is misplaced.

Nor do our cases concerning the shifting of burdens and the creation of presumptions help the plurality's cause. See ante, at 638-639. Although this Court consistently has given deference to the State's definition of a crime, the Court also has made clear that having set forth the elements of a crime, a State is not free to remove the burden of proving one of those elements from the prosecution. For example, in Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979), the Court recognized that "under Montana law, whether the crime was committed purposely or knowingly is a fact necessary to constitute the crime of deliberate homicide," and stressed that the [***582] State therefore could not shift the burden of proving lack of intent to the defendant. Id., at 520-521. Conversely, in Patterson v. New York, 432 U.S. 197, 205-206, 53 L. Ed. 2d 281, 97 S. Ct. 2319 (1977), the Court found that it did not violate due process to require a defendant to establish the affirmative defense of extreme emotional disturbance, because "the death, the intent to kill, and causation are the facts that the State is required to prove beyond a reasonable doubt if a person is to be convicted of murder. No further facts are either presumed or inferred in order to constitute the crime." Here, the question is not whether the State "must be permitted a degree of flexibility" in defining the elements of the offense. See ante, at 638. Surely it is entitled to that deference. But having determined that premeditated murder and felony murder are separate paths to establishing first-degree murder, each containing a separate set of elements from the other, the State must [*658] be held to its choice. 4 Cf. Evitts v. Lucey, 469 U.S. 387, 401, 83 L. Ed. 2d 821, 105 S. Ct. 830 (1985). To allow the State to avoid the consequences of its legislative choices through judicial interpretation would permit the State to escape federal constitutional scrutiny even when its actions violate rudimentary due process.

4 Even if the crime of first-degree murder were generic, that different categories of the offense carry risks of different punishment is constitutionally significant. In Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881 (1975), for example, this Court concluded that the absence of "heat of passion on sudden provocation," while not an expressly stated element of the offense of "homicide," was essential to reduce the punishment category of the crime from that of murder to manslaughter. Id., at 697, 699. Consequently, the State there violated In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970), and principles of due process by requiring the defendant to establish the absence of the intent required for murder, and thereby rebut the presumption of malice. Mullaney, supra, at 703-704. As discussed below, the disparate intent requirements of premeditated murder and felony murder have life-or-death consequences at sentencing.

The suggestion that the state of mind required for felony murder/robbery and that for premeditated murder may reasonably be considered equivalent, see ante, at 644, is not only unbelievable, but it also ignores the distinct consequences that may flow from a conviction for each offense at sentencing. Assuming that the requisite statutory aggravating circumstance exists, the death penalty may be imposed for premeditated murder, because a conviction necessarily carries with it a finding that the defendant intended to kill. See Ariz. Rev. Stat. Ann. § 13-703 (1989). This is not the case with felony murder, for a conviction only requires that the death occur during the felony; the defendant need not be proved to be the killer. Thus, this Court has required that in order for the death penalty to be imposed for felony murder, there must be a finding that the defendant in fact killed, attempted to kill, or intended that a killing take place or that lethal force be used, Enmund v. Florida, 458 U.S. 782, 797, 73 L. Ed. 2d 1140, 102 S. Ct. 3368 (1982), or that the defendant was a major participant in the felony and exhibited reckless indifference to human life, Tison v. Arizona, 481 U.S. 137, 158, 95 L. Ed. 2d 127, 107 S. Ct. 1676 (1987).

In the instant case, the general verdict rendered by the jury contained no finding of intent or of actual killing by petitioner. The sentencing judge declared, however: "The court does consider the fact that a felony murder instruction was given in mitigation, however there is not evidence to indicate that this murder was merely incidental to a robbery. The nature of the killing itself belies that. . . . "The court finds beyond a reasonable doubt that the defendant attempted to kill Larry Grove, intended to kill Larry Grove and that defendant did kill Larry Grove. "The victim was strangled to death by a ligature drawn very tightly about the neck and tied in a double knot. No other reasonable conclusion can be drawn from the proof in this case, notwithstanding the felony murder instruction." Tr. 8-9 (Aug. 29, 1985). Regardless of what the jury actually had found in the guilt phase of the trial, the sentencing judge believed the murder was premeditated. Contrary to the plurality's suggestion, see ante, at 644-645, n. 9, the problem is not that a general verdict fails to provide the sentencing judge with sufficient information concerning whether to impose the death sentence. The issue is much more serious than that. If in fact the jury found that premeditation was lacking, but that petitioner had committed felony murder/robbery, then the sentencing judge's finding was in direct contravention of the jury verdict. It is clear, therefore, that the general jury verdict creates an intolerable risk that a sentencing judge may subsequently impose a death sentence based on findings that contradict those made by the jury during the guilt phase, but not revealed by their general verdict. Cf. State v. Smith, 160 Ariz. 507, 513, 774 P.2d 811, 817 (1989).

II

I also cannot agree that the requirements of Beck v. Alabama, 447 U.S. 625, 65 L. Ed. 2d 392, 100 S. Ct. 2382 (1980), were satisfied by the instructions and verdict forms in this case. Beck held that "when 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. The majority finds Beck satisfied because the jury here had the opportunity to convict petitioner of second-degree murder. See ante, at 646-648. But that alternative provided no "third option" to a choice between convicting petitioner of felony murder/robbery and acquitting him completely, because, as the State concedes, see Tr. of Oral Arg. 51-52, second-degree murder is a lesser included offense only of premeditated murder. Thus, the Arizona Supreme Court has declared that "'the jury may not be instructed on a lesser degree of murder than first degree where, under the evidence, it was committed in the course of a robbery.'" State v. Clayton, 109 Ariz. 587, 595, 514 P.2d 720, 728 (1973), quoting [***584] State v. Kruchten, 101 Ariz. 186, 196, 417 P.2d 510, 520 (1966), cert. denied, 385 U.S. 1043, 17 L. Ed. 2d 687, 87 S. Ct. 784 (1967) (emphasis added). Consequently, if the jury believed that the course of events led down the path of felony murder/robbery, rather than premeditated murder, it could not have convicted petitioner of second-degree murder as a legitimate "third option" to capital murder or acquittal.

The State asserts that felony murder has no lesser included offenses. 5 In order for a defendant to be convicted of felony [*661] murder, however, there must be evidence to support a conviction on the underlying felony, and the jury must be instructed as to the elements of the underlying felony. Although the jury need not find that the underlying felony was completed, the felony murder statute requires there to be at least an attempt to commit the crime. As a result, the jury could not have convicted petitioner of felony murder/robbery without first finding him guilty of robbery or attempted robbery. 6 Indeed, petitioner's first conviction was reversed because the trial judge had failed to instruct the jury on the elements of robbery. 142 Ariz. 619, 691 P.2d 710 (1984). As the Arizona Supreme Court declared: "Fundamental error is present when a trial judge fails to instruct on matters vital to a proper consideration of the evidence. Knowledge of the elements of the underlying felonies was vital for the jurors to properly consider a felony murder theory." Id., at 620-621, 691 P.2d at 711-712 (citation omitted).

5 Arizona law has not been consistent on this point. Arizona cases have long said that "there is no lesser included homicide offense of the crime of felony murder since the mens rea necessary to satisfy the premeditation element of first degree murder is supplied by the specific intent required for the felony." State v. Arias, 131 Ariz. 441, 444, 641 P.2d 1285, 1288 (1982) (emphasis added). Recent cases have omitted the crucial word "homicide." See, e. g., State v. LaGrand, 153 Ariz. 21, 29-30, 734 P.2d 563, 571-572, cert. denied, 484 U.S. 872 at 872-873, 98 L. Ed. 2d 157, 108 S. Ct. 206 (1987).

6 In this Court's recent decision in Schmuck v. United States, 489 U.S. 705, 103 L. Ed. 2d 734, 109 S. Ct. 1443 (1989), we adopted the "elements" test for defining "necessarily included" offenses for purposes of Federal Rule of Criminal Procedure 31(c). "Under this test, one offense is not 'necessarily included' in another unless the elements of the lesser offense are a subset of the elements of the charged offense." Schmuck, supra, at 716. See also Berra v. United States, 351 U.S. 131, 134, 100 L. Ed. 1013, 76 S. Ct. 685 (1956). Here that test is met, for petitioner could not be convicted of felony murder/robbery unless the jury found that a robbery, or an attempt to commit robbery, had occurred.

It is true that the rule in Beck only applies if there is in fact a lesser included offense to that with which the defendant is charged, for "where no lesser included offense exists, a lesser included offense instruction detracts from, rather than enhances, the rationality of the process." Spaziano v. Florida, 468 U.S. 447, 455, 82 L. Ed. 2d 340, 104 S. Ct. 3154 (1984). But while deference is due state legislatures and courts in defining crimes, this deference has constitutional limits. In the case of a compound [*662] crime such as felony murder, in which one crime must be proved in order to prove the other, the underlying crime must, as a matter of law, be a lesser included offense of the greater. Thus, in the instant case, robbery was a lesser included offense of the felony murder/robbery for which petitioner was tried. The Arizona Supreme Court acknowledged that "the evidence supported an instruction and conviction for robbery," had robbery been a lesser included offense of felony murder/robbery. 163 Ariz. 411, 417, 788 P.2d 1162, 1168 (1989). Consequently, the evidence here met "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." Schmuck v. United States, 489 U.S. 705, 716, n. 8, 103 L. Ed. 2d 734, 109 S. Ct. 1443 (1989); see Keeble v. United States, 412 U.S. 205, 208, 36 L. Ed. 2d 844, 93 S. Ct. 1993 (1973). Due process required that the jury be given the opportunity to convict petitioner of robbery, a necessarily lesser included offense of felony murder/robbery. See Stevenson v. United States, 162 U.S. 313, 319-320, 40 L. Ed. 980, 16 S. Ct. 839 (1896).