Ernest Valencia GONZALES
Number of victims: 1
Date of murder:
February 20, 1990
Date of arrest:
3 days after
Date of birth:
Victim profile: Darrel Wagner
Method of murder: Stabbing
Location: Maricopa County, Arizona, USA
Status: Sentenced to death on April 27, 1992
Birth: February 8, 1964
On the evening of February 20, 1990, the Wagner
family returned to their town house in Phoenix from dinner where they
had celebrated Darrel Wagner's recent promotion.
When they entered their
court yard, Deborah Wagner noticed a light shining out their opened
front door. Darrel went inside while Deborah and her 7-year-old son
remained in the court yard.
Inside, Darrel saw Gonzales, a parolee,
standing on the landing holding their VCR tucked underneath his arm.
Deborah sent her son for help. When she turned back, Gonzales had shoved
her husband out the front door, stabbing him.
When Gonzales ignored her
pleas to stop stabbing, Deborah climbed on his back. Gonzales stabbed
her twice. One cut damaged her spleen, colon and diaphragm and the other
punctured her lung. Gonzales then fled.
Darrel Wagner lived long enough
to help his wife up and then began a conversation with the 911 operator
while gasping for air. Gonzales had stabbed him 7 times. Darrel Wagner
died from stab wounds to his chest, one skewered the lower lobe of his
right lung and another went into the left ventricle of his heart.
Phoenix police arrested Gonzales on February 23, 1991. In addition to
the murder, he was convicted of first-degree burglary, aggravated
assault, armed robbery, theft, and of another residential burglary
committed minutes before the murder.
In addition to the death penalty,
Gonzales was sentenced to three consecutive life terms.
Presiding Judge: J.D. Howe
Prosecutor: Jeffrey Sandier
Start of Trial: May 23, 1991 (prior trial in January 1991 resulted
in hung jury)
Verdict: June 6, 1991
Sentencing: April 27, 1992
Grave risk of death to others
None sufficient to call leniency (none found)
State v. Gonzales, 181 Ariz. 502, 892 P.2d 838 (1995).
October 27, 1999 - Warrant of execution
issued by Arizona Supreme Court for the execution of Ernest Valencia
#58534 on December 8, 1999
November 16, 1999 - Stay of Execution
has been issued by the Arizona Supreme Court in the scheduled execution.
STATE of Arizona, Appellee,
Ernest Valencia GONZALES, Appellant.
Supreme Court of Arizona, In Banc.
March 23, 1995.
Ernest Gonzales was found guilty of felony murder, aggravated assault,
theft, armed robbery, and two counts of burglary. He was sentenced to
death on the murder conviction and to prison terms on the noncapital
convictions. Appeal to this court is automatic. See Rules 26.15 and
31.2(b), Ariz.R.Crim.P; A.R.S. § 13-4031. We affirm.
Shortly before 7:00 p.m. on February 20, 1990, Roger Daughtry returned
home from work and noticed that his porch light was on. He went inside
and saw that someone had disassembled his stereo and moved his speakers.
Suddenly, a man appeared from behind the speakers, looked at Daughtry,
and ran out of the house. Daughtry later identified that man as Ernest
Minutes later, Jeri Sheer, Daughtry's neighbor, took out her trash with
her dog, which ran toward a man holding what looked like a tire iron.
Sheer looked at the man, grabbed her dog, and went back into her house.
When she looked out the window, she noticed the man heading west, the
direction of Darrel and Deborah Wagner's townhouse. Sheer later
identified the man as Gonzales.
About 7:10 p.m., Darrel Wagner, his wife Deborah, and Deborah's seven-year-old
son arrived home from dinner. As they walked into the small courtyard
of their townhouse, they noticed that their front door was ajar. Darrel
went to investigate while Deborah and her son waited at the gate. As
Darrel pushed open the front door, both he and Deborah saw Gonzales
standing on the stairway holding their VCR under his arm. Deborah
immediately told her son to run to the neighbor's house and call 911.
When she turned back toward her home, she saw Gonzales shove her husband
out the front door. Darrel lost his balance and fell backward.
Gonzales began to stab him repeatedly (seven times in all).
Deborah pleaded with Gonzales to leave. When he did not, Deborah
jumped on Gonzales's back and wrapped her arms around him to keep him
from stabbing Darrel. Gonzales then swung at Deborah and stabbed her
twice. He also apparently wounded himself as he was flailing at Deborah.
When Deborah fell off his back, Gonzales left with her purse. A few
minutes later, Darrel helped his wife up and both went inside to call
911. Darrel collapsed on the floor during the call and died later that
night. Deborah spent five days in intensive care.
Gonzales went from the Wagner residence to his girlfriend's house. She
helped clean his wound. Her daughters, Catherine and Martha Trinidad,
were there and testified at trial about comments Gonzales made the night
of the murder, his clothing, and the "bag" he had with him containing a
woman's driver's license and pictures of a boy with red hair--the color
of Deborah's son's hair.
Gonzales was tried on a six-count indictment: felony murder of Darrel
Wagner, first-degree burglary, aggravated assault of Deborah Wagner,
armed robbery of Deborah **843 *507 Wagner, theft, and burglary of Roger
Daughtry's residence. The first trial ended in a hung jury. Gonzales
claims that this was because of Deborah's less-than-positive in-court
identification. The second jury found Gonzales guilty on all six counts.
At that trial, Deborah identified Gonzales without hesitation. At
sentencing, the trial court found two aggravating factors, no mitigating
factors, and sentenced Gonzales to death on the murder charge and
various prison terms for the other crimes.
We address the following issues raised in Gonzales's brief:
A. Trial Issues
1. Was Martha Trinidad an "unavailable" witness?
2. Did the trial court abuse its discretion by admitting Daughtry's,
Sheer's, and Deborah Wagner's in-court identifications?
3. Did the trial court deny Gonzales the right to counsel by denying
his request for advisory counsel?
4. Did the trial court abuse its discretion by admitting blood and
5. Did the trial court deny Gonzales due process by denying his request
for appointed serology, fingerprinting, and identification experts?
6. Did Judge Coulter abuse his discretion by denying Gonzales's motion
for disqualification of Judge Howe?
7. Did Deborah Wagner's presence during jury selection deny Gonzales a
8. Did the trial court err in ruling that statements Gonzales made
while being treated in the hospital would be admissible to impeach?
B. Sentencing Issues
1. Was the murder committed for pecuniary gain? A.R.S. § 13-703(F)(5).
2. Did Gonzales knowingly create a grave risk of death to another
person in addition to the victim of the offense? A.R.S. § 13-703(F)(3).
3. Does the fact that Gonzales was convicted for felony murder rather
than premeditated murder constitute a mitigating circumstance?
4. Does Gonzales's character evidence amount to a mitigating
5. Did the trial court improperly receive victim impact evidence during
the sentencing phase?
C. Other Issues
 Gonzales also raises the following issues, all of which
are meritless and do not warrant separate discussion:
1. Gonzales does not have a right to a jury trial at the sentencing
phase. See Walton v. Arizona, 497 U.S. 639, 647, 110 S.Ct. 3047, 3054,
111 L.Ed.2d 511 (1990).
2. Death by lethal gas does not constitute cruel and unusual punishment.
See State v. Greenway, 170 Ariz. 155, 160, 823 P.2d 22, 27 (1991).
Moreover, one can now choose lethal injection.
3. Arizona's statutory scheme for imposing the death penalty is not
4. Gonzales's argument that certain counts should have been remanded to
the grand jury for a redetermination of probable cause is not subject to
review following a finding of guilt beyond a reasonable doubt. E.g.,
State v. Charo, 156 Ariz. 561, 566, 754 P.2d 288, 293 (1988).
D. Issues Waived
 Gonzales also raises several claims of error on
appeal that are waived because he failed to timely object. After
reviewing the record, we do not find that any of the following alleged
errors rise to the level of fundamental error:
1. Gonzales argues that the trial court erred by denying his motion to
dismiss based on the state's failure to exercise peremptory challenges
in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d
69 (1986). But Gonzales did not object to the state's nonuse of
peremptory challenges until **844 *508 several days after the court
impaneled the jury and excused the venire. Thus, he did not timely
object and has waived this issue on appeal. State v. Cruz (II), 175 Ariz.
395, 398, 857 P.2d 1249, 1252 (1993) ("Batson challenges must be made
before the end of the jury selection process or they will not be
considered on appeal.").
2. Gonzales argues that the trial court erred by denying his motion to
sever Counts I-V (those involving the Wagners) from Count VI (the
Daughtry burglary). Gonzales moved to sever before the start of the
first trial, but waived this issue by failing to renew his motion during
the second trial or at the close of the evidence. Rule 13.4(c),
Ariz.R.Crim.P.; e.g., State v. Haas, 138 Ariz. 413, 425, 675 P.2d 673,
3. Gonzales argues that the trial court improperly ruled that his prior
convictions would be admissible against him if he testified. But
Gonzales did not testify and therefore waived his right to attack the
trial court's ruling. See, e.g., State v. White, 160 Ariz. 24, 30-31,
770 P.2d 328, 334-35 (1989).
4. Gonzales claims for the first time on appeal that he was denied due
process and a fair trial because the trial court did not define "reasonable
doubt" in the jury instructions. This is not error, let alone
fundamental error. State v. Bracy, 145 Ariz. 520, 535, 703 P.2d 464, 479
(1985), cert. denied, 474 U.S. 1110, 106 S.Ct. 898, 88 L.Ed.2d 932
5. Gonzales argues that he was prejudiced when two witnesses, Roger
Daughtry and Deborah Wagner, violated what he claims was a "sequestration
order" by speaking to each other before they testified. He argues that
the conversation bolstered Deborah's confidence in her identification.
But Gonzales was notified well in advance of the second trial and this
conversation that Deborah would identify Gonzales without hesitation.
Gonzales made no objection at trial. The court did not commit
fundamental error by failing to declare a mistrial sua sponte.
6. Gonzales argues that he was denied his right to counsel when the
court discussed a juror note with the jury outside the presence of
counsel. It appears from the record that the judge simply inquired
about the source of the note and did not discuss its contents.
Thereafter, he discussed the note with the lawyers, and all agreed that
the judge should simply admonish the jury not to form any opinions until
all the evidence was in and instruct them on the proper procedure for
juror notes. Gonzales made no objection at trial. There was no error,
let alone fundamental error.
7. Gonzales argues that the court committed fundamental error by
admitting a tire iron and bloody towel that he claims were seized in
violation of the Fourth Amendment. But it is clear that Martha Trinidad
voluntarily gave the police the evidence on her own initiative. No
search took place. There was no error.
A. TRIAL ISSUES
1. Witness Unavailability
 Martha Trinidad, the daughter of Gonzales's girlfriend, testified
at the first trial. Before the second trial, the prosecution personally
served both Martha and her mother on Martha's behalf. However, Martha
ran away from home, and neither the state nor her family could find her.
The police questioned Martha's mother about her whereabouts, but her
mother could only tell them where she usually "hung out." The police
looked for her but could not find her. Because of her unavailability,
the court admitted her former testimony at the second trial. Gonzales
argues that he was denied the right to cross-examine and confront a
Gonzales first argues that the state failed to make a good-faith effort
to secure Martha Trinidad's presence at trial, and thus Martha was not "unavailable"
under Rule 804(a)(5), Ariz.R.Evid. Gonzales claims that the state knew
that Martha had a history of running away and should have tried to hold
her in some manner. He argues that, at the very least, the state should
have done more than simply drive by places where Martha "hung out."
Most "good-faith efforts" challenges involve unserved witnesses who
cannot be located. *509 **845 But here, Martha and her mother were
personally served. While nothing in Rule 804 suggests that service of a
subpoena is a per se showing of good-faith efforts, we have said that "the
true issue is whether the state made a good-faith effort to locate the
witness so that he or she could be put under subpoena." State v.
Edwards, 136 Ariz. 177, 182, 665 P.2d 59, 64 (1983) (citing State v.
Pereda, 111 Ariz. 344, 345, 529 P.2d 695, 696 (1974) ("If a witness
cannot be served by subpoena, it then becomes a matter within the sound
discretion of the trial court to determine whether a sufficient effort
has been made to place the witness under subpoena.")). Service of
process and the efforts made to locate Martha upon learning that she was
missing satisfy the unavailability requirement of the rule.
 Gonzales also argues that even if Martha was "unavailable," her
testimony was nevertheless unreliable because the jury was denied the
opportunity to observe her demeanor and tone. But that would be true of
all non-videotaped former testimony. That argument has long been
rejected, and we need not revisit it here. See, e.g., Mattox v. United
States, 156 U.S. 237, 244, 15 S.Ct. 337, 340, 39 L.Ed. 409 (1895).
Moreover, the reliability of Martha's testimony is established without
further inquiry because former testimony is a "firmly rooted" hearsay
exception. See White v. Illinois, 502 U.S. 346, 355, 112 S.Ct. 736, 743
n. 8, 116 L.Ed.2d 848 (1992).
2. Admissibility of In-Court Identifications
Gonzales argues that the photographic line-up shown to Jeri Sheer and
Roger Daughtry was impermissibly suggestive and that, under the totality
of the circumstances, their testimony should have been excluded as
unreliable. See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d
401 (1972). Gonzales moved to suppress the in-court identifications
before trial. The court conducted a Dessureault hearing, State v.
Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969), cert. denied, 397 U.S.
965, 90 S.Ct. 1000, 25 L.Ed.2d 257 (1970), and held that there was no
evidence of suggestion or police misconduct. Thus, the court admitted
both the out-of-court and in-court identifications. We agree that both
 To establish a due process violation, Gonzales must first
establish that the circumstances surrounding the pretrial identification
"were so impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification," Simmons v. United States,
390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968), and that
the "state bore sufficient responsibility for the suggestive pretrial
identification." See State v. Williams, 166 Ariz. 132, 137, 800 P.2d
1240, 1245 (1987). Gonzales argues that the line-up was suggestive
because (1) the background in his photo was lighter than the others, (2)
he had a "hostile glare" that gave him a more "criminal look," (3) only
three of the men in the line-up had "bushy" mustaches while the others
had only thin mustaches, and (4) both Sheer and Daughtry knew that a
suspect had been arrested before they viewed the photos.
 After reviewing the photographic line-up shown to Sheer and
Daughtry, we conclude that the trial court did not err in holding that
it was not impermissibly suggestive. While upon close examination, the
lighting or flash may be brighter in Gonzales's picture, the difference
is almost imperceptible. All the persons shown stood against a solid
white background. The facial expression Gonzales chose while being
photographed was not a function of police conduct. Nor will different
facial expressions or hair thickness render a line-up impermissibly
suggestive. There is no requirement that the accused be surrounded by
nearly identical persons. State v. Mead, 120 Ariz. 108, 111-12, 584
P.2d 572, 575-76 (1978) (defendant only person in line-up without facial
hair); see also State v. Alvarez, 145 Ariz. 370, 372-73, 701 P.2d 1178,
1180-81 (1985) (line-up not impermissibly suggestive where only the
defendant had facial moles like those described by the victim and where
defendant was only one of two Hispanics shown). Finally, it is clear
that the witnesses knew that a suspect had been arrested through sources
independent of the police. The trial court correctly ruled that there
was no police misconduct **846 *510 that created an unduly suggestive
pretrial identification procedure.
 Gonzales also argues that because he sat next to defense
counsel during the first trial in which Deborah Wagner testified, she
took part in an impermissibly suggestive identification procedure,
making it necessary for the court to determine the reliability of her
in-court identification at the second trial. By failing to object
before trial, however, Gonzales has waived his objection. Moreover,
merely sitting at the defense table during trial where the defendant is
neither shackled nor dressed in prison garb is not unduly suggestive,
and thus no hearing was necessary. State v. Meeker, 143 Ariz. 256, 265,
693 P.2d 911, 920 (1984).
3. Right to Counsel
Some time after the second trial, the court granted Gonzales's request
to again proceed pro per, [FN1] but on its own initiative appointed him
advisory counsel. On the day scheduled to hear Gonzales's motion for
new trial, the judge granted advisory counsel's motion to withdraw
without objection from Gonzales. When the judge sought argument on the
motion, Gonzales asked the court to appoint new advisory counsel and to
grant a continuance. The court denied the request. [FN2] After several
days of argument, the court denied the motion for new trial. Gonzales
argues that he was denied his right to counsel because he did not
knowingly and intelligently waive the right, and, even if he did, he
withdrew that waiver and was thereafter denied appointed counsel at the
start of the hearing on his motion.
FN1. Gonzales had previously been granted a request to proceed pro per,
but later changed his mind and was again appointed counsel.
FN2. Although the
court refused to delay the hearing on the motion for new trial, it did
appoint advisory counsel at the conclusion of the hearing to assist
Gonzales at the sentencing phase. The court later granted Gonzales's
request that advisory counsel become counsel of record for the
 Gonzales argues that he did not knowingly and intelligently waive his
right to counsel in the first place because the trial court downplayed
the magnitude of a possible death sentence by stating that Arizona had
not carried out a death sentence since the early 1960s. This argument
is without merit. The record is clear that the judge made the
appropriate inquiries and admonitions and properly found Gonzales's
waiver to be knowing and intelligent.
 Even if his waiver of counsel were knowing and intelligent,
Gonzales claims that he withdrew his waiver. He relies primarily on
Rule 6.1(e), Ariz.R.Crim.P., which states that a defendant may withdraw
his waiver of the right to counsel at any time. But Gonzales asked for
advisory counsel, which is discretionary under Rule 6.1(c),
Ariz.R.Crim.P. [FN3] He did not ask to have counsel appointed. He thus
did not withdraw his waiver of counsel. The court did not abuse its
discretion by failing to continue the hearing and by refusing to appoint
new advisory counsel. The right to represent oneself is a
constitutional right. Faretta v. California, 422 U.S. 806, 819-20, 95
S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975). A court may not interfere with
that choice without an unequivocal revocation of the defendant's waiver
of counsel. State v. Rickman, 148 Ariz. 499, 503, 715 P.2d 752, 756
(1986). "Once a defendant has waived his right to counsel, that waiver
continues until he 'clearly' indicates a change of mind." Id. After
reviewing the record, we find that Gonzales never withdrew his waiver of
FN3. The record clearly indicates that Gonzales was seeking advisory
counsel only. (R.T. of Dec. 9, 1991, at 17-22; R.T. of Dec. 17, 1991,
at 2, 4).
4. Blood and Weatherstripping Evidence
The police went back to the Wagner townhouse one week after the murder
to gather additional physical evidence. They collected additional blood
samples. They also removed weatherstripping to see whether a lug wrench
had been used to pry open the door.
Although Gonzales did not object to the testimony about this evidence
at trial, he did object to the admission of the physical evidence itself,
arguing that it had been taken from the scene too long after the crime.
The court overruled the objection and admitted **847 *511 the evidence.
Gonzales now argues that the court should have excluded this evidence
under Rule 403, Ariz.R.Evid., and because the state failed to establish
a chain of custody. We reject both of these arguments.
 Gonzales's argument that the blood drops and weatherstripping
should have been excluded under Rule 403 is without merit. He has
pointed to nothing that would suggest that this evidence was unfairly
prejudicial. Moreover, Gonzales failed to object to the evidence on Rule
403 grounds at trial and has thus waived his objection. See State v.
Holder, 155 Ariz. 83, 85, 745 P.2d 141, 143 (1987).
 Gonzales also argues that because the evidence was not gathered
from the unsecured crime scene until seven days after the crime, the
state could not show a chain of custody. Gonzales's argument that
evidence may have been contaminated goes to the weight of the evidence,
not its admissibility. State v. Blazak, 114 Ariz. 199, 203, 560 P.2d 54,
58 (1977), cert. denied, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149
(1982). The contamination argument was fully explored on cross-examination
and argued to the jury. The court did not abuse its discretion in
admitting the physical evidence.
5. Appointment of Experts
 Relying on Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d
53 (1985) (a state must provide an indigent defendant a psychiatrist
where the defendant's sanity is a significant factor at trial), Gonzales
argues that he was denied due process when the trial court refused to
appoint him serology, fingerprinting, and identification experts for the
second trial. The state argues that Ake applies only to cases in which
sanity is at issue and that this case is governed by A.R.S. §
13-4013(B), which entitles indigent defendants in capital cases to
experts that "are reasonably necessary" to adequately present a defense.
Both Ake and the statute, however, require the same threshold showing of
"reasonable necessity." State v. Williams, 166 Ariz. 132, 139, 800 P.2d
1240, 1247 (1987).
 Gonzales failed to make the necessary threshold showing. He did
not explain how a fingerprint expert would be helpful, let alone
necessary, to his defense. The state did not offer fingerprint evidence
against him. Gonzales made only general references to the credibility of
Deborah's identification testimony to support his request for a
serologist and an identification expert. See State v. Apelt (Rudi), 176
Ariz. 369, 375, 861 P.2d 654, 660 (1993) (defendant failed to describe
the evidence he believed was available), cert. denied, 513 U.S. 833, 115
S.Ct. 110, 130 L.Ed.2d 57 (1994); State v. Greenawalt, 128 Ariz. 150,
156, 624 P.2d 828, 834 (defendant must show what was to be investigated
and why it was believed to be material), cert. denied, 454 U.S. 882, 102
S.Ct. 364, 70 L.Ed.2d 191 (1981). [FN4] Appointment of experts is
within the sound discretion of the trial court. State v. Amaya-Ruiz,
166 Ariz. 152, 182, 800 P.2d 1260, 1290 (1990), cert. denied, 500 U.S.
929, 111 S.Ct. 2044, 114 L.Ed.2d 129 (1991). Absent substantial
prejudice, we will not disturb the trial court's refusal to appoint
experts. Id. We find that Gonzales failed to make the necessary
threshold showing, and thus the trial court did not abuse its discretion.
FN4. Moreover, it does not appear that the identification expert
testimony would have been admissible under State v. Chapple, 135 Ariz.
281, 293, 660 P.2d 1208, 1220 (1983) (expert testimony on eyewitness
identification properly excluded in "great majority" of cases).
6. Impartiality of Trial Judge
 Before the second trial, Gonzales moved to disqualify Judge Howe,
arguing that he was biased and prejudiced. Gonzales had the burden of
proving bias by a preponderance of the evidence. Rule 10.1(c),
Ariz.R.Crim.P. Judge Coulter heard Gonzales's motion and denied it. We
review that ruling on an abuse of discretion standard. State v. Perkins,
141 Ariz. 278, 286, 686 P.2d 1248, 1256 (1984).
 Gonzales points to several exchanges that he claims demonstrate
the judge's animosity toward him, and argues that he was denied a fair
trial and sentencing. But Gonzales was a difficult litigant, and while
the judge understandably became impatient with him, particularly while
he was acting pro per, **848 *512 none of the exchanges would support
Gonzales's claim of bias. Nor did any of the exchanges take place in
front of the jury. Other than pointing to the motions the judge denied
and the sentence he imposed, Gonzales has not shown how he was
prejudiced. See Liteky v. United States, 510 U.S. 540, ----, 114 S.Ct.
1147, 1157, 127 L.Ed.2d 474 (1994) ("Not establishing bias or partiality,
however, are expressions of impatience, dissatisfaction, annoyance, and
even anger, that are within the bounds of what imperfect men and women
... sometimes display.") We find that Judge Coulter properly denied
Gonzales's motion for disqualification of Judge Howe.
7. Victim's Presence in the Courtroom
 Gonzales argues that Deborah's presence in the courtroom during
jury selection and her possible presence during trial after she
testified prejudiced him and denied him the right to a fair trial. This
argument is without merit. Deborah had a constitutional right to attend
all criminal proceedings that Gonzales had the right to attend. Ariz.
Const. art. 2, § 2.1(A)(3); Rule 9.3(a), Ariz.R.Crim.P. Deborah, on her
own initiative, attended jury selection. She sat in the back row of the
courtroom, and neither the court nor counsel knew she was there until
several days later. Nor is there any evidence that prospective jurors
noticed Deborah or knew who she was during jury selection. Gonzales has
not shown that Deborah's presence during jury selection was
prejudicial. There is no evidence that Deborah intended to or did
remain in the courtroom after she testified, and therefore we consider
the matter no further. State v. Ethington, 121 Ariz. 572, 574, 592 P.2d
768, 770 (1979).
8. Use of Gonzales's Statements for Impeachment
 While Gonzales was being treated in the hospital for an injury he
received during his arrest, he was interrogated by police in violation
of his Miranda rights. The court excluded his statements in the state's
case-in-chief, but ruled them admissible to impeach under Harris v. New
York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). Gonzales argues
that the statements should have been excluded for all purposes because
his medical condition at the time rendered all of his statements
involuntary. See Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408,
2416, 57 L.Ed.2d 290 (1978) ("[A]ny criminal trial use against a
defendant of his involuntary statement is a denial of due process of law.").
Gonzales argues that he could not take the stand in his own defense.
 In State v. Conner, 163 Ariz. 97, 103, 786 P.2d 948, 954 (1990),
we held that by choosing not to testify, a defendant waives his right to
challenge the court's pretrial ruling that statements made in violation
of Miranda would be admissible to impeach. The same policy
considerations that led to the result in Conner are present here. The
admission of involuntary statements is subject to harmless error
analysis. Arizona v. Fulminante, 499 U.S. 279, 295, 111 S.Ct. 1246,
1257, 113 L.Ed.2d 302 (1991). Without the defendant's testimony,
however, we are unable to determine whether error is prejudicial. The
state may choose not to use a statement. Requiring the defendant to
testify ensures that the reviewing court is presented with an actual,
rather than hypothetical, injury. Conner, 163 Ariz. at 103, 786 P.2d at
954. It also "prevents defendant from 'cynically manufacturing a basis
for a possible appeal by falsely alleging that the threat of impeachment
alone deterred him from testifying.' " Id. (citation omitted). Whether
the impeaching statement was obtained in violation of Miranda or was
involuntary, prejudice is hypothetical when the defendant does not
testify. We hold that by choosing not to testify, Gonzales waived his
right to claim that the trial court erroneously ruled involuntary
statements admissible to impeach.
 Even if not waived, we agree with the trial court's voluntariness
finding. Our inquiry is whether the confession was the product of "a
rational intellect and a free will." Mincey, 437 U.S. at 398, 98 S.Ct.
at 2416. Gonzales was in the hospital having his wound cleaned. He was
not strapped down, sedated, or incoherent. In fact, he stated that the
pain from his wound "kept his head clear." (R.T. of Jan. 16, 1991, at
78). **849 *513 Gonzales understood and responded to the questions and
even asked questions about statements he believed his girlfriend had
made. Gonzales's will was not overborne. This case is not like Mincey
where the defendant was in intensive care, confined to bed, in extreme
pain, heavily sedated, confused, incoherent, and eventually unconscious.
Gonzales's statements were not coerced. The trial court did not err in
ruling them admissible to impeach.
B. SENTENCING ISSUES
1. Propriety of the Death Sentence
 The state must prove beyond a reasonable doubt the
existence of aggravating circumstances contained in A.R.S. § 13-703(F).
State v. Kiles, 175 Ariz. 358, 369, 857 P.2d 1212, 1223 (1993), cert.
denied, 510 U.S. 1058, 114 S.Ct. 724, 126 L.Ed.2d 688 (1994). The
defendant must prove the existence of statutory or nonstatutory
mitigating circumstances by a preponderance of the evidence. Id. at
373, 857 P.2d at 1227. The court must impose a death sentence if it
finds at least one aggravating circumstance and no mitigating
circumstances sufficiently substantial to call for leniency. A.R.S. §
13-703(E). In all death penalty cases we independently review the
record and facts establishing aggravating and mitigating circumstances
to determine whether the former outweigh the latter. State v. Wood, 180
Ariz. 53, 68, 881 P.2d 1158, 1173 (1994). We must ensure that the
Arizona capital sentencing scheme "genuinely narrow[s] the class of
persons eligible for the death penalty." Arave v. Creech, 507 U.S. 463,
----, 113 S.Ct. 1534, 1542, 123 L.Ed.2d 188 (1993).
Following an aggravation/mitigation hearing, the court returned a
special verdict pursuant to A.R.S. § 13-703(D). It found two
aggravating circumstances: (1) that in the commission of the offense
Gonzales knowingly created a grave risk of death to another person in
addition to the victim of the offense, and (2) that Gonzales committed
murder in expectation of pecuniary gain. See A.R.S. §§ 13-703(F)(3) and
(F)(5). Finding no mitigation sufficiently substantial to call for
leniency, the court sentenced Gonzales to death. Gonzales challenges
each of the statutory aggravators.
i. Pecuniary Gain
 Gonzales argues that the evidence does not support a finding that
he committed the murder in expectation of pecuniary gain. He claims
that the robbery ended when he was confronted by Darrel Wagner and that
the subsequent murder was "unexpected and accidental." See State v.
Correll, 148 Ariz. 468, 479, 715 P.2d 721, 732 (1986) ("Factors to be
considered in making this [pecuniary gain] determination are whether the
murder was part of a larger scheme or was instead unexpected or
accidental."). We do not agree.
To prove the A.R.S. § 13-703(F)(5) aggravating factor, the state must
show that a motivation for the murder was the expectation of pecuniary
gain. State v. Fierro, 166 Ariz. 539, 551, 804 P.2d 72, 84 (1990). We
have held that when the defendant kills to facilitate his escape and to
permit him to take and keep stolen items, he furthers his pecuniary gain
motive. Id. The Wagners interrupted Gonzales during the burglary of
their home. Gonzales was there to steal from them. "[H]e expected
pecuniary gain and this expectation tainted all of his other conduct."
Id. (interrupted burglary); see, e.g., State v. Runningeagle, 176 Ariz.
59, 65, 859 P.2d 169, 175 (interrupted burglary), cert. denied, 510 U.S.
1015, 114 S.Ct. 609, 126 L.Ed.2d 574 (1993).
The trial court found beyond a reasonable doubt that Gonzales intended
to kill Darrel. His murder was not "accidental." This is plainly
evident from the number of stab wounds. Gonzales's primary motivation
was to steal the Wagner's property. Darrel's murder was directly
connected to that goal. See Correll, 148 Ariz. at 479, 715 P.2d at
732. We agree with the trial court that the murder of Darrel Wagner was
committed for pecuniary gain.
ii. Grave Risk of Death
 The trial court also found that Gonzales knowingly created a grave
risk of death **850 *514 to another person (Deborah Wagner) in addition
to the victim of the offense. See A.R.S. § 13-703(F)(3). The court
determined that Deborah was "within the zone of danger during the time [Gonzales]
was stabbing Darrel Wagner, and quite aside from that time in which [Gonzales]
was deliberately and independently stabbing Deborah Wagner." Special
Verdict at 1. We agree with the trial court that Gonzales knowingly
placed Deborah in grave risk of death even before turning his weapon on
"Our inquiry is whether, during the course of the killing, the
defendant knowingly engaged in conduct that created a real and
substantial likelihood that a specific third person might suffer fatal
injuries." Wood, 180 Ariz. at 69, 881 P.2d at 1174. Deborah was
confined in a small (10' x 10') courtyard with Gonzales as he repeatedly
stabbed her husband. See State v. McMurtrey, 151 Ariz. 105, 108, 726
P.2d 202, 205 (1986) (presence of others in immediate area supports
grave risk circumstance), cert. denied, 480 U.S. 911, 107 S.Ct. 1359, 94
L.Ed.2d 530 (1987); State v. Nash, 143 Ariz. 392, 405, 694 P.2d 222,
235 (1985) (close proximity to murder victim supports grave risk
circumstance). Moreover, Deborah was not just a bystander. She
attempted to rescue her husband by jumping on Gonzales's back as he was
stabbing Darrel. Whether she could have instead retreated is irrelevant.
One who murders knowing others are present can expect that someone may
attempt to interfere, particularly when that person is the victim's
spouse. [FN5] Gonzales's actions created a "zone of danger" for Deborah
in which there was a realistic possibility that she may have suffered
fatal injuries. Indeed, she almost died. This grave risk occurred, as
the statute requires, during the commission of the offense against
FN5. Gonzales argues that there is no evidence to support the finding
that he knew Deborah was present at the murder scene and thus could not
"knowingly" have created a grave risk of death to her. The evidence,
however, shows otherwise.
reject Gonzales's argument that § 13-703(F)(3) does not apply because
Deborah was an "intended victim" of the offense. For Deborah to have
been an intended victim, as contemplated by our cases, Gonzales must
have acted with the intent to kill her. See, e.g., Fierro, 166 Ariz. at
550, 804 P.2d at 83 ("Fierro's acquittal on the charge of attempted
murder establishes that Manross was not an intended victim of the
shooting"). Moreover, the intent to kill must have been formed before
Deborah was placed in grave risk of death. Gonzales argues that Deborah
became an intended victim the moment she jumped on his back. But
Deborah was placed in grave risk before she jumped on his back. Thus,
even if Gonzales stabbed Deborah with the intent to kill her, the "intended
victim" argument fails because that intent was not formed before Deborah
was placed in grave risk. Additionally, there was no evidence that
Gonzales intended to kill Deborah, and the state did not charge him with
her attempted murder. [FN6] Gonzales's only intended murder victim was
Darrel. When Deborah jumped on Gonzales's back, his intent was to get
her off. He did this by using his body and his weapon, seriously
injuring her in the process. Once he threw her off his back, he fled the
scene. Gonzales's reliance on the "intended victim" cases is thus
misplaced. We find that § 13-703(F)(3) is satisfied.
FN6. Gonzales admits that "there is no evidence in the record to
indicate that he intended to harm [Deborah] ... even when [she] jumped
on his back." (Reply Brief at 4).
 In capital sentencing proceedings, the trial court must consider
the mitigating factors in A.R.S. § 13-703(G) as well as any aspect of
the defendant's background or the offense relevant to determining
whether the death penalty is appropriate. State v. Bible, 175 Ariz.
549, 605, 858 P.2d 1152, 1208 (1993), cert. denied, 511 U.S. 1046, 114
S.Ct. 1578, 128 L.Ed.2d 221 (1994). After considering all of the
evidence, the trial court found no mitigating circumstances. Gonzales
argues that the judge should have found that his felony murder
conviction and his good character constituted mitigating circumstances
and that mitigation outweighed aggravation, thus making the death
**851 *515 i. Felony Murder Theory as Mitigation
 Gonzales argues that the fact that he was convicted of felony
murder, rather than premeditated murder, constitutes a mitigating
circumstance and mandates a finding that mitigation outweighs
aggravation. In State v. Zaragoza, 135 Ariz. 63, 70, 659 P.2d 22, 29,
cert. denied, 462 U.S. 1124, 103 S.Ct. 3097, 77 L.Ed.2d 1356 (1983), we
held that a felony murder conviction is not relevant to a determination
of mitigation "in a case where the defendant intended to kill the victim
or where the defendant knew with substantial certainty that his conduct
would cause death." Here, the trial court made a specific finding
beyond a reasonable doubt that Gonzales did the killing and intended to
kill Darrel Wagner. See State v. Herrera (Mickel), 174 Ariz. 387, 397,
850 P.2d 100, 110 (1993) (a trial court may make an Enmund finding in a
felony murder case). Gonzales stabbed Darrel seven times. The evidence
does not support Gonzales's argument that the death was "accidental."
Gonzales's conviction based on felony murder is not a mitigating
ii. Character Evidence
 The trial court found that "the evidence of Defendant's good
character when he is not committing crimes is not a mitigating factor."
Special Verdict at 4. Gonzales argues that this means that the trial
court admitted that good character had been proved, but refused to
assign any mitigating weight to it. Relying on Lockett v. Ohio, 438 U.S.
586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), he argues that the trial
court must give some mitigating weight to aspects of the defendant's
character and that it was improper to find that it was not a mitigating
 From the detailed special verdict, it is clear that the trial
court considered all evidence offered in mitigation. He was required to
do no more. See Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S.Ct. 869,
875, 71 L.Ed.2d 1 (1982) (applying the rule of Lockett v. Ohio that the
"sentencer in capital punishment cases must be permitted to consider any
relevant mitigating factor"); State v. McDaniel, 136 Ariz. 188, 665
P.2d 70 (1983) (trial court must consider any relevant aspect of a
defendant's character), cert. denied, 499 U.S. 952, 111 S.Ct. 1426, 113
L.Ed.2d 478 (1991). Although the court must consider relevant evidence
offered in mitigation, it is not required to find that evidence to be
mitigating. If it does find that the evidence is mitigating, the weight
to be given that evidence is within its discretion. State v. Atwood, 171
Ariz. 576, 648, 832 P.2d 593, 665 (1992), cert. denied, 506 U.S. 1084,
113 S.Ct. 1058, 122 L.Ed.2d 364 (1993); State v. McMurtrey, 136 Ariz.
93, 102, 664 P.2d 637, 646 (1983).
Here, the trial court considered the character evidence Gonzales
offered and found that it did not constitute a mitigating factor.
Gonzales was on parole at the time he committed this murder. He had
four prior felony convictions and a long criminal record starting as a
juvenile. The trial court did not believe that Gonzales had a "good
character," and neither do we.
 We have examined the record and do not find evidence of good
character that would constitute a mitigating circumstance sufficiently
substantial to call for leniency. Gonzales offered as mitigating
evidence brief testimony from various family members that they got along
with him, trusted him, did not consider him violent, and would continue
a relationship with him if he were sentenced to prison instead of death.
This evidence is better characterized as familial support than good
character. In any event, even if this evidence had some mitigating
weight, which it does not, it would be de minimis, making remand
unnecessary. See Bible, 175 Ariz. at 609, 858 P.2d at 1212.
c. Imposition of the Death Penalty
The state proved the existence of the A.R.S. § 13-703(F)(3) and (F)(5)
factors beyond a reasonable doubt. The trial court found no statutory
or nonstatutory mitigating circumstances. We have also reviewed the
record for evidence of mitigation and have found none sufficiently
substantial to call for leniency. The trial court correctly concluded
that the aggravating factors outweighed the mitigating factors. A.R.S.
§ 13-**852 *516 703(E) thus requires imposition of the death penalty.
2. Victim Impact Statements
 Finally, Gonzales argues that the trial court erroneously
received and considered Deborah's recommendation that he receive the
death penalty, and the investigating detectives' recommendation that he
receive the "maximum penalty." Gonzales relies on Booth v. Maryland,
482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). Booth, however,
was overruled by Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115
L.Ed.2d 720 (1991), which held that the Eighth Amendment does not bar
victim impact information in capital sentencing. In Arizona, victims
have a state constitutional right to be heard at sentencing. Ariz.
Const. art. 2, § 2.1(A)(4). See also A.R.S. § 13- 4410(C),-4424, -4426
(victim may submit oral or written impact statement at sentencing for
trial court's consideration); Atwood, 171 Ariz. at 656- 57, 832 P.2d at
673-74 (trial court may rebut evidence offered in mitigation with
relevant victim impact evidence). Moreover, trial courts are presumed
to be able to focus on relevant sentencing factors and set aside the "irrelevant,
the inflammatory, and the emotional factors." Atwood, 171 Ariz. at 657,
832 P.2d at 674. Gonzales has not shown any evidence to suggest that
these "recommendations" improperly affected the sentencing decision.
We have examined the entire record for fundamental error pursuant to
A.R.S. § 13-4035, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18
L.Ed.2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878
(1969). We have found none. For the above reasons, we affirm Gonzales's
convictions and sentences.
FELDMAN, C.J., MOELLER, V.C.J. and CORCORAN and ZLAKET, JJ., concur.