P167 Based on our independent review of the record, we conclude that the (F)(3) aggravating factor was proven beyond a reasonable doubt. We also conclude that the (F)(2) aggravating factor based on Roque's 1983 attempted robbery conviction [*102] was properly dismissed by the trial court and that the State failed to prove beyond a reasonable doubt the (F)(2) aggravating factor based on Roque's conviction for the attempted murder of Khalil.P168 As mitigation, A.R.S. § 13-703(G)(1) instructs us to consider whether Roque's "capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution." On that issue, the evidence shows that Roque's mother was a schizophrenic, leaving Roque predisposed to mental health problems.

and penalty phase (1) failure to allege specific aggravating factors in the indictment and notice of intent to seek the death penalty; (3) alleged comment on Garza’s failure to testify; (3) use of 911 recordings in the penalty phase; (4) penalty phase closing argument; (5) victim impact statements and accompanying photos; (6) denial of right to allocution under Arizona Rule of Criminal Procedure 19.1(d)(7) because the trial court indicated it might allow the State to cross-examine him or comment on any statements he made; (7)trial court should have instructed the jury that the presumptive sentence; (8) denial of a jury instruction on residual doubt; (9) denial of a third-party culpability instructionInstructing the jury not to consider sympathy or sentimentl; (10) instruction that the jury must unanimously determine that mitigation is sufficiently substantial to call for leniency; and (11) A.R.S. § 13-703 creates an unconstitutional presumption of death."People v. Frank Abilez, 2007 Cal.

and penalty phase (1) failure to allege specific aggravating factors in the indictment and notice of intent to seek the death penalty; (3) alleged comment on Garza’s failure to testify; (3) use of 911 recordings in the penalty phase; (4) penalty phase closing argument; (5) victim impact statements and accompanying photos; (6) denial of right to allocution under Arizona Rule of Criminal Procedure 19.1(d)(7) because the trial court indicated it might allow the State to cross-examine him or comment on any statements he made; (7)trial court should have instructed the jury that the presumptive sentence; (8) denial of a jury instruction on residual doubt; (9) denial of a third-party culpability instructionInstructing the jury not to consider sympathy or sentimentl; (10) instruction that the jury must unanimously determine that mitigation is sufficiently substantial to call for leniency; and (11) A.R.S. § 13-703 creates an unconstitutional presumption of death."People v. Frank Abilez, 2007 Cal.

Douglas, 316 F.3d at 1090 (quoting Boyde v. California, 494 U.S. 370, 382 (1990)).5 We also note that in finding Landrigan’s background or emotional character was not a mitigating circumstance, the state sentencing judge specifically noted that he had “received very little information concerning the defendant’s difficult family history,” implying a more complete picture could have tipped the scale in Landrigan’s favor.In comparison, there were two aggravating circumstances relied upon by the sentencing judge: (1) the defendant had prior felony convictions involving the use or threatened use of violence on another person, and (2) the defendant committed the offense with the expectation of receiving pecuniary gain. See Ariz. Rev. Stat. §§ 13-703(F)(2), (5). There was limited evidence regarding the pecuniary gain aggravator.

See, e.g., Parker v. Dugger, 498 U.S. 308, 313, 318-319, 111 S. Ct. 731, 112 L. Ed. 2d 812 (1991) (citing Fla. Stat. § 921.141(3)(b) (1985)); Richmond v. Lewis, 506 U.S. 40, 47, 113 S. Ct. 528, 121 L. Ed. 2d 411 (1992) (quoting Ariz. Rev. Stat. Ann. § 13-703(E) (1989)). Since the eligibility factors by definition identified distinct and particular aggravating features, if one of them [*11] was invalid the jury could not consider the facts and circumstances relevant to that factor as aggravating in some other capacity -- for example, as relevant to an omnibus "circumstances of the crime" sentencing factor such as the one in the present case.

See, e.g., Parker v. Dugger, 498 U.S. 308, 313, 318-319, 111 S. Ct. 731, 112 L. Ed. 2d 812 (1991) (citing Fla. Stat. § 921.141(3)(b) (1985)); Richmond v. Lewis, 506 U.S. 40, 47, 113 S. Ct. 528, 121 L. Ed. 2d 411 (1992) (quoting Ariz. Rev. Stat. Ann. § 13-703(E) (1989)). Since the eligibility factors by definition identified distinct and particular aggravating features, if one of them [*11] was invalid the jury could not consider the facts and circumstances relevant to that factor as aggravating in some other capacity -- for example, as relevant to an omnibus "circumstances of the crime" sentencing factor such as the one in the present case.