OPINION

MARTONE, Justice.

¶ 1 A jury convicted James Cornell Harrod of premeditated murder and felony murder. The trial court sentenced him to death. Appeal to this court is automatic under Rules 26.15 and 31.2(b), Ariz.R.Crim.P., and direct under A.R.S. § 13-4031. We affirm.

I. BACKGROUND

¶ 2 At the time of his death, Ed Tovrea Sr. had an estimated net worth of $6 million. He left a significant portion of this estate outright to his wife, Jeanne Tovrea. The rest of the estate, valued at approximately $3.9 million, was put into a trust. During the remainder of her life, Jeanne was the beneficiary of the income from this trust. Upon Jeanne's death, the residuary was to go to Ed Sr.'s three children, including his son, Ed Jr. (who was known by the nickname "Hap").

¶ 3 Sometime in 1987, Jeanne Tovrea began to receive phone calls from Gordon Phillips, who claimed to be a stringer for Time Life Publications, and who said that he was interested in Ed Sr.'s days as a prisoner of war. Because Jeanne was suspicious of the persistent caller, she asked a friend, who was a retired CIA agent, to investigate Gordon Phillips. His inquiries were fruitless.

¶ 4 On July 11, 1987, Jeanne met with Phillips in Newport Beach, California. Deborah Nolan Luster, Jeanne's daughter, was present and spoke with Phillips for 30 to 45 minutes. Neither Nolan Luster nor Jeanne met with Gordon Phillips again.

¶ 5 Between midnight and 1 a.m. on April 1, 1988, a burglar alarm went off in Jeanne's house in Phoenix. When the police arrived, they found that a piece of glass and a rubber seal had been removed from the window above the kitchen sink. Jeanne was found in her bed. She had been shot in the head five times. Three of the shots had been fired through a pillow.

¶ 6 Although the house was protected by more than one burglar alarm, the window above the kitchen sink was the only point of entry that was not connected to an alarm. The police determined that the alarm had been set off when the intruder left through the arcadia door. Eighteen of the fingerprints found on or around the window and the counter below it were Harrod's.

¶ 7 On April 19, 1988, while cleaning Jeanne's home, Nolan Luster's husband discovered a micro-cassette tape containing a phone message from Gordon Phillips. He gave the tape to the police the next day. In May 1991, Nolan Luster attended a photographic lineup which did not include a picture of Harrod. She did not identify anyone as Phillips.

¶ 8 On April 15, 1992, the television program Unsolved Mysteries ran a piece on the murder featuring the answering machine message from Gordon Phillips. Harrod's then brother-in-law, Curt Costello, recognized the voice as Harrod's. Curt taped a rerun of the episode and sent copies to his brother Mark Costello, and his sister, Anne Costello (Harrod's wife at the time). He also sent a copy to Jeff Fauver, a friend who was a former FBI agent and who was then working as a criminal investigator for the United States Department of Defense. All three of the recipients knew Harrod well and recognized the voice on the tape as Harrod's. Fauver called the police anonymously on December 9, 1993.

¶ 9 In November 1994, Anne Costello contacted the police through her lawyer. She was granted immunity from prosecution on condition that she was not a participant in the murder and was completely truthful during the investigation. Shortly thereafter, the police prepared a photographic lineup containing Harrod's picture. Nolan Luster did not identify anyone as Gordon Phillips.

¶ 10 Harrod was arrested on September 14, 1995, after the police matched his fingerprints to those at the crime scene. On December 19, 1996, Nolan Luster positively identified Harrod at a live lineup. Telephone records showed that during the months preceding the murder over 1,500 phone calls had been made between Harrod and Hap, and that 52 of those calls took place the day before the murder. Hap had sent over $35,000 to Harrod in various amounts.

¶ 11 At trial, the state claimed that Hap had arranged to pay Harrod $100,000 to murder Jeanne so that Hap and his siblings could take under the trust. Harrod testified in his own defense, stating that he never posed as Gordon Phillips, met Jeanne, left messages on her answering machine, or broke into her home. He denied murdering Jeanne or participating in the murder in any way. He also suggested that the fingerprints at the scene identified as his had been created with a prosthetic fingerprint glove. He claimed that his relationship with Hap involved business ventures in China. He denied ever discussing the murder with his wife, Anne Costello. On rebuttal, Anne Costello testified that Harrod had told her extensively about his involvement in the murder.

¶ 12 Harrod was convicted of first degree murder and felony murder. The trial court found that the pecuniary gain aggravating factor, A.R.S. § 13-703(F)(5), and three mitigating factors had been proven. Finding that the mitigating factors were not sufficiently substantial to call for leniency, the court sentenced Harrod to death.

II. ISSUES

¶ 13 Harrod raises the following issues:

A. TRIAL ISSUES

1. Did the trial court err in excluding third party culpability evidence?

2. Did the trial court err in finding that Nolan Luster had not been successfully hypnotized and permitting her to testify about an identification she made of Harrod after the failed hypnosis session?

3. Did the trial court err in permitting Anne Costello to testify that she left him because she could not live with someone who could be involved in a murder?

4. Did the trial court err in permitting Harrod's ex-wife to testify about acts she observed and to impeach Harrod by testifying about otherwise privileged marital communications after he denied having such conversations?

1. Did the trial court err in refusing to admit the results of a polygraph examination at the aggravation/mitigation hearing?

2. Is the Arizona death penalty statute unconstitutional on its face and/or as applied in this case?

III. ANALYSIS

A. TRIAL ISSUES 1. Third Party Culpability Evidence

¶ 14 The trial court excluded evidence of a supposed confession by James Majors, a California death row inmate, that he killed Jeanne Tovrea. Majors purportedly confessed to Joe Calo, a fellow death row inmate. Calo pled guilty to a series of murders in exchange for a sentence other than death. Calo claimed that Majors was the trigger man in the murders to which Calo eventually pled guilty, and that Majors had also confessed to the murder of Jeanne Tovrea. But Calo's accounts of the Tovrea murder (as allegedly confessed by Majors) were inconsistent with each other and with the physical evidence found at the scene. Police efforts to corroborate Majors' confession failed. When questioned, Majors denied involvement in the murder and denied making the confession.

¶ 15 Harrod contends that Majors' statement should have been admitted under the statement against penal interest exception to the hearsay rule. Rule 804(b)(3), Ariz. R. Evid., provides:

Rule 804. Hearsay Exceptions; Declarant Unavailable

. . . .

(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witnesses:

. . . .

(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, . . . that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

¶ 16 When a statement is offered to exculpate the defendant, the rule imposes three requirements. First, the declarant must be unavailable. Rule 804(a), Ariz. R. Evid.; see State v. Medina, 178 Ariz. 570, 576, 875 P.2d 803, 809 (1994). Second, the statement must be so far against the declarant's interest that he would not have made it unless he believed it to be true. Third, corroborative circumstances must "clearly indicate the trustworthiness of the statement." Rule 804(b)(3), Ariz. R. Evid. The trial court must examine any evidence that corroborates or contradicts the statement to find whether a reasonable person could conclude that the statement is true. State v. LaGrand, 153 Ariz. 21, 28, 734 P.2d 563, 570 (1987).

¶ 17 Harrod offered no evidence that Majors would have refused to testify had he been called. He asserts that a person on death row in California would not come to Arizona to admit another murder. At the hearing on the motion to preclude, defense counsel stated: "We don't at this stage know whether or not Mr. Majors would be available to testify." Tr. Nov. 7, 1997, at 130. Because he made no affirmative showing that Majors would have refused to testify if called, Harrod failed to show that Majors was "unavailable" within the meaning of Rule 804(b)(3). Cf. LaGrand, 153 Ariz. at 27, 734 P.2d at 569; State v. Henry, 176 Ariz. 569, 575, 863 P.2d 861, 867 (1993) (declarant was legally unavailable because of showing that declarant would have asserted his Fifth Amendment privilege if called to testify); State v. Thoma, 834 P.2d 1020, 1025 (Or. 1992) (under analogous rule, where defendant made no showing that declarant would invoke the Fifth Amendment privilege or that incarceration prevented him from testifying, declarant was not legally unavailable).

¶ 18 Even if Harrod had shown that Majors was unavailable for the purposes of Rule 804, the statement was properly excluded because it was not trustworthy. There was no evidence that Majors was at the crime scene. The details of the statement were inconsistent with the crime, and Majors himself denied involvement. See LaGrand, 153 Ariz. at 27, 734 P.2d at 569 (finding that trustworthiness of 804(b)(3) statement is negated by contradictory evidence and lack of corroborating evidence). For these same reasons, the Majors confession did not meet the "inherent tendency" requirement of State v. Fulminante, 161 Ariz. 237, 252, 778 P.2d 602, 617 (1988).

¶ 19 Relying on Chambers v. Mississippi, 410 U.S. 284, 298, 93 S.Ct. 1038, 1047 (1973), Harrod argues that the exclusion of the Majors confession denied him the right to present a defense. But in LaGrand we noted that the Court in Chambers was strongly persuaded by the demonstrated reliability of the proffered statements. 153 Ariz. at 29, 734 P.2d at 571. We found that by applying the test for corroboration under Rule 804(b)(3), the hearsay rule was not applied mechanistically and the exclusion of an unreliable third party confession did not violate the defendant's right to present a defense. So too, we hold that the exclusion of the Majors' confession did not deny Harrod the right to present a defense. There was no error in excluding it.

2. The Post-Hypnotic Testimony

¶ 20 On March 14, 1990, Nolan Luster submitted to an attempt at hypnosis to enhance her recall of Gordon Phillips for the purpose of creating an investigatory sketch. The attempt at hypnosis was unsuccessful and no sketch was produced. In December 1996, Nolan Luster selected Harrod from a live lineup as Gordon Phillips.

¶ 21 Harrod moved to exclude Nolan Luster's post-hypnotic identification of Gordon Phillips. The state argued that Nolan Luster had never been successfully hypnotized. The state offered testimony by the hypnotist and an additional expert that Nolan Luster had not succumbed to hypnosis. Harrod's expert was generally equivocal, and testified that "it [wa]s almost equally possible that she was or wasn't hypnotized, that being pressed for which, I would say it is more likely that she in fact was hypnotized." Tr. Oct. 10, 1997, at 9-13.

¶ 22 The trial court found by a preponderance of the evidence that Nolan Luster had not been hypnotized. It did state, however, that if the standard were clear and convincing evidence, it would not have so found. Based on its finding, the court admitted Nolan Luster's identification testimony.

¶ 23 Because witnesses may testify only to matters recalled and recorded before hypnosis, State v. Mena, 128 Ariz. 226, 232, 624 P.2d 1274, 1280 (1981), if the state failed to prove that Nolan Luster had not been successfully hypnotized, it would have been error to permit her to testify about the later identification, State v. Lopez, 181 Ariz. 8, 9, 887 P.2d 538, 539 (1994).

¶ 24 In State v. Stolp, 133 Ariz. 213, 215, 650 P.2d 1195, 1197 (1982), we declined to "establish a burden of proof for the state to meet when it asserts that one of its witnesses subjected to a hypnotic session was in fact never hypnotized."

¶ 25 At least one other court has addressed the issue of the proper standard for determining whether a witness was successfully hypnotized. People v. Romero, 745 P.2d 1003 (Colo. 1987). Squarely presented with the issue, the Romero court determined that unsuccessful hypnosis must only be shown by a preponderance of the evidence. Id. at 1016. Because this is consistent with the typical standard for preliminary questions of fact, see Rule 104(a), Ariz. R. Evid., we agree with Romero that the standard is a preponderance of the evidence.

¶ 26 Because the proper standard was applied and the court's finding was based on its credibility determinations, we give great deference to the trial court's finding. The trial court found by a preponderance of the evidence that Nolan Luster had not been successfully hypnotized. After reviewing the record, we agree. Nolan Luster was properly permitted to testify about the subsequent identification.

3. Anne Costello's Testimony

¶ 27 In his case-in-chief, Harrod suggested that his ex-wife and her family were lying about Harrod's involvement in the murder because of bitterness over their divorce. On rebuttal, the state asked Anne Costello why she divorced Harrod. The defense objected on the basis of relevance. The state argued that her testimony was relevant to show that Anne Costello was not testifying because of any animus she harbored toward Harrod, thus rebutting the suggestion raised by the defense. The objection was overruled.

She said:

I left him because I couldn't live with him because of this terrible thing that he had done, because I couldn't stand the fact that I was living with someone that could be involved with a murder.

Tr. Nov. 14, 1997, at 28. Harrod now claims that it was error to permit Anne Costello to opine on the ultimate issue.

¶ 28 There was no error. First, Harrod opened the door to this testimony. Second, this was not opinion testimony at all. Anne Costello's testimony was not her bald opinion of Harrod's guilt or innocence. Her testimony was based on what Harrod had told her or done in her presence. See Rules 602, 701, 704, Ariz. R. Evid. There was no error in admitting it.

4. Marital Privilege

a. Case-in-Chief

¶ 29 The state moved for an order to allow Anne Costello to testify about statements Harrod made to her regarding the plot to kill Jeanne Tovrea. The court denied the motion, finding that the conversations were protected by the marital communications privilege. The court did, however, permit Anne Costello to testify to everything she "observed, overheard or did with [the] defendant in relation to this case." Minute Entry Oct. 9, 1997, at 21. Harrod challenges this ruling arguing that certain of his acts were intended as confidential communications.

¶ 30 There are two marital privileges. A.R.S. § 13-4062(1) provides that:

A person shall not be examined as a witness in the following cases:

1. A husband for or against his wife without her consent, nor a wife for or against her husband without his consent, as to events occurring during the marriage, nor can either, during the marriage or afterwards, without consent of the other, be examined as to any communication made by one to the other during the marriage.

¶ 31 The anti-marital fact privilege, which allows one spouse to prevent the other from testifying, terminates when the marriage is dissolved. State v. Drury, 110 Ariz. 447, 451, 520 P.2d 495, 499 (1974); see also State ex rel. Woods v. Cohen, 173 Ariz. 497, 502, 844 P.2d 1147, 1152 (1992). Because Anne Costello and Harrod were divorced long before trial, the anti-marital fact privilege does not apply.

¶ 32 The marital communications privilege protects confidential communications made between spouses while they are married and it survives the marriage. A.R.S. § 13-4062(1); Drury, 110 Ariz. at 453, 520 P.2d at 501.

¶ 33 Harrod contends that the receipt of Federal Express packages and the burning of a package were confidential marital communications and should have been protected by the privilege. While the privilege protects all confidential communications, it protects neither non-confidential communications nor non-communicative acts. Drury, 110 Ariz. at 454, 520 P.2d at 502. We have expressly declined to extend the privilege from confidential verbal communications to acts, ruling that a spouse may not testify about the former, but may testify about the latter. Id., 520 P.2d at 502; see also Posner v. N.Y. Life Ins. Co., 56 Ariz. 202, 207, 106 P.2d 488, 491 (1940) (finding that a spouse "may testify as to what was done by either spouse, but not as to what was said if it was in the nature of a confidential communication" (emphasis in original)); Morris K. Udall, Arizona Evidence § 501.3 (4th ed. 2000) ("The communications privilege applies only to communications, not to other facts or conduct, observed in confidence during the marriage."). In Drury, the defendant asked us to "extend the privilege to any confidential communication whether it be oral conversation or conduct." 110 Ariz. at 454, 520 P.2d at 502. Because "the privilege is an obstacle to the pursuit of truth," which "serves no real function in the reality of married life," we declined to do so and held that the privilege "should be limited rather than expanded." Id., 520 P.2d at 502. Anne Costello's testimony on direct examination was limited to non-communicative acts she observed. There was no error.

b. Rebuttal

¶ 34 At oral argument on the motion to admit Anne Costello's testimony, a second issue which the parties had not briefed arose: whether Harrod would waive the privilege by testifying about the conversations Anne Costello claimed he had with her. The court ultimately decided that if Harrod chose to testify about those conversations, he would waive the privilege with respect to "those areas where the ex-wife testifies dealing directly with that of the . . . husband's." Tr. Nov. 7, 1997, at 126. Harrod flatly denied having any conversations with Anne Costello regarding the Tovrea murder. Because her proposed testimony contradicted Harrod's, the court permitted the state to impeach him by allowing Anne Costello to testify on rebuttal about conversations she had with him about the murder.

¶ 35 Harrod argues that the trial court "abrogated" the privilege by judicially crafting an exception that does not appear in an otherwise clear and unequivocal statute. But the trial court did not find that the privilege did not apply. Rather, it found that Harrod waived the privilege. At the hearing on the issue, counsel stated:

Now Judge, I don't mean to suggest there is — there isn't any way James could open the door to Anne's statements. Certainly if he gets up there and volunteers that he never discussed a thing with his wife, or that he specifically discussed this but didn't say what she claims he said, he has breached the privilege, and the State would be permitted certainly to cross-examine him on it and probably to call Anne to impeach him on it.

Tr. Nov. 7, 1997, at 115-16.

¶ 36 Later, referring to Henderson v. State, 583 So.2d 276, 293-94 (Ala.Crim.App. 1990), where the defendant took the stand and discussed the marital communication that he sought to prevent his wife from discussing, defense counsel stated:

Now that's exactly the kind of sword and shield situation that shouldn't be allowed to happen, and I have always acknowledged to the Court that I recognize that it will be my job as attorney and James' job as the witness, to not broach that subject. And if we do, we do at our own peril, but not the mere fact of taking the witness stand.

Tr. Nov. 7, 1997, at 119-20. Defense counsel was correct. In Harris v. New York, 401 U.S. 222, 225-26, 91 S.Ct. 643, 645-46 (1971), the Court held that prior inconsistent statements made without the benefit of Miranda warnings (and thus otherwise inadmissible) may be admitted to impeach the defendant. The trial court and the state analogized the waiver of the privilege to the Harris rule for un-Mirandized statements. We agree. While a defendant clearly has a right to rely on privileges, he does not have a right to fabricate on the stand and be immune from impeachment. See id. at 225, 91 S.Ct. at 645 ("The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.").

¶ 37 The statutorily created marital communications privilege does not merit greater protection than the Fifth Amendment privilege. Harrod could have refused to take the stand or respond to questions about communications in order to ensure that his wife could not contradict his version of events. See United States v. Benford, 457 F. Supp. 589, 597 (E.D.Mich. 1978) ("[W]hen the defendant attempted to take advantage of his wife's forced silence by testifying to things known only to himself and to her, he attempted to use the privilege for a purpose it was never meant to cover."). But once he testified, it was appropriate to allow the jury to hear Anne Costello's impeaching testimony. We therefore hold that where a witness testifies about otherwise privileged marital communications, or denies having relevant communications with his spouse, he waives the marital communications privilege with respect to those communications and may be impeached by his spouse's testimony.

B. SENTENCING ISSUES

1. Exclusion of Polygraph Results

¶ 38 Harrod claims that the trial court erred by refusing to permit him to introduce at the aggravation/mitigation hearing evidence that he had passed a polygraph examination in which he denied guilt. He claims that the polygraph results should have been admissible under A.R.S. § 13-703(G), and also because they were relevant to any residual doubt the court had regarding his guilt. The state argues that because Harrod had no constitutional right to present residual doubt evidence, he had no corresponding right to present the polygraph evidence in support of residual doubt. It further contends that even though the court permitted Harrod to introduce evidence of residual doubt, the polygraph, which is per se unreliable, was not admissible pursuant to Rule 26.7, Ariz.R.Crim.P.

¶ 39 We need not reach any of these arguments because even had the polygraph results been admitted, they would not have altered the sentence imposed. The trial court made clear that "the court does not have any lingering doubt as to the defendant's role or participation in the murder of Jeanne Tovrea." Spec. Verd. at 12 (emphasis in original). Moreover, the trial court stated that "while this court has previously ruled [the polygraph results] inadmissible, both at trial and in these proceedings, it is well aware of the results." Id. We agree with the trial court. 2. Judicial Fact Finding

¶ 40 Harrod argues that the decision in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215 (1999), draws into question the continuing validity of the Supreme Court's decision in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047 (1990). He argues that the aggravating factors that the judge finds under Arizona law are really elements of the offense which must be found by a jury. The state argues that Walton has not been expressly overruled and that Jones expressly distinguished Walton as a case in which aggravating factors serve as standards to guide a judge's choice between life and death.

¶ 41 After the briefs were filed in this case, the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). The Court struck down a New Jersey statute that allowed the trial court to make a factual finding (regarding hate) that would extend the term of imprisonment beyond the statutory prescription for the underlying offense. The Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490, 120 S.Ct. at 2362-63. The Court again distinguished Walton and specifically said "this Court has previously considered and rejected the argument that the principles guiding our decision today render invalid state capital sentencing schemes requiring judges, after a jury verdict holding a defendant guilty of a capital crime, to find specific aggravating factors before imposing a sentence of death." Id. at 496, 120 S.Ct. at 2366.

¶ 42 Justice O'Connor dissented from the Court's holding and its attempt to distinguish Walton. She noted that "[a] defendant convicted of first-degree murder in Arizona cannot receive a death sentence unless a judge makes the factual determination that a statutory aggravating factor exists." Id. at 538, 120 S.Ct. at 2388 (O'Connor, J., dissenting).

¶ 43 A.R.S. § 13-1105(C) provides that "[f]irst degree murder is a class 1 felony and is punishable by death or life imprisonment as provided by § 13-703." Thus first degree murder is a capital offense. But it is also the case that a death sentence cannot be imposed unless the trial court makes a factual finding that an aggravating circumstance exists. A.R.S. § 13-703(B) provides that, after a separate sentencing hearing, "[t]he court alone shall make all factual determinations required by this section." A.R.S. § 13-703(E) provides that "[i]n determining whether to impose a sentence of death or life imprisonment, the court shall take into account the aggravating and mitigating circumstances included in subsections F and G of this section and shall impose a sentence of death if the court finds one or more of the aggravating circumstances enumerated in subsection F of this section and that there are no mitigating circumstances sufficiently substantial to call for leniency."

¶ 44 Harrod's argument notwithstanding, this is not a debate for us to resolve. Article VI of the Constitution of the United States provides that the Constitution and laws of the United States "shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby." We are thus bound to follow Walton unless the Supreme Court overrules it. See Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 2017 (1997) ("We do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent."); see also Hoffman v. Arave, 236 F.3d 523 (9th Cir. 2001); Mills v. Moore, 2001 WL 360893 (Fla. Apr. 12, 2001). We therefore reject Harrod's argument.

3. Independent Review

¶ 45 The jury unanimously found Harrod guilty of both premeditated murder and felony murder. The trial court found that the state had proven beyond a reasonable doubt the statutory aggravating factor in A.R.S. § 13-703(F)(5): that the murder was committed as consideration for the receipt of pecuniary gain.

¶ 46 Harrod failed to prove by a preponderance of the evidence any of the statutory mitigating factors. However, Harrod proved by a preponderance of the evidence the following non-statutory mitigating factors: lack of criminal record, adjustment to incarceration, and family issues. The trial court considered all of the mitigating factors individually and cumulatively and found that they were insufficiently substantial to call for leniency.

a. Pecuniary Gain

¶ 47 The state must prove beyond a reasonable doubt that receiving something of value was "a motive, cause or impetus [for the murder] and not merely the result." State v. Spencer, 176 Ariz. 36, 43, 859 P.2d 146, 153 (1993).

¶ 48 The trial court based its finding of pecuniary gain on the facts that: 1) Anne Costello testified that Harrod told her that Hap wanted Jeanne dead so that he and his siblings could access their inheritance; 2) Anne Costello testified that Harrod told her that he would receive $100,000 for the murder and had complained to her that he had not yet received the total amount; and 3) the state introduced evidence of wire transfers and checks from Hap to Harrod totaling approximately $35,000. We agree with the trial court that this aggravating factor was proven beyond a reasonable doubt. This was a murder for hire, not a robbery gone bad. Thus this factor is entitled to great weight.

b. Statutory Mitigating Factors

¶ 49 Harrod argued and presented evidence in support of the mitigating factors found in A.R.S. §§ 13-703(G)(3) (minor participation) and (G)(5) (age). The trial court found that "the evidence presented at trial showed beyond a reasonable doubt that defendant was a major participant in the murder," Spec. Verd. at 9, and thus (G)(3) was not proven. We agree.

¶ 50 The trial court found that Harrod's age at the time of the crime (34), coupled with the fact that he "was a mature, married man, who had been living an adult lifestyle for many years" militated against mitigation. Id. at 10. Additionally, the court found that the murder "was not an act of youthful impulsivity, but rather, was planned and deliberate, taking place over a period of months." Id. Thus (G)(5) was not proven. We agree.

c. Non-Statutory Mitigating Factors

¶ 51 Harrod offered the following non-statutory mitigating factors: 1) lack of criminal record; 2) adjustment to incarceration, including good behavior and assisting detention officers; 3) family issues including mutual love and support of family and the failure of defendant's biological father to participate in his life; 4) lingering doubt as to his role or participation in the crime; and 5) disproportionate sentence in relation to other cases and to others involved in this crime.

¶ 52 Harrod proved by a preponderance of the evidence that he had no prior criminal record, except for a self-reported misdemeanor conviction for marijuana possession in 1976. This was found to be a mitigating factor, and we agree.

¶ 53 While the trial court agreed that Harrod's good behavior in prison was a mitigating factor, it gave it minimal weight because good behavior is expected of all inmates. We agree.

¶ 54 The trial court found that the absence of Harrod's biological father was not a mitigating factor because there was no evidence that his absence had any causal relationship to Harrod's participation in the murder. We agree. The court also gave minimal weight to his supportive family. We agree.

¶ 55 The court made it very clear that it did not have any lingering doubt about Harrod's guilt. Id. at 12-13. We agree with that finding, and thus need not reach the question of whether residual doubt is a mitigating factor which a defendant must prove.

¶ 56 Relying on State v. Salazar, 173 Ariz. 399, 411, 844 P.2d 566, 578 (1992), the court rejected Harrod's argument that his sentence was disproportionate. The court also found that because no one else was charged in the Tovrea murder, there was no basis for comparing Harrod's sentence to that of another participant. We agree.

¶ 57 In summary, the court balanced the very strong (F)(5) aggravating factor against the mitigating factors of lack of criminal record, adjustment to incarceration, and family issues. The trial court found that the mitigating factors were not sufficiently substantial to call for leniency, and we agree.

B. OTHER ARGUMENTS

¶ 58 The rest of Harrod's arguments are made for preservation purposes only. They have been considered and rejected. We list them here.

¶ 59 The Arizona death penalty is not per se cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Gregg v. Georgia, 428 U.S. 153, 186-87, 96 S.Ct. 2909, 2931 (1976).

¶ 60 The infliction of death by lethal injection is not cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. State v. Hinchey, 181 Ariz. 307, 315, 890 P.2d 602, 610 (1995).

¶ 61 The Arizona death penalty scheme does not fail to prevent arbitrary and capricious administration of death sentences. State v. Greenway, 170 Ariz. 155, 160, 823 P.2d 22, 27 (1991).

¶ 62 The Arizona death penalty statute is not unconstitutional even though it does not entitle a defendant to death qualify the sentencing judge. State v. Gulbrandson, 184 Ariz. 46, 72, 906 P.2d 579, 605 (1995).

¶ 63 The Arizona death penalty statute is not unconstitutional even though it shifts the burden of proving mitigating factors to the defendant. Walton, 497 U.S. at 649-51, 110 S.Ct. at 3055-56; Gulbrandson, 184 Ariz. at 72, 906 P.2d at 605.

¶ 64 The Arizona death penalty statute does not violate the Eighth and Fourteenth Amendments to the United States Constitution, nor does it violate Article 2, sections 4 or 15 of the Arizona Constitution. Gulbrandson, 184 Ariz. at 72, 906 P.2d at 605. The trial court must consider all relevant mitigation evidence, but the weight to be given such evidence rests in the judge's discretion. See id. at 69, 906 P.2d at 602.

¶ 65 A proportionality review of Harrod's death sentence is not required. See id. at 73, 906 P.2d at 606; Salazar, 173 Ariz. at 416, 844 P.2d at 574 (noting that "no statute requires or suggests proportionality reviews in death cases").

IV. DISPOSITION

¶ 66 We affirm Harrod's conviction and the sentence of death.

_____________________________ Frederick J. Martone, Justice

CONCURRING: ____________________________________ Charles E. Jones, Vice Chief Justice _________________________ Ruth V. McGregor, Justice