the jury to be “fair,” although he did not explain what such treatment might entail. Notably, Clark did not articulate any defense to felony murder or to the predicate felonies of sexual conduct or attempted sexual conduct with a minor beyond referring vaguely to Dr. Bolduc’s testimony, despite the prosecutor’s emphasis on evidence supporting those crimes in his closing argument immediately prior. After deliberating for just two hours, the jury found Gallegos guilty of both first-degree murder and sexual conduct with a minor. The jury was unanimous as to first-degree murder but split (to a degree not recorded) as to whether Gallegos committed premeditated murder or only felony murder. Cf. Schad v. Arizona, 501 U.S. 624, 644-45, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (plurality opinion) (<HOLDING>). 2. The First Sentencing Hearing Gallegos had
holding constitutional arizonas scheme of providing general verdicts for firstdegree murder based on either premeditation or felony murder without requiring jury unanimity holding that where both firstdegree and felony murder were possible bases for a murder conviction a jury instruction that suggested the jury could rely on felony murder as the predicate offense for a conviction for conspiracy to commit murder was improper because under arizona law a conviction for conspiracy to commit firstdegree murder requires a specific intent to kill holding that first and seconddegree intentional murder verdicts are consistent with a felony murder verdict because lack of intent is not an element of seconddegree felony murder holding that although premeditation is outside the heartland of seconddegree murder guideline upward departure from seconddegree murder guideline based on premeditation was improper because commission considered the defendants state of mind in assigning a higher base offense level to firstdegree murder than to seconddegree murder holding error is not harmless when the accused is convicted of firstdegree murder on a general verdict after a trial in which premeditation and felony murder theories are espoused if the felony underlying the felony murder charge is based on a legally unsupportable theory