SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-03-0083-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2001-095438
ROBERT LOUIS CROMWELL, )
)
Appellant. ) O P I N I O N
)
__________________________________)
Appeal from the Superior Court of Maricopa County
No. CR2001-095438
Honorable Mark F. Aceto, Judge
AFFIRMED
_______________________________________________________________
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Capital Litigation Section
James P. Beene, Assistant Attorney General
Attorneys for the State of Arizona
SUSAN M. SHERWIN, MARICOPA COUNTY LEGAL ADVOCATE Phoenix
By James L. Logan, Deputy Legal Advocate
Consuelo M. Ohanesian, Deputy Legal Advocate
Attorneys for Robert Louis Cromwell
_______________________________________________________________
J O N E S, Justice (retired)
¶1 On February 19, 2003, a Maricopa County jury convicted
Robert Louis Cromwell of one count of first degree murder and
one count of sexual assault in the October 8, 2001 death of
eleven-year-old Stephanie Shortt. The jury also convicted
Cromwell of two counts of aggravated assault, one against Ella
Speaks, Stephanie’s mother, and the other against Ella’s friend,
Kim Jensen. On March 6, 2003, Cromwell was sentenced to death
for the murder, to life imprisonment without the possibility of
release for thirty-five years for the sexual assault, and to ten
years’ imprisonment each for the two aggravated assault charges.
¶2 On March 14, 2003, notice of appeal was filed in this
court under Rules 26.15 and 31.2(b), Arizona Rules of Criminal
Procedure, and Arizona Revised Statutes (“A.R.S.”) § 13-4031
(2001). This court has jurisdiction pursuant to Article 6,
Section 5.3, of the Arizona Constitution and A.R.S. § 13-4031.
FACTS1 AND PROCEDURAL HISTORY
¶3 Stephanie Shortt lived with her mother, Ella Speaks,
and two younger sisters, Amanda and Heather, in a one-bedroom
apartment located on Flower Street, near the intersection of
32nd Street and Osborn Road in Phoenix. Ella met the defendant,
Robert Cromwell, in the early evening hours of October 7, 2001
while walking from her apartment to a nearby convenience store
1
We view the facts in a light most favorable to sustaining
the jury’s verdict. State v. Tucker, 205 Ariz. 157, 160 n.1, 68
P.3d 110, 113 n.1 (2003); State v. Gallegos, 178 Ariz. 1, 9, 870
P.2d 1097, 1105 (1994).
2
to purchase transmission fluid for her car. Ella passed a
building where she saw Cromwell sitting on a bench. Cromwell
yelled out to her, “Hey, are you a prostitute or a police
officer?” Ella continued walking and replied, “I’m neither one.
I’m a mother and I’m having a bad day. Leave me alone.”
Cromwell then got on his bike and rode toward Ella. Upon
reaching her, he said, “I just want to apologize to you. That
was a very rude thing I said. In this area, there’s a lot of
prostitutes. I can’t believe that I disrespected you that way
and I want to give you my fullest apology.” Ella told Cromwell,
“It’s okay. I’m just having a bad day. I don’t mean to lash
out at you, but I’m not in the mood for those kind of comments.”
Cromwell then told Ella he would escort her to the store because
“this is a bad area and it’s now dark at this time.” Ella saw
some men off to her left and was “almost relieved” that Cromwell
was going to walk with her to the store.
¶4 Ella went into the store alone where she purchased
transmission fluid. When she emerged, Ella found Cromwell
waiting for her. The two walked back to her apartment and
according to Ella’s testimony, Cromwell seemed “kind” and
“caring.”
¶5 At the apartment, Cromwell helped Ella put the
transmission fluid into the automobile. Ella then asked
3
Cromwell if he would like to accompany her and her three
daughters to a nearby fast-food restaurant. Cromwell agreed to
go, but wanted first to take the bicycle back to his apartment.
Ella and the children followed Cromwell and parked the car to
wait for him outside the apartment. Cromwell parked his bike,
changed his clothes, then drove with Ella and her three girls to
the restaurant.
¶6 On the way, Cromwell and the children sang songs. At
the drive-through window, Ella offered to buy Cromwell a
hamburger. He declined. They obtained food for Ella and the
children and went back to Ella’s apartment. While the children
ate, Ella and Cromwell went into her bedroom where the two
talked and Ella smoked methamphetamine. After spending about an
hour in the bedroom, Cromwell agreed to accompany Ella to a
number of local bars where she filled out job applications and
played a few games of pool.
¶7 Cromwell had one drink during the bar visits, and Ella
had none. At one bar location, Cromwell leaned over a pool
table and tried to kiss Ella on the mouth, but she turned her
cheek. Cromwell said, “I can tell you didn’t like it, but I
will do it again.” Ella replied, “I don’t think you will,” at
which time Ella noticed that Cromwell smiled as if he
understood, and he apologized once again.
4
¶8 When Ella and Cromwell returned to her apartment
around 1:00 a.m., the children were on a mattress in the living
room, still awake. Ella told the girls to go to sleep, and Ella
and Cromwell went into the bedroom where they played cards for
about an hour.
¶9 At some point, with Cromwell still in the apartment,
Ella received a phone call from a friend, Kelly Lancaster,
asking that she come to his house to help resolve a disturbance
being caused by a mutual acquaintance, Kim Jensen. Ella agreed
and determined to leave her children with Cromwell because “he
seemed so nice.” Cromwell told Ella he would just stay in her
room while she was gone. Ella was gone from the house for a
little more than an hour.
¶10 During Ella’s absence, Stephanie’s nine-year-old
sister Amanda was awakened by the sound of Stephanie making a
noise as if “she was really hurt.” Amanda then saw Stephanie
standing in the bathtub, unclothed, while Cromwell, with socks
on both of his hands, washed her with soap. Amanda got out of
bed on several occasions while Ella was gone, but Cromwell
angrily told her to get back to bed each time. Eventually,
Amanda saw Stephanie follow Cromwell into Ella’s bedroom.
Although Stephanie remained in Ella’s bedroom, Amanda saw
Cromwell move from the bedroom to the kitchen several times.
5
During one such trip, Amanda heard a noise like “silverware
shatter,” and while Cromwell and Stephanie were in the bedroom,
she heard noises that made her think Stephanie was hurt. She
then heard a “big bang” that sounded like a television dropping
to the floor. Amanda finally fell asleep while Stephanie was in
the bedroom with Cromwell.
¶11 When Ella returned to the apartment, accompanied by
Kim Jensen, Cromwell attacked both of them with a pool cue,
resulting in injuries to each. Cromwell ran out of the
apartment after the attack and Ella quickly followed, after
looking unsuccessfully for Stephanie.
¶12 Cromwell’s attack on Ella and Kim awakened Amanda.
She saw her mother chase Cromwell out of the apartment. Kim
Jensen was lying on the floor with a head injury. Amanda and
Heather, the youngest sister, then got up and went to the
bedroom to look for Stephanie. Amanda reached into the bed,
felt Stephanie’s legs and saw that the television set was
resting on Stephanie’s head. She and Heather removed it, then
ran downstairs and asked the landlord to call 9-1-1, which he
did. After the call, Amanda and Heather went back upstairs and
into the bedroom. They observed blood stains on the bedding and
found Stephanie’s body, bruised and bloody.
6
¶13 Police Officer Tallon Busby responded to the 9-1-1
call. When he arrived, the door was open and Kim Jensen was on
the floor. Officer Busby described the scene: “Laying [sic]
inside the doorway was a white female. From the waist down she
was outside the apartment, from the waist up, she was laying
[sic] facedown in the apartment. There was a blood smear on the
door.” He asked Kim, who was semi-conscious, if anyone else was
in the apartment. She replied that the baby was in the bedroom.
He then asked Kim where she was injured, and she replied that
she had been hit on the back of the head. Officer Busby
observed that the hair on the back left side of Kim’s head was
“matted in blood.”
¶14 The officer then went into the dark apartment and
observed a light in the bedroom. He walked toward the doorway
and saw Stephanie lying face up on the bed. A blanket covered
her unclothed body from the waist down. She had “visible wounds
on her face and blood coming out of her nose and lips and out of
her mouth.” There was a “huge pool of blood” under her head and
shoulders. Officer Busby checked to see if Stephanie was
breathing and if she had a pulse. He felt a “slight pulse” at
her neck. He placed his hand on Stephanie’s chest and “felt a
slight rise and fall.” Visible evidence of severe vaginal
trauma indicated that Stephanie also had been sexually abused.
7
¶15 By the time Gary Ford, a Phoenix Fire Department
paramedic, arrived, Stephanie no longer had a pulse and had
stopped breathing. While performing cardiac pulmonary
resuscitation, Ford observed that Stephanie had suffered a head
wound and multiple stab wounds to her back. Ford also observed
the vaginal injuries. After attempting CPR and other life-
saving procedures, the paramedics rushed Stephanie to Good
Samaritan Hospital.
¶16 Dr. Wendy Lucid was on duty at the Good Samaritan
emergency room when Stephanie arrived. Stephanie had no
heartbeat and was not breathing. Initially, Dr. Lucid did a
full body assessment. She found a large laceration on
Stephanie’s forehead. Closer inspection revealed a skull
fracture. Due to the severity of Stephanie’s head injuries, Dr.
Lucid stopped all life support efforts and pronounced her dead.
Dr. Lucid then turned Stephanie onto her side and observed
eleven stab wounds on her back. Further examination also
revealed the vaginal injuries.
¶17 The medical examiner performed an autopsy on
Stephanie’s body. Based on the injuries, he determined
Stephanie had received a minimum of five blows to the head and
thirteen stab wounds to the back. The stabbing punctured her
right lung, causing it to collapse. In the opinion of the
8
examiner, Stephanie was alive at the time she suffered the
vaginal trauma and at the time she was stabbed. The cause of
death was multiple blunt force and stabbing injuries inflicted
on her head and back.
¶18 The grand jury indicted Cromwell October 16, 2001 on
one count of first degree murder, one count of sexual assault
and two counts of aggravated assault. On November 9, 2001, the
State filed a notice of intent to seek the death penalty for the
murder and on August 9, 2002, filed its notice of aggravating
factors. Trial began February 3, 2003, resulting in conviction
by the jury on all counts in the indictment.
TRIAL ISSUE
Did the Trial Court Err in Denying Cromwell’s Request for New
Counsel?
Background
¶19 On November 13, 2002, slightly more than two months
before the scheduled start of trial, Cromwell’s court-appointed
attorney, James Logan, filed a “Motion to Withdraw or in the
Alternative Motion to Determine Counsel.” The motion was filed
in response to Cromwell’s pro se request that his attorney be
removed from the case. On November 20, 2002, the trial court
held a hearing and asked Cromwell why he no longer wanted Logan
as his lawyer. Cromwell responded:
Mr. Logan and I are on differences [sic] on key points
9
of my defense. I’m in left field and he’s in right
field. He informed me about DNA information at one
point in the case and come [sic] back three months
later to find out that it was completely false.
At the – I’m not sure that I want to continue to say
what he said to me in private and in open court, and
what he has also said in court to indicate that Mr.
Logan has no intention of defending me zealously. He
has much said in court and on the record that there
would be a guilt phase during the trial and he quickly
corrected himself in front of you last time I was
here, but Mr. Logan said no uncertain terms that not
only would I be found guilty, but I will die. Those
were his exact words to me.
That’s all, your honor.
¶20 When specifically asked by the trial court regarding
what differences existed between himself and Logan, Cromwell
stated: “I’m sure he’s a great lawyer, but we don’t agree on
where to go with my defense and especially where the DNA is
concerned and one or two witnesses are concerned and specific
questions that are supposed to be answered.”
¶21 In order to explore the relationship between client
and counsel in more detail, the trial judge cleared the
courtroom, ordered the transcript portion of this part of the
hearing sealed, and continued his investigation regarding
Cromwell’s motion for new counsel. During the closed-courtroom
discussion, Cromwell informed the trial court that he and Logan
had a disagreement. He indicated four areas in which they
differed on the handling of his case.
10
¶22 First, Cromwell said the two disagreed on how to
question the State’s DNA expert. Cromwell wanted the expert
questioned in a way that would ascertain whether the DNA results
were consistent with sexual intercourse. Logan explained that
the DNA expert was not qualified to express an opinion whether
the DNA results were consistent with sexual intercourse but was
qualified and would testify concerning the presence and quality
of DNA evidence allegedly linking Cromwell to the crimes
charged.
¶23 Second, Cromwell told the trial court that he and
Logan disagreed on whether to call Ella’s friend, Kelly
Lancaster, to testify at trial. Logan acknowledged the
disagreement but stated that even under Cromwell’s approach to
the case, calling Lancaster would be a strategically unwise
maneuver.
¶24 Third, Cromwell disagreed with Logan’s discovery
efforts, specifically, his decision not to subpoena the
telephone records of Ella Speaks and his failure to obtain
Stephanie’s school records. Logan informed the trial court that
he had indeed received the relevant telephone records from the
State, but that some land-line calls could not be obtained.
Regarding Stephanie’s school records, Logan asserted this was
the first time he had heard of Cromwell’s request for those
11
records. Logan stated he would attempt to obtain them but
questioned whether he would be successful, pointing out that
they were victim records, and even if obtained, may not have
been admissible.
¶25 Finally, Cromwell asserted that he and Logan differed
on how to proceed with the defense of his case and that Logan
told him that if he were to proceed to trial, he would be found
guilty. Logan responded: “I believe I was absolutely required
to give him my opinion of the case by the Code of Ethics and to
tell him what I thought of it and give him what I thought were
potential viable alternatives to what could be a worse
situation.” Logan also stated:
Mr. Cromwell tends to reject anything that I tell him
that is not in line with his theory that he be found
not guilty and there really is no evidence against him
of any sort. He has instead vastly maintained that
there is no evidence against him. He wanted to go to
trial on the first trial setting, because there was no
evidence against him. When I point out to him
evidence that is clearly damaging evidence and clearly
evidence that would support a conviction, he becomes
upset. He becomes angry with me and I am not
assisting him.
¶26 The trial judge denied Cromwell’s motion for change of
counsel, stating:
Appellant is not entitled to counsel of choice and is
not entitled to a meaningful, that’s “meaningful,”
relationship with his attorney. I have considered all
the relevant factors. I’ll note that the quality of
counsel currently representing [Cromwell] is
excellent.
12
I’ll note that a significant amount of time has
elapsed since the alleged date of violation and since
charges were filed. I’ll note that trial is set for
January 21 of 2003 and we have some motion hearings
set for December 6th of this year. I’ll note that and
confirm what I said earlier, which is, if a new lawyer
would be put on the case now, it would lead to a
significant delay in the processing of the case, which
would be to the prejudice of [Cromwell], to the
prejudice of the victims, to the prejudice of the
State, and to the prejudice of the interests of
justice, not only in the form of resolving matters
with due speed, but also in the form of the potential
for fading memories.
Counsel and [Cromwell] have a conflict with respect to
strategy. To me, this is a conflict that will
reappear ad infinitum if a new quality lawyer is
appointed to represent [Cromwell]. So I could appoint
a new counsel, which would lead us back to exactly the
same situation that we’re in, only it would be about a
year later. In other words, to the extent that you
could characterize the disagreement between Defense
Counsel and [Cromwell] as a conflict, the new lawyer,
to the extent [he] is competent counsel, would be
confronted with exactly the same conflict.
I’ll also note that granting the motion would lead to
significant inconvenience to witnesses and victims.
Standard of Review
¶27 A trial court’s decision to deny the request for new
counsel will not be disturbed absent an abuse of discretion.
State v. Lee, 142 Ariz. 210, 220, 689 P.2d 153, 163 (1984).
Applicable Law
¶28 A criminal defendant has a Sixth Amendment right to
representation by competent counsel. U.S. Const. amend. VI; see
13
also Ariz. Const. art. 2, § 24; A.R.S. § 13-114(2) (2001); Ariz.
R. Crim. P. 6.1. A defendant is not, however, entitled to
counsel of choice or to a meaningful relationship with his or
her attorney. Morris v. Slappy, 461 U.S. 1, 13-14 (1983); State
v. Moody, 192 Ariz. 505, 507, ¶ 11, 968 P.2d 578, 580 (1998).
¶29 The presence of an irreconcilable conflict or a
completely fractured relationship between counsel and the
accused ordinarily requires the appointment of new counsel.
Conflict that is less than irreconcilable, however, is only one
factor for a court to consider in deciding whether to appoint
substitute counsel. State v. Henry, 189 Ariz. 542, 546-47, 944
P.2d 57, 61-62 (1997); State v. Bible, 175 Ariz. 549, 591, 858
P.2d 1152, 1194 (1993); State v. LaGrand, 152 Ariz. 483, 486-87,
733 P.2d 1066, 1069-70 (1987); see also Moody, 192 Ariz. at 508-
09, ¶ 21, 968 P.2d at 581-82. A single allegation of lost
confidence in counsel does not require the appointment of new
counsel, and disagreements over defense strategies do not
constitute an irreconcilable conflict. Henry, 189 Ariz. at 546-
47, 944 P.2d at 61-62; Bible, 175 Ariz. at 591, 858 P.2d at
1194.
¶30 To constitute a colorable claim, a defendant’s
allegations must go beyond personality conflicts or
disagreements with counsel over trial strategy; a defendant must
14
allege facts sufficient to support a belief that an
irreconcilable conflict exists warranting the appointment of new
counsel in order to avoid the clear prospect of an unfair trial.
See Slappy, 461 U.S. at 13-14; United States v. Hillsberg, 812
F.2d 328, 333-34 (7th Cir. 1987) (holding that denial of a
motion to substitute counsel is not reversible error when the
“defendant abruptly states that he does not trust his attorney
but gives no grounds for that distrust . . . or where defendant
and counsel have ‘personality conflicts and disagreements over
trial strategy.’”).
¶31 Thus, when considering a motion to substitute counsel,
the judge evaluates several factors designed specifically to
balance the rights and interests of the defendant against the
public interest in judicial economy, efficiency and fairness.
See Moody, 192 Ariz. at 507, ¶ 11, 968 P.2d at 580. These
include:
[W]hether an irreconcilable conflict exists between
counsel and the accused, and whether new counsel would
be confronted with the same conflict; the timing of
the motion; inconvenience to witnesses; the time
period already elapsed between the alleged offense and
trial; the proclivity of the defendant to change
counsel; and quality of counsel.
LaGrand, 152 Ariz. at 486-87, 733 P.2d at 1069-70; see also
Moody, 192 Ariz. at 507, ¶ 11, 968 P.2d at 580.
15
Analysis
¶32 Cromwell argues that he had irreconcilable differences
with Logan and claims the trial court failed to make any
meaningful inquiry into the conflict. The State responds that
the conflict between Cromwell and Logan amounted to differences
in strategy and personality and that the irreconcilable
differences asserted by Cromwell were not substantive, would not
affect the quality of representation by otherwise competent
counsel and that taking all factors into account, the
appointment of new counsel was not warranted under the
circumstances.
¶33 Additionally, Cromwell claims the trial court
improperly based its decision to deny the change of counsel on
delay caused by the state between the day of the crime until the
day the indictment was handed up, and the delay following the
indictment through discovery and trial. As noted, however, the
trial court considered all of the LaGrand factors, including the
delay, and concluded that there was insufficient basis on which
to justify a substitution of counsel. The court further
concluded that even if new counsel were appointed, Cromwell’s
assessment of the case would remain unchanged and that new
counsel, inevitably, would be confronted with the same
disagreement.
16
¶34 Further concerning the LaGrand factors, the court
found that if new counsel were appointed, the witnesses and
victims would be significantly inconvenienced by added delay and
that further delays were unwarranted because substantial time
had elapsed since the date of the murder, the filing of charges,
and the filing of the motion. The court thus concluded that
appointing a new lawyer at this stage would be to the prejudice
of all interests relevant to the timely administration of
justice.
¶35 On review, we conclude the denial of new counsel was
based on a proper balancing of relevant interests. Denial of
the motion was discretionary and we find no abuse of discretion.
There was no irreconcilable conflict between Cromwell and Logan.
The friction between them stemmed strictly from disagreement as
to their respective assessments of the facts and trial strategy.
¶36 The defense claims this case is similar to our
decision in Moody. We disagree. The Moody record was “replete
with examples of a deep and irreconcilable conflict” between the
defendant and his attorney. 192 Ariz. at 507, ¶ 13, 968 P.2d at
580. Moody accused his lawyer and the lead public defender of
being “incompetent and crazy.” Id. at 508, ¶ 16, 968 P.2d at
581. He developed an “obsessive hatred” for his attorney and
the public defender’s office and, on at least one occasion, he
17
and his attorney were “almost at blows” with one another. Id.
Moody believed his lawyers were conspiring with the prosecutor,
the court and the doctor to have him declared insane. Id.
Moreover, Moody threatened to file ethical complaints against
his lawyer and the public defender’s office. Id. at ¶ 18. None
of these is present in the instant case. Cromwell, in open
court, stated his belief that Logan was competent and there was
no expression of hatred or violence, nor was there an allegation
of conspiracy with prosecutors, the court, or the doctors to
have Cromwell declared insane. Nor is there anything in the
record before us suggesting ethical complaints against Mr.
Logan.
¶37 Cromwell’s reliance on Moody is misplaced. The facts
in the instant case do not resemble the intense acrimony and
depth of conflict found in Moody. Instead, Cromwell’s case
resembles LaGrand, Henry and Bible, in which the conflicts
“amounted to nothing more than a disagreement over appropriate
defense strategies,” Henry, 189 Ariz. at 547, 944 P.2d at 62,
and “maybe even some feelings of not getting along so well
together.” Bible, 175 Ariz. at 591, 858 P.2d at 1194. Finally,
we defer to the discretion of the trial judge who has seen and
heard the parties to the dispute. There was no abuse of
discretion by the judge in this instance inasmuch as he did
18
exactly what we expect trial judges to do: he held a hearing,
heard the statements and responses of both the defendant and
counsel, gave consideration to each, knew and applied the
LaGrand factors, and, in a reasonable exercise of discretion,
denied the defendant’s request.
SENTENCING ISSUES
A. Is the “Especially Heinous, Cruel or Depraved” Language of
A.R.S. § 13-703(F)(6) Unconstitutionally Vague?
Standard of Review
¶38 We review the validity of a statute de novo and
construe it, whenever possible, to uphold its constitutionality.
State v. Davolt, 207 Ariz. 191, 214, ¶ 99, 84 P.3d 456, 479
(2004).
Applicable Law
¶39 The Eighth and Fourteenth Amendments to the United
States Constitution require that a capital sentencing scheme
place limits on the discretion of the sentencer. See Lewis v.
Jeffers, 497 U.S. 764, 774 (1990). The scheme must “‘channel
the sentencer’s discretion by clear and objective standards that
provide specific and detailed guidance and that make rationally
reviewable the process for imposing a sentence of death.’” Id.
(quoting Godfrey v. Georgia, 446 U.S. 420, 428 (1980)); see also
Woodson v. North Carolina, 428 U.S. 280, 303 (1976).
19
Analysis
¶40 Cromwell argues that the aggravating factor
“especially heinous, cruel or depraved” as set forth in A.R.S. §
13-703(F)(6)2 is unconstitutionally vague. His contention rests
on the distinction created by the Supreme Court in Ring II that
juries, rather than judges, must find the aggravating factors
that can result in the imposition of capital punishment. Ring
v. Arizona (“Ring II”), 536 U.S. 584 (2002). He claims the
Supreme Court’s decision in Walton v. Arizona, 497 U.S. 639
(1990), overruled in part by Ring II, remains instructive
because in Walton, the Court upheld the “heinous, cruel or
depraved” aggravator, but did so only because the Arizona
sentencing scheme provided that the aggravating factors and the
ultimate sentence were to be determined by the trial judge.
Walton, 497 U.S. at 654. Using Walton as his base of reasoning,
Cromwell asserts that the saving factor of Arizona’s statute
when Walton was decided was that the trial judge, not the jury,
determined the existence or non-existence of aggravating
circumstances.
¶41 Cromwell cites Maynard v. Cartwright, 486 U.S. 356
(1988), and Godfrey, 446 U.S. 420, claiming the Supreme Court
2
We refer to the current version of A.R.S. § 13-703 which
lists the “especially heinous, cruel or depraved” language as
the (F)(6) aggravator.
20
held that statutory language substantially similar to A.R.S. §
13-703(F)(6) was unduly vague when applied in the context of
jury findings. We disagree. The holdings in both Maynard and
Godfrey were based not on the language of the sentencing
statutes, but on the inadequacy and lack of specificity in the
jury instructions. See Walton, 497 U.S. at 653-54.3 In our
recent decision in State v. Anderson, ___ Ariz. ___, ___, ¶¶
109-14, 111 P.3d 369, 394-95 (2005), the defendant advanced the
same argument. There, we said:
In Anderson’s case, the jury was instructed in detail
as to what would support a finding that the murders
were “especially heinous, cruel or depraved.” The
jury instructions, to which Anderson did not object,
gave substance to the terms “cruel” and “heinous or
depraved” in accordance with our case law narrowing
and defining those terms. Thus, this case is
distinguishable from Maynard and Godfrey in which no
limiting instructions were given . . . . [W]e
conclude that the jury instructions here were adequate
to provide a narrowed construction of the facially
vague statutory terms.
3
The Supreme Court overruled Walton in Ring II only to the
extent that juries, rather than judges, must find the existence
of aggravating factors. Ring v. Arizona, 536 U.S. 584, 588-89
(2002). The Court made no mention of the effect of a limiting
jury instruction when determining the validity of those
aggravators. In fact, the Supreme Court had previously stated
the reason for overturning the sentences in Maynard v.
Cartwright, 486 U.S. 356 (1988), and Godfrey v. Georgia, 446
U.S. 420 (1980), was because of the insufficiency of the
limiting instruction, and not the fact that juries were deciding
the existence of aggravating factors. Walton, 497 U.S. at 653-
54.
21
Id. at ¶¶ 111, 114 (footnotes omitted).4
¶42 Similarly, in the instant case, the jury instruction
on cruelty contained the essential narrowing factors and
provided the specificity and direction required by this court,
foreclosing a constitutional challenge to the (F)(6) statute.
The jury was instructed that:
Cruelty goes to mental and physical anguish suffered
by the victim. Mental anguish occurs when the victim
experiences significant uncertainty about her fate.
In order to constitute cruelty, conduct must occur
before death and while a victim is conscious. Conduct
occurring after death or while a victim is unconscious
does not constitute cruelty. Before conduct can be
found to be cruel, the State must prove that the
defendant knew or should have known that the conduct
would cause suffering to the victim.
This language does not suffer from vagueness. State v. Cañez,
202 Ariz. 133, 160, ¶ 100, 42 P.3d 564, 591 (2002); State v.
Medina, 193 Ariz. 504, 513, ¶¶ 34-35, 975 P.2d 94, 103 (1999).
¶43 As in prior decisions, we note once again that the
(F)(6) aggravator is stated in the disjunctive, indicating that
evidence of any one of the statutory prongs, “heinous,” “cruel,”
or “depraved” will support a finding that the (F)(6) aggravator
is present. Medina, 193 Ariz. at 513, ¶ 33, 975 P.2d at 103
(citing State v. Laird, 186 Ariz. 203, 208, 920 P.2d 769, 774
(1996)). Because we conclude that the jury’s cruelty finding is
4
For a full discussion of the effect of Walton on the (F)(6)
aggravator in the jury context, see State v. Anderson, ___ Ariz.
22
amply supported by the evidence, we need not address Cromwell’s
challenges to the instructions concerning heinousness or
depravity.
¶44 Cromwell also takes issue with the term “especially”
as used in (F)(6) to underscore the terms “heinous, cruel or
depraved,” arguing again that judges understand what the word
“especially” means, but that juries do not. Supreme Court case
law, however, dispels that notion because it distinguishes
constitutional statutes from unconstitutional statutes on the
basis of the clarifying definition, not on the supposition that
judges may apply the statute one way and jurors another.
Maynard, 486 U.S. at 365 (finding an instruction to the jury
limiting “especially heinous, atrocious or cruel” to some kind
of torture or serious physical abuse as constitutionally
acceptable).
¶45 The trial court properly relied on and included
language from this court’s decisions, cited above, when it
drafted the (F)(6) jury instructions. The instructions given in
the instant case provided accurate and carefully drawn guidance
for the jurors. We therefore reject Cromwell’s vagueness
argument and conclude that A.R.S. § 13-703(F)(6), on the record
before us, must be upheld as constitutional.
___, ___, ¶¶ 109-14, 111 P.3d 369, 394-95 (2005).
23
B. Are Cromwell’s Non-Capital Sentences Constitutional in
Light of Blakely v. Washington?
¶46 Cromwell does not challenge the statutes on which the
non-capital sentences are based, but rather the validity of the
sentences themselves.
¶47 The essence of his argument is that he was sentenced
unconstitutionally for the non-capital convictions in violation
of the Sixth Amendment, citing the Supreme Court’s decision in
Blakely v. Washington, 124 S. Ct. 2531 (2004).
¶48 The jury convicted Cromwell of a single count of
sexual assault, a dangerous crime against children, and for that
crime, imposed an enhanced statutory sentence of life
imprisonment without the possibility of release for thirty-five
years. See A.R.S. § 13-604.01(A) (Supp. 2001). The jury also
convicted him of two counts of aggravated assault, class three
dangerous offenses, one involving Stephanie’s mother, Ella, and
the other involving Kim Jensen. He was given sentences of ten
years’ imprisonment for each, pursuant to A.R.S. § 13-604(I)
(2001).
The Sexual Assault
¶49 Cromwell contends that his non-capital sentence for
sexual assault was unconstitutional because the trial judge took
his probationary status into account as the aggravating factor.
Although the trial court found that Cromwell was on probation
24
when he committed the offense, it did not rely on that fact.
The sentence was enhanced not on the basis of Cromwell’s status
as a probationer, but on express findings by the jury that the
victim was a child under twelve years of age and that Cromwell
was at least eighteen years of age at the time of the crime.
The trial court thus gave Cromwell the mandatory sentence on the
sexual assault charge pursuant to A.R.S. § 13-604.01(A), which
provides:
A person who is at least eighteen years of age and who
stands convicted of a dangerous crime against children
in the first degree involving sexual assault of a
minor who is twelve years of age or younger . . .
shall be sentenced to life imprisonment and is not
eligible for suspension of sentence, probation, pardon
or release from confinement . . . until the person has
served thirty-five years or the sentence is commuted.
(Emphasis added). Because the jury found all facts necessary
under the statute to impose a sentence of life imprisonment,
there is no Sixth Amendment violation.
The Aggravated Assaults
¶50 Cromwell’s sentences on the two aggravated assault
convictions also do not contravene Blakely. The jury expressly
found that Cromwell used a dangerous instrument (the pool cue)
to commit each assault. The assaults were therefore both class
three felonies. See A.R.S. § 13-1204(A)(1) & (B) (Supp. 2001).
Under A.R.S. § 13-604(I), the presumptive sentence for a class
three felony involving the use of a dangerous instrument is
25
seven and one-half years. However, the presumptive sentence may
be aggravated to a maximum of fifteen years pursuant to § 13-
702(C). That statute permits aggravation when “[t]he defendant
was previously convicted of a felony within the ten years
immediately preceding the date of the offense.” A.R.S. § 13-
702(C)(11) (Supp. 2001).
¶51 The superior court increased each aggravated assault
sentence to ten years based on two prior felony convictions in
Cromwell’s record. Prior convictions constitute an exception to
the jury requirement and need only be found by the trial judge.
Blakely, 124 S. Ct. at 2536; Apprendi v. New Jersey, 530 U.S.
466, 490 (2000). Thus, the ten-year sentences on these
convictions, being within the prescribed range, did not violate
Cromwell’s Sixth Amendment rights under Blakely.
INDEPENDENT REVIEW OF DEATH SENTENCE
¶52 This court is required by statute not only to review
all death sentences, but also to perform a separate, independent
review of each aggravating factor found by the jury and any
mitigating evidence for the purpose of determining the propriety
of the death penalty:
The supreme court shall review all death sentences.
On review, the supreme court shall independently
review the trial court’s findings of aggravation and
mitigation and the propriety of the death sentence.
26
A.R.S. § 13-703.04(A) (Supp. 2003)5.
¶53 Although Cromwell has not raised a question about the
independent review process and the propriety of the death
sentence, the statutory mandate to this court is clear:
If the supreme court determines that an error was made
regarding a finding of aggravation or mitigation, the
supreme court shall independently determine if the
mitigation the supreme court finds is sufficiently
substantial to warrant leniency in light of the
existing aggravation. If the supreme court finds that
the mitigation is not sufficiently substantial to
warrant leniency, the supreme court shall affirm the
death sentence. If the supreme court finds that the
mitigation is sufficiently substantial to warrant
leniency, the supreme court shall impose a life
sentence pursuant to § 13-703, subsection A.
A.R.S. § 13-703.04(B). This language is identical to superseded
A.R.S. § 13-703.01(B), which was applicable during the time
trial judges performed the entire sentencing function. Under
the superseded statute, we determined that in the process of
conducting this court’s independent review, “we consider the
quality and the strength [of the aggravating and mitigating
factors], not simply the number.” State v. Greene, 192 Ariz.
431, 443, ¶ 60, 967 P.2d 106, 118 (1998). Because of the
identical statutory language, our role in the independent review
process has not been altered. We therefore proceed as before.
5
A.R.S. § 13-703.01 was renumbered as § 13-703.04 in 2002.
Although the wording is unchanged, we cite to the current
version here.
27
¶54 Reviewing the capital aggravators in this case is not
complex. The jury found two in support of the death penalty:
1) that the murder was committed in an especially heinous, cruel
or depraved manner6 (A.R.S. § 13-703(F)(6)); and 2) that the
victim was under the age of fifteen years (A.R.S. § 13-
703(F)(9)). These aggravators were essentially uncontested.7
¶55 The record is replete with evidence of cruelty.
Stephanie, the eleven-year-old victim, unquestionably suffered
unspeakable mental anguish, given the medical examiner’s finding
that she was still alive at the time of the stabbing injuries
and the sexual assault. The crimes committed by Cromwell
against the child bespeak horrific cruelty. Eleven-year-old
Stephanie, given her tender age, was made to suffer pre-death
anguish by conduct indescribable except in the most repulsive
terms.
¶56 In Greene, although there was but one aggravator and
several mitigators, we concluded that the evidence of mitigation
6
The superior court in this case wisely employed the
recommended procedure and asked the jury to return separate
verdicts as to each prong of the (F)(6) aggravator. See State
v. Anderson, ___ Ariz. ___, ___, ¶ 131, 111 P.3d 369, 398 (2005)
(recommending this procedure). The jury found that each was
satisfied: the murder was heinous, the murder was cruel, and
the murder was depraved.
7
Cromwell did not dispute the way in which Stephanie was
killed, or her age. He simply maintained that he did not commit
the crime.
28
was nevertheless insufficient to warrant leniency and upheld the
death sentence. Id. at 443-44, ¶ 60, 967 P.2d at 118-19. In
reweighing the aggravators and mitigators as required by the
statute, we have uniformly focused on the quality, not the
quantity, of the factors. See, e.g., State v. Rogovich, 188
Ariz. 38, 45-46, 932 P.2d 794, 801-02 (1997) (holding that the
quality of three aggravators outweighed the value of six
mitigators and that the death penalty was appropriate).
¶57 The mitigating factors, consisting of Cromwell’s less
than adequate childhood experiences and his mental state, were
remarkably weak. Weighed against the aggravating factors, the
evidence of mitigation deserves inconsequential weight. We
conclude, therefore, that the evidence of mitigation is not
sufficiently substantial to warrant leniency.
CONSTITUTIONAL CLAIMS RAISED TO PREVENT FEDERAL PRECLUSION
¶58 1. The prosecutor’s discretion to seek the death
penalty has no standards and therefore violates the Eighth and
Fourteenth Amendments to the United States Constitution and
Article 2, Sections 1, 4, and 15 of the Arizona Constitution.
Rejected by State v. Sansing, 200 Ariz. 347, 361, ¶ 46, 26 P.3d
1118, 1132 (2001), vacated on other grounds, Ring v. Arizona,
536 U.S. 584 (2002); State v. Rossi, 146 Ariz. 359, 366, 706
P.2d 371, 378 (1985).
29
¶59 2. Arizona’s death penalty applies discriminatorily
against poor, young, and male defendants, in violation of
Article 2, Sections 1, 4, and 13 of the Arizona Constitution.
Rejected by Sansing, 200 Ariz. at 361, ¶ 46, 26 P.3d at 1132.
¶60 3. The death penalty is cruel and unusual under any
circumstance and violates the Eighth and Fourteenth Amendments
to the United States Constitution and Article 2, Section 15 of
the Arizona Constitution. Rejected by State v. Harrod, 200
Ariz. 309, 320, ¶ 59, 26 P.3d 492, 503 (2001).
¶61 4. The absence of proportionality review of death
sentences by Arizona courts denies capital defendants due
process of law and equal protection and amounts to cruel and
unusual punishment, in violation of the Fifth, Eighth, and
Fourteenth Amendments to the United States Constitution and
Article 2, Section 15 of the Arizona Constitution. Rejected by
Harrod, 200 Ariz. at 320, ¶ 65, 26 P.3d at 503; State v.
Salazar, 173 Ariz. 399, 416, 844 P.2d 566, 583 (1992).
¶62 5. Arizona’s capital sentencing scheme is
unconstitutional because it does not require that the State
prove the death penalty is appropriate, in violation of the
Fifth, Eighth and Fourteenth Amendments to the United States
Constitution and Article 2, Section 15 of the Arizona
Constitution. Rejected by State v. Ring, 200 Ariz. 267, 284, ¶
30
64, 25 P.3d 1139, 1156 (2001), rev’d on other grounds, Ring v.
Arizona, 536 U.S. 584 (2002).
¶63 6. The death penalty is cruel and unusual because it
is irrationally and arbitrarily imposed and serves no purpose
that is not adequately addressed by life in prison, in violation
of the defendant’s right to due process under the Fourteenth
Amendment to the United States Constitution and Article 2,
Sections 1 and 4 of the Arizona Constitution. Rejected by State
v. Pandeli, 200 Ariz. 365, 382, ¶ 88, 26 P.3d 1136, 1153 (2001),
vacated on other grounds, Ring v. Arizona, 536 U.S. 584 (2002);
State v. Beaty, 158 Ariz. 232, 247, 762 P.2d 519, 534 (1988).
¶64 7. Arizona’s death penalty scheme does not provide a
defendant convicted of a capital crime the opportunity to death-
qualify the sentencing judge, in violation of the Eighth and
Fourteenth Amendments to the United States Constitution and
Article 2, Section 15 of the Arizona Constitution. Rejected by
Pandeli, 200 Ariz. at 382, ¶ 89, 26 P.3d at 1153.
¶65 8. A.R.S. § 13-703 provides no objective standards
to guide the jurors in weighing the aggravating and mitigating
circumstances and therefore violates the Eighth and Fourteenth
Amendments to the United States Constitution and Article 2,
Section 15 of the Arizona Constitution. Rejected by Pandeli,
200 Ariz. at 382, ¶ 90, 26 P.3d at 1153.
31
¶66 9. A.R.S. § 13-703 does not sufficiently channel the
sentencing jurors’ discretion because the broad scope of
Arizona’s aggravating factors encompasses nearly anyone involved
in a murder, violating the Eighth and Fourteenth Amendments to
the United States Constitution and Article 2, Section 15 of the
Arizona Constitution. Rejected by Pandeli, 200 Ariz. at 382, ¶
90, 26 P.3d at 1153.
¶67 10. Execution by lethal injection is cruel and
unusual punishment. Rejected by State v. Van Adams, 194 Ariz.
408, 422, ¶ 55, 984 P.2d 16, 30 (1999).
¶68 11. A proportionality review of a death sentence is
constitutionally required. Rejected by State v. Gulbrandson,
184 Ariz. 46, 73, 906 P.2d 579, 606 (1995).
¶69 12. Arizona’s death penalty statute violates the
Eighth and Fourteenth Amendments to the United States
Constitution and Article 2, Sections 4 and 15 of the Arizona
Constitution because it does not require multiple mitigating
facts to be considered cumulatively or require the trial court
to make specific findings as to each mitigating factor.
Rejected by State v. Van Adams, 194 Ariz. at 423, ¶ 55, 984 P.2d
at 31.
¶70 13. Arizona’s death penalty statute is
constitutionally defective because it requires defendants to
32
prove that their lives should be spared. Rejected by State v.
Fulminante, 161 Ariz. 237, 258, 778 P.2d 602, 623 (1988).
CONCLUSION
¶71 For the reasons stated, we affirm all of Cromwell’s
convictions and sentences.
_______________________________________
Charles E. Jones, Justice (Retired)
CONCURRING:
_______________________________________
Ruth V. McGregor, Chief Justice
_______________________________________
Rebecca White Berch, Vice Chief Justice
_______________________________________
Michael D. Ryan, Justice
_______________________________________
Andrew D. Hurwitz, Justice
33