Legal Research AI

State v. Newell

Court: Arizona Supreme Court
Date filed: 2006-04-26
Citations: 132 P.3d 833, 212 Ariz. 389
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                       SUPREME COURT OF ARIZONA
                                En Banc

STATE OF ARIZONA,                 )               Arizona Supreme Court
                                  )               No. CR-04-0074-AP
                        Appellee, )
                                  )               Maricopa County
                 v.               )               Superior Court
                                  )               No. CR 2001-009124
STEVEN RAY NEWELL,                )
                                  )               O P I N I O N
                       Appellant. )
                                  )
__________________________________)

          Appeal from the Superior Court in Maricopa County
               The Honorable Barry C. Schneider, Judge

                             AFFIRMED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL                                     Phoenix
     By   Kent E. Cattani, Chief Counsel,
          Capital Litigation Section
          Donna J. Lam, Assistant Attorney General                          Tucson
Attorneys for the State of Arizona

SUSAN M. SHERWIN, MARICOPA COUNTY LEGAL ADVOCATE         Phoenix
     By   Ginger Jarvis, Deputy Legal Advocate
Attorneys for Steven Ray Newell
________________________________________________________________
R Y A N, Justice

                                        I

¶1          On   the   morning    of        May    23,   2001,      eight-year-old

Elizabeth Byrd left home for school.               She was wearing her school

uniform   and    carrying   a   purse   or        knapsack   with    long   straps.

Around 7:45 a.m., a neighbor saw Elizabeth walking toward school

with Steven Ray Newell following closely behind.                    Elizabeth knew
Newell      because    he   had    previously      dated    her    sister,    and    the

neighbor knew both Elizabeth and Newell.

¶2            About    an   hour    later,    a    Salt    River   Project     (“SRP”)

employee working in a field near the M.C. Cash Elementary School

came upon someone standing in an irrigation ditch.                            Based on

past experience, the employee initially thought that the person

was using something to back up the water in the ditch so he

could bathe.         As the employee approached the area, the person in

the ditch turned and looked at him for about thirty seconds and

then jumped up and ran up the bank, disappearing behind some

bushes.      The employee noticed a rolled up piece of green indoor-

outdoor carpeting in the water near where he had seen the person

standing, but he did not retrieve it.

¶3            That    afternoon,     Elizabeth’s       mother      arrived    home    to

find that Elizabeth had not returned from school.                       This did not

concern her, however, because Elizabeth routinely went directly

from school to a friend’s house, where she would stay until

around eight in the evening.                When Elizabeth did not come home

at eight, her family began to worry.                   Elizabeth’s sisters began

looking for her, which is when they learned that she had not

been   at    her     friend’s     house.      Around      eleven   in   the   evening,

because the family still had not found Elizabeth, the police

were called.




                                           - 2 -
¶4        Phoenix police responded to the family’s call.    After

the officers spoke with Elizabeth’s mother, they spoke with two

of Elizabeth’s friends.    The officers were told that Elizabeth

had not been in school that day; a missing persons report was

then called in.

¶5        The next morning, two members of the Phoenix Police

Department were dispatched to search the field near the M.C.

Cash Elementary School.   The officers discovered a child’s denim

shoe, a children’s book, a black purse or knapsack containing a

cherub magnet with the name “Elizabeth” on it, a pair of socks,

and a drawstring coin purse.    That afternoon, a detective from

the Maricopa County Sheriff’s Office discovered Elizabeth’s body

in an irrigation ditch in the field, rolled up in green indoor-

outdoor carpeting.    Shoe prints were found along the ditch near

where Elizabeth’s body was found.

¶6        Later that day, the SRP employee went to the Sheriff’s

office after seeing a news report about the investigation.     He

described the person he had seen in the irrigation ditch.     The

investigators used that description to create a composite sketch

of the suspect.      The employee was also shown a photographic

lineup, but he did not identify anyone in the lineup as the

person he had seen in the ditch.1


1
     The SRP employee was shown multiple photo-lineups over the
next two weeks, with each lineup containing a different suspect.

                               - 3 -
¶7            The      Maricopa         County       Medical       Examiner’s          Office

conducted an autopsy on Elizabeth’s body the following day.                              The

autopsy    revealed         bruising     on   the     tops    of   Elizabeth’s        hands,

wrists,    and      forearms,      which      were    consistent         with    an   injury

caused by her hands being squeezed.                        A ligature was still tied

around Elizabeth’s neck.             There were small vertical abrasions on

the    left    side    of     Elizabeth’s        neck,      consistent     with       fingers

grasping at the ligature trying to remove it.                            She had further

bruising under her chin and on her left temple, along with an

abrasion near her right eye.                   The injuries that caused these

bruises occurred before or around the time of Elizabeth’s death.

¶8            The autopsy also revealed evidence of penetration of

Elizabeth’s vulva to the hymen consistent with a sexual assault.

Elizabeth’s         vulva    was    bruised,         and    the    vaginal       tract    had

abrasions, with a tear on the left side of one of the abrasions.

One abrasion in the vaginal tract went right up to the hymen,

but the hymen itself was still intact.

¶9            The     medical      examiner      concluded        that   Elizabeth       died

from   asphyxiation          due   to    ligature      strangulation.             Once   the

ligature      had    been    tightened,       Elizabeth       likely      died    within   a

minute or two.         The medical examiner further determined that it

was likely that Elizabeth had stopped breathing before she was



He did not identify anyone in the lineups as the person he had
seen in the irrigation ditch until June 5, 2001.

                                           - 4 -
placed in the water because his examination did not reveal any

“froth or foaminess” in Elizabeth’s airways “and the lungs were

not      excessively            heavy”       from        the         presence         of       water.

Elizabeth’s stomach also contained no water.

¶10            At    the    time       of   the    autopsy,          Elizabeth’s       underwear,

along with blood, bone, and tissue samples from Elizabeth, were

collected.          These items were subsequently sent to the Department

of Public Safety (“DPS”) lab for testing.

¶11            Because          Newell      had     dated       Elizabeth’s           sister,         a

detective from the Maricopa County Sheriff’s Office contacted

Newell     on       May    27,     2001,      to     come       to     the     station         to    be

interviewed; Newell agreed.                     Newell, like the many people from

Elizabeth’s          neighborhood            who      were       interviewed               regarding

Elizabeth’s disappearance, was not a suspect at the time of the

initial    interview.             During      this       interview,          Newell      was     asked

about    the    day       of     Elizabeth’s        disappearance            and    if      he      knew

anything that might be helpful to the investigation.                                           Newell

described       what       he    did     that      day    but    made        no    incriminating

statements; at the end of the interview, the detective told him

he was free to leave.

¶12            Newell was contacted again by a Sheriff’s detective at

Elizabeth’s funeral on June 2, 2001.                         The detective went to the

funeral to find Newell because he had been told that Newell was

wearing Converse All Star shoes, the type of shoes which matched


                                                - 5 -
the shoe prints found near Elizabeth’s body.                           Newell voluntarily

went to the station and again answered questions related to his

activities around the time of Elizabeth’s disappearance.                                  During

the interview, Newell’s shoes were taken to be compared with the

footprints observed at the ditch.                    Again, Newell was permitted

to leave.       Two days later, an analyst from the Sheriff’s office

concluded that it was “highly probable” that the footprints at

the crime scene had been made by Newell’s shoes.

¶13          On    the        evening    of       June     4,    two     Maricopa         County

Sheriff’s    detectives         contacted         Newell    and       asked    if    he    would

consent to another interview.                  Newell agreed, and drove to the

station.          Shortly       after      8:00     p.m.,       the     detectives         began

questioning Newell.              The entire interrogation was videotaped.

Fewer    than     ten    minutes        into   the       interview,       the       detectives

advised    Newell       of    the   Miranda2       rights.        Newell       waived      those

rights and agreed to speak with the detectives.

¶14          The questioning began in a manner similar to the two

previous interviews, but became more accusatory after the second

hour.     The detectives told Newell that they had evidence that

proved he had committed the murder.                         Newell initially denied

having    anything       to    do   with    Elizabeth’s         death;        however,      that

changed as the interrogation continued.



2
        See Miranda v. Arizona, 384 U.S. 436 (1966).

                                            - 6 -
¶15          Eventually, Newell acknowledged that he had been with

Elizabeth in the field on the morning of her disappearance.                           He

admitted he had grabbed her and placed her between his legs

while he rubbed up against her, causing him to ejaculate.                             He

then    acknowledged     placing   her   in    the    water    in    the     ditch   by

grabbing her purse strap - which was around her neck - and her

feet.     When he saw the SRP employee, he covered Elizabeth with

the     indoor-outdoor    carpeting      and    ran   off.          Throughout       the

interrogation he maintained that Elizabeth was alive when he

placed her in the ditch and that he did not sexually abuse her.

Newell was taken to jail shortly before eleven in the morning on

June 5, 2001.

¶16          Later that day, the SRP employee was shown another

photo lineup, which included a picture of Newell; he identified

Newell as the person he had seen in the ditch on May 23, 2001.

¶17          Over the next few days, a criminalist with the DPS

crime     lab   conducted    an    analysis     on    Elizabeth’s          underwear.

During    the   analysis,   semen     was     found   inside    of     the    central

crotch area.      The criminalist then did a deoxyribonucleic acid

(“DNA”) analysis of sperm that were found.                The following week,

a DNA analysis was conducted on a blood sample from Newell to

see if it matched the DNA from the sperm found in Elizabeth’s




                                      - 7 -
underwear.          Based   on    this    analysis,       it    was    determined       that

Newell was the likely source of the sperm.3

¶18          On     June    14,    2001,       a     Maricopa    County     grand       jury

indicted Newell on three counts related to the disappearance and

death of Elizabeth Byrd:                 first degree murder, sexual conduct

with a minor, and kidnapping.                  Nearly three years later, after

an eleven-day trial, a jury found Newell guilty of all three

counts.

¶19          In the aggravation phase of the sentencing proceeding

on    the   first    degree      murder    charge,      the     jury    found   that     the

following     aggravating         circumstances        had     been    proved   beyond    a

reasonable doubt:           a previous conviction for a serious offense,

Ariz. Rev. Stat. (“A.R.S.”) § 13-703(F)(2) (Supp. 2003); the

murder      was   committed       “in     an       especially    heinous,       cruel     or

depraved manner,” § 13-703(F)(6); and at the time of the murder

the defendant was an adult and the victim “was under fifteen

years of age,” § 13-703(F)(9).                      At the penalty phase of the

sentencing proceedings, the jury heard testimony about Newell’s




3
     Newell’s DNA matched at all 14 loci.       The statistical
probability of a match for this sperm profile was “one in 860
trillion Caucasians, one in 15 quadrillion of African Americans,
and one in 730 trillion Hispanics.”



                                          - 8 -
childhood, family life, and opportunities to get help for his

substance abuse.4

¶20            The jury determined that Newell should be sentenced to

death for the first degree murder conviction.                        For the sexual

conduct    with       a    minor    and   kidnapping       convictions,     the   court

sentenced Newell to consecutive aggravated terms of twenty-seven

years and twenty-four years respectively.                     An automatic notice

of    appeal    was       filed    with   this    Court    under    Rules   26.15   and

31.2(b) of the Arizona Rules of Criminal Procedure.                            We have

jurisdiction      under       Article     6,     Section    5(3),   of   the   Arizona

Constitution and A.R.S. § 13-4031 (2001).

                                            II

¶21            Newell first claims that the trial court abused its

discretion by failing to suppress the statements he made to the

detectives during the June 4, 2001, interrogation.5                         He argues


4
     Defense Counsel refers to this phase as the “mitigation
phase” of the trial.    A capital trial is made up of a guilt
proceeding or trial, see A.R.S. § 13-703(A), (D), and if
necessary a sentencing proceeding consisting of an aggravation
phase and a penalty phase, § 13-703(B), (C) and § 13-703.01
(Supp. 2003). For purposes of consistency and clarity, we will
use, in this opinion and all future opinions, the language found
in A.R.S. § 13-703 to refer to the stages of a capital trial.
We urge counsel to conform to this convention as well when
making submissions to this Court.
5
     Newell concedes that even without these statements,
overwhelming evidence establishes his guilt. However, he argues
that the admission of the statements affected the jury’s
determination to impose the death penalty.   In particular, he
argues that the jury would not have found that the murder was

                                           - 9 -
that   these     statements     should    have     been    suppressed      for    two

reasons.       First, he asserts that the detectives violated his

right to counsel under Miranda v. Arizona, 384 U.S. 436 (1966).

Second,     he   contends      that    the      inculpatory     statements       were

involuntarily made.

                                         A

¶22         When reviewing a trial court’s determination on the

admissibility     of   a    defendant’s      statements,        this   Court     must

determine    whether   there     has     been    clear    and   manifest    error.6

State v. Jones, 203 Ariz. 1, 5, ¶ 8, 49 P.3d 273, 277 (2002)

(citing State v. Eastlack, 180 Ariz. 243, 251, 883 P.2d 999,

1007 (1994)).      A trial court’s ruling on a motion to suppress is

reviewed     solely    based     on    the      evidence    presented      at     the

suppression hearing.        State v. Spears, 184 Ariz. 277, 284, 908

P.2d 1062, 1069 (1996) (citing State v. Flower, 161 Ariz. 283,

286 n.1, 778 P.2d 1179, 1182 n.1 (1989)).




especially heinous or depraved under the A.R.S. § 13-703(F)(6)
aggravator if these statements had been excluded.
6
     This standard applies whether the Court is reviewing the
admissibility based on a violation of defendant’s right to
counsel under Miranda, see State v. Jones, 203 Ariz. 1, 4-5, ¶¶
7-8, 49 P.3d 273, 276-77 (2002), or determining whether the
confession was voluntary, see State v. Ross, 180 Ariz. 598, 603,
886 P.2d 1354, 1359 (1994). We have equated this standard with
the abuse of discretion standard.   Jones, 203 Ariz. at 5, ¶ 8,
49 P.3d at 277.

                                       - 10 -
                                              B

¶23         Newell claims that his statements must be suppressed

because    the    detectives         did    not    honor    his    requests      for   the

presence of counsel during questioning.

¶24         Miranda       held     that    the     Fifth    Amendment’s        protection

against self-incrimination, as applied to the states through the

Fourteenth Amendment, requires procedural safeguards during a

custodial interrogation.             384 U.S. at 444.             The prosecution may

not use any statement made by the defendant, whether exculpatory

or inculpatory, unless those procedural safeguards are provided.

Id.     The right to the presence of an attorney is one of the

rights of which a person subject to custodial interrogation must

be     informed    under       Miranda.           Id.       If    the    person      being

interrogated asserts the right to an attorney, all questioning

must    cease     until       an   attorney       is    present    or    the   defendant

reinitiates communication.                 Edwards v. Arizona, 451 U.S. 477,

484-85 (1981); Miranda, 384 U.S. at 474.

¶25         Before an officer must cease questioning, however, the

defendant must unambiguously request the presence of counsel.

Davis v. United States, 512 U.S. 452, 459 (1994).                                A person

subject to custodial interrogation “must articulate his desire

to have counsel present sufficiently clearly that a reasonable

police    officer       in     the    circumstances         would       understand     the

statement    to    be     a    request      for    an    attorney.”        Id.       If   a


                                           - 11 -
reasonable officer in the circumstances would have understood

only that the defendant might want an attorney, then questioning

need not cease.     Id.    Although an officer is not required to do

so, the Court in Davis recommended that a police officer suspend

interrogation    related    to    the    crime   when        a   suspect      makes    an

ambiguous or equivocal statement relating to the presence of

counsel and clarify whether the presence of an attorney indeed

has been requested.       Id. at 461.

¶26        Newell     claims      that    during       the       interrogation         he

unequivocally invoked his right to counsel several times.                             The

superior court disagreed and denied Newell’s motion to suppress

his   statements      because      it    found        that       Newell’s      alleged

invocations of his right to counsel were, at best, equivocal.

¶27        We   review     the     factual       findings         underlying      this

determination for abuse of discretion but review the court’s

legal conclusions de novo.          State v. Moody, 208 Ariz. 424, 445,

¶ 62, 94 P.3d 1119, 1140 (2004).

¶28        Although    Newell      voluntarily        went       to   the   Sheriff’s

Office,   the   procedural       protections     of    Miranda        apply    because

Newell was subject to custodial interrogation.7                       Therefore, if


7
     The State concedes that Newell was subject to custodial
interrogation, if not from the beginning of the June 4, 2001,
interview, then at least after he was told by one of the
detectives that he was not free to leave. See Miranda, 384 U.S.
at 444 (stating that custodial interrogation is “questioning
initiated by law enforcement officers after a person has

                                    - 12 -
any of Newell’s alleged requests for counsel were unambiguous,

the superior court would have been required to suppress the

statements.      We conclude, however, that Newell did not make any

unequivocal requests for counsel.

¶29           First, Newell claims that he unambiguously invoked his

right to counsel three times during a one-minute colloquy in the

interrogation’s third hour.          Newell argues that he first invoked

his right to counsel when he said, “I want to call my lawyer.”

Without   further        context,   this    statement     appears     to    be   an

unambiguous invocation of the right to counsel.

¶30           After     reviewing    the    videotaped        interrogation      and

hearing testimony from the detectives, the trial judge found

that   this    statement      was   made   while   Newell      and   one    of   the

detectives were talking over each other and it was reasonable to

believe the statement could not be clearly heard.                    Given these

circumstances, the judge found that the detective was free to

follow up to determine what Newell had said, because the request

was ambiguous.         See Davis, 512 U.S. at 461.

¶31           During    the   detective’s    attempt     to    clarify     Newell’s

initial request, Newell claims he made two further unequivocal




been . . . deprived of his freedom of action in any significant
way”).

                                     - 13 -
requests for an attorney.8            The superior court found that both of

the alleged requests were ambiguous because they occurred while

Newell and the detective were talking over each other.                                 The

court    further      found    that    one       of    the    alleged       requests   was

ambiguous because it was contradictory.                      The court held that “in

the total context of what is being exchanged, [Newell’s requests

for    an   attorney     seem]    to       me    not    at    all     clear,    and    it’s

appropriate for the detective to ask for clarification.”

¶32          We conclude that the superior court did not abuse its

discretion in making this determination.                          The entire exchange

involving       the   three    supposed         requests      for     counsel    occurred

within one minute.            During this time, Newell and the detective

were    often    speaking      simultaneously.               As   a   result,    Newell’s

requests were either not heard or heard in such a way that the

detective        reasonably      found          it     necessary         to     ask    for

clarification.        See id.     Also, some of the alleged requests were

contradictory;        therefore,       a        reasonable        officer      would   not

consider them unequivocal.             See id. at 459.                The detective was



8
     After the detective asked Newell whether he was requesting
a lawyer, Newell first responded “No,” and then said, “If I’m
getting accused right now, if I’m getting charged for it yeah, I
want my lawyer.”     The detective then further attempted to
clarify whether Newell wanted his attorney or whether he wanted
to continue talking.    Newell responded by making a statement
that sounded like “I’m willing” and something unintelligible
before stating, “If I’m going to jail, I want to talk to my
lawyer.”

                                       - 14 -
free to continue her questioning to “clarify whether or not

[Newell] actually want[ed] an attorney.”                      Id. at 461.

¶33            The detective did precisely this.                 Newell, in response

to a clarifying question, stated, “I want to talk to you.                                I

have been down here talking to you guys every time you guys come

after me.”       Once that response was received, further questioning

was entirely appropriate.

¶34            Newell next claims that approximately twenty minutes

after    the     colloquy   discussed           above    he     again   asked    for     an

attorney    by    saying,      “Can    I    have    a   lawyer?”         This    supposed

request was not asserted by Newell at the suppression hearing.

Newell’s failure to assert this alleged invocation of the right

to    counsel    normally      would       preclude     appellate       review    of    the

claim.     See State v. Tison, 129 Ariz. 526, 535, 633 P.2d 335,

344   (1981)     (stating      “[i]ssues        concerning       the    suppression     of

evidence which were not raised in the trial court are waived on

appeal”) (citing State v. Griffin, 117 Ariz. 54, 570 P.2d 1067

(1977)).       We may, however, review a suppression argument that is

raised    for    the   first    time       on   appeal    for     fundamental     error.

State v. Cañez, 202 Ariz. 133, 151, ¶ 51, 42 P.3d 564, 582

(2002).    Fundamental error is “error going to the foundation of

the case, error that takes from the defendant a right essential

to his defense, and error of such magnitude that the defendant

could    not    possibly    have      received      a    fair    trial.”        State    v.


                                           - 15 -
Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005)

(quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982

(1984)).

¶35        We conclude no fundamental error occurred with respect

to this alleged request.        A review of the videotape does not

reflect, as Newell claims, a clear invocation of the right to

counsel.   This alleged request for counsel was a barely audible,

mumbled statement made while Newell and the detective were both

talking.       It was not a sufficiently clear invocation of the

right to counsel under Miranda.        Davis, 512 U.S. at 459.

¶36        Newell finally argues that he unequivocally requested

an attorney five hours into the interrogation by saying, “That’s

it.   I want to talk to a lawyer right now.”         The superior court

found that Newell’s statement was unclear and it was reasonable

to believe that the detective did not hear a clear request for

an attorney.

¶37        A    review   of   the    videotape   supports   the   superior

court’s determination.9       It is nearly impossible to understand

Newell’s statement.      In fact, Newell’s trial counsel abandoned

this alleged invocation at the suppression hearing because he


9
     The determinations of the trial court and this Court were
profoundly aided by the fact that the interrogation was recorded
in its entirety.    It is specifically for this reason that we
have, in the past, recommended the use of videotaping during
“the entire interrogation process.”   Jones, 203 Ariz. at 7, ¶
18, 49 P.3d at 279.

                                    - 16 -
could not hear the request on the tape.               Our review of the

videotape supports the same conclusion.          Therefore, the superior

court did not abuse its discretion by finding that Newell had

not clearly invoked his right to counsel as required by Davis.

                                     C

¶38       Newell also argues that even if the statements were

not obtained in violation of Miranda, they must be suppressed as

involuntary.    He   claims   that       his   statements   were   rendered

involuntary by the length of the interrogation, the inability to

get counsel after multiple alleged requests, promises made by

the detectives, inappropriate appeals to religious beliefs, and

comments related to a woman for whom he cared deeply.

¶39       In determining whether a confession is involuntary,

the “[court] must look to the totality of the circumstances

surrounding the giving of the confession.”          State v. Montes, 136

Ariz. 491, 496, 667 P.2d 191, 196 (1983).            Then the court must

determine whether, given the totality of the circumstances, the

defendant’s will was overborne.          State v. Tapia, 159 Ariz. 284,

287-88, 767 P.2d 5, 8-9 (1988).           A confession is “prima facie

involuntary and the state must show by a preponderance of the

evidence that the confession was freely and voluntarily made.”

Montes, 136 Ariz. at 496, 667 P.2d at 196.

¶40       The superior court found, after hearing the testimony

presented at the suppression hearing and reviewing the relevant


                               - 17 -
portions of the taped confession, that “considering the totality

of the circumstances, defendant’s will was not overcome and the

statements     were   voluntary.”      “A     trial   court’s        finding     of

voluntariness     will    be   sustained     absent   clear        and    manifest

error.”   State v. Poyson, 198 Ariz. 70, 75, ¶ 10, 7 P.3d 79, 84

(2000).

¶41          Newell complains that his will was overborne by the

length of the interrogation.          The length of the interrogation

alone,    however,       is    insufficient    to     find     a         confession

involuntary.     State v. Doody, 187 Ariz. 363, 369, 930 P.2d 440,

446 (App. 1996) (stating that a thirteen hour interrogation,

without significant breaks, does not prove, by itself, that the

defendant’s will to resist confessing was overcome).                         It is

merely one factor to be taken into consideration.              See id.

¶42          The interrogation here lasted about fourteen hours,

but not all of that time involved questioning.                 The detectives

gave Newell multiple breaks to smoke and use the restroom.                      He

also spent time alone in the room writing letters and sleeping.

The videotape of the interrogation supports the trial judge’s

finding that Newell’s will was not overborne because of the

length of questioning.

¶43          Newell also claims that his confession was involuntary

because   the    detectives      repeatedly    ignored       his     unequivocal

requests for counsel.           As discussed above, we conclude that


                                    - 18 -
Newell did not make an unequivocal request for counsel.                    Even if

these requests had been unambiguous, however, they would not

necessarily      render        the    confession       involuntary;       such     a

circumstance     would    be    one   factor     to   consider    in   determining

whether Newell’s will had been overborne.                 See, e.g., People v.

Bradford, 929 P.2d 544, 566 (Cal. 1997).                  No evidence suggests

that   the     detectives’      refusal     to    honor    Newell’s       ambiguous

requests for counsel caused his will to be overborne.                       Newell

continued to deny his involvement in Elizabeth’s death for an

extended time after his claimed requests for counsel.

¶44          Newell   next      complains      that    promises    made    by    the

detectives rendered his confession involuntary.                    We have held

that a direct or implied promise, however slight, will render a

confession involuntary when it was relied upon by the defendant

in making a confession.          State v. Blakley, 204 Ariz. 429, 436, ¶

27, 65 P.3d 77, 84 (2003).            The superior court, by denying the

motion to suppress, implicitly found that there were no promises

or, if there were promises, they were not relied upon.                           In

either case, we conclude that there was no abuse of discretion.

¶45          The statements about which Newell complains relate to

suggestions by the detective that he would feel better if he

confessed.10    Newell also alleges that the detectives’ promise to


10
     The detectives told Newell throughout the interrogation
that the first step to getting help was to admit that he had

                                      - 19 -
keep   him     safe      while     in      jail     rendered          his     confession

involuntary.11    We conclude, given the context, that neither of

those comments rose to the level of a promise that prompted

Newell to confess.

¶46          Even if they were promises, however, Newell did not

rely upon them when he made his inculpatory statements.                              Almost

immediately    after     hearing    the     alleged      promises,          Newell    again

denied ever having been in the field with Elizabeth.                                  These

denials     continued      throughout        most        of     the    interrogation.

Therefore, the alleged promises did not render the confession

involuntary.

¶47          Newell also claims that one of the detectives made

references to religion, which added to the coercive nature of

the interrogation and, in addition to everything else, caused

his will to be overborne.               The statements about which Newell

complains    related     to   “get[ting]      right       with     God,”      confessing

sins, and asking for forgiveness.

¶48          Appeals     to      religion     do     not        render       confessions

involuntary     unless    they      lead    to     the        suspect’s      will     being

overborne.     See, e.g., United States v. Miller, 984 F.2d 1028,




done something wrong.    They also told Newell that confessing
would lift a heavy burden off of his shoulders.
11
     After Newell had expressed concern for his safety in jail,
the detectives merely assured Newell that he would be kept safe.

                                        - 20 -
1031-32 (9th Cir. 1993); Welch v. Butler, 835 F.2d 92, 95 (5th

Cir. 1988); Noble v. State, 892 S.W.2d 477, 483 (Ark. 1995),

overruled on other grounds by Grillot v. State, 107 S.W.3d 136

(Ark. 2003); Le v. State, 913 So. 2d 913, 933-34, ¶¶ 60-64

(Miss.      2005).          No     evidence      indicates       that       any    religious

references caused Newell’s will to be overborne.

¶49          Newell’s final complaint concerns statements relating

to someone for whom Newell cared.                      One of the detectives asked

Newell whether he would want the woman he cared for to be told

that he had been completely honest or that he was a sociopath

who was hiding things.                  He claims that these statements were

threats to get him to confess.                   Taken in context, however, none

of these statements rise to the level of a threat, nor did any

cause Newell to make incriminatory statements.                            Newell asked the

detectives     to     talk       to    this   woman    because       he    felt    that   “she

need[ed] to know” what was going on, and at one point he said

that   it    did     not    matter       what    the    detective         told    this    woman

because she was probably not going to be around anyway.                                     We

therefore conclude that these alleged threats did not render

Newell’s statements involuntary.

¶50          In      sum,        the    superior       court    did       not     abuse     its

discretion        when      it    found,       based    on     the    totality       of     the

circumstances,        that       Newell’s       will   was     not    overborne.          Even

considering, in the aggregate, all of the conduct about which


                                              - 21 -
Newell complains, at no time during the interview did Newell

capitulate and say what he thought the detectives wanted to

hear.    In fact, despite making several incriminating statements,

he    persistently        refused      to        admit     to      sexually      assaulting

Elizabeth     or    to    tying       the        purse     strap     around      her    neck.

Accordingly,       the    totality         of    the     circumstances      supports        the

superior     court’s      conclusion            that      Newell’s     statements           were

voluntarily       made.        Thus,       Newell’s       argument       that    the    death

sentence must be reversed fails on these grounds.

                                                III

¶51          Newell next challenges the State’s peremptory strike

of prospective juror 34, the only remaining African-American on

the venire panel,12 under Batson v. Kentucky, 476 U.S. 79 (1986).

Batson     held    that    using       a    peremptory          strike    to     exclude       a

potential juror solely on the basis of race violates the Equal

Protection    Clause      of    the    Fourteenth          Amendment.           Id.    at   89.

Newell claims that the superior court’s denial of his Batson

challenge was clearly erroneous and, as a result, reversible

error.

¶52          A denial of a Batson challenge will not be reversed

unless clearly erroneous.              Miller-El v. Cockrell, 537 U.S. 322,

340 (2003); State v. Cruz, 175 Ariz. 395, 398, 857 P.2d 1249,


12
     The only other African-American on the jury panel who had
completed the questionnaire was excused for hardship reasons.

                                           - 22 -
1252 (1993).         “We review de novo the trial court’s application

of the law.”         State v. Lucas, 199 Ariz. 366, 368, ¶ 6, 18 P.3d

160, 162 (App. 2001).

¶53           A    Batson    challenge        involves     a    three-step          analysis.

First, the defendant must make a prima facie showing that the

strike was racially discriminatory.                  If such a showing is made,

the   burden      then    switches     to     the   prosecutor        to    give     a   race-

neutral explanation for the strike.                  Finally, if the prosecution

offers a facially neutral basis for the strike, the trial court

must determine whether “the defendant has established purposeful

discrimination.”            Batson, 476 U.S. at 93-94, 97-98; see also

Cañez, 202 Ariz. at 146, ¶ 22, 42 P.3d at 577.

¶54           The first step of the Batson analysis is complete when

the   trial       court    requests      an   explanation        for       the   peremptory

strike.   State v. Trostle, 191 Ariz. 4, 12, 951 P.2d 869, 877

(1997).        Here,      the    trial      court   made       that       request     of   the

prosecutor; therefore, the burden shifted to the prosecutor to

give a race-neutral basis for the peremptory strike.                             Purkett v.

Elem,   514       U.S.    765,   768   (1995);      Batson,     476       U.S.   at      97-98.

“Unless a discriminatory intent is inherent in the prosecutor=s

explanation,”        this    burden      is   satisfied        by     a    facially      valid

explanation for the peremptory strike.                     Hernandez v. New York,

500 U.S. 352, 360 (1991) (plurality opinion).                         To pass step two,

the explanation need not be “persuasive, or even plausible.”


                                          - 23 -
Purkett, 514 U.S. at 767-68.               “It is not until the third step

that      the    persuasiveness           of      the     justification      becomes

relevant . . . .”        Id.    at       768.      In   determining      whether    the

defendant has proven purposeful discrimination, “implausible or

fantastic justifications may (and probably will) be found to be

pretext[ual].”        Id.; see also Miller-El, 537 U.S. at 338-39.

This third step is fact intensive and will turn on issues of

credibility, which the trial court is in a better position to

assess than is this Court.                See Miller-El, 537 U.S. at 339-40.

Therefore, the trial court’s finding at this step is due much

deference.      Id. at 340.

¶55          When   asked     for    an        explanation   of    the    peremptory

strike, the State stated that it struck the juror because of her

answers relating to the imposition of the death penalty, both in

her    questionnaire     and        in    individual       voir    dire.     On     the

questionnaire, she stated that she would not be able to vote for

the death penalty.       Also, during individual voir dire, she told

the prosecutor that she would “more than likely not” be able to

vote for the death penalty.               In response to questions asked by

defense    counsel,    however,      the       juror    answered   that    she    could

consider voting for the death penalty if the court instructed

that it needed to be considered.                 The prosecution then asked the

juror follow-up questions.               In her answers to those questions,

she confirmed that her views on the death penalty would not


                                         - 24 -
substantially        impair       her     ability        to    follow     the        court’s

instructions and that she could vote for the death penalty.

¶56           The trial judge then questioned the juror.                       When asked

whether she would give a life sentence rather than impose the

death penalty if the defendant did not present any evidence of

mitigation,        she    responded     in    the    affirmative.         Because       this

answer contradicted her statements to defense counsel - that she

could impose the death penalty - the judge said, “I’m confused

then    under      what    circumstances           you   would     impose      the     death

penalty.”       The juror answered, “I’m not sure, actually.                         Depends

on what’s presented.”              After further explanation of the legal

standard related to mitigation, the juror acknowledged that she

had    not   understood      the    court’s        question      and    that   she    could

“[a]bsolutely” impose the death penalty when the defendant did

not introduce any mitigating evidence.

¶57           After this exchange, the prosecutor stated that he did

not believe he had “grounds to strike her for cause.”                                But he

subsequently used one of his peremptory strikes to strike the

juror from the list of potential jurors.

¶58           The prosecutor’s reason for striking the juror, which

involved the juror’s contradictory responses about whether she

could vote to impose the death penalty, satisfied step two of

Batson because it was facially race-neutral.                           See Miller-El v.

Dretke,      ___   U.S.    ___,    ___,      125    S.   Ct.   2317,    2329-30       (2005)


                                          - 25 -
(discussing       the       fact    that    inconsistent           responses           may       be    a

reasonable       race-neutral         explanation        for       a    peremptory          strike,

unless it is undercut by other evidence); Puckett v. State, 788

So.   2d   752,     761     (Miss.     2001).        Moreover,              Newell    offered         no

evidence,       other     than     inference,      to    show          that    the     peremptory

strike was a result of purposeful racial discrimination.                                          See

Purkett, 514 U.S. at 768 (holding that the “opponent of the

strike” carries the ultimate burden of persuasion in a Batson

challenge).            We     find     no    error       in    the           superior        court’s

determination that the State’s peremptory strike did not violate

Batson.

                                              IV

¶59             Newell      contends       that    the    trial             court     abused      its

discretion when it denied his motion for a mistrial.                                         Newell

argues that statements made by the prosecutor during closing

arguments constituted prosecutorial misconduct and warranted a

mistrial        because      they     improperly         vouched            for      the     State’s

evidence and impugned the integrity of defense counsel.

                                              A

¶60             To determine if a prosecutor’s comments constituted

misconduct       that       warrants    a    mistrial,         a       trial        court    should

consider two factors:                (1) whether the prosecutor’s statements

called     to    the     jury’s      attention      matters            it    should        not    have

considered in reaching its decision and (2) the probability that


                                            - 26 -
the jurors were in fact influenced by the remarks.                 State v.

Atwood, 171 Ariz. 576, 611, 832 P.2d 593, 628 (1992) (quoting

State v. Hansen, 156 Ariz. 291, 296-97, 751 P.2d 951, 956-57

(1988)), disapproved on other grounds by State v. Nordstrom, 200

Ariz. 229, 241, ¶ 25, 25 P.3d 717, 729 (2001).                 The defendant

must show that the offending statements, in the context of the

entire proceeding, “so infected the trial with unfairness as to

make the resulting conviction a denial of due process.”                State

v. Hughes, 193 Ariz. 72, 79, ¶ 26, 969 P.2d 1184, 1191 (1998)

(internal quotation omitted).

¶61          Because the trial court is in the best position to

determine the effect of a prosecutor’s comments on a jury, we

will   not   disturb   a   trial   court’s   denial   of   a   mistrial   for

prosecutorial misconduct in the absence of a clear abuse of

discretion.     State v. Lee, 189 Ariz. 608, 616, 944 P.2d 1222,

1230 (1997) (citing State v. White, 160 Ariz. 24, 33-34, 770

P.2d 328, 337-38 (1989)); Hansen, 156 Ariz. at 297, 751 P.2d at

957 (citing State v. Robles, 135 Ariz. 92, 94, 659 P.2d 645, 647

(1983)).     To warrant reversal, the prosecutorial misconduct must

be “‘so pronounced and persistent that it permeates the entire

atmosphere of the trial.’”         Lee, 189 Ariz. at 616, 944 P.2d at

1230 (quoting Atwood, 171 Ariz. at 611, 832 P.2d at 628).



                                      B


                                   - 27 -
¶62          Newell      first    claims    that       the     prosecutor       improperly

vouched for the strength of the State’s case when he commented,

in rebuttal closing argument, that there were “3,000 pages of

police    reports”       and    that    “[n]ot    every        witness      was      called.”

Prosecutorial       vouching       takes    two        forms:        “(1)      where      the

prosecutor      places    the    prestige    of        the    government       behind    its

[evidence]       [and]     (2)     where    the        prosecutor        suggests        that

information not presented to the jury supports the [evidence].”

State v. Vincent, 159 Ariz. 418, 423, 768 P.2d 150, 155 (1989).

Newell    argues      that     these     statements          fall    into      the     second

category.       We disagree.

¶63          The prosecutor’s statements were not meant to bolster

the State’s case.            Rather, they were an attempt to explain to

the jury, in response to statements made in Newell’s closing

argument, why certain witnesses had not been called to testify.

The   prosecutor’s       response       merely    explained         to   the      jury   that

there were simply too many documents and witnesses for either

side to be able to present them all.                         The prosecutor did not

imply    that    these    police       reports    and    witnesses       supported       the

State’s case.         Therefore, the trial court did not abuse its

discretion by denying the motion for a mistrial on this basis.

¶64          The      second       ground        for         Newell’s       prosecutorial

misconduct claim relates to the prosecutor’s statements, also

made during rebuttal closing argument, about the superiority of


                                         - 28 -
DNA evidence.        First, the prosecutor said, “[N]o matter what

defense counsel tells you, we all know that DNA is . . . the

most    powerful    investigative              tool      in     law    enforcement        at    this

time.”    He then went further, after defense counsel’s objection

to the first statement was overruled, by telling the jury that

defense    counsel       knew    this          was       true.         The   court       sustained

Newell’s objection to this latter statement.                              Newell argues that

these    statements      required          a       mistrial      because     they    improperly

vouched for the State’s evidence and impugned the integrity of

defense counsel.

¶65         We     agree    that       both          comments         were   improper.           The

prosecutor’s      statement        about           the   superiority         of    DNA    evidence

improperly vouched for the State’s evidence.                                 No opinions had

been    elicited    about       the    preeminence               of    DNA   evidence.           The

prosecutor’s       comment      here           -    that       everyone      knows       that    DNA

evidence is the best investigative tool around – did improperly

vouch for the strength of the State’s evidence against Newell.

Cf.    Vincent,    159     Ariz.      at       423,      768    P.2d    at   155     (prosecutor

improperly vouches by suggesting that evidence not presented to

the jury supports the presented evidence).

¶66         The prosecutor also improperly commented about what

defense counsel knew about the strength of DNA evidence.                                         We

have    previously       stated       that          it   is     improper      to     impugn      the

integrity or honesty of opposing counsel.                             See Hughes, 193 Ariz.


                                               - 29 -
at 86, ¶ 59, 969 P.2d at 1198.                  The prosecutor, by stating that

defense        counsel     knew    that       DNA      evidence         is    a   compelling

investigative tool, was insinuating, if not directly stating,

that     any     argument    made       to     the     contrary         was   disingenuous.

Because defense counsel, in his closing argument, had questioned

whether the DNA evidence proved anything beyond a reasonable

doubt,     the     prosecutor’s         response       in     claiming        that    defense

counsel knew that DNA was superior evidence called into question

the integrity of defense counsel.

¶67            Such    improper        comments       by    the    prosecutor        will   not

require reversal of a defendant’s conviction, however, unless it

is    shown     that     there    is    a    “reasonable          likelihood”        that   the

“misconduct could have affected the jury’s verdict.”                                  Atwood,

171 Ariz. at 606, 832 P.2d at 623.                     Also, any improper comments

must be so serious that they affected the defendant’s right to a

fair trial.           State v. Dumaine, 162 Ariz. 392, 403, 783 P.2d

1184,    1195     (1989).         Although      we     find       the    comments     of    the

prosecutor improper, for several reasons we conclude that the

defendant was not convicted on the basis of those comments and

they did not deny him a fair trial.

¶68            First, as a part of the standard jury instructions,

the superior court instructed the jury that anything said in

closing arguments was not evidence.                        We presume that the jurors




                                             - 30 -
followed the court’s instructions.                  See State v. Ramirez, 178

Ariz. 116, 127, 871 P.2d 237, 248 (1994).

¶69           Moreover, defense counsel’s objection to the statement

impugning     his    honesty       was   sustained.        We    have    said,      “when

counsel’s personal beliefs are unfairly attacked, ‘[t]he proper

remedy for such a serious error . . . is objection, motion to

strike, and an instruction . . . that the jury should disregard

the improper comment.’”             Vincent, 159 Ariz. at 424, 768 P.2d at

156 (alterations in original) (quoting State v. Woods, 141 Ariz.

446,   455,    681    P.2d     1201,     1210     (1984)).       Although      no     jury

instruction immediately followed the sustained objection, the

court did instruct the jury at the end of the trial that any

sustained      objection       meant      that     the    information          must     be

disregarded.          Again,       because   we    presume      jurors    follow      the

court’s instructions, see Ramirez, 178 Ariz. at 127, 871 P.2d at

248, we conclude that this comment also did not affect the jury

verdict.

¶70           Finally,       the     trial      court     determined       that        the

statements about which Newell complains were not so prejudicial

that they required a mistrial.                  When considered in the context

of the entire trial, we agree that the overwhelming evidence of

guilt influenced the jury to convict Newell rather than the

prosecutor’s        statements      about    the    DNA   evidence       and    defense

counsel.      Moreover, as noted above, see supra note 5, Newell


                                         - 31 -
concedes     the    evidence     overwhelmingly       establishes        his    guilt.

Therefore, despite the fact that these comments were improper,

they were not so prejudicial as to deprive Newell of his right

to a fair trial.

                                          V

¶71          Next, Newell claims that the trial court’s failure to

preclude the rebuttal testimony of his adult probation officer

at the penalty phase of the sentencing proceeding was an abuse

of    discretion.       The    testimony      about   which      Newell      complains

referred to the opportunities Newell was offered to get help for

his   drug   problem.         Newell   contends    that    he    did     not    present

evidence of his inability to get help for his drug problem as a

mitigating factor; consequently, the State was not entitled to

present evidence in rebuttal that Newell had had opportunities

to get help.

¶72          The    trial      court     determined       that     the       probation

officer’s testimony was admissible to rebut Newell’s statements

made during the course of the interrogation about needing and

being unable to get help for his drug problem.                    The trial judge

believed     that   because     the    jurors   had   heard      these    statements

during the guilt phase, they could possibly rely on them when

deciding whether Newell deserved leniency.                 Therefore, the court

concluded    that    this     was   “appropriate      grist     for    the     rebuttal

mill.”


                                       - 32 -
¶73            We review a trial court’s ruling on the admissibility

of evidence for abuse of discretion.                            State v. Aguilar, 209

Ariz. 40, 49, ¶ 29, 97 P.3d 865, 874 (2004).                                   We will review

“purely legal issues de novo.”                      Moody, 208 Ariz. at 445, ¶ 62,

94 P.3d at 1140.

¶74            Newell’s objection to the testimony of the probation

officer    implicates              two    subsections          of       A.R.S.       §     13-703.

Subsection (G) permits a jury to consider any factors that are

offered    -        no     matter     who      offers      them     -    when        considering

mitigation.          § 13-703(G).              Subsection (D) provides that any

evidence       admitted       during        the    guilt      phase      of    the       trial    is

admitted   for           purposes    of     the    sentencing       proceeding.             §    13-

703(D).

¶75            Newell       claims        that      the    State’s        presentation            of

evidence to rebut statements he made during his interrogation

amounted       to    “an     end-run      around”       his    choice         not    to    present

evidence of his alleged inability to obtain treatment for his

drug    addiction.            We    disagree        with   this       contention          for    two

reasons.       First, Newell himself put forth evidence during the

guilt and penalty phases of the trial related to his drug use

and his desire for help to overcome it.                           In the guilt phase, on

cross-examination            of     one   of      the   detectives,           Newell      elicited

evidence of his struggle with drug addiction and his attempts to

get    help.        In     the     penalty     phase,      witnesses          testified     about


                                             - 33 -
Newell’s exposure to drugs at an early age, including the fact

that his stepfather used drugs with Newell when he was only in

seventh    grade.         Newell      also   mentioned     his    long    history    of

substance       abuse     in    his    allocution.          Second,       during    his

interrogation, Newell referred numerous times to his inability

to obtain help for his drug problem.                     For instance, he spoke

about wanting to live without drugs and about asking for help

when he got out of jail; he stated that no one helped him when

he asked for help; and he told the detectives that people with

problems like his should receive help.

¶76            The evidence presented during the guilt phase of the

trial     was    deemed    admitted      for     purposes    of     the     sentencing

proceeding because the same jury that determined Newell’s guilt

also    decided     whether     he     should    receive    the     death     penalty.

A.R.S.     §    13-703(D).           Therefore,      although      Newell    did    not

expressly offer as a mitigating factor his alleged inability to

get treatment for his drug addiction, the jury still could have

factored his complaints on this topic, along with the other

evidence presented during the penalty phase about Newell’s drug

use,     into     its     consideration         of     whether     the      mitigating

circumstances       were       “sufficiently         substantial     to     call    for

leniency.”      A.R.S. § 13-703(E), (G).




                                        - 34 -
¶77            Thus, the trial court’s determination that the State

could     present      testimony     from    Newell’s     probation    officer     in

rebuttal was not an abuse of discretion.

                                            VI

¶78            Finally, Newell contends that the trial court abused

its discretion by precluding the testimony of his mental health

expert    at    the    penalty      phase   as    a   sanction   for   refusing    to

undergo a court-ordered examination by the State’s mental health

expert.     Newell also argues that requiring him to submit to a

mental health examination by the State’s expert violates his

privilege against self-incrimination.

¶79            Newell acknowledges that we have previously held that

once a defendant puts his mental heath in issue, “during the

penalty phase of a capital trial,” a trial court may order the

defendant      to    submit    to   a    mental   examination     by   the   State’s

expert.     Phillips v. Araneta, 208 Ariz. 280, 283, ¶ 9, 93 P.3d

480, 483 (2004).            As long as the order assures the defendant

specific protections, we held that this may be done without

running     afoul      of     the   defendant’s       privilege    against    self-

incrimination.         Id. at 284, ¶ 14, 93 P.3d at 484.                We further

held that if the defendant refuses to submit to a court-ordered

examination, the trial court may, as a sanction, preclude a

defendant’s         mental-health       related   mitigation     evidence    at   the

penalty phase.         Id. at 285, ¶ 16, 93 P.3d at 485.


                                         - 35 -
¶80              Newell presents no arguments that would compel us to

revisit our decision in Phillips.                        Therefore, the superior court

did not err when it precluded the testimony of Newell’s mental

health expert.

                                                 VII

¶81              Because Elizabeth’s murder occurred before August 1,

2002,       we    must       independently        review      the    jury’s       findings       on

“aggravation           and     mitigation        and    the   propriety          of    the    death

sentence.”         A.R.S. § 13-703.04 (Supp. 2003); see also 2002 Ariz.

Sess. Laws, 5th Spec. Sess., Ch. 1, § 7(B) (eff. Aug. 1, 2002).

In    our    review,          if   we    “determine[]         that   an     error       was    made

regarding         a     finding         of     aggravation      .      .    .,        [we]    shall

independently determine if the mitigation . . . is sufficiently

substantial            to    warrant         leniency    in    light       of    the     existing

aggravation.”               A.R.S. § 13-703.04(B).             If we “find[] that the

mitigation        is        sufficiently        substantial     to     warrant         leniency,”

then we must impose a life sentence.                           Id.         Otherwise, we are

required to affirm the death sentence.                        Id.

¶82              In conducting our independent review we do not merely

consider         the    quantity        of     aggravating     and     mitigating            factors

which were proven, but we look to the quality and strength of

those factors.               State v. Greene, 192 Ariz. 431, 443, ¶ 60, 967

P.2d 106, 118 (1998) (citing State v. McKinney, 185 Ariz. 567,

578, 917 P.2d 1214, 1225 (1996)).                          We do not require that a


                                                - 36 -
nexus   between          the    mitigating     factors       and    the    crime    be

established before we consider the mitigation evidence.                            See

Tennard v. Dretke, 542 U.S. 274, 287 (2004).                   But the failure to

establish     such       a     causal   connection     may    be     considered     in

assessing the quality and strength of the mitigation evidence.

See State v. Anderson, 210 Ariz. 327, 350, ¶¶ 96-97, 111 P.3d

369, 392 (2005).          Finally, “[w]e do not defer to the findings or

decision     of     the        jury,”   with   respect       to    aggravation      or

mitigation,       when       “determin[ing]    the    propriety      of   the    death

sentence.”        State v. Roseberry, 210 Ariz. 360, 374, ¶ 77, 111

P.3d 402, 416 (2005).

¶83          Undisputed         evidence   supports    the    (F)(2)      and   (F)(9)

aggravating       circumstances.           Newell’s      prior      conviction     for

attempted kidnapping established that he had a serious prior

felony conviction.13             A.R.S. § 13-703(F)(2).            Moreover, Newell

was an adult at the time of the murder and Elizabeth was eight

years old.    A.R.S. § 13-703(F)(9).

¶84          An aggravating circumstance is also established when

murder is committed in an especially cruel, heinous or depraved


13
     Under A.R.S. § 13-703(H)(10), kidnapping is a “serious
offense.” The (F)(2) aggravator is established by proof beyond
a reasonable doubt of a prior conviction for a serious offense,
“whether preparatory or completed.”       A.R.S. § 13-703(F)(2)
(emphasis added).    Therefore, because attempt is considered a
preparatory offense, A.R.S. § 13-1001 (2001), a conviction for
attempted kidnapping establishes the (F)(2) aggravator.



                                        - 37 -
manner.       A.R.S. § 13-703(F)(6).      The cruelty prong of the (F)(6)

aggravator focuses on the suffering of the victim, while the

heinousness and depravity prongs focus on the state of mind of

the defendant.         State v. Clark, 126 Ariz. 428, 436, 616 P.2d

888, 896 (1980).        A determination that the (F)(6) aggravator has

been proven can be based on any or all of these prongs, because

they are in the disjunctive.            See State v. Gretzler, 135 Ariz.

42, 51, 659 P.2d 1, 10 (1983) (quoting Clark, 126 Ariz. at 436,

616 P.2d at 896); see also Anderson, 210 Ariz. at 355-56, ¶ 128,

111 P.3d at 397-98.14

¶85            Here, substantial evidence supports the cruelty prong

of    the    (F)(6)   aggravator.       Cruelty   requires    proof   that     the

victim “consciously experienced physical or mental pain prior to

death and the defendant knew or should have known that suffering

would       occur.”    Trostle,   191    Ariz.    at   18,   951   P.2d   at   883

(citation omitted).       The evidence – bruising that occurred at or

14
     We note that the jury verdict form in this case did not
require the jury to specify upon which prong, or prongs, its
determination with respect to the (F)(6) factor rested. “It is
therefore possible the jury was not unanimous as to which prong
satisfied the (F)(6) aggravator.” Anderson, 210 Ariz. at 355, ¶
126, 111 P.3d at 397. However, Newell, unlike the defendant in
Anderson, did not raise a claim that he was denied a unanimous
verdict on the (F)(6) aggravator. We therefore do not consider
that issue.   For purposes of our independent review, however,
Newell’s failure to raise any further grounds upon which the
jury’s finding with respect to this aggravator can be overturned
does not affect our ultimate conclusion.     Even if we were to
ignore the (F)(6) aggravator, the strength and quality of the
(F)(2) and (F)(9) aggravating circumstances alone would support
the imposition of the death penalty.

                                    - 38 -
near the time of death consistent with grasping of Elizabeth’s

arms,    sexual      assault-related          bruises      and    injuries,        testimony

that it normally takes two minutes for death by asphyxiation to

occur, and marks showing that Elizabeth was grasping at the

ligature    -     all     support     the    conclusion      that      this   murder    was

especially      cruel.          Elizabeth        suffered    serious      physical       and

mental anguish before she died.                    Newell should have known that

such suffering would occur.                   Because we find that compelling

evidence supports a finding of cruelty, we need not examine

whether     the      evidence       also     establishes         the    heinousness       or

depravity prongs of (F)(6).                 State v. Djerf, 191 Ariz. 583, 595,

¶ 44, 959 P.2d 1274, 1286 (1998) (noting that “a finding of

either     cruelty         or      heinousness/depravity           will       suffice     to

establish” the (F)(6) factor).

¶86          The bulk of Newell’s mitigation evidence related to

his     unstable      childhood       and     drug    use.        Newell’s         witnesses

testified that during childhood his home life was unstable.                              In

addition,       as    a    child    he     was    exposed    to     people     with     drug

addictions      who       engaged    in     drug-related     activities.             Several

witnesses testified that Newell had been sexually and physically

abused during his childhood.                  Finally, by all accounts, Newell

had an extended history of drug use.

¶87          We conclude that Newell’s mitigation evidence is not

sufficiently         substantial      to    call     for   leniency.          No    evidence


                                            - 39 -
explains how Newell’s drug addiction and unstable childhood led

to the sexual assault and murder of eight-year-old Elizabeth.

See Anderson, 210 Ariz. at 357, ¶¶ 135-37, 111 P.3d at 399.

Moreover, in view of the compelling aggravating circumstances,

the mitigation evidence simply fails to rise to a level that

would call for leniency.

                              VIII

¶88       For the above reasons, we affirm Newell’s convictions

and sentences.

                              __________________________________
                              Michael D. Ryan, Justice


CONCURRING:


_________________________________________
Ruth V. McGregor, Chief Justice


_________________________________________
Rebecca White Berch, Vice Chief Justice


_________________________________________
Andrew D. Hurwitz, Justice


_________________________________________
W. Scott Bales, Justice




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