State v. Speer

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-07-0103-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2002-010926
PAUL BRADLEY SPEER, )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Andrew G. Klein, Judge

AFFIRMED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Capital Litigation Section
John Pressley Todd, Assistant Attorney General
Attorneys for State of Arizona

DROBAN & COMPANY, P.C. Anthem
By Kerrie M. Droban
Attorneys for Paul Bradley Speer
________________________________________________________________

H U R W I T Z, Vice Chief Justice

¶1 Paul Bradley Speer was convicted of first degree

murder and sentenced to death. This is an automatic appeal

pursuant to Arizona Rule of Criminal Procedure 31.2. This Court

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

Constitution, and A.R.S. §§ 13-755, 13-4031, and 13-4033 (2001 &

Supp. 2008).
 I.

Background Facts and Proceedings Below

A.

The Burglary

¶2 On March 14, 2002, Speer and his half-brother Chris

Womble broke into an apartment on West Glenrosa Avenue in

Phoenix.1 Adan and Enriqueta Soto lived there with their three

children. No one was at home during the break-in, but a

neighbor saw two men trying to open an apartment window and

called the police.

¶3 Shortly after the neighbor’s call, two men were seen

walking toward a nearby apartment complex. Residents of that

complex directed police to the apartment of Sabrina and Bill

Womble, Speer’s mother and stepfather. Speer was found beneath

a couch; Chris was found in a closet. After the two were

arrested, the officers searched the apartment and found items

belonging to the Sotos.

B.

The Plot

¶4 Speer was held at the Madison Street jail and made

telephone calls to family and friends while in custody. The

1
We view the facts in the light most favorable to sustaining
the jury’s guilty verdict. See State v. Garza, 216 Ariz. 56, 61
n.1, 163 P.3d 1006, 1011 n.1 (2007).

2
Maricopa County Sheriff’s Office (“MCSO”) recorded outgoing

prisoner phone calls. Most of Speer’s calls were to Al

Heitzman, with whom Speer’s half-brother Brian Womble lived. Al

or Brian would occasionally then make three-way calls to others.

¶5 On March 18, Speer asked Al to post his $7,000 bond,

stating that he could not win his case unless he could talk to

the victims and convince them not to testify. On April 28,

Speer told Al about a plea offer of 6.5 to 13 years

imprisonment. Al connected Bill Womble to the call; Speer asked

if Bill’s brother would be willing to post bond.

¶6 Speer called again on April 29, asking Brian to sell

his two handguns to raise the bond money. Brian responded that

he needed the guns to commit suicide. Speer said that Brian’s

problems were minor compared to Speer’s. Speer also said that

instead of accepting a plea offer he wanted to convince the

witnesses not to testify.

¶7 After Brian said he did not have the money for bond,

Speer asked, do “you think you can . . . handle some shit for

me?” Brian responded that he “probably could” but “if I do

that, I’ll be dead too.” Speer suggested that Brian offer the

victims his .357 handgun as an inducement to not testify. Speer

called again and told Brian that if the witnesses testified, he

would get the maximum sentence.

3
¶8 On April 30, Brian told Speer that he would retrieve

his guns from Al’s safe deposit box. Speer told Brian to tell

the victims that Speer was not involved. Brian said that he

instead would employ “Plan B.” Brian later asked Speer if he

should talk to the victims or do his other plan. Answering his

own question, Brian said he was going to do his other plan.

Speer replied, “Okay. Yeah, yeah. Go ahead.”

¶9 On May 5, Speer spoke with Brian and Al at length.

Initially, Speer tried to pressure Al into posting the bond

money by warning that Brian might do something violent. Al,

however, refused, and Speer replied that he and Brian would have

“to go to Plan B.”

¶10 On May 13, Speer called Brian to talk about “Plan B”

and told him to “make sure you take care of everybody in that

house. . . . there’s only like two.” Brian said he needed a

silencer. Speer reiterated that Brian could do the job alone,

as there were only “two people in there.” Speer again reminded

Brian that “everything in there has to go.”

¶11 On May 17, Brian proposed that he break into the

apartment and wait for the Sotos to come home. Speer suggested

instead that Brian pose as a police officer who needed to take

photos for the upcoming trial. Brian again told Speer that he

had retrieved his guns; Speer said, “make sure you talk to both

4
people.” Brian said that he had been to the complex and staked

it out. Speer said, “Handle business fool, alright?”

¶12 On May 19, Speer called Brian again. They referred to

a “surprise birthday party,” and Speer said it would be a waste

of a party if Brian did not get both people. Brian told Speer

that he now had a silencer and described the effect his gun

would have on the Sotos.

¶13 On May 24, Al told Speer that Brian was severely

depressed. Speer then asked Brian, “Is it pretty sure you’re

going to . . . you’ll be able to get it running tonight?” Speer

also told him to make sure to throw away the evidence. Speer

again asked Brian, “I don’t have nothing to worry about, about

you getting the car together, right?”

¶14 Speer and Brian then called Bill Womble and asked if

anyone had talked to Sabrina about the burglary trial. Speer

reiterated to Bill that Sabrina was on medication at the time

and therefore should not remember anything. Speer later asked

Brian whether the “car window” was down when he checked it.

Brian replied that “there’s always a . . . way for . . . water

to squeeze in.” Speer urged that the plan be executed that

night.

5
 C.

The Murder

¶15 On May 25, 2002, at 3:00 a.m., the Sotos returned home

from a party. At approximately 5:00 a.m., Enriqueta placed a

911 call. When EMTs arrived, they found Enriqueta on the living

room couch; she had been shot, but her wounds were not fatal.

An EMT found Adan lying in bed with his arm around an infant.

Adan was dead from a gunshot wound; the infant was unharmed.

¶16 When police arrived, they found the screen for the

front window to the apartment removed. Brian’s palm prints were

later identified on the screen.

D.

The Aftermath

¶17 On the day after the murder, Speer called Brian and

asked him if he got “the car running” and fixed “both parts.”

Brian said, “Yep, perfect.” Speer told Brian that he should

leave for Nevada and that he needed to “get rid of those [engine

parts] cause I don’t want the . . . grease getting all over

. . . my room.” Speer and Brian called Bill; Speer told Bill

that he could be out of jail in four months and that Bill had

raised some “rioters.”

¶18 Speer called Sabrina the next day. Speer told her

that anything Brian had said was the result of drugs. Sabrina

said that the Sotos had been murdered. Speer tried to quiet her

6
and told her that if she had to testify she should say that she

was on pills at the time of the arrest and remembered nothing.

¶19 On June 10, Speer called Brian. Brian said that one

of the Sotos was still alive, but Speer said that he was not

worried. On June 19, Speer sent a letter to Brian reminding him

to get rid of the “engine parts” and his shoes. When police

later searched Brian’s bedroom, they found the letter and a book

on silencers.

E.

Proceedings Below

¶20 A grand jury indicted Speer for six felonies,

including first-degree murder, in connection with the events of

May 25. The State filed a timely notice of intent to seek the

death penalty, alleging four aggravating factors: Speer was

previously convicted of a serious offense (armed robbery),

A.R.S. § 13-751(F)(2) (Supp. 2008);2 in the commission of the

offense, Speer knowingly created a grave risk of death to the

Sotos’ infant, A.R.S. § 13-751(F)(3); the murder was committed

in a heinous or depraved manner (witness elimination), A.R.S.

§ 13-751(F)(6); and Speer committed the murder while in custody,

A.R.S. § 13-751(F)(7).

2
At the time of the murder, aggravating circumstances were
described in A.R.S. § 13-703(G) (Supp. 2001); the relevant
statute is now § 13-751(F). Because the two statutes do not
differ in any respect material to this appeal, this opinion
cites to § 13-751.

7
¶21 In January, 2007, the jury returned guilty verdicts on

all six counts related to the May 25 shooting, as well as on two

counts related to the March 14 burglary. The jury subsequently

found all four aggravators proved beyond a reasonable doubt and

then determined that Speer should receive a death sentence for

Adan’s murder.

II.

Jury Selection and Guilt Phase

¶22 Speer raises seven issues on appeal.3 Two are related

to jury selection, two to the guilt phase of the trial, one to

the aggravation phase, and two to the penalty phase.4

A.

Jury Selection

1.

¶23 Speer first argues that the superior court erred in

refusing to excuse certain jurors for cause. “A defendant is

entitled to ‘a fair trial by a panel of impartial, indifferent

jurors.’” State v. Velazquez, 216 Ariz. 300, 306-07 ¶ 18, 166

P.3d 91, 97-98 (2007) (quoting Morgan v. Illinois, 504 U.S. 719,

727 (1992)). “‘A juror who will automatically vote for the

3
Speer also raises twelve claims about the death penalty in
order to preserve them for federal review. These claims, and
citations to cases that Speer acknowledges have rejected his
arguments, are set out verbatim in the Appendix.
4
Speer does not challenge his conviction or sentence for any
crime other than first degree murder.

8
death penalty without considering the presence of mitigating

circumstances will not meet this threshold requirement of

impartiality.’” Id. (quoting Morgan, 504 U.S. at 729).

However, a court should not strike a juror “willing to put aside

his opinions and base his decisions solely upon the evidence.”

Id. at 307 ¶ 19, 166 P.3d at 98 (citations and internal

quotation marks omitted). Refusal to strike a juror for cause

is reviewed for abuse of discretion. State v. Cruz, 218 Ariz.

149, 158 ¶ 28, 181 P.3d 196, 205 (2008).

¶24 Speer contends that seven potential jurors should have

been excused for cause. The defense, however, used peremptory

challenges to remove all but one of these jurors. “Even if a

defendant is forced to use a peremptory challenge to remove a

juror who should have been excused for cause, . . . an otherwise

valid criminal conviction will not be reversed unless prejudice

is shown.” Id. (citing State v. Hickman, 205 Ariz. 192, 196-97

¶¶ 20-21, 68 P.3d 418, 422-23 (2003)). We thus need consider

only the single juror who served on the trial jury, Juror 29.

¶25 Juror 29 selected the following statement in the jury

questionnaire as most closely representing his views: “I feel

the death penalty should be imposed in all cases as long as the

State proves beyond a reasonable doubt that a person killed

another human being with premeditation.” He underlined “beyond

a reasonable doubt.” In the same questionnaire, the juror wrote

9
that “when I was younger, I felt an eye for an eye,” but now “I

want to know why before I decide.” During voir dire, he agreed

that he “might not . . . vote to impose death” if a person “had

a pretty tough upbringing” or “mental health problems,” stating,

“I need to hear everything before I decide.” Given Juror 29’s

statements, the trial court’s refusal to strike him for cause

was not an abuse of discretion.

2.

¶26 The trial court excused Jurors 136, 250, and 427 for

cause over defense objections. Speer argues that all were

improperly struck. “Under the Sixth and Fourteenth Amendments

to the United States Constitution, a criminal defendant is

entitled to an impartial jury.” Velazquez, 216 Ariz. at 306

¶ 14, 166 P.3d at 97. Jurors cannot be dismissed for cause

“simply because they voiced general objections to the death

penalty or expressed conscientious or religious scruples against

its infliction.” Witherspoon v. Illinois, 391 U.S. 510, 522

(1968) (finding Sixth Amendment violation); see also State v.

Anderson (Anderson I), 197 Ariz. 314, 324 ¶ 23 & n.5, 4 P.3d

369, 379 & n.5 (2000) (finding violation of Ariz. R. Crim. P.

18.5(b) when jurors dismissed without opportunity for

rehabilitation on voir dire). A juror may be removed for cause,

however, if his views on the death penalty “would ‘prevent or

substantially impair the performance of his duties as a juror in

10
accordance with his instructions and oath.’” Wainwright v.

Witt, 469 U.S. 412, 424 (1985) (quoting Adams v. Texas, 448 U.S.

38, 45 (1980)); accord Anderson I, 197 Ariz. at 318-19 ¶ 9, 4

P.3d at 373-74. “[J]urors who state unequivocally that they

could never impose the death penalty regardless of the facts of

the particular case” are therefore properly removed. Anderson

I, 197 Ariz. at 318 ¶ 7, 4 P.3d at 373 (citing Witherspoon, 391

U.S. at 514). We review the strike of a potential juror for

abuse of discretion. Velazquez, 216 Ariz. at 306 ¶ 13, 166 P.3d

at 97.

¶27 On voir dire, Juror 136 said “I’m not quite sure . . .

if I will be able to do a death sentence.” The juror then said

that “it’s not that I’m against it, it’s just that I don’t know

if I would be able to put someone else’s life in my hands beyond

a reasonable doubt.” On examination by defense counsel, the

juror reiterated that “my problem . . . is . . . beyond a shadow

of a doubt. Okay. Can you prove to me beyond a shadow of a

doubt enough for me to accept that this crime happened?” The

juror then stated, “I could listen to the evidence, but can I

say that he is guilty and his life should be taken? No, I can’t

do that.” Given these statements, the trial court did not abuse

its discretion in granting the State’s motion to strike.

¶28 Juror 250 indicated on the questionnaire that imposing

the death penalty “would be very scary for me.” Although

11
initially suggesting on voir dire that she might be able to

impose death, when asked by the court for a definitive answer,

the juror said, “I guess I’d have to say I don’t think I can

vote for the death penalty.” In light of this response, the

court did not abuse its discretion in excluding this juror.

¶29 Juror 427 initially indicated that, although

uncomfortable with the death penalty, she would follow the

judge’s instructions. However, the juror later stated, “I don’t

know that I’m capable of it.” On further questioning by the

State, the juror responded affirmatively to the question of

whether “your ability to be fair and impartial is substantially

impaired by your not knowing whether you could actually vote for

the death penalty.” The court later asked the same question,

and the juror responded, “From where I sit right now, I believe

it could be an impairment. I believe the fact that I don’t wish

to be responsible for that may sway me.” Given these

statements, the court did not abuse its discretion in striking

the juror.

B.

Guilt Phase

1.

Spoliation of Evidence

¶30 MCSO contracted with Tenetix, Inc. for its jail phone

call recording system. MCSO kept the recordings on digital

12
cassette tapes. After being stored for six months, tapes were

reused and the old data recorded over. Tenetix kept a database

with information about prisoner calls. A recording could be

located by sending search criteria to Tenetix, which would

generate a list of matches, indicating the cassette containing

each call. Either law enforcement or a defendant could request

that a cassette be “tagged,” in which event the tape was not

recorded over.

¶31 In June 2002, Phoenix police detectives obtained a

court order to listen to calls from Speer to Al Heitzman. The

detectives did not listen to every call that came up as a result

of Tenetix’s search and did not preserve some calls to which

they listened. The detectives both tagged and copied onto

separate cassette tapes twenty-seven calls that they deemed

relevant to their murder investigation.

¶32 Brian Womble’s attorney later filed a standard

discovery motion, requesting “[a]ll statements of the defendant

and anyone who will be tried with defendant.” In response, the

State produced the twenty-seven recordings.5 The discovery

request was made within six months of the date of the phone

calls. When the request was made, Speer’s attorney knew that

MCSO policy was to reuse cassettes after six months.

5
Speer and Brian Womble were both charged with the murder.
Their trials were severed after the State responded to the
discovery motion.

13
¶33 Nine recordings listed in the Tenetix search were not

copied or tagged by the detectives and were thus destroyed when

MCSO reused the tapes. Speer moved to suppress the twenty-seven

preserved recordings.

¶34 The superior court held an evidentiary hearing. One

of the police detectives testified that he knew that any call

having to do with the murder had to be preserved whether it

helped the defense or the prosecution and that “anything about

the homicide would have been preserved.” The court denied the

motion to suppress, finding that Speer had made no showing that

the unpreserved conversations contained relevant or exculpatory

information. The court also found no bad faith by the State.

¶35 Speer later requested the following jury instruction,

pursuant to State v. Willits, 96 Ariz. 184, 393 P.3d 274 (1964):

If you find that the state lost, destroyed, or failed
to preserve evidence whose contents or quality are
important to the issues in this case, then you should
weigh the explanation, if any, given for the loss or
unavailability of the evidence. If you find that any
such explanation is inadequate, then you may draw an
inference unfavorable to the state, which itself may
create a reasonable doubt as to the defendant’s guilt.

The superior court denied the instruction but ruled that Speer

could argue to the jury that the State had failed to preserve

relevant evidence.

14
 a.

¶36 Speer contends that the trial court erred in denying

his motion to suppress the twenty-seven recordings. We review a

decision whether to suppress evidence for an abuse of

discretion. State v. Dean, 206 Ariz. 158, 161 ¶ 9, 76 P.3d 429

(2003). “[U]nless a criminal defendant can show bad faith on

the part of the police, failure to preserve potentially useful

evidence does not constitute a denial of due process of law.”

Arizona v. Youngblood, 488 U.S. 51, 58 (1988). The test under

the Arizona Constitution is the same. State v. Youngblood, 173

Ariz. 502, 508, 844 P.2d 1152, 1158 (1993).

¶37 The critical distinction for constitutional purposes

is “between ‘material exculpatory’ evidence and ‘potentially

useful’ evidence.” Illinois v. Fisher, 540 U.S. 544, 549 (2004)

(per curiam); see also State v. O’Dell, 202 Ariz. 453, 458 ¶ 13,

46 P.3d 1074, 1079 (App. 2002) (stating that the mere

possibility that destroyed evidence might be exculpatory does

not establish a constitutional violation). Youngblood held that

“[t]he presence or absence of bad faith for purposes of the due

process clause must necessarily turn on the police’s knowledge

of the exculpatory value of the evidence at the time it was lost

or destroyed.” 488 U.S. at 56 n*. The Supreme Court had

previously explained that the Due Process Clause is violated

15
only when the exculpatory value of evidence is apparent.

California v. Trombetta, 467 U.S. 479, 489 (1984).

¶38 Under the case law, the trial court did not abuse its

discretion in denying Speer’s motion to suppress. Speer did not

establish that the destroyed tapes contained material

exculpatory evidence or that the police acted in bad faith. See

State v. Bocharski (Bocharski I), 200 Ariz. 50, 59 ¶ 43, 22 P.3d

43, 52 (2001) (stating that destruction of evidence was not a

violation of due process when “the defendant fails to provide

even a hint of what exculpatory evidence there might have

been”).

b.

¶39 Speer also contends that the trial court erred in

denying the Willits instruction. We review that decision for

abuse of discretion. State v. Bocharski (Bocharski II), 218

Ariz. 476, 486-87 ¶ 42, 189 P.3d 403, 413-14 (2008).

¶40 To receive a Willits instruction, the “defendant must

show (1) that the state failed to preserve material and

reasonably accessible evidence having a tendency to exonerate

him, and (2) that this failure resulted in prejudice.” State v.

Murray, 184 Ariz. 9, 33, 906 P.2d 542, 566 (1995); accord State

v. Smith, 158 Ariz. 222, 227, 762 P.2d 509, 514 (1988). “A

trial court does not abuse its discretion by denying a request

for a Willits instruction when a defendant fails to establish

16
that the lost evidence would have had a tendency to exonerate

him.” State v. Fulminante, 193 Ariz. 485, 503 ¶ 62, 975 P.2d

75, 93 (1999).

¶41 The superior court did not abuse its discretion here.

The police detective testified that he preserved any

conversations relevant to the homicide investigation. Speer did

not demonstrate that the erased tapes might have exonerated him

or even mitigated his participation in the murder plot. Indeed,

because the nine calls at issue occurred after the first

preserved call, and incriminating calls continued up to and

after the murder, there is no logical inference that these nine

had a tendency to exonerate.

2.

Prosecutorial Misconduct

¶42 Speer next contends that the trial court erred in

refusing to declare a mistrial for prosecutorial misconduct.

“Because the trial court is in the best position to determine

the effect of a prosecutor’s [actions],” we review for an abuse

of discretion. State v. Newell, 212 Ariz. 389, 402 ¶ 61, 132

P.3d 833, 846 (2006). When a timely objection is made, reversal

is warranted if “a reasonable likelihood exists that the

misconduct could have affected the jury’s verdict, thereby

denying the defendant a fair trial.” State v. Anderson

(Anderson II), 210 Ariz. 327, 340-41 ¶ 45, 111 P.3d 369, 382-83

17
(2005) (citation omitted). Absent objection, however, review is

only for fundamental error. State v. Morris, 215 Ariz. 324, 335

¶ 47, 160 P.3d 203, 214 (2007).

a.

¶43 Only one incident cited by Speer involves

inappropriate conduct. Outside the presence of the judge and

jury but in earshot of Speer, the prosecutor told a female

defense attorney to be careful about contracting gonorrhea from

Speer. The defense moved that the prosecutor be removed. After

the prosecutor claimed that she did not mean offense by the

statement, but was expressing genuine concern regarding

communicable diseases, the trial court denied the motion.

¶44 Whatever her motivations, the prosecutor’s statement

was entirely unprofessional. Speer has not demonstrated,

however, that this isolated instance of misconduct outside the

presence of the jury deprived him of a fair trial. See State v.

Armstrong, 208 Ariz. 345, 357-58 ¶¶ 60-64, 93 P.2d 1061, 1073-74

(2004) (noting that without more, acrimonious and inappropriate

remarks outside the presence of the jury do not warrant

reversal).

b.

¶45 Speer also alleges that two instances of misconduct

occurred in front of the jury. The first involved the

questioning of a detective who listened to the jail tapes; the

18
prosecutor asked him if Speer’s attorney knew that recordings

were destroyed after six months. After the court rejected a

defense objection, the detective testified that the attorney was

aware. Defense counsel then moved for a mistrial, arguing the

State had improperly shifted the burden of proof through the

question. The trial court denied the motion, but instructed the

jury that the burden of proving guilt beyond a reasonable doubt

never shifts.

¶46 The trial court did not err in denying a mistrial.

The prosecutor never suggested that the defense had the burden

of proving Speer’s innocence. Rather, the questioning appeared

designed to rebut any contention of bad faith on the part of the

police, by suggesting that both the State and the defense had a

chance to preserve the nine calls but failed to do so. In any

event, any conceivable prejudice was cured by the instruction.

¶47 The second incident occurred during the guilt phase

closing argument. The prosecutor stated the State had the

burden “in this phase” of proof beyond a reasonable doubt.

Speer moved for a mistrial, contending that this statement

improperly implied that there necessarily would be future

phases. As the trial judge correctly found in denying the

motion, the prosecutor was talking about the particular phase

only to emphasize that Speer did not have the burden of

production. Indeed, the judge noted the various times that

19
defense counsel, the prosecutor, and the court itself had

previously made plain to the jury that the trial could involve

three phases.

c.

¶48 Speer also contends that reversal is warranted for

cumulative misconduct. “[E]ven if there was no error or an

error was harmless and so by itself does not warrant reversal,

an incident may nonetheless contribute to a finding of

persistent and pervasive misconduct.” State v. Roque, 213 Ariz.

193, 228 ¶ 155, 141 P.3d 368, 403 (2006) (citation omitted).

¶49 Speer’s argument fails. The prosecutor made at least

one unprofessional comment outside the presence of the jury.

But, as we have noted above, this statement alone does not

warrant a new trial, nor does the record demonstrate other

persistent and pervasive misconduct.6

6
Speer’s brief summarily alleges additional misconduct but
fails to elaborate on any cited instance. None of these
incidents involved misconduct.

In the first incident, the prosecutor asked a police
detective on redirect if he had fingerprinted the Sotos’
children. The trial court denied defendant’s motion for
mistrial because cross-examination had focused on poking holes
in the police investigation. In the second incident, the
prosecutor also asked the detective if he had questioned Brian
Womble about the state of the Sotos’ apartment at the time of
the shooting. Speer contends that this question was a negative
comment on Brian’s assertion of his Fifth Amendment rights.
Because the officer responded in the negative to the question,
it is difficult to perceive prejudice, and the superior court
later instructed the jury that no negative inference was to be

20
 III.

Aggravation Phase

¶50 Speer contends that the evidence was insufficient to

prove the “grave risk of death” aggravator. This aggravator

requires that “[i]n the commission of the offense the defendant

knowingly created a grave risk of death to another person or

persons in addition to the person murdered during the commission

of the offense.” A.R.S. § 13-751(F)(3) (Supp. 2008). A person

acts “knowingly” when, “with respect to conduct or to a

circumstance described by a statute defining an offense, . . .

[the] person is aware or believes that the person’s conduct is

of that nature or that the circumstance exists.” A.R.S. § 13-

105(10)(b) (Supp. 2008).

¶51 In evaluating sufficiency of the evidence, we

typically determine whether there is substantial evidence

supporting the jury verdict. See, e.g., State v. Wallace, 219

Ariz. 1, 6 ¶ 27, 191 P.3d 164, 169 (2008). Because Speer

committed the murder before August 1, 2002, however, we today

instead must independently determine whether the State has

established the aggravating circumstance beyond a reasonable

doubt. A.R.S. § 13-755(A) (Supp. 2008); Anderson II, 210 Ariz.
_________________________ 
drawn from an accused’s silence. Finally, during a bench
conference in the penalty phase, defense counsel complained that
the prosecutor had been too loud in off-the-record statements,
and the jury could hear her. The court responded that it had
not observed this and could not perceive any negative effect.

21
at 354 ¶ 119 & n.21, 111 P.3d at 396 & n.21; see also State v.

Andriano, 215 Ariz. 497, 506 n.5, 161 P.3d 540, 549 n.5 (2007)

(noting that traditional sufficiency analysis is subsumed under

independent review).

¶52 The (F)(3) aggravator has three components: (1) the

“murderous act created a grave risk of death to” a third person;

(2) defendant “knowingly created such a risk”; and (3) “there

was a ‘real and substantial likelihood’ that the third person

would be killed.” State v. Tucker (Tucker II), 215 Ariz. 298,

309 ¶ 21, 160 P.3d 177, 188 (2007). The State argues that this

aggravator was established because Speer sent Brian Womble to

shoot the Sotos at night, knowing that a baby slept in their

bedroom.7 Speer does not challenge that the State proved the

first and third components of the aggravator. He claims,

however, that the State did not prove the “knowledge” component

because any knowledge obtained by Brian on the night of the

murder cannot be imputed to Speer and he did not personally have

the requisite knowledge.

A.

Imputation of Brian Womble’s Knowledge to Speer

¶53 We have not previously discussed whether the knowledge

of the person who carries out a murder can be imputed to an

7
Enriqueta, an intended murder victim, does not qualify as a
third person for establishing the (F)(3) aggravator. State v.
McCall, 139 Ariz. 147, 160-61, 677 P.2d 920, 933-34 (1983).

22
absent defendant for purposes of establishing the (F)(3)

aggravator.8 We have, however, addressed a similar question in

the context of the “especially heinous, cruel or depraved”

(F)(6) aggravator. State v. Carlson involved a defendant who

hired two men to kill her mother. 202 Ariz. 570, 574-75 ¶¶ 5-6,

48 P.3d 1180, 1184-85 (2002). The victim underwent several

surgeries before succumbing to her injuries. Id. at 575 ¶ 8, 48

P.3d at 1185. In sentencing Carlson to death, the trial court

found the murder especially cruel. Id. ¶ 10. Our analysis of

the (F)(6) aggravator in that case began from the premise that

“[t]he ‘specified statutory aggravators in Arizona’s death

penalty scheme are designed to narrow, in a constitutional

manner, the class of first degree murderers who are death

eligible.’” Id. at 582 ¶ 45, 48 P.3d at 1192 (quoting State v.

Soto-Fong, 187 Ariz. 186, 202, 928 P.2d 610, 626 (1996)). In

light of this purpose, Carlson rejected “a tort concept of

foreseeability” in favor of “the criminal law concept of mens

rea.” Id. ¶ 47. The Court found that the evidence did not

establish that Carlson intended or knew that the murder would be

8
In State v. Holsinger, the defendant hired Cagnina to
murder his wife’s stepfather. 115 Ariz. 89, 91, 563 P.2d 888,
890 (1977). Cagnina broke into the stepfather’s house and
killed a third person, but only wounded the intended victim.
Id. The trial judge found the “grave risk of death” aggravator
established as to Holsinger. Id. at 98, 563 P.2d at 897. This
Court affirmed Holsinger’s death sentence, but the opinion did
not analyze the propriety of the (F)(3) aggravator. See id.

23
carried out in a cruel manner because she “was not present

during the commission of the crime, did not supply the murder

weapon, and was not involved in planning the details or method

of the murder.” Id.

¶54 The same rationale guides us today. Even if we assume

arguendo that Brian Womble had the requisite knowledge of the

risk to the infant while carrying out the murder, we do not

impute that knowledge to Speer. Rather, we must address the

issue of Speer’s personal knowledge.

B.

Speer’s Knowledge

¶55 In evaluating the (F)(3) knowledge requirement, State

v. McGill, 213 Ariz. 147, 140 P.3d 930 (2006), is instructive.

McGill had “set two people on fire . . . in a very small

apartment . . . us[ing] enough gasoline to cause the entire

structure to quickly become engulfed in flames.” Id. at 154

¶ 29, 140 P.3d at 937. Although upholding the (F)(3) aggravator

as to persons whom McGill knew were in the apartment, we stated

that “[t]he trial court correctly granted McGill’s motion to

dismiss the aggravator as it related to [a person in an attached

apartment] because McGill did not know that the attached

apartment was occupied.” Id. ¶ 27.

¶56 In contrast, in State v. Fierro, 166 Ariz. 539, 804

P.2d 72 (1990), we found knowledge established. Fierro had

24
fired several bullets at the victim, who had exited a car. “One

bullet struck [the victim] and two bullets struck the

windshield[,] . . . narrowly missing” a third person who was

seated in the car. Id. at 550, 804 P.2d at 83. We held that

“the record supports the finding that Fierro had to have been

aware of [the third person’s presence] in the car,” because the

victim exited on the passenger side, one or both car doors

remained open, the interior light remained on, and the third

person called out to the victim several times. Id.

¶57 There is evidence that Speer knew that children lived

in the Soto apartment and that the murder would be committed at

night. There is also evidence that Speer knew that a child

slept in the parent’s bedroom, as a crib was likely in the room

at the time of the burglary. Speer’s knowledge that the child

would be placed in danger by the murder plot can, of course, be

established by circumstantial evidence. But, on independent

review, we are unable to conclude beyond a reasonable doubt that

Speer knew that the plan to murder the Sotos would place the

infant in danger.

¶58 The evidence does not establish beyond a reasonable

doubt that Speer knew the murder would take place in the Soto’s

bedroom. Nor does it establish that he knew that the murder

would take place in such a way as to endanger the child, who

25
apparently was not in the crib at the time of the murder but

instead under the sheets in the parents’ bed.

¶59 Rather, the evidence establishes at most that Speer

knew that a child would be present somewhere in the apartment.

Speer was undoubtedly criminally reckless, see A.R.S. § 13-

105(10)(c) (defining “recklessly”), but we cannot conclude

beyond a reasonable doubt that he was “aware” or “believe[d],”

see A.R.S. § 13-105(10)(b) (defining “knowingly”), that the

child would be in the zone of danger. We therefore find that

the State did not establish the (F)(3) aggravator.

IV.

Penalty Phase

A.

Causal Nexus

¶60 Speer argues that Arizona law “unconstitutionally

limits mitigation by requiring a causal nexus.” See Tennard v.

Dretke, 542 U.S. 274, 287 (2004) (holding that a jury cannot be

prevented from considering mitigating evidence solely because

the evidence has no causal “nexus” to a defendant’s crimes).

¶61 The relevant statute, A.R.S. § 13-751(G) (Supp. 2008),

does not require a causal nexus between mitigation and the

murder. Rather, the statute allows the jury to consider “as

mitigating circumstances any factors proffered by the defendant

or the state that are relevant in determining whether to impose

26
a sentence less than death, including any aspect of the

defendant’s character, propensities or record and any of the

circumstances of the offense.” Id. (emphasis added). The

superior court specifically instructed the jury that, in

addition to specific mitigating factors claimed by Speer, it

could “consider anything else about the commission of the crime

or Paul Speer’s background or character that would mitigate

against imposing the death penalty.” Thus, the jury was

entirely free to consider all mitigating evidence, whether or

not it had a causal nexus to the murder.

B.

Closing Argument

¶62 Speer contends that the prosecutor’s closing argument

improperly limited the jury’s consideration of mitigating

factors by urging that evidence lacking a causal nexus to the

crime should not be given weight. Speer did not object to this

argument, so review is for fundamental error. Anderson II, 210

Ariz. at 349-50 ¶ 95, 111 P.3d at 391-92.

¶63 There is no error, let alone fundamental error. As

Speer concedes, Anderson II held that although a jury may not be

prevented from hearing mitigation evidence lacking a causal

nexus to the crime, absence of such a nexus can be considered in

evaluating the strength of that evidence. Id. at 350 ¶ 97, 111

27
P.3d at 392; accord State v. Pandeli, 215 Ariz. 514, 526 ¶ 32,

161 P.3d 557, 569 (2007).

C.

Presumption of Death

¶64 Speer contends that Arizona’s death penalty sentencing

statutes unconstitutionally create a presumption of death by

placing the burden on a defendant to prove that mitigation is

sufficiently substantial to call for leniency.

¶65 Under A.R.S. § 13-751(C), the defendant has the burden

of establishing the existence of mitigating circumstances by a

preponderance of the evidence. Our statutes further provide

that “[t]he trier of fact shall impose a sentence of death if

the trier of fact finds one or more . . . aggravating

circumstances . . . and then determines that there are no

mitigating circumstances sufficiently substantial to call for

leniency.” A.R.S. § 13-751(E). Contrary to Speer’s argument,

we have made plain that this statutory scheme contains no

presumption of death. Neither party bears the burden of

persuading the jury that the mitigation is sufficiently

substantial to call for leniency; that determination “is not a

fact question to be decided based on the weight of the evidence,

but rather is a sentencing decision to be made by each juror

based upon the juror’s assessment of the quality and

significance of the mitigating evidence that the juror has found

28
to exist.” State ex rel. Thomas v. Granville (Baldwin), 211

Ariz. 468, 473 ¶ 21, 123 P.3d 662, 667 (2005).

¶66 Indeed, State v. Harrod, 218 Ariz. 268, 183 P.3d 519

(2008), rejected the argument that Speer now raises. The trial

court in Harrod instructed the jury that “[i]f no jurors find

the defendant proved any mitigation by a preponderance of the

evidence, you must return a verdict of death.” Id. at 281 ¶ 49,

183 P.3d at 532. We held that the instruction did not create a

presumption of death and did not violate the Eighth Amendment

“so long as jurors are allowed to consider any mitigating

evidence.” Id. (citing Tucker II, 215 Ariz. at 317 ¶ 73, 160

P.3d at 196). We also said that it was permissible to give an

instruction that “a juror must vote to impose a sentence of

death if he or she determines there is no mitigation at all or

none sufficiently substantial to warrant a sentence less than

death.” Id. (citing Tucker II, 215 Ariz. at 318 ¶ 74, 160 P.3d

at 197).

D.

Verdict Form

¶67 Speer contends that the trial court erred in refusing

to provide the jury a special verdict form concerning mitigating

factors. We have repeatedly rejected this argument. See, e.g.,

Tucker II, 215 Ariz. at 319 ¶ 84, 160 P.3d at 198; Roque, 213

Ariz. at 226 ¶ 141, 141 P.3d at 401.

29
 E.

Residual Doubt

¶68 The superior court rejected Speer’s proposed

instruction on residual doubt as a mitigating circumstance and

also denied his request to argue residual doubt as a mitigating

circumstance. The court acted correctly. See Harrod, 218 Ariz.

at 279-80 ¶¶ 39-46, 183 P.3d at 530-31 (finding no

constitutional or statutory right to present residual doubt

evidence during the penalty phase); Cruz, 218 Ariz. at 170

¶ 133, 181 P.3d at 217 (holding that “a residual doubt

instruction is not required by Arizona law” (citing State v.

Garza, 216 Ariz. 56, 70 ¶ 67, 163 P.3d 1006, 1020 (2007))).

F.

Mistrial Motion

1.

¶69 During the penalty phase, trial Juror 7 attended a

social event and sat next to a deputy county attorney. After

discovering her neighbor was a juror, the attorney excused

herself and promptly notified the court. The court and counsel

questioned Juror 7 about the incident before trial the next

morning. During the questioning, an MCSO deputy brought Speer

into the courtroom in handcuffs. The court immediately asked

the deputy to bring Speer back in a few minutes and excused the

juror.

30
¶70 Speer’s attorney moved for a mistrial. The court

denied the motion, but offered to dismiss Juror 7 and seat the

last remaining alternate. Speer’s counsel declined the offer

because he believed that Juror 7 was favorable to returning a

life sentence.

¶71 Juror 7 was then brought back into the courtroom. She

stated that seeing Speer in handcuffs did not affect her views

about anything having to do with the case; she already knew that

Speer was in jail from the trial evidence. After Speer

conferred with counsel, the court went through a colloquy with

him and found that he made a knowing and voluntary waiver of the

court’s offer to dismiss Juror 7.

2.

¶72 Mistrial is the “most dramatic remedy for trial error

and should be granted only when it appears that justice will be

thwarted unless the jury is discharged and a new trial granted.”

State v. Dann, 205 Ariz. 557, 570 ¶ 43, 74 P.3d 231, 244 (2003).

We review the denial of a motion for mistrial for abuse of

discretion. State v. Jones, 197 Ariz. 290, 304 ¶ 32, 4 P.3d

345, 359 (2000).

¶73 A capital defendant is generally entitled to be free

from visible restraints in the courtroom during sentencing

proceedings; a trial court abuses its discretion in allowing

visible restraints in the absence of compelling circumstances,

31
such as security concerns. Deck v. Missouri, 544 U.S. 622, 633

(2005); State v. Gomez, 211 Ariz. 494, 502-03 ¶¶ 40-42, 123 P.3d

1131, 1139-40 (2005). Reversal is required for a Deck violation

unless the State can demonstrate harmless error. Deck, 544 U.S.

at 635.

¶74 On the other hand, “the inadvertent exposure of a

handcuffed or shackled defendant to members of the jury outside

the courtroom is not inherently prejudicial, and a defendant is

not entitled to a new trial absent a showing of actual

prejudice.” State v. Apelt, 176 Ariz. 349, 361, 861 P.2d 634,

646 (1993); see State v. Johnson, 147 Ariz. 395, 399, 710 P.3d

1050, 1054 (1985) (noting that when “several jurors

inadvertently saw the defendant in custody while on the way to

the courtroom” the relevant question was “whether the defendant

was prejudiced by what the jury saw”); State v. Mills, 196 Ariz.

269, 272 ¶¶ 9-12, 995 P.2d 705, 708 (App. 1999) (finding no

error in superior court’s refusal to grant a mistrial when

defendant was twice seen by jurors in restraints outside

courtroom because defendant had not established prejudice); see

also State v. Hernandez, 4 So. 3d 642, 658 (Fla. 2009) (holding

trial court did not err in refusing to grant a mistrial after

juror saw person he thought was the defendant in shackles in the

courthouse hallway).

32
¶75 In this case, a single juror saw Speer brought into

the courtroom in restraints during a preliminary proceeding. We

find this case more analogous to inadvertent exposure to a

restrained prisoner during transportation than to restraint

during trial. Because Speer was not restrained during trial,

the considerations that led the Supreme Court to find inherent

prejudice in Deck are not present. See 544 U.S. at 630-32

(noting that shackling during trial undermines presumption of

innocence, interferes with right to assistance of counsel, and

diminishes dignity of process); id. at 633 (noting that

shackling during trial suggests that defendant is danger to the

community).

¶76 Given Juror 7’s statements, the superior court did not

abuse its discretion in finding that Speer suffered no prejudice

from the incident. Moreover, because only one juror saw Speer

in restraints, the trial court’s offer to seat an alternate

would have obviated any prejudice. Having rejected that offer,

Speer cannot now claim error.

V.

Independent Review

¶77 Because Speer committed the murder before August 1,

2002, this Court independently reviews the findings of

aggravation and mitigation and the propriety of the death

sentence. A.R.S. § 13-755(A) (Supp. 2008); Anderson II, 210

33
Ariz. at 354 ¶ 119 & n.21, 111 P.3d at 396 & n.21. We “consider

the quality and the strength, not simply the number, of

aggravating and mitigating factors.” Roque, 213 Ariz. at 230

¶ 166, 141 P.3d at 405 (citation and internal quotation marks

omitted).

¶78 Although Speer’s counsel questioned the propriety of a

death sentence at oral argument, his briefs on appeal did not

address this issue. We have reminded capital defense counsel on

two recent occasions of their professional obligation “to take

advantage of all appropriate opportunities to argue why death is

not a suitable punishment” for their client, and not to “simply

rely on this Court’s statutory duty to review the record.”

Garza, 216 Ariz. at 71 ¶ 74 & n.16, 163 P.3d at 1021 & n.16

(citing ABA Guidelines for the Appointment and Performance of

Defense Counsel in Death Penalty Cases (2003)); Morris, 215

Ariz. at 330 ¶ 76 & n.10, 160 P.3d at 209 & n.10 (same). We

emphasize that admonition again today.

¶79 Despite the failure of defense counsel to brief the

issue, we are directed by A.R.S. § 13-755 to “review the

evidence of aggravating and mitigating circumstances and

independently determine whether death is the appropriate

penalty.” Garza, 216 Ariz. at 71-72 ¶ 74, 163 P.3d at 1021-22.

We do so below.

34
 A.

Aggravating Circumstances

¶80 The jury found four aggravating circumstances. We

determine de novo whether the aggravating circumstances were

proved. A.R.S. § 13-755(A); State v. Cromwell, 211 Ariz. 181,

191 ¶¶ 52-53, 119 P.3d 448, 458 (2005). We have already

concluded that the (F)(3) aggravator was not proved beyond a

reasonable doubt. See ¶¶ 50-59, supra. Speer does not contest

the other three aggravating circumstances, and we conclude that

each was proved beyond a reasonable doubt.

1.

¶81 An aggravating circumstance is established when “[t]he

defendant was previously convicted of a serious offense, whether

preparatory or completed.” A.R.S. § 13-751(F)(2) (Supp. 2008).

Robbery is a “serious offense.” A.R.S. § 13-751(I)(8). The

State proved that Speer was convicted of armed robbery on

December 1, 1998.

2.

¶82 A murder committed for the purpose of witness

elimination is especially heinous or depraved under § 13-

751(F)(6). Tucker II, 215 Ariz. at 312 ¶ 39, 160 P.3d at 191.

Witness elimination is established when “the murder victim is a

witness to some other crime, and is killed to prevent that

person from testifying about the other crime.” State v.

35
Johnson, 212 Ariz. 425, 439 ¶ 57, 133 P.3d 735, 749 (2006). The

State proved that Speer had Brian kill Adan so that Adan would

be unable to testify in Speer’s burglary trial.

3.

¶83 An aggravating circumstance is established if “[t]he

defendant committed the offense while in the custody of or on

authorized or unauthorized release from the state department of

corrections, a law enforcement agency or a county or city jail.”

A.R.S. § 13-751(F)(7). The murder in this case was committed

while Speer was on parole from his armed robbery conviction and

in the custody of the MCSO on the burglary charge.

B.

Mitigating Circumstances

¶84 Speer claimed some twenty-three mitigating factors at

trial.9 Speer had the burden of proving the existence of any

claimed mitigating factor. A.R.S. § 13-751(C). The State

9
The claimed factors were: 1) the defendant’s capacity to
appreciate the wrongfulness of his conduct or conform his
conduct to the requirements of the law was impaired; 2) minor
participation; 3) age; 4) history of family instability;
5) history of family tragedy; 6) parental domestic violence;
7) parental drug and alcohol abuse; 8) genetic propensity
towards addiction; 9) genetic propensity towards mental illness;
10) low IQ; 11) learning disability; 12) long-standing substance
abuse disorder/addiction to drugs and alcohol; 13) co-defendant
suffered from mental illness at the time of the crime;
14) cultural trauma; 15) physical abuse; 16) sexual abuse;
17) emotional abuse; 18) neglect; 19) poverty; 20) institutional
failure/trauma; 21) mercy; 22) defendant suffered from any form
of mental disorder; and 23) any other relevant factor.

36
contested a number of these factors and presented contrary

evidence. In light of Speer’s failure to address the issue on

appeal, we do not know today which factors Speers contends were

proved. Despite counsel’s failure to assist the Court in this

regard, we have thoroughly reviewed the record to carry out our

statutory duty of independent review. We describe below the

mitigating circumstances that we find proved by a preponderance

of the evidence.

1.

¶85 Speer proved that he suffered a difficult childhood.

He grew up in what even the State’s expert witness conceded was

“a dysfunctional home.” Drug abuse was pervasive in his family,

and his mother used heroin during pregnancy. Speer was referred

to juvenile court twenty-six times for various crimes. He was

incarcerated twelve times between his fourteenth and eighteenth

birthdays.

¶86 Speer proved at least some physical abuse during

childhood. He presented evidence of sexual abuse by a female

relative at age five. Speer also showed that during his early

school years, his mother refused recommended evaluations of

suspected learning disabilities.

2.

¶87 The record also establishes that Speer habitually

abused both alcohol and drugs. Speer began using drugs in his

37
early adolescence, overdosing on methamphetamines when thirteen

years old. He was sent to drug treatment as a juvenile. Speer

later became addicted to heroin and apparently committed the

March 14 burglary to get money to buy heroin.

3.

¶88 Speer and the State presented sharply conflicting

evidence on mental health issues. Speer’s experts claimed that

he had moderate to severe cognitive impairment, post-traumatic

stress disorder (“PTSD”), depression, and a low IQ. The State’s

expert agreed that Speer suffered from depression but concluded

that Speer was malingering cognitive impairment and had

antisocial personality disorder, not PTSD.

¶89 After reviewing the expert testimony and the other

evidence presented, we conclude that Speer proved that he

suffered from depression. We also conclude that Speer proved

that he had an IQ between 87 and 97.

¶90 We do not conclude that Speer proved significant

cognitive impairment. Whatever the formal diagnosis of Speer’s

mental health, the record makes plain that he had a clear

ability to think ahead and understand the wrongfulness of his

actions. Speer meticulously planned the murder while in

custody, cleverly used code in communicating with Brian, easily

evaded various MCSO phone restrictions on outgoing prisoner

38
calls, and repeatedly urged that Brian dispose of incriminating

evidence.

4.

¶91 Speer also proved that the death penalty would have

negative effects on his family. Speer presented evidence that

he has a child, and established that an execution would have a

very negative effect on his extended family.

C.

Propriety of the Death Sentence

¶92 The jury found four aggravating circumstances. Our

independent review confirms that the (F)(2), (F)(6), and (F)(7)

aggravators were proved beyond a reasonable doubt. Having set

aside the jury’s finding of the (F)(3) aggravator, we must now

“independently determine” if the mitigation is “sufficiently

substantial to warrant leniency in light of the existing

aggravation.” A.R.S. § 13-755(B).

¶93 As noted above, the record is not bereft of mitigating

evidence. Among other things, Speer suffered a difficult

childhood and serious drug abuse. But that history is not in

itself sufficient to warrant leniency in this case.10

10
In Hampton, we acknowledged the defendant’s “horrendous
childhood” but nonetheless affirmed a death sentence, noting
that “difficult family background, in and of itself, is not a
mitigating circumstance sufficient to mandate leniency in every
capital case.” 213 Ariz. 167, 185 ¶ 89, 140 P.3d 950, 968
(2006) (internal quotation marks and citation omitted).

39
¶94 Nor do Speer’s mental health issues warrant leniency

under the circumstances of this case. This was not a crime of

passion or an impetuous reaction to difficult circumstances.

For almost a month, Speer planned the murder of two innocent

victims of a burglary that he had committed, with the goal of

avoiding the consequences of his prior crime. The three

aggravating circumstances – prior serious conviction, witness

elimination, and committing the offense while on parole or in

custody – are cumulatively entitled to substantial weight. And,

the factor of witness elimination is in itself especially

weighty, as it involves a direct affront to the functioning of

the justice system. See Johnson, 212 Ariz. at 439 ¶¶ 59-60, 133

P.3d at 749 (“Killings committed with this cold-blooded logic in

mind are especially depraved, and separate the crime from the

‘norm’ of first-degree murders.” (internal quotation marks and

citations omitted)).

¶95 Having considered the entire record, we conclude that

the mitigating evidence, in the aggregate, is not sufficiently

substantial to call for leniency. We therefore affirm the

sentence of death for the first degree murder of Adan Soto.

_________________________ 
Similarly, State v. Ellison noted that even if the defendant’s
“childhood experiences left him less equipped to make good moral
decisions . . . [he] was not actually incapable of telling right
from wrong. His childhood troubles deserve little value as a
mitigator for the murder he committed at age thirty-three.” 213
Ariz. 116, 144 ¶ 136, 140 P.3d 899, 927 (2006).

40
 VI.

Conclusion

¶96 For the foregoing reasons, we affirm the judgment of

conviction for first degree murder and the sentence of death.

_______________________________________
Andrew D. Hurwitz, Vice Chief Justice
CONCURRING:

_______________________________________
Rebecca White Berch, Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
W. Scott Bales, Justice

_______________________________________
Ruth V. McGregor, Justice (Retired)

41
 APPENDIX

1. The fact-finder in capital cases must be able to

consider all relevant mitigating evidence in deciding whether to

give the death penalty. See Woodson v. North Carolina, 428 U.S.

280, 304 96 S. Ct. 2978, 49 L.Ed.2d 944 (1976). The trial

court’s failure to allow the jury to consider and give effect to

all mitigating evidence in this case by limiting its

consideration to that proven by a preponderance of the evidence

is unconstitutional under the Eighth and Fourteenth Amendments.

This court rejected this argument in State v. McGill, 213 Ariz.

147, 161 ¶ 59, 140 P.3d 930, 944 (2006), cert. denied, ___ U.S.

___, 127 S.Ct 1914, 167 L.Ed.2d 570 (2007). See also State v.

Medina, 193 Ariz. 504, 514-15, 43, 975 P.2d 94, 104-05 (1999).

2. The F.6 “especially heinous, cruel or depraved”

aggravating factor is unconstitutionally vague and overbroad

because the jury does not have enough experience or guidance to

determine when the aggravator is met. The finding of this

aggravator by a jury violates the Eighth and Fourteenth

Amendments because it does not sufficiently place limits on the

discretion of the sentencing body, the jury, which has no

“narrowing constructions” to draw from and give “substance” to

the otherwise facially vague law. This court rejected this

argument in State v. Cromwell, 211 Ariz. 181, 188-90 ¶¶ 38-45,

119 P.3d 448, 455-57 (2005), cert. denied ___ U.S. ___, 126 S.Ct

42
2291, 164 L.Ed.2d 819 (2006), and Anderson II, 210 Ariz. at 353

¶ 114, 111 P.3d at 395.

3. The court also instructed the jury that they “must not

be influenced by mere sympathy or by prejudice in determining

these facts.” These instructions limited the mitigation the

jury could consider in violation of the Fifth, Sixth, Eighth and

Fourteenth Amendments and Article 2, Sections 1, 4, 15, 23, and

24 of the Arizona Constitution. We rejected this argument in

State v. Carreon, 210 Ariz. 54, 70-71 ¶¶ 81-87, 107 P.3d 900,

916-17, cert. denied, 546 U.S. 854, 126 S.Ct. 122, 163 L.Ed.2d

129 (2005).

4. The death penalty is cruel and unusual under any

circumstances and violates the Eighth and Fourteenth Amendments,

and Article 2, Section 15 of the Arizona Constitution. This

Court and the United States Supreme Court have rejected this

argument. Gregg v. Georgia, 428 U.S. 153, 186-87, 96 S.Ct.

2909, 49 L.Ed.2d 859 (1976); State v. Harrod, 200 Ariz. 309, 320

¶ 59, 26 P.3d 492, 503 (2001), vacated on other grounds, 536

U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 830 (2002)(mem.).

5. The death penalty is irrational and arbitrarily

imposed; it 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

43
Constitution. This court rejected these arguments in State v.

Smith, 203 Ariz. 75, 82 ¶¶ 35-36, 50 P.3d 825, 832 (2002), and

State v. Beaty, 158 Ariz. 232, 247, 762 P.2d 519, 534 (1988).

6. The prosecutor’s discretion to seek the death penalty

has no standards and therefore violates the Eighth and

Fourteenth Amendments, and Article 2, Section 1, 4, and 15 of

the Arizona Constitution. This court rejected this argument in

State v. Sansing, 200 Ariz. 347, 361 ¶ 46, 26 P.3d 1118, 1132

(2001), vacated on other grounds, 536 U.S. 954, 122 S.Ct. 2654,

153 L.Ed.2d 830 (2002) (mem.). See also State v. Finch, 202

Ariz. 410, 419 ¶ 50, 46 P.3d 421, 430 (2002).

7. Arizona’s death penalty is applied so as to

discriminate against poor, young, and male defendants in

violation of Article 2, Sections 1, 4, and 13 of the Arizona

Constitution. This court rejected this argument in Sansing, 200

Ariz. at 361 ¶ 46, 26 P.3d at 1132. See also State v. Stokley,

182 Ariz. 505, 516, 898 P.2d 454, 465 (1995).

8. Proportionality review serves to identify which cases

are above the “norm” of first degree murder, thus narrowing the

class of defendants who are eligible for the death penalty. 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, and

44
Article 2, Section 15 of the Arizona Constitution. This court

rejected this argument in State v. Gulbrandson, 184 Ariz. 46,

73, 906 P.2d 579, 606 (1995). See also State v. Salazar, 173

Ariz. 399, 417, 844 P.2d 566, 584 (1992).

9. Arizona’s capital sentencing scheme is

unconstitutional because it does not require the State to prove

the death penalty is appropriate or require the jury to find

beyond a reasonable doubt that the aggravating circumstances

outweigh the accumulated mitigating circumstances. Instead,

Arizona’s death penalty statute requires defendants to prove

their lives should be spared, in violation of the Fifth, Eighth,

and Fourteenth Amendments, and Article 2, Section 15 of the

Arizona Constitution. This court rejected this argument in

State v. Fulminante, 161 Ariz. 237, 258, 778 P.2d 602, 623

(1988). See also Carreon, 210 Ariz. at 76 ¶ 122, 107 P.3d at

922.

10. Arizona’s death penalty scheme does not sufficiently

channel the sentencing jury’s discretion. Aggravating

circumstances should narrow the class of persons eligible for

the death penalty and reasonably justify the imposition of a

harsher penalty. Arizona Revised Statutes section 13-703.01 is

unconstitutional because it provides no objective standards to

guide the jury in weighing the aggravating and mitigating

circumstances. The broad scope of Arizona’s aggravating factors

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encompasses nearly anyone involved in a murder, in violation of

the Eighth and Fourteenth Amendments, and Article 2, Section 15

of the Arizona Constitution. This court rejected this argument

in State v. Pandeli, 200 Ariz. 365, 382 ¶ 90, 26 P.3d 1136, 1153

(2001), vacated on other grounds, 536 U.S. 953, 122 S.Ct. 2654,

153 L.Ed.2d 830 (2002)(mem.). See also State v. Greenway, 170

Ariz. 155, 164, 823 P.2d 22, 31 (1991).

11. Execution by lethal injection is cruel and unusual

punishment in violation of the Eighth and Fourteenth Amendments,

and Article 2, Section 15 of the Arizona Constitution. This

court rejected this argument in State v. Van Adams, 194 Ariz.

408, 422 ¶ 55, 984 P.2d 16, 30 (1999), and State v. Hinchey, 181

Ariz. 307, 315, 890 P.2d 602, 610 (1995).

12. Arizona’s death penalty scheme unconstitutionally

requires imposition of the death penalty whenever at least one

aggravating circumstance and no mitigating circumstances exist,

in violation of the Eighth and Fourteenth Amendments, and

Article 2, Section 15 of the Arizona Constitution. Arizona’s

death penalty law cannot constitutionally presume that death is

the appropriate default sentence. This court rejected this

argument in State v. Miles, 186 Ariz. 10, 19, 918 P.2d 1028,

1037 (1996).

46