State v. Cromwell

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-03-0083-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2001-095438
ROBERT LOUIS CROMWELL, )
)
Appellant. ) O P I N I O N
)
__________________________________)

Appeal from the Superior Court of Maricopa County
No. CR2001-095438
Honorable Mark F. Aceto, Judge
AFFIRMED

_______________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Capital Litigation Section
James P. Beene, Assistant Attorney General
Attorneys for the State of Arizona

SUSAN M. SHERWIN, MARICOPA COUNTY LEGAL ADVOCATE Phoenix
By James L. Logan, Deputy Legal Advocate
Consuelo M. Ohanesian, Deputy Legal Advocate
Attorneys for Robert Louis Cromwell

_______________________________________________________________

J O N E S, Justice (retired)

¶1 On February 19, 2003, a Maricopa County jury convicted

Robert Louis Cromwell of one count of first degree murder and
one count of sexual assault in the October 8, 2001 death of

eleven-year-old Stephanie Shortt. The jury also convicted

Cromwell of two counts of aggravated assault, one against Ella

Speaks, Stephanie’s mother, and the other against Ella’s friend,

Kim Jensen. On March 6, 2003, Cromwell was sentenced to death

for the murder, to life imprisonment without the possibility of

release for thirty-five years for the sexual assault, and to ten

years’ imprisonment each for the two aggravated assault charges.

¶2 On March 14, 2003, notice of appeal was filed in this

court under Rules 26.15 and 31.2(b), Arizona Rules of Criminal

Procedure, and Arizona Revised Statutes (“A.R.S.”) § 13-4031

(2001). This court has jurisdiction pursuant to Article 6,

Section 5.3, of the Arizona Constitution and A.R.S. § 13-4031.

FACTS1 AND PROCEDURAL HISTORY

¶3 Stephanie Shortt lived with her mother, Ella Speaks,

and two younger sisters, Amanda and Heather, in a one-bedroom

apartment located on Flower Street, near the intersection of

32nd Street and Osborn Road in Phoenix. Ella met the defendant,

Robert Cromwell, in the early evening hours of October 7, 2001

while walking from her apartment to a nearby convenience store

1
We view the facts in a light most favorable to sustaining
the jury’s verdict. State v. Tucker, 205 Ariz. 157, 160 n.1, 68
P.3d 110, 113 n.1 (2003); State v. Gallegos, 178 Ariz. 1, 9, 870
P.2d 1097, 1105 (1994).

2
to purchase transmission fluid for her car. Ella passed a

building where she saw Cromwell sitting on a bench. Cromwell

yelled out to her, “Hey, are you a prostitute or a police

officer?” Ella continued walking and replied, “I’m neither one.

I’m a mother and I’m having a bad day. Leave me alone.”

Cromwell then got on his bike and rode toward Ella. Upon

reaching her, he said, “I just want to apologize to you. That

was a very rude thing I said. In this area, there’s a lot of

prostitutes. I can’t believe that I disrespected you that way

and I want to give you my fullest apology.” Ella told Cromwell,

“It’s okay. I’m just having a bad day. I don’t mean to lash

out at you, but I’m not in the mood for those kind of comments.”

Cromwell then told Ella he would escort her to the store because

“this is a bad area and it’s now dark at this time.” Ella saw

some men off to her left and was “almost relieved” that Cromwell

was going to walk with her to the store.

¶4 Ella went into the store alone where she purchased

transmission fluid. When she emerged, Ella found Cromwell

waiting for her. The two walked back to her apartment and

according to Ella’s testimony, Cromwell seemed “kind” and

“caring.”

¶5 At the apartment, Cromwell helped Ella put the

transmission fluid into the automobile. Ella then asked

3
Cromwell if he would like to accompany her and her three

daughters to a nearby fast-food restaurant. Cromwell agreed to

go, but wanted first to take the bicycle back to his apartment.

Ella and the children followed Cromwell and parked the car to

wait for him outside the apartment. Cromwell parked his bike,

changed his clothes, then drove with Ella and her three girls to

the restaurant.

¶6 On the way, Cromwell and the children sang songs. At

the drive-through window, Ella offered to buy Cromwell a

hamburger. He declined. They obtained food for Ella and the

children and went back to Ella’s apartment. While the children

ate, Ella and Cromwell went into her bedroom where the two

talked and Ella smoked methamphetamine. After spending about an

hour in the bedroom, Cromwell agreed to accompany Ella to a

number of local bars where she filled out job applications and

played a few games of pool.

¶7 Cromwell had one drink during the bar visits, and Ella

had none. At one bar location, Cromwell leaned over a pool

table and tried to kiss Ella on the mouth, but she turned her

cheek. Cromwell said, “I can tell you didn’t like it, but I

will do it again.” Ella replied, “I don’t think you will,” at

which time Ella noticed that Cromwell smiled as if he

understood, and he apologized once again.

4
¶8 When Ella and Cromwell returned to her apartment

around 1:00 a.m., the children were on a mattress in the living

room, still awake. Ella told the girls to go to sleep, and Ella

and Cromwell went into the bedroom where they played cards for

about an hour.

¶9 At some point, with Cromwell still in the apartment,

Ella received a phone call from a friend, Kelly Lancaster,

asking that she come to his house to help resolve a disturbance

being caused by a mutual acquaintance, Kim Jensen. Ella agreed

and determined to leave her children with Cromwell because “he

seemed so nice.” Cromwell told Ella he would just stay in her

room while she was gone. Ella was gone from the house for a

little more than an hour.

¶10 During Ella’s absence, Stephanie’s nine-year-old

sister Amanda was awakened by the sound of Stephanie making a

noise as if “she was really hurt.” Amanda then saw Stephanie

standing in the bathtub, unclothed, while Cromwell, with socks

on both of his hands, washed her with soap. Amanda got out of

bed on several occasions while Ella was gone, but Cromwell

angrily told her to get back to bed each time. Eventually,

Amanda saw Stephanie follow Cromwell into Ella’s bedroom.

Although Stephanie remained in Ella’s bedroom, Amanda saw

Cromwell move from the bedroom to the kitchen several times.

5
During one such trip, Amanda heard a noise like “silverware

shatter,” and while Cromwell and Stephanie were in the bedroom,

she heard noises that made her think Stephanie was hurt. She

then heard a “big bang” that sounded like a television dropping

to the floor. Amanda finally fell asleep while Stephanie was in

the bedroom with Cromwell.

¶11 When Ella returned to the apartment, accompanied by

Kim Jensen, Cromwell attacked both of them with a pool cue,

resulting in injuries to each. Cromwell ran out of the

apartment after the attack and Ella quickly followed, after

looking unsuccessfully for Stephanie.

¶12 Cromwell’s attack on Ella and Kim awakened Amanda.

She saw her mother chase Cromwell out of the apartment. Kim

Jensen was lying on the floor with a head injury. Amanda and

Heather, the youngest sister, then got up and went to the

bedroom to look for Stephanie. Amanda reached into the bed,

felt Stephanie’s legs and saw that the television set was

resting on Stephanie’s head. She and Heather removed it, then

ran downstairs and asked the landlord to call 9-1-1, which he

did. After the call, Amanda and Heather went back upstairs and

into the bedroom. They observed blood stains on the bedding and

found Stephanie’s body, bruised and bloody.

6
¶13 Police Officer Tallon Busby responded to the 9-1-1

call. When he arrived, the door was open and Kim Jensen was on

the floor. Officer Busby described the scene: “Laying [sic]

inside the doorway was a white female. From the waist down she

was outside the apartment, from the waist up, she was laying

[sic] facedown in the apartment. There was a blood smear on the

door.” He asked Kim, who was semi-conscious, if anyone else was

in the apartment. She replied that the baby was in the bedroom.

He then asked Kim where she was injured, and she replied that

she had been hit on the back of the head. Officer Busby

observed that the hair on the back left side of Kim’s head was

“matted in blood.”

¶14 The officer then went into the dark apartment and

observed a light in the bedroom. He walked toward the doorway

and saw Stephanie lying face up on the bed. A blanket covered

her unclothed body from the waist down. She had “visible wounds

on her face and blood coming out of her nose and lips and out of

her mouth.” There was a “huge pool of blood” under her head and

shoulders. Officer Busby checked to see if Stephanie was

breathing and if she had a pulse. He felt a “slight pulse” at

her neck. He placed his hand on Stephanie’s chest and “felt a

slight rise and fall.” Visible evidence of severe vaginal

trauma indicated that Stephanie also had been sexually abused.

7
¶15 By the time Gary Ford, a Phoenix Fire Department

paramedic, arrived, Stephanie no longer had a pulse and had

stopped breathing. While performing cardiac pulmonary

resuscitation, Ford observed that Stephanie had suffered a head

wound and multiple stab wounds to her back. Ford also observed

the vaginal injuries. After attempting CPR and other life-

saving procedures, the paramedics rushed Stephanie to Good

Samaritan Hospital.

¶16 Dr. Wendy Lucid was on duty at the Good Samaritan

emergency room when Stephanie arrived. Stephanie had no

heartbeat and was not breathing. Initially, Dr. Lucid did a

full body assessment. She found a large laceration on

Stephanie’s forehead. Closer inspection revealed a skull

fracture. Due to the severity of Stephanie’s head injuries, Dr.

Lucid stopped all life support efforts and pronounced her dead.

Dr. Lucid then turned Stephanie onto her side and observed

eleven stab wounds on her back. Further examination also

revealed the vaginal injuries.

¶17 The medical examiner performed an autopsy on

Stephanie’s body. Based on the injuries, he determined

Stephanie had received a minimum of five blows to the head and

thirteen stab wounds to the back. The stabbing punctured her

right lung, causing it to collapse. In the opinion of the

8
examiner, Stephanie was alive at the time she suffered the

vaginal trauma and at the time she was stabbed. The cause of

death was multiple blunt force and stabbing injuries inflicted

on her head and back.

¶18 The grand jury indicted Cromwell October 16, 2001 on

one count of first degree murder, one count of sexual assault

and two counts of aggravated assault. On November 9, 2001, the

State filed a notice of intent to seek the death penalty for the

murder and on August 9, 2002, filed its notice of aggravating

factors. Trial began February 3, 2003, resulting in conviction

by the jury on all counts in the indictment.

TRIAL ISSUE

Did the Trial Court Err in Denying Cromwell’s Request for New
Counsel?

Background

¶19 On November 13, 2002, slightly more than two months

before the scheduled start of trial, Cromwell’s court-appointed

attorney, James Logan, filed a “Motion to Withdraw or in the

Alternative Motion to Determine Counsel.” The motion was filed

in response to Cromwell’s pro se request that his attorney be

removed from the case. On November 20, 2002, the trial court

held a hearing and asked Cromwell why he no longer wanted Logan

as his lawyer. Cromwell responded:

Mr. Logan and I are on differences [sic] on key points

9
 of my defense. I’m in left field and he’s in right
field. He informed me about DNA information at one
point in the case and come [sic] back three months
later to find out that it was completely false.

At the – I’m not sure that I want to continue to say
what he said to me in private and in open court, and
what he has also said in court to indicate that Mr.
Logan has no intention of defending me zealously. He
has much said in court and on the record that there
would be a guilt phase during the trial and he quickly
corrected himself in front of you last time I was
here, but Mr. Logan said no uncertain terms that not
only would I be found guilty, but I will die. Those
were his exact words to me.

That’s all, your honor.

¶20 When specifically asked by the trial court regarding

what differences existed between himself and Logan, Cromwell

stated: “I’m sure he’s a great lawyer, but we don’t agree on

where to go with my defense and especially where the DNA is

concerned and one or two witnesses are concerned and specific

questions that are supposed to be answered.”

¶21 In order to explore the relationship between client

and counsel in more detail, the trial judge cleared the

courtroom, ordered the transcript portion of this part of the

hearing sealed, and continued his investigation regarding

Cromwell’s motion for new counsel. During the closed-courtroom

discussion, Cromwell informed the trial court that he and Logan

had a disagreement. He indicated four areas in which they

differed on the handling of his case.

10
¶22 First, Cromwell said the two disagreed on how to

question the State’s DNA expert. Cromwell wanted the expert

questioned in a way that would ascertain whether the DNA results

were consistent with sexual intercourse. Logan explained that

the DNA expert was not qualified to express an opinion whether

the DNA results were consistent with sexual intercourse but was

qualified and would testify concerning the presence and quality

of DNA evidence allegedly linking Cromwell to the crimes

charged.

¶23 Second, Cromwell told the trial court that he and

Logan disagreed on whether to call Ella’s friend, Kelly

Lancaster, to testify at trial. Logan acknowledged the

disagreement but stated that even under Cromwell’s approach to

the case, calling Lancaster would be a strategically unwise

maneuver.

¶24 Third, Cromwell disagreed with Logan’s discovery

efforts, specifically, his decision not to subpoena the

telephone records of Ella Speaks and his failure to obtain

Stephanie’s school records. Logan informed the trial court that

he had indeed received the relevant telephone records from the

State, but that some land-line calls could not be obtained.

Regarding Stephanie’s school records, Logan asserted this was

the first time he had heard of Cromwell’s request for those

11
records. Logan stated he would attempt to obtain them but

questioned whether he would be successful, pointing out that

they were victim records, and even if obtained, may not have

been admissible.

¶25 Finally, Cromwell asserted that he and Logan differed

on how to proceed with the defense of his case and that Logan

told him that if he were to proceed to trial, he would be found

guilty. Logan responded: “I believe I was absolutely required

to give him my opinion of the case by the Code of Ethics and to

tell him what I thought of it and give him what I thought were

potential viable alternatives to what could be a worse

situation.” Logan also stated:

Mr. Cromwell tends to reject anything that I tell him
that is not in line with his theory that he be found
not guilty and there really is no evidence against him
of any sort. He has instead vastly maintained that
there is no evidence against him. He wanted to go to
trial on the first trial setting, because there was no
evidence against him. When I point out to him
evidence that is clearly damaging evidence and clearly
evidence that would support a conviction, he becomes
upset. He becomes angry with me and I am not
assisting him.

¶26 The trial judge denied Cromwell’s motion for change of

counsel, stating:

Appellant is not entitled to counsel of choice and is
not entitled to a meaningful, that’s “meaningful,”
relationship with his attorney. I have considered all
the relevant factors. I’ll note that the quality of
counsel currently representing [Cromwell] is
excellent.

12
 I’ll note that a significant amount of time has
elapsed since the alleged date of violation and since
charges were filed. I’ll note that trial is set for
January 21 of 2003 and we have some motion hearings
set for December 6th of this year. I’ll note that and
confirm what I said earlier, which is, if a new lawyer
would be put on the case now, it would lead to a
significant delay in the processing of the case, which
would be to the prejudice of [Cromwell], to the
prejudice of the victims, to the prejudice of the
State, and to the prejudice of the interests of
justice, not only in the form of resolving matters
with due speed, but also in the form of the potential
for fading memories.

Counsel and [Cromwell] have a conflict with respect to
strategy. To me, this is a conflict that will
reappear ad infinitum if a new quality lawyer is
appointed to represent [Cromwell]. So I could appoint
a new counsel, which would lead us back to exactly the
same situation that we’re in, only it would be about a
year later. In other words, to the extent that you
could characterize the disagreement between Defense
Counsel and [Cromwell] as a conflict, the new lawyer,
to the extent [he] is competent counsel, would be
confronted with exactly the same conflict.

I’ll also note that granting the motion would lead to
significant inconvenience to witnesses and victims.

Standard of Review

¶27 A trial court’s decision to deny the request for new

counsel will not be disturbed absent an abuse of discretion.

State v. Lee, 142 Ariz. 210, 220, 689 P.2d 153, 163 (1984).

Applicable Law

¶28 A criminal defendant has a Sixth Amendment right to

representation by competent counsel. U.S. Const. amend. VI; see

13
also Ariz. Const. art. 2, § 24; A.R.S. § 13-114(2) (2001); Ariz.

R. Crim. P. 6.1. A defendant is not, however, entitled to

counsel of choice or to a meaningful relationship with his or

her attorney. Morris v. Slappy, 461 U.S. 1, 13-14 (1983); State

v. Moody, 192 Ariz. 505, 507, ¶ 11, 968 P.2d 578, 580 (1998).

¶29 The presence of an irreconcilable conflict or a

completely fractured relationship between counsel and the

accused ordinarily requires the appointment of new counsel.

Conflict that is less than irreconcilable, however, is only one

factor for a court to consider in deciding whether to appoint

substitute counsel. State v. Henry, 189 Ariz. 542, 546-47, 944

P.2d 57, 61-62 (1997); State v. Bible, 175 Ariz. 549, 591, 858

P.2d 1152, 1194 (1993); State v. LaGrand, 152 Ariz. 483, 486-87,

733 P.2d 1066, 1069-70 (1987); see also Moody, 192 Ariz. at 508-

09, ¶ 21, 968 P.2d at 581-82. A single allegation of lost

confidence in counsel does not require the appointment of new

counsel, and disagreements over defense strategies do not

constitute an irreconcilable conflict. Henry, 189 Ariz. at 546-

47, 944 P.2d at 61-62; Bible, 175 Ariz. at 591, 858 P.2d at

1194.

¶30 To constitute a colorable claim, a defendant’s

allegations must go beyond personality conflicts or

disagreements with counsel over trial strategy; a defendant must

14
allege facts sufficient to support a belief that an

irreconcilable conflict exists warranting the appointment of new

counsel in order to avoid the clear prospect of an unfair trial.

See Slappy, 461 U.S. at 13-14; United States v. Hillsberg, 812

F.2d 328, 333-34 (7th Cir. 1987) (holding that denial of a

motion to substitute counsel is not reversible error when the

“defendant abruptly states that he does not trust his attorney

but gives no grounds for that distrust . . . or where defendant

and counsel have ‘personality conflicts and disagreements over

trial strategy.’”).

¶31 Thus, when considering a motion to substitute counsel,

the judge evaluates several factors designed specifically to

balance the rights and interests of the defendant against the

public interest in judicial economy, efficiency and fairness.

See Moody, 192 Ariz. at 507, ¶ 11, 968 P.2d at 580. These

include:

[W]hether an irreconcilable conflict exists between
counsel and the accused, and whether new counsel would
be confronted with the same conflict; the timing of
the motion; inconvenience to witnesses; the time
period already elapsed between the alleged offense and
trial; the proclivity of the defendant to change
counsel; and quality of counsel.

LaGrand, 152 Ariz. at 486-87, 733 P.2d at 1069-70; see also

Moody, 192 Ariz. at 507, ¶ 11, 968 P.2d at 580.

15
 Analysis

¶32 Cromwell argues that he had irreconcilable differences

with Logan and claims the trial court failed to make any

meaningful inquiry into the conflict. The State responds that

the conflict between Cromwell and Logan amounted to differences

in strategy and personality and that the irreconcilable

differences asserted by Cromwell were not substantive, would not

affect the quality of representation by otherwise competent

counsel and that taking all factors into account, the

appointment of new counsel was not warranted under the

circumstances.

¶33 Additionally, Cromwell claims the trial court

improperly based its decision to deny the change of counsel on

delay caused by the state between the day of the crime until the

day the indictment was handed up, and the delay following the

indictment through discovery and trial. As noted, however, the

trial court considered all of the LaGrand factors, including the

delay, and concluded that there was insufficient basis on which

to justify a substitution of counsel. The court further

concluded that even if new counsel were appointed, Cromwell’s

assessment of the case would remain unchanged and that new

counsel, inevitably, would be confronted with the same

disagreement.

16
¶34 Further concerning the LaGrand factors, the court

found that if new counsel were appointed, the witnesses and

victims would be significantly inconvenienced by added delay and

that further delays were unwarranted because substantial time

had elapsed since the date of the murder, the filing of charges,

and the filing of the motion. The court thus concluded that

appointing a new lawyer at this stage would be to the prejudice

of all interests relevant to the timely administration of

justice.

¶35 On review, we conclude the denial of new counsel was

based on a proper balancing of relevant interests. Denial of

the motion was discretionary and we find no abuse of discretion.

There was no irreconcilable conflict between Cromwell and Logan.

The friction between them stemmed strictly from disagreement as

to their respective assessments of the facts and trial strategy.

¶36 The defense claims this case is similar to our

decision in Moody. We disagree. The Moody record was “replete

with examples of a deep and irreconcilable conflict” between the

defendant and his attorney. 192 Ariz. at 507, ¶ 13, 968 P.2d at

580. Moody accused his lawyer and the lead public defender of

being “incompetent and crazy.” Id. at 508, ¶ 16, 968 P.2d at

581. He developed an “obsessive hatred” for his attorney and

the public defender’s office and, on at least one occasion, he

17
and his attorney were “almost at blows” with one another. Id.

Moody believed his lawyers were conspiring with the prosecutor,

the court and the doctor to have him declared insane. Id.

Moreover, Moody threatened to file ethical complaints against

his lawyer and the public defender’s office. Id. at ¶ 18. None

of these is present in the instant case. Cromwell, in open

court, stated his belief that Logan was competent and there was

no expression of hatred or violence, nor was there an allegation

of conspiracy with prosecutors, the court, or the doctors to

have Cromwell declared insane. Nor is there anything in the

record before us suggesting ethical complaints against Mr.

Logan.

¶37 Cromwell’s reliance on Moody is misplaced. The facts

in the instant case do not resemble the intense acrimony and

depth of conflict found in Moody. Instead, Cromwell’s case

resembles LaGrand, Henry and Bible, in which the conflicts

“amounted to nothing more than a disagreement over appropriate

defense strategies,” Henry, 189 Ariz. at 547, 944 P.2d at 62,

and “maybe even some feelings of not getting along so well

together.” Bible, 175 Ariz. at 591, 858 P.2d at 1194. Finally,

we defer to the discretion of the trial judge who has seen and

heard the parties to the dispute. There was no abuse of

discretion by the judge in this instance inasmuch as he did

18
exactly what we expect trial judges to do: he held a hearing,

heard the statements and responses of both the defendant and

counsel, gave consideration to each, knew and applied the

LaGrand factors, and, in a reasonable exercise of discretion,

denied the defendant’s request.

SENTENCING ISSUES

A. Is the “Especially Heinous, Cruel or Depraved” Language of
A.R.S. § 13-703(F)(6) Unconstitutionally Vague?

Standard of Review

¶38 We review the validity of a statute de novo and

construe it, whenever possible, to uphold its constitutionality.

State v. Davolt, 207 Ariz. 191, 214, ¶ 99, 84 P.3d 456, 479

(2004).

Applicable Law

¶39 The Eighth and Fourteenth Amendments to the United

States Constitution require that a capital sentencing scheme

place limits on the discretion of the sentencer. See Lewis v.

Jeffers, 497 U.S. 764, 774 (1990). The scheme must “‘channel

the sentencer’s discretion by clear and objective standards that

provide specific and detailed guidance and that make rationally

reviewable the process for imposing a sentence of death.’” Id.

(quoting Godfrey v. Georgia, 446 U.S. 420, 428 (1980)); see also

Woodson v. North Carolina, 428 U.S. 280, 303 (1976).

19
 Analysis

¶40 Cromwell argues that the aggravating factor

“especially heinous, cruel or depraved” as set forth in A.R.S. §

13-703(F)(6)2 is unconstitutionally vague. His contention rests

on the distinction created by the Supreme Court in Ring II that

juries, rather than judges, must find the aggravating factors

that can result in the imposition of capital punishment. Ring

v. Arizona (“Ring II”), 536 U.S. 584 (2002). He claims the

Supreme Court’s decision in Walton v. Arizona, 497 U.S. 639

(1990), overruled in part by Ring II, remains instructive

because in Walton, the Court upheld the “heinous, cruel or

depraved” aggravator, but did so only because the Arizona

sentencing scheme provided that the aggravating factors and the

ultimate sentence were to be determined by the trial judge.

Walton, 497 U.S. at 654. Using Walton as his base of reasoning,

Cromwell asserts that the saving factor of Arizona’s statute

when Walton was decided was that the trial judge, not the jury,

determined the existence or non-existence of aggravating

circumstances.

¶41 Cromwell cites Maynard v. Cartwright, 486 U.S. 356

(1988), and Godfrey, 446 U.S. 420, claiming the Supreme Court

2
We refer to the current version of A.R.S. § 13-703 which
lists the “especially heinous, cruel or depraved” language as
the (F)(6) aggravator.

20
held that statutory language substantially similar to A.R.S. §

13-703(F)(6) was unduly vague when applied in the context of

jury findings. We disagree. The holdings in both Maynard and

Godfrey were based not on the language of the sentencing

statutes, but on the inadequacy and lack of specificity in the

jury instructions. See Walton, 497 U.S. at 653-54.3 In our

recent decision in State v. Anderson, ___ Ariz. ___, ___, ¶¶

109-14, 111 P.3d 369, 394-95 (2005), the defendant advanced the

same argument. There, we said:

In Anderson’s case, the jury was instructed in detail
as to what would support a finding that the murders
were “especially heinous, cruel or depraved.” The
jury instructions, to which Anderson did not object,
gave substance to the terms “cruel” and “heinous or
depraved” in accordance with our case law narrowing
and defining those terms. Thus, this case is
distinguishable from Maynard and Godfrey in which no
limiting instructions were given . . . . [W]e
conclude that the jury instructions here were adequate
to provide a narrowed construction of the facially
vague statutory terms.

3
The Supreme Court overruled Walton in Ring II only to the
extent that juries, rather than judges, must find the existence
of aggravating factors. Ring v. Arizona, 536 U.S. 584, 588-89
(2002). The Court made no mention of the effect of a limiting
jury instruction when determining the validity of those
aggravators. In fact, the Supreme Court had previously stated
the reason for overturning the sentences in Maynard v.
Cartwright, 486 U.S. 356 (1988), and Godfrey v. Georgia, 446
U.S. 420 (1980), was because of the insufficiency of the
limiting instruction, and not the fact that juries were deciding
the existence of aggravating factors. Walton, 497 U.S. at 653-
54.

21
Id. at ¶¶ 111, 114 (footnotes omitted).4

¶42 Similarly, in the instant case, the jury instruction

on cruelty contained the essential narrowing factors and

provided the specificity and direction required by this court,

foreclosing a constitutional challenge to the (F)(6) statute.

The jury was instructed that:

Cruelty goes to mental and physical anguish suffered
by the victim. Mental anguish occurs when the victim
experiences significant uncertainty about her fate.
In order to constitute cruelty, conduct must occur
before death and while a victim is conscious. Conduct
occurring after death or while a victim is unconscious
does not constitute cruelty. Before conduct can be
found to be cruel, the State must prove that the
defendant knew or should have known that the conduct
would cause suffering to the victim.

This language does not suffer from vagueness. State v. Cañez,

202 Ariz. 133, 160, ¶ 100, 42 P.3d 564, 591 (2002); State v.

Medina, 193 Ariz. 504, 513, ¶¶ 34-35, 975 P.2d 94, 103 (1999).

¶43 As in prior decisions, we note once again that the

(F)(6) aggravator is stated in the disjunctive, indicating that

evidence of any one of the statutory prongs, “heinous,” “cruel,”

or “depraved” will support a finding that the (F)(6) aggravator

is present. Medina, 193 Ariz. at 513, ¶ 33, 975 P.2d at 103

(citing State v. Laird, 186 Ariz. 203, 208, 920 P.2d 769, 774

(1996)). Because we conclude that the jury’s cruelty finding is

4
For a full discussion of the effect of Walton on the (F)(6)
aggravator in the jury context, see State v. Anderson, ___ Ariz.

22
amply supported by the evidence, we need not address Cromwell’s

challenges to the instructions concerning heinousness or

depravity.

¶44 Cromwell also takes issue with the term “especially”

as used in (F)(6) to underscore the terms “heinous, cruel or

depraved,” arguing again that judges understand what the word

“especially” means, but that juries do not. Supreme Court case

law, however, dispels that notion because it distinguishes

constitutional statutes from unconstitutional statutes on the

basis of the clarifying definition, not on the supposition that

judges may apply the statute one way and jurors another.

Maynard, 486 U.S. at 365 (finding an instruction to the jury

limiting “especially heinous, atrocious or cruel” to some kind

of torture or serious physical abuse as constitutionally

acceptable).

¶45 The trial court properly relied on and included

language from this court’s decisions, cited above, when it

drafted the (F)(6) jury instructions. The instructions given in

the instant case provided accurate and carefully drawn guidance

for the jurors. We therefore reject Cromwell’s vagueness

argument and conclude that A.R.S. § 13-703(F)(6), on the record

before us, must be upheld as constitutional.

___, ___, ¶¶ 109-14, 111 P.3d 369, 394-95 (2005).

23
B. Are Cromwell’s Non-Capital Sentences Constitutional in
Light of Blakely v. Washington?

¶46 Cromwell does not challenge the statutes on which the

non-capital sentences are based, but rather the validity of the

sentences themselves.

¶47 The essence of his argument is that he was sentenced

unconstitutionally for the non-capital convictions in violation

of the Sixth Amendment, citing the Supreme Court’s decision in

Blakely v. Washington, 124 S. Ct. 2531 (2004).

¶48 The jury convicted Cromwell of a single count of

sexual assault, a dangerous crime against children, and for that

crime, imposed an enhanced statutory sentence of life

imprisonment without the possibility of release for thirty-five

years. See A.R.S. § 13-604.01(A) (Supp. 2001). The jury also

convicted him of two counts of aggravated assault, class three

dangerous offenses, one involving Stephanie’s mother, Ella, and

the other involving Kim Jensen. He was given sentences of ten

years’ imprisonment for each, pursuant to A.R.S. § 13-604(I)

(2001).

The Sexual Assault

¶49 Cromwell contends that his non-capital sentence for

sexual assault was unconstitutional because the trial judge took

his probationary status into account as the aggravating factor.

Although the trial court found that Cromwell was on probation

24
when he committed the offense, it did not rely on that fact.

The sentence was enhanced not on the basis of Cromwell’s status

as a probationer, but on express findings by the jury that the

victim was a child under twelve years of age and that Cromwell

was at least eighteen years of age at the time of the crime.

The trial court thus gave Cromwell the mandatory sentence on the

sexual assault charge pursuant to A.R.S. § 13-604.01(A), which

provides:

A person who is at least eighteen years of age and who
stands convicted of a dangerous crime against children
in the first degree involving sexual assault of a
minor who is twelve years of age or younger . . .
shall be sentenced to life imprisonment and is not
eligible for suspension of sentence, probation, pardon
or release from confinement . . . until the person has
served thirty-five years or the sentence is commuted.

(Emphasis added). Because the jury found all facts necessary

under the statute to impose a sentence of life imprisonment,

there is no Sixth Amendment violation.

The Aggravated Assaults

¶50 Cromwell’s sentences on the two aggravated assault

convictions also do not contravene Blakely. The jury expressly

found that Cromwell used a dangerous instrument (the pool cue)

to commit each assault. The assaults were therefore both class

three felonies. See A.R.S. § 13-1204(A)(1) & (B) (Supp. 2001).

Under A.R.S. § 13-604(I), the presumptive sentence for a class

three felony involving the use of a dangerous instrument is

25
seven and one-half years. However, the presumptive sentence may

be aggravated to a maximum of fifteen years pursuant to § 13-

702(C). That statute permits aggravation when “[t]he defendant

was previously convicted of a felony within the ten years

immediately preceding the date of the offense.” A.R.S. § 13-

702(C)(11) (Supp. 2001).

¶51 The superior court increased each aggravated assault

sentence to ten years based on two prior felony convictions in

Cromwell’s record. Prior convictions constitute an exception to

the jury requirement and need only be found by the trial judge.

Blakely, 124 S. Ct. at 2536; Apprendi v. New Jersey, 530 U.S.

466, 490 (2000). Thus, the ten-year sentences on these

convictions, being within the prescribed range, did not violate

Cromwell’s Sixth Amendment rights under Blakely.

INDEPENDENT REVIEW OF DEATH SENTENCE

¶52 This court is required by statute not only to review

all death sentences, but also to perform a separate, independent

review of each aggravating factor found by the jury and any

mitigating evidence for the purpose of determining the propriety

of the death penalty:

The supreme court shall review all death sentences.
On review, the supreme court shall independently
review the trial court’s findings of aggravation and
mitigation and the propriety of the death sentence.

26
A.R.S. § 13-703.04(A) (Supp. 2003)5.

¶53 Although Cromwell has not raised a question about the

independent review process and the propriety of the death

sentence, the statutory mandate to this court is clear:

If the supreme court determines that an error was made
regarding a finding of aggravation or mitigation, the
supreme court shall independently determine if the
mitigation the supreme court finds is sufficiently
substantial to warrant leniency in light of the
existing aggravation. If the supreme court finds that
the mitigation is not sufficiently substantial to
warrant leniency, the supreme court shall affirm the
death sentence. If the supreme court finds that the
mitigation is sufficiently substantial to warrant
leniency, the supreme court shall impose a life
sentence pursuant to § 13-703, subsection A.

A.R.S. § 13-703.04(B). This language is identical to superseded

A.R.S. § 13-703.01(B), which was applicable during the time

trial judges performed the entire sentencing function. Under

the superseded statute, we determined that in the process of

conducting this court’s independent review, “we consider the

quality and the strength [of the aggravating and mitigating

factors], not simply the number.” State v. Greene, 192 Ariz.

431, 443, ¶ 60, 967 P.2d 106, 118 (1998). Because of the

identical statutory language, our role in the independent review

process has not been altered. We therefore proceed as before.

5
A.R.S. § 13-703.01 was renumbered as § 13-703.04 in 2002.
Although the wording is unchanged, we cite to the current
version here.

27
¶54 Reviewing the capital aggravators in this case is not

complex. The jury found two in support of the death penalty:

1) that the murder was committed in an especially heinous, cruel

or depraved manner6 (A.R.S. § 13-703(F)(6)); and 2) that the

victim was under the age of fifteen years (A.R.S. § 13-

703(F)(9)). These aggravators were essentially uncontested.7

¶55 The record is replete with evidence of cruelty.

Stephanie, the eleven-year-old victim, unquestionably suffered

unspeakable mental anguish, given the medical examiner’s finding

that she was still alive at the time of the stabbing injuries

and the sexual assault. The crimes committed by Cromwell

against the child bespeak horrific cruelty. Eleven-year-old

Stephanie, given her tender age, was made to suffer pre-death

anguish by conduct indescribable except in the most repulsive

terms.

¶56 In Greene, although there was but one aggravator and

several mitigators, we concluded that the evidence of mitigation

6
The superior court in this case wisely employed the
recommended procedure and asked the jury to return separate
verdicts as to each prong of the (F)(6) aggravator. See State
v. Anderson, ___ Ariz. ___, ___, ¶ 131, 111 P.3d 369, 398 (2005)
(recommending this procedure). The jury found that each was
satisfied: the murder was heinous, the murder was cruel, and
the murder was depraved.
7
Cromwell did not dispute the way in which Stephanie was
killed, or her age. He simply maintained that he did not commit
the crime.

28
was nevertheless insufficient to warrant leniency and upheld the

death sentence. Id. at 443-44, ¶ 60, 967 P.2d at 118-19. In

reweighing the aggravators and mitigators as required by the

statute, we have uniformly focused on the quality, not the

quantity, of the factors. See, e.g., State v. Rogovich, 188

Ariz. 38, 45-46, 932 P.2d 794, 801-02 (1997) (holding that the

quality of three aggravators outweighed the value of six

mitigators and that the death penalty was appropriate).

¶57 The mitigating factors, consisting of Cromwell’s less

than adequate childhood experiences and his mental state, were

remarkably weak. Weighed against the aggravating factors, the

evidence of mitigation deserves inconsequential weight. We

conclude, therefore, that the evidence of mitigation is not

sufficiently substantial to warrant leniency.

CONSTITUTIONAL CLAIMS RAISED TO PREVENT FEDERAL PRECLUSION

¶58 1. The prosecutor’s discretion to seek the death

penalty has no standards and therefore violates the Eighth and

Fourteenth Amendments to the United States Constitution and

Article 2, Sections 1, 4, and 15 of the Arizona Constitution.

Rejected by State v. Sansing, 200 Ariz. 347, 361, ¶ 46, 26 P.3d

1118, 1132 (2001), vacated on other grounds, Ring v. Arizona,

536 U.S. 584 (2002); State v. Rossi, 146 Ariz. 359, 366, 706

P.2d 371, 378 (1985).

29
¶59 2. Arizona’s death penalty applies discriminatorily

against poor, young, and male defendants, in violation of

Article 2, Sections 1, 4, and 13 of the Arizona Constitution.

Rejected by Sansing, 200 Ariz. at 361, ¶ 46, 26 P.3d at 1132.

¶60 3. The death penalty is cruel and unusual under any

circumstance and violates the Eighth and Fourteenth Amendments

to the United States Constitution and Article 2, Section 15 of

the Arizona Constitution. Rejected by State v. Harrod, 200

Ariz. 309, 320, ¶ 59, 26 P.3d 492, 503 (2001).

¶61 4. The absence of proportionality review of death

sentences by Arizona courts denies capital defendants due

process of law and equal protection and amounts to cruel and

unusual punishment, in violation of the Fifth, Eighth, and

Fourteenth Amendments to the United States Constitution and

Article 2, Section 15 of the Arizona Constitution. Rejected by

Harrod, 200 Ariz. at 320, ¶ 65, 26 P.3d at 503; State v.

Salazar, 173 Ariz. 399, 416, 844 P.2d 566, 583 (1992).

¶62 5. Arizona’s capital sentencing scheme is

unconstitutional because it does not require that the State

prove the death penalty is appropriate, in violation of the

Fifth, Eighth and Fourteenth Amendments to the United States

Constitution and Article 2, Section 15 of the Arizona

Constitution. Rejected by State v. Ring, 200 Ariz. 267, 284, ¶

30
64, 25 P.3d 1139, 1156 (2001), rev’d on other grounds, Ring v.

Arizona, 536 U.S. 584 (2002).

¶63 6. The death penalty is cruel and unusual because it

is irrationally and arbitrarily imposed and serves no purpose

that is not adequately addressed by life in prison, in violation

of the defendant’s right to due process under the Fourteenth

Amendment to the United States Constitution and Article 2,

Sections 1 and 4 of the Arizona Constitution. Rejected by State

v. Pandeli, 200 Ariz. 365, 382, ¶ 88, 26 P.3d 1136, 1153 (2001),

vacated on other grounds, Ring v. Arizona, 536 U.S. 584 (2002);

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

¶64 7. Arizona’s death penalty scheme does not provide a

defendant convicted of a capital crime the opportunity to death-

qualify the sentencing judge, in violation of the Eighth and

Fourteenth Amendments to the United States Constitution and

Article 2, Section 15 of the Arizona Constitution. Rejected by

Pandeli, 200 Ariz. at 382, ¶ 89, 26 P.3d at 1153.

¶65 8. A.R.S. § 13-703 provides no objective standards

to guide the jurors in weighing the aggravating and mitigating

circumstances and therefore violates the Eighth and Fourteenth

Amendments to the United States Constitution and Article 2,

Section 15 of the Arizona Constitution. Rejected by Pandeli,

200 Ariz. at 382, ¶ 90, 26 P.3d at 1153.

31
¶66 9. A.R.S. § 13-703 does not sufficiently channel the

sentencing jurors’ discretion because the broad scope of

Arizona’s aggravating factors encompasses nearly anyone involved

in a murder, violating the Eighth and Fourteenth Amendments to

the United States Constitution and Article 2, Section 15 of the

Arizona Constitution. Rejected by Pandeli, 200 Ariz. at 382, ¶

90, 26 P.3d at 1153.

¶67 10. Execution by lethal injection is cruel and

unusual punishment. Rejected by State v. Van Adams, 194 Ariz.

408, 422, ¶ 55, 984 P.2d 16, 30 (1999).

¶68 11. A proportionality review of a death sentence is

constitutionally required. Rejected by State v. Gulbrandson,

184 Ariz. 46, 73, 906 P.2d 579, 606 (1995).

¶69 12. Arizona’s death penalty statute violates the

Eighth and Fourteenth Amendments to the United States

Constitution and Article 2, Sections 4 and 15 of the Arizona

Constitution because it does not require multiple mitigating

facts to be considered cumulatively or require the trial court

to make specific findings as to each mitigating factor.

Rejected by State v. Van Adams, 194 Ariz. at 423, ¶ 55, 984 P.2d

at 31.

¶70 13. Arizona’s death penalty statute is

constitutionally defective because it requires defendants to

32
prove that their lives should be spared. Rejected by State v.

Fulminante, 161 Ariz. 237, 258, 778 P.2d 602, 623 (1988).

CONCLUSION

¶71 For the reasons stated, we affirm all of Cromwell’s

convictions and sentences.

_______________________________________
Charles E. Jones, Justice (Retired)

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

33