State v. Newell

SUPREME COURT OF ARIZONA
En Banc

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

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

AFFIRMED
________________________________________________________________

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

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

I

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

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

uniform and carrying a purse or knapsack with long straps.

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

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

neighbor knew both Elizabeth and Newell.

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

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

came upon someone standing in an irrigation ditch. Based on

past experience, the employee initially thought that the person

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

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

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

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

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

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

standing, but he did not retrieve it.

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

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

concern her, however, because Elizabeth routinely went directly

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

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

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

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

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

because the family still had not found Elizabeth, the police

were called.

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

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

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

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

then called in.

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

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

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

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

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

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

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

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

outdoor carpeting. Shoe prints were found along the ditch near

where Elizabeth’s body was found.

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

office after seeing a news report about the investigation. He

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

investigators used that description to create a composite sketch

of the suspect. The employee was also shown a photographic

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

person he had seen in the ditch.1

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

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

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

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

wrists, and forearms, which were consistent with an injury

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

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

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

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

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

abrasion near her right eye. The injuries that caused these

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

¶8 The autopsy also revealed evidence of penetration of

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

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

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

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

but the hymen itself was still intact.

¶9 The medical examiner concluded that Elizabeth died

from asphyxiation due to ligature strangulation. Once the

ligature had been tightened, Elizabeth likely died within a

minute or two. The medical examiner further determined that it

was likely that Elizabeth had stopped breathing before she was

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

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placed in the water because his examination did not reveal any

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

not excessively heavy” from the presence of water.

Elizabeth’s stomach also contained no water.

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

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

collected. These items were subsequently sent to the Department

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

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

detective from the Maricopa County Sheriff’s Office contacted

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

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

Elizabeth’s neighborhood who were interviewed regarding

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

initial interview. During this interview, Newell was asked

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

anything that might be helpful to the investigation. Newell

described what he did that day but made no incriminating

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

he was free to leave.

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

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

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

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

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

went to the station and again answered questions related to his

activities around the time of Elizabeth’s disappearance. During

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

footprints observed at the ditch. Again, Newell was permitted

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

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

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

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

Sheriff’s detectives contacted Newell and asked if he would

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

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

questioning Newell. The entire interrogation was videotaped.

Fewer than ten minutes into the interview, the detectives

advised Newell of the Miranda2 rights. Newell waived those

rights and agreed to speak with the detectives.

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

previous interviews, but became more accusatory after the second

hour. The detectives told Newell that they had evidence that

proved he had committed the murder. Newell initially denied

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

changed as the interrogation continued.

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

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¶15 Eventually, Newell acknowledged that he had been with

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

admitted he had grabbed her and placed her between his legs

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

then acknowledged placing her in the water in the ditch by

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

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

the indoor-outdoor carpeting and ran off. Throughout the

interrogation he maintained that Elizabeth was alive when he

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

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

June 5, 2001.

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

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

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

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

crime lab conducted an analysis on Elizabeth’s underwear.

During the analysis, semen was found inside of the central

crotch area. The criminalist then did a deoxyribonucleic acid

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

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

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

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underwear. Based on this analysis, it was determined that

Newell was the likely source of the sperm.3

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

indicted Newell on three counts related to the disappearance and

death of Elizabeth Byrd: first degree murder, sexual conduct

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

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

counts.

¶19 In the aggravation phase of the sentencing proceeding

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

following aggravating circumstances had been proved beyond a

reasonable doubt: a previous conviction for a serious offense,

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

murder was committed “in an especially heinous, cruel or

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

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

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

sentencing proceedings, the jury heard testimony about Newell’s

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

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

substance abuse.4

¶20 The jury determined that Newell should be sentenced to

death for the first degree murder conviction. For the sexual

conduct with a minor and kidnapping convictions, the court

sentenced Newell to consecutive aggravated terms of twenty-seven

years and twenty-four years respectively. An automatic notice

of appeal was filed with this Court under Rules 26.15 and

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

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

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

II

¶21 Newell first claims that the trial court abused its

discretion by failing to suppress the statements he made to the

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

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

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that these statements should have been suppressed for two

reasons. First, he asserts that the detectives violated his

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

Second, he contends that the inculpatory statements were

involuntarily made.

A

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

admissibility of a defendant’s statements, this Court must

determine whether there has been clear and manifest error.6

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

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

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

reviewed solely based on the evidence presented at the

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

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

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

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

- 10 -
 B

¶23 Newell claims that his statements must be suppressed

because the detectives did not honor his requests for the

presence of counsel during questioning.

¶24 Miranda held that the Fifth Amendment’s protection

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

Fourteenth Amendment, requires procedural safeguards during a

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

not use any statement made by the defendant, whether exculpatory

or inculpatory, unless those procedural safeguards are provided.

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

rights of which a person subject to custodial interrogation must

be informed under Miranda. Id. If the person being

interrogated asserts the right to an attorney, all questioning

must cease until an attorney is present or the defendant

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

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

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

defendant must unambiguously request the presence of counsel.

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

subject to custodial interrogation “must articulate his desire

to have counsel present sufficiently clearly that a reasonable

police officer in the circumstances would understand the

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

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reasonable officer in the circumstances would have understood

only that the defendant might want an attorney, then questioning

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

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

interrogation related to the crime when a suspect makes an

ambiguous or equivocal statement relating to the presence of

counsel and clarify whether the presence of an attorney indeed

has been requested. Id. at 461.

¶26 Newell claims that during the interrogation he

unequivocally invoked his right to counsel several times. The

superior court disagreed and denied Newell’s motion to suppress

his statements because it found that Newell’s alleged

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

¶27 We review the factual findings underlying this

determination for abuse of discretion but review the court’s

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

¶ 62, 94 P.3d 1119, 1140 (2004).

¶28 Although Newell voluntarily went to the Sheriff’s

Office, the procedural protections of Miranda apply because

Newell was subject to custodial interrogation.7 Therefore, if

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

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

the superior court would have been required to suppress the

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

unequivocal requests for counsel.

¶29 First, Newell claims that he unambiguously invoked his

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

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

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

Without further context, this statement appears to be an

unambiguous invocation of the right to counsel.

¶30 After reviewing the videotaped interrogation and

hearing testimony from the detectives, the trial judge found

that this statement was made while Newell and one of the

detectives were talking over each other and it was reasonable to

believe the statement could not be clearly heard. Given these

circumstances, the judge found that the detective was free to

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

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

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

initial request, Newell claims he made two further unequivocal

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

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

the alleged requests were ambiguous because they occurred while

Newell and the detective were talking over each other. The

court further found that one of the alleged requests was

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

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

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

appropriate for the detective to ask for clarification.”

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

discretion in making this determination. The entire exchange

involving the three supposed requests for counsel occurred

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

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

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

detective reasonably found it necessary to ask for

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

contradictory; therefore, a reasonable officer would not

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

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

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free to continue her questioning to “clarify whether or not

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

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

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

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

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

was entirely appropriate.

¶34 Newell next claims that approximately twenty minutes

after the colloquy discussed above he again asked for an

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

request was not asserted by Newell at the suppression hearing.

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

to counsel normally would preclude appellate review of the

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

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

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

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

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

raised for the first time on appeal for fundamental error.

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

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

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

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

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

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

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

(1984)).

¶35 We conclude no fundamental error occurred with respect

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

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

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

mumbled statement made while Newell and the detective were both

talking. It was not a sufficiently clear invocation of the

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

¶36 Newell finally argues that he unequivocally requested

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

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

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

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

an attorney.

¶37 A review of the videotape supports the superior

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

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

this alleged invocation at the suppression hearing because he

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

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

videotape supports the same conclusion. Therefore, the superior

court did not abuse its discretion by finding that Newell had

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

C

¶38 Newell also argues that even if the statements were

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

involuntary. He claims that his statements were rendered

involuntary by the length of the interrogation, the inability to

get counsel after multiple alleged requests, promises made by

the detectives, inappropriate appeals to religious beliefs, and

comments related to a woman for whom he cared deeply.

¶39 In determining whether a confession is involuntary,

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

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

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

determine whether, given the totality of the circumstances, the

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

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

involuntary and the state must show by a preponderance of the

evidence that the confession was freely and voluntarily made.”

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

¶40 The superior court found, after hearing the testimony

presented at the suppression hearing and reviewing the relevant

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

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

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

voluntariness will be sustained absent clear and manifest

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

(2000).

¶41 Newell complains that his will was overborne by the

length of the interrogation. The length of the interrogation

alone, however, is insufficient to find a confession

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

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

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

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

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

¶42 The interrogation here lasted about fourteen hours,

but not all of that time involved questioning. The detectives

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

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

The videotape of the interrogation supports the trial judge’s

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

length of questioning.

¶43 Newell also claims that his confession was involuntary

because the detectives repeatedly ignored his unequivocal

requests for counsel. As discussed above, we conclude that

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

these requests had been unambiguous, however, they would not

necessarily render the confession involuntary; such a

circumstance would be one factor to consider in determining

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

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

that the detectives’ refusal to honor Newell’s ambiguous

requests for counsel caused his will to be overborne. Newell

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

extended time after his claimed requests for counsel.

¶44 Newell next complains that promises made by the

detectives rendered his confession involuntary. We have held

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

confession involuntary when it was relied upon by the defendant

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

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

motion to suppress, implicitly found that there were no promises

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

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

¶45 The statements about which Newell complains relate to

suggestions by the detective that he would feel better if he

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

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

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keep him safe while in jail rendered his confession

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

those comments rose to the level of a promise that prompted

Newell to confess.

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

rely upon them when he made his inculpatory statements. Almost

immediately after hearing the alleged promises, Newell again

denied ever having been in the field with Elizabeth. These

denials continued throughout most of the interrogation.

Therefore, the alleged promises did not render the confession

involuntary.

¶47 Newell also claims that one of the detectives made

references to religion, which added to the coercive nature of

the interrogation and, in addition to everything else, caused

his will to be overborne. The statements about which Newell

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

sins, and asking for forgiveness.

¶48 Appeals to religion do not render confessions

involuntary unless they lead to the suspect’s will being

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

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

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

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

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

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

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

references caused Newell’s will to be overborne.

¶49 Newell’s final complaint concerns statements relating

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

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

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

who was hiding things. He claims that these statements were

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

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

cause Newell to make incriminatory statements. Newell asked the

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

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

that it did not matter what the detective told this woman

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

therefore conclude that these alleged threats did not render

Newell’s statements involuntary.

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

discretion when it found, based on the totality of the

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

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

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Newell complains, at no time during the interview did Newell

capitulate and say what he thought the detectives wanted to

hear. In fact, despite making several incriminating statements,

he persistently refused to admit to sexually assaulting

Elizabeth or to tying the purse strap around her neck.

Accordingly, the totality of the circumstances supports the

superior court’s conclusion that Newell’s statements were

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

sentence must be reversed fails on these grounds.

III

¶51 Newell next challenges the State’s peremptory strike

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

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

Batson held that using a peremptory strike to exclude a

potential juror solely on the basis of race violates the Equal

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

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

challenge was clearly erroneous and, as a result, reversible

error.

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

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

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

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

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

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

160, 162 (App. 2001).

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

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

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

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

neutral explanation for the strike. Finally, if the prosecution

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

must determine whether “the defendant has established purposeful

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

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

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

the trial court requests an explanation for the peremptory

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

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

prosecutor; therefore, the burden shifted to the prosecutor to

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

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

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

explanation,” this burden is satisfied by a facially valid

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

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

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

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

that the persuasiveness of the justification becomes

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

defendant has proven purposeful discrimination, “implausible or

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

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

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

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

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

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

deference. Id. at 340.

¶55 When asked for an explanation of the peremptory

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

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

her questionnaire and in individual voir dire. On the

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

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

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

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

defense counsel, however, the juror answered that she could

consider voting for the death penalty if the court instructed

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

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

she confirmed that her views on the death penalty would not

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substantially impair her ability to follow the court’s

instructions and that she could vote for the death penalty.

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

whether she would give a life sentence rather than impose the

death penalty if the defendant did not present any evidence of

mitigation, she responded in the affirmative. Because this

answer contradicted her statements to defense counsel - that she

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

then under what circumstances you would impose the death

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

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

standard related to mitigation, the juror acknowledged that she

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

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

not introduce any mitigating evidence.

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

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

subsequently used one of his peremptory strikes to strike the

juror from the list of potential jurors.

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

involved the juror’s contradictory responses about whether she

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

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

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

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(discussing the fact that inconsistent responses may be a

reasonable race-neutral explanation for a peremptory strike,

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

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

evidence, other than inference, to show that the peremptory

strike was a result of purposeful racial discrimination. See

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

strike” carries the ultimate burden of persuasion in a Batson

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

determination that the State’s peremptory strike did not violate

Batson.

IV

¶59 Newell contends that the trial court abused its

discretion when it denied his motion for a mistrial. Newell

argues that statements made by the prosecutor during closing

arguments constituted prosecutorial misconduct and warranted a

mistrial because they improperly vouched for the State’s

evidence and impugned the integrity of defense counsel.

A

¶60 To determine if a prosecutor’s comments constituted

misconduct that warrants a mistrial, a trial court should

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

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

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

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

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

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

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

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

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

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

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

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

(internal quotation omitted).

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

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

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

prosecutorial misconduct in the absence of a clear abuse of

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

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

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

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

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

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

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

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

B

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¶62 Newell first claims that the prosecutor improperly

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

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

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

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

prosecutor places the prestige of the government behind its

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

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

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

Newell argues that these statements fall into the second

category. We disagree.

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

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

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

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

The prosecutor’s response merely explained to the jury that

there were simply too many documents and witnesses for either

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

imply that these police reports and witnesses supported the

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

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

¶64 The second ground for Newell’s prosecutorial

misconduct claim relates to the prosecutor’s statements, also

made during rebuttal closing argument, about the superiority of

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

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

most powerful investigative tool in law enforcement at this

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

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

defense counsel knew this was true. The court sustained

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

these statements required a mistrial because they improperly

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

defense counsel.

¶65 We agree that both comments were improper. The

prosecutor’s statement about the superiority of DNA evidence

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

been elicited about the preeminence of DNA evidence. The

prosecutor’s comment here - that everyone knows that DNA

evidence is the best investigative tool around – did improperly

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

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

improperly vouches by suggesting that evidence not presented to

the jury supports the presented evidence).

¶66 The prosecutor also improperly commented about what

defense counsel knew about the strength of DNA evidence. We

have previously stated that it is improper to impugn the

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

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

defense counsel knew that DNA evidence is a compelling

investigative tool, was insinuating, if not directly stating,

that any argument made to the contrary was disingenuous.

Because defense counsel, in his closing argument, had questioned

whether the DNA evidence proved anything beyond a reasonable

doubt, the prosecutor’s response in claiming that defense

counsel knew that DNA was superior evidence called into question

the integrity of defense counsel.

¶67 Such improper comments by the prosecutor will not

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

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

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

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

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

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

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

prosecutor improper, for several reasons we conclude that the

defendant was not convicted on the basis of those comments and

they did not deny him a fair trial.

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

the superior court instructed the jury that anything said in

closing arguments was not evidence. We presume that the jurors

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

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

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

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

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

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

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

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

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

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

instruction immediately followed the sustained objection, the

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

sustained objection meant that the information must be

disregarded. Again, because we presume jurors follow the

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

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

verdict.

¶70 Finally, the trial court determined that the

statements about which Newell complains were not so prejudicial

that they required a mistrial. When considered in the context

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

guilt influenced the jury to convict Newell rather than the

prosecutor’s statements about the DNA evidence and defense

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

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concedes the evidence overwhelmingly establishes his guilt.

Therefore, despite the fact that these comments were improper,

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

to a fair trial.

V

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

preclude the rebuttal testimony of his adult probation officer

at the penalty phase of the sentencing proceeding was an abuse

of discretion. The testimony about which Newell complains

referred to the opportunities Newell was offered to get help for

his drug problem. Newell contends that he did not present

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

mitigating factor; consequently, the State was not entitled to

present evidence in rebuttal that Newell had had opportunities

to get help.

¶72 The trial court determined that the probation

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

made during the course of the interrogation about needing and

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

believed that because the jurors had heard these statements

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

deciding whether Newell deserved leniency. Therefore, the court

concluded that this was “appropriate grist for the rebuttal

mill.”

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

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

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

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

94 P.3d at 1140.

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

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

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

offered - no matter who offers them - when considering

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

evidence admitted during the guilt phase of the trial is

admitted for purposes of the sentencing proceeding. § 13-

703(D).

¶75 Newell claims that the State’s presentation of

evidence to rebut statements he made during his interrogation

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

evidence of his alleged inability to obtain treatment for his

drug addiction. We disagree with this contention for two

reasons. First, Newell himself put forth evidence during the

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

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

cross-examination of one of the detectives, Newell elicited

evidence of his struggle with drug addiction and his attempts to

get help. In the penalty phase, witnesses testified about

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

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

seventh grade. Newell also mentioned his long history of

substance abuse in his allocution. Second, during his

interrogation, Newell referred numerous times to his inability

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

about wanting to live without drugs and about asking for help

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

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

problems like his should receive help.

¶76 The evidence presented during the guilt phase of the

trial was deemed admitted for purposes of the sentencing

proceeding because the same jury that determined Newell’s guilt

also decided whether he should receive the death penalty.

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

expressly offer as a mitigating factor his alleged inability to

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

factored his complaints on this topic, along with the other

evidence presented during the penalty phase about Newell’s drug

use, into its consideration of whether the mitigating

circumstances were “sufficiently substantial to call for

leniency.” A.R.S. § 13-703(E), (G).

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

could present testimony from Newell’s probation officer in

rebuttal was not an abuse of discretion.

VI

¶78 Finally, Newell contends that the trial court abused

its discretion by precluding the testimony of his mental health

expert at the penalty phase as a sanction for refusing to

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

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

mental health examination by the State’s expert violates his

privilege against self-incrimination.

¶79 Newell acknowledges that we have previously held that

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

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

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

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

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

specific protections, we held that this may be done without

running afoul of the defendant’s privilege against self-

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

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

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

defendant’s mental-health related mitigation evidence at the

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

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¶80 Newell presents no arguments that would compel us to

revisit our decision in Phillips. Therefore, the superior court

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

health expert.

VII

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

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

“aggravation and mitigation and the propriety of the death

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

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

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

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

independently determine if the mitigation . . . is sufficiently

substantial to warrant leniency in light of the existing

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

mitigation is sufficiently substantial to warrant leniency,”

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

required to affirm the death sentence. Id.

¶82 In conducting our independent review we do not merely

consider the quantity of aggravating and mitigating factors

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

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

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

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

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

established before we consider the mitigation evidence. See

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

establish such a causal connection may be considered in

assessing the quality and strength of the mitigation evidence.

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

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

decision of the jury,” with respect to aggravation or

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

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

P.3d 402, 416 (2005).

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

aggravating circumstances. Newell’s prior conviction for

attempted kidnapping established that he had a serious prior

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

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

years old. A.R.S. § 13-703(F)(9).

¶84 An aggravating circumstance is also established when

murder is committed in an especially cruel, heinous or depraved

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

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

aggravator focuses on the suffering of the victim, while the

heinousness and depravity prongs focus on the state of mind of

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

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

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

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

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

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

111 P.3d at 397-98.14

¶85 Here, substantial evidence supports the cruelty prong

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

victim “consciously experienced physical or mental pain prior to

death and the defendant knew or should have known that suffering

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

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

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

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

arms, sexual assault-related bruises and injuries, testimony

that it normally takes two minutes for death by asphyxiation to

occur, and marks showing that Elizabeth was grasping at the

ligature - all support the conclusion that this murder was

especially cruel. Elizabeth suffered serious physical and

mental anguish before she died. Newell should have known that

such suffering would occur. Because we find that compelling

evidence supports a finding of cruelty, we need not examine

whether the evidence also establishes the heinousness or

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

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

either cruelty or heinousness/depravity will suffice to

establish” the (F)(6) factor).

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

his unstable childhood and drug use. Newell’s witnesses

testified that during childhood his home life was unstable. In

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

addictions who engaged in drug-related activities. Several

witnesses testified that Newell had been sexually and physically

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

had an extended history of drug use.

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

sufficiently substantial to call for leniency. No evidence

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

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

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

Moreover, in view of the compelling aggravating circumstances,

the mitigation evidence simply fails to rise to a level that

would call for leniency.

VIII

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

and sentences.

__________________________________
Michael D. Ryan, Justice

CONCURRING:

_________________________________________
Ruth V. McGregor, Chief Justice

_________________________________________
Rebecca White Berch, Vice Chief Justice

_________________________________________
Andrew D. Hurwitz, Justice

_________________________________________
W. Scott Bales, Justice

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