State v. Womble

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-07-0139-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2002-010926
BRIAN ALLEN WOMBLE, )
)
Appellant. )
) O P I N I O N
__________________________________)

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

AFFIRMED
________________________________________________________________

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

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By Peg Green, Deputy Public Defender
Tennie B. Martin, Deputy Public Defender
Attorneys for Brian Allen Womble
________________________________________________________________

R Y A N, Justice

¶1 Brian Allen Womble was convicted of first degree

murder and sentenced to death. This is an automatic appeal

under Arizona Rules of Criminal Procedure 26.15 and 31.2. This

Court has jurisdiction under Article 6, Section 5(3) of the
Arizona Constitution and Arizona Revised Statutes (“A.R.S.”)

section 13-4031 (2010).

I1

A

¶2 On March 14, 2002, Paul Bradley Speer and his half-

brother, Chris Womble, burglarized Adan and Enriqueta Soto’s

apartment and were arrested shortly thereafter. While awaiting

trial, Speer was incarcerated in the Maricopa County jail.

¶3 Telephone calls made by inmates in the jail were

recorded. Speer called Brian Womble, his other half-brother,

many times between March and June 2002. Detectives later

identified these calls and reviewed their content.

¶4 Speer initially asked Womble to speak with the Sotos

to persuade them not to testify. By the end of April 2002,

however, Speer and Womble had moved to “Plan B,” which was to

kill the Sotos. On May 5, Speer told Womble to get his “heat”

from a safe deposit box. A week later, Speer urged Womble to

“make sure [to] take care of everybody in that house.” Womble

told Speer he planned to make a silencer.

¶5 On May 17, the brothers debated different plans to get

Womble inside the Sotos’ apartment. A week later, Womble

1
Except in our independent review of the death sentence, we
view the facts in the light most favorable to sustaining the
jury’s verdict. State v. Garza, 216 Ariz. 56, 61 n.1, 163 P.3d
1006, 1011 n.1 (2007).

2
assured Speer that he would follow through with the plan that

night. Sometime before 5:00 a.m. on May 25, Womble broke into

the apartment and shot Mr. and Mrs. Soto while they were asleep.

Mr. Soto died, and Mrs. Soto was critically injured. The Sotos’

baby, who was sleeping with them in their bed, was uninjured.

¶6 Womble and Speer referred to the murder several times

during subsequent calls. The day after the murder, Womble

confirmed that he had “fixed both parts.” Speer advised Womble

to get rid of his guns. During a June 10 telephone call, Womble

told Speer that Mrs. Soto was still alive.

¶7 Womble was indicted for first degree murder, attempted

first degree murder, conspiracy to commit first degree murder,

burglary, misconduct involving weapons and two counts of

aggravated assault.2 On April 26, 2007, the jury returned guilty

verdicts on all charges.3

¶8 During the aggravation phase, the jury unanimously

found three aggravating circumstances proved beyond a reasonable

doubt: (1) Womble committed the offense while on probation for

2
The grand jury also indicted Speer for first degree murder
and five other felonies in connection with the murder. See
State v. Speer, 221 Ariz. 449, 454 ¶ 20, 212 P.3d 787, 792
(2009). Womble’s case was severed before Speer’s trial.
3
The trial court severed the charge of weapons misconduct
and later found Womble guilty of that charge.

3
a felony offense, A.R.S. § 13-751(F)(7)(b)(2010);4 (2) in the

commission of the offense, Womble knowingly created a grave risk

of death to the Sotos’ infant son, § 13-751(F)(3); and (3) the

murder was committed in an especially heinous or depraved

manner, § 13-751(F)(6).

¶9 Womble made a brief allocution during the penalty

phase, but otherwise offered no additional evidence or argument

for leniency. The jury determined that death was the

appropriate sentence.

II

A

¶10 Womble first argues that the trial court violated his

Sixth Amendment right to confrontation by allowing a detective

to testify to statements made by a jail informant. The Court

usually reviews Confrontation Clause challenges de novo. State

v. Boggs, 218 Ariz. 325, 333 ¶ 31, 185 P.3d 111, 119 (2008).

However, because Womble failed to object below on this ground,

he must show fundamental error. Id.

¶11 At trial, the detective testified that he had not

heard of Brian Womble until a jail informant came forward with

4
Since the date of the offense, Arizona’s capital sentencing
statutes have been reorganized and renumbered as A.R.S. §§ 13-
751 to -759 (2010). 2008 Ariz. Sess. Laws, ch. 301, §§ 26, 38-
41 (2d Reg. Sess.). Because the renumbered statutes are not
materially different from the prior version, we cite the current
version unless otherwise noted.
4
information. Womble objected on hearsay grounds, and the court

overruled the objection. The State then asked how the detective

had learned of Womble. The detective named the jail informant

and explained that after interviewing him,

I learned that Paul Speer and Christopher Womble had a
brother by the name of Brian Womble, and upon further
investigation I was able to learn the address and
phone numbers associated with Brian Womble, and
another detective was able to obtain a court order for
listening to phone calls regarding those particular
phone numbers.

Womble made no further objections.

¶12 The Confrontation Clause of the Sixth Amendment

generally precludes the admission of testimonial hearsay unless

the defendant had a prior opportunity to cross-examine the

unavailable declarant. Crawford v. Washington, 541 U.S. 36, 68

(2004). The Confrontation Clause, however, “does not bar the

use of testimonial statements for purposes other than

establishing the truth of the matter asserted.” Id. at 59 n.9;

see also State v. Tucker, 215 Ariz. 298, 315 ¶ 61, 160 P.3d 177,

194 (2007); State v. Roque, 213 Ariz. 193, 214 ¶ 70, 141 P.3d

368, 389 (2006).

¶13 The detective here testified only that the informant

told him of Womble’s existence, which resulted in the detective

seeking a court order to review the jail tapes. The testimony

was not offered to prove that Womble was involved in the murder,

but rather only to explain why the detective obtained the order

5
to listen to Speer’s calls to Womble. The testimony thus did

not violate the Confrontation Clause.

B

¶14 Womble next contends that the trial court abused its

discretion by not suppressing the jail recordings of his

conversations with Speer. Womble claims that because nine

recordings listened to by the detectives were not preserved, the

remaining tapes should not have been admitted.

¶15 In June 2002, a detective obtained a court order for

the release by a private recording company of jail telephone

calls made by Speer to the telephone numbers of Womble’s parents

and a family friend with whom Womble was living. Several

detectives listened to the taped conversations and preserved

copies of the relevant ones; the police did not preserve copies

of nine calls.

¶16 In July 2002, the State gave Womble’s attorney copies

of the tapes it possessed and provided a supplemental listing of

calls the officers had reviewed but not preserved. Womble’s

attorney then filed a discovery motion under Arizona Rule of

Criminal Procedure 15.1(b)(2), seeking “[a]ll statements of the

defendant and of any person who will be tried with the

defendant.” The private company that kept the tapes had

destroyed tapes of those calls not preserved by the officers,

under a company policy that called for destruction of tapes not

6
requested by either the defense or the prosecution within six

months of their recording.

¶17 In 2005, Womble moved to suppress the tapes of the

recorded jail calls. At the evidentiary hearing, the detective

who requested the court order to review the jail calls testified

that he preserved any information related to the homicide,

whether inculpatory or exculpatory. Alluding to Arizona v.

Youngblood, 488 U.S. 51, 58 (1988), for the proposition that the

“failure to preserve potentially useful evidence does not

constitute a denial of due process unless a criminal defendant

can show bad faith on the part of the police,” the trial court

denied the motion.

¶18 Womble contends that the destruction of the tapes

requires reversal. We rejected this argument in State v. Speer,

221 Ariz. 449, 457 ¶ 38, 212 P.3d 787, 795 (2009). Womble, like

Speer, failed to show that the “destroyed tapes contained

material exculpatory evidence or that the police acted in bad

faith.” Id. “The mere possibility that destroyed evidence

could have exculpated a defendant is insufficient to establish a

due process violation.” State v. O’Dell, 202 Ariz. 453, 458 ¶

13, 46 P.3d 1074, 1079 (App. 2002).5 The detectives understood

5
Womble also contends the State violated Rule 15.1(b)(2),
which requires the state to disclose all written or recovered
statements of the defendant or any person who will be tried with
the defendant. Ariz. R. Crim. P. 15.1(b)(2) & cmt. However, in
7
what evidence they were required to preserve, and nothing

suggests that they failed to preserve tapes of the relevant

calls. See Speer, 221 Ariz. at 457 ¶¶ 37-38, 212 P.3d at 795.

C

¶19 Womble requested an instruction on second degree

murder and attempted second degree murder. The court rejected

the request, finding that no rational juror could fail to find

premeditation. Womble now argues that a jury could rationally

conclude that he led Speer to believe that he was going to kill

the Sotos, but intended only to cause serious physical injury or

possibly death.

¶20 “A sentence of death may not be imposed if the jury

was not permitted to consider a lesser-included, non-capital

offense and the evidence would have supported such a verdict.”

State v. Nordstrom, 200 Ariz. 229, 253 ¶ 81, 25 P.3d 717, 741

(2001) (citing Beck v. Alabama, 447 U.S. 625, 627 (1980)). The

“key to this rule is ‘whether the jury could rationally fail to

find the distinguishing element of the greater offense.’” State

v. Jones, 203 Ariz. 1, 11 ¶ 37, 49 P.3d 273, 283 (2002) (quoting

State v. Murray, 184 Ariz. 9, 34, 906 P.2d 542, 567 (1995)); see

also State v. Bearup, 221 Ariz. 163, 168 ¶ 23, 211 P.3d 684, 689

(2009); State v. Landrigan, 176 Ariz. 1, 6, 859 P.2d 111, 116

this case, the State produced all calls taped by the detectives
and disclosed a list of the phone calls they reviewed but did
not preserve, and thus complied with Rule 15.1(b)(2).
8
(1993) (“Beck does not require a trial court to instruct on a

lesser offense that is unsupported by the evidence.”). In this

case, the distinguishing element is premeditation.6

¶21 Womble and Speer planned the murders of the Sotos

during telephone conversations that took place over four weeks.

After the murder, Womble made several statements showing he

intended to kill the Sotos and thought he had succeeded. Womble

also told Speer that killing the Sotos made him feel good.

Womble broke into the Sotos’ apartment at night, selected the

more powerful of his two guns and used ammunition designed to

increase internal damage to the body as well as a silencer to

avoid detection. Additionally, on the day before the murder,

Womble told a therapist that he planned to kill someone.

¶22 Womble’s statements after the murder, combined with

the “deliberate and calculated steps” he took before the murder,

conclusively establish that he intended to kill the Sotos. The

transcripts of the jail calls do not include any statements by

Womble suggesting that he considered abandoning his plan. Given

6
Premeditation requires proof

that the defendant act[ed] with either the intention
or the knowledge that he [would] kill another human
being, when such intention or knowledge precede[d] the
killing by any length of time to permit reflection.
Proof of actual reflection is not required, but an act
is not done with premeditation if it is the instant
effect of a sudden quarrel or heat of passion.

A.R.S. § 13-1101(1) (2010).
9
the overwhelming evidence presented by the State, no rational

juror could fail to find premeditation.

D

1

¶23 During the aggravation phase, the State argued that

Mr. Soto’s murder was heinous or depraved because Womble’s

motive was to prevent Mr. Soto from testifying at Speer’s

burglary trial.

¶24 Womble now asserts that when the crime was committed,

the state was required to prove witness elimination plus another

factor to meet its burden for the (F)(6) aggravator. He argues

that it was not until State v. Johnson, 212 Ariz. 425, 439 ¶ 58,

133 P.3d 735, 749 (2006), that this Court held that witness

elimination alone could form the basis for a finding of

heinousness or depravity.

¶25 Citing Bouie v. City of Columbia, 378 U.S. 347, 352-54

(1964), Womble contends that Johnson’s construction of § 13-

751(F)(6) was an unforeseeable and retroactive expansion of the

law. As such, he argues that its interpretation of (F)(6) based

on witness elimination violated his due process rights and

“operate[d] precisely like an ex post facto law,” quoting Bouie,

378 U.S. at 353.

¶26 Womble’s reliance on Bouie is misplaced. In Bouie,

the defendants were convicted of violating a trespass statute.

10
Id. at 350. Although the state law by its terms only prohibited

“the act of entry on the premises of another after receiving

notice not to enter,” the state court interpreted the statute to

also apply to remaining on the premises. Id. In reversing, the

Supreme Court held that a defendant is deprived of his right to

fair notice when “a statute precise on its face has been

unforeseeably and retroactively expanded by judicial

construction.” Id. at 352, 355.

¶27 In contrast, witness elimination was recognized as a

factor supporting heinousness or depravity long before Womble

committed this murder. In State v. Gretzler, the Court set

forth five factors to be considered in determining whether a

murder is heinous or depraved. 135 Ariz. 42, 52-53, 659 P.2d 1,

11-12 (1983).7 Three years later, we noted that “[i]n addition

to th[ose] five factors . . . we have also found that depravity

is indicated where defendant admitted he committed the murder to

prevent the victim from testifying against him concerning a

felony that occurred contemporaneously with the murder.” State

v. Correll, 148 Ariz. 468, 481, 715 P.2d 721, 734 (1986) (citing

7
The following five factors support a finding of heinousness
or depravity: (1) relishing; (2) infliction of gratuitous
violence; (3) needless mutilation of the victim; (4)
senselessness of the crime; and (5) helplessness of the victim.
Gretzler, 135 Ariz. at 52-53, 659 P.2d at 11-12. However, a
finding of senselessness or helplessness alone generally does
not establish heinousness or depravity. State v. Murdaugh, 209
Ariz. 19, 33 ¶ 67, 97 P.3d 844, 858 (2004).
11
State v. Smith, 141 Ariz. 510, 511-12, 687 P.2d 1265, 1266-67

(1984)); see also State v. Stanley, 167 Ariz. 519, 529, 809 P.2d

944, 954 (1991) (killing five-year-old daughter “for no reason

other than to eliminate her as a witness” to her mother’s murder

supports finding of depravity); State v. Gillies, 142 Ariz. 564,

570, 691 P.2d 655, 661 (1984) (recognizing witness elimination

as supporting finding of heinousness or depravity).

¶28 In State v. King, although finding that killing a

witness “demonstrates a cold-blooded, vile state of mind,” the

Court rejected a finding of the (F)(6) aggravator based solely

on witness elimination. 180 Ariz. 268, 285-86, 883 P.2d 1024,

1041-42 (1994). In that case, the defendant killed a store

clerk and security guard during the course of a robbery. Id. at

270, 883 P.2d at 1026. The opinion suggested that witness

elimination was “similar” to the factors of helplessness and

senselessness, stating that “only under limited circumstances

will [these factors] — together or standing alone — lead to a

finding that a murder was committed in a heinous or depraved

manner.” Id. at 286-87, 883 P.2d at 1042-43.

¶29 In a concurring opinion, Justice Moeller made clear

that, under some circumstances, witness elimination alone can

support an (F)(6) finding. Id. at 289-90, 883 P.2d at 1045-46

(Moeller, J., concurring). He explained, consistent with our

previous decisions, that witness elimination would suffice to

12
prove heinousness or depravity when a witness was murdered to

prevent that person from testifying about another crime, which

was not the case in King. Id. at 290, 883 P.2d at 1046.

¶30 Shortly thereafter, expressly adopting Justice

Moeller’s King concurrence, we distinguished the murder of a

witness to a different crime from the more common case of murder

of the victim of the same crime. State v. Ross, 180 Ariz. 598,

606, 886 P.2d 1354, 1362 (1994). The Court set forth three

circumstances under which witness elimination could “be proper

evidence of heinousness or depravity”: (1) the victim witnessed

another crime and was killed to prevent testimony about that

crime; (2) defendant made a statement or other evidence of his

state of mind shows witness elimination was a motive; or (3)

some extraordinary circumstances show the murder was motivated

by a desire to eliminate witnesses. Id. Since Ross, we have

consistently held that the elimination of a witness to another

crime will support a finding of heinousness or depravity.

¶31 Johnson, relying on Ross, confirmed that the

elimination of a witness to some other crime “can itself be

sufficient to find heinousness or depravity.” 212 Ariz. at 439

¶¶ 59-60, 133 P.3d at 749. There, the defendant murdered a

victim of a robbery committed by him and a fellow gang member

after learning the victim intended to testify at the partner’s

preliminary hearing. Id. at 428-29 ¶¶ 2-4, 133 P.3d at 738-39.

13
We distinguished King, noting that in that case the defendant

murdered the victim of the same crime, not some other crime.

Id. at 439 ¶ 58, 133 P.3d at 749. In doing so, we “uph[e]ld

Ross’s distinction between the elimination of the victim of the

capital crime, which would be present in every murder and the

elimination of a witness to another crime, which is a separate

and serious act.” Id. at ¶ 60 (internal quotation marks and

citation omitted).

¶32 Thus, Johnson was not an unforeseeable and retroactive

judicial expansion of the law. It explained and affirmed the

long-recognized difference between eliminating a witness to the

crime itself and eliminating a witness to a separate crime. See

State v. Schad, 163 Ariz. 411, 420, 788 P.2d 1162, 1171 (1989)

(finding no unforeseeable judicial enlargement of the (F)(5)

pecuniary gain aggravator when a decision issued after the

murder “merely recognized the pre-existing scope” of the

statute). The trial court’s instruction properly permitted the

jury to find the (F)(6) aggravator based on a finding of witness

elimination alone and did not violate Womble’s due process

rights.

2

¶33 Womble also argues that the trial court erred in

instructing the jury that it could find the (F)(6) aggravator

14
based on a combination of heinousness or depravity. The trial

court’s instruction stated, in part, that “the presence of any

one factor, or a combination of factors, is sufficient to

establish this aggravating circumstance. Your finding must be

unanimous as to whether it is either especially heinous or

depraved, or combination thereof.” Womble contends that because

some jurors may have found the murder heinous and others

depraved, he may have been denied a unanimous jury finding on

the aggravator. See A.R.S. § 13-752(E) (2010) (requiring that a

jury’s finding of an aggravating circumstance be unanimous). We

review only for fundamental error because Womble did not object

to the instruction. See State v. Kiles, 222 Ariz. 25, 30 ¶ 16,

213 P.3d 174, 179 (2009).

¶34 The (F)(6) aggravator “is a single aggravating

circumstance” that can be established in two ways, State v.

Lynch, __ P.3d __, 2010 WL 2485248, at *11-12 ¶¶ 77, 84 (Ariz.

June 22, 2010); the state may either prove beyond a reasonable

doubt that the murder was especially cruel, which goes to the

“mental anguish or physical pain suffered by the victim before

death,” or that it was committed in an especially “heinous or

depraved” manner, which goes to the mental state and attitude of

the defendant, State v. Murdaugh, 209 Ariz. 19, 31 ¶¶ 57, 59, 97

P.3d 844, 856 (2004). While the terms “heinous or depraved” are

written in the disjunctive, they, in fact, constitute one prong.

15
See Gretzler, 135 Ariz. at 52-53, 659 P.2d at 11-12 (noting that

a finding of any of the five Gretzler factors may establish the

“heinous or depraved” prong). As discussed above, elimination

of a witness to another crime constitutes heinousness or

depravity, and thus establishes that prong of the (F)(6)

aggravator. See Speer, 221 Ariz. at 464 ¶ 82, 212 P.3d at 802

(witness elimination is especially heinous or depraved); Tucker,

215 Ariz. at 312 ¶ 39, 160 P.3d at 191 (same); Gillies, 142

Ariz. at 570, 691 P.2d at 661 (same).

¶35 The trial court erred to the extent that it instructed

the jury that heinousness and depravity are two distinct prongs

of the (F)(6) aggravator. See State v. Anderson, 210 Ariz. 327,

354 ¶¶ 119, 121, 111 P.3d 369, 396 (2005) (referring to the

(F)(6) prongs as “especially cruel” and “especially

heinous/depraved” or “especially heinous or depraved”);

Murdaugh, 209 Ariz. at 31 ¶ 59, 97 P.3d at 856 (stating that

“[t]he term ‘heinous or depraved’ is used to describe the

defendant’s state of mind”); cf. State v. Grell, 212 Ariz. 516,

519 n.2 ¶ 8, 135 P.3d 696, 699 n.2 (2006) (noting that

heinousness and depravity are often analyzed together). But

given that there was sufficient evidence to prove the murder was

committed to eliminate a witness to another crime, the murder

16
was thus “heinous or depraved” and no prejudice can be shown

from the instruction.8

3

¶36 Womble also challenges the (F)(6) aggravator as

facially vague and vague as applied. The Supreme Court has held

that the especially heinous, cruel or depraved aggravating

factor is facially vague. Walton v. Arizona, 497 U.S. 639, 654

(1990), overruled on other grounds by Ring v. Arizona (Ring II),

536 U.S. 584 (2002). However, this Court’s construction of the

statute furnishes sufficient guidance to satisfy Eighth and

Fourteenth Amendment concerns. State v. Hampton, 213 Ariz. 167,

176 ¶¶ 35-36, 140 P.3d 950, 959 (2006); see also Tucker, 215

Ariz. at 310 ¶ 28, 160 P.3d at 189. Therefore, Womble’s

argument on facial vagueness fails.

¶37 Womble additionally contends that the (F)(6)

aggravator is vague as applied because of the “increased role of

the jury in the sentencing process and the abandonment of

proportionality review.” We have previously rejected this

argument. See Hampton, 213 Ariz. at 176 ¶ 36, 140 P.3d at 959

8
We likewise reject Womble’s related argument that the
verdict form for the (F)(6) aggravator improperly permitted the
jury to reach a non-unanimous finding because the form did not
specify that the jury make a separate finding of “especially
heinous,” or “especially depraved.” The verdict form, which
read, “The Defendant committed the offense in an especially
heinous or depraved manner,” correctly reflected the law.
17
(holding that “the (F)(6) aggravator may be constitutionally

applied if given substance and specificity by jury instructions

that follow this Court’s constructions”).

¶38 Womble further argues that even if the Gretzler

factors are sufficiently described, it is impossible to

determine which murders are “above the norm” without

proportionality review. We have also rejected this argument.

See State v. Andriano, 215 Ariz. 497, 506 ¶ 43, 161 P.3d 540,

549 (2007); see also Johnson, 212 Ariz. at 431-32 ¶ 20, 133 P.3d

at 741-42.

E

¶39 Womble next asserts the trial court erred in

instructing the jury at the aggravation and penalty phases that

he could eventually be released if given a life sentence. He

contends that a jury, believing he was parole eligible, may have

considered him to be “a greater threat to society than a

defendant who is not.” Because Womble did not object to the

instruction, we review for fundamental error. Kiles, 222 Ariz.

at 30 ¶ 16, 213 P.3d at 179.

¶40 At the time of Mr. Soto’s murder, Arizona law

provided, in part, that if the defendant is not sentenced to

natural life, “the defendant shall not be released on any basis

until the completion of the service of twenty-five calendar

years” if the victim was fifteen or more years of age. A.R.S. §

18
13-703(A) (Supp. 2003). The statute makes clear that Womble’s

assertion that he would never be released is merely speculative.

See State v. Cruz, 218 Ariz. 149, 160 ¶ 42, 181 P.3d 196, 207

(2008).9

¶41 Although the trial court erred in using the term

“parole” in the aggravation phase instructions, the final

penalty phase instructions correctly used the term “release.”

As this Court noted in Cruz, id. at 160 ¶ 42, 181 P.3d at 207,

and as § 13-703(A) reflects, Arizona law does not prohibit the

release of a defendant given a life sentence once that defendant

serves twenty-five years. See A.R.S. § 31-402(C)(4) (Supp.

2009).

F

¶42 Womble claims the trial court unconstitutionally

interfered with his right to allocution. He argues that the

court’s “warnings” led him to believe that he should not present

his full statement.

¶43 At the beginning of the aggravation phase, the trial

court advised Womble of his right to allocution and explained

the State’s right to rebut certain statements. Before the

9
See also A.R.S. § 31-402(C)(4) (Supp. 2009) (providing for
the Board of Executive Clemency to “receive petitions from
individuals, organizations or the department [of Corrections]
for review and commutation of sentences and pardoning of
offenders in extraordinary cases and [] make recommendations to
the governor” for offenses committed on or after January 1,
1994).
19
penalty phase, the court told Womble that if he decided to

allocute, “there’s nothing [the court] can do about it.” The

court suggested that Womble first present his statement to the

court, which he did. The court noted that comments about his

suicidal thoughts might open the door to evidence from the

State’s psychologist, which Womble’s defense team had

successfully kept from the jury. Following the court’s

suggestion, Womble offered a brief allocution but did not

mention his suicidal thoughts.

¶44 Defendants have the right to allocute before

sentencing. Ariz. R. Crim. P. 19.1(d)(7), 26.10(b)(1).

However, that right is not absolute. State v. Armstrong, 218

Ariz. 451, 463 ¶ 58, 189 P.3d 378, 390 (2008). The State, in

turn, “may present any evidence that demonstrates that the

defendant should not be shown leniency.” A.R.S. § 13-752(G).

¶45 The trial court did not deny Womble’s right to

allocute. The court’s comments suggested that Womble would be

ill-advised to read certain portions of his original statement,

but he remained free to make whatever statement he wanted.

Womble made a tactical decision not to include the first part of

his statement to prevent the State from introducing testimony

and reports from the State’s psychologist. The court acted

within its discretion when it advised Womble that the State

might be permitted to present rebuttal evidence in response to

20
certain of his proposed statements. See Armstrong, 218 Ariz. at

463 ¶ 59, 189 P.3d at 390 (stating that when defendant chose not

to express remorse in allocution to avoid state’s rebuttal

evidence, the trial court did not impermissibly limit

defendant’s right to allocate because defendant “remained free

to express remorse, but he declined to do so”).

G

¶46 Before trial, Womble stated his intent to present age

as mitigation. See A.R.S. § 13-751(G)(5). He turned nineteen

approximately two weeks before the murder. Citing Roper v.

Simmons, 543 U.S. 551 (2005), Womble argued that he would

present solely his “raw” age, rather than using it as a starting

point for a discussion of his intelligence, maturity, and past

experience. In doing so, he contended that he would not be

opening the door to rebuttal evidence. Before the aggravation

phase, the trial court ruled that if defense counsel mentioned

Womble’s age during the penalty phase, rebuttal evidence would

be permitted. Womble did not argue age as a reason for

leniency.

¶47 Under § 13-751(C), the state may present any

information that is relevant to any of the mitigating

circumstances, regardless of its admissibility under the rules

of evidence. See State v. Pandeli, 215 Ariz. 514, 527 ¶ 42, 161

P.3d 557, 570 (2007). Deference is given to a trial court’s

21
decision as to the relevance of evidence presented during the

penalty phase. State v. McGill, 213 Ariz. 147, 156-57 ¶ 40, 140

P.3d 930, 939-40 (2006). However, the Due Process Clause of the

Fourteenth Amendment limits the scope of rebuttal to the extent

that trial courts should not admit even relevant evidence that

is “unfairly prejudicial.” Pandeli, 215 Ariz. at 527-28 ¶ 43,

161 P.3d at 570-71 (quoting Hampton, 213 Ariz. at 180 ¶ 51, 140

P.3d at 963).

¶48 Age is a mitigating circumstance. A.R.S. § 13-751(G).

However, in “assessing this mitigator, we consider . . . also

‘[a defendant’s] level of intelligence, maturity, past

experience, and level of participation in the killings.’” State

v. Velazquez, 216 Ariz. 300, 314 ¶ 68, 166 P.3d 91, 105 (2007)

(quoting State v. Poyson, 198 Ariz. 70, 80 ¶ 37, 7 P.3d 79, 89

(2000)). The court therefore did not abuse its discretion in

ruling that the State would be permitted to use evidence of

Womble’s criminal history to rebut age as a mitigating

circumstance.

¶49 In any event, the jury was informed of Womble’s age

twice during the guilt phase. Under § 13-751(D), a jury may

consider any evidence admitted during the guilt phase that is

relevant to mitigation and this jury was so instructed. Thus,

the jury had the opportunity to consider Womble’s age in

determining the appropriate sentence.

22
 III

¶50 Because Womble committed the murder before August 1,

2002, this Court independently reviews aggravation, mitigation,

and the propriety of the death sentence under A.R.S. § 13-

755(A)-(C) (2010); see 2002 Ariz. Sess. Laws, ch. 1, § 7 (5th

Spec. Sess.). We “consider the quality and the strength, not

simply the number, of aggravating and mitigating factors.”

Kiles, 222 Ariz. at 38 ¶ 62, 213 P.3d at 187 (quoting Roque, 213

Ariz. at 230 ¶ 166, 141 P.3d at 405).10

A

¶51 Womble argues that the evidence was insufficient to

support the jury’s finding that he knowingly created a grave

risk of death to the Sotos’ son when he murdered Mr. Soto. See

A.R.S. § 13-751(F)(3). To prove this aggravator, the State was

required to establish the following three elements: (1) the

murderous act created a grave risk of death to the infant; (2)

Womble knowingly created such a risk; and (3) there was a “real

and substantial likelihood” that the infant would be killed.

Speer, 221 Ariz. at 459 ¶ 52, 212 P.3d at 797 (quoting Tucker,

10
Womble argues that the evidence is insufficient to prove
the “heinous or depraved” and “grave risk of death” aggravators.
See A.R.S. § 13-751(F)(3), (6). Sufficiency of the evidence
claims are subsumed under the Court’s independent review.
Andriano, 215 Ariz. at 506 n.5 ¶ 41, 161 P.3d at 549 n.5.
Womble concedes the sufficiency of the evidence supporting the
(F)(7)(b) aggravator. At the time of the murder, Womble was on
probation for a felony conviction.
23
215 Ariz. at 309 ¶ 21, 160 P.3d at 188). Womble challenges the

finding of the second element.

¶52 A person acts “knowingly” when, “with respect to

conduct or to a circumstance described by a statute defining an

offense . . . [the] person is aware or believes that the

person’s conduct is of that nature or that the circumstance

exists.” A.R.S. § 13-105(10)(b) (2010); Speer, 221 Ariz. at 459

¶ 50, 212 P.3d at 797. At trial, the State cited Womble’s

statements that he checked the Sotos’ place out a few times in

advance, arguing that “[o]ne look at the Soto apartment tells

you that they had children, from the twin beds in one bedroom,

to the crib in the master bedroom, to the toys.” The State,

however, presented no evidence that Womble saw the inside of the

apartment before the murder.

¶53 In addition, the State argued that Womble must have

seen the baby because the sheets covering Mr. Soto’s body were

not pulled up. The State contended that if Womble could see the

Sotos well enough to shoot them without missing, then he must

have seen the baby. The State conceded, however, that no one

knew how well-lit the apartment was at the time of the murder.

A fire department engineer, one of the first to arrive at the

murder scene, testified that “[i]t was still dark out” and that

when he walked through the apartment he had to use a flashlight.

He announced his presence in a loud tone, shook Mr. Soto a few

24
times, and then noticed that Mr. Soto “had his arm over . . .

what looked to be a very, very young child.” He removed Mr.

Soto from the bed to begin resuscitation efforts, throughout

which the child remained asleep.

¶54 Because it was dark in the apartment, the evidence

shows only that Womble saw the outlines of Mr. and Mrs. Soto’s

bodies and likely did not notice their infant son. Womble also

might have seen the crib next to the bed. The State did not

prove beyond a reasonable doubt that Womble knew the baby was in

the bed, and therefore, the evidence was insufficient to

establish the (F)(3) aggravator. See Speer, 221 Ariz. at 460 ¶

59, 212 P.3d at 798.

B

¶55 Womble contends that the evidence was insufficient to

support the jury’s finding that the murder was heinous or

depraved. To the extent he bases his insufficiency of the

evidence argument on the assertion that witness elimination

standing alone cannot support the (F)(6) aggravator, we have

rejected that argument above. See supra ¶¶ 27-32.

¶56 As Womble concedes, the evidence established beyond a

reasonable doubt that the murder was committed to prevent Mr.

Soto from testifying at Speer’s burglary trial. Womble’s

telephone calls with Speer in the weeks leading up to the murder

show that the motive for the murder was witness elimination. In

25
addition to the recorded jail calls, Speer mailed Womble a copy

of the police report from the burglary, which included the

Sotos’ address. The evidence establishes the (F)(6) aggravator

beyond a reasonable doubt.

C

¶57 On appeal, Womble offers as mitigation that he had

just turned nineteen at the time of the murder; he worked and

went to school; he was pressured and manipulated by his older

brother Speer; he was suffering from untreated depression and

the day before the murder made suicidal statements the first

time he sought counseling; and he did not receive care.

¶58 “Age is of diminished significance in mitigation when

the defendant is a major participant in the crime, especially

when the defendant plans the crime in advance.” State v. Garza,

216 Ariz. 56, 72 ¶ 82, 163 P.3d 1006, 1022 (2007). Whatever

pressure Speer may have exerted over Womble is outweighed by the

fact that Womble, despite his initial reluctance, actively

participated in planning the murder weeks in advance, and he

alone killed Mr. Soto while Speer remained in jail.

¶59 The record does establish that Womble sought

counseling the day before the murder and even mentioned his plan

to kill someone before killing himself. However, Womble chose

not to introduce any additional mental health evidence.

Although Womble’s attempt to get help before the murder deserves

26
some consideration, the record does not support mental

impairment such that it would call for leniency.

¶60 Under A.R.S. § 13-755, we must independently reweigh

the findings of aggravation and mitigation to determine the

propriety of the death sentence. As we noted in Speer, “the

factor of witness elimination is in itself especially weighty,

as it involves a direct affront to the functioning of the

justice system.” 221 Ariz. at 465 ¶ 94, 212 P.3d at 803.

Although we have stricken the (F)(3) aggravator, in light of the

remaining (F)(2) and (F)(6) aggravators and the fact that Womble

did not offer any additional mitigating evidence in the penalty

phase, we conclude that the mitigating circumstances do not

warrant leniency.

IV

¶61 For the foregoing reasons, we affirm Womble’s

convictions and sentences.11

_____________________________________
Michael D. Ryan, Justice

CONCURRING:

11
Womble also raised fourteen issues to avoid preclusion for
federal review. These claims and relevant decisions presented
by Womble are listed verbatim in the Appendix.
27
_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
W. Scott Bales, Justice

_____________________________________
A. John Pelander, Justice

Appendix

(1) The death penalty is cruel and unusual under any
circumstances and violates the Eighth and Fourteenth
Amendments to the United States Constitution and Article 2,
§ 15 of the Arizona Constitution. State v. Harrod, 200
Ariz. 309, 320, 26 P.3d 492, 503 (2001).

(2) The death penalty is imposed arbitrarily and irrationally
in Arizona in violation of the Eighth and Fourteenth
Amendments to the United States Constitution and Article 2,
§ 15 of the Arizona Constitution, as well as Brian’s right
to due process under the Fourteenth Amendment to the United
States Constitution and Article 2, § 4 of the Arizona
Constitution. State v. Beaty, 158 Ariz. 232, 762 P.2d 519
(1988).

(3) Application of the death penalty on the facts of this case
would constitute cruel and unusual punishment in violation
of the Eighth and Fourteenth Amendments to the United
States Constitution and Article 2, §§ 1, 4, and 15 of the
Arizona Constitution.

(4) 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, §§ 1, 4, and 15 of the Arizona Constitution.
State v. Sansing, 200 Ariz. 347, 361, 26 P.3d 1118, 1132
(2001).

28
(5) Aggravating factors under A.R.S. § 13-703(F) (renumbered as
A.R.S. § 13-751(F), effective January 1, 2009) are elements
of capital murder and must be alleged in an indictment and
screened for probable cause. Arizona’s failure to require
this violates a defendant’s right to due process and a fair
trial under the Sixth and Fourteenth Amendments to the
United States Constitution and Article 2, §§ 4 and 24 of
the Arizona Constitution. McKaney v. Foreman, 209 Ariz.
268, 100 P.3d 18 (2004).

(6) Application of the death penalty statutes promulgated after
Ring v. Arizona, 536 U.S. 584 (2002) (Ring II), violates
the prohibition against ex post facto laws. The changes
altered the rules of evidence to permit different testimony
than that required at the time of Brian’s offense. U.S.
Const. Art. 1, § 10, Clause 1, Ariz. Const. Art. 2, § 25.
State v. Ring, 204 Ariz. 534, 65 P.3d 915 (2003) (Ring
III).

(7) 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, § 15 of the Arizona Constitution. State v.
Gulbrandson, 184 Ariz. 46, 906 P.2d 579 (1995).
Proportionality review serves to identify which cases are
“above the norm” of first-degree murder thus narrowing the
class of defendants who are eligible for the death penalty.

(8) Arizona’s capital sentencing scheme is unconstitutional
because it does not require that the State prove that the
death penalty is appropriate. Failure to require this
proof violates the Fifth, Eighth, and Fourteenth Amendments
to the United States Constitution and Article 2, § 15 of
the Arizona Constitution. State v. Ring, 200 Ariz. 267,
284, 25 P.3d 1139, 1156 (2001) (Ring I), rev’d on other
grounds by Ring II.

(9) A.R.S. § 13-703(renumbered as A.R.S. § 13-751, effective
January 1, 2009) provides no objective standards to guide
the sentencer in weighing the aggravating and mitigating
circumstances and therefore violates the Eighth and
Fourteenth Amendments of the United States Constitution and
Article 2, § 15 of the Arizona Constitution. State v.
Pandeli, 200 Ariz. 365, 382, 26 P.3d 1136, 1153 (2001).

29
(10) Arizona’s death penalty scheme is unconstitutional because
it does not require the sentencer to find beyond a
reasonable doubt that the aggravating circumstances
outweigh the accumulated mitigating circumstances, in
violation of the Fifth, Eighth, and Fourteenth Amendments
to the United States Constitution and Article 2, §§ 4 and
15 of the Arizona Constitution. State v. Poyson, 198 Ariz.
70, 83, 7 P.3d 79, 92 (2000).

(11) A.R.S. § 13-703 does not sufficiently channel the
sentencer’s discretion. Aggravating circumstances should
narrow the class of persons eligible for the death penalty
and reasonably justify the imposition of a harsher penalty.
The broad scope of Arizona’s aggravating factors
encompasses nearly anyone involved in a murder, in
violation of the Eighth and Fourteenth Amendments of the
United States Constitution and Article 2, § 15 of the
Arizona Constitution. Pandeli, 200 Ariz. at 382, 26 P.3d
at 1153.

(12) Arizona’s lethal injection statute and the protocol
implementing that statute do not have any safeguards in
place that were considered by the United States Supreme
Court in Baze v. Rees, 553 U.S. __ (2008), to, at the
least, make an attempt to insure an execution is humane.
(Baze protocol incorporated several safeguards including
minimum level of professional experience for individuals
who inserted intravenous (IV) catheters, requirement for
practice sessions, establishment of backup IV lines and
other redundancies, and warden’s presence in execution
chamber that is not present in the Arizona protocol.) As
it stands in Arizona, execution by lethal injection is
cruel and unusual punishment in violation of the Eighth and
Fourteenth Amendments of the United States Constitution and
Article 2, § 15 of the Arizona Constitution. Brian’s
counsel is aware this Court rejected this or a similar
argument in State v. Van Adams, 194 Ariz. 408, 422 ¶ 55,
984 P.2d 16, 30 (1999). Brian nevertheless requests this
Court revisit this issue.

(13) Arizona’s death penalty unconstitutionally requires
imposition of the death penalty whenever at least one
aggravating circumstance and no mitigating circumstance
exist, in violation of the Eighth and Fourteenth Amendments
of the United States Constitution and Article 2, § 15 of

30
 the Arizona Constitution. State v. Miles, 186 Ariz. 10,
19, 918 P.2d 1028, 1037 (1996).

(14) Counts 1-4 of the indictment allege the offenses in those
counts were committed on May 25, 2002. (I. 1). Brian was
born on May 15, 1983. (I. 5). At the time of the
offenses, Brian was barely 19 years old. As the United
States Supreme Court recognizes, “drawing the line at 18 is
subject to the objections always raised against categorical
rules.” Roper v. Simmons, 543 U.S. 551, 554 (2005).

The Roper court recognized three differences between
juveniles and adults that rendered “suspect any conclusion
that a juvenile falls among the worst offenders” that the
death penalty should be reserved for. 543 U.S. at 570.
Summarily finding that a juvenile is no longer beset by
those same differences simply because he has reached the
age of 18 disregards “the concerns expressed in Furman that
the penalty of death not be imposed in an arbitrary or
capricious manner.” See Gregg v. Georgia, 428 U.S. 153
(1976).

Because “the line at 18” is arbitrary and capricious,
execution by lethal injection of 19 year old Brian is cruel
and unusual punishment that is fundamentally unfair and a
violation of the Fifth, Eighth, and Fourteenth Amendments
of the United States Constitution and of Article 2, §§ 4,
15, and 24 of the Arizona Constitution.

31