State v. Nelson

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-09-0343-AP
Appellee, )
) Mohave County
v. ) Superior Court
) No. CR20060904
BRAD LEE NELSON, )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Mohave County
The Honorable Richard Weiss, Judge

AFFIRMED
________________________________________________________________

THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Julie A. Done, Assistant Attorney General
Attorneys for State of Arizona

DAVID GOLDBERG ATTORNEY AT LAW Fort Collins, CO
By David Goldberg
Attorney for Brad Lee Nelson
________________________________________________________________

B R U T I N E L, Justice

¶1 In 2009, a jury found Brad Lee Nelson guilty of first-

degree murder of his niece, Amber, and determined he should be

sentenced to death. We have jurisdiction over this automatic

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

and A.R.S. §§ 13-4031 and -4033(A)(1) (2010).1

I. FACTUAL AND PROCEDURAL BACKGROUND2

¶2 In June 2006, Nelson was caring for fourteen-year and

ten-month old, Amber, and thirteen-year-old, Wade, at a motel in

Kingman, Arizona, while the children’s mother, Nelson’s half-

sister, was in the hospital. On the day of the murder, Nelson

left the motel room and walked to a nearby Kmart, where he

purchased a rubber mallet. Nelson returned to the motel and,

while Wade slept, hit Amber in the head with the mallet and

covered her with the blanket on the bed.

¶3 When Wade awoke, he noticed Amber was still in bed and

under the covers. Wade then walked to the Kmart with Nelson,

who bought a new shirt. When they left the store, Nelson

changed into the new shirt, placing the one he had been wearing

in a plastic bag. They went next door to a truck stop, and when

they left, Nelson no longer had the plastic bag. He told Wade

he must have left it in the bathroom at the truck stop and went

back inside. He returned without the bag and suggested that

“some homeless guy” might have taken it.

¶4 Nelson and Wade then returned to the motel. Amber was

1
This opinion cites the current version of statutes, unless
otherwise noted.
2
We view the facts “in the light most favorable to upholding
the verdicts.” State v. Chappell, 225 Ariz. 229, 233 ¶ 2 n.1,
236 P.3d 1176, 1180 n.1 (2010).
2

still in bed under the covers. Nelson rolled up the sleeping

bag he had been using and told Wade he wanted to return it to

the Kmart. On the way out, Nelson told a housekeeper “not to

disturb [his] niece because [they] ha[d] a noon checkout.”

Nelson and Wade then returned the sleeping bag.

¶5 Upon returning to the motel, Nelson and Wade met a

housekeeper who accompanied them to their room. When they

reached the room, Wade pulled the covers off Amber. She was

blue, had foam and blood coming out of her mouth, was naked from

the waist down, and bleeding from her forehead. The housekeeper

called 911, but police and paramedics could not revive Amber.

¶6 Police officers found a bloody black sock containing a

rubber mallet hidden under the bed. They also found men’s jeans

with blood on them. The sock and jeans contained DNA from both

Amber and Nelson. Police also found Amber’s pants “turned

inside out, with the panties still within them and the socks

within the legs of the pants” as if “somebody had pulled them

off.” Investigating officers located the shirt Nelson left at

the truck stop and the sleeping bag he had returned to the

Kmart. Both had Amber’s blood on them.

¶7 The medical examiner determined that the cause of

Amber’s death was “blunt force trauma to the head.” The medical

examiner found Nelson’s semen on Amber’s body.

¶8 Nelson was charged with first-degree murder and child

3

molestation. He admitted killing Amber, but argued it was not

premeditated. After the State rested in the trial’s guilt

phase, the superior court granted Nelson’s motion for judgment

of acquittal as to child molestation and felony murder. The

jury found Nelson guilty of premeditated first-degree murder.

The jury then found proven beyond a reasonable doubt the only

aggravator alleged, that Nelson was an adult and Amber was under

fifteen years old at the time of the murder. A.R.S. § 13-

751(F)(9). In the penalty phase, the jury determined that

Nelson should be sentenced to death.

II. ISSUES ON APPEAL

A. Alleged violation of right to fair and impartial jury

¶9 Nelson argues he was deprived of a fair and impartial

jury because the trial court did not specifically ask potential

jurors about contact they may have had with Juror 56, who was

excused. Because Nelson did not raise this issue below, we

review for fundamental error. See State v. Henderson, 210 Ariz.

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

¶10 When potential jurors were summoned to the Mohave

County Courthouse, the judge admonished them to ignore media

coverage; warned that newspaper, radio, and TV coverage is not

evidence; and advised them to alert the court if they were

exposed to any type of media coverage. During individual voir

dire, Juror 56 said he had “looked up as much information as

4

[he] could on the Internet” about the case because his teenage

daughter had been killed and he had very strong feelings “about

another young person being killed.” Both parties agreed to

excuse him.

¶11 The court continued individual voir dire, questioning

each juror regarding prior knowledge about the case. Juror 60

referred to Juror 56, stating that he seemed nervous as he was

leaving and she “guess[ed] his circumstances were a little

crazy.” When asked specifically if she had learned anything

about the case, she said no. Thirteen more potential jurors

were questioned, and none reported that Juror 56 had said

anything about the case. Nelson subsequently struck Juror 60.

¶12 Juror misconduct necessitates “a new trial only if

‘the defense shows actual prejudice or if prejudice may be

fairly presumed from the facts.’” State v. Davolt, 207 Ariz.

191, 208 ¶ 58, 84 P.3d 456, 473 (2004) (quoting State v. Miller,

178 Ariz. 555, 558, 875 P.2d 788, 794 (1994)) (emphasis and

internal citation omitted). “In a criminal case, prejudice may

be presumed from ‘any private communication, contact, or

tampering directly or indirectly, with a juror during a trial

about the matter pending before the jury.’” Id. (quoting Remmer

v. United States, 347 U.S. 227, 229 (1954)). But “[p]rejudice

cannot be presumed without the requisite showing that the jury

received and considered extrinsic evidence on the issues.” Id.

5

¶ 59.

¶13 Nelson has not shown prejudice, nor may it be presumed

here. Juror 56 was excused, and the record does not suggest he

shared any information about the case with other potential

jurors.

B. Substantial evidence of premeditated first degree murder

¶14 Nelson next argues that his conviction should be

vacated because the State’s evidence shows only passage of time

but not the actual reflection required for premeditation.

¶15 “Premeditation” is statutorily defined as follows:

[T]hat the defendant acts with either the intention or
the knowledge that he will kill another human being,
when such intention or knowledge precedes 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). As we made clear in State v. Thompson, 204

Ariz. 471, 478 ¶ 27, 65 P.3d 420, 427, “the legislature did not

intend to eliminate the requirement of reflection altogether or

to allow the state to substitute the mere passing of time for

the element of premeditation,” but rather “intended to relieve

the state of the burden of proving a defendant’s thought

processes by direct evidence.”

¶16 Premeditation can, of course, be proved by

circumstantial evidence. Thompson, 204 Ariz. at 478-79 ¶¶ 27,

31, 65 P.3d at 427-28. Nelson left to procure a weapon and

6

killed Amber with it within the same hour. Circumstantial

evidence supporting a finding of premeditation may include “the

acquisition of a weapon by the defendant before the killing.”

Id. at 479 ¶ 31, 65 P.3d at 428. “Carrying the murder weapon to

the scene is strong evidence of premeditation. . . . Leaving the

scene to retrieve a weapon is even stronger evidence of

premeditation because it suggests that [the defendant] had

formed a plan for committing the murder[] and then set about

carrying it out.” United States v. Begay, ___ F.3d ___, 2011 WL

94566, at *4 (9th Cir. Jan. 12, 2011) (en banc) (citations

omitted); see also State v. Pittman, 118 Ariz. 71, 75, 574 P.2d

1290, 1294 (1978) (finding premeditated murder conviction

supported by evidence that defendant entered victim’s house with

gun and then shot the victim three times).

¶17 Nelson claims that “[t]his is not a case where the

defendant went and obtained a gun, a knife or some other ‘deadly

weapon.’” We disagree. “Although in an ordinary context, a

hammer is usually considered a tool, not a weapon, in many

instances assailants have used hammers to perpetrate a deadly

attack.” State v. Beard, 46 P.3d 1185, 1194 (Kan. 2002).

Moreover,

[b]ecause hitting someone with a hammer will very
likely result in extensive injury or death to the
victim, a hammer may be considered just as deadly when
used as a weapon as a pipe, baseball bat, knife, or
gun. Thus, the use of the hammer as a weapon of

7

attack may lend support to the inference of
premeditation.

Id. at 1195.

¶18 A defendant’s actions after a murder can also help

establish premeditation. See, e.g., Beard, 46 P.3d at 1195;

State v. Sierra, 440 S.E.2d 791, 795 (N.C. 1994). Nelson hid

the murder weapon under a bed, disposed of his bloody shirt, and

returned a sleeping bag that had Amber’s blood on it.

¶19 Although the evidence of premeditation in this case is

circumstantial, it is nonetheless substantial. The jury’s

finding of premeditation was not legally incorrect.

C. Premeditation jury instruction and argument

¶20 Nelson asserts that the trial court gave the jury an

erroneous premeditation instruction and that instruction,

“coupled with the prosecutor’s closing arguments,” require

reversal.

¶21 We review de novo “whether the jurors were properly

instructed.” State v. Dann, 220 Ariz. 351, 364 ¶ 51, 207 P.3d

604, 617 (2009). Because Nelson did not object to either the

premeditation instruction or the prosecutor’s arguments

regarding premeditation, we review only for fundamental error.

See Dann, 220 Ariz. at 364 ¶ 51, 207 P.3d at 617; Henderson, 210

Ariz. at 567 ¶ 19, 115 P.3d at 607.

¶22 The trial court gave the following jury instruction:

8

‘Premeditation’ means that the defendant intended
to kill another human being or knew he would kill
another human being and that after forming that intent
or knowledge reflected on the decision before killing.
It is this reflection, regardless of the length
of time in which it occurs, that distinguishes first
degree murder from second degree murder.
An act is not done with premeditation if it is
the instant effect of a sudden quarrel or heat of
passion.
The time needed for reflection is not necessarily
prolonged, and the space of time between the intent or
knowledge to kill and the act of killing may be very
short.

This instruction is nearly identical to the one prescribed in

Thompson, 204 Ariz. at 479 ¶ 32, 65 P.3d at 428. Although we

cautioned there that the instruction’s last sentence need be

given only when the facts “require it,” id., Thompson does not

suggest that giving the entire instruction constitutes error.

Under the facts of this case, in which Nelson admitted the

murder but denied premeditation, the instruction was not

fundamental error.

¶23 Nor did the prosecutor incorrectly argue

premeditation. The prosecutor noted that the time to reflect

may be short and highlighted the circumstantial evidence and

“decisions” made by Nelson: to leave the motel, to walk to the

store, to buy the mallet, to walk back to the room, and to hit

Amber with the mallet. See id. at 480 ¶ 33, 65 P.3d at 429.

The prosecutor did not suggest passage of time alone was

sufficient to prove premeditation. See State v. Kiles, 222

9

Ariz. 25, 31 ¶ 21, 213 P.3d 174, 180 (2009) (finding no

fundamental error in prosecutor’s arguments “that the time

required to actually premeditate could be ‘instantaneous,’”

because “he made clear that such was not the case in this matter

[and h]is argument focused on the circumstantial evidence of

premeditation”).

D. Failure to instruct the jury on manslaughter

¶24 Nelson next argues that the trial court’s refusal to

give a requested lesser-included manslaughter jury instruction

was error. However, the trial court did instruct on second-

degree murder. Thus, any purported error in failing to give a

manslaughter instruction was harmless. When a jury is given a

choice between first-degree murder and second-degree murder and

convicts on first-degree murder, it has necessarily rejected

manslaughter. See State v. Amaya-Ruiz, 166 Ariz. 152, 174, 800

P.2d 1260, 1282 (1990); State v. White, 144 Ariz. 245, 247, 697

P.2d 328, 330 (1985).

E. Constitutionality of (F)(9) aggravator

¶25 Nelson contends that “[t]he (F)(9) aggravating

circumstance is arbitrary and capricious in violation of the

Eighth and Fourteenth Amendment[s] on its face and as applied to

[him] because it fails to adequately and rationally narrow those

defendants subject to the death penalty.” He also argues under

the Eighth Amendment that sentencing him “to death based solely

10

upon the (F)(9) aggravator is cruel and unusual punishment.” We

review de novo the constitutionality of statutory aggravating

factors. See State v. Hargrave, 225 Ariz. 1, 13 ¶ 42, 234 P.3d

569, 581 (2010).

1. Arbitrary and capricious

¶26 Nelson argues that the (F)(9) aggravator draws an

“arbitrary” and “irrational” distinction at age fifteen and is

“not based upon any factual or constitutionally meaningful

distinction.” A death penalty sentencing scheme “‘must

genuinely narrow the class of persons eligible for the death

penalty and must reasonably justify the imposition of a more

severe sentence on the defendant compared to others found guilty

of murder.’” Romano v. Oklahoma, 512 U.S. 1, 7 (1994) (quoting

Lowenfield v. Phelps, 484 U.S. 231, 244 (1988)). “The eighth

amendment requires that the sentencer’s discretion be channeled

and limited to avoid the risk of wholly arbitrary and capricious

action.” State v. Hinchey, 165 Ariz. 432, 436, 799 P.2d 352,

356 (1990). Aggravating circumstances “‘play a significant role

in channeling the sentencer’s discretion.’” State v. Mata, 185

Ariz. 319, 323, 916 P.2d 1035, 1039 (1996) (quoting Lewis v.

Jeffers, 497 U.S. 764, 774 (1990)). To be valid, aggravating

“circumstance[s] may not apply to every defendant convicted of

murder” and “may not be unconstitutionally vague.” Tuilaepa v.

California, 512 U.S. 967, 972 (1994).

11

¶27 The aggravator in this case was that “[t]he defendant

was an adult at the time the offense was committed . . . and the

murdered person was under fifteen years of age.” A.R.S. § 13-

751(F)(9). This aggravating circumstance meets constitutional

requirements. First, as Nelson concedes, it does not apply to

every murder. Nor is the (F)(9) aggravator vague. “It is

difficult to imagine an aggravating factor less susceptible than

(F)(9) to a challenge on the grounds of vagueness or

overbreadth.” Jones v. Schriro, 450 F. Supp. 2d 1047, 1078 (D.

Ariz. 2006). It provides a bright line factor based on the age

of the victim and the age of the offender.

2. Equal protection and due process

¶28 Nelson next contends that “[t]he (F)(9) aggravator

violates equal protection and due process under the Fourteenth

Amendment.” He argues that the state does not have a compelling

or rational basis for executing a defendant who kills someone

fourteen years and ten months old and sparing the life of those

who kill someone fifteen years and one day old. We have

previously held, however, that the legislature had a rational

basis for creating the (F)(9) aggravator:

[T]he age of a victim is an appropriate aggravating
factor because a rational basis exists for it. By
adopting the (F)(9) factor, the legislature determined
that the young and old are especially vulnerable and
should be protected. It is not irrational for the
legislature to conclude that murders of children and
the elderly are more abhorrent than other first-degree

12

murders. Thus, in the absence of sufficient
mitigating factors, murders of this sort should be
punished more severely. In addition, the age of the
victim is relevant to an inquiry into the defendant’s
characteristics and propensities. Those who prey on
the very young or the very old are more dangerous to
society.

State v. Smith, 193 Ariz. 452, 462 ¶ 48, 974 P.2d 431, 441

(1999).

3. Cruel and unusual punishment

¶29 Nelson also argues that sentencing him to death based

solely on the (F)(9) aggravating circumstance is cruel and

unusual punishment. He makes two separate claims: (1) that we

must conduct a proportionality review and hold that his sentence

is grossly disproportionate to his crime, and (2) that we should

also compare this aggravator to age-based aggravators in other

states and find it invalid.

¶30 Although we once conducted proportionality review to

determine “whether the sentences of death are excessive or

disproportionate to the penalty imposed in similar cases,

considering both the crime and defendant,” State v. Richmond,

114 Ariz. 186, 196, 560 P.2d 41, 51 (1977), we discontinued the

practice in 1992 because proportionality review is fraught with

problems and not constitutionally required, State v. Salazar,

173 Ariz. 399, 416-17, 844 P.2d 566, 583-84 (1992); see also

Pulley v. Harris, 465 U.S. 37, 50-51 (1984) (holding that the

Eighth Amendment does not require “comparative proportionality

13

review by an appellate court”). We decline to do so in this

case as well.

¶31 Nelson also contends that because this murder would

satisfy the age-based capital aggravator in only four

jurisdictions,3 a national consensus exists that a sentence of

death based on the murder of a child under fifteen constitutes

cruel and unusual punishment. Nelson argues that we should find

a categorical restriction on imposing the death penalty when the

single aggravator found is based on the age of the victim, using

the analysis in Graham v. Florida, 130 S. Ct. 2011 (2010).

Graham, however, acknowledges two subsets of categorical rules

against the death penalty, one determining that capital

punishment is impermissible for nonhomicide crimes against

individuals and the other turning on the offender’s

characteristics. Id. at 2022. Neither applies here. There is

no categorical rule precluding the imposition of the death

penalty on the basis of an otherwise constitutional statutory

aggravator.

¶32 Even if we assume Graham supplies the proper analysis

for challenging an aggravator, such a challenge fails here.

Under Graham, a court “considers ‘objective indicia of society’s

3
Nelson could be sentenced to death in Arizona, A.R.S. § 13-
751(F)(9), New Hampshire, N.H. Rev. Stat. Ann. § 630:5(VII)(g)
(2011), Wyoming, Wyo. Stat. Ann. § 6-2-102(h)(ix) (2011), and
under federal law, 18 U.S.C. § 3592(c)(11) (2006).
14

standards, as expressed in legislative enactments and state

practice’ to determine whether there is a national consensus

against the sentencing practice at issue.” 130 S. Ct. at 2022

(quoting Roper v. Simmons, 543 U.S. 551, 572 (2005)). In the

past decade, the Supreme Court has used this approach in three

death penalty cases. See Kennedy v. Louisiana, 554 U.S. 407,

446 (2008) (concluding the death penalty cannot be imposed for

rape); Roper, 543 U.S. at 578 (holding “[t]he Eighth and

Fourteenth Amendments forbid imposition of the death penalty on

offenders who were under the age of [eighteen] when their crimes

were committed”); Atkins v. Virginia, 536 U.S. 304, 321 (2002)

(holding “that the execution of mentally retarded criminals”

violates the Eighth Amendment).

¶33 Admittedly, Nelson would be eligible for death in

fewer jurisdictions than were the defendants in Atkins, Roper,

and Kennedy. But those cases turned on the characteristics of

the defendant or the nature of the crime, not the identity of

the victim. Currently thirty-five out of fifty-two

jurisdictions (including the United States and Washington, D.C.)

have the death penalty. In seventeen of these jurisdictions,

murdering a victim of a certain age alone qualifies a person for

the death penalty.4 Eleven jurisdictions consider the victim’s

4
18 U.S.C. § 3592(c)(11) (2006); A.R.S. § 13-751(F)(9)
(2010); Ark. Code Ann. § 5-4-604(10)(B) (2011); Colo. Rev. Stat.
15

age as an aggravator with additional qualifying circumstances.5

§ 18-1.3-1201(5)(m) (2012); Del. Code Ann. tit. 11
§ 4209(e)(1)(s) (2011); Fla. Stat. § 921.141(5)(l) (2012); Ind.
Code Ann. § 35-50-2-9(b)(12) (West 2011); La. Code Crim. Proc.
Ann. art. 905.4(A)(10) (2011); Nev. Rev. Stat. § 200.033(10)
(2010); N.H. Rev. Stat. Ann. § 630:5(VII)(g) (2011); Ohio Rev.
Code. Ann. § 2929.04(A)(9) (West 2011); 42 Pa. Cons. Stat.
§ 9711(d)(16) (2011); S.C. Code Ann. § 16-3-20(C)(a)(10) (2011);
S.D. Codified Laws § 23A-27A-1(6) (2012); Tenn. Code Ann. § 39-
13-204(i)(1) (2012); Utah Code Ann. § 76-5-202(1)(t)(i) (West
2011); Wyo. Stat. Ann. § 6-2-102(h)(ix) (2011).
5
Ala. Code. §§ 13A-5-40(a)(15), -45(f), -49 (2012) (stating
an additional aggravator must be present when victim is less
than fourteen-years-old); Cal Penal Code § 190.2(a)(17)(E) (West
2012) (committing first degree murder during commission of
sexual crime on child under fourteen years old makes defendant
eligible for death penalty); Conn. Gen. Stat. §§ 53a-46a, -
54b(8) (2012) (providing that another aggravating circumstance
must be proven when victim less than sixteen years old); Idaho
Code Ann. § 19-2515(9)(h) (2012) (listing as an aggravating
circumstances that the murder was committed during perpetration
of sex crime against a child); Kan. Stat. Ann. § 21-5401 (2011)
(stating murder of a victim under fourteen years old during
commission of another enumerated felony constitutes capital
murder); Md. Code Ann., Crim. Law. § 2-303(g)(v) (West 2012)
(listing as an aggravator murder of an illegally abducted child
under twelve years old); Miss. Code Ann. § 99-19-101(5)(d)
(2011) (providing that murder of child under twelve years old
committed during “unnatural intercourse” or “felonious abuse
and/or battery” constitutes an aggravator); Mont. Code Ann.
§ 46-18-303(1)(a)(vi) (2011) (stating that deliberate murder of
victim under age eighteen during commission of sex crime
constitutes aggravating circumstance); Or. Rev. Stat.
§§ 163.095(1)(f), 163.150(1)(b) (2012) (stating “aggravated
murder” of child under fourteen years old and three additional
factual findings makes defendant eligible to receive death
penalty); Tex. Penal Code Ann. § 19.03(a)(8) (West 2011), Tex.
Code of Crim. Pro. Art. 37.071, § 2(b) (West 2011) (qualifying
defendant for death sentence when murder victim is less than ten
years old and additional factual predicates are shown); Va.
Code. Ann. §§ 18.2-31(12), 19,2-264.2 (2011) (stating willful,
deliberate, and premeditated murder of victim less than fourteen
years old by defendant who is over twenty-one years old along
16

Thus, in twenty-eight of the thirty-five jurisdictions, age of

the victim is a factor in sentencing a defendant to death. This

shows consensus that the victim’s age is relevant in determining

whether a person who commits murder deserves the death penalty.

¶34 To be sure, states use different ages in their capital

aggravation statutes, and there is no clear consensus on what

age should trigger eligibility. It is the legislature’s

province, however, to determine at what ages child victims are

most vulnerable. The Arizona Legislature has set the age at

fifteen, well within the range of other jurisdictions. Compare

S.C. Code Ann. § 16-3-20(C)(a)(10) (2011) (eleven years old),

with Wyo. Stat. Ann. § 6-2-102(h)(ix) (2011) (seventeen years

old).

F. Alleged prosecutorial misconduct

¶35 Nelson claims that the prosecutor committed misconduct

by making “irrelevant and inflammatory arguments” during the

penalty phase closing argument. The trial court denied Nelson’s

motions for mistrial and to vacate the judgment based on this

alleged misconduct.

¶36 These rulings are reviewed for an abuse of discretion,

State v. Speer, 221 Ariz. 449, 457 ¶ 42, 212 P.3d 787, 795

(2009), “because the trial judge is always in the best position

with additional factual considerations qualifies defendant for
death penalty). 
17

to determine whether a particular incident calls for a

mistrial,” State v. Koch, 138 Ariz. 99, 101, 673 P.2d 297, 299

(1983). Nelson objected to each instance of alleged

prosecutorial misconduct, so we first address whether misconduct

occurred and, if so, review for harmless error. See Dann, 220

Ariz. at 373 ¶ 125, 207 P.3d at 626. This Court will reverse

only if there is “a reasonable likelihood . . . that the

misconduct could have affected the jury’s verdict, thereby

denying the defendant a fair trial.” Speer, 221 Ariz. at 458

¶ 42, 212 P.3d at 796 (internal quotation marks omitted).

1. Motion for mistrial

¶37 Nelson argues that the prosecutor committed misconduct

by using language related to the (F)(6) (heinous, cruel, or

depraved) aggravator, which the State did not allege, and by

describing the impact of Amber’s death on her family and other

witnesses to the crime.

¶38 “Prosecutorial misconduct constitutes reversible error

only if (1) misconduct exists and (2) ‘a reasonable likelihood

exists that the misconduct could have affected the jury’s

verdict, thereby denying defendant a fair trial.’” State v.

Morris, 215 Ariz. 324, 335 ¶ 46, 160 P.3d 203, 214 (2007)

(quoting State v. Anderson (Anderson II), 210 Ariz. 327, 340

¶ 54, 111 P.3d 369, 382 (2005)). “Prosecutorial misconduct is

harmless error if we can find beyond a reasonable doubt it did

18

not contribute to or affect the verdict.” State v. Roque, 213

Ariz. 193, 228 ¶ 152, 141 P.3d 368, 403 (2006) (internal

quotation omitted).6

¶39 In deciding whether an argument is misconduct, we

“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

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

Newell, 212 Ariz. 389, 402 ¶ 60, 132 P.3d 833, 846 (2006). This

Court looks at the context in which the statements were made as

well as “the entire record and to the totality of the

circumstances.” State v. Rutledge, 205 Ariz. 7, 13 ¶ 33, 66

P.3d 50, 56 (2003).

a. Use of (F)(6) aggravator terms

¶40 Five factors are used to determine “whether a

defendant’s conduct is heinous or depraved: (1) defendant

relished the murder; (2) needless mutilation of the victim; (3)

gratuitous violence beyond that necessary to kill; (4) helpless

6
The State asserts that Nelson timely objected to only one
of the words traditionally used to the describe the (F)(6)
aggravator. Nelson, however, preserved his objection to all
terms. When Nelson’s counsel objected, he approached the bench
and argued that the use of all words like “senseless” and
“helpless” were improper and had nothing to do with the (F)(9)
aggravator. This objection timely allowed “the trial court to
rectify possible error, and . . . enable[d] the [State] to
obviate the objection if possible.” State v. Rutledge, 205
Ariz. 7, 13 ¶ 30, 66 P.3d 50, 56 (2003) (internal quotation
omitted).
19

victim; and (5) senseless crime.” State v. Greenway, 170 Ariz.

155, 166, 823 P.2d 22, 33 (1991) (citing State v. Gretzler, 135

Ariz. 42, 52-53, 659 P.2d 1, 11-12 (1983)). In her penalty

phase closing argument, the prosecutor described Amber as “a

helpless victim;” asked “why did he have to kill her?;” and

noted the brutality of the murder. Although it is improper to

argue a non-alleged aggravating circumstance, see State v.

Combs, 581 N.E.2d 1071, 1077 (Ohio 1991), that is not what

occurred here.

¶41 The words the prosecutor used fairly described the

facts of the case. See State v. Garza, 216 Ariz. 56, 68 ¶ 57,

163 P.3d 1006, 1018 (2007) (noting that “jury may consider the

circumstances of the crime in its evaluation of mitigation” in

the penalty phase). The term “helpless” described both Amber’s

age and the circumstances of the crime. Asking “why did he kill

her?” also related to the fact that Amber had done nothing to

provoke Nelson’s attack. Describing the brutality of Amber’s

murder also bore on the facts of the case. Although “helpless”

and “senseless” are terms used to describe the (F)(6)

aggravator, the prosecutor did not suggest its existence by

using these words, nor did she argue that such an aggravator be

considered. Moreover, the jury was unaware of the legal

significance of these words because the State did not allege and

the court did not instruct on the (F)(6) aggravator.

20

b. Victim and witness impact evidence

¶42 Nelson also contends that the prosecutor committed

misconduct by discussing the impact of Amber’s death on her

family and other witnesses. In Payne v. Tennessee, 501 U.S.

808, 827 (1991), the Supreme Court held that a court may,

consistent with the Eighth Amendment, permit admission of

“evidence about the victim and about the impact of the murder on

the victim’s family” in a capital trial because it “is relevant

to the jury’s decision as to whether or not the death penalty

should be imposed.” The Court noted that “there is nothing

unfair about allowing the jury to bear in mind [the] harm

[caused by the defendant] at the same time as it considers the

mitigating evidence introduced by the defendant.” Id. at 826.

¶43 Although the State did not present victim impact

evidence during the penalty phase, Amber’s brother Wade

testified in the guilt phase, and Nelson presented a video-taped

interview of Amber’s mother during the penalty phase. The

prosecutor’s arguments referred solely to this testimony.

Statements referring to the victim’s family members are not

improper under Payne if they are supported by the evidence, even

if victim impact evidence was not presented in the penalty

phase. See Williams v. State, 684 So. 2d 1179, 1204 (Miss.

1996); see also People v. Dykes, 209 P.3d 1, 49-50 (Cal. 2009)

(“In closing argument, a prosecutor may rely upon the impact of

21

the victim’s death on his or her family.”). Such arguments are

proper as long as emotion does not “reign over reason.” Dykes,

209 P.3d at 50 (internal quotation omitted).

¶44 The prosecutor also discussed the impact of viewing

Amber’s body on several witnesses. Arguments aimed solely at

the jury’s emotions are improper. See State v. Herrera, 174

Ariz. 387, 396, 850 P.2d 100, 109 (1993). Here, the trial court

recognized argument about how the viewing of Amber’s body

affected certain witnesses was improper.

¶45 Any error, however, was cured by the trial judge, who

sustained a defense objection to the argument and instructed the

jury to not consider the argument. We presume jurors follow

their instructions. State v. Tucker, 215 Ariz. 298, 319 ¶ 89,

160 P.3d 177, 198.

¶46 Moreover, the improper argument took up less than one

page out of more than twenty pages of transcript in the State’s

closing argument. After the limiting instruction, the

prosecutor did not continue the improper line of argument but

focused instead on the mitigation evidence. The trial court did

not abuse its discretion in denying the motion for mistrial.

2. Motion to vacate judgment

¶47 After trial, Nelson moved to vacate the judgment,

submitting an affidavit from a juror stating that the jury did

not follow instructions and that the juror felt “emotionally

22

sabotaged” by the State’s closing argument. The motion is

appropriately considered as one for a new trial under Arizona

Rule of Criminal Procedure 24.1. A court may grant a new trial

if a juror or jurors have committed misconduct. Ariz. R. Crim.

P. 24.1(c)(3). Juror affidavits are admissible to challenge a

verdict, but “[n]o testimony or affidavit shall be received

which inquires into the subjective motives or mental processes

which led a juror to assent or dissent from the verdict.” Id.

24.1(d).

¶48 The Arizona rule reflects a policy long followed by

courts nationwide. “The general rule, known as Lord Mansfield’s

rule, is that a juror’s testimony is not admissible to impeach

the verdict.” State v. Dickens, 187 Ariz. 1, 15, 926 P.2d 468,

482 (1996). The rule serves “to protect the process of frank

and conscientious jury deliberations and the finality of jury

verdicts.” State v. Poland, 132 Ariz. 269, 282, 645 P.2d 784,

797 (1982).

¶49 We decline Nelson’s invitation to abandon this rule.

See State v. Spears, 184 Ariz. 277, 288, 908 P.2d 1062, 1073

(1996) (refusing to consider juror affidavit that stated “the

jury discussed defendant’s failure to take the stand”). If a

verdict could be impeached based on a juror’s mental process at

the time of deliberation, “‘no verdict would be safe.’” Gorski

v. J.C. Penney Co., 103 Ariz. 404, 406, 442 P.2d 851, 853 (1968)

23

(quoting McDonald v. Pless, 238 U.S. 264, 268 (1915)).

III. REVIEW OF DEATH SENTENCE

¶50 Because Nelson committed the murder after August 1,

2002, pursuant to A.R.S. § 13-756(A), we review the jury’s

aggravation finding and death sentence for abuse of discretion.

Nelson asserts that abuse of discretion review under that

statute violates the Eighth and Fourteenth Amendments and,

therefore, that independent review is required. We recently

rejected this argument in State v. Cota, ___ Ariz. ___, ___ ¶¶

91-92, ___ P.3d ___, ___ (2012). He also claims that even under

an abuse of discretion standard, his death sentence should be

vacated and we turn to that argument next.

¶51 Amber was fourteen years old and Nelson was thirty-

five years old when he murdered her. Nelson does not contest

the jury’s finding of the (F)(9) aggravator and the jury plainly

did not abuse its discretion in finding the aggravator. Rather,

Nelson argues that the jury abused its discretion in failing to

find that the mitigation evidence was sufficiently substantial

to call for leniency.

¶52 Nelson presented extensive evidence about his

dysfunctional childhood. An expert opined that, but for this

background, he would not have committed this homicide. Nelson

also introduced an apology letter that he wrote to his sister

and he addressed the court, apologizing to his sister and

24

thanking the jury.

¶53 The jury, nevertheless, did not abuse its discretion

in determining that Nelson’s mitigation was not “sufficiently

substantial to call for leniency.” A.R.S. § 13-751(E). The

jury was entitled to give diminished mitigating weight to

Nelson’s childhood because he was thirty-five years old when he

killed Amber, which lessens “the impact of his dysfunctional

childhood on his conduct.” State v. Prince, 226 Ariz. 516, 542

¶ 111, 250 P.3d 1145, 1171. Nelson presented no evidence of his

life between 1986 and 2006.

¶54 Nelson expressed remorse. The jury was entitled to

give this some mitigating weight, but it was entirely within the

jury’s discretion how much weight to give it. See State v.

Williams, 132 Ariz. 153, 157, 644 P.2d 889, 893 (1982) (stating

that weighing evidence is the exclusive province of the trier of

fact).

¶55 Nelson cites State v. Bocharski, 218 Ariz. 476, 189

P.3d 403 (2008), to support his claim that the jury abused its

discretion. In that case, we reduced Bocharski’s sentence to

life because we found that substantial mitigation evidence

outweighed the strength of the (F)(9) aggravating circumstance.

218 Ariz. at 499 ¶ 112, 189 P.3d at 426. But that case was

before us on independent review. Id. at 492 ¶ 79, 189 P.3d at

419. Here, we review the death sentence for abuse of discretion

25

and do not independently reweigh the evidence.

CONCLUSION

¶56 For the foregoing reasons, we affirm Nelson’s

conviction and sentence.7

_____________________________________
Robert M. Brutinel, Justice

CONCURRING:

_____________________________________
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 per se cruel and unusual punishment.
Gregg v. Georgia, 428 U.S. 153, 186-87 (1976); State v.
Salazar, 173 Ariz. 399, 411, 844 P.2d 566, 578 (1992).

2. Execution by lethal injection is per se cruel and unusual
punishment. State v. Hinchey, 181 Ariz. 307, 315, 890 P.2d

7
Nelson raises twenty-two issues to avoid preclusion on
federal review. His statements of those issues and the cases he
cites rejecting his contentions are presented verbatim in the
Appendix.
26

602, 610 (1995).

3. Arizona’s death penalty statutory scheme is unconstitutional
because it permits jurors unfettered discretion to impose
death without adequate guidelines to weigh and consider
appropriate factors and fails to provide principled means to
distinguish between those who deserve to die or live. State
v. Johnson, 212 Ariz. 425, 440, ¶ 69, 133 P.3d 735, 750
(2006).

4. Arizona’s death statute unconstitutionally requires
defendants to prove that their lives should be spared. State
v. Fulminante, 161 Ariz. 237, 258, 778 P.2d 602, 623 (1988).

5. The statute unconstitutionally fails to require the
cumulative consideration of multiple mitigating factors or
require that the jury make specific findings as to each
mitigating factor. State v. Gulbrandson, 184 Ariz. 46, 69,
906 P.2d 579, 602 (1995).

6. Arizona’s statutory scheme for considering mitigating
evidence is unconstitutional because it limits full
consideration of that evidence. State v. Mata, 125 Ariz.
233, 242, 609 P.2d 48, 57 (1980).

7. Arizona’s death statute is unconstitutional because there
are no statutory standards for weighing. State v. Atwood, 171 Ariz. 576, 645-46 n.21(4), 832 P.2d 593, 662-63 n.21(4)
(1992).

8. The prosecutor’s discretion to seek the death penalty
unconstitutionally lacks standards. State v. Cromwell, 211
Ariz. 181, 192, ¶ 58, 119 P.3d 448, 459 (2005).

9. Death sentences in Arizona have been applied arbitrarily and
irrationally and in a discriminatory manner against
impoverished males whose victims have been Caucasian. State
v. West, 176 Ariz. 432, 455, 862 P.2d 192, 215 (1993); State
v. Sansing, 200 Ariz. 347, 361, ¶ 46, 26 P.3d 1118 (2001).

10. The Constitution requires a proportionality review of a
defendant’s death sentence. State v. Gulbrandson, 184 Ariz.
46, 73, 906 P.2d 579, 606 (1995).

11. Appellant’s death sentence is in violation of his rights to
a jury trial, notice and due process the Fifth, Sixth and

27

Fourteenth Amendments since he was not indicted for a
capital crime. McKaney v. Foreman, 209 Ariz. 268, 271, ¶ 13,
100 P.3d 18, 21 (2004).

12. The reasonable doubt jury instruction at the aggravation
trial lowered the state’s burden of proof and deprived
Appellant of his right to a jury trial and due process under
the Sixth and Fourteenth Amendments. State v. Dann (Dann I),
205 Ariz. 557, 575-76, ¶ 74, 74 P.3d 231 (2003).

13. Arizona’s death statute creates an unconstitutional
presumption of death and places an unconstitutional burden
on Appellant to prove mitigation is “sufficiently
substantial to call for leniency.” Walton v. Arizona, 497
U.S. 639, 648 (1990); State v. Glassel, 211 Ariz. 33, 52, ¶
72, 116 P.3d 1193, 1212 (2005).

14. The failure to provide the jury with a special verdict on
Appellant’s proffered mitigation deprived him of his rights
to not be subject to ex post facto legislation and right to
meaningful appellate review. State v. Roseberry, 210 Ariz.
360, 373, ¶ 74 & n.12, 111 P.3d 402 (2005).

15. Permitting the State to argue that Appellant’s mitigation
evidence should [be] given limited or no weight absent proof
of a causal nexus to the murder(s) was in violation of the
Eighth and Fourteenth Amendments. State v. Anderson
(Anderson II), 210 Ariz. 327, 350, ¶¶ 93-97, 82, 111 P.3d
369 (2005).

16. Arizona’s current protocols and procedures for execution by
lethal injection constitute cruel and unusual punishment in
violation of the Eighth and Fourteenth Amendments. State v.
Andriano, 215 Ariz. 497, ¶¶ 61-62, 161 P.3d 540 (2007).

17. The jury instruction that required the jury to unanimously
determine that the mitigating circumstances were
“sufficiently substantial to call for leniency” violated the
Eighth Amendment. State v. Ellison, 213 Ariz. 116, ¶¶ 101-
102, 140 P.3d 899 (2006).

18. The failure to instruct the jury that only murders that are
“above the norm” may qualify for the death penalty violates
the Sixth, Eighth and Fourteenth Amendments. State v.
Bocharski (Bocharski II), 218 Ariz. 476, ¶¶ 47-50, 189 P.3d
403 (2008).

28

19. The penalty phase jury instructions that advised the jury
they “must” return a death sentence in various circumstances
and forms of verdict impermissibly shifted the burden of
proof to the defendant and created a presumption of death.
State v. Tucker (Tucker II), 215 Ariz. 298, 317, 160 P.3d
197 (2007).

20. Arizona’s death penalty scheme violates Appellant’s right to
equal protection under the Fourteenth Amendment since it
fails to require the jury to make specific findings of fact
and conclusions of law reviewable on appeal. State v. Dann
(Dann III), 220 Ariz. 351, ¶¶ 127-28, 207 P.3d 604 (2009).

21. Arizona’s death penalty scheme violates Appellant’s rights
under the Eighth and Fourteenth Amendments by not requiring
that once a defendant proves mitigating circumstances exist
that the State prove beyond a reasonable doubt that the
mitigation is not sufficiently substantial to call for
leniency and that death is the appropriate sentence. State
v. Dann (Dann III), 220 Ariz. 351, ¶¶ 94-95, 207 P.3d 604
(2009).

22. The death penalty is an irreversible denial of human rights
and international law. State v. Richmond, 136 Ariz. 312,
322, 666 P.2d 57 (1983).

29