STATE OF ARIZONA v ROBERT LOUIS CROMWELL
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SUPREME COURT OF ARIZONA En Banc STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) ROBERT LOUIS CROMWELL, ) ) Appellant. ) ) __________________________________) Arizona Supreme Court No. CR-03-0083-AP Maricopa County Superior Court No. CR2001-095438 O P I N I O N Appeal from the Superior Court of Maricopa County No. CR2001-095438 Honorable Mark F. Aceto, Judge AFFIRMED _______________________________________________________________ TERRY GODDARD, ARIZONA ATTORNEY GENERAL By Kent E. Cattani, Chief Counsel, Capital Litigation Section James P. Beene, Assistant Attorney General Attorneys for the State of Arizona Phoenix SUSAN M. SHERWIN, MARICOPA COUNTY LEGAL ADVOCATE Phoenix By James L. Logan, Deputy Legal Advocate Consuelo M. Ohanesian, Deputy Legal Advocate Attorneys for Robert Louis Cromwell _______________________________________________________________ J O N E S, Justice (retired) ¶1 On February 19, 2003, a Maricopa County jury convicted Robert Louis Cromwell of one count of first degree murder and one count of sexual assault in the October 8, 2001 death of eleven-year-old Stephanie Shortt. The jury also convicted Cromwell of two counts of aggravated assault, one against Ella Speaks, Stephanie s mother, and the other against Ella s friend, Kim Jensen. On March 6, 2003, Cromwell was sentenced to death for the murder, to life imprisonment without the possibility of release for thirty-five years for the sexual assault, and to ten years imprisonment each for the two aggravated assault charges. ¶2 On March 14, 2003, notice of appeal was filed in this court under Rules 26.15 and 31.2(b), Arizona Rules of Criminal Procedure, (2001). and Arizona Revised Statutes ( A.R.S. ) § 13-4031 This court has jurisdiction pursuant to Article 6, Section 5.3, of the Arizona Constitution and A.R.S. § 13-4031. FACTS1 AND PROCEDURAL HISTORY ¶3 Stephanie Shortt lived with her mother, Ella Speaks, and two younger sisters, Amanda and Heather, in a one-bedroom apartment located on Flower Street, near the intersection of 32nd Street and Osborn Road in Phoenix. Ella met the defendant, Robert Cromwell, in the early evening hours of October 7, 2001 while walking from her apartment to a nearby convenience store 1 We view the facts in a light most favorable to sustaining the jury s verdict. State v. Tucker, 205 Ariz. 157, 160 n.1, 68 P.3d 110, 113 n.1 (2003); State v. Gallegos, 178 Ariz. 1, 9, 870 P.2d 1097, 1105 (1994). 2 to purchase transmission fluid for her car. Ella building where she saw Cromwell sitting on a bench. yelled out officer? I m a to Hey, are you a prostitute a Cromwell or a police Ella continued walking and replied, I m neither one. mother Cromwell her, passed then and I m got on having his a bike bad and day. rode Leave toward me alone. Ella. reaching her, he said, I just want to apologize to you. was a very rude thing I said. prostitutes. That In this area, there s a lot of I can t believe that I disrespected you that way and I want to give you my fullest apology. It s okay. Upon I m just having a bad day. Ella told Cromwell, I don t mean to lash out at you, but I m not in the mood for those kind of comments. Cromwell then told Ella he would escort her to the store because this is a bad area and it s now dark at this time. Ella saw some men off to her left and was almost relieved that Cromwell was going to walk with her to the store. ¶4 Ella went into the store alone where she purchased transmission fluid. waiting for her. according to When she emerged, Ella found Cromwell The two walked back to her apartment and Ella s testimony, Cromwell seemed kind and caring. ¶5 At transmission the fluid apartment, into the Cromwell helped automobile. 3 Ella Ella put then the asked Cromwell if he would like to accompany daughters to a nearby fast-food restaurant. her and her three Cromwell agreed to go, but wanted first to take the bicycle back to his apartment. Ella and the children followed Cromwell and parked the car to wait for him outside the apartment. Cromwell parked his bike, changed his clothes, then drove with Ella and her three girls to the restaurant. ¶6 the On the way, Cromwell and the children sang songs. drive-through hamburger. window, He declined. Ella offered Ella and Cromwell buy Cromwell a They obtained food for Ella and the children and went back to Ella s apartment. ate, to At went into her talked and Ella smoked methamphetamine. While the children bedroom where the two After spending about an hour in the bedroom, Cromwell agreed to accompany Ella to a number of local bars where she filled out job applications and played a few games of pool. ¶7 Cromwell had one drink during the bar visits, and Ella had none. At one bar location, Cromwell leaned over a pool table and tried to kiss Ella on the mouth, but she turned her cheek. Cromwell said, I can tell you didn t like it, but I will do it again. which time Ella Ella replied, I don t think you will, at noticed that Cromwell understood, and he apologized once again. 4 smiled as if he ¶8 When Ella and Cromwell returned to her apartment around 1:00 a.m., the children were on a mattress in the living room, still awake. Ella told the girls to go to sleep, and Ella and Cromwell went into the bedroom where they played cards for about an hour. ¶9 Ella At some point, with Cromwell still in the apartment, received a phone call from a friend, Kelly Lancaster, asking that she come to his house to help resolve a disturbance being caused by a mutual acquaintance, Kim Jensen. Ella agreed and determined to leave her children with Cromwell because he seemed so nice. Cromwell told Ella he would just stay in her room while she was gone. Ella was gone from the house for a little more than an hour. ¶10 During Ella s absence, Stephanie s nine-year-old sister Amanda was awakened by the sound of Stephanie making a noise as if she was really hurt. Amanda then saw Stephanie standing in the bathtub, unclothed, while Cromwell, with socks on both of his hands, washed her with soap. bed on several occasions while Ella was Amanda got out of gone, angrily told her to get back to bed each time. Amanda Although saw Stephanie Stephanie follow remained Cromwell in Ella s into but Eventually, Ella s bedroom, Cromwell bedroom. Amanda saw Cromwell move from the bedroom to the kitchen several times. 5 During one such trip, Amanda heard a noise like silverware shatter, and while Cromwell and Stephanie were in the bedroom, she heard noises that made her think Stephanie was hurt. She then heard a big bang that sounded like a television dropping to the floor. Amanda finally fell asleep while Stephanie was in the bedroom with Cromwell. ¶11 When Ella returned to the apartment, accompanied by Kim Jensen, Cromwell attacked both of them with a pool cue, resulting in injuries apartment after the to attack each. and Cromwell Ella quickly ran out of followed, the after looking unsuccessfully for Stephanie. ¶12 Cromwell s attack on Ella and Kim awakened Amanda. She saw her mother chase Cromwell out of the apartment. Jensen was lying on the floor with a head injury. Heather, the youngest sister, then got up and Kim Amanda and went to the bedroom to look for Stephanie. Amanda reached into the bed, felt that Stephanie s legs and resting on Stephanie s head. saw the television set was She and Heather removed it, then ran downstairs and asked the landlord to call 9-1-1, which he did. After the call, Amanda and Heather went back upstairs and into the bedroom. They observed blood stains on the bedding and found Stephanie s body, bruised and bloody. 6 ¶13 Police call. Officer Tallon Busby responded to the 9-1-1 When he arrived, the door was open and Kim Jensen was on the floor. Officer Busby described the scene: Laying [sic] inside the doorway was a white female. From the waist down she was outside the apartment, from the waist up, she was laying [sic] facedown in the apartment. door. There was a blood smear on the He asked Kim, who was semi-conscious, if anyone else was in the apartment. She replied that the baby was in the bedroom. He then asked Kim where she was injured, and she replied that she had been hit on the back of the head. Officer Busby observed that the hair on the back left side of Kim s head was matted in blood. ¶14 The officer then went observed a light in the bedroom. into the dark apartment and He walked toward the doorway and saw Stephanie lying face up on the bed. her unclothed body from the waist down. A blanket covered She had visible wounds on her face and blood coming out of her nose and lips and out of her mouth. There was a huge pool of blood under her head and shoulders. Officer Busby checked breathing and if she had a pulse. her neck. slight to see if Stephanie was He felt a slight pulse at He placed his hand on Stephanie s chest and felt a rise and fall. Visible evidence of severe vaginal trauma indicated that Stephanie also had been sexually abused. 7 ¶15 By the time Gary Ford, a Phoenix Fire Department paramedic, arrived, Stephanie no longer had a pulse and had stopped breathing. While performing cardiac pulmonary resuscitation, Ford observed that Stephanie had suffered a head wound and multiple stab wounds to her back. Ford also observed the vaginal injuries. After attempting CPR and other life- saving paramedics procedures, the rushed Stephanie to Good Samaritan Hospital. ¶16 Dr. Wendy Lucid was on duty at the Good Samaritan emergency room when Stephanie arrived. heartbeat and was not breathing. full body assessment. She forehead. Closer Stephanie s fracture. Stephanie had no Initially, Dr. Lucid did a found a large inspection laceration revealed a on skull Due to the severity of Stephanie s head injuries, Dr. Lucid stopped all life support efforts and pronounced her dead. Dr. Lucid eleven then stab turned wounds on Stephanie her onto back. her Further side and observed examination also revealed the vaginal injuries. ¶17 The Stephanie s medical body. examiner Based on performed the an injuries, autopsy he on determined Stephanie had received a minimum of five blows to the head and thirteen stab wounds to the back. The stabbing punctured her right lung, causing it to collapse. 8 In the opinion of the examiner, Stephanie was alive at the time she vaginal trauma and at the time she was stabbed. suffered the The cause of death was multiple blunt force and stabbing injuries inflicted on her head and back. ¶18 The grand jury indicted Cromwell October 16, 2001 on one count of first degree murder, one count of sexual assault and two counts of aggravated assault. On November 9, 2001, the State filed a notice of intent to seek the death penalty for the murder and on August 9, 2002, filed its notice of aggravating factors. Trial began February 3, 2003, resulting in conviction by the jury on all counts in the indictment. TRIAL ISSUE Did the Trial Court Err in Denying Cromwell s Request for New Counsel? Background ¶19 On November 13, 2002, slightly more than two months before the scheduled start of trial, Cromwell s court-appointed attorney, James Logan, filed a Motion to Withdraw or in the Alternative Motion to Determine Counsel. The motion was filed in response to Cromwell s pro se request that his attorney be removed from the case. On November 20, 2002, the trial court held a hearing and asked Cromwell why he no longer wanted Logan as his lawyer. Cromwell responded: Mr. Logan and I are on differences [sic] on key points 9 of my defense. I m in left field and he s in right field. He informed me about DNA information at one point in the case and come [sic] back three months later to find out that it was completely false. At the I m not sure that I want to continue to say what he said to me in private and in open court, and what he has also said in court to indicate that Mr. Logan has no intention of defending me zealously. He has much said in court and on the record that there would be a guilt phase during the trial and he quickly corrected himself in front of you last time I was here, but Mr. Logan said no uncertain terms that not only would I be found guilty, but I will die. Those were his exact words to me. That s all, your honor. ¶20 When specifically asked by the trial court regarding what differences existed between himself and Logan, Cromwell stated: I m sure he s a great lawyer, but we don t agree on where to go with my defense and especially where the DNA is concerned and one or two witnesses are concerned and specific questions that are supposed to be answered. ¶21 and In order to explore the relationship between client counsel in more detail, the trial judge cleared the courtroom, ordered the transcript portion of this part of the hearing sealed, and continued his Cromwell s motion for new counsel. investigation regarding During the closed-courtroom discussion, Cromwell informed the trial court that he and Logan had a disagreement. He indicated differed on the handling of his case. 10 four areas in which they ¶22 First, Cromwell said the two question the State s DNA expert. disagreed on how to Cromwell wanted the expert questioned in a way that would ascertain whether the DNA results were consistent with sexual intercourse. Logan explained that the DNA expert was not qualified to express an opinion whether the DNA results were consistent with sexual intercourse but was qualified and would testify concerning the presence and quality of DNA evidence allegedly linking Cromwell to the crimes charged. ¶23 Second, Logan Cromwell disagreed Lancaster, to told on whether testify at the to trial call trial. court Ella s Logan that he friend, and Kelly acknowledged the disagreement but stated that even under Cromwell s approach to the case, calling Lancaster would be a strategically unwise maneuver. ¶24 Third, Cromwell efforts, specifically, telephone records of disagreed his Ella Stephanie s school records. decision Speaks and with not his Logan s to discovery subpoena failure to the obtain Logan informed the trial court that he had indeed received the relevant telephone records from the State, but that some land-line calls could not be obtained. Regarding Stephanie s school records, Logan asserted this was the first time he had heard of Cromwell s request for those 11 records. Logan stated he would attempt to obtain them but questioned whether he would be successful, pointing out that they were victim records, and even if obtained, may not have been admissible. ¶25 Finally, Cromwell asserted that he and Logan differed on how to proceed with the defense of his case and that Logan told him that if he were to proceed to trial, he would be found guilty. Logan responded: I believe I was absolutely required to give him my opinion of the case by the Code of Ethics and to tell him what I thought of it and give him what I thought were potential viable situation. alternatives to what could be a worse Logan also stated: Mr. Cromwell tends to reject anything that I tell him that is not in line with his theory that he be found not guilty and there really is no evidence against him of any sort. He has instead vastly maintained that there is no evidence against him. He wanted to go to trial on the first trial setting, because there was no evidence against him. When I point out to him evidence that is clearly damaging evidence and clearly evidence that would support a conviction, he becomes upset. He becomes angry with me and I am not assisting him. ¶26 The trial judge denied Cromwell s motion for change of counsel, stating: Appellant is not entitled to counsel of choice and is not entitled to a meaningful, that s meaningful, relationship with his attorney. I have considered all the relevant factors. I ll note that the quality of counsel currently representing [Cromwell] is excellent. 12 I ll note that a significant amount of time has elapsed since the alleged date of violation and since charges were filed. I ll note that trial is set for January 21 of 2003 and we have some motion hearings set for December 6th of this year. I ll note that and confirm what I said earlier, which is, if a new lawyer would be put on the case now, it would lead to a significant delay in the processing of the case, which would be to the prejudice of [Cromwell], to the prejudice of the victims, to the prejudice of the State, and to the prejudice of the interests of justice, not only in the form of resolving matters with due speed, but also in the form of the potential for fading memories. Counsel and [Cromwell] have a conflict with respect to strategy. To me, this is a conflict that will reappear ad infinitum if a new quality lawyer is appointed to represent [Cromwell]. So I could appoint a new counsel, which would lead us back to exactly the same situation that we re in, only it would be about a year later. In other words, to the extent that you could characterize the disagreement between Defense Counsel and [Cromwell] as a conflict, the new lawyer, to the extent [he] is competent counsel, would be confronted with exactly the same conflict. I ll also note that granting the motion would lead to significant inconvenience to witnesses and victims. Standard of Review ¶27 A trial court s decision to deny the request for new counsel will not be disturbed absent an abuse of discretion. State v. Lee, 142 Ariz. 210, 220, 689 P.2d 153, 163 (1984). Applicable Law ¶28 A criminal defendant has a Sixth Amendment right to representation by competent counsel. 13 U.S. Const. amend. VI; see also Ariz. Const. art. 2, § 24; A.R.S. § 13-114(2) (2001); Ariz. R. Crim. P. 6.1. A defendant is not, however, entitled to counsel of choice or to a meaningful relationship with his or her attorney. Morris v. Slappy, 461 U.S. 1, 13-14 (1983); State v. Moody, 192 Ariz. 505, 507, ¶ 11, 968 P.2d 578, 580 (1998). ¶29 The completely accused presence fractured ordinarily of an irreconcilable relationship requires the between conflict counsel appointment of new or and a the counsel. Conflict that is less than irreconcilable, however, is only one factor for a court to consider in deciding whether to appoint substitute counsel. State v. Henry, 189 Ariz. 542, 546-47, 944 P.2d 57, 61-62 (1997); State v. Bible, 175 Ariz. 549, 591, 858 P.2d 1152, 1194 (1993); State v. LaGrand, 152 Ariz. 483, 486-87, 733 P.2d 1066, 1069-70 (1987); see also Moody, 192 Ariz. at 50809, ¶ 21, 968 P.2d at 581-82. A single allegation of lost confidence in counsel does not require the appointment of new counsel, and disagreements over defense constitute an irreconcilable conflict. strategies do not Henry, 189 Ariz. at 546- 47, 944 P.2d at 61-62; Bible, 175 Ariz. at 591, 858 P.2d at 1194. ¶30 To allegations constitute a must beyond go colorable claim, personality a defendant s conflicts or disagreements with counsel over trial strategy; a defendant must 14 allege facts sufficient to support a belief that an irreconcilable conflict exists warranting the appointment of new counsel in order to avoid the clear prospect of an unfair trial. See Slappy, 461 U.S. at 13-14; United States v. Hillsberg, 812 F.2d 328, 333-34 (7th Cir. 1987) (holding that denial of a motion to substitute counsel is not reversible error when the defendant abruptly states that he does not trust his attorney but gives no grounds for that distrust . . . or where defendant and counsel have personality conflicts and disagreements over trial strategy. ). ¶31 the Thus, when considering a motion to substitute counsel, judge evaluates several factors designed specifically to balance the rights and interests of the defendant against the public interest in judicial economy, efficiency and fairness. See Moody, 192 Ariz. at 507, ¶ 11, 968 P.2d at 580. These include: [W]hether an irreconcilable conflict exists between counsel and the accused, and whether new counsel would be confronted with the same conflict; the timing of the motion; inconvenience to witnesses; the time period already elapsed between the alleged offense and trial; the proclivity of the defendant to change counsel; and quality of counsel. LaGrand, 152 Ariz. at 486-87, 733 P.2d at 1069-70; see also Moody, 192 Ariz. at 507, ¶ 11, 968 P.2d at 580. 15 Analysis ¶32 with Cromwell argues that he had irreconcilable differences Logan and claims the trial court meaningful inquiry into the conflict. failed to make any The State responds that the conflict between Cromwell and Logan amounted to differences in strategy and personality and that the irreconcilable differences asserted by Cromwell were not substantive, would not affect the counsel quality and appointment of that of representation taking new all counsel by factors was not otherwise into competent account, warranted the under the circumstances. ¶33 Additionally, Cromwell claims the trial court improperly based its decision to deny the change of counsel on delay caused by the state between the day of the crime until the day the indictment was handed up, and the delay following the indictment through discovery and trial. As noted, however, the trial court considered all of the LaGrand factors, including the delay, and concluded that there was insufficient basis on which to justify a substitution of counsel. The court further concluded that even if new counsel were appointed, Cromwell s assessment counsel, of the case inevitably, would would remain be disagreement. 16 unchanged confronted and with that the new same ¶34 Further concerning the LaGrand factors, the court found that if new counsel were appointed, the witnesses and victims would be significantly inconvenienced by added delay and that further delays were unwarranted because substantial time had elapsed since the date of the murder, the filing of charges, and the filing of the motion. The court thus concluded that appointing a new lawyer at this stage would be to the prejudice of all interests relevant to the timely administration of justice. ¶35 On review, we conclude the denial of new counsel was based on a proper balancing of relevant interests. Denial of the motion was discretionary and we find no abuse of discretion. There was no irreconcilable conflict between Cromwell and Logan. The friction between them stemmed strictly from disagreement as to their respective assessments of the facts and trial strategy. ¶36 The defense decision in Moody. claims this We disagree. case is similar to our The Moody record was replete with examples of a deep and irreconcilable conflict between the defendant and his attorney. 580. 192 Ariz. at 507, ¶ 13, 968 P.2d at Moody accused his lawyer and the lead public defender of being incompetent and crazy. 581. Id. at 508, ¶ 16, 968 P.2d at He developed an obsessive hatred for his attorney and the public defender s office and, on at least one occasion, he 17 and his attorney were almost at blows with one another. Id. Moody believed his lawyers were conspiring with the prosecutor, the court and the doctor to have him declared insane. Id. Moreover, Moody threatened to file ethical complaints against his lawyer and the public defender s office. Id. at ¶ 18. None of these is present in the instant case. Cromwell, in open court, stated his belief that Logan was competent and there was no expression of hatred or violence, nor was there an allegation of conspiracy with prosecutors, the court, or the doctors to have Cromwell declared insane. record before us suggesting Nor is there anything in the ethical complaints against Mr. Logan. ¶37 Cromwell s reliance on Moody is misplaced. The facts in the instant case do not resemble the intense acrimony and depth of conflict found in resembles LaGrand, Henry Moody. and Instead, Cromwell s case Bible, in which the conflicts amounted to nothing more than a disagreement over appropriate defense strategies, Henry, 189 Ariz. at 547, 944 P.2d at 62, and maybe together. even some feelings of not getting along Bible, 175 Ariz. at 591, 858 P.2d at 1194. so well Finally, we defer to the discretion of the trial judge who has seen and heard the parties to the dispute. There was no abuse of discretion by the judge in this instance inasmuch as he did 18 exactly what we expect trial judges to do: he held a hearing, heard the statements and responses of both the defendant and counsel, gave consideration to each, knew and applied the LaGrand factors, and, in a reasonable exercise of discretion, denied the defendant s request. SENTENCING ISSUES A. Is the Especially Heinous, Cruel or Depraved Language of A.R.S. § 13-703(F)(6) Unconstitutionally Vague? Standard of Review ¶38 We review the validity of a statute de novo and construe it, whenever possible, to uphold its constitutionality. State v. Davolt, 207 Ariz. 191, 214, ¶ 99, 84 P.3d 456, 479 (2004). Applicable Law ¶39 States The Eighth Constitution and Fourteenth require that a Amendments capital to the United sentencing scheme place limits on the discretion of the sentencer. Jeffers, 497 U.S. 764, 774 (1990). See Lewis v. The scheme must channel the sentencer s discretion by clear and objective standards that provide specific and detailed guidance and that make rationally reviewable the process for imposing a sentence of death. Id. (quoting Godfrey v. Georgia, 446 U.S. 420, 428 (1980)); see also Woodson v. North Carolina, 428 U.S. 280, 303 (1976). 19 Analysis ¶40 Cromwell argues that the aggravating factor especially heinous, cruel or depraved as set forth in A.R.S. § 13-703(F)(6)2 is unconstitutionally vague. His contention rests on the distinction created by the Supreme Court in Ring II that juries, rather than judges, must find the aggravating factors that can result in the imposition of capital punishment. v. Arizona ( Ring II ), 536 U.S. 584 (2002). Supreme Court s decision in (1990), overruled because in depraved Walton, in part the aggravator, He claims the Walton v. Arizona, 497 U.S. 639 by Court but Ring Ring II, upheld did so the only remains instructive heinous, because the cruel or Arizona sentencing scheme provided that the aggravating factors and the ultimate sentence were to be determined by the trial judge. Walton, 497 U.S. at 654. Using Walton as his base of reasoning, Cromwell asserts that the saving factor of Arizona s statute when Walton was decided was that the trial judge, not the jury, determined the existence or non-existence of aggravating circumstances. ¶41 Cromwell cites Maynard v. Cartwright, 486 U.S. 356 (1988), and Godfrey, 446 U.S. 420, claiming the Supreme Court 2 We refer to the current version of A.R.S. § 13-703 which lists the especially heinous, cruel or depraved language as the (F)(6) aggravator. 20 held that statutory language substantially similar to A.R.S. § 13-703(F)(6) was unduly vague when applied in the context of jury findings. Godfrey were We disagree. based not on The holdings in both Maynard and the language of the sentencing statutes, but on the inadequacy and lack of specificity in the jury instructions. See Walton, 497 U.S. at 653-54.3 In our recent decision in State v. Anderson, ___ Ariz. ___, ___, ¶¶ 109-14, 111 P.3d 369, 394-95 (2005), the defendant advanced the same argument. There, we said: In Anderson s case, the jury was instructed in detail as to what would support a finding that the murders were especially heinous, cruel or depraved. The jury instructions, to which Anderson did not object, gave substance to the terms cruel and heinous or depraved in accordance with our case law narrowing and defining those terms. Thus, this case is distinguishable from Maynard and Godfrey in which no limiting instructions were given . . . . [W]e conclude that the jury instructions here were adequate to provide a narrowed construction of the facially vague statutory terms. 3 The Supreme Court overruled Walton in Ring II only to the extent that juries, rather than judges, must find the existence of aggravating factors. Ring v. Arizona, 536 U.S. 584, 588-89 (2002). The Court made no mention of the effect of a limiting jury instruction when determining the validity of those aggravators. In fact, the Supreme Court had previously stated the reason for overturning the sentences in Maynard v. Cartwright, 486 U.S. 356 (1988), and Godfrey v. Georgia, 446 U.S. 420 (1980), was because of the insufficiency of the limiting instruction, and not the fact that juries were deciding the existence of aggravating factors. Walton, 497 U.S. at 65354. 21 Id. at ¶¶ 111, 114 (footnotes omitted).4 ¶42 on Similarly, in the instant case, the jury instruction cruelty contained the essential narrowing factors and provided the specificity and direction required by this court, foreclosing a constitutional challenge to the (F)(6) statute. The jury was instructed that: Cruelty goes to mental and physical anguish suffered by the victim. Mental anguish occurs when the victim experiences significant uncertainty about her fate. In order to constitute cruelty, conduct must occur before death and while a victim is conscious. Conduct occurring after death or while a victim is unconscious does not constitute cruelty. Before conduct can be found to be cruel, the State must prove that the defendant knew or should have known that the conduct would cause suffering to the victim. This language does not suffer from vagueness. State v. Cañez, 202 Ariz. 133, 160, ¶ 100, 42 P.3d 564, 591 (2002); State v. Medina, 193 Ariz. 504, 513, ¶¶ 34-35, 975 P.2d 94, 103 (1999). ¶43 As in prior decisions, we note once again that the (F)(6) aggravator is stated in the disjunctive, indicating that evidence of any one of the statutory prongs, heinous, cruel, or depraved will support a finding that the (F)(6) aggravator is present. Medina, 193 Ariz. at 513, ¶ 33, 975 P.2d at 103 (citing State v. Laird, 186 Ariz. 203, 208, 920 P.2d 769, 774 (1996)). Because we conclude that the jury s cruelty finding is 4 For a full discussion of the effect of Walton on the (F)(6) aggravator in the jury context, see State v. Anderson, ___ Ariz. 22 amply supported by the evidence, we need not address Cromwell s challenges to the instructions concerning heinousness or depravity. ¶44 Cromwell also takes issue with the term especially as used in (F)(6) to underscore the terms heinous, cruel or depraved, arguing again that judges understand what the word especially means, but that juries do not. law, however, dispels that notion Supreme Court case because it distinguishes constitutional statutes from unconstitutional statutes on the basis of the clarifying definition, not on the supposition that judges may apply the statute one way and jurors another. Maynard, 486 U.S. at 365 (finding an instruction to the jury limiting especially heinous, atrocious or cruel to some kind of torture or serious physical abuse as constitutionally acceptable). ¶45 The trial court language from this court s properly relied decisions, drafted the (F)(6) jury instructions. on cited and above, included when it The instructions given in the instant case provided accurate and carefully drawn guidance for the jurors. We therefore reject Cromwell s vagueness argument and conclude that A.R.S. § 13-703(F)(6), on the record before us, must be upheld as constitutional. ___, ___, ¶¶ 109-14, 111 P.3d 369, 394-95 (2005). 23 B. Are Cromwell s Non-Capital Sentences Light of Blakely v. Washington? ¶46 Constitutional in Cromwell does not challenge the statutes on which the non-capital sentences are based, but rather the validity of the sentences themselves. ¶47 The essence of his argument is that he was sentenced unconstitutionally for the non-capital convictions in violation of the Sixth Amendment, citing the Supreme Court s decision in Blakely v. Washington, 124 S. Ct. 2531 (2004). ¶48 The jury convicted Cromwell of a single count of sexual assault, a dangerous crime against children, and for that crime, imposed an enhanced statutory sentence of life imprisonment without the possibility of release for thirty-five years. See A.R.S. § 13-604.01(A) (Supp. 2001). The jury also convicted him of two counts of aggravated assault, class three dangerous offenses, one involving Stephanie s mother, Ella, and the other involving Kim Jensen. He was given sentences of ten years imprisonment for each, pursuant to A.R.S. § 13-604(I) (2001). The Sexual Assault ¶49 Cromwell contends that his non-capital sentence for sexual assault was unconstitutional because the trial judge took his probationary status into account as the aggravating factor. Although the trial court found that Cromwell was on probation 24 when he committed the offense, it did not rely on that fact. The sentence was enhanced not on the basis of Cromwell s status as a probationer, but on express findings by the jury that the victim was a child under twelve years of age and that Cromwell was at least eighteen years of age at the time of the crime. The trial court thus gave Cromwell the mandatory sentence on the sexual assault charge pursuant to A.R.S. § 13-604.01(A), which provides: A person who is at least eighteen years of age and who stands convicted of a dangerous crime against children in the first degree involving sexual assault of a minor who is twelve years of age or younger . . . shall be sentenced to life imprisonment and is not eligible for suspension of sentence, probation, pardon or release from confinement . . . until the person has served thirty-five years or the sentence is commuted. (Emphasis added). Because the jury found all facts necessary under the statute to impose a sentence of life imprisonment, there is no Sixth Amendment violation. The Aggravated Assaults ¶50 Cromwell s sentences on the two convictions also do not contravene Blakely. aggravated assault The jury expressly found that Cromwell used a dangerous instrument (the pool cue) to commit each assault. three felonies. The assaults were therefore both class See A.R.S. § 13-1204(A)(1) & (B) (Supp. 2001). Under A.R.S. § 13-604(I), the presumptive sentence for a class three felony involving the use of a dangerous instrument is 25 seven and one-half years. However, the presumptive sentence may be aggravated to a maximum of fifteen years pursuant to § 13702(C). was That statute permits aggravation when [t]he defendant previously convicted of a felony within the immediately preceding the date of the offense. ten years A.R.S. § 13- 702(C)(11) (Supp. 2001). ¶51 The superior court increased each aggravated assault sentence to ten years based on two prior felony convictions in Cromwell s record. Prior convictions constitute an exception to the jury requirement and need only be found by the trial judge. Blakely, 124 S. Ct. at 2536; Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Thus, the ten-year sentences on these convictions, being within the prescribed range, did not violate Cromwell s Sixth Amendment rights under Blakely. INDEPENDENT REVIEW OF DEATH SENTENCE ¶52 This court is required by statute not only to review all death sentences, but also to perform a separate, independent review of each aggravating factor found by the jury and any mitigating evidence for the purpose of determining the propriety of the death penalty: The supreme court shall review all death sentences. On review, the supreme court shall independently review the trial court s findings of aggravation and mitigation and the propriety of the death sentence. 26 A.R.S. § 13-703.04(A) (Supp. 2003)5. ¶53 Although Cromwell has not raised a question about the independent review process and the propriety of the death sentence, the statutory mandate to this court is clear: If the supreme court determines that an error was made regarding a finding of aggravation or mitigation, the supreme court shall independently determine if the mitigation the supreme court finds is sufficiently substantial to warrant leniency in light of the existing aggravation. If the supreme court finds that the mitigation is not sufficiently substantial to warrant leniency, the supreme court shall affirm the death sentence. If the supreme court finds that the mitigation is sufficiently substantial to warrant leniency, the supreme court shall impose a life sentence pursuant to § 13-703, subsection A. A.R.S. § 13-703.04(B). A.R.S. § 13-703.01(B), This language is identical to superseded which was applicable during the trial judges performed the entire sentencing function. time Under the superseded statute, we determined that in the process of conducting quality this and the court s independent strength [of the factors], not simply the number. review, we aggravating consider and the mitigating State v. Greene, 192 Ariz. 431, 443, ¶ 60, 967 P.2d 106, 118 (1998). Because of the identical statutory language, our role in the independent review process has not been altered. We therefore proceed as before. 5 A.R.S. § 13-703.01 was renumbered as § 13-703.04 in 2002. Although the wording is unchanged, we cite to the current version here. 27 ¶54 Reviewing the capital aggravators in this case is not complex. The jury found two in support of the death penalty: 1) that the murder was committed in an especially heinous, cruel or depraved manner6 (A.R.S. § 13-703(F)(6)); and 2) that the victim was 703(F)(9)). ¶55 under the age of fifteen years (A.R.S. § 13- These aggravators were essentially uncontested.7 The record is replete with evidence of cruelty. Stephanie, the eleven-year-old victim, unquestionably suffered unspeakable mental anguish, given the medical examiner s finding that she was still alive at the time of the stabbing injuries and the against sexual the assault. child bespeak The crimes horrific committed cruelty. by Cromwell Eleven-year-old Stephanie, given her tender age, was made to suffer pre-death anguish by conduct indescribable except in the most repulsive terms. ¶56 In Greene, although there was but one aggravator and several mitigators, we concluded that the evidence of mitigation 6 The superior court in this case wisely employed the recommended procedure and asked the jury to return separate verdicts as to each prong of the (F)(6) aggravator. See State v. Anderson, ___ Ariz. ___, ___, ¶ 131, 111 P.3d 369, 398 (2005) (recommending this procedure). The jury found that each was satisfied: the murder was heinous, the murder was cruel, and the murder was depraved. 7 Cromwell did not dispute the way in which Stephanie was killed, or her age. He simply maintained that he did not commit the crime. 28 was nevertheless insufficient to warrant leniency and upheld the death sentence. Id. at 443-44, ¶ 60, 967 P.2d at 118-19. In reweighing the aggravators and mitigators as required by the statute, we have uniformly quantity, of the factors. focused on the quality, not the See, e.g., State v. Rogovich, 188 Ariz. 38, 45-46, 932 P.2d 794, 801-02 (1997) (holding that the quality of three aggravators outweighed the value of six mitigators and that the death penalty was appropriate). ¶57 The mitigating factors, consisting of Cromwell s less than adequate childhood experiences and his mental state, were remarkably weak. evidence of conclude, Weighed against the aggravating factors, the mitigation therefore, deserves that the inconsequential evidence of weight. mitigation We is not sufficiently substantial to warrant leniency. CONSTITUTIONAL CLAIMS RAISED TO PREVENT FEDERAL PRECLUSION ¶58 1. The prosecutor s discretion to seek the death penalty has no standards and therefore violates the Eighth and Fourteenth Amendments to the United States Constitution and Article 2, Sections 1, 4, and 15 of the Arizona Constitution. Rejected by State v. Sansing, 200 Ariz. 347, 361, ¶ 46, 26 P.3d 1118, 1132 (2001), vacated on other grounds, Ring v. Arizona, 536 U.S. 584 (2002); State v. Rossi, 146 Ariz. 359, 366, 706 P.2d 371, 378 (1985). 29 ¶59 against 2. Arizona s death penalty applies discriminatorily poor, young, and male defendants, in violation of Article 2, Sections 1, 4, and 13 of the Arizona Constitution. Rejected by Sansing, 200 Ariz. at 361, ¶ 46, 26 P.3d at 1132. ¶60 3. The death penalty is cruel and unusual under any circumstance and violates the Eighth and Fourteenth Amendments to the United States Constitution and Article 2, Section 15 of the Arizona Constitution. Rejected by State v. Harrod, 200 Ariz. 309, 320, ¶ 59, 26 P.3d 492, 503 (2001). ¶61 4. sentences by The absence of proportionality review of death Arizona courts denies capital defendants due process of law and equal protection and amounts to cruel and unusual punishment, Fourteenth in Amendments violation to the of the United Fifth, and Constitution States Eighth, and Article 2, Section 15 of the Arizona Constitution. Harrod, 200 Ariz. at 320, ¶ 65, 26 P.3d at Rejected by 503; State v. Salazar, 173 Ariz. 399, 416, 844 P.2d 566, 583 (1992). ¶62 5. Arizona s unconstitutional because capital it does sentencing not require scheme that the is State prove the death penalty is appropriate, in violation of the Fifth, Eighth and Fourteenth Amendments to the United States Constitution Constitution. and Article 2, Section 15 of the Arizona Rejected by State v. Ring, 200 Ariz. 267, 284, ¶ 30 64, 25 P.3d 1139, 1156 (2001), rev d on other grounds, Ring v. Arizona, 536 U.S. 584 (2002). ¶63 6. The death penalty is cruel and unusual because it is irrationally and arbitrarily imposed and serves no purpose that is not adequately addressed by life in prison, in violation of the defendant s right to due process under the Fourteenth Amendment to the United States Constitution Sections 1 and 4 of the Arizona Constitution. and Article 2, Rejected by State v. Pandeli, 200 Ariz. 365, 382, ¶ 88, 26 P.3d 1136, 1153 (2001), vacated on other grounds, Ring v. Arizona, 536 U.S. 584 (2002); State v. Beaty, 158 Ariz. 232, 247, 762 P.2d 519, 534 (1988). ¶64 7. Arizona s death penalty scheme does not provide a defendant convicted of a capital crime the opportunity to deathqualify the sentencing judge, in violation of the Eighth and Fourteenth Amendments to the United States Constitution Article 2, Section 15 of the Arizona Constitution. and Rejected by Pandeli, 200 Ariz. at 382, ¶ 89, 26 P.3d at 1153. ¶65 8. A.R.S. § 13-703 provides no objective standards to guide the jurors in weighing the aggravating and mitigating circumstances and therefore violates the Eighth and Fourteenth Amendments to the United States Constitution Section 15 of the Arizona Constitution. 200 Ariz. at 382, ¶ 90, 26 P.3d at 1153. 31 and Article 2, Rejected by Pandeli, ¶66 9. sentencing A.R.S. § 13-703 does not sufficiently channel the jurors discretion because the broad scope of Arizona s aggravating factors encompasses nearly anyone involved in a murder, violating the Eighth and Fourteenth Amendments to the United States Constitution and Article 2, Section 15 of the Arizona Constitution. Rejected by Pandeli, 200 Ariz. at 382, ¶ 90, 26 P.3d at 1153. ¶67 10. Execution unusual punishment. by lethal injection is cruel and Rejected by State v. Van Adams, 194 Ariz. 408, 422, ¶ 55, 984 P.2d 16, 30 (1999). ¶68 11. A proportionality review of a death sentence is constitutionally required. Rejected by State v. Gulbrandson, 184 Ariz. 46, 73, 906 P.2d 579, 606 (1995). ¶69 12. Eighth and Arizona s death Fourteenth penalty Amendments statute to the violates United the States Constitution and Article 2, Sections 4 and 15 of the Arizona Constitution because it does not require multiple mitigating facts to be considered cumulatively or require the trial court to make specific findings as to each mitigating factor. Rejected by State v. Van Adams, 194 Ariz. at 423, ¶ 55, 984 P.2d at 31. ¶70 13. Arizona s constitutionally defective death because 32 penalty it requires statute is defendants to prove that their lives should be spared. Rejected by State v. Fulminante, 161 Ariz. 237, 258, 778 P.2d 602, 623 (1988). CONCLUSION ¶71 For the reasons stated, we affirm all of Cromwell s convictions and sentences. _______________________________________ Charles E. Jones, Justice (Retired) CONCURRING: _______________________________________ Ruth V. McGregor, Chief Justice _______________________________________ Rebecca White Berch, Vice Chief Justice _______________________________________ Michael D. Ryan, Justice _______________________________________ Andrew D. Hurwitz, Justice 33
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