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After a jury trial, Brad Nelson was found guilty of first-degree murder and sentenced to death. The jury found proven beyond a reasonable doubt the only aggravator alleged under Ariz. Rev. Stat. 13-751(F)(9), that Nelson was an adult and the victim was under fifteen years old at the time of the murder. The Supreme Court affirmed Nelson's conviction and sentence, holding (1) Nelson was not deprived of a fair and impartial jury; (2) the jury's finding of premeditation was not legally incorrect; (3) the premeditation instruction given to the jury was not fundamentally erroneous, nor did the prosecutor incorrectly argue premeditation; (4) the section 13-751(F)(9) aggravator was constitutional; (5) the trial court did not abuse its discretion in denying Nelson's motion for mistrial based on an improper argument by the prosecutor; and (6) the jury did not abuse its discretion in determining that Nelson should be sentenced to death.Receive FREE Daily Opinion Summaries by Email
SUPREME COURT OF ARIZONA
STATE OF ARIZONA,
BRAD LEE NELSON,
Arizona Supreme Court
O P I N I O N
Appeal from the Superior Court in Mohave County
The Honorable Richard Weiss, Judge
THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL
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
Attorney for Brad Lee Nelson
B R U T I N E L, Justice
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
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 halfsister, 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.
When Wade awoke, he noticed Amber was still in bed and
under the covers.
Wade then walked to the Kmart with 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
He returned without the bag and suggested that
“some homeless guy” might have taken it.
Nelson and Wade then returned to the motel.
This opinion cites the current version of statutes, unless
We view the facts “in the light most favorable to upholding
State v. Chappell, 225 Ariz. 229, 233 ¶ 2 n.1,
236 P.3d 1176, 1180 n.1 (2010).
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
On the way out, Nelson told a housekeeper “not to
Nelson and Wade then returned the sleeping bag.
Upon returning to the motel, Nelson and Wade met a
reached the room, Wade pulled the covers off Amber.
blue, had foam and blood coming out of her mouth, was naked from
the waist down, and bleeding from her forehead.
called 911, but police and paramedics could not revive Amber.
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
inside out, with the panties still within them and the socks
within the legs of the pants” as if “somebody had pulled them
Investigating officers located the shirt Nelson left at
the truck stop and the sleeping bag he had returned to the
Both had Amber’s blood on them.
Amber’s death was “blunt force trauma to the head.”
examiner found Nelson’s semen on Amber’s body.
Nelson was charged with first-degree murder and child
He admitted killing Amber, but argued it was not
phase, the superior court granted Nelson’s motion for judgment
of acquittal as to child molestation and felony murder.
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. § 13determined
Nelson should be sentenced to death.
II. ISSUES ON APPEAL
A. Alleged violation of right to fair and impartial jury
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
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).
County Courthouse, the judge admonished them to ignore media
coverage; warned that newspaper, radio, and TV coverage is not
exposed to any type of media coverage.
During individual voir
dire, Juror 56 said he had “looked up as much information as
[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
The court continued individual voir dire, questioning
each juror regarding prior knowledge about the case.
referred to Juror 56, stating that he seemed nervous as he was
anything about the case.
When asked specifically if she had learned anything
about the case, she said no.
Nelson subsequently struck Juror 60.
Thirteen more potential jurors
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
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)).
cannot be presumed without the requisite showing that the jury
received and considered extrinsic evidence on the issues.”
Nelson has not shown prejudice, nor may it be presumed
Juror 56 was excused, and the record does not suggest he
B. Substantial evidence of premeditated first degree murder
vacated because the State’s evidence shows only passage of time
but not the actual reflection required for premeditation.
“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
processes by direct evidence.”
Thompson, 204 Ariz. at 478-79 ¶¶ 27,
31, 65 P.3d at 427-28.
Nelson left to procure a weapon and
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
formed a plan for committing the murder and then set about
carrying it out.”
United States v. Begay, ___ F.3d ___, 2011 WL
omitted); see also State v. Pittman, 118 Ariz. 71, 75, 574 P.2d
supported by evidence that defendant entered victim’s house with
gun and then shot the victim three times).
Nelson claims that “[t]his is not a case where the
defendant went and obtained a gun, a knife or some other ‘deadly
“Although in an ordinary context, a
instances assailants have used hammers to perpetrate a deadly
[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
Thus, the use of the hammer as a weapon of
Id. at 1195.
A defendant’s actions after a murder can also help
See, e.g., Beard, 46 P.3d at 1195;
State v. Sierra, 440 S.E.2d 791, 795 (N.C. 1994).
the murder weapon under a bed, disposed of his bloody shirt, and
returned a sleeping bag that had Amber’s blood on it.
Although the evidence of premeditation in this case is
finding of premeditation was not legally incorrect.
C. Premeditation jury instruction and argument
Nelson asserts that the trial court gave the jury an
We review de novo “whether the jurors were properly
State v. Dann, 220 Ariz. 351, 364 ¶ 51, 207 P.3d
604, 617 (2009).
Because Nelson did not object to either the
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.
The trial court gave the following jury instruction:
‘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
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
This instruction is nearly identical to the one prescribed in
Thompson, 204 Ariz. at 479 ¶ 32, 65 P.3d at 428.
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.
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.
sufficient to prove premeditation.
See State v. Kiles, 222
because “he made clear that such was not the case in this matter
[and h]is argument focused on the circumstantial evidence of
D. Failure to instruct the jury on manslaughter
Nelson next argues that the trial court’s refusal to
give a requested lesser-included manslaughter jury instruction
However, the trial court did instruct on second-
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
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
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
upon the (F)(9) aggravator is cruel and unusual punishment.”
review de novo the constitutionality of statutory aggravating
See State v. Hargrave, 225 Ariz. 1, 13 ¶ 42, 234 P.3d
569, 581 (2010).
1. Arbitrary and capricious
“arbitrary” and “irrational” distinction at age fifteen and is
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
Romano v. Oklahoma, 512 U.S. 1, 7 (1994) (quoting
Lowenfield v. Phelps, 484 U.S. 231, 244 (1988)).
amendment requires that the sentencer’s discretion be channeled
and limited to avoid the risk of wholly arbitrary and capricious
State v. Hinchey, 165 Ariz. 432, 436, 799 P.2d 352,
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.”
California, 512 U.S. 967, 972 (1994).
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-
This aggravating circumstance meets constitutional
First, as Nelson concedes, it does not apply to
Nor is the (F)(9) aggravator vague.
difficult to imagine an aggravating factor less susceptible than
Jones v. Schriro, 450 F. Supp. 2d 1047, 1078 (D.
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
violates equal protection and due process under the Fourteenth
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
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.
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
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
State v. Smith, 193 Ariz. 452, 462 ¶ 48, 974 P.2d 431, 441
3. Cruel and unusual punishment
Nelson also argues that sentencing him to death based
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.
Although we once conducted proportionality review to
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
review by an appellate court”).
We decline to do so in this
case as well.
Nelson also contends that because this murder would
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
Graham, however, acknowledges two subsets of categorical rules
Id. at 2022.
Neither applies here.
penalty on the basis of an otherwise constitutional statutory
Even if we assume Graham supplies the proper analysis
Under Graham, a court “considers ‘objective indicia of society’s
Nelson could be sentenced to death in Arizona, A.R.S. § 13751(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).
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)).
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
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)
violates the Eighth Amendment).
fewer jurisdictions than were the defendants in Atkins, Roper,
But those cases turned on the characteristics of
the defendant or the nature of the crime, not the identity of
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
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.
age as an aggravator with additional qualifying circumstances.5
§ 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. § 3913-204(i)(1) (2012); Utah Code Ann. § 76-5-202(1)(t)(i) (West
2011); Wyo. Stat. Ann. § 6-2-102(h)(ix) (2011).
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
§§ 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
Thus, in twenty-eight of the thirty-five jurisdictions, age of
the victim is a factor in sentencing a defendant to death.
shows consensus that the victim’s age is relevant in determining
whether a person who commits murder deserves the death penalty.
To be sure, states use different ages in their capital
aggravation statutes, and there is no clear consensus on what
province, however, to determine at what ages child victims are
The Arizona Legislature has set the age at
fifteen, well within the range of other jurisdictions.
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
F. Alleged prosecutorial misconduct
Nelson claims that the prosecutor committed misconduct
penalty phase closing argument.
The trial court denied Nelson’s
motions for mistrial and to vacate the judgment based on this
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
mistrial,” State v. Koch, 138 Ariz. 99, 101, 673 P.2d 297, 299
prosecutorial misconduct, so we first address whether misconduct
occurred and, if so, review for harmless error.
Ariz. at 373 ¶ 125, 207 P.3d at 626.
This Court will reverse
denying the defendant a fair trial.”
See Dann, 220
. . .
Speer, 221 Ariz. at 458
¶ 42, 212 P.3d at 796 (internal quotation marks omitted).
1. Motion for mistrial
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.
“Prosecutorial misconduct constitutes reversible error
only if (1) misconduct exists and (2) ‘a reasonable likelihood
verdict, thereby denying defendant a fair trial.’”
(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
not contribute to or affect the verdict.”
State v. Roque, 213
“consider two factors: (1) whether the prosecutor’s statements
considered in reaching its decision and (2) the probability that
the jurors were in fact influenced by the remarks.”
Newell, 212 Ariz. 389, 402 ¶ 60, 132 P.3d 833, 846 (2006).
Court looks at the context in which the statements were made as
State v. Rutledge, 205 Ariz. 7, 13 ¶ 33, 66
P.3d 50, 56 (2003).
a. Use of (F)(6) aggravator terms
relished the murder; (2) needless mutilation of the victim; (3)
gratuitous violence beyond that necessary to kill; (4) helpless
The State asserts that Nelson timely objected to only one
of the words traditionally used to the describe the (F)(6)
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)
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
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
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.
using these words, nor did she argue that such an aggravator be
significance of these words because the State did not allege and
the court did not instruct on the (F)(6) aggravator.
b. Victim and witness impact evidence
misconduct by discussing the impact of Amber’s death on her
family and other witnesses.
In Payne v. Tennessee, 501 U.S.
“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
[caused by the defendant] at the same time as it considers the
mitigating evidence introduced by the defendant.”
Id. at 826.
testified in the guilt phase, and Nelson presented a video-taped
improper under Payne if they are supported by the evidence, even
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
the victim’s death on his or her family.”).
Such arguments are
proper as long as emotion does not “reign over reason.”
209 P.3d at 50 (internal quotation omitted).
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
affected certain witnesses was improper.
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
State v. Tucker, 215 Ariz. 298, 319 ¶ 89,
160 P.3d 177, 198.
Moreover, the improper argument took up less than one
page out of more than twenty pages of transcript in the State’s
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
submitting an affidavit from a juror stating that the jury did
not follow instructions and that the juror felt “emotionally
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.
Juror affidavits are admissible to challenge a
which inquires into the subjective motives or mental processes
which led a juror to assent or dissent from the verdict.”
The Arizona rule reflects a policy long followed by
“The general rule, known as Lord Mansfield’s
rule, is that a juror’s testimony is not admissible to impeach
State v. Dickens, 187 Ariz. 1, 15, 926 P.2d 468,
The rule serves “to protect the process of frank
and conscientious jury deliberations and the finality of jury
State v. Poland, 132 Ariz. 269, 282, 645 P.2d 784,
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”).
verdict could be impeached based on a juror’s mental process at
the time of deliberation, “‘no verdict would be safe.’”
v. J.C. Penney Co., 103 Ariz. 404, 406, 442 P.2d 851, 853 (1968)
(quoting McDonald v. Pless, 238 U.S. 264, 268 (1915)).
III. REVIEW OF DEATH SENTENCE
Because Nelson committed the murder after August 1,
aggravation finding and death sentence for abuse of discretion.
therefore, that independent review is required.
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.
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.
Nelson argues that the jury abused its discretion in failing to
find that the mitigation evidence was sufficiently substantial
to call for leniency.
An expert opined that, but for this
background, he would not have committed this homicide.
also introduced an apology letter that he wrote to his sister
thanking the jury.
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).
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.
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
Nelson cites State v. Bocharski, 218 Ariz. 476, 189
P.3d 403 (2008), to support his claim that the jury abused its
In that case, we reduced Bocharski’s sentence to
outweighed the strength of the (F)(9) aggravating circumstance.
218 Ariz. at 499 ¶ 112, 189 P.3d at 426.
before us on independent review.
Id. at 492 ¶ 79, 189 P.3d at
Here, we review the death sentence for abuse of discretion
But that case was
and do not independently reweigh the evidence.
conviction and sentence.7
Robert M. Brutinel, Justice
Rebecca White Berch, Chief Justice
Andrew D. Hurwitz, Vice Chief Justice
W. Scott Bales, Justice
A. John Pelander, Justice
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).
Execution by lethal injection is per se cruel and unusual
punishment. State v. Hinchey, 181 Ariz. 307, 315, 890 P.2d
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
602, 610 (1995).
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
defendants to prove that their lives should be spared. State
v. Fulminante, 161 Ariz. 237, 258, 778 P.2d 602, 623 (1988).
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).
consideration of that evidence. State v. Mata, 125 Ariz.
233, 242, 609 P.2d 48, 57 (1980).
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)
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).
Death sentences in Arizona have been applied arbitrarily and
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
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).
presumption of death and places an unconstitutional burden
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
(Anderson II), 210 Ariz. 327, 350, ¶¶ 93-97, 82, 111 P.3d
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
“sufficiently substantial to call for leniency” violated the
Eighth Amendment. State v. Ellison, 213 Ariz. 116, ¶¶ 101102, 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
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
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
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).