STATE v STEVEN RAY NEWELL
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SUPREME COURT OF ARIZONA En Banc STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) STEVEN RAY NEWELL, ) ) Appellant. ) ) __________________________________) Arizona Supreme Court No. CR-04-0074-AP Maricopa County Superior Court No. CR 2001-009124 O P I N I O N Appeal from the Superior Court in Maricopa County The Honorable Barry C. Schneider, Judge AFFIRMED ________________________________________________________________ TERRY GODDARD, ARIZONA ATTORNEY GENERAL By Kent E. Cattani, Chief Counsel, Capital Litigation Section Donna J. Lam, Assistant Attorney General Attorneys for the State of Arizona Phoenix Tucson SUSAN M. SHERWIN, MARICOPA COUNTY LEGAL ADVOCATE Phoenix By Ginger Jarvis, Deputy Legal Advocate Attorneys for Steven Ray Newell ________________________________________________________________ R Y A N, Justice I ¶1 On the morning of May Elizabeth Byrd left home for school. uniform and carrying a purse or 23, 2001, eight-year-old She was wearing her school knapsack with long straps. Around 7:45 a.m., a neighbor saw Elizabeth walking toward school with Steven Ray Newell following closely behind. Elizabeth knew Newell because he had previously dated her sister, and the neighbor knew both Elizabeth and Newell. ¶2 About an hour later, a Salt River Project ( SRP ) employee working in a field near the M.C. Cash Elementary School came upon someone standing in an irrigation ditch. Based on past experience, the employee initially thought that the person was using something to back up the water in the ditch so he could bathe. As the employee approached the area, the person in the ditch turned and looked at him for about thirty seconds and then jumped up and ran up the bank, disappearing behind some bushes. The employee noticed a rolled up piece of green indoor- outdoor carpeting in the water near where he had seen the person standing, but he did not retrieve it. ¶3 That afternoon, Elizabeth s mother arrived find that Elizabeth had not returned from school. home to This did not concern her, however, because Elizabeth routinely went directly from school to a friend s house, where she would stay until around eight in the evening. When Elizabeth did not come home at eight, her family began to worry. Elizabeth s sisters began looking for her, which is when they learned that she had not been at her friend s house. Around eleven in the evening, because the family still had not found Elizabeth, the police were called. - 2 - ¶4 Phoenix police responded to the family s call. After the officers spoke with Elizabeth s mother, they spoke with two of Elizabeth s friends. The officers were told that Elizabeth had not been in school that day; a missing persons report was then called in. ¶5 The next morning, two members of the Phoenix Police Department were dispatched to search the field near the M.C. Cash Elementary School. The officers discovered a child s denim shoe, a children s book, a black purse or knapsack containing a cherub magnet with the name Elizabeth on it, a pair of socks, and a drawstring coin purse. That afternoon, a detective from the Maricopa County Sheriff s Office discovered Elizabeth s body in an irrigation ditch in the field, rolled up in green indooroutdoor carpeting. Shoe prints were found along the ditch near where Elizabeth s body was found. ¶6 Later that day, the SRP employee went to the Sheriff s office after seeing a news report about the investigation. He described the person he had seen in the irrigation ditch. The investigators used that description to create a composite sketch of the suspect. The employee was also shown a photographic lineup, but he did not identify anyone in the lineup as the person he had seen in the ditch. 1 1 The SRP employee was shown multiple photo-lineups over the next two weeks, with each lineup containing a different suspect. - 3 - ¶7 The Maricopa County Medical Examiner s Office conducted an autopsy on Elizabeth s body the following day. autopsy revealed wrists, and bruising forearms, on which the tops were the left side of Elizabeth s consistent caused by her hands being squeezed. around Elizabeth s neck. of with an The hands, injury A ligature was still tied There were small vertical abrasions on Elizabeth s neck, consistent grasping at the ligature trying to remove it. with fingers She had further bruising under her chin and on her left temple, along with an abrasion near her right eye. The injuries that caused these bruises occurred before or around the time of Elizabeth s death. ¶8 The autopsy also revealed evidence of penetration of Elizabeth s vulva to the hymen consistent with a sexual assault. Elizabeth s vulva was bruised, and the vaginal tract had abrasions, with a tear on the left side of one of the abrasions. One abrasion in the vaginal tract went right up to the hymen, but the hymen itself was still intact. ¶9 from The medical asphyxiation ligature had minute or two. been due examiner to concluded ligature tightened, that Elizabeth strangulation. Elizabeth likely died Once died the within a The medical examiner further determined that it was likely that Elizabeth had stopped breathing before she was He did not identify anyone in the lineups as the person he had seen in the irrigation ditch until June 5, 2001. - 4 - placed in the water because his examination did not reveal any froth or foaminess in Elizabeth s airways and the lungs were not excessively heavy from the presence of water. Elizabeth s stomach also contained no water. ¶10 At the time of the autopsy, Elizabeth s underwear, along with blood, bone, and tissue samples from Elizabeth, were collected. These items were subsequently sent to the Department of Public Safety ( DPS ) lab for testing. ¶11 Because Newell had dated Elizabeth s sister, a detective from the Maricopa County Sheriff s Office contacted Newell on May 27, 2001, to interviewed; Newell agreed. Elizabeth s neighborhood come to the station to be Newell, like the many people from who were interviewed regarding Elizabeth s disappearance, was not a suspect at the time of the initial about interview. the day of During this Elizabeth s interview, disappearance Newell and was if anything that might be helpful to the investigation. described what he did that day but made no asked he knew Newell incriminating statements; at the end of the interview, the detective told him he was free to leave. ¶12 Newell was contacted again by a Sheriff s detective at Elizabeth s funeral on June 2, 2001. The detective went to the funeral to find Newell because he had been told that Newell was wearing Converse All Star shoes, the type of shoes which matched - 5 - the shoe prints found near Elizabeth s body. Newell voluntarily went to the station and again answered questions related to his activities around the time of Elizabeth s disappearance. During the interview, Newell s shoes were taken to be compared with the footprints observed at the ditch. to leave. Again, Newell was permitted Two days later, an analyst from the Sheriff s office concluded that it was highly probable that the footprints at the crime scene had been made by Newell s shoes. ¶13 On Sheriff s the evening detectives of contacted consent to another interview. station. Shortly questioning Newell. Fewer than advised ten Newell after 4, Newell two and Maricopa asked if County he would Newell agreed, and drove to the 8:00 p.m., the detectives began The entire interrogation was videotaped. minutes of June the into Miranda 2 the interview, rights. the Newell detectives waived those rights and agreed to speak with the detectives. ¶14 The questioning began in a manner similar to the two previous interviews, but became more accusatory after the second hour. The detectives told Newell that they had evidence that proved he had committed the murder. having anything to do with Newell initially denied Elizabeth s death; changed as the interrogation continued. 2 See Miranda v. Arizona, 384 U.S. 436 (1966). - 6 - however, that ¶15 Eventually, Newell acknowledged that he had been with Elizabeth in the field on the morning of her disappearance. He admitted he had grabbed her and placed her between his legs while he rubbed up against her, causing him to ejaculate. He then by acknowledged placing her in the water in the ditch grabbing her purse strap - which was around her neck - and her feet. the When he saw the SRP employee, he covered Elizabeth with indoor-outdoor carpeting and ran off. Throughout the interrogation he maintained that Elizabeth was alive when he placed her in the ditch and that he did not sexually abuse her. Newell was taken to jail shortly before eleven in the morning on June 5, 2001. ¶16 Later that day, the SRP employee was shown another photo lineup, which included a picture of Newell; he identified Newell as the person he had seen in the ditch on May 23, 2001. ¶17 crime During Over the next few days, a criminalist with the DPS lab conducted an analysis, semen the crotch area. analysis was on found Elizabeth s inside of underwear. the central The criminalist then did a deoxyribonucleic acid ( DNA ) analysis of sperm that were found. The following week, a DNA analysis was conducted on a blood sample from Newell to see if it matched the DNA from the sperm found in Elizabeth s - 7 - underwear. Based on this analysis, it was determined that Newell was the likely source of the sperm. 3 ¶18 On June 14, 2001, a Maricopa County grand jury indicted Newell on three counts related to the disappearance and death of Elizabeth Byrd: first degree murder, sexual conduct with a minor, and kidnapping. Nearly three years later, after an eleven-day trial, a jury found Newell guilty of all three counts. ¶19 on In the aggravation phase of the sentencing proceeding the first following degree aggravating reasonable doubt: murder charge, circumstances the had jury been found proved that the beyond a a previous conviction for a serious offense, Ariz. Rev. Stat. ( A.R.S. ) § 13-703(F)(2) (Supp. 2003); the murder was committed in an especially heinous, cruel or depraved manner, § 13-703(F)(6); and at the time of the murder the defendant was an adult and the victim was under fifteen years of age, § 13-703(F)(9). At the penalty phase of the sentencing proceedings, the jury heard testimony about Newell s 3 Newell s DNA matched at all 14 loci. The statistical probability of a match for this sperm profile was one in 860 trillion Caucasians, one in 15 quadrillion of African Americans, and one in 730 trillion Hispanics. - 8 - childhood, family life, and opportunities to get help for his substance abuse. 4 ¶20 The jury determined that Newell should be sentenced to death for the first degree murder conviction. conduct with a minor and kidnapping For the sexual convictions, the court sentenced Newell to consecutive aggravated terms of twenty-seven years and twenty-four years respectively. of appeal was filed with this Court An automatic notice under Rules 26.15 and 31.2(b) of the Arizona Rules of Criminal Procedure. We have jurisdiction Arizona under Article 6, Section 5(3), of the Constitution and A.R.S. § 13-4031 (2001). II ¶21 Newell first claims that the trial court abused its discretion by failing to suppress the statements he made to the detectives during the June 4, 2001, interrogation. 5 He argues 4 Defense Counsel refers to this phase as the mitigation phase of the trial. A capital trial is made up of a guilt proceeding or trial, see A.R.S. § 13-703(A), (D), and if necessary a sentencing proceeding consisting of an aggravation phase and a penalty phase, § 13-703(B), (C) and § 13-703.01 (Supp. 2003). For purposes of consistency and clarity, we will use, in this opinion and all future opinions, the language found in A.R.S. § 13-703 to refer to the stages of a capital trial. We urge counsel to conform to this convention as well when making submissions to this Court. 5 Newell concedes that even without these statements, overwhelming evidence establishes his guilt. However, he argues that the admission of the statements affected the jury s determination to impose the death penalty. In particular, he argues that the jury would not have found that the murder was - 9 - that these reasons. statements should have been suppressed for two First, he asserts that the detectives violated his right to counsel under Miranda v. Arizona, 384 U.S. 436 (1966). Second, he contends that the inculpatory statements were involuntarily made. A ¶22 When reviewing a trial court s determination on the admissibility determine of whether a defendant s there has statements, been clear this and Court manifest must error. 6 State v. Jones, 203 Ariz. 1, 5, ¶ 8, 49 P.3d 273, 277 (2002) (citing State v. Eastlack, 180 Ariz. 243, 251, 883 P.2d 999, 1007 (1994)). reviewed A trial court s ruling on a motion to suppress is solely based suppression hearing. on the evidence presented at the State v. Spears, 184 Ariz. 277, 284, 908 P.2d 1062, 1069 (1996) (citing State v. Flower, 161 Ariz. 283, 286 n.1, 778 P.2d 1179, 1182 n.1 (1989)). especially heinous or depraved under the A.R.S. § 13-703(F)(6) aggravator if these statements had been excluded. 6 This standard applies whether the Court is reviewing the admissibility based on a violation of defendant s right to counsel under Miranda, see State v. Jones, 203 Ariz. 1, 4-5, ¶¶ 7-8, 49 P.3d 273, 276-77 (2002), or determining whether the confession was voluntary, see State v. Ross, 180 Ariz. 598, 603, 886 P.2d 1354, 1359 (1994). We have equated this standard with the abuse of discretion standard. Jones, 203 Ariz. at 5, ¶ 8, 49 P.3d at 277. - 10 - B ¶23 Newell claims that his statements must be suppressed because the detectives did not honor his requests for the presence of counsel during questioning. ¶24 Miranda held that the Fifth Amendment s protection against self-incrimination, as applied to the states through the Fourteenth Amendment, requires procedural safeguards during a custodial interrogation. 384 U.S. at 444. The prosecution may not use any statement made by the defendant, whether exculpatory or inculpatory, unless those procedural safeguards are provided. Id. The right to the presence of an attorney is one of the rights of which a person subject to custodial interrogation must be informed under Miranda. Id. If the person being interrogated asserts the right to an attorney, all questioning must cease until an attorney reinitiates communication. is present or the defendant Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); Miranda, 384 U.S. at 474. ¶25 Before an officer must cease questioning, however, the defendant must unambiguously request the presence of counsel. Davis v. United States, 512 U.S. 452, 459 (1994). A person subject to custodial interrogation must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer statement to be in a the circumstances request for an - 11 - would understand attorney. Id. the If a reasonable officer in the circumstances would have understood only that the defendant might want an attorney, then questioning need not cease. Id. Although an officer is not required to do so, the Court in Davis recommended that a police officer suspend interrogation related to the crime when a suspect makes an ambiguous or equivocal statement relating to the presence of counsel and clarify whether the presence of an attorney indeed has been requested. ¶26 Newell Id. at 461. claims that during the interrogation unequivocally invoked his right to counsel several times. he The superior court disagreed and denied Newell s motion to suppress his statements because it found that Newell s alleged invocations of his right to counsel were, at best, equivocal. ¶27 We review the factual findings underlying this determination for abuse of discretion but review the court s legal conclusions de novo. State v. Moody, 208 Ariz. 424, 445, ¶ 62, 94 P.3d 1119, 1140 (2004). ¶28 Office, Although the Newell procedural voluntarily protections of went to Miranda Newell was subject to custodial interrogation. 7 7 the Sheriff s apply because Therefore, if The State concedes that Newell was subject to custodial interrogation, if not from the beginning of the June 4, 2001, interview, then at least after he was told by one of the detectives that he was not free to leave. See Miranda, 384 U.S. at 444 (stating that custodial interrogation is questioning initiated by law enforcement officers after a person has - 12 - any of Newell s alleged requests for counsel were unambiguous, the superior court would have been required to suppress the statements. We conclude, however, that Newell did not make any unequivocal requests for counsel. ¶29 First, Newell claims that he unambiguously invoked his right to counsel three times during a one-minute colloquy in the interrogation s third hour. Newell argues that he first invoked his right to counsel when he said, I want to call my lawyer. Without further context, this statement appears to be an unambiguous invocation of the right to counsel. ¶30 After reviewing the videotaped interrogation and hearing testimony from the detectives, the trial judge found that this statement was made while Newell and one of the detectives were talking over each other and it was reasonable to believe the statement could not be clearly heard. Given these circumstances, the judge found that the detective was free to follow up to determine what Newell had said, because the request was ambiguous. ¶31 During See Davis, 512 U.S. at 461. the detective s attempt to clarify Newell s initial request, Newell claims he made two further unequivocal been . . . deprived of his freedom of action in any significant way ). - 13 - requests for an attorney. 8 The superior court found that both of the alleged requests were ambiguous because they occurred while Newell and the detective were talking over each other. The court was further found that one of the ambiguous because it was contradictory. alleged requests The court held that in the total context of what is being exchanged, [Newell s requests for an attorney seem] to me not at all clear, and it s appropriate for the detective to ask for clarification. ¶32 We conclude that the superior court did not abuse its discretion in making this determination. involving the three within one minute. were often supposed requests The entire exchange for counsel occurred During this time, Newell and the detective speaking simultaneously. As a result, Newell s requests were either not heard or heard in such a way that the detective reasonably found clarification. See id. contradictory; therefore, it necessary to ask for Also, some of the alleged requests were consider them unequivocal. a reasonable See id. at 459. 8 officer would not The detective was After the detective asked Newell whether he was requesting a lawyer, Newell first responded No, and then said, If I m getting accused right now, if I m getting charged for it yeah, I want my lawyer. The detective then further attempted to clarify whether Newell wanted his attorney or whether he wanted to continue talking. Newell responded by making a statement that sounded like I m willing and something unintelligible before stating, If I m going to jail, I want to talk to my lawyer. - 14 - free to continue her questioning to clarify whether or not [Newell] actually want[ed] an attorney. ¶33 Id. at 461. The detective did precisely this. Newell, in response to a clarifying question, stated, I want to talk to you. I have been down here talking to you guys every time you guys come after me. Once that response was received, further questioning was entirely appropriate. ¶34 Newell next claims that approximately twenty minutes after the attorney colloquy by discussed saying, Can I above have a he again lawyer? asked for This an supposed request was not asserted by Newell at the suppression hearing. Newell s failure to assert this alleged invocation of the right to counsel claim. 344 normally would preclude appellate review of the See State v. Tison, 129 Ariz. 526, 535, 633 P.2d 335, (1981) (stating [i]ssues concerning the suppression of evidence which were not raised in the trial court are waived on appeal ) (citing State v. Griffin, 117 Ariz. 54, 570 P.2d 1067 (1977)). raised We may, however, review a suppression argument that is for the first time on appeal for fundamental error. State v. Cañez, 202 Ariz. 133, 151, ¶ 51, 42 P.3d 564, 582 (2002). Fundamental error is error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received - 15 - a fair trial. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984)). ¶35 We conclude no fundamental error occurred with respect to this alleged request. A review of the videotape does not reflect, as Newell claims, a clear invocation of the right to counsel. This alleged request for counsel was a barely audible, mumbled statement made while Newell and the detective were both talking. It was not a sufficiently clear invocation of the right to counsel under Miranda. ¶36 Davis, 512 U.S. at 459. Newell finally argues that he unequivocally requested an attorney five hours into the interrogation by saying, That s it. I want to talk to a lawyer right now. The superior court found that Newell s statement was unclear and it was reasonable to believe that the detective did not hear a clear request for an attorney. ¶37 A review of court s determination. 9 Newell s statement. the videotape supports the superior It is nearly impossible to understand In fact, Newell s trial counsel abandoned this alleged invocation at the suppression hearing because he 9 The determinations of the trial court and this Court were profoundly aided by the fact that the interrogation was recorded in its entirety. It is specifically for this reason that we have, in the past, recommended the use of videotaping during the entire interrogation process. Jones, 203 Ariz. at 7, ¶ 18, 49 P.3d at 279. - 16 - could not hear the request on the tape. videotape supports the same conclusion. Our review of the Therefore, the superior court did not abuse its discretion by finding that Newell had not clearly invoked his right to counsel as required by Davis. C ¶38 Newell also argues that even if the statements were not obtained in violation of Miranda, they must be suppressed as involuntary. He claims that his statements were rendered involuntary by the length of the interrogation, the inability to get counsel after multiple alleged requests, promises made by the detectives, inappropriate appeals to religious beliefs, and comments related to a woman for whom he cared deeply. ¶39 In determining whether a confession is involuntary, the [court] must look to the totality of the circumstances surrounding the giving of the confession. State v. Montes, 136 Ariz. 491, 496, 667 P.2d 191, 196 (1983). Then the court must determine whether, given the totality of the circumstances, the defendant s will was overborne. State v. Tapia, 159 Ariz. 284, 287-88, 767 P.2d 5, 8-9 (1988). A confession is prima facie involuntary and the state must show by a preponderance of the evidence that the confession was freely and voluntarily made. Montes, 136 Ariz. at 496, 667 P.2d at 196. ¶40 The superior court found, after hearing the testimony presented at the suppression hearing and reviewing the relevant - 17 - portions of the taped confession, that considering the totality of the circumstances, defendant s will was not overcome and the statements were voluntariness error. voluntary. will be A sustained trial absent court s clear finding and of manifest State v. Poyson, 198 Ariz. 70, 75, ¶ 10, 7 P.3d 79, 84 (2000). ¶41 Newell complains that his will was overborne by the length of the interrogation. alone, however, involuntary. is The length of the interrogation insufficient to find a confession State v. Doody, 187 Ariz. 363, 369, 930 P.2d 440, 446 (App. 1996) (stating that a thirteen hour interrogation, without significant breaks, does not prove, by itself, that the defendant s will to resist confessing was overcome). merely one factor to be taken into consideration. ¶42 It is See id. The interrogation here lasted about fourteen hours, but not all of that time involved questioning. The detectives gave Newell multiple breaks to smoke and use the restroom. He also spent time alone in the room writing letters and sleeping. The videotape of the interrogation supports the trial judge s finding that Newell s will was not overborne because of the length of questioning. ¶43 because Newell also claims that his confession was involuntary the detectives requests for counsel. repeatedly ignored his unequivocal As discussed above, we conclude that - 18 - Newell did not make an unequivocal request for counsel. Even if these requests had been unambiguous, however, they would not necessarily render circumstance would the be one confession factor to involuntary; consider in such a determining whether Newell s will had been overborne. See, e.g., People v. Bradford, 929 P.2d 544, 566 (Cal. 1997). No evidence suggests that the detectives refusal to honor Newell s ambiguous requests for counsel caused his will to be overborne. Newell continued to deny his involvement in Elizabeth s death for an extended time after his claimed requests for counsel. ¶44 Newell next complains that promises detectives rendered his confession involuntary. made by the We have held that a direct or implied promise, however slight, will render a confession involuntary when it was relied upon by the defendant in making a confession. State v. Blakley, 204 Ariz. 429, 436, ¶ 27, 65 P.3d 77, 84 (2003). The superior court, by denying the motion to suppress, implicitly found that there were no promises or, if there were promises, they were not relied upon. In either case, we conclude that there was no abuse of discretion. ¶45 The statements about which Newell complains relate to suggestions by the detective that he would feel better if he confessed. 10 Newell also alleges that the detectives promise to 10 The detectives told Newell throughout the interrogation that the first step to getting help was to admit that he had - 19 - keep him safe involuntary. 11 while in jail rendered his confession We conclude, given the context, that neither of those comments rose to the level of a promise that prompted Newell to confess. ¶46 Even if they were promises, however, Newell did not rely upon them when he made his inculpatory statements. immediately after hearing the alleged promises, Newell denied ever having been in the field with Elizabeth. denials continued throughout most of the Almost again These interrogation. Therefore, the alleged promises did not render the confession involuntary. ¶47 Newell also claims that one of the detectives made references to religion, which added to the coercive nature of the interrogation and, in addition to everything else, caused his will to be overborne. complains related to The statements about which Newell get[ting] right with God, confessing sins, and asking for forgiveness. ¶48 Appeals to religion they lead do to not the render suspect s confessions involuntary unless will being overborne. See, e.g., United States v. Miller, 984 F.2d 1028, done something wrong. They also told Newell that confessing would lift a heavy burden off of his shoulders. 11 After Newell had expressed concern for his safety in jail, the detectives merely assured Newell that he would be kept safe. - 20 - 1031-32 (9th Cir. 1993); Welch v. Butler, 835 F.2d 92, 95 (5th Cir. 1988); Noble v. State, 892 S.W.2d 477, 483 (Ark. 1995), overruled on other grounds by Grillot v. State, 107 S.W.3d 136 (Ark. 2003); Le v. State, 913 So. 2d 913, 933-34, ¶¶ 60-64 (Miss. 2005). No evidence indicates that any religious references caused Newell s will to be overborne. ¶49 Newell s final complaint concerns statements relating to someone for whom Newell cared. One of the detectives asked Newell whether he would want the woman he cared for to be told that he had been completely honest or that he was a sociopath who was hiding things. He claims that these statements were threats to get him to confess. Taken in context, however, none of these statements rise to the level of a threat, nor did any cause Newell to make incriminatory statements. detectives to talk to this woman because Newell asked the he felt that she need[ed] to know what was going on, and at one point he said that it did not matter what the detective told this because she was probably not going to be around anyway. woman We therefore conclude that these alleged threats did not render Newell s statements involuntary. ¶50 discretion In sum, when circumstances, the it that superior court did not abuse found, based on the totality Newell s will was not overborne. of its the Even considering, in the aggregate, all of the conduct about which - 21 - Newell complains, at no time during the interview did Newell capitulate and say what he thought the detectives wanted to hear. he In fact, despite making several incriminating statements, persistently Elizabeth or Accordingly, superior to the court s voluntarily refused tying to the totality purse of conclusion made. admit Thus, the to sexually strap around circumstances that Newell s Newell s assaulting her neck. supports statements argument that the the were death sentence must be reversed fails on these grounds. III ¶51 Newell next challenges the State s peremptory strike of prospective juror 34, the only remaining African-American on the venire panel, 12 under Batson v. Kentucky, 476 U.S. 79 (1986). Batson held that using a peremptory strike to exclude a potential juror solely on the basis of race violates the Equal Protection Clause of the Fourteenth Amendment. Id. at 89. Newell claims that the superior court s denial of his Batson challenge was clearly erroneous and, as a result, reversible error. ¶52 A denial of a Batson challenge will not be reversed unless clearly erroneous. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); State v. Cruz, 175 Ariz. 395, 398, 857 P.2d 1249, 12 The only other African-American on the jury panel who had completed the questionnaire was excused for hardship reasons. - 22 - 1252 (1993). We review de novo the trial court s application of the law. State v. Lucas, 199 Ariz. 366, 368, ¶ 6, 18 P.3d 160, 162 (App. 2001). ¶53 A Batson challenge involves a three-step analysis. First, the defendant must make a prima facie showing that the strike was racially discriminatory. the burden then switches to the neutral explanation for the strike. If such a showing is made, prosecutor to give a race- Finally, if the prosecution offers a facially neutral basis for the strike, the trial court must determine whether the defendant has established purposeful discrimination. Batson, 476 U.S. at 93-94, 97-98; see also Cañez, 202 Ariz. at 146, ¶ 22, 42 P.3d at 577. ¶54 the The first step of the Batson analysis is complete when trial strike. court requests an explanation for the peremptory State v. Trostle, 191 Ariz. 4, 12, 951 P.2d 869, 877 (1997). Here, the trial court made that request of the prosecutor; therefore, the burden shifted to the prosecutor to give a race-neutral basis for the peremptory strike. Purkett v. Elem, at 514 U.S. 765, 768 (1995); Batson, 476 U.S. 97-98. Unless a discriminatory intent is inherent in the prosecutor=s explanation, this burden is satisfied explanation for the peremptory strike. by a facially valid Hernandez v. New York, 500 U.S. 352, 360 (1991) (plurality opinion). To pass step two, the explanation need not be persuasive, or even plausible. - 23 - Purkett, 514 U.S. at 767-68. that the It is not until the third step persuasiveness relevant . . . . Id. of 768. at the In justification determining becomes whether the defendant has proven purposeful discrimination, implausible or fantastic justifications may (and probably will) be found to be pretext[ual]. Id.; see also Miller-El, 537 U.S. at 338-39. This third step is fact intensive and will turn on issues of credibility, which the trial court is in a better position to assess than is this Court. See Miller-El, 537 U.S. at 339-40. Therefore, the trial court s finding at this step is due much deference. ¶55 Id. at 340. When asked for an explanation of the peremptory strike, the State stated that it struck the juror because of her answers relating to the imposition of the death penalty, both in her questionnaire and in individual voir dire. On the questionnaire, she stated that she would not be able to vote for the death penalty. Also, during individual voir dire, she told the prosecutor that she would more than likely not be able to vote for the death penalty. defense counsel, however, In response to questions asked by the juror answered that she could consider voting for the death penalty if the court instructed that it needed to be considered. juror follow-up questions. The prosecution then asked the In her answers to those questions, she confirmed that her views on the death penalty would not - 24 - substantially impair her ability to follow the court s instructions and that she could vote for the death penalty. ¶56 The trial judge then questioned the juror. When asked whether she would give a life sentence rather than impose the death penalty if the defendant did not present any evidence of mitigation, she responded in the affirmative. Because this answer contradicted her statements to defense counsel - that she could impose the death penalty - the judge said, I m confused then under penalty. what circumstances you would impose the The juror answered, I m not sure, actually. on what s presented. death Depends After further explanation of the legal standard related to mitigation, the juror acknowledged that she had not understood the court s question and that she could [a]bsolutely impose the death penalty when the defendant did not introduce any mitigating evidence. ¶57 After this exchange, the prosecutor stated that he did not believe he had grounds to strike her for cause. But he subsequently used one of his peremptory strikes to strike the juror from the list of potential jurors. ¶58 The prosecutor s reason for striking the juror, which involved the juror s contradictory responses about whether she could vote to impose the death penalty, satisfied step two of Batson because it was facially race-neutral. Dretke, ___ U.S. ___, ___, 125 S. - 25 - Ct. See Miller-El v. 2317, 2329-30 (2005) (discussing reasonable the fact that race-neutral inconsistent explanation responses for a may peremptory be a strike, unless it is undercut by other evidence); Puckett v. State, 788 So. 2d 752, evidence, 761 other (Miss. than 2001). inference, Moreover, to show Newell that offered the no peremptory strike was a result of purposeful racial discrimination. See Purkett, 514 U.S. at 768 (holding that the opponent of the strike carries the ultimate burden of persuasion in a Batson challenge). We find no error in the superior court s determination that the State s peremptory strike did not violate Batson. IV ¶59 Newell contends that the trial court abused discretion when it denied his motion for a mistrial. its Newell argues that statements made by the prosecutor during closing arguments constituted prosecutorial misconduct and warranted a mistrial because they improperly vouched for the State s evidence and impugned the integrity of defense counsel. A ¶60 To determine if a prosecutor s comments constituted misconduct that warrants a mistrial, a trial court should consider two factors: (1) whether the prosecutor s statements called attention to the jury s matters it should not have considered in reaching its decision and (2) the probability that - 26 - the jurors were in fact influenced by the remarks. State v. Atwood, 171 Ariz. 576, 611, 832 P.2d 593, 628 (1992) (quoting State v. Hansen, 156 Ariz. 291, 296-97, 751 P.2d 951, 956-57 (1988)), disapproved on other grounds by State v. Nordstrom, 200 Ariz. 229, 241, ¶ 25, 25 P.3d 717, 729 (2001). The defendant must show that the offending statements, in the context of the entire proceeding, so infected the trial with unfairness as to make the resulting conviction a denial of due process. State v. Hughes, 193 Ariz. 72, 79, ¶ 26, 969 P.2d 1184, 1191 (1998) (internal quotation omitted). ¶61 Because the trial court is in the best position to determine the effect of a prosecutor s comments on a jury, we will not disturb a trial court s denial of a mistrial for prosecutorial misconduct in the absence of a clear abuse of discretion. State v. Lee, 189 Ariz. 608, 616, 944 P.2d 1222, 1230 (1997) (citing State v. White, 160 Ariz. 24, 33-34, 770 P.2d 328, 337-38 (1989)); Hansen, 156 Ariz. at 297, 751 P.2d at 957 (citing State v. Robles, 135 Ariz. 92, 94, 659 P.2d 645, 647 (1983)). To warrant reversal, the prosecutorial misconduct must be so pronounced and persistent that it permeates the entire atmosphere of the trial. Lee, 189 Ariz. at 616, 944 P.2d at 1230 (quoting Atwood, 171 Ariz. at 611, 832 P.2d at 628). B - 27 - ¶62 Newell first claims that the prosecutor improperly vouched for the strength of the State s case when he commented, in rebuttal closing argument, that there were 3,000 pages of police reports Prosecutorial and that vouching [n]ot takes prosecutor places the prestige [evidence] [and] (2) where every two witness forms: of the the was called. (1) where the government behind its prosecutor suggests that information not presented to the jury supports the [evidence]. State v. Vincent, 159 Ariz. 418, 423, 768 P.2d 150, 155 (1989). Newell argues category. ¶63 that these statements fall into the second We disagree. The prosecutor s statements were not meant to bolster the State s case. Rather, they were an attempt to explain to the jury, in response to statements made in Newell s closing argument, why certain witnesses had not been called to testify. The prosecutor s response merely explained to the jury that there were simply too many documents and witnesses for either side to be able to present them all. imply that these State s case. police reports and The prosecutor did not witnesses supported the Therefore, the trial court did not abuse its discretion by denying the motion for a mistrial on this basis. ¶64 The second ground for Newell s prosecutorial misconduct claim relates to the prosecutor s statements, also made during rebuttal closing argument, about the superiority of - 28 - DNA evidence. First, the prosecutor said, [N]o matter what defense counsel tells you, we all know that DNA is . . . the most powerful time. investigative tool in law enforcement at this He then went further, after defense counsel s objection to the first statement was overruled, by telling the jury that defense counsel knew this was true. The Newell s objection to this latter statement. these statements required a mistrial court sustained Newell argues that because they improperly vouched for the State s evidence and impugned the integrity of defense counsel. ¶65 We prosecutor s agree that statement both about comments the were superiority improper. of DNA The evidence improperly vouched for the State s evidence. No opinions had been evidence. The knows DNA elicited prosecutor s about comment the preeminence here - that of DNA everyone that evidence is the best investigative tool around did improperly vouch for the strength of the State s evidence against Newell. Cf. Vincent, 159 Ariz. at 423, 768 P.2d at 155 (prosecutor improperly vouches by suggesting that evidence not presented to the jury supports the presented evidence). ¶66 The prosecutor also improperly commented about what defense counsel knew about the strength of DNA evidence. have previously stated that it is improper integrity or honesty of opposing counsel. - 29 - to impugn We the See Hughes, 193 Ariz. at 86, ¶ 59, 969 P.2d at 1198. defense counsel knew that The prosecutor, by stating that DNA evidence is a compelling investigative tool, was insinuating, if not directly stating, that any argument made to the contrary was disingenuous. Because defense counsel, in his closing argument, had questioned whether the DNA evidence proved anything beyond a reasonable doubt, the prosecutor s response in claiming that defense counsel knew that DNA was superior evidence called into question the integrity of defense counsel. ¶67 Such improper comments by the prosecutor will not require reversal of a defendant s conviction, however, unless it is shown that there is a reasonable likelihood that misconduct could have affected the jury s verdict. 171 Ariz. at 606, 832 P.2d at 623. the Atwood, Also, any improper comments must be so serious that they affected the defendant s right to a fair trial. 1184, 1195 State v. Dumaine, 162 Ariz. 392, 403, 783 P.2d (1989). Although we find the comments of the prosecutor improper, for several reasons we conclude that the defendant was not convicted on the basis of those comments and they did not deny him a fair trial. ¶68 First, as a part of the standard jury instructions, the superior court instructed the jury that anything said in closing arguments was not evidence. - 30 - We presume that the jurors followed the court s instructions. See State v. Ramirez, 178 Ariz. 116, 127, 871 P.2d 237, 248 (1994). ¶69 Moreover, defense counsel s objection to the statement impugning his honesty was sustained. We have said, when counsel s personal beliefs are unfairly attacked, [t]he proper remedy for such a serious error . . . is objection, motion to strike, and an instruction . . . that the jury should disregard the improper comment. Vincent, 159 Ariz. at 424, 768 P.2d at 156 (alterations in original) (quoting State v. Woods, 141 Ariz. 446, 455, 681 P.2d 1201, 1210 (1984)). Although no jury instruction immediately followed the sustained objection, the court did instruct the jury at the end of the trial that any sustained objection disregarded. meant Again, that because we the information presume jurors must be follow the court s instructions, see Ramirez, 178 Ariz. at 127, 871 P.2d at 248, we conclude that this comment also did not affect the jury verdict. ¶70 Finally, the trial court determined that the statements about which Newell complains were not so prejudicial that they required a mistrial. When considered in the context of the entire trial, we agree that the overwhelming evidence of guilt influenced the jury to convict Newell rather than the prosecutor s counsel. statements about the DNA evidence and defense Moreover, as noted above, see supra note 5, Newell - 31 - concedes the evidence overwhelmingly establishes his guilt. Therefore, despite the fact that these comments were improper, they were not so prejudicial as to deprive Newell of his right to a fair trial. V ¶71 Next, Newell claims that the trial court s failure to preclude the rebuttal testimony of his adult probation officer at the penalty phase of the sentencing proceeding was an abuse of discretion. The testimony about which Newell complains referred to the opportunities Newell was offered to get help for his drug problem. Newell contends that he did not present evidence of his inability to get help for his drug problem as a mitigating factor; consequently, the State was not entitled to present evidence in rebuttal that Newell had had opportunities to get help. ¶72 The trial court determined that the probation officer s testimony was admissible to rebut Newell s statements made during the course of the interrogation about needing and being unable to get help for his drug problem. believed that because the jurors had heard The trial judge these statements during the guilt phase, they could possibly rely on them when deciding whether Newell deserved leniency. concluded that this was appropriate mill. - 32 - Therefore, the court grist for the rebuttal ¶73 We review a trial court s ruling on the admissibility of evidence for abuse of discretion. State v. Aguilar, 209 Ariz. 40, 49, ¶ 29, 97 P.3d 865, 874 (2004). purely legal issues de novo. We will review Moody, 208 Ariz. at 445, ¶ 62, 94 P.3d at 1140. ¶74 Newell s objection to the testimony of the probation officer implicates two subsections of A.R.S. § 13-703. Subsection (G) permits a jury to consider any factors that are offered - no mitigation. matter who offers § 13-703(G). evidence admitted admitted for during purposes of them - when considering Subsection (D) provides that any the guilt phase the sentencing of the trial proceeding. is § 13- presentation of 703(D). ¶75 Newell claims that the State s evidence to rebut statements he made during his interrogation amounted to an end-run around his choice not to present evidence of his alleged inability to obtain treatment for his drug addiction. reasons. We disagree with this contention for two First, Newell himself put forth evidence during the guilt and penalty phases of the trial related to his drug use and his desire for help to overcome it. cross-examination of one of the In the guilt phase, on detectives, Newell elicited evidence of his struggle with drug addiction and his attempts to get help. In the penalty phase, - 33 - witnesses testified about Newell s exposure to drugs at an early age, including the fact that his stepfather used drugs with Newell when he was only in seventh grade. substance Newell abuse in also his mentioned his allocution. long Second, history during of his interrogation, Newell referred numerous times to his inability to obtain help for his drug problem. For instance, he spoke about wanting to live without drugs and about asking for help when he got out of jail; he stated that no one helped him when he asked for help; and he told the detectives that people with problems like his should receive help. ¶76 The evidence presented during the guilt phase of the trial was deemed admitted for purposes of the sentencing proceeding because the same jury that determined Newell s guilt also decided A.R.S. § whether 13-703(D). he should receive Therefore, the although death Newell penalty. did not expressly offer as a mitigating factor his alleged inability to get treatment for his drug addiction, the jury still could have factored his complaints on this topic, along with the other evidence presented during the penalty phase about Newell s drug use, into its circumstances leniency. consideration were of sufficiently A.R.S. § 13-703(E), (G). - 34 - whether substantial the to mitigating call for ¶77 could Thus, the trial court s determination that the State present testimony from Newell s probation officer in rebuttal was not an abuse of discretion. VI ¶78 Finally, Newell contends that the trial court abused its discretion by precluding the testimony of his mental health expert at the penalty phase as a sanction for refusing to undergo a court-ordered examination by the State s mental health expert. Newell also argues that requiring him to submit to a mental health examination by the State s expert violates his privilege against self-incrimination. ¶79 Newell acknowledges that we have previously held that once a defendant puts his mental heath in issue, during the penalty phase of a capital trial, a trial court may order the defendant expert. to submit to a mental examination by the State s Phillips v. Araneta, 208 Ariz. 280, 283, ¶ 9, 93 P.3d 480, 483 (2004). As long as the order assures the defendant specific protections, we held that this may be done without running afoul incrimination. of the defendant s privilege against Id. at 284, ¶ 14, 93 P.3d at 484. self- We further held that if the defendant refuses to submit to a court-ordered examination, the trial court may, as a sanction, preclude a defendant s mental-health penalty phase. related mitigation evidence Id. at 285, ¶ 16, 93 P.3d at 485. - 35 - at the ¶80 Newell presents no arguments that would compel us to revisit our decision in Phillips. Therefore, the superior court did not err when it precluded the testimony of Newell s mental health expert. VII ¶81 Because Elizabeth s murder occurred before August 1, 2002, we must aggravation sentence. independently and mitigation review and the the jury s propriety findings of the on death A.R.S. § 13-703.04 (Supp. 2003); see also 2002 Ariz. Sess. Laws, 5th Spec. Sess., Ch. 1, § 7(B) (eff. Aug. 1, 2002). In our review, regarding a if we finding determine[] of that aggravation an error . ., . was [we] made shall independently determine if the mitigation . . . is sufficiently substantial to warrant leniency in aggravation. A.R.S. § 13-703.04(B). mitigation sufficiently light is to Id. required to affirm the death sentence. the existing If we find[] that the substantial then we must impose a life sentence. of warrant leniency, Otherwise, we are Id. ¶82 In conducting our independent review we do not merely consider the quantity of aggravating and mitigating factors which were proven, but we look to the quality and strength of those factors. State v. Greene, 192 Ariz. 431, 443, ¶ 60, 967 P.2d 106, 118 (1998) (citing State v. McKinney, 185 Ariz. 567, 578, 917 P.2d 1214, 1225 (1996)). - 36 - We do not require that a nexus between the mitigating factors and the crime established before we consider the mitigation evidence. be See Tennard v. Dretke, 542 U.S. 274, 287 (2004). But the failure to establish be such a causal connection may considered in assessing the quality and strength of the mitigation evidence. See State v. Anderson, 210 Ariz. 327, 350, ¶¶ 96-97, 111 P.3d 369, 392 (2005). decision of Finally, [w]e do not defer to the findings or the jury, with determin[ing] respect the to aggravation propriety of the or mitigation, when death sentence. State v. Roseberry, 210 Ariz. 360, 374, ¶ 77, 111 P.3d 402, 416 (2005). ¶83 Undisputed aggravating evidence circumstances. supports Newell s the (F)(2) prior and (F)(9) conviction for attempted kidnapping established that he had a serious prior felony conviction. 13 A.R.S. § 13-703(F)(2). Moreover, Newell was an adult at the time of the murder and Elizabeth was eight years old. ¶84 A.R.S. § 13-703(F)(9). An aggravating circumstance is also established when murder is committed in an especially cruel, heinous or depraved 13 Under A.R.S. § 13-703(H)(10), kidnapping is a serious offense. The (F)(2) aggravator is established by proof beyond a reasonable doubt of a prior conviction for a serious offense, whether preparatory or completed. A.R.S. § 13-703(F)(2) (emphasis added). Therefore, because attempt is considered a preparatory offense, A.R.S. § 13-1001 (2001), a conviction for attempted kidnapping establishes the (F)(2) aggravator. - 37 - manner. A.R.S. § 13-703(F)(6). The cruelty prong of the (F)(6) aggravator focuses on the suffering of the victim, while the heinousness and depravity prongs focus on the state of mind of the defendant. 888, 896 (1980). State v. Clark, 126 Ariz. 428, 436, 616 P.2d A determination that the (F)(6) aggravator has been proven can be based on any or all of these prongs, because they are in the disjunctive. See State v. Gretzler, 135 Ariz. 42, 51, 659 P.2d 1, 10 (1983) (quoting Clark, 126 Ariz. at 436, 616 P.2d at 896); see also Anderson, 210 Ariz. at 355-56, ¶ 128, 111 P.3d at 397-98. 14 ¶85 of Here, substantial evidence supports the cruelty prong the (F)(6) aggravator. Cruelty requires proof that the victim consciously experienced physical or mental pain prior to death and the defendant knew or should have known that suffering would occur. Trostle, (citation omitted). 191 Ariz. at 18, 951 P.2d at 883 The evidence bruising that occurred at or 14 We note that the jury verdict form in this case did not require the jury to specify upon which prong, or prongs, its determination with respect to the (F)(6) factor rested. It is therefore possible the jury was not unanimous as to which prong satisfied the (F)(6) aggravator. Anderson, 210 Ariz. at 355, ¶ 126, 111 P.3d at 397. However, Newell, unlike the defendant in Anderson, did not raise a claim that he was denied a unanimous verdict on the (F)(6) aggravator. We therefore do not consider that issue. For purposes of our independent review, however, Newell s failure to raise any further grounds upon which the jury s finding with respect to this aggravator can be overturned does not affect our ultimate conclusion. Even if we were to ignore the (F)(6) aggravator, the strength and quality of the (F)(2) and (F)(9) aggravating circumstances alone would support the imposition of the death penalty. - 38 - near the time of death consistent with grasping of Elizabeth s arms, sexual assault-related bruises and injuries, testimony that it normally takes two minutes for death by asphyxiation to occur, and marks showing that Elizabeth was grasping at the ligature - all especially support cruel. the conclusion Elizabeth suffered mental anguish before she died. such suffering would occur. that this serious murder was physical and Newell should have known that Because we find that compelling evidence supports a finding of cruelty, we need not examine whether the evidence also establishes depravity prongs of (F)(6). the heinousness or State v. Djerf, 191 Ariz. 583, 595, ¶ 44, 959 P.2d 1274, 1286 (1998) (noting that a finding of either cruelty or heinousness/depravity will suffice to establish the (F)(6) factor). ¶86 his The bulk of Newell s mitigation evidence related to unstable childhood and drug use. Newell s witnesses testified that during childhood his home life was unstable. addition, addictions as a who child engaged he in was exposed drug-related to people with activities. In drug Several witnesses testified that Newell had been sexually and physically abused during his childhood. Finally, by all accounts, Newell had an extended history of drug use. ¶87 We conclude that Newell s mitigation evidence is not sufficiently substantial to call - 39 - for leniency. No evidence explains how Newell s drug addiction and unstable childhood led to the sexual assault and murder of eight-year-old Elizabeth. See Anderson, 210 Ariz. at 357, ¶¶ 135-37, 111 P.3d at 399. Moreover, in view of the compelling aggravating circumstances, the mitigation evidence simply fails to rise to a level that would call for leniency. VIII ¶88 For the above reasons, we affirm Newell s convictions and sentences. __________________________________ Michael D. Ryan, Justice CONCURRING: _________________________________________ Ruth V. McGregor, Chief Justice _________________________________________ Rebecca White Berch, Vice Chief Justice _________________________________________ Andrew D. Hurwitz, Justice _________________________________________ W. Scott Bales, Justice - 40 -
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