Debra Jean Milke
On December 2, 1989,
James Lynn Styers filed a missing child report, advising police that
his roommates's son, Christopher Milke (age 4), had disappeared during
their visit to Metrocenter mall. Roger Mark Scott was present with
On December 3, 1989,
Scott admitted during a police interview that he had accompanied
Styers the previous day to a desert wash in the area of 99th Avenue
and Jomax Road where Styers shot and killed Christopher Milke.
Styers agreed to
provide Scott with $250 to file a social security claim. Styers
believed he would receive some of Christopher's $5,000 life insurance
policy. At the conclusion of the interview, Mr. Scott led police to
the desert area where they found Christopher Milke's body.
During a police
interview, Debra Jean Milke, Christopher Milke's mother, conceded that
she had conspired with Styers to have her son killed. She indicated
that it would be better to have her son die than grow up like her
Presiding Judge: Cheryl K. Hendrix
Prosecutor: Noel Levy
Start of Trial: December 7, 1990
Verdict: October 12, 1990
Sentencing: January 18, 1991
Age of victim (4)
No prior record Prior employment
Good conduct while in jail
State v. Milke, 177 Ariz. 118, 865 P.2d 779 (1993).
Debra Jean Milke (born March 10, 1964 in
Berlin-Steglitz) is a German-born Arizona death row inmate who was
convicted of the murder of her son Christopher Conan Milke in 1990.
She was the first female to be sentenced to death in Arizona since
1932. Milke is being held at Arizona State Prison Complex - Perryville
in Goodyear, Arizona.
Debra Milke (Sadeik) was born in Berlin, Germany,
to a military family. In 1965 the Sadeik family moved to the U.S.,
where Milke attended high school and college. She married Mark Milke
in 1984 and gave birth to one son, Christopher Conan Milke, in 1985.
Debra and Mark divorced in 1988.
Murder investigation and conviction
In August 1989, Debra Milke and her son Christopher
Milke moved into an apartment with Jim Styers, a man she knew through
her sister. On December 2, 1989, Styers took 4-year-old Christopher to
the Metrocenter mall in Phoenix, Arizona. That afternoon he called
Milke, who was doing laundry at the apartment, and told her that the
boy had disappeared from the mall. Styers alerted mall security, while
Milke dialed 911. A missing person investigation was launched.
The next day Phoenix police arrested Roger Scott, a
long-time friend of Styers. After more than fourteen hours of
interrogation, Scott admitted that he knew where Christopher was and
that the boy was dead. He directed the police to a desert area north
of Phoenix, where Christopher's body was discovered. Christopher had
been shot three times in the head. Scott claimed that Styers had
committed the murder and that Milke had "wanted it done."
Styers, who had helped in the initial search for
Christopher, was arrested and interviewed by police after being
implicated by Scott. Milke voluntarily went to the Pinal County
sheriff's office, where she waited in a jail dispensary. Other Phoenix
police detectives were told via radio not to speak to Debra. When the
lead case detective, Armando Saldate, arrived with a helicopter, he
sent her accompanying acquaintance out of the room, and started the
interrogation behind the closed door. He had neither set up a tape
recorder, nor was any other witness present.
Three days later he penned a narrative report that
indicated Milke had instigated the murder of her son Christopher.
Milke allegedly told Saldate that she wanted her son dead. The
confession was not tape-recorded, signed by her, or witnessed by
anyone. Milke was charged with conspiracy to commit first degree
murder, kidnapping, child abuse, and first-degree murder. In October
1990, she was convicted of all charges and sentenced to death. Styers
and Scott were charged and tried separately. Both were convicted of
first degree murder and were sentenced to death.
In December 2007, the American Civil Liberties
Union of Arizona filed an amicus brief in support of Milke, who by
then had been on death row for 18 years. The brief raised questions
"regarding the admissibility of uncorroborated and unrecorded
confessions" by Milke.
In September 2009, the 9th Circuit Court of Appeals
found that there was "no evidence" that Milke had "voluntarily" waived
her right to remain silent and ordered federal court judge Robert
Broomfield to decide if the case merited a new trial. At the
subsequent evidentiary hearing, Broomfield disagreed with the appeal
court's opinion and found that Milke had validly waived her Miranda
Woman on Death Row May Get New Trial
The New York Times
October 17, 2009
PHOENIX (AP) — Debra Jean Milke has been sitting on
Arizona’s death row for nearly 20 years, largely because a police
detective said she confessed to plotting her 4-year-old son’s murder.
Now Ms. Milke could get a new trial, and even her
freedom, because the detective skipped one of the most basic steps
when officers interview suspects — getting them to sign a Miranda
waiver, giving up their right to remain silent.
“You know, I have never seen a case where there has
been no signed Miranda waiver,” said Judge Alex Kozinski of the United
States Court of Appeals for the Ninth Circuit, in San Francisco, at a
hearing on the case in August 2008.
“I don’t know any place in the civilized world in
the last 30 years,” he added, “where a state has found a waiver of
constitutional rights without a signed waiver.”
Last month, Judge Kozinski and two other judges on
the appeals court found that no evidence existed proving that Ms.
Milke, 45, “voluntarily, knowingly and intelligently waived her
rights” in the police interview in 1989. The judges ordered Judge
Robert C. Broomfield of Federal District Court in Phoenix to conduct a
hearing on that point and issue his findings by the end of November.
The burden falls on prosecutors to prove that Ms.
Milke waived her right to remain silent. If they cannot do so and
Judge Broomfield finds that she never did, the Court of Appeals for
the Ninth Circuit could order a new trial — only this time Ms. Milke’s
alleged confession, the centerpiece of her conviction, would be
Prosecutors say Ms. Milke dressed her son
Christopher in his favorite outfit and told him he was going to see
Santa in December 1989. He was taken into the desert by two men, they
say, and was shot three times in the back of the head.
James L. Styers, Ms. Milke’s live-in boyfriend, and
his friend Roger M. Scott were sentenced to death in the killing,
although their cases are under review.
A Phoenix police detective, Armando Saldate, said
Ms. Milke confessed to plotting the boy’s death in an unrecorded
conversation while they were alone, making what happened in the
interview room a case of he said, she said. Ms. Milke was convicted of
ordering Christopher’s death to claim a share of a $5,000 life
insurance policy she had taken out on him.
A voice-mail box for Mr. Saldate, who is now a
Maricopa County constable, was full and could not accept messages.
Ms. Milke, who is being held in the state prison in
Perryville, declined a request to be interviewed by The Associated
Press. She and Mr. Saldate are expected to testify at a Nov. 16
hearing in Judge Broomfield’s courtroom, unless the appeals court
grants a defense request for more time.
Ms. Milke’s lawyer, Michael Kimerer, said his
client maintained her innocence and was a loving mother who still
grieves her son’s death.
“Our main concern is the fact that I have a client
that never confessed and a police detective who said she gave a
confession,” Mr. Kimerer said. “There was no tape recorder, no
witnesses, nothing. Just his word.”
Richard Dieter, executive director of the nonprofit
Death Penalty Information Center in Washington, said it was odd that
the Miranda issue was only now coming to the forefront of the case.
“It’s kind of Criminal Justice 101,” Mr. Dieter said. “This is one of
the first things you would check at trial or on the first appeal.”
He said that if it was true that Ms. Milke was
denied basic constitutional rights but ended up being put to death,
the case could become a prime example of how the death penalty could
Ms. Milke is one of two women on death row in
Arizona and 53 nationwide, compared with 3,244 men over all, according
to the Death Penalty Information Center.
U.S. Appeals Court Berates
Lawyer-Turned-Judge’s Work in the “Going to See Santa” Murder Case
By Paul Rubin -
June 11, 2009
Twenty years ago this December, a child's apparent
disappearance from the busy Metrocenter mall followed by the grisly
discovery of his body in the desert north of Phoenix gripped the
The 4-year-old was Christopher Milke. He had been
shot three times in the back of his head from close range. The boy's
chewing gum still was clenched between his teeth when an unemployed
west Phoenix man, Roger Mark Scott, led Phoenix police to his body on
December 3, 1989.
A jury later convicted Scott of first-degree murder
and other charges, and a judge ordered him to death row, where he
quietly has been incarcerated for almost two decades.
But on June 2, the Ninth Circuit Court of Appeals
granted part of Scott's long-standing appeal, this one filed by
attorneys Jon Sands, Michael Burke, and Jennifer Garcia of the federal
Public Defender's Office in Phoenix.
By a unanimous 3-0 vote, the panel ordered the U.S.
District Court to hold an evidentiary hearing to consider whether the
efforts of Scott's trial attorney, Roland Steinle (now a Maricopa
County Superior Court judge), were so weak as to have "resulted in
prejudice" against the convicted killer.
"The details of the facts supporting the underlying
conviction, horrible as they are, are not important for purposes of
this appeal," the court wrote in its 21-page ruling. "Scott does not
contest his convictions; he contests only his sentence."
Scott, who was 42 at the time of Christopher's
murder, confessed to the cops after a grueling interrogation that a
buddy of his, James Styers, had promised him $250 to assist in the
plot to kill the little boy.
Before Scott finally confessed, he and Styers stuck
to an improbable story that they were babysitting Christopher on the
afternoon in question and had stopped at Metrocenter in an impromptu
outing to "see Santa Claus."
The boy supposedly vanished inside the mall while
Styers was in the restroom. It was a frightening, but false, story
that led to a frantic search by Phoenix police and a kind of pre-Amber
Alert to a concerned community.
The fraudulent going-to-see-Santa line later became
a centerpiece of the separate death-penalty cases against Scott,
Styers, and Christopher's mother, Deborah Milke.
Scott later claimed that the young single Phoenix
mom told him shortly before the murder that "she just had to get away
from Chris, and she just wasn't cut out to be a mother, and that she
wanted us [Styers and Scott] to take care of it."
By "take care of it," Scott said, Debbie Milke
meant that she wanted her son dead.
Milke, he said, had been the mastermind of
Christopher's murder, with her motive being that his constant presence
was interfering with her work ambitions (she was in the insurance
field) and social life (in particular with one boyfriend who
supposedly didn't want to take on a stepfather's role).
Milke also had a $5,000 insurance policy in effect
on her only child's life. Prosecutors alleged that she had used that
money as bait to first lure her roommate, Styers, and, later, Roger
Scott into the evil plot.
According to Scott, he, Styers, and the little boy
drove out to the desert together in Debbie Milke's car on the
afternoon of December 2, 1989, ostensibly to hunt for snake holes. The
boy ran ahead of the men down a desert wash near Happy Valley Road,
Scott later told detectives.
It was then, according to Scott, that Jim Styers
fired the bullets into the back of Christopher's head. The child died
The men left Christopher's body curled in the fetal
position and then drove back into town and tried to pull off the ruse
Deputy County Attorney Noel Levy subsequently
offered Scott a plea bargain. The prosecutor promised the confessed
co-conspirator that he would recommend a 21-year prison sentence on a
reduced second-degree murder charge in return for testimony during the
separate trials of Styers and Milke.
But Scott and his attorney declined the deal, and
the prosecutor instead took him to trial after winning convictions
against the two main players — the mastermind and the shooter.
Scott was convicted in short order.
The recent Ninth Circuit opinion focuses on what it
terms the failure of defense attorney Steinle to present possibly
compelling mitigating evidence at sentencing.
That evidence, the panel wrote, included "four
traumatic head injuries Scott had suffered, a brain scan showing
Scott's brain had atrophied, evidence Scott suffered from seizures, as
well as evidence of the plea bargain offer, which Scott wanted to
accept but Steinle rejected."
The panel noted in its June 2 opinion that Steinle
had used Roger Scott's claim of "brain shrinkage" as grounds for
requesting a court-ordered evaluation before trial.
"There is no evidence, however, Steinle
independently investigated these claims to present them as mitigating
evidence in the penalty phase of the trial," the judges wrote.
They also noted that Scott was a severe alcoholic,
drinking two fifths of whiskey daily, "which may also have contributed
to cognitive problems."
These days, Steinle is a well-respected judge who
has presided over several high-profile trials, including the recent
death-penalty case of Dale Hausner, one of the so-called "Serial
Shooters" who terrorized the Valley a few years ago.
But the Ninth Circuit chided Steinle, writing that
"at the very least" he should have ordered the hospital records of
Scott's stays to present as potential mitigation to the sentencing
judge (juries in potential death-penalty cases now impose sentence,
"Such an omission by Steinle is striking," the
appellate court concluded.
In its final section, the judges ordered the local
district court to consider whether attorney Steinle rendered
"ineffective assistance of counsel," because he failed to challenge
the voluntary nature of Roger Scott's confession to the police,
because he failed to investigate and present mitigating evidence of
the killer's "brain injuries," and because he failed to challenge the
trial judge's finding that Scott had committed the murder for
financial gain ($250 — which Scott never did collect).
For legal reasons, the Ninth Circuit did reject
Scott's claim that Steinle had erred by not pushing the leniency
recommendations of Christopher Milke's father before sentencing. Mark
Milke suggested at the time that Scott should be spared a death
However, the judges took another dig at Steinle,
writing that "we cannot perceive any strategic reason for Steinle's
decision not to introduce any evidence that [Mark Milke] recommended
Scott not be given the death penalty."
But the court agreed that it is not "reasonably
probable" that Mark Milke's position would have changed Scott's
sentence. Milke, by the way, was less charitable to his ex-wife and to
Deborah Milke and James Styers remain on Arizona's
Both continue to maintain their innocence, and
Milke has been the subject of several documentaries here and in Europe
(she was born to a German mother and an American father, the latter of
whom testified against her at trial) about the tragic case.
Debra Jean Milke's
Debra had left her drug dependent
husband, MARK, in order to provide a better environment for their son,
CHRISTOPHER. Her child's welfare was her main concern above anything
else; however, the separation was not meant to cut MARK out of their
Despite his problems, Debra still
loved MARK and, because they shared a child, it was important to her
that her son have a father/son relationship with his dad on the
condition that MARK give up his drug and alcohol abusing lifestyle. In
her divorce proceedings Debra stipulated sole custody
and supervised visitations, because she knew she had to take measures
to protect the safety and welfare of their small child.
the separation, Debra attended substance abuse
counseling sessions with MARK several times a week to show support.
She also worked full-time to support herself and her child.
Debra had been employed at various insurance companies for a
number of years, because she enjoyed working in that field.
At each place of employment she was able to acquire
a better position because of her skills and her work experience.
Changing employers was solely to take advantage of better
opportunities to advance, with the ultimate goal to become an
underwriter, which she was in the process of achieving at her last
place of employment. During her entire working career, Debra
always considered the employee's benefits package as important as her
paycheck. Medical coverage for herself and Christopher was the most
important factor of her employment.
At this point in time, she was not concerned about
any specific life insurance benefits and never purchased a dedicated
life insurance policy. A nominal life insurance rider was part of her
Employees Benefit Package. After her initial thirty days it was the
annual renewal period and she was filling out the respective forms at
home. JIM was watching her do this and started to ask a number of
questions about her insurance and read her benefits booklet. It must
have been then that he became aware of her entitlements, because
Debra never discussed her job or anything connected
with it with anybody.
his many promises to change his habits and Debbie's
support to help him in this direction, MARK was once again arrested in
1988 and had to spend several months in jail. During that time,
Debra was living with her mother-in-law, ILSE MILKE,
with whom Debbie shared a loving bond and who
provided Christopher with some sort of family environment despite the
divorce from her son.
After his release from
jail in January 1989, MARK wanted to see his son and CHRISTOPHER had
not seen his daddy in six months. Debbie supervised
the visits and was hoping that MARK would stay clean now. He had to
report to a parole officer on a regular basis and provide a urine
sample. Just a short month later, MARK called up Debra
frantically to go with him to his parole officer and switch the urine
became unglued and refused, but she offered to talk to the parole
officer to enter MARK into a rehabilitation clinic and that she would
support him. Otherwise, MARK would have faced a very long prison term.
The program involved a family day and Debbie
faithfully took CHRISTOPHER to see his dad each Saturday. In May 1989,
MARK was released from the rehab clinic and went to live with a
sponsor. Thinking that MARK was on the road to recovery and talking to
his sponsor, Debra eventually let him spend a day
with CHRISTOPHER. This went well for a few visits and then she did not
hear from him for quite some time.
In late July, MARK
asked again to have a day with CHRISTOPHER and Debra
agreed, stipulating that the sponsor was present and that she would
pick up CHRIS at 6.00 p.m. When she came to the house, she noticed a
number of people around and that MARK was high again. She was furious
that her son had to be exposed to this. MARK ended up attacking
Debra. He grabbed her by the throat and in the
struggle took her car keys and threatened to kill her and take
CHRISTOPHER. He screamed at her for putting him through this rehab
program and that he was sick of her compassion, all he wanted was to
have his son and that he would get him one way or another.
CHRISTOPHER witnessed the whole scene
and wet his pants which infuriated his father even more. She
eventually broke free of him, took CHSRITOPHER and ran. Petrified that
MARK would come after them, she hid behind a dumpster until she felt
safe enough to go somewhere. It was late at night and she was stranded
with her son and without her car. It was then that she called JIM
STYERS, a friend of her sister SANDY. At that time, CHRISTOPHER was so
traumatized from what he had seen his father do that he did not want
to see him again.
JIM did not drink, smoke or curse and went to church on a regular
basis. She trusted him. When JIM learned of her situation, he offered
to let Debra and CHRISTOPHER share his apartment in
which he also took care of his own, 2 years-old daughter WENDY. Afraid
to go back to her mother-in-law's house - where MARK would find her - Debra
agreed to stay with STYERS, at least temporarily and as a means to
This was strictly a business arrangement, cutting
the costs. and there was never a romantic involvement of any kind. JIM
knew about MARK and his abusiveness and Debra felt
safe to be with someone she felt she could trust. MARK'S threats did
not end by any means. He stalked the apartment, he called, he
threatened to find a way to take CHRIS, but JIM protected her and her
son. She was so petrified of her ex-husband's threats that she was
even afraid of going to work, because he knew where she worked, but
more so, she instructed JIM to call the police immediately, if MARK
ever showed up at the apartment.
Debbie was now more determined
than ever to advance in her career in order to become independent and
provide for her and her son. Meanwhile, JIM took care of CHRISTOPHER
and his own little two year old daughter. He was always helpful and
courteous towards Debbie and totally devoted to
protecting her from her ex-husband's abuses. She was totally oblivious
of any possessiveness from JIM or any untoward behavior. The only
thing she realized was JIM could not understand her concern for
CHRISTOPHER'S mixed up emotions about his mommy and daddy. How do you
tell a three year old about the illness of a father who was heavily
into drugs, but whom he loved ?
latest incident with her ex-husband, when CHRIS asked his mother to
spend his fourth birthday with his grandmother and dad, she was unable
to explain or refuse. When MARK finally brought CHRIS back to her, she
noticed that he was high again and that was the proverbial "straw
that broke the camel's back" for her. When he told her that a
little cocaine and taking CHRISTOPHER for a day would not harm the
child, she knew that this could not continue. His threats to her never
let up and Debra
decided to get a
restraining order on MARK,
because she had lost all faith that he would ever change his habits.
She did not want their son to be further exposed to this kind of life
and certainly did not want him to grow up to be like his father. MARK
contested the restraining order, but during a court hearing on October
24, 1989, Debra won her case. After the hearing, as
they went to the parking lot, MARK began threatening her again. It was
then that Debra decided to look for a place to live
in Tempe, close to her place of employment. She began to look at
apartments and a suitable day care center for CHRISTOPHER.
Debbie did not tell JIM about her
plans to move out until she was sure she had secured an apartment. On
November 24th, 1989, she was notified by the apartment complex she had
applied for that
her application had been approved.
She made arrangements to move in after the holidays and it was on this
day of being notified that she told JIM about her plans to move out.
days later, on December 2, 1989, CHRISTOPHER overheard JIM asking
Debbie if he could use her car for some shopping
errands at the nearby mall. CHRISTOPHER begged his mother to let him
go along, because he wanted to have his picture taken with Santa
Claus. Debra asked JIM if it was ok with him and JIM
agreed. CHRIS dressed himself in his favorite outfit, eager to go.
Debra hugged CHRISTOPHER good-bye and wished him a
good time. After they left, she took a shower, cleaned the apartment,
talked to a friend on the phone, talked to some neighbors outside, and
got the mail.
hours later, JIM called Debra telling her that
CHRISTOPHER was missing from the Metro Center mall. She immediately
called the police, her father in Florence, her mother in Switzerland,
her sister in Wyoming as well as friends and neighbors. Police,
friends and neighbors went to the shopping mall in search of
CHRISTOPHER showing pictures of him, but to no avail. Debra
was getting hysterical as the hours went by. Her stepmother, MAUREEN,
and her stepsister, KAREN, came to Phoenix. They and the police tried
to persuade Debra to go to her father's house in
Florence, because they thought she needed to be with family and get
some rest. Debra hadn't slept or eaten in over
twenty-four hours and she was becoming a basket case.
Debbie, however, refused at first
yelling at everyone that she wanted to stay at home by the phone,
because CHRISTOPHER knew his address and phone number. The vigil kept
on for many hours until the next day she finally agreed to be driven
to her father's house. The police assured her that she would be
notified immediately as soon as they knew anything. She gave the
police her father's phone number and address.
Debra doesn't know what really
transpired on that fateful day of December 2nd, 1989 or why. She had
no idea that JIM or anyone else had been plotting to get rid of
CHRISTOPHER for whatever reason. Based on the outcome of her trial, it
was still unclear who did the actual killing, but as this website has
shown in many places the clear evidence proves that JIM'S long-time
acquaintance ROGER MARK SCOTT had killed CHRISTOPHER and that former
Phoenix police detective ARMANDO SALDATE had orchestrated a case
against all three individuals, claiming
that a conspiracy
Based on the knowledge
given to her by her
former attorneys and investigators between the years of 1990 and 2001,
she finally has come to assume that JAMES STYERS had made plans to
eliminate her son, CHRISTOPHER. Yet, she always maintained privately
that she had a hard time to believe this theory. She was told that JIM
did not want "to do it" alone and got in touch with an old
friend, ROGER SCOTT. For as long as she had known JIM prior to moving
in with him, she had never heard him mention a friend named ROGER.
Only in the years since 2000 a diligent re-research of her entire file
fraud committed by former detective SALDATE
prosecutor NOEL LEVY. It became
clear that SCOTT
covered his own butt by implicating his buddy JIM STYERS,
putting the major blame on him by stating "Jim killed him"
In his pertinent police report SALDATE alleged that
SCOTT next claimed that the mother of the little
boy 'wanted it done'
and that she was the mastermind behind the crime. According to that
report, this purportedly took place inside a police car and en route
to the murder-scene. Incredibly, the other detective inside the car,
DET. ROBERT MILLS, didn't make
any mention of this
incident in his report.
months prior to the tragedy, Debra remembers ROGER
coming to the apartment and was introduced to him. She thought he was
very scummy and thought that JIM had picked him up on a street corner.
She did not know him at all and only talked to him a few times,
because most of the time he appeared intoxicated. She recalls that he
did not like to come to JIM'S apartment because the noise of children
playing and their whining irritated him and that he questioned JIM how
he could put up with all this nonsense.
She recalls that ROGER had asked her for some money
to tide him over, but she refused him vehemently stating, "What do
you think I am, a bank ?" She never saw him again or heard from
him until his name was mentioned during her "interview" with
Saldate. JIM kept ROGER away from the apartment when
Debra came home after work. Based on what she has been told
until 2000, there was the assumption that JIM told ROGER about her
employment with an insurance company and that she would be able to
give them money by doing away with CHRISTOPHER.
Only since then it had been discovered in the
tiniest detail how SALDATE'S rush to take advantage of intimidating
the young woman, harshly confronting her with the death of her son and
taking care that no witness was around, eventually culminated in
fabricating a 'confession' which was not mentioned to any of
SALDATE'S fellow detectives upon exiting the interrogation room, until
county prosecutor NOEL LEVY was involved and until the written version
was known. Needless to say, this so-called 'confession' was not
signed, not tape-recorded and not witnessed by anybody, but it was
allowed into evidence at trial and is actually the only [fabricated
and fully invented] piece of evidence linking Debra Milke
to the murder.
Debra was eventually convicted by
'a jury of her peers' [largely well-informed by
sensationalizing media] and represented by an public defender,
whose substantial role was to lose the case. Sandwiched between
SCOTT'S incriminating ramblings and the purported confession of
Debra Milke, JIM STYERS was convicted to die. As a
co-conspirator ROGER SCOTT was also convicted to die.
Debra Milke, a grief-stricken woman of 26 years at the time
of her sentencing, enduring the biggest loss of her life at that
time - the outrageous murder of her 4-year-old son - was also
convicted to die.
State v. MilkeArizona Supreme Court
State v. Milke
STATE OF ARIZONA, APPELLEE/CROSS-APPELLANT
DEBRA JEAN MILKE, APPELLANT/CROSS-APPELLEE
Filed: December 21, 1993.
Maricopa County. No. CR 89-12631. Appeal from the
Superior Court of Maricopa County. The Honorable Cheryl K. Hendrix,
En Banc. Moeller, Corcoran, Zlaket, Martone,
MOELLER, Vice Chief Justice
STATEMENT OF THE CASE
Defendant, Debra Jean Milke, was convicted by a
jury of first degree murder, conspiracy to commit first degree murder,
kidnapping, and child abuse. The victim of each of these crimes was
her four-year-old son, Christopher. Defendant was sentenced to death
for the murder of her son and to terms of imprisonment on the other
counts. Appeal to this court is automatic on the death sentence, see
Ariz. R. Crim. P. 31.2(b), and defendant timely appealed the other
convictions and sentences. We have jurisdiction pursuant to Ariz.
Const. art. 6, § 5(3) and A.R.S. §§ 13-4031, 13-4033, 13-4035. The
state has filed a cross-appeal. We have jurisdiction of the
cross-appeal pursuant to A.R.S. § 13-4032(5).
Milke's co-defendants, James Styers and Roger
Scott, were convicted in separate trials and have also appealed.
Although the three cases were consolidated for oral argument, we
resolve each by separate opinion.
Debra Milke and her four-year-old son, Christopher,
shared an apartment with co-defendant James Styers and his
two-year-old daughter. While Milke worked at an insurance agency,
Styers, an unemployed and disabled veteran, watched Christopher. Milke
and Christopher's father were divorced, and Milke had legal custody of
Christopher. Christopher's father often visited with his son and
sometimes took him overnight.
In September, 1989, shortly after beginning a new
job, Milke took out a $5000 life insurance policy on Christopher as
part of her employee benefit plan. The policy named Milke as the
beneficiary. Sometime between the time she bought the policy and the
time of Christopher's death, Milke and Styers discussed the policy and
At about 11:00 a.m. on Saturday, December 2, 1989,
Styers, with Milke's permission and in her car, took Christopher from
the apartment. Styers told Christopher they were going to Metrocenter
so Christopher could see Santa Claus. Styers then picked up
co-defendant Roger Scott, and the two men and Christopher had lunch
and ran some errands. Later, Styers told the police that he first
dropped Scott off and then took Christopher to Metrocenter to see
Santa Claus. Styers told the police he had to use the restroom, so he
took Christopher into the men's room at Sears and had him wait outside
the stall but inside the restroom. When he came out, Christopher was
allegedly gone. Styers reported this scenario to Metrocenter security;
eventually the police were called. In this initial story, Styers
claimed that he met Scott outside of Sears while looking for
Christopher, that Scott told him that he had come to Metrocenter with
a friend named Phil, that Styers and Scott looked for Christopher for
a while, and that Styers eventually walked Scott to the bus stop and
Scott went home.
Styers called Milke around 2:45 p.m. and told her
that Christopher was missing from Metrocenter. Milke called her father
in Florence, Arizona, and told him Christopher was missing. Milke's
stepmother, stepsister, and stepsister's boyfriend drove to Phoenix
Saturday evening to be with her. Milke was interviewed several times
throughout the night by police officers. She went back to Florence
with her relatives on Sunday afternoon, December 3.
In the meantime, the Phoenix police interviewed
Scott. Scott's first story
coincided with Styers' first story, but ultimately Scott led police to
Christopher's body. After that, a Phoenix police detective flew to
interview Milke. She was told that her son had been found shot to
death in the
desert and that she was under arrest. The detective read her her
which she stated she understood.
Milke told the detective that she was upset with
her son because he was going to
turn out like his father--in jail, an alcoholic, and a drug user.
that she verbalized these fears to Styers but did not think that he
hurt the child. She stated that she was not crazy, she just did not
Christopher to grow up like his father. She told the detective that
God to take care of Christopher. She said she thought about suicide
against it because Christopher would then be in his father's custody.
decided it would be best for Christopher to die. She stated that she
had a hard
time telling Styers what she wanted, but she finally told him, and he
help. Milke and Styers discussed the plan several times and included
Scott on at
least one occasion. Ultimately, they decided that Styers and Scott
Christopher, kill him, and then report him missing at Metrocenter, but
not to know how Christopher was killed.
On Saturday morning, December 2, 1989, Styers told
Milke that they were going to
murder Christopher that day. They told Christopher that he was going
Santa Claus at Metrocenter. Milke told police that she did not have a
insurance policy on Christopher, but her father did. She denied that
money was her motivation, but admitted that it may have been Styers'
because Styers knew of the policy. Milke was arrested and taken back
At trial, the state withdrew the felony murder
allegation. The jury found Milke
guilty of premeditated murder, conspiracy to commit first degree
kidnapping, and child abuse. The state alleged and the jury found the
conspiracy, kidnapping, and child abuse to be of a dangerous nature.
13-604. Milke was sentenced to death for the murder, a concurrent life
without possibility of parole for 25 years for conspiracy, a
concurrent 20 years
for child abuse, and a consecutive sentence of 20 years for
ISSUES PRESENTED ON APPEAL
1. Whether it was error to strike one of the
veniremen for cause.
2. Whether the jury instruction on motive constituted fundamental
3. Whether the child abuse conviction is based upon sufficient
4. Whether Arizona's death penalty statute is unconstitutional
a. the jury does not determine whether aggravating factors exist in
b. the sentencing court's discretion is not adequately channeled.
5. Whether the death penalty was properly imposed in this case.
ISSUES PRESENTED ON CROSS-APPEAL
6. Whether the trial court erred by refusing to
admit co-defendant Scott's
confession at Milke's sentencing hearing.
7. Whether the trial court imposed an illegal sentence when it
to a concurrent rather than a consecutive sentence for child abuse.
8. Whether the trial court imposed an illegal sentence for conspiracy
first degree murder when it sentenced Milke pursuant to § 13-1003
pursuant to § 13-703(A).
1. Excusal of Venireman for Cause
Defendant argues that the trial court erroneously
struck a venireman for cause based on his opposition to the death
penalty. The trial Judge asked the panel the following question:
THE COURT: Is there anyone here who . . . would
rather not sit as a juror on this case because of the charge of first
degree murder and because there is a possibility that the death
penalty could be imposed?
THE COURT: Would it make a difference if I told you
that the jurors did not determine punishment; even in a capital case
that decision is left to the Judge?
P.M.: I don't think I'd want to have anything to do
with it. I don't believe in capital punishment.
THE COURT: All right. Thank you, sir. Anyone else?
The prosecutor later asked the court to strike P.M.
for cause, which it did. Defense counsel did not object to this
excusal, and both the prosecutor and defense counsel passed the panel
Defendant waived any objection to the excusal "both
by failing to object at the
time of the excusal . . . and by expressly approving the panel at the
of voir dire." State v. Arnett, 119 Ariz. 38, 50, 579 P.2d 542, 554
(citations omitted); see also State v. Walton, 159 Ariz. 571, 580-81,
1017, 1026-27 (1989), aff'd on other grounds, Walton v. Arizona, 497
110 S. Ct. 3047, 111 L. Ed. 2d 511 (1990).
Even if defendant had not waived this issue, the
excusal was proper. The matter
of excusing jurors is committed to the sound discretion of the trial
absent clear and prejudicial abuse of that discretion, its
not be disturbed on appeal. Arnett, 119 Ariz. at 50, 579 P.2d at 554.
It is not
improper to excuse a juror whose views about the death penalty "'would
or substantially impair the performance of his duties as a juror in
with his instructions and his oath.'" State v. Martinez-Villareal, 145
441, 449, 702 P.2d 670, 678, cert. denied, 474 U.S. 975, 88 L. Ed. 2d
S. Ct. 339 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 65 L. Ed.
100 S. Ct. 2521, 2526 (1980)); see also State v. Sparks, 147 Ariz. 51,
P.2d 732, 736 (1985).
2. Motive Instruction
The trial court instructed the jury that "it is not
necessary for the State to
establish a motive for the Defendant to commit the crime." Although
counsel objected generally to the instruction on the ground that the
language detracted from the state's positive burden of proving guilt
reasonable doubt, he agreed that it was a correct statement of the
appeal, defendant raises a new objection: that the instruction was an
statement of the law.
"Absent a finding of fundamental error, failure to
raise an issue at trial . . .
waives the right to raise the issue on appeal." State v. Gendron, 168
154, 812 P.2d 626, 627 (1991); see also Ariz. R. Crim. P. 21.3(c).
defendant must establish that the motive instruction constituted
Error is fundamental when it reaches "'the
foundation of the case or takes from
the defendant a right essential to his defense,'" or is an "'error of
dimensions that it cannot be said it is possible for a defendant to
have had a fair trial.'"
State v. King, 158 Ariz. 419, 424, 763 P.2d 239,
244 (1988) (citations omitted); see also State v. White, 160 Ariz. 24,
31, 770 P.2d 328, 335 (1989).
In State v. Hunter, 136 Ariz. 45, 49-50, 664 P.2d
195, 199-200 (1983), this
court held that the same motive instruction now under consideration,
correct statement of the law, was an incomplete statement of the law.
and in this case, the jury was not told that a lack of motive is as
a defendant's innocence as the presence of a motive is to guilt. When
instruction is requested, the court should instruct that "the state
prove motive but motive or lack of motive is a circumstance that may
considered in determining guilt or innocence." Hunter, 136 Ariz. at
50, 664 P.2d
at 200. In Hunter, the defendant had made a proper objection in the
The incomplete instruction, coupled with an improper refusal of a
instruction,*fn1 led this court to reverse the conviction in Hunter
could not say beyond a reasonable doubt that the errors were harmless.
In determining whether the incomplete instruction
rises to the level of
fundamental error in this case, the "omission must be evaluated in
light of the
totality of the circumstances." Gendron, 168 Ariz. at 155, 812 P.2d at
Defendant argues that the incomplete instruction deprived her of her
right to rely on lack of motive as a circumstance tending to show
state contends there was no fundamental error because any prejudice
suffered by the incomplete instruction was cured by the closing
defense counsel. See State v. Bruggeman, 161 Ariz. 508, 510, 779 P.2d
(App. 1989) ("Appellate courts do not evaluate jury instructions out
. . . Closing arguments of counsel may be taken into account when
adequacy of jury instructions." (citations omitted)). Under the facts
case, we agree with the state.
Defendant was not deprived of any right to rely on
lack of motive as a
circumstance tending to show innocence. In closing arguments of
and lack of motive were discussed several times by each side. Indeed,
counsel's closing argument focused on refuting every motive offered by
and attempting to show they were illogical. The arguments eliminated
possibility recognized in Hunter: that the jury might be misled into
that motive or lack of motive is insignificant. The jury was not
misled as to
the significance of motive or lack of motive, nor was the defendant
from arguing lack of motive at closing. Cf. State v. Tucker, 157 Ariz.
759 P.2d 579, 593 (1988) (holding that trial court's refusal to give
instruction was not fundamental error in part because the defense
adequately covered in closing arguments); State v. Ferguson, 149 Ariz.
717 P.2d 879, 891 (1986) (same). Certainly, we cannot say that the
here made it impossible for defendant to receive a fair trial; thus
there was no
fundamental error. Gendron, supra.
3. Child Abuse Conviction
In the companion case involving co-defendant
Styers, we have today held that,
under the facts of this case, a separate child abuse offense under
13-3623(B)(1) did not occur when Christopher was murdered with
For the detailed reasons for this ruling, see the analysis in the
case, State v. Styers, 161 Ariz. 477, 779 P.2d 352, (1993). Although
specifically challenged in this case, we necessarily set aside this
conviction for child abuse pursuant to our statutory obligation to
fundamental error. A.R.S. § 13-4035. We emphasize, as we did in
Styers, that our
holding has no effect on the use of child abuse as a predicate offense
4. Death Sentence
Defendant contends the Arizona death penalty
procedure is unconstitutional because the jury does not determine the
existence of aggravating factors and because the Judge's sentencing
discretion is not adequately channeled.
The same Fourteenth Amendment challenge to the fact
that the Judge determines the existence of aggravating factors was
rejected in Clark v. Ricketts, 958 F.2d 851, 859 (9th Cir. 1991),
cert. denied, U.S. , 113 S. Ct. 117 (1992). Clark reasoned:
The Supreme Court has forcefully rejected a similar
challenge in the context of
the sixth amendment: "'Any argument that the Constitution requires
that a jury
impose the sentence of death or make the findings prerequisite to
such a sentence has been soundly rejected by prior decisions of this
Walton v. Arizona, 497 U.S. 639, 110 S. Ct. 3047, 3054, 111 L. Ed. 2d
(quoting Clemons v. Mississippi, 494 U.S. 738, 110 S. Ct. 1441, 1446,
108 L. Ed.
2d 725 (1990)). . . . Clark's invocation of the equal protection
clause does not
change this result. The Constitution does not require that a jury find
the aggravating circumstances supporting a death sentence.
Id. Clark's reasoning is persuasive; therefore, we
reject defendant's claim. See State v. Landrigan, Ariz. , , P.2d ,
In State v. Fulminante, 161 Ariz. 237, 258, 778
P.2d 602, 623 (1988) (citing
cases), cert. denied, 494 U.S. 1058, 110 S. Ct. 1528, 108 L. Ed. 2d
aff'd, 499 U.S. 279, 113 L. Ed. 2d 302, 111 S. Ct. 1246 (1991), we
defendant's claim that the sentencer's discretion is not adequately
under Arizona death penalty procedure.
The jury found defendant guilty of conspiracy to
murder her son, as well as of
the completed crime of premeditated murder pursuant to that
findings are amply supported by the evidence, and provide an adequate
which to find defendant death eligible, although she was not
trigger-person. Cf. Enmund v. Florida, 458 U.S. 782, 73 L. Ed. 2d
1140, 102 S.
Ct. 3368 (1982); Tison v. Arizona, 481 U.S. 137, 95 L. Ed. 2d 127, 107
B. Aggravating Factors
The trial court found three statutory aggravating
factors: (1) defendant was an
adult and the victim was under age 15, A.R.S. § 13-703(F)(9); (2) the
committed in expectation of pecuniary gain, A.R.S. § 13-703(F)(5); and
murder was committed in an especially heinous and depraved manner,
13-703(F)(6). Defendant challenges only the finding that the killing
especially heinous and depraved. However, in conducting our
of the death sentence, we necessarily examine all aggravating factors
determine whether they properly apply.
1. Especially Heinous and Depraved
Milke challenges the trial court's finding that she
committed the offense in an
especially heinous and depraved manner.*fn2 In determining whether a
especially heinous or depraved,*fn3 we examine "the mental state and
the perpetrator as reflected in his words and actions." State v.
Ariz. 42, 51, 659 P.2d 1, 10, cert. denied, 461 U.S. 971, 77 L. Ed. 2d
S. Ct. 2444 (1983). We "have suggested specific factors which lead to
of heinousness or depravity." Id. These factors are: relishing of the
the killer; infliction of gratuitous violence on the victim; needless
of the victim; senselessness of the crime; and helplessness of the
Gretzler, 135 Ariz. at 52, 659 P.2d at 11. In addition to these five
have also held that killing a person to eliminate a witness to a crime
considered evidence of depravity. State v. Gillies, 142 Ariz. 564,
570, 691 P.2d
655, 661 (1984), cert. denied, 470 U.S. 1059, 84 L. Ed. 2d 834, 105 S.
(1985); State v. Smith, 141 Ariz. 510, 512, 687 P.2d 1265, 1267
The trial court found that the victim was helpless
and the killing was
senseless. The trial court also noted that the special parental
supported a finding of depravity, and that its "finding of depravity,
in part, was based upon the age of the victim."
Milke challenges this finding on four grounds.
First, she argues that the crime
was not senseless because the crime was necessary to accomplish the
attributed to her by the state, citing State v. Comer, 165 Ariz. 413,
P.2d 333, 349 (1990), cert. denied, 499 U.S. 943, 113 L. Ed. 2d 460,
111 S. Ct.
1404 (1991). Milke contends that because the state argued that the
murder of her
child was her ultimate goal, the killing was not senseless because it
necessary to accomplish her purported goal. Milke misconstrues Comer.
Comer held that depravity was established by the
senselessness of the murder "in
that it was not necessary to carry out appellant's goal of obtaining
supplies, not that it was committed without purpose." Id. Killing her
own son so
that he would not grow up to be like his father, or killing him so she
free from parental burdens is, indeed, senseless. Christopher's father
increase his visitation and custody rights, and Milke's parents,
grandparents, were willing to take care of Christopher on a full-time
This crime most certainly was senseless in that it was unnecessary for
Milke to kill her son to free herself from the responsibility of being
mother or to prevent the boy from growing up like his father.
Second, defendant disputes the finding of
helplessness. Most assuredly,
four-year-old Christopher was a helpless victim. He was delivered into
of his killers by the person upon whom he should have been able to
protection and compassion--his mother. He had no control over what his
had planned for him. His mother knew that Christopher trusted Styers.
State v. Jimenez, 165 Ariz. 444, 455, 799 P.2d 785, 796 (1990)
"murdered a helpless [five-year-old] child who trusted him").
Third, defendant argues that the trial court
improperly relied upon the
parent/child relationship to support its finding of depravity. She
to do so unconstitutionally broadens the term "especially cruel,
depraved," which was given a constitutionally narrow interpretation in
135 Ariz. at 50-53, 659 P.2d at 9-12. The Supreme Court has determined
term "especially heinous, cruel, or depraved" is facially vague.
Lewis, U.S. , , 121 L. Ed. 2d 411, 113 S. Ct. 528, 534 (1992); Walton
Arizona, 497 U.S. 639, 654, 111 L. Ed. 2d 511, 110 S. Ct. 3047, 3057
However, the Court has held that this court's interpretation of that
meets constitutional requirements. Most recently in Richmond v. Lewis,
U.S. at ,
113 S. Ct. at 536, the Court cited Gretzler as "the narrowing
Arizona's (F)(6) factor." (Emphasis added.) In Lewis v. Jeffers, 497
777-78, 111 L. Ed. 2d 606, 110 S. Ct. 3092, 3100 (1990), the Court
interpretation of the (F)(6) factor in State v. Jeffers, 135 Ariz.
661 P.2d 1105, 1130-31, cert. denied, 464 U.S. 865, 78 L. Ed. 2d 174,
104 S. Ct.
199 (1983), which relied on the five Gretzler factors and the
heinous and depraved set forth in State v. Knapp, 114 Ariz. 531, 562
(1977), cert. denied, 435 U.S. 908, 55 L. Ed. 2d 500, 98 S. Ct. 1458
In Walton v. Arizona, 497 U.S. at 652-55, 110 S. Ct. at 3057-58,
same day as Jeffers, the Court, citing Gretzler, affirmed State v.
which this court defined depraved as including a case in which the
relishes the murder, evidencing debasement or perversion." 159 Ariz.
at 587, 769
P.2d at 1033.
We must now determine whether the trial court
properly applied this
constitutionally narrow interpretation of the (F)(6) factor. The trial
findings of helplessness and senselessness are clearly based upon
factors. However, the court also relied on the parent/child
support its finding of heinous and depraved. Specifically, the court
Wallace, 151 Ariz. at 368, 728 P.2d at 238, and Fulminante, 161 Ariz.
778 P.2d 602, 621, in using the parent/child relationship to support a
of heinous and depraved. In Wallace, the defendant lived as a family
victims, a mother and her two children. This court found this fact
defendant's "shockingly evil state of mind." 151 Ariz. at 368, 728
P.2d at 238.
In Fulminante, the defendant killed and sexually
molested his eleven-year-old
step-daughter. The court addressed the parent/child relationship in
We believe the record supports the findings of
heinous or depraved conduct in the case before us. Defendant
senselessly killed a helpless victim, and as reprehensible as this may
be, also violated the special parental relationship.
As the trial court noted . . . [the victim] was a
child under parental control and capable of manipulation by the
Fulminante, 161 Ariz. 237, 256, 778 P.2d 602, 621.
In State v. Stanley, 167 Ariz. 519, 809 P.2d 944,
cert. denied, U.S. , 112 S.
Ct. 660 (1991), the defendant killed his wife and five-year-old
court found the "killing of a helpless child [was] senseless and
a disregard for human life satisfying two of the five Gretzler
factors." Id. at
528, 809 P.2d at 953. In addition, the court focused on the
relationship in finding the killing especially heinous and depraved.
When a father kills his own child, his actions
cannot be characterized as sensible, nor can his state of mind be
considered other than perverted. This fact sets this crime apart from
the norm of first-degree murders and warrants a finding that the
murder was committed in an especially depraved manner.
Id. at 529, 809 P.2d at 954. The court found the
facts of Stanley "even more egregious than the facts in Wallace.. . .
because the child was Stanley's own daughter." Id. (Emphasis added.)
Defendant attempts to distinguish Stanley, where
the child victim was killed to eliminate her as a potential witness,
which arguably constituted additional aggravation not present in this
case. Clearly, however, Stanley permits use of the parent/child
relationship. See also Fulminante, 161 Ariz. 237, 256, 778 P.2d 602,
662 (where no element of witness elimination was present).
Although the parent/child relationship does not fit
neatly within any of the five Gretzler factors, Gretzler also relied
on the Knapp language to define "heinous" and "depraved." We have
never said that the Gretzler factors are exclusive. We hold that the
use of the parent/child relationship by the trial court in this case,
like the use of similar relationships in Stanley, Fulminante, and
Wallace, is permissible and is within the Gretzler-Knapp parameters.
Finally, defendant argues that even if this court
agrees that the victim was helpless and the killing senseless,
additional aggravation is necessary to support the especially heinous
and depraved factor. Although the language of several cases would seem
to belie defendant's argument, see Gretzler, 135 Ariz. at 52-53, 659
P.2d at 11-12 ("senselessness or helplessness need not always lead to
a holding that crime is heinous or depraved"), it is unnecessary to
resolve it because the additional factor of the parent/child
relationship is present here.
A mother's conspiracy to murder her own
four-year-old child and the resultant
premeditated murder of that child is the ultimate perversion of the
relationship. The crime in this case can be described without
"hatefully or shockingly evil" and "marked by debasement, corruption,
or deterioration." Gretzler, 135 Ariz. at 51, 659 P.2d at 10 (citing
Ariz. at 543, 562 P.2d at 716). The parent/child relationship is a
that separates this crime from the "norm" of first degree murders. The
that relationship in partial support of a finding of heinousness and
under § 13-703(F)(6) is constitutionally permissible.
2. Pecuniary Gain
The trial court found that the murder was committed
in the expectation of
pecuniary gain. In making this finding, the trial court stated:
The evidence is that the defendant purchased and
had a life insurance policy
insuring the life of Christopher Milke. However, the mere existence of
policy does not prove, beyond a reasonable doubt, that the murder was
for the money - that the money was the reason the child was killed.
argues the insurance money was the impetus for the murder. In the
statement, closing argument and during the course of the trial the
advanced other theories and motives for the murder . . . . The State
produced evidence of the Defendant's wish that the child were dead
life insurance came into existence.
The only evidence presented linking the death to
the procurement of life
insurance proceeds has come from the defendant's testimony. In her
Det. Saldate, Ms. Milke denied having a life insurance policy insuring
At trial Ms. Milke testified she did not know she was purchasing life
on her son as part of her employment benefits package - that she
life insurance was an automatic part of the benefits package. She
testified she has always maintained life insurance on Christopher,
ever since he
was born, using the rationale "since I was fully insured I thought he
be." Were it not for these inconsistent statements and initial denial
as to the
existence of the policy, I would not be able to find that the
committed the offense in expectation of the receipt of anything of
value. But taking all of the evidence as a whole, it is clear, and the
proven, beyond a reasonable doubt, that a motivating factor for the
although not the only reason for the murder, was the proceeds from the
From Milke's inconsistent statements, the trial
court infers that one of her
motives for killing her son was to collect the $5000 life insurance
and that the statements were an attempt to conceal this motive. In our
independent reweighing of the evidence, however, we conclude that it
plausible that the inconsistent statements were Milke's attempt to
suspicion from her. Believing that the police suspected insurance
money to be a
motive, she may have felt that she could deflect suspicion by denying
of the insurance. One inference is as believable as the other.
To establish pecuniary gain, the state must prove
beyond a reasonable doubt that
"the hope of financial gain supplied the impetus for the murder."
Robinson, 165 Ariz. 51, 60, 796 P.2d 853, 862 (1990), cert. denied,
1110, 112 L. Ed. 2d 1107, 111 S. Ct. 1025 (1991). Because conflicting
can be drawn from the evidence on pecuniary gain, we conclude that the
not establish this factor beyond a reasonable doubt.
3. Victim Under Age Fifteen
Milke does not challenge this factor, nor is it
subject to challenge. Milke was
25 years old at the time of the offense, and her son, Christopher, was
years old. Although evidence of Christopher's age was also used, in
establish that the crime was especially heinous and depraved, the
properly weighed the victim's age only once. See Jimenez, 165 Ariz. at
455-56, 799 P.2d at 795, 796-97.
C. Mitigating Circumstances
Defendant offered the following non-statutory
mitigating factors: defendant's
grief, alleged legitimate question concerning guilt, lack of a prior
record, potential for rehabilitation, defendant's deprived childhood,
defendant's employment history, defendant's conduct while incarcerated
during trial, her risk of future criminal conduct, and gender. The
found that no statutory mitigating circumstances were present and that
three of the non-statutory circumstances were entitled to any weight:
felony record, employment history, and conduct while incarcerated. In
determining the appropriate sentence, the trial court concluded that
"considering the nature of the person and the nature of the crimes,
and extent of the aggravating circumstances and the nature and extent
mitigating circumstances, I find that the mitigating circumstances are
sufficient to call for leniency."
Defendant complains that the trial court
erroneously failed to consider her
grief as non-statutory mitigation. The defendant bears the burden of
mitigating circumstances by a preponderance of the evidence. State v.
143 Ariz. 71, 691 P.2d 1099 (1984).
Defendant relied on testimony from her prison
counselor, two prison
psychiatrists, and three neighbors to establish her grief. The state
with testimony from two psychiatrists who had not personally examined
Additionally, there was trial testimony of several witnesses who saw
on December 2 and 3, 1989.
The mental health experts disagreed on whether
defendant's grief was a reaction
to her loss of freedom or the loss of her son. The witnesses who
defendant's conduct on December 2 and 3, 1989, also gave conflicting
Although she apparently was upset and nervous, she did not behave like
concerned for her son's welfare. She appeared to be overly concerned
Styers' welfare and with what would happen to her.
The trial court's special verdict stated:
Testimony has been presented that the Defendant has
experienced grief. However,
no one has been able to state whether the grieving is for the loss of
a son or
is for the loss of freedom. On December 3, 1989[,] the defendant
little grief concerning the death of her son.
Whatever the proper role of grief may be as a
result of one's own acts, our
independent review of the conflicting evidence leads us to agree with
court that defendant's grief in this case has not been shown to be a
factor. See State v. Smith, 123 Ariz. 231, 242-43, 599 P.2d 187,
(affirming trial court's refusal to find mitigating factor when the
contradictory). When mitigation evidence is conflicting and involves
considerations of credibility, we give great deference to the trial
Conclusions. State v. Fierro, 166 Ariz. 539, 553, 804 P.2d 72, 86
D. Independent Review
In death penalty cases, this court independently
reviews aggravating and
mitigating circumstances to determine whether the death penalty was
imposed. See State v. Rossi, 171 Ariz. 276, 278, 830 P.2d 797, 799,
denied, U.S. , 113 S. Ct. 610 (1992). In this case, we have concluded
trial court correctly found two statutory aggravating circumstances;
age of the victim and the especially heinous or depraved nature of the
Defendant is therefore to receive the death penalty unless there are
circumstances sufficiently substantial to call for leniency. A.R.S. §
The trial court found no statutory mitigating
circumstances. Based upon our independent review of the entire record,
we agree with that Conclusion. The trial court considered all of the
items offered as non-statutory mitigating circumstances and concluded
that only three of them amounted to mitigation. Those three were: no
prior record, employment history, and conduct while incarcerated.
Based upon our independent review of the record, we agree with the
trial court's finding that the other items offered as non-statutory
mitigation were not shown by a preponderance of the evidence to be
mitigating. With respect to the remaining three items, the trial court
found them to be insufficient to warrant reduction of the death
penalty and we agree. In short, we agree with all of the trial court's
findings and weighings save one: in our independent review, we
conclude that the state did not prove beyond a reasonable doubt that
this defendant committed the crime for pecuniary gain.
Recently, this court engaged in an extensive
Discussion of the proper procedure to be employed when this court sets
aside one, but not all, of the statutory aggravating circumstances.
The advantages and disadvantages of reweighing versus remand are fully
set forth in that recent Discussion. See State v. Bible, 175 Ariz.
549, 858 P.2d 1152 (1993). We believe the instant case falls within
the narrow class of cases where it is appropriate for this court to
itself reweigh rather than to remand. There is no new evidence to be
received and no evidence was improperly excluded at the sentencing
hearing. The mitigation evidence is, at best, de minimis. Although one
statutory aggravating circumstance was set aside, there is certainly
nothing in the evidence concerning that topic that constitutes
Given the facts of this case, the presence of two
separate statutory aggravating circumstances and the de minimis nature
of the mitigation, it is inconceivable that the removal of the
pecuniary gain factor would lead to any different result in the trial
court. Our review satisfies us that the mitigation is wholly
insufficient to reduce to life even given the absence of the pecuniary
gain factor. As we stated in Bible, there is "simply nothing to weigh
or balance." Id. at , P.2d at . Thus, as in Bible, "we are able to
affirm the imposition of the death sentence even though we have found
that one of the three aggravating circumstances was inapplicable." Id.
at , P.2d at .
5. Admissibility of Co-Defendant Scott's
Confession at Sentencing
At the presentence hearing, the state offered
co-defendant Scott's confession in an attempt to establish that Milke
procured the commission of the offense by promising payment from the
insurance proceeds. See § 13-703(F)(4). The trial court found that
admission of Scott's confession would violate Milke's Sixth Amendment
confrontation rights. The state argues that the confrontation clause
does not apply to sentencing proceedings, and that Scott's confession
is admissible under the Arizona Rules of Evidence, particularly Rule
Because we are affirming the murder conviction and
death sentence, this issue in the state's cross-appeal is moot. See
Progressive Specialty Ins. Co. v. Farmers Ins. Co., 143 Ariz. 547,
548, 694 P.2d 835, 836 (App. 1985) (noting that appellate courts
should not decide questions that have no practical effect on
litigants' rights or that are unnecessary to Disposition of appeal).
Nevertheless, the state urges us to address this
issue notwithstanding its mootness because (1) it is a recurring
problem in homicide cases, particularly capital cases; (2) the Arizona
Court of Appeals has allegedly misconstrued the applicability of the
confrontation clause to hearsay exceptions in some cases; and (3)
resolution now will streamline future litigation in this case should a
federal court reverse the sentence and remand for resentencing.
Although sympathetic to the state's desire to have
the issue resolved, we must also recognize that, in resolving an
important and difficult issue of law, the prudent approach is to
decide it in a case in which it is necessary to decide it and in which
all of the permanent members of this court are participating, if
possible. See Hazine v. Montgomery Elevator Co., 150 Ariz. Adv. Rep.
14, 861 P.2d 625 (1993). Therefore, we decline the invitation to
consider this moot issue.
6. Concurrent Sentence for Child Abuse
The state's cross-appeal contends that defendant's
sentence for child abuse is illegal because the court failed to order,
pursuant to § 13-604.01(J), that the sentence be consecutive to the
murder, conspiracy, and kidnapping sentences. As noted above, the
child abuse conviction is being reversed for reasons stated in the
companion case of Styers, 161 Ariz. 477, 779 P.2d 352. Therefore, the
issue of sentencing on the child abuse conviction is moot.
7. Conspiracy Sentence
On count 2, conspiracy, defendant was sentenced
under the conspiracy statute, A.R.S. § 13-1003(D), which provides:
Conspiracy to commit a class 1 felony is punishable
by a sentence of life imprisonment without possibility of release on
any basis until the service of twenty-five years, otherwise,
conspiracy is an offense of the same class as the most serious offense
which is the object of or the result of the conspiracy.
Because defendant was convicted of conspiracy to
commit a class 1 felony (first degree murder), she was sentenced to
life imprisonment without possibility of release for 25 years.
The state contends that defendant should have been
sentenced pursuant to the murder statute, A.R.S. § 13-703(A), which
A person found guilty of first degree murder as
defined in § 13-1105 shall suffer death or imprisonment . . . for
life, without possibility of release on any basis until the completion
of . . . twenty-five calendar years if the victim was fifteen or more
years of age and thirty-five years if the victim was under fifteen
years of age . . . .
The state argues that defendant should have
received, on the conspiracy count, life without possibility of release
for 35, rather than 25, years because Christopher, the victim, was
under age 15. This is the sentence defendant would have received for
the murder of Christopher had she been spared the death sentence.
The state contends that A.R.S. § 13-1003(D) is
ambiguous and its language is contrary to the legislature's intent to
punish more severely those criminals whose victims are under age 15.
Although the legislature has specified harsher sentences for criminals
whose victims are under age 15 in several instances, see, e.g., A.R.S.
§§ 13-604.01 (dangerous crimes against children), 13-703(A) (increased
sentence when first degree murder victim is under age 15), 13-1204(B)
(increased sentence when aggravated assault victim is under age 15),
and 13-1304(B) (increased sentence when kidnapping victim is under age
15), "we cannot assume that the legislature's failure to do so [in
this statute] was a matter of inadvertence." Matter of Pima County
Juvenile Appeal No. 74802-2, 164 Ariz. 25, 33, 790 P.2d 723, 731
(1990). The legislature is the proper forum to which the state should
make its policy argument that potential child victims of first degree
murder conspiracies deserve more protection. See id. at 34, 790 P.2d
The state next argues that the legislature intended
to punish persons convicted of conspiracy pursuant to a "specified
scheme" by which conspiracy would be subject to the same sentence as
the offense that is the object of the conspiracy. This theory advanced
by the state could result in a death sentence when the object of the
conspiracy is first degree murder, even if the murder was never
carried out. The language of A.R.S. § 13-1003(D), insofar as it
relates to conspiracies to commit class 1 felonies, may have been
intended to prevent just such an anomalous result. See City of Phoenix
v. Superior Court, 144 Ariz. 172, 177, 696 P.2d 724, 729 (App. 1985)
("courts will avoid statutory interpretations that lead to absurd
results which could not have been contemplated by the legislature").
To us, § 13-1003(D) seems clear and unambiguous.
Defendant was convicted of conspiracy to commit first degree murder.
First degree murder is a class 1 felony. A.R.S. § 13-1105(C). Section
13-1003(D) provides: "Conspiracy to commit a class 1 felony is
punishable by a sentence of life without possibility of release [for]
25 years. " (Emphasis added.) The language of § 13-1003(D) is precise,
unambiguous, and leaves no room for interpretation. See id.; see also
State v. Reynolds, 170 Ariz. 233, 234, 823 P.2d 681, 682 (1992) ("If a
statute's language is clear and unambiguous, the court will give it
effect without resorting to other rules of statutory construction.");
State v. Arnett, 119 Ariz. 38, 51, 579 P.2d 542, 555 (1978) ("in
construing a statute, if the language is plain, there is no occasion
for construction or interpretation."). The sentence imposed by the
trial court on the conspiracy count was proper.
We have searched the record for fundamental error.
Pursuant to that search, we vacate the conviction for child abuse. We
affirm the convictions for murder, conspiracy, and kidnapping.
Although we vacate the trial court's finding of pecuniary gain as a
statutory aggravating factor, we nevertheless affirm the death penalty
on the murder count. We affirm the other sentences.
Vice Chief Justice
Robert J. Corcoran, Justice
Thomas A. Zlaket, Justice
Frederick J. Martone, Justice
Ruth V. McGregor, Judge
Chief Justice Stanley G. Feldman did not participate in the
determination of this matter. Pursuant to Ariz. Const. art. VI, § 3,
Judge Ruth V. McGregor of the Court of Appeals, Division One, was
designated to sit in his stead.