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Debra Jean MILKE

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Parricide - To collect insurance money
Number of victims: 1
Date of murder: December 2, 1989
Date of arrest: Next day
Date of birth: March 10, 1964
Victim profile: Christopher Conan Milke, 4 (her son)
Method of murder: Shooting
Location: Phoenix, Maricopa County, Arizona, USA
Status: Sentenced to death on January 18, 1991
 
 
 
 
 
 
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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 Styers.

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 husband.

PROCEEDINGS

    Presiding Judge: Cheryl K. Hendrix
    Prosecutor: Noel Levy
    Start of Trial: December 7, 1990
    Verdict: October 12, 1990
    Sentencing: January 18, 1991

Aggravating Circumstances:

    Especially heinous/cruel/depraved
    Age of victim (4)

Mitigating Circumstances:

    No prior record Prior employment
    Good conduct while in jail

PUBLISHED OPINIONS

    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.

Biography

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.

Appeals

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 rights.

Wikipedia.org

 
 

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 inadmissible.

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 be problematic.

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 - PhoenixNewTimes.com

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 community.

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 instantly.

The men left Christopher's body curled in the fetal position and then drove back into town and tried to pull off the ruse at Metrocenter.

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, not judges).

"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 sentence.

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 James Styers.

Deborah Milke and James Styers remain on Arizona's death row.

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 Story

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 son's life.

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.

During 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.

Despite 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 sample.

Debbie 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.

She knew 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 share expenses.

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 ?

After the 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.

Eight 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.

A few 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 existed.

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 uncovered the fraud committed by former detective SALDATE and county 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" [CHRISTOPHER].

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.

A few 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.

Debbiemilke.com

 
 

State v. MilkeArizona Supreme Court

State v. Milke

STATE OF ARIZONA, APPELLEE/CROSS-APPELLANT
v.
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, Judge

En Banc. Moeller, Corcoran, Zlaket, Martone, McGregor Moeller

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.

FACTS

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 the benefits.

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 Florence 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 Miranda rights, 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. Milke said that she verbalized these fears to Styers but did not think that he would ever hurt the child. She stated that she was not crazy, she just did not want Christopher to grow up like his father. She told the detective that she wanted God to take care of Christopher. She said she thought about suicide but decided against it because Christopher would then be in his father's custody. She 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 agreed to help. Milke and Styers discussed the plan several times and included Scott on at least one occasion. Ultimately, they decided that Styers and Scott would take Christopher, kill him, and then report him missing at Metrocenter, but Milke was 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 to see Santa Claus at Metrocenter. Milke told police that she did not have a $5000 life insurance policy on Christopher, but her father did. She denied that insurance money was her motivation, but admitted that it may have been Styers' and Scott's because Styers knew of the policy. Milke was arrested and taken back to Phoenix.

At trial, the state withdrew the felony murder allegation. The jury found Milke guilty of premeditated murder, conspiracy to commit first degree murder, kidnapping, and child abuse. The state alleged and the jury found the crimes of conspiracy, kidnapping, and child abuse to be of a dangerous nature. A.R.S. § 13-604. Milke was sentenced to death for the murder, a concurrent life sentence without possibility of parole for 25 years for conspiracy, a concurrent 20 years for child abuse, and a consecutive sentence of 20 years for kidnapping.

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 error.

3. Whether the child abuse conviction is based upon sufficient evidence.

4. Whether Arizona's death penalty statute is unconstitutional because: a. the jury does not determine whether aggravating factors exist in capital cases, and 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 sentenced Milke to a concurrent rather than a consecutive sentence for child abuse.

8. Whether the trial court imposed an illegal sentence for conspiracy to commit first degree murder when it sentenced Milke pursuant to § 13-1003 rather than pursuant to § 13-703(A).

Discussion

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?

Mr. M.?

P.M.: Yes.

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 for cause.

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 Conclusion of voir dire." State v. Arnett, 119 Ariz. 38, 50, 579 P.2d 542, 554 (1978) (citations omitted); see also State v. Walton, 159 Ariz. 571, 580-81, 769 P.2d 1017, 1026-27 (1989), aff'd on other grounds, Walton v. Arizona, 497 U.S. 639, 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 court and, absent clear and prejudicial abuse of that discretion, its determination will 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 prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" State v. Martinez-Villareal, 145 Ariz. 441, 449, 702 P.2d 670, 678, cert. denied, 474 U.S. 975, 88 L. Ed. 2d 324, 106 S. Ct. 339 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 65 L. Ed. 2d 581, 100 S. Ct. 2521, 2526 (1980)); see also State v. Sparks, 147 Ariz. 51, 55, 708 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 defense counsel objected generally to the instruction on the ground that the negative language detracted from the state's positive burden of proving guilt beyond a reasonable doubt, he agreed that it was a correct statement of the law. On appeal, defendant raises a new objection: that the instruction was an incomplete 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 Ariz. 153, 154, 812 P.2d 626, 627 (1991); see also Ariz. R. Crim. P. 21.3(c). Therefore, defendant must establish that the motive instruction constituted fundamental error.

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 such 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, although a correct statement of the law, was an incomplete statement of the law. In Hunter and in this case, the jury was not told that a lack of motive is as relevant to a defendant's innocence as the presence of a motive is to guilt. When a motive instruction is requested, the court should instruct that "the state need not prove motive but motive or lack of motive is a circumstance that may be 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 trial court. The incomplete instruction, coupled with an improper refusal of a Willits instruction,*fn1 led this court to reverse the conviction in Hunter because we 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 628. Defendant argues that the incomplete instruction deprived her of her essential right to rely on lack of motive as a circumstance tending to show innocence. The state contends there was no fundamental error because any prejudice defendant suffered by the incomplete instruction was cured by the closing arguments of defense counsel. See State v. Bruggeman, 161 Ariz. 508, 510, 779 P.2d 823, 825 (App. 1989) ("Appellate courts do not evaluate jury instructions out of context. . . . Closing arguments of counsel may be taken into account when assessing the adequacy of jury instructions." (citations omitted)). Under the facts of this 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 counsel, motive and lack of motive were discussed several times by each side. Indeed, defense counsel's closing argument focused on refuting every motive offered by the state and attempting to show they were illogical. The arguments eliminated the possibility recognized in Hunter: that the jury might be misled into thinking 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 prevented from arguing lack of motive at closing. Cf. State v. Tucker, 157 Ariz. 433, 447, 759 P.2d 579, 593 (1988) (holding that trial court's refusal to give any motive instruction was not fundamental error in part because the defense theory was adequately covered in closing arguments); State v. Ferguson, 149 Ariz. 200, 212, 717 P.2d 879, 891 (1986) (same). Certainly, we cannot say that the instruction 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 A.R.S. § 13-3623(B)(1) did not occur when Christopher was murdered with premeditation. For the detailed reasons for this ruling, see the analysis in the companion case, State v. Styers, 161 Ariz. 477, 779 P.2d 352, (1993). Although not specifically challenged in this case, we necessarily set aside this defendant's conviction for child abuse pursuant to our statutory obligation to review for 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 for felony murder.

SENTENCING ISSUES

4. Death Sentence

A. Constitutionality

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 imposition of such a sentence has been soundly rejected by prior decisions of this Court.'" Walton v. Arizona, 497 U.S. 639, 110 S. Ct. 3047, 3054, 111 L. Ed. 2d 511 (1990) (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 , (1993).

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 768 (1990), aff'd, 499 U.S. 279, 113 L. Ed. 2d 302, 111 S. Ct. 1246 (1991), we rejected defendant's claim that the sentencer's discretion is not adequately channeled 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 conspiracy. These findings are amply supported by the evidence, and provide an adequate basis upon which to find defendant death eligible, although she was not personally the 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 S. Ct. 1676 (1987).

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 murder was committed in expectation of pecuniary gain, A.R.S. § 13-703(F)(5); and (3) the murder was committed in an especially heinous and depraved manner, A.R.S. § 13-703(F)(6). Defendant challenges only the finding that the killing was especially heinous and depraved. However, in conducting our independent review of the death sentence, we necessarily examine all aggravating factors to 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 crime is especially heinous or depraved,*fn3 we examine "the mental state and attitude of the perpetrator as reflected in his words and actions." State v. Gretzler, 135 Ariz. 42, 51, 659 P.2d 1, 10, cert. denied, 461 U.S. 971, 77 L. Ed. 2d 1327, 103 S. Ct. 2444 (1983). We "have suggested specific factors which lead to a finding of heinousness or depravity." Id. These factors are: relishing of the murder by the killer; infliction of gratuitous violence on the victim; needless mutilation of the victim; senselessness of the crime; and helplessness of the victim. Gretzler, 135 Ariz. at 52, 659 P.2d at 11. In addition to these five factors, we have also held that killing a person to eliminate a witness to a crime may be 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. Ct. 1775 (1985); State v. Smith, 141 Ariz. 510, 512, 687 P.2d 1265, 1267 (1984).

The trial court found that the victim was helpless and the killing was senseless. The trial court also noted that the special parental relationship supported a finding of depravity, and that its "finding of depravity, at least 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 goals attributed to her by the state, citing State v. Comer, 165 Ariz. 413, 429, 799 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 was 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 money and 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 could be free from parental burdens is, indeed, senseless. Christopher's father wanted to increase his visitation and custody rights, and Milke's parents, Christopher's grandparents, were willing to take care of Christopher on a full-time basis. This crime most certainly was senseless in that it was unnecessary for Debra Milke to kill her son to free herself from the responsibility of being a single 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 the hands of his killers by the person upon whom he should have been able to rely for protection and compassion--his mother. He had no control over what his mother had planned for him. His mother knew that Christopher trusted Styers. Accord State v. Jimenez, 165 Ariz. 444, 455, 799 P.2d 785, 796 (1990) (defendant "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 contends that to do so unconstitutionally broadens the term "especially cruel, heinous, or depraved," which was given a constitutionally narrow interpretation in Gretzler. 135 Ariz. at 50-53, 659 P.2d at 9-12. The Supreme Court has determined that the term "especially heinous, cruel, or depraved" is facially vague. Richmond v. Lewis, U.S. , , 121 L. Ed. 2d 411, 113 S. Ct. 528, 534 (1992); Walton v. Arizona, 497 U.S. 639, 654, 111 L. Ed. 2d 511, 110 S. Ct. 3047, 3057 (1990). However, the Court has held that this court's interpretation of that phrase meets constitutional requirements. Most recently in Richmond v. Lewis, U.S. at , 113 S. Ct. at 536, the Court cited Gretzler as "the narrowing construction of Arizona's (F)(6) factor." (Emphasis added.) In Lewis v. Jeffers, 497 U.S. 764, 777-78, 111 L. Ed. 2d 606, 110 S. Ct. 3092, 3100 (1990), the Court affirmed our interpretation of the (F)(6) factor in State v. Jeffers, 135 Ariz. 404, 429-30, 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 definition of heinous and depraved set forth in State v. Knapp, 114 Ariz. 531, 562 P.2d 704 (1977), cert. denied, 435 U.S. 908, 55 L. Ed. 2d 500, 98 S. Ct. 1458 (1978).*fn4 In Walton v. Arizona, 497 U.S. at 652-55, 110 S. Ct. at 3057-58, decided the same day as Jeffers, the Court, citing Gretzler, affirmed State v. Walton, in which this court defined depraved as including a case in which the "perpetrator 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 court's findings of helplessness and senselessness are clearly based upon Gretzler factors. However, the court also relied on the parent/child relationship to support its finding of heinous and depraved. Specifically, the court relied on Wallace, 151 Ariz. at 368, 728 P.2d at 238, and Fulminante, 161 Ariz. 237, 256, 778 P.2d 602, 621, in using the parent/child relationship to support a finding of heinous and depraved. In Wallace, the defendant lived as a family with his victims, a mother and her two children. This court found this fact evidenced 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 its finding of depravity:

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 Defendant.

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 daughter. The court found the "killing of a helpless child [was] senseless and demonstrate[d] 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 parent/child relationship in finding the killing especially heinous and depraved. It stated:

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 parent/child relationship. The crime in this case can be described without reservation as "hatefully or shockingly evil" and "marked by debasement, corruption, perversion or deterioration." Gretzler, 135 Ariz. at 51, 659 P.2d at 10 (citing Knapp, 114 Ariz. at 543, 562 P.2d at 716). The parent/child relationship is a circumstance that separates this crime from the "norm" of first degree murders. The use of that relationship in partial support of a finding of heinousness and depravity 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 the policy does not prove, beyond a reasonable doubt, that the murder was committed for the money - that the money was the reason the child was killed. The State argues the insurance money was the impetus for the murder. In the opening statement, closing argument and during the course of the trial the State has advanced other theories and motives for the murder . . . . The State has produced evidence of the Defendant's wish that the child were dead before the 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 statement to Det. Saldate, Ms. Milke denied having a life insurance policy insuring her son. At trial Ms. Milke testified she did not know she was purchasing life insurance on her son as part of her employment benefits package - that she thought the life insurance was an automatic part of the benefits package. She later 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 should 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 defendant committed the offense in expectation of the receipt of anything of pecuniary value. But taking all of the evidence as a whole, it is clear, and the state has proven, beyond a reasonable doubt, that a motivating factor for the murder, although not the only reason for the murder, was the proceeds from the life insurance policy.

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 proceeds, and that the statements were an attempt to conceal this motive. In our independent reweighing of the evidence, however, we conclude that it is equally plausible that the inconsistent statements were Milke's attempt to divert 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 knowledge 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." State v. Robinson, 165 Ariz. 51, 60, 796 P.2d 853, 862 (1990), cert. denied, 498 U.S. 1110, 112 L. Ed. 2d 1107, 111 S. Ct. 1025 (1991). Because conflicting inferences can be drawn from the evidence on pecuniary gain, we conclude that the state did 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 only four years old. Although evidence of Christopher's age was also used, in part, to establish that the crime was especially heinous and depraved, the trial court properly weighed the victim's age only once. See Jimenez, 165 Ariz. at 454, 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 felony record, potential for rehabilitation, defendant's deprived childhood, defendant's employment history, defendant's conduct while incarcerated and during trial, her risk of future criminal conduct, and gender. The trial court found that no statutory mitigating circumstances were present and that only three of the non-statutory circumstances were entitled to any weight: no prior 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, the nature and extent of the aggravating circumstances and the nature and extent of the mitigating circumstances, I find that the mitigating circumstances are not 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 proving mitigating circumstances by a preponderance of the evidence. State v. McMurtrey, 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 rebutted with testimony from two psychiatrists who had not personally examined defendant. Additionally, there was trial testimony of several witnesses who saw defendant 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 observed defendant's conduct on December 2 and 3, 1989, also gave conflicting accounts. Although she apparently was upset and nervous, she did not behave like a mother concerned for her son's welfare. She appeared to be overly concerned with 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 demonstrated 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 the trial court that defendant's grief in this case has not been shown to be a mitigating factor. See State v. Smith, 123 Ariz. 231, 242-43, 599 P.2d 187, 198-99 (1979) (affirming trial court's refusal to find mitigating factor when the evidence was contradictory). When mitigation evidence is conflicting and involves considerations of credibility, we give great deference to the trial court's Conclusions. State v. Fierro, 166 Ariz. 539, 553, 804 P.2d 72, 86 (1990).

D. Independent Review

In death penalty cases, this court independently reviews aggravating and mitigating circumstances to determine whether the death penalty was properly imposed. See State v. Rossi, 171 Ariz. 276, 278, 830 P.2d 797, 799, cert. denied, U.S. , 113 S. Ct. 610 (1992). In this case, we have concluded that the trial court correctly found two statutory aggravating circumstances; namely, the age of the victim and the especially heinous or depraved nature of the murder. Defendant is therefore to receive the death penalty unless there are mitigating circumstances sufficiently substantial to call for leniency. A.R.S. § 13-703(E).

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 mitigation.

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 .

State's Cross-Appeal

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 804(b)(3).

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 provides:

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 at 732.

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.

Disposition

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.

James Moeller
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.

 

 

 
 
 
 
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