Ariz. executes Robert Charles
Towery by lethal injection for 1991 killing
By Barry Leibowitz - CBSNews.com
March 8, 2012
(CBS/AP) FLORENCE, Ariz. - Arizona death row
inmate Robert Charles Towery apologized to the family of the man he
killed and to his own family, said his life was one mistake after
another and started crying before he was executed via lethal
Towery, 47, convicted of killing Mark Jones while
robbing his Scottsdale home in 1991, was the second inmate put to death
in the state in eight days.
"I would like to apologize to Mark's family and
friends for what I did to them. I would like to apologize to my family,"
Towery said. "So many times in my life I went left when I should have
gone right and I went right when I should have gone left. It was mistake
after mistake after mistake."
Towery, who lay strapped to a table with a sheet up
to his waist, started weeping after he looked at his sister, his nephew
and a friend in the room and said, "I love my family." Then he took a
few heavy breaths and appeared to fall asleep.
The execution took nine minutes and Towery was
declared dead at 11:26 a.m., following a delay of more than an hour,
which prison officials attributed to a meeting between Towery and his
attorneys and to difficulty in finding a good vein to inject him.
An injection in Towery's right arm was visible during
the execution, but the execution team also injected him in the femoral
vein, which is in the groin. It's unclear which injection delivered the
Towery's defense attorney, Dale Baich, expressed
concern over the difficulty the execution team had with finding a vein
and whether it caused Towery any unnecessary pain.
"Did they say how many times they stuck him?" Baich
asked after the execution. "That will be something I will definitely try
to find out."
Throughout the execution, his family members wept,
sniffled and comforted each other. They declined to speak to reporters
Deacon Ed Sheffer of the Roman-Catholic Diocese of
Tucson met with Towery earlier in the day and witnessed the execution.
He described Towery as remorseful and prayerful in the morning, adding
that he thinks Towery cried during the execution for the pain that he
has caused others.
"He was trying to find peace," Sheffer said, adding
that nothing was accomplished with Towery's execution.
"Life, in the end, is all sacred," he said. "To teach
that killing is wrong by killing - that is impossible to reconcile."
In a statement, Arizona Attorney General Tom Horne
said that Towery caused great suffering and that Jones' family finally
has justice 20 years after Towery was found guilty.
Arizona executes man for murder of philanthropist
By David Schwartz
March 8, 2012
PHOENIX (Reuters) - The killer of a Phoenix-area
philanthropist who was injected with battery acid and strangled during a
1991 robbery of the victim's home was executed on Thursday after nearly
two decades on Arizona's death row.
The inmate, Robert Charles Towery, 47, was pronounced
dead at 11:26 a.m. local time, nine minutes after his execution by
lethal injection began, at the state prison complex in Florence, about
60 miles southeast of Phoenix, state officials said.
Towery was sentenced to death in November 1992 for
the slaying of Robert Jones, a man Towery had met through the killer's
automotive business, during a home-invasion robbery in September of the
"This is an especially heinous and cold murder,"
state Attorney General Tom Horne said in a statement after the
execution, citing the fact that Towery had injected his victim with
battery acid before strangling him with a plastic zip tie.
"Jones was a 68-year-old man with a transplanted
heart who knew Towery and had previously lent him money," Horne said.
"Towery and his accomplice targeted Jones to rob him."
Towery's conviction hinged in large part on the
testimony of his co-defendant in the case, Randy Barker, who cooperated
with prosecutors in a plea deal and was sentenced to 10 years in prison
for his role in the crime.
Jones, described by Horne as a philanthropist, was
known to give money to college graduates to continue their education.
In his final words before being put to death, Towery
apologized to the victim's family and friends, and to his own family,
then spoke about the bad choices he had made in his life and concluded
by saying, "I love my family. Potato, potato, potato," according to
state Corrections Department spokesman Bill Lamoreaux.
Lamoreaux had no explanation for the meaning of
Towery's last utterance.
Towery's last meal consisted of a Porterhouse steak
with sauted mushrooms, baked potato with butter and sour cream, steamed
asparagus, a cup of clam chowder, a soft drink, apple pie with vanilla
ice cream and some milk, prison officials said.
He became the second man executed in Arizona within
the past eight days and the 30th since the death penalty was reinstated
there in 1992. He was also the seventh person executed in the United
States this year, according to the Death Penalty Information Center.
In a series of last-ditch appeals, his lawyers sought
to get Towery's sentence reduced to 25 years to life in prison by
arguing he received too harsh a penalty compared with Barker.
In trial testimony, Barker recounted he and Towery
took a taxi to Jones' home in the affluent Phoenix suburb of Paradise
Valley on the night of the crime, knocked on his door and asked to use
the phone, claiming their vehicle had broken down.
Once inside, Towery pulled a weapon on Jones and
Barker handcuffed him. Towery then proceeded to take $1,200 and load
jewelry, electronics and other items into Jones' car before both men led
their victim to the master bedroom at gunpoint.
Towery laid Jones face down on the bed and injected
him using a veterinary syringe filled with a substance that Barker said
was battery acid. Towery told the victim the substance would put him to
Believing Jones was pretending to have fallen asleep,
Towery then pulled plastic ties from his briefcase and strangled Jones.
It took two attempts before Jones died, according to trial testimony.
Jones' body was found the next day. His car was
discovered abandoned a week later.
The two suspects were arrested as a result of a tip
Robert Charles Towery
Date of Birth: July 20, 1964
On September 4, 1991, Towery and
Randy Barker went to the home of Mark Jones to rob him.
Jones knew Towery and let Towery
and Barker into the home. Towery pulled a pistol on Jones and Barker
handcuffed him. Towery took valuables from the house and loaded them
into Jones's vehicle.
Barker took Jones to the bedroom.
Towery told Jones that he was going to give him injections with
something that would make him sleep. Towery then injected Jones with
battery acid. Jones was not struggling because he trusted Towery. Towery
then sought to strangle Jones to death. When the first try failed, he
tried again and succeeded.
Towery and Barker then left in
Jones's car, unloaded Jones's property at their home, and left the car
in a nearby parking lot.
On September 5, 1991, Jones's
body was discovered. On September 12, 1993, Jones's car was recovered.
As a result of tip given to the
silent witness program, Towery and Barker were later arrested. Some of
Jones's property was recovered from Towery's and Barker's home.
Presiding Judge: Cheryl K. Hendrix
Prosecutor: John Ditsworth
Start of Trial: August 3, 1992
Verdict: August 14, 1992
Sentencing: November 20, 1992
Prior convictions for offenses involving the threat of violence
Prior convictions for which life imprisonment was imposable
Especially heinous and depraved
None sufficient to call for leniency
State v. Towery, 186 Ariz. 168, 920 P.2d 290 (1996).
State v. Towery,
et. al., 204 Ariz. 386, 64 P.3d 828 (2003).
State v. Towery, 186 Ariz.
168, 920 P.2d 290 (1996)
PROCEDURAL POSTURE: The defendant
was convicted in Superior Court (Maricopa) of first-degree felony murder,
armed robbery, first-degree burglary, kidnapping, theft, and attempted
theft. He was sentenced to death for the murder. This is the defendant's
automatic, direct appeal to the Arizona Supreme Court.
(F)(1) (Prior Life or Death Felony) - UPHELD
It was undisputed that Towery was convicted of four counts of
armed robbery, committed while on parole, making him eligible for a life
sentence. The Court stated that these facts support a finding under both
(F)(1) and (F)(2). Although the facts support a finding that both
circumstances exist, a court may not give weight to both circumstances
when each is supported by the same facts. See, e.g., State
v. Spencer, 176 Ariz. 36, 859 P.2d 146 (1993).
(F)(2) (Prior Violent Felony) - UPHELD
The defendant was convicted or armed robbery involving the
threat of violence while on parole. The Court did not discuss this other
than to say that the prior conviction makes the defendant eligible for
the death penalty under both (F)(1) and (F)(2).
(F)(5) (Pecuniary Gain) - UPHELD
The defendant did not dispute this conclusion by the trial
court. The Court found a clear pecuniary gain motive by the defendant in
his going to the victim's house, and that financial gain was the impetus
for his conduct during the ensuing robbery and killing. A codefendant
stated that they went to this particular house to rob, and once inside,
bound the victim while they loaded up the victim's car with a television,
photocopy machine, cameras, jewelry, and other items. They also took
money and credit cards. The defendant injected the victim with battery
acid, and then strangled him. Both codefendants then left in the
victim's car and, before abandoning it, removed the compact disc player.
(F)(6) (Heinous, Cruel or Depraved) - UPHELD
Mental Anguish: Found. The victim was "conscious
when the two men with a gun confronted him in his home, bound his
hands behind his back, took him upstairs, asked him whether he
wanted to be left tied up or put to sleep, placed him face down on
his bed, and pushed his head down while pulling on the [plastic
garbage container tie] to strangle him. He was conscious while
defendant stabbed his arms several times to inject a mystery
substance. Defendant believed [the victim] was conscious after the
injections because he heard Jones snoring, pretending to be asleep,
even though defendant had injected no sleeping medication. [The
victim] was therefore conscious when he was strangled the first
time. These events certainly caused [the victim] mental anguish
about his fate . . . ." 186 Ariz. at 188.
Physical Pain: Found. Based on the above listed facts, the
Court found that "the needle punctures and first strangulation
caused [the victim] physical suffering." 186 Ariz. at 188.
Heinous or Depraved: Not addressed.
The Court found that the following mitigating
circumstances existed, but were insufficiently substantial to call for
Impairment [drug use]
Difficult Childhood/Family History
JUDGMENT: First-degree murder
conviction and death sentence affirmed.
Ariz. 168, 920 P.2d 29
STATE of Arizona, Appellee,
Robert Charles TOWERY, Appellant
Supreme Court of Arizona, In Banc
FELDMAN, Chief Justice.
October 3, 1991, Robert Charles Towery ("Defendant") and Randy Allen
Barker were charged in Maricopa County on six counts: first-degree
murder, armed robbery, first-degree burglary, kidnapping, theft, and
attempted theft. About six months before trial, the trial judge granted
Defendant's motion to sever. Defendant's murder trial began on August
3, 1992. Eleven days later, the jury found him guilty of felony murder
and all other counts. At the sentencing hearing, the trial judge
sentenced Defendant to death for the murder and to concurrent prison
terms of five to twenty-one years for the other counts.
This automatic appeal of the death sentence followed. Ariz. Const. art.
6, § 5(3); A.R.S. §§ 13-4031 and 13-4033(A).
STATEMENT OF FACTS
In exchange for a reduced charge of second-degree murder, Barker
testified against Defendant and provided much of the State's evidence.
Other witnesses corroborated some critical features of Barker's story
and connected Defendant with the charged offenses. Nevertheless, the
State's case rested on Barker's testimony. His version of the facts
Defendant, Barker, and John Meacham rented a three-bedroom house in
Scottsdale, Arizona. Defendant occupied one bedroom with his
girlfriend, Diane Weber, and her infant daughter. Barker occupied
another bedroom with his then- girlfriend, Monique Rousseau. For
several weeks, Defendant and Barker had discussed "pulling off a
robbery" of one of two possible victims known to Defendant. On
September 4, 1991, they decided to rob Mark Jones at his home.
That evening they drove in Barker's car to a Denny's Restaurant where
they called a taxi. The taxi dropped them off near Jones' home. They
walked to the house and knocked on the door. When Jones answered,
Defendant said his car had broken down and asked if he and Barker could
come in to use the telephone. Defendant asked Jones, "Do you remember
me? I'm from R and D Automotive." Jones had been introduced to
Defendant on a prior occasion when Defendant sought counseling about his
new business enterprise. Jones invited them in and showed them the
telephone. While Barker faked a telephone call, Defendant opened his
briefcase and pulled out a gun. The briefcase also contained gloves,
plastic tie wraps, handcuffs, and a large veterinary syringe apparently
filled with battery acid. After Defendant and Barker put on gloves,
Barker handcuffed Jones. Defendant rummaged through the house, took
Jones' car keys, and loaded Jones' Lincoln with a television, photocopy
machine, cameras, jewelry, and other items. Defendant removed Jones'
wallet from his back pocket and took about $200 and credit cards. They
also took $1,000 from a desk drawer.
Before leaving, Defendant and Barker took Jones to the master bedroom at
gunpoint, uncuffing him while he used the bathroom along the way. They
asked him whether he was expecting anyone soon, and Jones said no.
According to Barker, Defendant offered Jones "about two choices in the
matter of how we could leave him. One was ... [to] tie him up, ... the
other was to introduce a drug into him to make him sleep instead of
being tied up." Jones chose to be put to sleep and was laid face down
on the bed with his hands bound behind his back. Contrary to his
statement to Jones, Defendant apparently believed the injected substance
would kill Jones.
At his request, Jones' shoes were removed to make him more comfortable.
Defendant made several attempts to inject the contents of the syringe
into Jones' arm, pushing the needle all the way through a vein. The
drug having no effect, Jones pretended to sleep by **297 *175 snoring.
Determined to kill Jones, Defendant made a noose out of plastic tie
wraps from his briefcase, slipped it over Jones' head, and pulled
tightly on its end to strangle Jones. Jones did not struggle but made
choking and gagging sounds. Defendant then cut and removed the tie-wrap
noose from Jones' neck. Believing Jones was not yet dead, Defendant
made another noose "like the first one ... popped [it] over the head,
and pulled tight with a 'zip' sound," explained Barker.
The two men then loaded a large television into Jones' other car, a
Dodge convertible. While trying to start the Dodge, Barker set off its
alarm. Barker jumped into the Lincoln and the two men drove away with
Defendant at the wheel. Barker allegedly threw the empty syringe out
the window into an oleander hedge [FN1] as they drove back to Denny's to
get Barker's car. They returned to their home, unloaded the goods,
putting some into Meacham's bedroom, and removed a compact disk player
from the Lincoln's dash. Defendant then drove the Lincoln to the
parking lot of an apartment complex while Barker followed in his car.
They parked the Lincoln there and returned home. A security guard at
the complex saw the men and later identified Defendant in a photo
FN1. Police later searched the area for the syringe but never found it.
The next morning, Meacham returned from work to discover in his bedroom
items he had not seen before. Defendant, Barker, and Diane were also in
the house. Meanwhile, two employees of the golf club that Jones
frequented had looked for Jones and found his body about mid-morning
B. Defendant's version
Defendant testified and offered an alibi. According to Defendant, on
the night of the robbery he had driven Barker to Denny's in Barker's
car. He had a soda until Barker's taxi arrived, then drove to Zorba's,
an adult book store, where he had arranged to meet Tina Collins. While
waiting, Defendant went inside to buy a book and returned to his car.
Tina arrived at Zorba's about fifteen minutes after Defendant. They
then drove and parked near Defendant's home, talking for about two hours
in the car. Defendant returned to Zorba's, dropped Tina off, and went
to meet Barker at a Circle K near their house. Because Barker was not
there as planned, Defendant went home. Barker soon arrived home with a
stolen car and stolen property. Defendant claimed he helped Barker
unload the goods and dispose of the stolen car. To account for the
stolen property police found in his possession, Defendant claimed he had
bought the items from Barker.
Tina Collins testified by videotape and gave the following story,
corroborating Defendant's version. She first met Defendant about two
weeks before the murder at a party, where they discussed performing a
sex act on Defendant's girlfriend and arranged to meet again on
September 4. They talked over the telephone on September 4 and planned
to meet at nine o'clock that night to negotiate a deal. Tina did not
arrive until 9:10 or 9:15 and joined Defendant in a black TransAm he was
driving. They drove to the parking lot of an office building, talked
for an hour, went to a convenience store for sodas, and returned to the
parking lot to talk some more. After meeting for a couple of hours,
Defendant drove Tina back to Zorba's. When asked whether she saw any
unusual equipment in the car, Tina said she saw a gun and a police
scanner, which she first thought was a walkie-talkie. Nothing in the
record disputes Tina's professed observations. (FN2)
FN2. Tina said she did not talk with Defendant again until February 9,
when she visited him in prison. According to Tina, she learned from her
friend Judy that Defendant was in prison. Judy had been visiting
Defendant's cellmate, a man named Paul. While Judy visited Paul, she
telephoned Tina and told her that Paul had a friend who wanted to meet
her. Tina had previously visited and befriended inmates she did not
know. When Defendant got on the telephone, he and Tina recognized each
other. Thereafter, Tina visited Defendant in prison regularly.
The prosecutor suggested in closing argument that Tina had never met
Defendant until she visited him in prison after the murder and that she
therefore fabricated her alibi testimony to help Defendant. Reporter's
Transcript, Aug. 13, 1992, at 61.
**298 *176 The jury apparently believed Tina and Defendant less than
Barker and found Defendant guilty of first-degree murder. At the
sentencing hearing, the trial judge found three statutory aggravating
factors and two mitigating factors. In aggravation, the State proved
that Defendant (1) had been convicted of a crime for which a life
sentence was imposable, [FN3] (2) committed the murder for financial
gain, [FN4] and (3) committed the murder in an especially cruel,
heinous, or depraved manner. [FN5] The judge found that the mitigating
factors, Defendant's drug-impaired capacity to conform his conduct to
the law and his codefendant's lenient plea-bargained sentence, were not
sufficiently substantial to call for leniency. Accordingly, the judge
sentenced Defendant to death.
FN3. A.R.S. § 13-703(F)(1) and (2). Defendant had been convicted of
committing four counts of armed robbery while on parole. A life
sentence for the conviction was therefore mandatory.
FN4. A.R.S. § 13-703(F)(5).
FN5. A.R.S. § 13-703(F)(6).
Defendant takes issue with a number of the trial judge's procedural
rulings, arguing that they constituted reversible error. He also
challenges the trial judge's findings at the sentencing hearing and the
constitutionality of Arizona's death penalty scheme. We consider each
of Defendant's arguments.
A. Limiting cross-examination of an accomplice witness
Defendant contends that by twice limiting his cross-examination of
Barker, the trial judge violated his right under the Sixth and
Fourteenth Amendments to confront a key witness. In one instance the
judge prohibited the defense from asking Barker what his attorney had
said to him about his chances of receiving the death penalty without a
plea bargain. In the second instance, the judge barred the defense from
probing Barker about his belief in the occult. Defendant charges that
both of these rulings infringed his right to effectively cross-examine
an important witness and were fundamental error.
1. The confrontation right and the attorney-client privilege
To show Barker had a motive to testify for the State and inculpate
Defendant, even if he had to lie, Defendant cross-examined Barker about
benefits he expected in return for his plea agreement. Defendant asked
Barker whether his attorney had told him that the State might seek the
death penalty if Barker did not cooperate with the prosecutor. Barker's
lawyer was present and objected on grounds of attorney-client privilege,
and the judge sustained the objection.
 A defendant has great latitude to cross-examine an "accomplice or
co- defendant who has turned State's evidence and testifies on behalf of
the State in a trial of his co-defendant." State v. Morales, 120 Ariz.
517, 520, 587 P.2d 236, 239 (1978) (citations omitted). A trial judge
who excludes testimony that would show bias and interest in this
circumstance may commit reversible error. Id. Even if the defendant
fails to object or give an offer of proof when such testimony is
precluded, error may be found if the context of the questions makes
their purpose clear. Ariz. R. Evid. 103(a).
 If cross-examination into privileged areas is necessary to show a
witness' bias, the United States Supreme Court has held that the
interest of confidentiality can be "outweighed by [the defendant's]
right to probe into the influence of possible bias in the testimony of a
crucial identification witness." See Davis v. Alaska, 415 U.S. 308,
319, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974). In the few reported
cases in which the confrontation right has collided with the
attorney-client privilege, courts have employed a fact- specific
balancing test to resolve the competing interests of confidentiality and
the defendant's right to impeach an important government witness. See,
e.g., State v. Cascone, 195 Conn. 183, 487 A.2d 186, 190-91 (1985)
(trial court's exclusion of a co-defendant's pretrial statement to his
attorney *177 **299 that would exculpate the defendant was not harmless
In United States ex. rel. Blackwell v. Franzen, the court balanced the
in each case must finally be whether defendant's inability to make the
inquiry created a substantial danger of prejudice by depriving him of
the ability to test the truth of the witness's direct testimony. To
answer that question the court must look to the record as a whole and to
the alternative means open to the defendant to impeach the witness. The
court must ultimately decide whether the probative value of the alleged
privileged communication was such that the defendant's right to
effective cross- examination was substantially diminished.
688 F.2d 496, 500-01 (7th Cir.1982) (citations omitted), cert. denied,
460 U.S. 1072, 103 S.Ct. 1529, 75 L.Ed.2d 950 (1983).
In Franzen, the defendant cross-examined his accomplice, who had agreed
to testify for the state. The defendant elicited testimony from the
witness that he had told his own attorney "he was beaten [by the
prosecutor] into making that statement [that inculpated defendant]" to
show that the prosecutor had induced the accomplice to incriminate the
defendant. Id. at 499. The state objected, and the trial court
sustained the objection on grounds that the attorney-client privilege
"overrides any relevancy it may have to the issues in [the] case." Id.
However, because there was already ample evidence in the record to
impeach the accomplice's testimony, the circuit court upheld the trial
court's ruling. Id. at 501; see also Neku v. United States, 620 A.2d
259, 263 (D.C.1993), cert. denied, 510 U.S. 1003, 114 S.Ct. 577, 126
L.Ed.2d 476 (1993).
As long as the jury heard evidence relevant to Barker's possible motives
for testifying against Defendant, we assume it could then fairly assess
Barker's truthfulness. No doubt Barker's plea agreement was relevant to
his bias and interest. The jury apparently realized this and sent a
note to the judge during deliberations asking what benefits Barker
received in exchange for his testimony. Reporter's Transcript (R.T.),
Aug. 13, 1992, at 110. The jury's note asked, "Does Randy Barker have
anything to gain if Towery is convicted? Are we allowed to see the plea
agreement?" In response to the note, the judge told the jurors they had
all the evidence and instructed them to rely on their personal
recollections and collective notes.
 At issue then is whether the jury knew what benefits Barker would
receive from his plea bargain. If the statement made to Barker by his
lawyer was sufficiently probative of Barker's credibility to outweigh
the interests protected by the attorney-client privilege, [FN6] then the
judge abused her discretion in prohibiting Defendant from asking about a
FN6. The attorney-client privilege, the "oldest of the privileges
for confidential communications known to the common law," has
been rigorously guarded "to encourage full and frank communication
between attorneys and their clients and thereby promote broader public
interests in the observance of law and administration of justice."
Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66
L.Ed.2d 584 (1981).
 The record shows that even without disclosure of whether Barker's
lawyer told Barker that the State would seek the death penalty if he did
not cooperate, other evidence informed the jury that Barker knew he
could escape death by cooperating and testifying. The jury knew that
the State would have pursued the death penalty if Barker were convicted
of first-degree murder. Earlier in the day, the jury heard a stipulation
that prior to Barker's plea agreement the State had filed a notice of
intent to seek the death penalty if Barker were convicted of
first-degree murder. The jury knew that Barker then made a plea
agreement with the State for second-degree murder. In short, although
the jury questioned Barker's benefits if Defendant were convicted, as
evidenced by the note to the judge, the jury must have understood all of
the benefits Barker received from his plea agreement and testimony when
it decided Defendant's guilt. The evidence would have been merely
cumulative had the judge permitted Defendant to ask about Barker's
privileged communication with his attorney. Moreover, in protecting
**300 *178 the attorney-client privilege, the judge did not impair
Defendant's ability to obtain the information he wanted. Defense
counsel could have established a motive for Barker to lie without
invading the attorney-client privilege. He simply could have asked if
Barker knew or believed he would have been eligible for the death
penalty or a life sentence had he not agreed to testify. In upholding
the privilege, therefore, the judge did not abuse her discretion.
2. Cross-examination of Barker's belief in satanism
On cross-examination, the defense asked Barker about his belief in the
occult after he revealed that he had dialed straight sixes while
feigning a telephone call from the victim's house. [FN7] The judge
sustained the State's objection on grounds of relevance, basing her
ruling on Ariz. R. Evid. 610 and art. 2, § 12 of the Arizona
Constitution. [FN8] These provisions bar questioning a witness about
religious beliefs as a way to enhance or attack the witness'
credibility. On appeal, Defendant contends that testimony about
Barker's religious beliefs, if such they were, was not offered to
impeach his credibility but to show that the antisocial tenets of his
beliefs disposed Barker to engage in criminal conduct and to commit the
FN7. During cross-examination, Barker was asked what number he dialed
when he pretended to use the telephone in Jones' house. Barker
responded, "I dialed straight sixes." The testimony continued:
Q: Why did you dial those numbers?
A: Because of--I used to have an old belief in the occult.
Q: When did you do away this that belief?
Mr. Ditsworth [for the State]: Relevance, Your Honor.
The Court: Sustained.
Mr. Hazel [for Defendant]: Pardon me, Your Honor, I didn't--
The Court: Sustained.
Mr. Hazel: Your Honor, can we approach on that point?
The Court: Later.
Mr. Hazel: But, in fact, you had an alter [sic] in your--a Satanic alter
in your room; is that correct?
Mr. Ditsworth: Same objection.
The Court: Sustained.
R.T., Aug. 5, 1992, at 112-13.
After excusing the jury, the judge asked defense counsel why the ruling
should be reversed. Counsel explained that he had seen what looked like
a satanic altar in a photograph of Barker's bedroom and wanted to ask
Barker to confirm its identity. He continued, "I think it's important
that the jury know that he has some different type of beliefs that other
people may not." The trial judge asked for case law showing that
satanism was an exception to the rule prohibiting a party from
introducing evidence of a witness' religious beliefs. Id. at 140-41.
Counsel agreed to find authority but never offered any.
FN8. Ariz. R. Evid. 610 provides:
Evidence of the beliefs or opinions of a witness on matters of religion
is not admissible for the purpose of showing that by reason of their
nature his credibility is impaired or enhanced.
Art. 2, § 12 of the Arizona Constitution states:
No ... person [shall] be incompetent as a witness or juror in
consequence of his opinion on matters of religion, nor be questioned
touching his religious belief in any court of justice to affect the
weight of his testimony.
 A witness' religious beliefs are admissible if offered for some
legitimate purpose other than attacking witness credibility. See State
v. West, 168 Ariz. 292, 296, 812 P.2d 1110, 1114 (1991) (reference to
religion is proper when used to justify defendant's conduct); State v.
Stone, 151 Ariz. 455, 458, 728 P.2d 674, 677 (App.1986) (if evidence of
religious belief "is probative of something other than veracity, it is
not inadmissible simply because it may also involve a religious subject
as well."). Defendant argues that the evidence was relevant to an issue
other than Barker's veracity. Had he been allowed to develop testimony
about Barker's satanic beliefs, the jury might have been persuaded to
believe that Barker, not Defendant, was the killer. In addition,
although the jury nevertheless could have found Defendant's involvement
sufficient to convict him for felony murder, his death eligibility was
not a foregone conclusion. Although the judge found beyond a reasonable
doubt that Defendant was the killer, evidence that Barker was profoundly
touched by some satanic belief might have altered that finding.
 Defendant, however, made no offer of proof of what Barker's
testimony would have shown. Nor does the context of the question
indicate the nature of Barker's satanic belief or show it was
substantively **301 *179 relevant. When an objection to the
introduction of evidence has been sustained, an offer of proof showing
the evidence's relevance and admissibility is ordinarily required to
assert error on appeal. State v. Bay, 150 Ariz. 112, 115, 722 P.2d 280,
283 (1986); MORRIS K. UDALL ET AL., ARIZONA PRACTICE: LAW OF EVIDENCE
§ 13, at 20 (2d ed.1982). Given that counsel normally does not know in
advance what a hostile witness will say on cross-examination, the
offer-of-proof requirement for considering a claim on appeal may be
relaxed when the court sustains an objection to a question asked on
cross-examination. JOHN W. STRONG, ET AL., 1 MCCORMICK ON EVIDENCE §
51, at 197 (4th ed.1992). Even so, something more than speculation
about possible answers is required to show prejudice. At a minimum, an
offer of proof stating with reasonable specificity what the evidence
would have shown is required. See id. at 197-98. In Arizona, it has
been suggested that counsel be required to discover evidence that would
make the proffered testimony relevant and make it known to the court.
State v. Quinn, 121 Ariz. 582, 585, 592 P.2d 778, 781 (App.1978).
 We recognize, however, that discovery in criminal cases is
much more limited than in civil cases. Victims of crimes, for example,
can refuse interview requests by defense counsel under the Victims' Bill
of Rights. Ariz. Const. art. 2, § 2.1; Ariz. R.Crim. P. 39(b)(11).
Nonetheless, when the context of the examination fails to reveal the
nature of the expected answer, the proponent of the precluded evidence
must seek permission from the trial judge to make the offer of proof so
that the reviewing court can determine whether the trial judge erred in
precluding the evidence. STRONG, ET AL., supra § 51, at 197 n. 10; see
also State v. Affeld, 307 Or. 125, 764 P.2d 220, 222 (1988). It is
remotely conceivable that Barker might have revealed he was driven by a
satanic force or some other evil belief to commit criminal acts. The
only hint of a satanic motive for Barker's participation in the crime,
however, was his dialing sixes on the telephone. That alone has little
probative value in establishing a motive to kill. Assuming Barker had a
satanic altar in his room, Defendant failed to discover how often Barker
used it and how its use was related to his criminal conduct. In fact,
Barker's claim that he used to believe in the occult indicates that the
alleged altar no longer had any religious significance to him.
Defendant's failure to establish the connection between Barker's old
belief in the occult and the crime by an offer of proof in the record
makes it impossible to evaluate whether the trial judge unfairly limited
Defendant's cross-examination of Barker. On this record, we see no
probative value in the precluded evidence apart from its effect on
Barker's credibility. Thus we find no error in the judge's precluding
B. Defendant's right to a free transcript of a previous, unrelated
Before trial, Defendant asked the court by written motion to provide a
free transcript of a prior trial in which he had been convicted of armed
robbery. That trial took place in mid-March 1992, about six months
after Jones' murder and about five months before Defendant's homicide
trial. He stated that he needed the transcript because the prosecutor
had filed notice that the State intended to call witnesses from the
armed robbery trial. [FN9] The judge denied his request on grounds that
"no good cause has been shown for the need of the trial transcripts,"
advising him to renew his motion "setting forth some facts which
demonstrate an actual need other than the bare conclusion that he needs
the transcript 'to prepare a defense'." Minute Entry, June 13, 1992, at
19. Defendant made no further request for the transcript. On appeal,
Defendant claims that in denying him valuable defense information, the
judge violated his equal protection and due process rights.
FN9. Defendant used
plastic tie wraps, like the ones used during Jones' murder, during the
armed robbery. He had also used a police scanner in the armed robbery.
Barker told police that Defendant took a police scanner to Jones'
house. The State wanted to call the armed robbery victim to prove the
identity of Jones' killer and filed a motion to admit prior bad acts.
The State later withdrew its motion.
United States Supreme Court has held that requiring an indigent **302
*180 defendant to demonstrate a particularized need for a free
transcript of a prior mistrial or preliminary hearing can violate equal
protection. Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431,
433- 34, 30 L.Ed.2d 400 (1971); Roberts v. LaVallee, 389 U.S. 40, 88
S.Ct. 194, 19 L.Ed.2d 41 (1967); Griffin v. Illinois, 351 U.S. 12, 17,
76 S.Ct. 585, 590, 100 L.Ed. 891 (1956) ("In criminal trials, a State
can no more discriminate on account of poverty then on account of
religion, race, or color."). Only financial need, not particularized
need, must be shown. Britt held that two factors are relevant in
determining if a trial court has erred by refusing an indigent defendant
a free trial transcript: (1) the value of the transcript to the
defendant for an effective defense at trial or on appeal, and (2) "the
availability of alternative devices that would fulfil the same functions
as the transcript." Britt, 404 U.S. at 227, 92 S.Ct. at 434. [FN10]
The transcript from a prior mistrial has been recognized as a valuable
resource for impeaching witnesses, guiding discovery, and developing
trial strategy. Id. at 232, 92 S.Ct. at 436 (Douglas, J., dissenting).
Thus, when a transcript from a mistrial is requested for use at the
retrial, the value of the transcript is generally presumed without a
showing of specific need. United States v. Rosales-Lopez, 617 F.2d
1349, 1355-56 (9th Cir.1980), aff'd, 451 U.S. 182, 101 S.Ct. 1629, 68
L.Ed.2d 22 (1981). A preliminary hearing transcript may also be
presumed to have value in connection with a pending trial. See id.
FN10. In Britt
the Court upheld the trial court's decision not to provide a transcript
to the defendant. The same judge presided, and the same counsel
appeared. Because the same court reporter, who knew the attorneys and
the judge, was present and could have readily provided defense counsel
with transcriptions from the prior mistrial if informally asked, the
Court found that the defendant had adequate alternative devices
available. See State v. Tomlinson, 121 Ariz. 313, 589 P.2d 1345
(App.1978) (reviewing state and federal cases on whether the defendant
had an adequate alternative device for a trial transcript)
In this case, however, Defendant asked for a free transcript of his
trial on an unrelated charge. Our cases have held that there is no
presumed value to the defense in the transcript of a co-defendant's
trial. See State v. Tison, 129 Ariz. 526, 540, 633 P.2d 335, 349 (1981)
(indigent defendant must show special need in requesting a transcript of
co-defendant's trial), cert. denied, 459 U.S. 882, 103 S.Ct. 180, 74
L.Ed.2d 147 (1982); State v. Razinha, 123 Ariz. 355, 358, 599 P.2d 808,
811 (App.1979) (citing cases). But see State v. Campbell, 215 N.W.2d
227 (Iowa 1974). Although the present question is one of first
impression for this court, we partially answered it in Tison. Tison
claimed the trial judge erred in denying him a free transcript of his
co-defendant's trial on the same charges. In holding that there is no
presumed value of a co-defendant's trial transcript even when the same
witnesses are called, we emphasized that the constitution does not
require the State to provide every service that "might be of benefit to
an indigent defendant ... but only to assure the indigent defendant an
adequate opportunity to present his claims fairly...." Tison, 129 Ariz.
at 540, 633 P.2d at 349, quoting Ross v. Moffitt, 417 U.S. 600, 616, 94
S.Ct. 2437, 2447, 41 L.Ed.2d 341 (1974).
 Because a mistrial effectively serves as a "dry run" of the
State's case, a transcript is ordinarily considered invaluable as a
discovery device and tool for impeaching prosecution witnesses at the
subsequent trial. Britt, 404 U.S. at 228, 92 S.Ct. at 434. But when the
transcript sought is that for an unrelated charge--even against the same
defendant--the crime, victim(s), time, place, facts, and witnesses are
ordinarily different. Thus, the rationale for the presumption of need
does not apply to a transcript of the defendant's trial on unrelated
charges. Its value must be established, and unless the defendant
demonstrates a specific need for the trial transcript, the court does
not err in concluding that the transcript is not necessary for an
effective defense. The mere fact that a witness who testified at the
first, unrelated trial may be called at the second is not sufficient for
a presumption of value. See Fisher v. Hargett, 997 F.2d 1095, 1098 (5th
Cir.1993) (free transcript of a prior trial involving a different victim
and offense at a different time not constitutionally required);
McAllister v. Garrison, 569 F.2d 813, 815 (4th Cir.1978) (holding that
defendant must **303 *181 make a reasonable showing of transcript's
value even though common witnesses called), cert. denied, 436 U.S. 928,
98 S.Ct. 2824, 56 L.Ed.2d 771 (1978). When asking for a free transcript
of an unrelated trial, therefore, a defendant may be required to
demonstrate some reasonable probability of defense value.
Defendant said he needed the robbery trial transcript because the State
intended to call common witnesses from the armed robbery trial. Despite
the judge's request, Defendant made no further showing of particularized
need for the transcript. Without a sufficient showing of the
transcript's value for an effective defense, the judge did not err in
denying Defendant a free copy. We reach this conclusion, as we must,
the same way the judge did, on the record as it then existed.
Although the robbery victim did not testify at the homicide trial, three
other witnesses testified at both trials. At the murder trial, one of
these witnesses, Defendant's roommate John Meacham, testified that he
overheard Defendant make an inculpatory statement. The same prosecutor
had elicited similar testimony from Meacham at the robbery trial.
Defendant argues that the statements attributed to him by Meacham refer
to the same incident but were introduced at two separate trials to prove
two separate crimes. Because Defendant had different lawyers at each
trial, his trial lawyer in the present case may not have known about
Meacham's previous testimony without reading the transcript.
 Defendant is
correct that the transcript of Meacham's robbery trial testimony might
have alerted defense counsel that the State was making inconsistent use
of Meacham's testimony. Thus the transcript might have helped impeach
Meacham at the murder trial. [FN11] His testimony at both trials was
offered to prove Defendant's culpability in unrelated crimes. But
neither Defendant nor the trial judge could have reasonably anticipated
that the prosecutor would make inconsistent use of the same testimony.
Because the prosecutor did not inform the court of his intent to elicit
the same testimony from an unrelated trial, the court had no way of
knowing that the requested transcript might help the defense. If the
transcript would have been valuable to Defendant, any prejudice caused
by the denial of a free copy was attributable not to the trial judge,
who ruled correctly on the record before her, but to the prosecutor.
Thus, we find no equal protection violation.
FN11. We note that the
transcript would have been of no value to Defendant insofar as it
pertained to the testimony of two of the common witnesses. These
witnesses were police officers who had been involved in the robbery and
murder investigations. They testified at this trial only about items
seized in the murder investigation. The robbery trial transcripts of
these two witnesses would have been useless to the defense for discovery
or impeachment purposes.
C. Defendant's inculpatory statement--judicial estoppel and
At Defendant's prior armed robbery trial Meacham testified that he
overheard Defendant say, "I tried to get this old man to do what I
wanted him to do, but he wouldn't do it." State v. Towery, Maricopa
County No. CR 91- 02512, R.T., Mar. 10, 1992, at 98. At the homicide
trial, Meacham was again called to testify. His testimony approximated
the testimony he gave in the armed robbery trial: he said that he heard
Defendant tell Barker that he was "having a hard time with an old man so
he had--he had a hard time tying him up, so he had to knock him down."
The victims of both crimes were older men.
Because Defendant had different counsel at the two trials and was denied
a transcript of the robbery trial, we must assume that his trial
attorney in the present case did not know the substance of Meacham's
testimony at the robbery trial. Moreover, before putting Meacham on the
stand in the murder trial, the prosecutor failed to notify the court or
defense counsel that he would present evidence of the same admission
Meacham described in the robbery trial. The context of Meacham's
testimony at both trials makes it quite clear, and the State concedes,
that Meacham heard one admission about one crime. But the admission was
used in two trials to help prove two unrelated criminal acts. Defendant
claims that by presenting evidence of a single incident at two separate
**304 *182 trials to prove two separate, unrelated crimes, the
prosecutor violated Defendant's due process rights and the doctrine of
estoppel by engaging in misconduct.
1. Judicial Estoppel
 Defendant argues that "the prosecutor [used] the same evidence to
convict the appellant of two separate crimes ... attempting to prove a
fact in one trial and seeking to prove an inconsistent fact in another
trial with the same evidence." Opening Brief at 32. The error in using
the evidence, in Defendant's words, is that it " 'perverts' the
integrity of our system of jurisprudence." Id. at 35. Protecting the
integrity of the judicial process is the universally recognized purpose
of judicial estoppel. See, e.g., 18 C. WRIGHT, A. MILLER & E. COOPER,
FEDERAL PRACTICE AND PROCEDURE § 4477 (1981 and Supp.1990); 1B J.
MOORE, J. LUCAS & T. CURRIER, MOORE'S FEDERAL PRACTICE 405, at 239,
240 (2d ed.1988); Scarano v. Central R.R., 203 F.2d 510, 513 (3d
 Judicial estoppel prevents a party from taking an
inconsistent position in successive or separate actions. This court has
long recognized that
[a]s a general rule,
a party who has assumed a particular position in a judicial proceeding
is estopped to assume an inconsistent position in a subsequent
proceeding involving the same parties and questions.
Martin v. Wood, 71
Ariz. 457, 459, 229 P.2d 710, 711-12 (1951) (citing 31 C.J.S. ESTOPPEL §
119, at 381). Judicial estoppel is not intended to protect individual
litigants but is invoked to protect the integrity of the judicial
process by preventing a litigant from using the courts to gain an unfair
advantage. See 31 C.J.S. ESTOPPEL § 121, at 260; see also Yanez v.
United States, 989 F.2d 323, 326 (9th Cir.1993); Yniguez v. Arizona,
939 F.2d 727, 739 (9th Cir.1991); Russell v. Rolfs, 893 F.2d 1033, 1037
(9th Cir.1990), cert. denied, 501 U.S. 1260, 111 S.Ct. 2915, 115 L.Ed.2d
1078 (1991); In re Cassidy, 892 F.2d at 641. Although judicial
estoppel is usually invoked in civil cases, [FN12] courts have also
applied it in criminal cases. See, e.g., State v. Washington, 142
Wis.2d 630, 419 N.W.2d 275, 277 (App.1987).
FN12. See, e.g., State
v. Ellison, 26 Ariz.App. 547, 549, 550 P.2d 101, 103 (1976).
 The doctrine's application to criminal cases usually involves a
defendant who asserts one position at trial and another on appeal. See
Harrison v. Labor & Indus. Review Comm'n, 187 Wis.2d 491, 523 N.W.2d
138, 140 (App.1994). Nonetheless, criminal courts have indicated that
judicial estoppel would preclude the state from changing its version of
the facts in separate proceedings involving the same matter to protect
the defendant's right to due process. See People v. Gayfield, 261
Ill.App.3d 379, 199 Ill.Dec. 123, 128-29, 633 N.E.2d 919, 924-25 (1994)
(suggesting that the state would be estopped from inconsistently
claiming in separate proceedings that different defendants shot the same
victim); Russell v. Rolfs, 893 F.2d at 1037-39 (state prohibited from
arguing that criminal defendant's appellate petition is procedurally
barred in state court after successfully arguing in district court that
defendant had an adequate state remedy).
We believe the doctrine of judicial estoppel is no less applicable in a
criminal than in a civil trial. Any other rule would permit absurd
results. For example, if the state had evidence that a defendant
admitted robbing the convenience store, absent judicial estoppel the
state could use that evidence to convict the defendant of every
convenience store robbery in the city, affirming the evidence as
relevant in each case, all the while knowing that the defendant made
only one admission of a single act.
 Three requirements must exist before the court can apply
judicial estoppel: (1) the parties must be the same, (2) the question
involved must be the same, and (3) the party asserting the inconsistent
position must have been successful in the prior judicial proceeding.
See Standage Ventures, Inc. v. State, 114 Ariz. 480, 562 P.2d 360
(1977). In the present case the parties are the same. Because
Defendant's admission could only pertain to one of the crimes, the
question involved in both proceedings is also the same: did Defendant
admit committing **305 *183 the charged crime in Meacham's presence?
However, even though the parties and the questions are the same, a
majority of courts, including Arizona, refuse to invoke judicial
estoppel unless the position first asserted was successfully maintained.
[FN13] Taylor v. State Farm Mutual Auto. Ins. Co., 182 Ariz. 39, 44, 893
P.2d 39, 44 (App.1995),vacated in part, 185 Ariz. 174, 913 P.2d 1092
FN13. The minority
view allows judicial estoppel "even if the litigant was unsuccessful in
asserting the inconsistent position, if by his change of position he is
playing 'fast and loose' with the court." Keenan v. Allan, 889 F.Supp.
1320, 1360 (E.D.Wash.1995), quoting Morris v. California, 966 F.2d 448,
452-53 (9th Cir.1991), cert. denied, 506 U.S. 831, 113 S.Ct. 96, 121
L.Ed.2d 57 (1992).
 The prior position was successfully maintained only if the party
gained judicial relief as a result of asserting the particular position
in the first proceeding. See id. at 44, 893 P.2d at 44; Standage, 114
Ariz. at 484, 562 P.2d at 364; State Farm Auto. Ins. Co. v. Civil
Service Employees Ins. Co., 19 Ariz.App. 594, 600, 509 P.2d 725, 731
(1973). Prior success has also been defined as requiring that the court
in the prior action accepted the first position. Edwards v. Aetna Life
Ins. Co., 690 F.2d 595, 598 (6th Cir.1982); see also Chaveriat v.
Williams Pipe Line Co., 11 F.3d 1420, 1427 (1993) (litigant must obtain
victory on prior ground); Rand G. Boyers, Precluding Inconsistent
Statements: The Doctrine of Judicial Estoppel, 80 NW. U.L. REV. 1244,
1256 (1986) (the requirement of prior judicial acceptance "is satisfied
whenever a prior court 'has adopted the position [contrary to that now]
urged by that party, either as a preliminary matter or as part of a
final disposition.' ") (citations omitted) (alterations by author).
 Prior success is a prerequisite to the application of judicial
estoppel because absent judicial acceptance of the prior position, there
is no risk of inconsistent results. See Edwards, 690 F.2d at 599; see
also Boyers, supra, 80 NW. U.L. REV. at 1253. Because the judicial
process is unimpaired absent inconsistent results, and because judicial
estoppel is recognized to protect the integrity of the judicial process,
invocation of the doctrine is unwarranted without prior success on--or
judicial acceptance of-- the first position. See USLIFE Corp. v. U.S.
Life Ins. Co., 560 F.Supp. 1302, 1305 (N.D.Tex.1983) (citing Edwards,
690 F.2d at 599); C. WRIGHT, A. MILLER & E. COOPER, FEDERAL PRACTICE &
PROCEDURE § 4477 (1983).
 The guilty verdict on the armed robbery charge establishes that
the jury accepted the State's position that Defendant committed that
crime. The robbery verdict does not, however, establish that
Defendant's admission to committing the armed robbery was a key element
of the guilty verdict. Indeed, it is entirely possible that the jury in
that case gave little or no consideration to Meacham's testimony,
especially if his testimony constituted only an insignificant fraction
of the total evidence offered to establish Defendant's guilt. See
Boyers, supra, NW. U.L. REV. at 1257. For this reason, judicial
estoppel is generally not applied when the first inconsistent position
was not a significant factor in the initial proceeding. Id. at 1263.
court, keeping in mind the 'unnecessary hardship' that may result from
invoking judicial estoppel when the position was unimportant in the
initial proceeding, determines whether the importance of the issue in
the particular case justifies invocation of the doctrine.
Id. (citations omitted).
Thus, to determine if the prior success requirement for invocation of
judicial estoppel was met in the armed robbery trial, this court must
examine the record of that trial to determine whether Meacham's
testimony was arguably significant to the jury's determination of
Defendant's guilt. Id. In other words, can we conclude that the
judicial relief obtained by the State in the armed robbery conviction
was arguably due to Meacham's testimony? See Standage, 114 Ariz. at
484, 562 P.2d at 364. [FN14)
FN14. Although Defendant supplemented his brief with the portion of the
transcript of the armed robbery trial containing Meacham's examination,
he did not provide this court with the entire transcript. We later
ordered that the record of Defendant's prior armed robbery trial be
produced in its entirety and included as part of this record.
**306 *184 Having reviewed the entire record of the armed robbery trial,
it is clear that Meacham's testimony was an insignificant factor in
obtaining a conviction in that trial. All four robbery victims
separately identified Defendant from a photographic line-up. They also
testified at trial. When Defendant was arrested for the armed robbery,
he had four credit cards of one of the victims in his wallet. In his
home police found a gun identified by one of the victims as the gun used
in the robbery, as well as clothing similar to that worn by the
perpetrator of the robbery. Defendant also had a police scanner on his
person when arrested; the robbery victims noted that the robber had an
identical police scanner with him at the time of the crime. The license
plate of the car Defendant drove to the robbery matched that of Barker's
car, and Meacham testified that Defendant had access to Barker's car.
Meacham's testimony about Defendant's admission came in as an
unresponsive answer to a single question and was never mentioned again
in the examination of Meacham or any other witness. The prosecutor
never referred to Defendant's alleged admission in his opening statement
or closing argument.
 We conclude that Meacham's testimony about Defendant's inculpatory
statement was at most an insignificant factor in light of the
overwhelming evidence of Defendant's guilt on the armed robbery charge.
Because judicial estoppel is to be invoked cautiously, on these facts we
are unprepared to say that the prior position was successfully
maintained. We therefore decline to invoke judicial estoppel here to
preclude Meacham's testimony at the murder trial. Thus, we examine
whether the prosecutor's actions constituted misconduct justifying
2. Prosecutorial misconduct
 At oral argument before this court, the State conceded that the
prosecutor elicited testimony of an admission about a single incident to
help establish Defendant's guilt of two unrelated crimes. The
prosecutor justified his actions by telling this court that he had been
mistaken about presenting Defendant's admission at the robbery trial.
As the murder investigation developed, the prosecutor became less
convinced that Defendant's admission related to the armed robbery and
more convinced that Defendant had been describing events of the murder.
The State supported its use of Defendant's admission at the murder trial
because it was made after the murder, better fit the facts of the
murder, [FN15] and was therefore relevant evidence in the murder trial.
The State submits it was for the jury to decide what weight to give
Meacham's testimony. Further, the State argues that Defendant was free
to ask Meacham questions that would have explained the alleged
admission, thereby attributing the admission to the robbery rather than
to the murder.
FN15. The prosecutor explained at oral argument that the oldest victim
of the previous crime was 55 years old. Jones was 68 years old when he
was murdered. Defendant's reference to an "old man" convinced the
prosecutor that Defendant had been discussing Jones rather than the
robbery victim when Meacham overheard him.
Even accepting the prosecutor's assertion that he decided in good faith
that the inculpatory statement referred to the murder charge, we believe
it improper for the State to fail to first notify defense counsel and
the court of its intent to use evidence in this manner. While the
robbery conviction awaited review by the court of appeals, the
prosecutor made no effort to inform that court or defense counsel that
he believed the admission did not relate to the robbery but to the
murder, and had been improperly admitted in the first trial and properly
used in the second. Nor did the prosecutor raise the matter after
affirmance of the robbery conviction by the court of appeals. State v.
Towery, No. 1 CA-CR 92-0831, Mem. Dec. (Ct.App. filed Sept. 29, 1994).
When Defendant petitioned us to review that case, the State did not
inform this court that Defendant's robbery conviction may have been
based in part on improperly admitted evidence. This court denied review
on March 21, 1995. If Defendant's inculpatory statement referred to the
murder case, as the State now argues, the prosecutor should have
informed the court and Defendant that he had presented irrelevant
evidence at the robbery trial. At the very least, the prosecutor **307
*185 had a duty to give notice in one case or the other that the
admission of a single incident had been used to help convict Defendant
of unrelated charges. His failure to give notice in either case
 Having concluded that the prosecutor's actions constituted
misconduct, we consider whether Defendant suffered prejudice mandating a
new trial. See Ariz. R.Crim. P. 24.1. We are not eager to reverse a
conviction on grounds of prosecutorial misconduct as a method to deter
such future conduct. See State v. Valdez, 160 Ariz. 9, 14, 770 P.2d
313, 318 (1989). Rather, absent structural error, we usually will not
reverse if the error was harmless. Id. Error is harmless if we can
conclude beyond a reasonable doubt that it did not contribute to or
affect the verdict. State v. Bible, 175 Ariz. 549, 588, 600, 858 P.2d
1152, 1191, 1203 (1993), cert. denied, 511 U.S. 1046, 114 S.Ct. 1578,
128 L.Ed.2d 221 (1994). In the murder trial, even had defense counsel
been aware of the prior use of Meacham's testimony, the State would
probably have been permitted, over defense objection, to elicit the same
testimony from Meacham by disavowing the relevance of the testimony in
the armed robbery trial and placing the reviewing court on notice so it
could be considered in Defendant's appeal of that conviction. See Ariz.
R. Evid. 401, 403.
Had defense counsel in the present case been aware of the prior
inconsistent use of Meacham's testimony, however, he could have
impeached Meacham with his prior testimony to raise doubts about whether
the admission related to the murder. But after the prosecutor brought
out Meacham's testimony in the murder trial, Defendant elicited the
following from Meacham on cross-examination:
Q. Do you know for sure that [he was] talking about Mr. Jones [the
A. I thought [he was] talking about when [he] got busted before.
Q. So, in fact, you didn't think [he was] talking about Mr. Jones?
A. No, sir, I didn't.
R.T., Aug. 11, 1992, at 40. On re-direct, the prosecutor tried to
rehabilitate the witness by showing that for all Meacham knew, Defendant
might have been discussing events of the murder, but he got no more than
Q. Okay. The conversation that you overheard, was it before or after all
of this property came into the house?
A. I believe it was after.
Q. And you don't really know what the conversation that you heard
pertains to, do you?
A. No, sir.
R.T., Aug. 11, 1992, at 41.
Thus, both the defense attorney and the prosecutor elicited testimony
indicating Meacham either believed Defendant admitted some crime other
than the charged murder or was not sure what Defendant was admitting.
Any impeachment defense counsel would have obtained from having known of
the testimony in the prior trial was effectively achieved. Accordingly,
we conclude beyond a reasonable doubt that the prosecutor's misconduct
did not affect the verdict. See Bible, 175 Ariz. at 588-90, 858 P.2d at
 Because the prosecutor's misconduct did not violate any of
Defendant's constitutional rights resulting in reversible error, and
because judicial estoppel would not preclude Meacham's testimony in the
murder trial, Defendant has no remedy with respect to his murder
conviction on this ground. Rather, when error that is harmless results
from prosecutorial misconduct, the proper remedy is to report the
offender to the state bar for possible sanctions, which we have done.
Valdez, 160 Ariz. at 14, 770 P.2d at 318.
 Defendant also objects to the State's use of his statement at
the sentencing hearing to prove the murder was committed in an
especially cruel, heinous, or depraved manner under A.R.S. §
13-703(F)(6). If Defendant's admission referred to an unrelated crime,
it cannot be used to prove an aggravating factor for this crime. See
Bible, 175 Ariz. at 604, 858 P.2d 1152 at 1207 (the special
circumstances of cruelty, heinousness, or depravity apply to the
defendant's actions during the offense). Although the trial judge **308
*186 found beyond a reasonable doubt that the murder was especially
cruel, heinous, and depraved, the special verdict indicates that the
judge did not rely on the disputed statement to prove this aggravator.
Under these circumstances, we find no error.
D. Admission of late evidence
The State failed to timely disclose two pieces of evidence admitted by
the trial judge: blood stains on a glove belonging to Defendant and
fingerprints on a compact disk player case removed from Jones' car.
Under Ariz. R.Crim. P. 15.1, the prosecutor should have disclosed this
evidence, the names of the experts who examined it, and the reports or
statements relating to it within ten days after Defendant's October 11,
1991 arraignment. The prosecutor did not disclose the fingerprint
evidence until July 28, 1992 and the blood evidence until July 30, 1992,
less than a week before trial began. Defendant moved to preclude this
evidence on July 31. We note this was the only sanction Defendant
requested; he did not ask for a continuance. Defendant contends the
late disclosure and admission of this evidence deprived him of due
process, requiring the verdict and sentence to be set aside.
 Rule 15.7 of the Arizona Rules of Criminal Procedure
authorizes the trial court to sanction a party who does not timely
disclose material relevant to the case. If a sanction is warranted, it
should have a minimal effect on the evidence and merits of the case.
State v. Smith, 140 Ariz. 355, 358-59, 681 P.2d 1374, 1377-78 (1984).
Precluding evidence is rarely an appropriate sanction. State v. Fisher,
141 Ariz. 227, 246, 686 P.2d 750, 769, cert. denied, 469 U.S. 1066, 105
S.Ct. 548, 83 L.Ed.2d 436 (1984); but see State v. Killean, 185 Ariz.
270, 915 P.2d 1225 (1996) (approving trial court's preclusion of
corroborative documentation evidence when defense counsel failed to
record existence of such evidence, willfully violating discovery
rules). Denial of a sanction is generally not an abuse of discretion if
the trial court believes the defendant will not be prejudiced. Id.
Absent a showing of abuse by the trial court, we will not disturb the
trial court's choice of sanction or its decision not to impose a
sanction. State v. Tucker, 157 Ariz. 433, 439, 759 P.2d 579, 585
 Before sanctioning the offering party, the court should
consider (1) the importance of the evidence to the prosecutor's case,
(2) surprise or prejudice to the defendant, (3) prosecutorial bad faith,
and (4) other relevant circumstances. Smith, 140 Ariz. at 358-59, 681
P.2d at 1377- 78. [FN16] Before admitting the evidence, the trial judge
heard arguments from both sides and found no prejudice to Defendant from
the late disclosure. After examining the four Smith factors, we agree
with the trial judge's conclusion.
FN16. These factors were enumerated in a case in which the defendant
discovered an exculpatory witness during trial and moved to permit him
to testify. Later cases have drawn on Smith when undisclosed witnesses
have been called to testify. This case is somewhat different because
the State's experts and the nature of their involvement were known
to Defendant's counsel well before trial. Nonetheless, we find the
Smith factors helpful to our analysis here.
 First, the State conceded that the evidence was of little
importance to its case. Neither the blood on the glove, which had not
been analyzed for blood group type, nor the fingerprint found on the
compact disk case removed from the Lincoln, provided a physical link to
the murder. Next, because Defendant had been given timely notice of the
identity of the State's latent print and blood experts, he should not
have been surprised when they were called to testify about their
findings. However, because neither the prosecutor nor the defense
learned about the experts' findings until shortly before trial,
Defendant could have been prejudiced had he been deprived of an
opportunity to have his own experts study the evidence. When the trial
judge asked Defendant how the late disclosure prejudiced him, he replied
only that he was surprised by the experts' late reports. Thus, there is
no indication of actual prejudice from the late disclosure. Further,
Defendant offered no evidence of prosecutorial bad faith, and the trial
judge found none. The prosecutor may be held accountable for the
negligence of the State's blood expert, who waited until the last minute
before *187 **309 transmitting his nine-month-old report. See State v.
Castaneda, 111 Ariz. 264, 266, 528 P.2d 608, 610 (1974) (prosecutor
admonished for failing to use sufficient effort to keep apprised of the
evidence). But because the defense's investigation of the evidence was
not impaired by the State's delay, we find no prejudice to Defendant.
In sum, the de minimis value of the evidence, Defendant's failure to
show how its late disclosure hindered his defense, and the absence of
prosecutorial misconduct on this issue lead us to conclude that the
judge acted within her discretion in admitting the evidence without
Defendant further contends that the blood evidence lacked relevance and
should not have been admitted. The State's blood expert testified only
to the existence of human blood on the glove, not to its type or any
other information that might have shown Defendant had physical contact
with Jones. Arguing the glove served only to inflame the jury,
Defendant contends the judge erred by not weighing its probative value
against its potential for unfair prejudice, as required by Ariz. R.
Evid. 403 and State v. Chapple, 135 Ariz. 281, 288, 660 P.2d 1208, 1215
(1983) ("the correct rule is that exhibits which may tend to inflame the
jury must first be found relevant"). The record indicates that the
blood spot was unremarkable and could only be seen on close inspection
of the glove. We find that the glove was not inflammatory. Although
the evidence had little probative value, we find no error in admitting
 When seeking the death penalty, the State must prove
aggravating circumstances listed in A.R.S. § 13-703(F) beyond a
reasonable doubt. State v. Kiles, 175 Ariz. 358, 369, 857 P.2d 1212,
1223 (1993), cert. denied, 510 U.S. 1058, 114 S.Ct. 724, 126 L.Ed.2d 688
(1994). Defendant has the burden of proving any statutory or
non-statutory mitigating circumstances by a preponderance of the
evidence. Id. at 373, 857 P.2d at 1227; A.R.S. § 13-703(G). The death
penalty is required if at least one aggravating factor is found and the
mitigating circumstances are not sufficiently substantial to call for
leniency. A.R.S. § 13-703(E). This court conducts an independent
review of the aggravating and mitigating factors in all capital cases to
determine whether the death penalty is warranted. State v. Wood, 180
Ariz. 53, 68, 881 P.2d 1158, 1173 (1994).
A. Aggravating circumstances
1. The cruel, heinous, or depraved aggravating factor
 Defendant challenges the trial judge's finding that he committed
the murder in an especially cruel, heinous, or depraved manner. A.R.S.
§ 13- 703(F)(6). The judge determined that Jones was conscious until
the second strangulation; she also found that ransacking Jones' house
while he was bound, leaving him to agonize over his fate, sticking him
several times with a hypodermic needle, and strangling him twice caused
terror and horror in Jones' mind. The judge concluded that these events
satisfied the meaning of cruelty under our case law. Special Verdict,
Nov. 20, 1992, at 33-34. The judge also found that strangling rather
than shooting the victim, leaving the victim's pants unzipped before
laying him on his bed, attempting to inject an unidentified substance
into him, and post-offense statements made to friends and roommates
justifying and relishing the murder sufficiently demonstrated
Defendant's depraved mental state and attitude, setting this case
outside the usual first-degree murder. Id. at 34-35.
 Defendant argues that the judge's findings lack sufficient
support. First, Defendant argues that the facts of this case do not
support a finding of cruelty because they do not show beyond a
reasonable doubt that Jones suffered mental anguish and terror.
Defendant cites a number of cases describing circumstances this court
has found to be especially cruel, claiming this case does not come
close. Second, Defendant argues that the facts do not satisfy the
Gretzler factors to support a finding of heinous and depraved. See
State v. Gretzler, 135 Ariz. 42, 52, 659 P.2d 1, 11, cert. denied, 461
U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). We need not reach the
heinous or depraved elements if we find cruelty beyond a reasonable
doubt. Kiles, 175 Ariz. at 370, 857 P.2d at 1224*188 **310 (finding
beyond a reasonable doubt any one of the three elements of §
13-703(F)(6) is sufficient to constitute an aggravating circumstance).
 We have held that:
murder is committed in an especially cruel manner if the perpetrator
inflicts mental anguish or physical pain upon the victim before the
victim's death. Mental anguish includes a victim's uncertainty about
[his] ultimate fate.
Id. at 371, 857 P.2d at 1213 (internal citations omitted). A finding of
cruelty requires conclusive evidence that the victim was conscious and
suffered mental or physical pain at the time of the offense. Bible, 175
Ariz. at 604, 858 P.2d at 1207.
Barker testified that Jones did not struggle or appear to be breathing
when Defendant strangled him the second time. Barker heard him gagging
the first time he was strangled. The medical examiner testified that
Jones could have been conscious while being strangled the second time,
but he could offer no evidence of Jones' actual consciousness. Other
evidence, however, convincingly shows that Jones suffered extreme mental
and physical pain. He was conscious when the two men with a gun
confronted him in his home, bound his hands behind his back, took him
upstairs, asked him whether he wanted to be left tied or put to sleep,
placed him face down on his bed, and pushed his head down while pulling
on the tie to strangle him. He was conscious while Defendant stabbed
his arms several times to inject a mystery substance. Defendant
believed Jones was conscious after the injections because he heard Jones
snoring, pretending to be asleep, even though Defendant had injected no
sleeping medication. Jones was therefore conscious when he was
strangled the first time. These events certainly caused Jones mental
anguish about his fate, and the needle punctures and first strangulation
caused him physical suffering. We find beyond a reasonable doubt that
Defendant inflicted mental anguish and physical pain on the victim and
that the murder was therefore committed in an especially cruel manner.
Thus, the (F)(6) aggravating factor is satisfied, and we need not
consider whether the murder was committed in an especially heinous or
2. Other aggravators
 We also find ample support for the other aggravators. It is
undisputed that Defendant was convicted of armed robbery, involving the
threat of violence, while on parole, making him eligible for a life
sentence. That conviction now makes him eligible for the death
penalty. A.R.S. § 13- 703(F)(1) and (2).
 Defendant also does not dispute that the murder was prompted by a
desire for and an expectation of pecuniary gain. Killing for financial
gain is an aggravating factor for imposing the death sentence. A.R.S. §
13- 703(F)(5); State v. White, 168 Ariz. 500, 510-11, 815 P.2d 869,
879-80 (1991), cert. denied, 502 U.S. 1105, 112 S.Ct. 1199, 117 L.Ed.2d
439 (1992). A pecuniary motive took Defendant to the victim's house and
was the impetus for his other conduct during the ensuing robbery and
killing. This qualifies him for the death penalty. State v. Fierro,
166 Ariz. 539, 551, 804 P.2d 72, 84 (1990).
B. Mitigating circumstances
 We independently weigh the mitigating evidence against the
aggravating circumstances to determine whether leniency is called for.
State v. Barreras, 181 Ariz. 516, 520-21, 892 P.2d 852, 856-57 (1995).
1. Defendant's abusive family background
The trial judge considered evidence of Defendant's abusive family
background and did not find mitigating value in it. Citing a line of
Supreme Court cases [FN17] requiring courts to consider family history
for independent mitigating weight, Defendant calls the judge's finding
unconstitutional. Although the judge rejected the evidence as a
mitigating factor because he failed to establish a nexus between his
family background and his crime, **311 *189 Defendant argues that the
judge violated the law.
FN17. Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256
(1989); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1
(1982); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973
 Defendant misconstrues the Supreme Court cases culminating
in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256
(1989). They hold only that "a sentencer may not be precluded from
considering, and may not refuse to consider, any relevant mitigating
evidence offered by the defendant as a basis for a sentence less than
death." Id. at 318, 109 S.Ct. at 2946. Having considered family
background during the penalty phase, the sentencer must give the
evidence such weight that the sentence reflects a "reasoned moral
response" to the evidence. Id. at 319, 109 S.Ct. at 2947. The sentencer
therefore must consider the defendant's upbringing if proffered but is
not required to give it significant mitigating weight. How much weight
should be given proffered mitigating factors is a matter within the
sound discretion of the sentencing judge. State v. Atwood, 171 Ariz.
576, 648, 832 P.2d 593, 665 (1992).
 We have held that a difficult family background is not always
entitled to great weight as a mitigating circumstance. State v.
Wallace, 160 Ariz. 424, 426-27, 773 P.2d 983, 985-86 (1989) ("A
difficult family background is a relevant mitigating circumstance if a
defendant can show that something in that background had an effect or
impact on his behavior that was beyond the defendant's control."), cert.
denied, 494 U.S. 1047, 110 S.Ct. 1513, 108 L.Ed.2d 649 (1990). We have
since reaffirmed that family background may be a substantial mitigating
circumstance when it is shown to have some connection with the
defendant's offense-related conduct. White, 168 Ariz. at 512-13, 815
P.2d at 881-82.
 Defendant has failed to connect his family background to his
criminal conduct. Defendant's sisters testified at the sentencing
hearing that he was a small child with dyslexia and a bed-wetting
problem and that he was physically and mentally abused by his overweight
and diabetic mother. One sister related that his mother forced him to
kneel in a box of rice when he complained that his leg hurt after
falling from a wagon, and that she gagged him with a sock and bound his
hands in the back of the car while on a family trip. These events,
however, occurred when Defendant was young, years before he robbed and
murdered at the age of 27. They do not prove a loss of impulse control
or explain what caused him to kill. The trial judge considered this
background and gave it little or no mitigating value. We do not
2. Other mitigating circumstances
 The trial judge considered all the statutory mitigating factors
under § 13-703(G) and gave them no weight. She found some mitigation in
Defendant's drug use because it may have impaired his ability to conform
his conduct to the requirements of the law. She found Barker's
disproportionate sentence in relation to Defendant's a mitigating
circumstance and gave it significant weight. Nonetheless, she concluded
that the mitigating evidence was not sufficiently substantial to require
leniency, even if any combination of only two aggravating factors is
affirmed by this court.
We have examined the record for mitigating circumstances and find the
rather sparse evidence insufficient to overcome the weight of the
aggravating circumstances. We therefore affirm the death sentence.
C. Summary issues
To preserve issues, Defendant also raised the following arguments, which
we summarily reject. See Atwood, 171 Ariz. at 645 n. 21, 832 P.2d at
662 n. 21.
1. The equal protection clause requires sentencing by a jury
This claim has no logical basis and has been rejected in State v.
Landrigan, 176 Ariz. 1, 6, 859 P.2d 111, 116, cert. denied, 510 U.S.
927, 114 S.Ct. 334, 126 L.Ed.2d 279 (1993).
2. Arizona's death penalty statute insufficiently channels the
This claim has been rejected in West, 176 Ariz. at 454, 862 P.2d at 214,
and State v. **312 *190 Greenway, 170 Ariz. 155, 164, 823 P.2d 22, 31
3. The death penalty violates Defendant's Eighth Amendment right against
cruel and unusual punishment
This claim has been rejected by the United States Supreme Court in
Walton v. Arizona, 497 U.S. 639, 655-56, 110 S.Ct. 3047, 3058, 111
L.Ed.2d 511 (1990), and we reject it now.
As required by A.R.S. § 13-4035, we have searched the record for
fundamental error and have found none. [FN18] Of the issues raised by
Defendant on appeal, none requires reversal. We therefore affirm
Defendant's first-degree murder conviction and the death sentence.
FN18. The convictions
in this capital case were appealed, briefed, and argued before the
effective date of the repeal of A.R.S. § 13-4035. See 1995 Laws, ch.
198, § 1.
MOELLER and MARTONE, JJ., and CORCORAN, J. (Retired), concur.