State Of Ariz. v. Womble

• Citation: 235 P.3d 244,225 Ariz. 91
• Decision Date: 12 July 2010
• Docket Number: No. CR-07-0139-AP.,CR-07-0139-AP.
• Parties: STATE of Arizona, Appellee,v.Brian Allen WOMBLE, Appellant.
• Court: Supreme Court of Arizona

225 Ariz. 91

235 P.3d 244

STATE of Arizona, Appellee,v.Brian Allen WOMBLE, Appellant.

No. CR-07-0139-AP.

Supreme Court of Arizona En Banc.

July 12, 2010.

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Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section, John Pressley Todd, Assistant Attorney General, Phoenix, Attorneys for State of Arizona.

James J. Haas, Maricopa County Public Defender by Peg Green, Deputy Public Defender, Tennie B. Martin, Deputy Public Defender, Phoenix, Attorneys for Brian Allen Womble.

OPINION

RYAN, Justice.

¶ 1 Brian Allen Womble was convicted of first degree murder and sentenced to death. This is an automatic appeal under Arizona Rules of Criminal Procedure 26.15 and 31.2. This Court has jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and Arizona Revised Statutes (“A.R.S.”) section 13-4031 (2010).

I¹

A

¶ 2 On March 14, 2002, Paul Bradley Speer and his half-brother, Chris Womble burglarized Adan and Enriqueta Soto's apartment and were arrested shortly thereafter. While awaiting trial, Speer was incarcerated in the Maricopa County jail.

¶ 3 Telephone calls made by inmates in the jail were recorded. Speer called Brian Womble, his other half-brother, many times between March and June 2002. Detectives later identified these calls and reviewed their content.

¶ 4 Speer initially asked Womble to speak with the Sotos to persuade them not to testify. By the end of April 2002, however, Speer and Womble had moved to “Plan B,” which was to kill the Sotos. On May 5, Speer told Womble to get his “heat” from a safe deposit box. A week later, Speer urged Womble to “make sure [to] take care of everybody in that house.” Womble told Speer he planned to make a silencer.

¶ 5 On May 17, the brothers debated different plans to get Womble inside the Sotos' apartment. A week later, Womble assured Speer that he would follow through with the plan that night. Sometime before 5:00 a.m. on May 25, Womble broke into the apartment and shot Mr. and Mrs. Soto while they were asleep. Mr. Soto died, and Mrs. Soto was critically injured. The Sotos' baby, who was sleeping with them in their bed, was uninjured.

¶ 6 Womble and Speer referred to the murder several times during subsequent calls. The day after the murder, Womble confirmed that he had “fixed both parts.” Speer advised Womble to get rid of his guns. During a June 10 telephone call, Womble told Speer that Mrs. Soto was still alive.

¶ 7 Womble was indicted for first degree murder, attempted first degree murder, conspiracy to commit first degree murder, burglary, misconduct involving weapons and two counts of aggravated assault.² On April 26, 2007, the jury returned guilty verdicts on all charges.³

¶ 8 During the aggravation phase, the jury unanimously found three aggravating circumstances proved beyond a reasonable doubt: (1) Womble committed the offense while on probation for a felony offense, A.R.S. § 13-751(F)(7)(b) (2010); ⁴ (2) in the commission of the offense, Womble knowingly created a grave risk of death to the Sotos' infant son, § 13-751(F)(3); and (3) the murder was committed in an especially heinous or depraved manner, § 13-751(F)(6).

¶ 9 Womble made a brief allocution during the penalty phase, but otherwise offered no additional evidence or argument for leniency. The jury determined that death was the appropriate sentence.

II

A

¶ 10 Womble first argues that the trial court violated his Sixth Amendment right to confrontation by allowing a detective to testify to statements made by a jail informant. The Court usually reviews Confrontation Clause challenges de novo. State v. Boggs, 218 Ariz. 325, 333 ¶ 31, 185 P.3d 111, 119 (2008). However, because Womble failed to object below on this ground, he must show fundamental error. Id.

¶ 11 At trial, the detective testified that he had not heard of Brian Womble until a jail informant came forward with information. Womble objected on hearsay grounds, and the court overruled the objection. The State then asked how the detective had learned of Womble. The detective named the jail informant and explained that after interviewing him,

I learned that Paul Speer and Christopher Womble had a brother by the name of Brian Womble, and upon further investigation I was able to learn the address and phone numbers associated with Brian Womble, and another detective was able to obtain a court order for listening to phone calls regarding those particular phone numbers.

Womble made no further objections.

¶ 12 The Confrontation Clause of the Sixth Amendment generally precludes the admission of testimonial hearsay unless the defendant had a prior opportunity to cross-examine the unavailable declarant. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Confrontation Clause, however, “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” Id. at 59 n. 9, 124 S.Ct. 1354; see also State v. Tucker, 215 Ariz. 298, 315 ¶ 61, 160 P.3d 177, 194 (2007); State v. Roque, 213 Ariz. 193, 214 ¶ 70, 141 P.3d 368, 389 (2006).

¶ 13 The detective here testified only that the informant told him of Womble's existence, which resulted in the detective seeking a court order to review the jail tapes. The testimony was not offered to prove that Womble was involved in the murder, but rather only to explain why the detective obtained the order to listen to Speer's calls to Womble. The testimony thus did not violate the Confrontation Clause.

B

¶ 14 Womble next contends that the trial court abused its discretion by not suppressing the jail recordings of his conversations with Speer. Womble claims that because nine recordings listened to by the detectives were not preserved, the remaining tapes should not have been admitted.

¶ 15 In June 2002, a detective obtained a court order for the release by a private recording company of jail telephone calls made by Speer to the telephone numbers of Womble's parents and a family friend with whom Womble was living. Several detectives listened to the taped conversations and preserved copies of the relevant ones; the police did not preserve copies of nine calls.

¶ 16 In July 2002, the State gave Womble's attorney copies of the tapes it possessed and provided a supplemental listing of calls the officers had reviewed but not preserved. Womble's attorney then filed a discovery motion under Arizona Rule of Criminal Procedure 15.1(b)(2), seeking “[a]ll statements of the defendant and of any person who will be tried with the defendant.” The private company that kept the tapes had destroyed tapes of those calls not preserved by the officers, under a company policy that called for destruction of tapes not requested by either the defense or the prosecution within six months of their recording.

¶ 17 In 2005, Womble moved to suppress the tapes of the recorded jail calls. At the evidentiary hearing, the detective who requested the court order to review the jail calls testified that he preserved any information related to the homicide, whether inculpatory or exculpatory. Alluding to Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), for the proposition that the “failure to preserve potentially useful evidence does not constitute a denial of due process unless a criminal defendant can show bad faith on the part of the police,” the trial court denied the motion.

¶ 18 Womble contends that the destruction of the tapes requires reversal. We rejected this argument in State v. Speer, 221 Ariz. 449, 457 ¶ 38, 212 P.3d 787, 795 (2009). Womble, like Speer, failed to show that the “destroyed tapes contained material exculpatory evidence or that the police acted in bad faith.” Id. “The mere possibility that destroyed evidence could have exculpated a defendant is insufficient to establish a due process violation.” State v. O'Dell, 202 Ariz. 453, 458 ¶ 13, 46 P.3d 1074, 1079 (App.2002).⁵ The detectives understood what evidence they were required to preserve, and nothing suggests that they failed to preserve tapes of the relevant calls. See Speer, 221 Ariz. at 457 ¶¶ 37-38, 212 P.3d at 795.

C

¶ 19 Womble requested an instruction on second degree murder and attempted second degree murder. The court rejected the request, finding that no rational juror could fail to find premeditation. Womble now argues that a jury could rationally conclude that he led Speer to believe that he was going to kill the Sotos, but intended only to cause serious physical injury or possibly death.

¶ 20 “A sentence of death may not be imposed if the jury was not permitted to consider a lesser-included, non-capital offense and the evidence would have supported such a verdict.” State v. Nordstrom, 200 Ariz. 229, 253 ¶ 81, 25 P.3d 717, 741 (2001) (citing Beck v. Alabama, 447 U.S. 625, 627, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980)). The “key to this rule is ‘whether the jury could rationally fail to find the distinguishing element of the greater offense.’ ” State v. Jones, 203 Ariz. 1, 11 ¶ 37, 49 P.3d 273, 283 (2002) (quoting State v. Murray, 184 Ariz. 9, 34, 906 P.2d 542, 567 (1995)); see also State v. Bearup, 221 Ariz. 163, 168 ¶ 23, 211 P.3d 684, 689 (2009); State v. Landrigan, 176 Ariz. 1, 6, 859 P.2d 111, 116 (1993) ( “ Beck does not require a trial court to instruct on a lesser offense that is unsupported by the evidence.”). In this case, the distinguishing element is premeditation.⁶

¶ 21 Womble and Speer planned the murders of the Sotos during telephone conversations that took place over four weeks. After the murder, Womble made several statements showing he intended to kill the Sotos and thought he had succeeded. Womble also told Speer that killing the Sotos made him feel good. Womble broke into the Sotos' apartment at night, selected the more powerful of his two guns and used ammunition designed to increase internal damage to the...