State v. Brewer, s. CR-88-0308-A

CourtSupreme Court of Arizona
Citation170 Ariz. 486,826 P.2d 783
Docket NumberCR-89-0319-T,Nos. CR-88-0308-A,s. CR-88-0308-A
PartiesSTATE of Arizona, Appellee, v. John George BREWER, Appellant. /AP.
Decision Date28 January 1992

Page 783

826 P.2d 783
170 Ariz. 486
STATE of Arizona, Appellee,
John George BREWER, Appellant.
Nos. CR-88-0308-AP, CR-89-0319-T/AP.
Supreme Court of Arizona, In Banc.
Jan. 28, 1992.
Reconsideration Denied April 8, 1992.

Page 787

[170 Ariz. 490] Grant Woods, Atty. Gen. by Jessica Gifford Funkhouser, Former Chief Counsel, Crim. Div., Paul J. McMurdie, Asst. Atty. Gen., Phoenix, and John Verkamp, Coconino County Atty. by A. Fred Newton, Deputy County Atty., Flagstaff, for State.

Kathleen A. Kelly, Phoenix, for appellant.

John R. Hannah, Tempe, for amicus curiae Ariz. Capital Representation Project.


CORCORAN, Justice.

Appellant John George Brewer (defendant) pleaded guilty to the first-degree murder of his girlfriend (victim) and was sentenced to death. This automatic appeal followed. See A.R.S. § 13-4033; rules 26.15, 31.2(b), and 31.15(a)(3), Arizona Rules of Criminal Procedure.

The State filed its own appeal in the court of appeals, challenging the trial court's dismissal of the first-degree murder charge for the death of the victim's 22-week-old, unborn fetus. We transferred the State's renumbered appeal to this court and consolidated it with defendant's automatic appeal. See rule 31.4(b), Arizona Rules of Criminal Procedure.

For the reasons stated below, we affirm the trial court's judgment of conviction upon a plea of guilty and the sentence of death. We also affirm the trial court's dismissal of the first-degree murder charge for the death of the fetus. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. §§ 13-4031, -4033.


In the case involving the victim's death, papers were filed by defendant, the State, and the Arizona Capital Representation Project, 1 which had obtained permission to participate as amicus curiae. Collectively, the briefs raise the following issues:

1. Did defendant limit this court's jurisdiction to review his conviction and sentence of death by attempting to waive all mandatory and discretionary appeals?

2. Did the trial court abuse its discretion in determining that defendant was competent to plead guilty?

3. Was defendant denied effective assistance of counsel?

4. Does Arizona's death penalty statute violate the eighth and fourteenth amendments by precluding the trial court from considering all relevant, mitigating circumstances and presuming death to be the appropriate sentence?

5. Does Arizona's death penalty statute violate the sixth and fourteenth amendments by removing from the jury the determination of the factual elements of capital murder?

6. Did the trial court err in finding that the fetus was a person for purposes of determining the aggravating factor of creating a grave risk of death to another person in addition to the victim of the offense?

7. Is the aggravating factor of "especially heinous, cruel or depraved" unconstitutionally vague on its face?

8. Did the trial court err by concluding that defendant murdered the victim in an "especially heinous, cruel or depraved" manner?

9. Did the trial court violate the confrontation clause, the due process clause, and the Arizona statutes by relying on inadmissible evidence to support its findings of aggravating circumstances?

10. Did the trial court err by finding that the mitigating factors did not sufficiently outweigh the aggravating factors to require leniency?

Page 788

[170 Ariz. 491] 11. Did the trial court improperly consider victim impact evidence from the presentence report and the testimony of police officers in determining the appropriate sentence?

12. Was the trial court bound by the prosecutor's recommendation of a life sentence, despite the State's submission of evidence proving the existence of aggravating factors?

13. Is defendant's death sentence proportionate to sentences imposed in similar cases?

We also note the following issues raised in the State's separate appeal from the trial court's order dismissing the charge of first-degree murder of the unborn fetus:

14. Does A.R.S. § 13-1103(A)(5) preclude the State from prosecuting defendant for the death of the unborn child under the State's homicide statutes?

15. Was the 22-week-old unborn fetus a human being for the purposes of A.R.S. § 13-1101(3)?

We will address those issues necessary to our decision, but not necessarily in the order set forth above.


In 1987, defendant lived in an apartment in Flagstaff, Arizona with his pregnant girlfriend and her roommate. On November 11 of that year, sometime between midnight and 5:00 a.m., defendant became upset during an argument with the two women about his dependency on his mother. The argument was precipitated by a telephone conversation between defendant and his mother that had left him feeling very depressed. When pestered to reveal his plans if his girlfriend were to die, defendant left in tears to cry in an adjoining room. After gaining his composure, defendant "patch[ed] things together" 2 with his girlfriend and the couple proceeded to bed around 5:30 a.m.

Defendant woke up at 11:15 a.m. and reminded the roommate that she needed to go to work, which she did. He then went back to sleep with his girlfriend. The couple got out of bed at approximately 1:30 p.m. and continued their discussion from the previous night. At some point in the exchange, the girlfriend told defendant she loved him and, because she did, she would leave him so that he could prove he could live by himself. Enraged by this statement, defendant locked the roommate's dog in another room and screamed, "Why think about if you were dead, I'll kill you." Defendant then attacked his girlfriend, and a violent, 30- to 45-minute struggle ensued.

Defendant tried to strangle his girlfriend with his bare hands, but she put up violent resistance, grabbing for his testicles, eyes, and ears. She almost escaped on several occasions, but defendant pulled her back to the floor each time and continued beating her body against "whatever [he] could find" to diminish her ability to resist. Defendant also bent her fingers back and pushed his thumbs into her eyes in an attempt to dislodge the eyeballs. The girlfriend managed to yell that if he killed her he would go to jail, but he replied, "So what? At least you would be dead! " Eventually, defendant found a necktie, wrapped it around the girlfriend's neck, and repeatedly strangled her. Twice defendant believed his girlfriend was dead, but she began to breathe when the necktie was removed. The victim finally succumbed after the third strangulation.

Defendant undressed, threw his clothes on the victim, took a shower and, according to his statements to the police, proceeded to have sexual intercourse with the corpse. After checking the victim's pupils for signs of life, he telephoned 911 and claimed to have witnessed a man assaulting a woman. When the 911 dispatcher pressed for further details, defendant admitted that he had beat and strangled the victim to death. Officers from the Flagstaff Police Department responded to the 911 call and took defendant into custody. The police read defendant his Miranda rights, which he waived. In response to police inquiries, defendant confessed once again to the crime. Defendant was then transported to

Page 789

[170 Ariz. 492] the police station where he made a hand-typed confession.

Physical evidence at the scene of the murder corroborated defendant's story. The police found the victim's badly beaten body lying on the floor of the apartment with her pants and underwear rolled up near her head. They also found the dog locked in an adjoining room and noticed scratch marks around defendant's eyes. The victim's autopsy verified a myriad of contusions, abrasions, and lesions covering a large portion of the victim's body, including severe swelling and hemorrhages on the scalp and in the eyes, and bite marks on the right hand, right arm, and upper part of the right breast. Medical examiners described the victim's face as profusely swollen, and impressions from manual and multiple ligature strangulation were found on the victim's neck.

A grand jury issued two separate indictments charging defendant with first-degree murder for the death of the victim and the resulting death of the unborn fetus. The trial court consolidated the two indictments and granted defendant's motion to dismiss the first-degree murder charge for the death of the unborn child. After conducting an evidentiary change of plea hearing and finding a sufficient factual basis to support the charge of first-degree murder of the victim, the trial court accepted defendant's plea of guilty and ordered defense counsel to present mitigating evidence at the presentencing hearing.

Defendant was subsequently sentenced to death and an automatic appeal was filed on his behalf pursuant to rule 31.2(b), Arizona Rules of Criminal Procedure. The State filed a separate appeal with the court of appeals seeking reversal of the trial court's order dismissing the charge for the death of the fetus. That appeal was transferred to this court and consolidated with defendant's appeal.


I. Defendant's Motion to Dismiss the Mandatory Appeal

Throughout these proceedings, defendant has voiced his support for the state's death penalty statute and expressed his belief that he should be executed for the confessed crimes. On account of these views, defendant sent a letter to the clerk of this court requesting that he be allowed to abandon all appeals. We treated the letter as a motion to dismiss his mandatory appeal and ordered the parties to brief the bases for compelling defendant to maintain an appeal. Reasoning that a defendant's power voluntarily to dismiss an appeal does not apply to the mandatory appeal filed in capital cases, see rules 26.15 and 31.2(b), Arizona Rules of Criminal Procedure, we denied defendant's motion. See also A.R.S. § 13-4031 (appeals in death cases may be filed only with the supreme court and...

To continue reading

Request your trial
119 cases
  • State v. Marsh, No. 81,135.
    • United States
    • United States State Supreme Court of Kansas
    • 17 Diciembre 2004 determine whether any mitigating circumstances 278 Kan. 573 outweigh aggravating circumstances.'" (Emphasis added.) State v. Brewer, 170 Ariz. 486, 504, 826 P.2d 783, cert. denied 506 U.S. 872 (1992). "We make this decision [on the death penalty sentence] after searching the entire recor......
  • Summerlin v. Stewart, 98-99002.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 2 Septiembre 2003
    ...State v. Gulbrandson, 184 Ariz. 46, 906 P.2d 579, 599 (1995); State v. Stokley, 182 Ariz. 505, 898 P.2d 454, 468 (1995); State v. Brewer, 170 Ariz. 486, 826 P.2d 783, 801 (1992); see also infra note 12. 13. During the period relevant to this case, a study commissioned by the Federal Judicia......
  • Ortiz v. Stewart, 96-99024
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 1 Julio 1998
    ...or depravity unless they are accompanied by one or more of the other three factors. See Gretzler, 659 P.2d at 11-12; State v. Brewer, 170 Ariz. 486, 826 P.2d 783, 799...
  • Gerlaugh v. Lewis, CIV-85-1647-PHX-RGS.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • 10 Julio 1995
    ...may suffer from sociopathy, a personality disorder, is generally insufficient to constitute a mitigating circumstance. State v. Brewer, 170 Ariz. 486, 505, 826 P.2d 783, 802-03 (1992), cert. denied, ___ U.S. ___, 113 S.Ct. 206, 121 L.Ed.2d 147 (1992). Dr. O'Brien opined that Petitioner's so......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT