State v. Nelson

Decision Date12 April 2012
Docket NumberNo. CR–09–0343–AP.,CR–09–0343–AP.
Citation229 Ariz. 180,273 P.3d 632
PartiesSTATE of Arizona, Appellee, v. Brad Lee NELSON, Appellant.
CourtArizona Supreme Court


Thomas C. Horne, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section, Julie A. Done, Assistant Attorney General, Phoenix, Attorneys for State of Arizona.

David Goldberg, Attorney at Law by David Goldberg, Fort Collins, CO, Attorney for Brad Lee Nelson.


BRUTINEL, Justice.

¶ 1 In 2009, a jury found Brad Lee Nelson guilty of first-degree murder of his niece, Amber, and determined he should be sentenced to death. We have jurisdiction over this automatic appeal under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. §§ 13–4031 and –4033(A)(1) (2010). 1


¶ 2 In June 2006, Nelson was caring for fourteen-year and ten-month old, Amber, and thirteen-year-old, Wade, at a motel in Kingman, Arizona, while the children's mother, Nelson's half-sister, was in the hospital. On the day of the murder, Nelson left the motel room and walked to a nearby Kmart, where he purchased a rubber mallet. Nelson returned to the motel and, while Wade slept, hit Amber in the head with the mallet and covered her with the blanket on the bed.

¶ 3 When Wade awoke, he noticed Amber was still in bed and under the covers. Wade then walked to the Kmart with Nelson, who bought a new shirt. When they left the store, Nelson changed into the new shirt, placing the one he had been wearing in a plastic bag. They went next door to a truck stop, and when they left, Nelson no longer had the plastic bag. He told Wade he must have left it in the bathroom at the truck stop and went back inside. He returned without the bag and suggested that “some homeless guy” might have taken it.

¶ 4 Nelson and Wade then returned to the motel. Amber was still in bed under the covers. Nelson rolled up the sleeping bag he had been using and told Wade he wanted to return it to the Kmart. On the way out, Nelson told a housekeeper “not to disturb [his] niece because [they] ha[d] a noon checkout.” Nelson and Wade then returned the sleeping bag.

¶ 5 Upon returning to the motel, Nelson and Wade met a housekeeper who accompanied them to their room. When they reached the room, Wade pulled the covers off Amber. She was blue, had foam and blood coming out of her mouth, was naked from the waist down, and bleeding from her forehead. The housekeeper called 911, but police and paramedics could not revive Amber.

¶ 6 Police officers found a bloody black sock containing a rubber mallet hidden under the bed. They also found men's jeans with blood on them. The sock and jeans contained DNA from both Amber and Nelson. Police also found Amber's pants “turned inside out, with the panties still within them and the socks within the legs of the pants” as if “somebody had pulled them off.” Investigating officers located the shirt Nelson left at the truck stop and the sleeping bag he had returned to the Kmart. Both had Amber's blood on them.

¶ 7 The medical examiner determined that the cause of Amber's death was “blunt force trauma to the head.” The medical examiner found Nelson's semen on Amber's body.

¶ 8 Nelson was charged with first-degree murder and child molestation. He admitted killing Amber, but argued it was not premeditated. After the State rested in the trial's guilt phase, the superior court granted Nelson's motion for judgment of acquittal as to child molestation and felony murder. The jury found Nelson guilty of premeditated first-degree murder. The jury then found proven beyond a reasonable doubt the only aggravator alleged, that Nelson was an adult and Amber was under fifteen years old at the time of the murder. A.R.S. § 13–751(F)(9). In the penalty phase, the jury determined that Nelson should be sentenced to death.

A. Alleged violation of right to fair and impartial jury

¶ 9 Nelson argues he was deprived of a fair and impartial jury because the trial court did not specifically ask potential jurors about contact they may have had with Juror 56, who was excused. Because Nelson did not raise this issue below, we review for fundamental error. See State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005).

¶ 10 When potential jurors were summoned to the Mohave County Courthouse, the judge admonished them to ignore media coverage; warned that newspaper, radio, and TV coverage is not evidence; and advised them to alert the court if they were exposed to any type of media coverage. During individual voir dire, Juror 56 said he had “looked up as much information as [he] could on the Internet” about the case because his teenage daughter had been killed and he had very strong feelings “about another young person being killed.” Both parties agreed to excuse him.

¶ 11 The court continued individual voir dire, questioning each juror regarding prior knowledge about the case. Juror 60 referred to Juror 56, stating that he seemed nervous as he was leaving and she “guess[ed] his circumstances were a little crazy.” When asked specifically if she had learned anything about the case, she said no. Thirteen more potential jurors were questioned, and none reported that Juror 56 had said anything about the case. Nelson subsequently struck Juror 60.

¶ 12 Juror misconduct necessitates “a new trial only if ‘the defense shows actual prejudice or if prejudice may be fairly presumed from the facts.’ State v. Davolt, 207 Ariz. 191, 208 ¶ 58, 84 P.3d 456, 473 (2004) (quoting State v. Miller, 178 Ariz. 555, 558, 875 P.2d 788, 794 (1994)) (emphasis and internal citation omitted). “In a criminal case, prejudice may be presumed from ‘any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury.’ Id. (quoting Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954)). But [p]rejudice cannot be presumed without the requisite showing that the jury received and considered extrinsic evidence on the issues.” Id. ¶ 59.

¶ 13 Nelson has not shown prejudice, nor may it be presumed here. Juror 56 was excused, and the record does not suggest he shared any information about the case with other potential jurors.

B. Substantial evidence of premeditated first degree murder

¶ 14 Nelson next argues that his conviction should be vacated because the State's evidence shows only passage of time but not the actual reflection required for premeditation.

¶ 15 “Premeditation” is statutorily defined as follows:

[T]hat the defendant acts with either the intention or the knowledge that he will kill another human being, when such intention or knowledge precedes the killing by any length of time to permit reflection. Proof of actual reflection is not required, but an act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion.

A.R.S. § 13–1101(1). As we made clear in State v. Thompson, 204 Ariz. 471, 478 ¶ 27, 65 P.3d 420, 427, “the legislature did not intend to eliminate the requirement of reflection altogether or to allow the state to substitute the mere passing of time for the element of premeditation,” but rather “intended to relieve the state of the burden of proving a defendant's thought processes by direct evidence.”

¶ 16 Premeditation can, of course, be proved by circumstantial evidence. Thompson, 204 Ariz. at 478–79 ¶¶ 27, 31, 65 P.3d at 427–28. Nelson left to procure a weapon and killed Amber with it within the same hour. Circumstantial evidence supporting a finding of premeditation may include “the acquisition of a weapon by the defendant before the killing.” Id. at 479 ¶ 31, 65 P.3d at 428. “Carrying the murder weapon to the scene is strong evidence of premeditation.... Leaving the scene to retrieve a weapon is even stronger evidence of premeditation because it suggests that [the defendant] had formed a plan for committing the murder[ ] and then set about carrying it out.” United States v. Begay, 673 F.3d 1038, –––– (9th Cir.2011) (en banc) (citations omitted); see also State v. Pittman, 118 Ariz. 71, 75, 574 P.2d 1290, 1294 (1978) (finding premeditated murder conviction supported by evidence that defendant entered victim's house with gun and then shot the victim three times).

¶ 17 Nelson claims that [t]his is not a case where the defendant went and obtained a gun, a knife or some other ‘deadly weapon.’ We disagree. “Although in an ordinary context, a hammer is usually considered a tool, not a weapon, in many instances assailants have used hammers to perpetrate a deadly attack.” State v. Beard, 273 Kan. 789, 46 P.3d 1185, 1194 (2002). Moreover,

[b]ecause hitting someone with a hammer will very likely result in extensive injury or death to the victim, a hammer may be considered just as deadly when used as a weapon as a pipe, baseball bat, knife, or gun. Thus, the use of the hammer as a weapon of attack may lend support to the inference of premeditation.

Id. at 1195.

¶ 18 A defendant's actions after a murder can also help establish premeditation. See, e.g., Beard, 46 P.3d at 1195; State v. Sierra, 335 N.C. 753, 440 S.E.2d 791, 795 (1994). Nelson hid the murder weapon under a bed, disposed of his bloody shirt, and returned a sleeping bag that had Amber's blood on it.

¶ 19 Although the evidence of premeditation in this case is circumstantial, it is nonetheless substantial. The jury's finding of premeditation was not legally incorrect.

C. Premeditation jury instruction and argument

¶ 20 Nelson asserts that the trial court gave the jury an erroneous premeditation instruction and that instruction, “coupled with the prosecutor's closing arguments,” require reversal.

¶ 21 We review de novo “whether the jurors were properly instructed.” State v. Dann, 220 Ariz. 351, 364 ¶ 51, 207 P.3d 604, 617 (2009). Because Nelson did not object to either the premeditation instruction or the prosecutor's arguments...

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