State v. Speer

Citation221 Ariz. 449,212 P.3d 787
Decision Date24 July 2009
Docket NumberNo. CR-07-0103-AP.,CR-07-0103-AP.
PartiesSTATE of Arizona, Appellee, v. Paul Bradley SPEER, Appellant.
CourtSupreme Court of Arizona

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

Droban & Company, P.C. By Kerrie M. Droban, Anthem, Attorneys for Paul Bradley Speer.


HURWITZ, Vice Chief Justice.

¶ 1 Paul Bradley Speer was convicted of first degree murder and sentenced to death. This is an automatic appeal pursuant to Arizona Rule of Criminal Procedure 31.2. This Court has jurisdiction under Article 6, Section 5(3) of the Arizona Constitution, and A.R.S. §§ 13-755, 13-4031, and 13-4033 (2001 & Supp.2008).

I. Background Facts and Proceedings Below
A. The Burglary

¶ 2 On March 14, 2002, Speer and his half-brother Chris Womble broke into an apartment on West Glenrosa Avenue in Phoenix.1 Adan and Enriqueta Soto lived there with their three children. No one was at home during the break-in, but a neighbor saw two men trying to open an apartment window and called the police.

¶ 3 Shortly after the neighbor's call, two men were seen walking toward a nearby apartment complex. Residents of that complex directed police to the apartment of Sabrina and Bill Womble, Speer's mother and stepfather. Speer was found beneath a couch; Chris was found in a closet. After the two were arrested, the officers searched the apartment and found items belonging to the Sotos.

B. The Plot

¶ 4 Speer was held at the Madison Street jail and made telephone calls to family and friends while in custody. The Maricopa County Sheriff's Office ("MCSO") recorded outgoing prisoner phone calls. Most of Speer's calls were to Al Heitzman, with whom Speer's half-brother Brian Womble lived. Al or Brian would occasionally then make three-way calls to others.

¶ 5 On March 18, Speer asked Al to post his $7,000 bond, stating that he could not win his case unless he could talk to the victims and convince them not to testify. On April 28, Speer told Al about a plea offer of 6.5 to 13 years imprisonment. Al connected Bill Womble to the call; Speer asked if Bill's brother would be willing to post bond.

¶ 6 Speer called again on April 29, asking Brian to sell his two handguns to raise the bond money. Brian responded that he needed the guns to commit suicide. Speer said that Brian's problems were minor compared to Speer's. Speer also said that instead of accepting a plea offer he wanted to convince the witnesses not to testify.

¶ 7 After Brian said he did not have the money for bond, Speer asked, do "you think you can ... handle some shit for me?" Brian responded that he "probably could" but "if I do that, I'll be dead too." Speer suggested that Brian offer the victims his .357 handgun as an inducement to not testify. Speer called again and told Brian that if the witnesses testified, he would get the maximum sentence.

¶ 8 On April 30, Brian told Speer that he would retrieve his guns from Al's safe deposit box. Speer told Brian to tell the victims that Speer was not involved. Brian said that he instead would employ "Plan B." Brian later asked Speer if he should talk to the victims or do his other plan. Answering his own question, Brian said he was going to do his other plan. Speer replied, "Okay. Yeah, yeah. Go ahead."

¶ 9 On May 5, Speer spoke with Brian and Al at length. Initially, Speer tried to pressure Al into posting the bond money by warning that Brian might do something violent. Al, however, refused, and Speer replied that he and Brian would have "to go to Plan B."

¶ 10 On May 13, Speer called Brian to talk about "Plan B" and told him to "make sure you take care of everybody in that house .... there's only like two." Brian said he needed a silencer. Speer reiterated that Brian could do the job alone, as there were only "two people in there." Speer again reminded Brian that "everything in there has to go."

¶ 11 On May 17, Brian proposed that he break into the apartment and wait for the Sotos to come home. Speer suggested instead that Brian pose as a police officer who needed to take photos for the upcoming trial. Brian again told Speer that he had retrieved his guns; Speer said, "make sure you talk to both people." Brian said that he had been to the complex and staked it out. Speer said, "Handle business fool, alright?"

¶ 12 On May 19, Speer called Brian again. They referred to a "surprise birthday party," and Speer said it would be a waste of a party if Brian did not get both people. Brian told Speer that he now had a silencer and described the effect his gun would have on the Sotos.

¶ 13 On May 24, Al told Speer that Brian was severely depressed. Speer then asked Brian, "Is it pretty sure you're going to ... you'll be able to get it running tonight?" Speer also told him to make sure to throw away the evidence. Speer again asked Brian, "I don't have nothing to worry about, about you getting the car together, right?"

¶ 14 Speer and Brian then called Bill Womble and asked if anyone had talked to Sabrina about the burglary trial. Speer reiterated to Bill that Sabrina was on medication at the time and therefore should not remember anything. Speer later asked Brian whether the "car window" was down when he checked it. Brian replied that "there's always a ... way for ... water to squeeze in." Speer urged that the plan be executed that night.

C. The Murder

¶ 15 On May 25, 2002, at 3:00 a.m., the Sotos returned home from a party. At approximately 5:00 a.m., Enriqueta placed a 911 call. When EMTs arrived, they found Enriqueta on the living room couch; she had been shot, but her wounds were not fatal. An EMT found Adan lying in bed with his arm around an infant. Adan was dead from a gunshot wound; the infant was unharmed.

¶ 16 When police arrived, they found the screen for the front window to the apartment removed. Brian's palm prints were later identified on the screen.

D. The Aftermath

¶ 17 On the day after the murder, Speer called Brian and asked him if he got "the car running" and fixed "both parts." Brian said, "Yep, perfect." Speer told Brian that he should leave for Nevada and that he needed to "get rid of those [engine parts] cause I don't want the ... grease getting all over ... my room." Speer and Brian called Bill; Speer told Bill that he could be out of jail in four months and that Bill had raised some "rioters."

¶ 18 Speer called Sabrina the next day. Speer told her that anything Brian had said was the result of drugs. Sabrina said that the Sotos had been murdered. Speer tried to quiet her and told her that if she had to testify she should say that she was on pills at the time of the arrest and remembered nothing.

¶ 19 On June 10, Speer called Brian. Brian said that one of the Sotos was still alive, but Speer said that he was not worried. On June 19, Speer sent a letter to Brian reminding him to get rid of the "engine parts" and his shoes. When police later searched Brian's bedroom, they found the letter and a book on silencers.

E. Proceedings Below

¶ 20 A grand jury indicted Speer for six felonies, including first-degree murder, in connection with the events of May 25. The State filed a timely notice of intent to seek the death penalty, alleging four aggravating factors: Speer was previously convicted of a serious offense (armed robbery), A.R.S. § 13-751(F)(2) (Supp.2008);2 in the commission of the offense, Speer knowingly created a grave risk of death to the Sotos' infant, A.R.S. § 13-751(F)(3); the murder was committed in a heinous or depraved manner (witness elimination), A.R.S. § 13-751(F)(6); and Speer committed the murder while in custody, A.R.S. § 13-751(F)(7).

¶ 21 In January, 2007, the jury returned guilty verdicts on all six counts related to the May 25 shooting, as well as on two counts related to the March 14 burglary. The jury subsequently found all four aggravators proved beyond a reasonable doubt and then determined that Speer should receive a death sentence for Adan's murder.

II. Jury Selection and Guilt Phase

¶ 22 Speer raises seven issues on appeal.3 Two are related to jury selection, two to the guilt phase of the trial, one to the aggravation phase, and two to the penalty phase.4


Jury Selection


¶ 23 Speer first argues that the superior court erred in refusing to excuse certain jurors for cause. "A defendant is entitled to `a fair trial by a panel of impartial, indifferent jurors.'" State v. Velazquez, 216 Ariz. 300, 306-07 ¶ 18, 166 P.3d 91, 97-98 (2007) (quoting Morgan v. Illinois, 504 U.S. 719, 727, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992)). "`A juror who will automatically vote for the death penalty without considering the presence of mitigating circumstances will not meet this threshold requirement of impartiality.'" Id. (quoting Morgan, 504 U.S. at 729, 112 S.Ct. 2222). However, a court should not strike a juror "willing to put aside his opinions and base his decisions solely upon the evidence." Id. at 307 ¶ 19, 166 P.3d at 98 (citations and internal quotation marks omitted). Refusal to strike a juror for cause is reviewed for abuse of discretion. State v. Cruz, 218 Ariz. 149, 158 ¶ 28, 181 P.3d 196, 205 (2008).

¶ 24 Speer contends that seven potential jurors should have been excused for cause. The defense, however, used peremptory challenges to remove all but one of these jurors. "Even if a defendant is forced to use a peremptory challenge to remove a juror who should have been excused for cause, ... an otherwise valid criminal conviction will not be reversed unless prejudice is shown." Id. (citing State v. Hickman, 205 Ariz. 192, 196-97 ¶¶ 20-21, 68 P.3d 418, 422-23 (2003)). We thus need consider only the single juror who served on the trial jury, Juror 29.

¶ 25 Juror 29 selected the following statement in the jury questionnaire as most closely representing his views: "I feel the death penalty should be imposed in all c...

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