SUPREME COURT OF ARIZONA 

En Banc 

STATE OF ARIZONA, ) Arizona Supreme Court 

 ) No. CR-07-0139-AP 

 Appellee, ) 

 ) Maricopa County 

 v. ) Superior Court 

 ) No. CR2002-010926 

BRIAN ALLEN WOMBLE, ) 

 ) 

 Appellant. ) 

 ) O P I N I O N

__________________________________) 

Appeal from the Superior Court in Maricopa County 

The Honorable Andrew G. Klein, Judge 

AFFIRMED 

________________________________________________________________ 

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix 

 By Kent E. Cattani, Chief Counsel 

 Criminal Appeals/Capital Litigation Section 

 John Pressley Todd, Assistant Attorney General 

Attorneys for State of Arizona 

JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix 

 By Peg Green, Deputy Public Defender 

 Tennie B. Martin, Deputy Public Defender 

Attorneys for Brian Allen Womble 

________________________________________________________________ 

R Y A N, 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 
2 

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 halfbrother, 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 

 

1

 Except in our independent review of the death sentence, we 

view the facts in the light most favorable to sustaining the 

jury’s verdict. State v. Garza, 216 Ariz. 56, 61 n.1, 163 P.3d 

1006, 1011 n.1 (2007). 
3 

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 

 

2

 The grand jury also indicted Speer for first degree murder 

and five other felonies in connection with the murder. See 

State v. Speer, 221 Ariz. 449, 454 ¶ 20, 212 P.3d 787, 792 

(2009). Womble’s case was severed before Speer’s trial.

3

 The trial court severed the charge of weapons misconduct 

and later found Womble guilty of that charge. 
4 

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 

 

4

 Since the date of the offense, Arizona’s capital sentencing 

statutes have been reorganized and renumbered as A.R.S. §§ 13-

751 to -759 (2010). 2008 Ariz. Sess. Laws, ch. 301, §§ 26, 38-

41 (2d Reg. Sess.). Because the renumbered statutes are not 

materially different from the prior version, we cite the current 

version unless otherwise noted. 
5 

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 

(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; 

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 
6 

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 
7 

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 (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 

 

5

 Womble also contends the State violated Rule 15.1(b)(2), 

which requires the state to disclose all written or recovered 

statements of the defendant or any person who will be tried with 

the defendant. Ariz. R. Crim. P. 15.1(b)(2) & cmt. However, in 
8 

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 (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 

 

this case, the State produced all calls taped by the detectives 

and disclosed a list of the phone calls they reviewed but did 

not preserve, and thus complied with Rule 15.1(b)(2). 
9 

(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 body as well as a silencer to 

avoid detection. Additionally, on the day before the murder, 

Womble told a therapist that he planned to kill someone. 

¶22 Womble’s statements after the murder, combined with 

the “deliberate and calculated steps” he took before the murder, 

conclusively establish that he intended to kill the Sotos. The 

transcripts of the jail calls do not include any statements by 

Womble suggesting that he considered abandoning his plan. Given 

 

6

 Premeditation requires proof 

that the defendant act[ed] with either the intention 

or the knowledge that he [would] kill another human 

being, when such intention or knowledge precede[d] 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) (2010). 
10 

the overwhelming evidence presented by the State, no rational 

juror could fail to find premeditation. 

D 

1 

¶23 During the aggravation phase, the State argued that 

Mr. Soto’s murder was heinous or depraved because Womble’s 

motive was to prevent Mr. Soto from testifying at Speer’s 

burglary trial. 

¶24 Womble now asserts that when the crime was committed, 

the state was required to prove witness elimination plus another 

factor to meet its burden for the (F)(6) aggravator. He argues 

that it was not until State v. Johnson, 212 Ariz. 425, 439 ¶ 58, 

133 P.3d 735, 749 (2006), that this Court held that witness 

elimination alone could form the basis for a finding of 

heinousness or depravity. 

¶25 Citing Bouie v. City of Columbia, 378 U.S. 347, 352-54 

(1964), Womble contends that Johnson’s construction of § 13-

751(F)(6) was an unforeseeable and retroactive expansion of the 

law. As such, he argues that its interpretation of (F)(6) based 

on witness elimination violated his due process rights and 

“operate[d] precisely like an ex post facto law,” quoting Bouie, 

378 U.S. at 353. 

¶26 Womble’s reliance on Bouie is misplaced. In Bouie, 

the defendants were convicted of violating a trespass statute. 
11 

Id. at 350. Although the state law by its terms only prohibited 

“the act of entry on the premises of another after receiving 

notice not to enter,” the state court interpreted the statute to 

also apply to remaining on the premises. Id. In reversing, the 

Supreme Court held that a defendant is deprived of his right to 

fair notice when “a statute precise on its face has been 

unforeseeably and retroactively expanded by judicial 

construction.” Id. at 352, 355. 

¶27 In contrast, witness elimination was recognized as a 

factor supporting heinousness or depravity long before Womble 

committed this murder. In State v. Gretzler, the Court set 

forth five factors to be considered in determining whether a 

murder is heinous or depraved. 135 Ariz. 42, 52-53, 659 P.2d 1, 

11-12 (1983).7

 Three years later, we noted that “[i]n addition 

to th[ose] five factors . . . we have also found that depravity 

is indicated where defendant admitted he committed the murder to 

prevent the victim from testifying against him concerning a 

felony that occurred contemporaneously with the murder.” State 

v. Correll, 148 Ariz. 468, 481, 715 P.2d 721, 734 (1986) (citing 

 

7

 The following five factors support a finding of heinousness 

or depravity: (1) relishing; (2) infliction of gratuitous 

violence; (3) needless mutilation of the victim; (4) 

senselessness of the crime; and (5) helplessness of the victim. 

Gretzler, 135 Ariz. at 52-53, 659 P.2d at 11-12. However, a 

finding of senselessness or helplessness alone generally does 

not establish heinousness or depravity. State v. Murdaugh, 209 

Ariz. 19, 33 ¶ 67, 97 P.3d 844, 858 (2004). 
12 

State v. Smith, 141 Ariz. 510, 511-12, 687 P.2d 1265, 1266-67 

(1984)); see also State v. Stanley, 167 Ariz. 519, 529, 809 P.2d 

944, 954 (1991) (killing five-year-old daughter “for no reason 

other than to eliminate her as a witness” to her mother’s murder 

supports finding of depravity); State v. Gillies, 142 Ariz. 564, 

570, 691 P.2d 655, 661 (1984) (recognizing witness elimination 

as supporting finding of heinousness or depravity). 

¶28 In State v. King, although finding that killing a 

witness “demonstrates a cold-blooded, vile state of mind,” the 

Court rejected a finding of the (F)(6) aggravator based solely 

on witness elimination. 180 Ariz. 268, 285-86, 883 P.2d 1024, 

1041-42 (1994). In that case, the defendant killed a store 

clerk and security guard during the course of a robbery. Id. at 

270, 883 P.2d at 1026. The opinion suggested that witness 

elimination was “similar” to the factors of helplessness and 

senselessness, stating that “only under limited circumstances 

will [these factors] — together or standing alone — lead to a 

finding that a murder was committed in a heinous or depraved 

manner.” Id. at 286-87, 883 P.2d at 1042-43. 

¶29 In a concurring opinion, Justice Moeller made clear 

that, under some circumstances, witness elimination alone can 

support an (F)(6) finding. Id. at 289-90, 883 P.2d at 1045-46 

(Moeller, J., concurring). He explained, consistent with our 

previous decisions, that witness elimination would suffice to 
13 

prove heinousness or depravity when a witness was murdered to 

prevent that person from testifying about another crime, which 

was not the case in King. Id. at 290, 883 P.2d at 1046. 

¶30 Shortly thereafter, expressly adopting Justice 

Moeller’s King concurrence, we distinguished the murder of a 

witness to a different crime from the more common case of murder 

of the victim of the same crime. State v. Ross, 180 Ariz. 598, 

606, 886 P.2d 1354, 1362 (1994). The Court set forth three 

circumstances under which witness elimination could “be proper 

evidence of heinousness or depravity”: (1) the victim witnessed 

another crime and was killed to prevent testimony about that 

crime; (2) defendant made a statement or other evidence of his 

state of mind shows witness elimination was a motive; or (3) 

some extraordinary circumstances show the murder was motivated 

by a desire to eliminate witnesses. Id. Since Ross, we have 

consistently held that the elimination of a witness to another 

crime will support a finding of heinousness or depravity. 

¶31 Johnson, relying on Ross, confirmed that the 

elimination of a witness to some other crime “can itself be 

sufficient to find heinousness or depravity.” 212 Ariz. at 439 

¶¶ 59-60, 133 P.3d at 749. There, the defendant murdered a 

victim of a robbery committed by him and a fellow gang member 

after learning the victim intended to testify at the partner’s 

preliminary hearing. Id. at 428-29 ¶¶ 2-4, 133 P.3d at 738-39. 
14 

We distinguished King, noting that in that case the defendant 

murdered the victim of the same crime, not some other crime. 

Id. at 439 ¶ 58, 133 P.3d at 749. In doing so, we “uph[e]ld 

Ross’s distinction between the elimination of the victim of the 

capital crime, which would be present in every murder and the 

elimination of a witness to another crime, which is a separate 

and serious act.” Id. at ¶ 60 (internal quotation marks and 

citation omitted). 

¶32 Thus, Johnson was not an unforeseeable and retroactive 

judicial expansion of the law. It explained and affirmed the 

long-recognized difference between eliminating a witness to the 

crime itself and eliminating a witness to a separate crime. See 

State v. Schad, 163 Ariz. 411, 420, 788 P.2d 1162, 1171 (1989) 

(finding no unforeseeable judicial enlargement of the (F)(5) 

pecuniary gain aggravator when a decision issued after the 

murder “merely recognized the pre-existing scope” of the 

statute). The trial court’s instruction properly permitted the 

jury to find the (F)(6) aggravator based on a finding of witness 

elimination alone and did not violate Womble’s due process 

rights. 

2 

¶33 Womble also argues that the trial court erred in 

instructing the jury that it could find the (F)(6) aggravator 
15 

based on a combination of heinousness or depravity. The trial 

court’s instruction stated, in part, that “the presence of any 

one factor, or a combination of factors, is sufficient to 

establish this aggravating circumstance. Your finding must be 

unanimous as to whether it is either especially heinous or 

depraved, or combination thereof.” Womble contends that because 

some jurors may have found the murder heinous and others 

depraved, he may have been denied a unanimous jury finding on 

the aggravator. See A.R.S. § 13-752(E) (2010) (requiring that a 

jury’s finding of an aggravating circumstance be unanimous). We 

review only for fundamental error because Womble did not object 

to the instruction. See State v. Kiles, 222 Ariz. 25, 30 ¶ 16, 

213 P.3d 174, 179 (2009). 

¶34 The (F)(6) aggravator “is a single aggravating 

circumstance” that can be established in two ways, State v. 

Lynch, __ P.3d __, 2010 WL 2485248, at *11-12 ¶¶ 77, 84 (Ariz. 

June 22, 2010); the state may either prove beyond a reasonable 

doubt that the murder was especially cruel, which goes to the 

“mental anguish or physical pain suffered by the victim before 

death,” or that it was committed in an especially “heinous or 

depraved” manner, which goes to the mental state and attitude of 

the defendant, State v. Murdaugh, 209 Ariz. 19, 31 ¶¶ 57, 59, 97 

P.3d 844, 856 (2004). While the terms “heinous or depraved” are 

written in the disjunctive, they, in fact, constitute one prong. 
16 

See Gretzler, 135 Ariz. at 52-53, 659 P.2d at 11-12 (noting that 

a finding of any of the five Gretzler factors may establish the 

“heinous or depraved” prong). As discussed above, elimination 

of a witness to another crime constitutes heinousness or 

depravity, and thus establishes that prong of the (F)(6) 

aggravator. See Speer, 221 Ariz. at 464 ¶ 82, 212 P.3d at 802 

(witness elimination is especially heinous or depraved); Tucker, 

215 Ariz. at 312 ¶ 39, 160 P.3d at 191 (same); Gillies, 142 

Ariz. at 570, 691 P.2d at 661 (same). 

¶35 The trial court erred to the extent that it instructed 

the jury that heinousness and depravity are two distinct prongs 

of the (F)(6) aggravator. See State v. Anderson, 210 Ariz. 327, 

354 ¶¶ 119, 121, 111 P.3d 369, 396 (2005) (referring to the 

(F)(6) prongs as “especially cruel” and “especially 

heinous/depraved” or “especially heinous or depraved”); 

Murdaugh, 209 Ariz. at 31 ¶ 59, 97 P.3d at 856 (stating that 

“[t]he term ‘heinous or depraved’ is used to describe the 

defendant’s state of mind”); cf. State v. Grell, 212 Ariz. 516, 

519 n.2 ¶ 8, 135 P.3d 696, 699 n.2 (2006) (noting that 

heinousness and depravity are often analyzed together). But 

given that there was sufficient evidence to prove the murder was 

committed to eliminate a witness to another crime, the murder 
17 

was thus “heinous or depraved” and no prejudice can be shown 

from the instruction.8

3 

¶36 Womble also challenges the (F)(6) aggravator as 

facially vague and vague as applied. The Supreme Court has held 

that the especially heinous, cruel or depraved aggravating 

factor is facially vague. Walton v. Arizona, 497 U.S. 639, 654 

(1990), overruled on other grounds by Ring v. Arizona (Ring II), 

536 U.S. 584 (2002). However, this Court’s construction of the 

statute furnishes sufficient guidance to satisfy Eighth and 

Fourteenth Amendment concerns. State v. Hampton, 213 Ariz. 167, 

176 ¶¶ 35-36, 140 P.3d 950, 959 (2006); see also Tucker, 215 

Ariz. at 310 ¶ 28, 160 P.3d at 189. Therefore, Womble’s 

argument on facial vagueness fails. 

¶37 Womble additionally contends that the (F)(6) 

aggravator is vague as applied because of the “increased role of 

the jury in the sentencing process and the abandonment of 

proportionality review.” We have previously rejected this 

argument. See Hampton, 213 Ariz. at 176 ¶ 36, 140 P.3d at 959 

 

8

 We likewise reject Womble’s related argument that the 

verdict form for the (F)(6) aggravator improperly permitted the 

jury to reach a non-unanimous finding because the form did not 

specify that the jury make a separate finding of “especially 

heinous,” or “especially depraved.” The verdict form, which 

read, “The Defendant committed the offense in an especially 

heinous or depraved manner,” correctly reflected the law. 
18 

(holding that “the (F)(6) aggravator may be constitutionally 

applied if given substance and specificity by jury instructions 

that follow this Court’s constructions”). 

¶38 Womble further argues that even if the Gretzler

factors are sufficiently described, it is impossible to 

determine which murders are “above the norm” without 

proportionality review. We have also rejected this argument. 

See State v. Andriano, 215 Ariz. 497, 506 ¶ 43, 161 P.3d 540, 

549 (2007); see also Johnson, 212 Ariz. at 431-32 ¶ 20, 133 P.3d 

at 741-42. 

E 

¶39 Womble next asserts the trial court erred in 

instructing the jury at the aggravation and penalty phases that 

he could eventually be released if given a life sentence. He 

contends that a jury, believing he was parole eligible, may have 

considered him to be “a greater threat to society than a 

defendant who is not.” Because Womble did not object to the 

instruction, we review for fundamental error. Kiles, 222 Ariz. 

at 30 ¶ 16, 213 P.3d at 179. 

¶40 At the time of Mr. Soto’s murder, Arizona law 

provided, in part, that if the defendant is not sentenced to 

natural life, “the defendant shall not be released on any basis 

until the completion of the service of twenty-five calendar 

years” if the victim was fifteen or more years of age. A.R.S. § 
19 

13-703(A) (Supp. 2003). The statute makes clear that Womble’s 

assertion that he would never be released is merely speculative. 

See State v. Cruz, 218 Ariz. 149, 160 ¶ 42, 181 P.3d 196, 207 

(2008).9

¶41 Although the trial court erred in using the term 

“parole” in the aggravation phase instructions, the final 

penalty phase instructions correctly used the term “release.” 

As this Court noted in Cruz, id. at 160 ¶ 42, 181 P.3d at 207, 

and as § 13-703(A) reflects, Arizona law does not prohibit the 

release of a defendant given a life sentence once that defendant 

serves twenty-five years. See A.R.S. § 31-402(C)(4) (Supp. 

2009). 

F 

¶42 Womble claims the trial court unconstitutionally 

interfered with his right to allocution. He argues that the 

court’s “warnings” led him to believe that he should not present 

his full statement. 

¶43 At the beginning of the aggravation phase, the trial 

court advised Womble of his right to allocution and explained 

the State’s right to rebut certain statements. Before the 

 

9 See also A.R.S. § 31-402(C)(4) (Supp. 2009) (providing for 

the Board of Executive Clemency to “receive petitions from 

individuals, organizations or the department [of Corrections] 

for review and commutation of sentences and pardoning of 

offenders in extraordinary cases and [] make recommendations to 

the governor” for offenses committed on or after January 1, 

1994). 
20 

penalty phase, the court told Womble that if he decided to 

allocute, “there’s nothing [the court] can do about it.” The 

court suggested that Womble first present his statement to the 

court, which he did. The court noted that comments about his 

suicidal thoughts might open the door to evidence from the 

State’s psychologist, which Womble’s defense team had 

successfully kept from the jury. Following the court’s 

suggestion, Womble offered a brief allocution but did not 

mention his suicidal thoughts. 

¶44 Defendants have the right to allocute before 

sentencing. Ariz. R. Crim. P. 19.1(d)(7), 26.10(b)(1). 

However, that right is not absolute. State v. Armstrong, 218 

Ariz. 451, 463 ¶ 58, 189 P.3d 378, 390 (2008). The State, in 

turn, “may present any evidence that demonstrates that the 

defendant should not be shown leniency.” A.R.S. § 13-752(G). 

¶45 The trial court did not deny Womble’s right to 

allocute. The court’s comments suggested that Womble would be 

ill-advised to read certain portions of his original statement, 

but he remained free to make whatever statement he wanted. 

Womble made a tactical decision not to include the first part of 

his statement to prevent the State from introducing testimony 

and reports from the State’s psychologist. The court acted 

within its discretion when it advised Womble that the State 

might be permitted to present rebuttal evidence in response to 
21 

certain of his proposed statements. See Armstrong, 218 Ariz. at 

463 ¶ 59, 189 P.3d at 390 (stating that when defendant chose not 

to express remorse in allocution to avoid state’s rebuttal 

evidence, the trial court did not impermissibly limit 

defendant’s right to allocate because defendant “remained free 

to express remorse, but he declined to do so”). 

G 

¶46 Before trial, Womble stated his intent to present age 

as mitigation. See A.R.S. § 13-751(G)(5). He turned nineteen 

approximately two weeks before the murder. Citing Roper v. 

Simmons, 543 U.S. 551 (2005), Womble argued that he would 

present solely his “raw” age, rather than using it as a starting 

point for a discussion of his intelligence, maturity, and past 

experience. In doing so, he contended that he would not be 

opening the door to rebuttal evidence. Before the aggravation 

phase, the trial court ruled that if defense counsel mentioned 

Womble’s age during the penalty phase, rebuttal evidence would 

be permitted. Womble did not argue age as a reason for 

leniency. 

¶47 Under § 13-751(C), the state may present any 

information that is relevant to any of the mitigating 

circumstances, regardless of its admissibility under the rules 

of evidence. See State v. Pandeli, 215 Ariz. 514, 527 ¶ 42, 161 

P.3d 557, 570 (2007). Deference is given to a trial court’s 
22 

decision as to the relevance of evidence presented during the 

penalty phase. State v. McGill, 213 Ariz. 147, 156-57 ¶ 40, 140 

P.3d 930, 939-40 (2006). However, the Due Process Clause of the 

Fourteenth Amendment limits the scope of rebuttal to the extent 

that trial courts should not admit even relevant evidence that 

is “unfairly prejudicial.” Pandeli, 215 Ariz. at 527-28 ¶ 43, 

161 P.3d at 570-71 (quoting Hampton, 213 Ariz. at 180 ¶ 51, 140 

P.3d at 963). 

¶48 Age is a mitigating circumstance. A.R.S. § 13-751(G). 

However, in “assessing this mitigator, we consider . . . also 

‘[a defendant’s] level of intelligence, maturity, past 

experience, and level of participation in the killings.’” State 

v. Velazquez, 216 Ariz. 300, 314 ¶ 68, 166 P.3d 91, 105 (2007) 

(quoting State v. Poyson, 198 Ariz. 70, 80 ¶ 37, 7 P.3d 79, 89 

(2000)). The court therefore did not abuse its discretion in 

ruling that the State would be permitted to use evidence of 

Womble’s criminal history to rebut age as a mitigating 

circumstance. 

¶49 In any event, the jury was informed of Womble’s age 

twice during the guilt phase. Under § 13-751(D), a jury may 

consider any evidence admitted during the guilt phase that is 

relevant to mitigation and this jury was so instructed. Thus, 

the jury had the opportunity to consider Womble’s age in 

determining the appropriate sentence. 
23 

III 

¶50 Because Womble committed the murder before August 1, 

2002, this Court independently reviews aggravation, mitigation, 

and the propriety of the death sentence under A.R.S. § 13-

755(A)-(C) (2010); see 2002 Ariz. Sess. Laws, ch. 1, § 7 (5th 

Spec. Sess.). We “consider the quality and the strength, not 

simply the number, of aggravating and mitigating factors.” 

Kiles, 222 Ariz. at 38 ¶ 62, 213 P.3d at 187 (quoting Roque, 213 

Ariz. at 230 ¶ 166, 141 P.3d at 405).10

A 

¶51 Womble argues that the evidence was insufficient to 

support the jury’s finding that he knowingly created a grave 

risk of death to the Sotos’ son when he murdered Mr. Soto. See 

A.R.S. § 13-751(F)(3). To prove this aggravator, the State was 

required to establish the following three elements: (1) the 

murderous act created a grave risk of death to the infant; (2) 

Womble knowingly created such a risk; and (3) there was a “real 

and substantial likelihood” that the infant would be killed. 

Speer, 221 Ariz. at 459 ¶ 52, 212 P.3d at 797 (quoting Tucker, 

 

10 Womble argues that the evidence is insufficient to prove 

the “heinous or depraved” and “grave risk of death” aggravators. 

See A.R.S. § 13-751(F)(3), (6). Sufficiency of the evidence 

claims are subsumed under the Court’s independent review. 

Andriano, 215 Ariz. at 506 n.5 ¶ 41, 161 P.3d at 549 n.5. 

Womble concedes the sufficiency of the evidence supporting the 

(F)(7)(b) aggravator. At the time of the murder, Womble was on 

probation for a felony conviction. 
24 

215 Ariz. at 309 ¶ 21, 160 P.3d at 188). Womble challenges the 

finding of the second element. 

¶52 A person acts “knowingly” when, “with respect to 

conduct or to a circumstance described by a statute defining an 

offense . . . [the] person is aware or believes that the 

person’s conduct is of that nature or that the circumstance 

exists.” A.R.S. § 13-105(10)(b) (2010); Speer, 221 Ariz. at 459 

¶ 50, 212 P.3d at 797. At trial, the State cited Womble’s 

statements that he checked the Sotos’ place out a few times in 

advance, arguing that “[o]ne look at the Soto apartment tells 

you that they had children, from the twin beds in one bedroom, 

to the crib in the master bedroom, to the toys.” The State, 

however, presented no evidence that Womble saw the inside of the 

apartment before the murder. 

¶53 In addition, the State argued that Womble must have 

seen the baby because the sheets covering Mr. Soto’s body were 

not pulled up. The State contended that if Womble could see the 

Sotos well enough to shoot them without missing, then he must 

have seen the baby. The State conceded, however, that no one 

knew how well-lit the apartment was at the time of the murder. 

A fire department engineer, one of the first to arrive at the 

murder scene, testified that “[i]t was still dark out” and that 

when he walked through the apartment he had to use a flashlight. 

He announced his presence in a loud tone, shook Mr. Soto a few 
25 

times, and then noticed that Mr. Soto “had his arm over . . . 

what looked to be a very, very young child.” He removed Mr. 

Soto from the bed to begin resuscitation efforts, throughout 

which the child remained asleep. 

¶54 Because it was dark in the apartment, the evidence 

shows only that Womble saw the outlines of Mr. and Mrs. Soto’s 

bodies and likely did not notice their infant son. Womble also 

might have seen the crib next to the bed. The State did not 

prove beyond a reasonable doubt that Womble knew the baby was in 

the bed, and therefore, the evidence was insufficient to 

establish the (F)(3) aggravator. See Speer, 221 Ariz. at 460 ¶ 

59, 212 P.3d at 798. 

B 

¶55 Womble contends that the evidence was insufficient to 

support the jury’s finding that the murder was heinous or 

depraved. To the extent he bases his insufficiency of the 

evidence argument on the assertion that witness elimination 

standing alone cannot support the (F)(6) aggravator, we have 

rejected that argument above. See supra ¶¶ 27-32. 

¶56 As Womble concedes, the evidence established beyond a 

reasonable doubt that the murder was committed to prevent Mr. 

Soto from testifying at Speer’s burglary trial. Womble’s 

telephone calls with Speer in the weeks leading up to the murder 

show that the motive for the murder was witness elimination. In 
26 

addition to the recorded jail calls, Speer mailed Womble a copy 

of the police report from the burglary, which included the 

Sotos’ address. The evidence establishes the (F)(6) aggravator 

beyond a reasonable doubt. 

C 

¶57 On appeal, Womble offers as mitigation that he had 

just turned nineteen at the time of the murder; he worked and 

went to school; he was pressured and manipulated by his older 

brother Speer; he was suffering from untreated depression and 

the day before the murder made suicidal statements the first 

time he sought counseling; and he did not receive care. 

¶58 “Age is of diminished significance in mitigation when 

the defendant is a major participant in the crime, especially 

when the defendant plans the crime in advance.” State v. Garza, 

216 Ariz. 56, 72 ¶ 82, 163 P.3d 1006, 1022 (2007). Whatever 

pressure Speer may have exerted over Womble is outweighed by the 

fact that Womble, despite his initial reluctance, actively 

participated in planning the murder weeks in advance, and he 

alone killed Mr. Soto while Speer remained in jail. 

¶59 The record does establish that Womble sought 

counseling the day before the murder and even mentioned his plan 

to kill someone before killing himself. However, Womble chose 

not to introduce any additional mental health evidence. 

Although Womble’s attempt to get help before the murder deserves 
27 

some consideration, the record does not support mental 

impairment such that it would call for leniency. 

¶60 Under A.R.S. § 13-755, we must independently reweigh 

the findings of aggravation and mitigation to determine the 

propriety of the death sentence. As we noted in Speer, “the 

factor of witness elimination is in itself especially weighty, 

as it involves a direct affront to the functioning of the 

justice system.” 221 Ariz. at 465 ¶ 94, 212 P.3d at 803. 

Although we have stricken the (F)(3) aggravator, in light of the 

remaining (F)(2) and (F)(6) aggravators and the fact that Womble 

did not offer any additional mitigating evidence in the penalty 

phase, we conclude that the mitigating circumstances do not 

warrant leniency. 

IV 

¶61 For the foregoing reasons, we affirm Womble’s 

convictions and sentences.11

 

 _____________________________________ 

 Michael D. Ryan, Justice 

CONCURRING: 

 

11 Womble also raised fourteen issues to avoid preclusion for 

federal review. These claims and relevant decisions presented 

by Womble are listed verbatim in the Appendix. 
28 

_____________________________________ 

Rebecca White Berch, Chief Justice 

_____________________________________ 

Andrew D. Hurwitz, Vice Chief Justice 

_____________________________________ 

W. Scott Bales, Justice 

_____________________________________ 

A. John Pelander, Justice 

Appendix 

(1) The death penalty is cruel and unusual under any 

circumstances and violates the Eighth and Fourteenth 

Amendments to the United States Constitution and Article 2, 

§ 15 of the Arizona Constitution. State v. Harrod, 200 

Ariz. 309, 320, 26 P.3d 492, 503 (2001). 

(2) The death penalty is imposed arbitrarily and irrationally 

in Arizona in violation of the Eighth and Fourteenth 

Amendments to the United States Constitution and Article 2, 

§ 15 of the Arizona Constitution, as well as Brian’s right 

to due process under the Fourteenth Amendment to the United 

States Constitution and Article 2, § 4 of the Arizona 

Constitution. State v. Beaty, 158 Ariz. 232, 762 P.2d 519 

(1988). 

(3) Application of the death penalty on the facts of this case 

would constitute cruel and unusual punishment in violation 

of the Eighth and Fourteenth Amendments to the United 

States Constitution and Article 2, §§ 1, 4, and 15 of the 

Arizona Constitution. 

(4) The prosecutor’s discretion to seek the death penalty has 

no standards and therefore violates the Eighth and 

Fourteenth Amendments to the United States Constitution and 

Article 2, §§ 1, 4, and 15 of the Arizona Constitution. 

State v. Sansing, 200 Ariz. 347, 361, 26 P.3d 1118, 1132 

(2001). 
29 

(5) Aggravating factors under A.R.S. § 13-703(F) (renumbered as 

A.R.S. § 13-751(F), effective January 1, 2009) are elements 

of capital murder and must be alleged in an indictment and 

screened for probable cause. Arizona’s failure to require 

this violates a defendant’s right to due process and a fair 

trial under the Sixth and Fourteenth Amendments to the 

United States Constitution and Article 2, §§ 4 and 24 of 

the Arizona Constitution. McKaney v. Foreman, 209 Ariz. 

268, 100 P.3d 18 (2004). 

(6) Application of the death penalty statutes promulgated after 

Ring v. Arizona, 536 U.S. 584 (2002) (Ring II), violates 

the prohibition against ex post facto laws. The changes 

altered the rules of evidence to permit different testimony 

than that required at the time of Brian’s offense. U.S. 

Const. Art. 1, § 10, Clause 1, Ariz. Const. Art. 2, § 25. 

State v. Ring, 204 Ariz. 534, 65 P.3d 915 (2003) (Ring 

III). 

(7) The absence of proportionality review of death sentences by 

Arizona courts denies capital defendants due process of law 

and equal protection and amounts to cruel and unusual 

punishment in violation of the Fifth, Eighth, and 

Fourteenth Amendments to the United States Constitution and 

Article 2, § 15 of the Arizona Constitution. State v. 

Gulbrandson, 184 Ariz. 46, 906 P.2d 579 (1995). 

Proportionality review serves to identify which cases are 

“above the norm” of first-degree murder thus narrowing the 

class of defendants who are eligible for the death penalty. 

(8) Arizona’s capital sentencing scheme is unconstitutional 

because it does not require that the State prove that the 

death penalty is appropriate. Failure to require this 

proof violates the Fifth, Eighth, and Fourteenth Amendments 

to the United States Constitution and Article 2, § 15 of 

the Arizona Constitution. State v. Ring, 200 Ariz. 267, 

284, 25 P.3d 1139, 1156 (2001) (Ring I), rev’d on other 

grounds by Ring II. 

(9) A.R.S. § 13-703(renumbered as A.R.S. § 13-751, effective 

January 1, 2009) provides no objective standards to guide 

the sentencer in weighing the aggravating and mitigating 

circumstances and therefore violates the Eighth and 

Fourteenth Amendments of the United States Constitution and 

Article 2, § 15 of the Arizona Constitution. State v. 

Pandeli, 200 Ariz. 365, 382, 26 P.3d 1136, 1153 (2001). 
30 

(10) Arizona’s death penalty scheme is unconstitutional because 

it does not require the sentencer to find beyond a 

reasonable doubt that the aggravating circumstances 

outweigh the accumulated mitigating circumstances, in 

violation of the Fifth, Eighth, and Fourteenth Amendments 

to the United States Constitution and Article 2, §§ 4 and 

15 of the Arizona Constitution. State v. Poyson, 198 Ariz. 

70, 83, 7 P.3d 79, 92 (2000). 

(11) A.R.S. § 13-703 does not sufficiently channel the 

sentencer’s discretion. Aggravating circumstances should 

narrow the class of persons eligible for the death penalty 

and reasonably justify the imposition of a harsher penalty. 

The broad scope of Arizona’s aggravating factors 

encompasses nearly anyone involved in a murder, in 

violation of the Eighth and Fourteenth Amendments of the 

United States Constitution and Article 2, § 15 of the 

Arizona Constitution. Pandeli, 200 Ariz. at 382, 26 P.3d 

at 1153. 

(12) Arizona’s lethal injection statute and the protocol 

implementing that statute do not have any safeguards in 

place that were considered by the United States Supreme 

Court in Baze v. Rees, 553 U.S. __ (2008), to, at the 

least, make an attempt to insure an execution is humane. 

(Baze protocol incorporated several safeguards including 

minimum level of professional experience for individuals 

who inserted intravenous (IV) catheters, requirement for 

practice sessions, establishment of backup IV lines and 

other redundancies, and warden’s presence in execution 

chamber that is not present in the Arizona protocol.) As 

it stands in Arizona, execution by lethal injection is 

cruel and unusual punishment in violation of the Eighth and 

Fourteenth Amendments of the United States Constitution and 

Article 2, § 15 of the Arizona Constitution. Brian’s 

counsel is aware this Court rejected this or a similar 

argument in State v. Van Adams, 194 Ariz. 408, 422 ¶ 55, 

984 P.2d 16, 30 (1999). Brian nevertheless requests this 

Court revisit this issue. 

(13) Arizona’s death penalty unconstitutionally requires 

imposition of the death penalty whenever at least one 

aggravating circumstance and no mitigating circumstance 

exist, in violation of the Eighth and Fourteenth Amendments 

of the United States Constitution and Article 2, § 15 of 
31 

the Arizona Constitution. State v. Miles, 186 Ariz. 10, 

19, 918 P.2d 1028, 1037 (1996). 

(14) Counts 1-4 of the indictment allege the offenses in those 

counts were committed on May 25, 2002. (I. 1). Brian was 

born on May 15, 1983. (I. 5). At the time of the 

offenses, Brian was barely 19 years old. As the United 

States Supreme Court recognizes, “drawing the line at 18 is 

subject to the objections always raised against categorical 

rules.” Roper v. Simmons, 543 U.S. 551, 554 (2005). 

The Roper court recognized three differences between 

juveniles and adults that rendered “suspect any conclusion 

that a juvenile falls among the worst offenders” that the 

death penalty should be reserved for. 543 U.S. at 570. 

Summarily finding that a juvenile is no longer beset by 

those same differences simply because he has reached the 

age of 18 disregards “the concerns expressed in Furman that 

the penalty of death not be imposed in an arbitrary or 

capricious manner.” See Gregg v. Georgia, 428 U.S. 153 

(1976). 

Because “the line at 18” is arbitrary and capricious, 

execution by lethal injection of 19 year old Brian is cruel 

and unusual punishment that is fundamentally unfair and a 

violation of the Fifth, Eighth, and Fourteenth Amendments 

of the United States Constitution and of Article 2, §§ 4, 

15, and 24 of the Arizona Constitution.