Executed May 22, 2007 by Lethal Injection in Arizona
20th murderer executed in U.S. in 2007
1077th murderer executed in U.S. since 1976
1st murderer executed in Arizona in 2007
23rd murderer executed in Arizona since 1976
(Race/Sex/Age at Murder-Execution) |
Birth |
(Race/Sex/Age at Murder) |
Murder |
Murder |
to Murderer |
Sentence |
||||
|
Robert Charles Comer W / M / 30 - 50 |
Larry Pritchard W / M / 43 |
Citations:
State v. Comer, 165 Ariz. 413, 799 P.2d 333 (1990) (Direct Appeal).
Comer v. Stewart, 215 F.3d 910 (9th Cir. 2000).
Comer v. Stewart, 230 F.Supp. 1016 (D. Ariz., 2002).
Comer v. Stewart, 312 F.3d 1157 (9th Cir. 2002).
Comer v. Schriro, 458 F.3d 891 (9th Cir. 2006).
Comer v. Schriro, 463 F.3d 934 (9th cir. 2006) (Habeas).
Comer v. Schriro, 480 F.3d 960 (9th Cir. 2007).
Final Statement:
"Go Raiders."
Final / Special Meal:
Fried Okra, 4 Buns with Butter (lots), Salt (lots), Banana Bread (2 slices).
Internet Sources:
"Killer gets death wish," by Judi Villa and Michael Kiefer. (The Arizona Republic May. 22, 2007 11:19 AM)
FLORENCE - Robert Comer never flinched Tuesday morning as he was injected with a lethal cocktail of drugs that put him to death. Comer took a picture of his daughter into the death chamber with him and seemed defiant as he smiled and maintained eye contact with his witnesses as drugs coursed through his body.
His last words were "Go Raiders!" and with that, his smile slowly faded until he passed out. His chest stopped moving after the third drug was given to him. By 10:08 a.m. he was dead. Just hours before his execution, Comer told prison workers "I am ready."
Comer's execution was not without controversy. Protesters moved on to prison grounds earlier in the morning to voice their objections over the planned execution. However, the Arizona Department of Corrections officials made sure they could not be seen from the main road.
A group of 17 people from Pax Christi USA drove from Phoenix, formed a circle and prayed the Hail Mary. "You don't teach not killing by killing," Ruth Zemek said. Wearing a hat that said "let us not become the evil we despise, abolish the death penalty," Margaret Snider said: "I don't think it accomplishes anything. The crime has been committed. It doesn't make anything well."
However, at least one man from East Valley drove to Florence to support Comer's execution. "This man can never do it again after 10. He can never kill again. They will be safe from this man," said George Williams, the lone pro-death penalty protester. He held a sign saying "Coomer will never murder or kill again"
Williams said he supports the execution because "prisoners escape, murderers get released, people kill prison guards. But not this one."
Gabrielle Smith, manager of a drug store on Main Street, said she was opening the store at 10 a.m., the same time the execution was to start. "You get used to it," the lifelong Florence resident said. "Prisoners escape. Schools get locked down. It's just part of Florence."
Death penalty opponents exhausted their efforts to halt Comer's death, with the U.S. Supreme Court refusing to order a stay of execution. Comer was the first inmate to be put to death in Arizona since 2000.
Nearly 20 years ago Comer was sentenced to death for the brutal killing of a Florida man at a campsite at Apache Lake. He is also serving 339 years for rape and kidnapping. His execution came after he waived his rights to further appeal.
"This is his day. This is what he's been waiting for since 2000," said Arizona Department of Corrections spokesman Bill Lamoreaux. Comer was given his last meal of fried okra, buns, butter, salt, and banana bread at the dinner hour, Monday evening.
About 20 people witnessed Comer's execution. Among the witnesses, Arizona Attorney General Terry Goddard, State Sen. Ron Gould, R-Havasu City, and officials from Phoenix police, Maricopa County Sheriff's and Pinal County Sheriff's departments. Comer was given the opportunity to invite witnesses to watch his death. Those witnesses include his attorneys, Michael Kimerer, Holly Gieszl and Amy Byrd, a pen pal he met in prison.
'I made the decision'
This day is a welcome one for Comer, who has fought to be executed since 2000. Comer spent much of that time just proving he is competent to make that decision, saying he owes it to his victims, society and himself.
Comer was convicted in a 1987 crime spree in which he killed a fellow camper at Apache Lake east of Phoenix. He also was convicted of repeatedly raping a female camper the same night, once in front of her boyfriend. "This is my life. I made the decision to pull my appeals," Comer said, according to transcripts from a 2002 competency hearing. "Remember I stuck a gun in the guy's ear and pulled the trigger, scrambled his brains, right? You sentenced me to die. You have that right in this state. I don't see where the big problem is."
It's hard to believe that the Comer requesting to be put to death is the same man who had to be subdued with a hose, beaten and dragged to his sentencing in 1988. When he was brought into the courtroom strapped to a wheelchair, he was bloodied, barely conscious and naked except for a towel on his lap. His extensive tattoos, including a swastika, were exposed and his shaggy hair and beard were wild. Comer looked every bit the "monster" and "reincarnation of the devil" the prosecutor said he was.
After being sentenced to death, Comer spent the next 13 years making knives and shanks, fighting with prisoners and guards and setting fires in his own cell. He was cited 43 times between 1988 and 2001 for such infractions. But since 2001, he hasn't been disciplined once. Guards, psychologists, lawyers and Comer himself say he has matured, mellowed and become more thoughtful during his prison time, particularly after his best friend in prison, Robert Vickers, was executed in 1999.
Comer's lawyer, Kimerer, described Comer as extremely insightful and wise about life. Kimerer said he and Comer have become close over the years and that he will be "extremely sad" to see him go.
K.C. Scull, who prosecuted Comer nearly 20 years ago, said it doesn't matter if Comer has changed. "He's very cunning, he's very intelligent," Scull said. "I also know he was a very nasty guy, but that doesn't change anything ... Rehabilitation was never a factor in this case. You do things that are so bad, we don't care of you're rehabilitated."
Scull said Comer's case has haunted him, police officers and the surviving victims in the case. "Everybody's entitled to closure here," especially the woman Comer raped repeatedly back in 1987, Scull said. "She has to get up every day and think, That S.O.B. is still breathing somewhere and I wonder if he'd come and kill me if he had the chance,' " Scull said.
Comer was the first inmate to be put to death in the state since Donald Miller was executed on Nov. 8, 2000, for helping murder an 18-year-old woman.
"Death Row killer's last words: Go Raiders," by Michael Kiefer and Judi Villa. (May 23, 2007)
FLORENCE, Ariz. -- Robert Comer died Tuesday with a steady gaze and a defiant smile on his face, the first person to be executed in Arizona since November 2000. He was strapped to a gurney and covered up to his neck with a sheet.
There was no sight of the catheter into his groin that made the lethal injection possible, no sight of the executioners on the other side of a wall. advertisement
But Comer was smiling; he had petitioned the federal courts to stop his appeals and hasten his own execution. He was in control of his destiny. Comer brought a picture of his daughter with him to the death chamber and used his last words to say, "Go, Raiders."
Then, the chemicals coursed through his veins - first Sodium Pentathol to render him unconscious, then pancuronium bromide to stop his breathing and paralyze him, then potassium chloride to stop his heart - and he held that smile until he slipped away.
Arizona is gearing up to resume executions after a nearly seven-year hiatus. Another Arizona death-row inmate recently lost his last appeal. A third may be extradited from West Virginia. But as Arizona lapsed in executions, lethal injection, its preferred method, has come under scrutiny as possibly cruel and inhumane.
In fact, a last-minute motion for reprieve filed on Comer's behalf by a Tucson capital-punishment watchdog group raised the risk of extreme suffering as grounds for a stay of execution. The Arizona Supreme Court refused to consider the motion.
Of the 37 states that use lethal injection as a means of execution, more than a dozen have either granted stays or have completely halted executions because of legal or ethical challenges. The Arizona Department of Corrections does not reveal the exact prescriptions and protocols of its lethal-injection procedures. "Because of the lack of standards provided for in the statute, the lethal-injection process subjects condemned prisoners to significant and utterly unnecessary risks that they will be tortured to death," said public defender Victoria Washington, who, to no avail, has filed motions about the potential cruelty of lethal injection.
Comer, who was sentenced to death for fatally shooting a man in 1987, appeared to die peacefully.
State moratoriums
But anti-lethal-injection lobbyists say the paralyzing drug may prevent the condemned person from showing pain or discomfort. That drug and the fatal drug that stops the heart are said to be extremely painful when administered without adequate sedation. "You don't know what he's feeling when pancuronium bromide is involved," said Lisa McCalmont, a former assistant federal public defender in Oklahoma. McCalmont is considered an expert on lethal injection.
"It masks the viewer's ability to see what pain Mr. Comer is experiencing," she said. "An execution can look peaceful and not be peaceful for him." Though it may be another strategy to stop the death penalty, disputes over lethal injection have spread.
Last year, New Jersey became the first jurisdiction to enact a moratorium on executions through legislation and appointed a study commission to review its capital-punishment system. In June, the District Court for the Western District of Missouri ordered that all executions be put on hold until the Department of Corrections adjusts the execution procedures.
Not enough doctors
Meanwhile in California, the state could not find enough doctors willing to perform executions. Doctors there said executing inmates would violate the Hippocratic oath.
The state has proposed a lethal-injection protocol that would involve using the same three drugs but would not require the use of doctors in carrying out executions.
The new protocol would increase training to prevent erroneously mixing the drug cocktail. The state has also altered the dosage of the drugs.
A federal judge in California ruled in December that the state's current method of lethal injection was at risk of violating the constitutional ban on cruel and unusual punishment. The judge said California's "implementation of lethal injection is broken, but it can be fixed." The state is in the process of updating its lethal-injection protocol.
Florida Gov. Jeb Bush declared a moratorium in December after the botched execution of an inmate. The drugs had to be administered a second time, and it took the inmate 34 minutes to die. Dale Baich, a federal public defender in Phoenix, said, "We have reviewed the state's 2004 execution manual (the last one available) and requested the updates. After further consultation with our experts, we will soon decide whether to challenge the Arizona lethal-injection protocol."
Comer's execution lasted nine minutes from start to finish.
As he was dying, 17 protesters gathered about two miles from the Florence prison to object to Comer's execution. The protest was kept on prison land and could not be seen by passers-by. "Taking a person's life does not bring a person back," protester Dan Wolford said. "His taking a life doesn't justify taking his. He doesn't forfeit his right to live because he took someone else's life."
Regardless of the outcome of the debate about whether lethal injection is cruel and unusual punishment, Wolford said, he is vehemently against the death penalty and believes there are other alternatives to protect society. "If you take an eye for an eye, it just makes both people blind," Wolford said.
About a mile down the road, George Williams of Mesa was the sole supporter of the death penalty. Williams held a sign bearing the names of Comer's victims. Williams said execution is the only way to guarantee that a killer won't escape. "This man can never do it again," he said. "He can never kill again."
National Coalition to Abolish the Death Penalty USA
Robert Comer, May 22, AZ
Do Not Execute Robert Comer!
Arizona has scheduled the execution of Robert Comer for the February 1987 murder of Larry Pritchard for May 22, 2007.
The state of Arizona should not execute Robert Comer for his role in this crime. Executing Comer would violate the right to life as declared in the Universal Declaration of Human Rights and would constitute the ultimate cruel, inhuman and degrading punishment. Furthermore, Comer has dropped his appeals, and a psychiatrist has diagnosed him with a number of mental illnesses.
Please write to Gov. Janet Napolitano on behalf of Robert Comer!
Robert Charles Comer, his companion Juneva Willis and Willis’s two children, arrived at the Burnt Corral campground in Apache Lake, Arizona on February 2, 1987. The next evening, Comer invited a nearby camper, Larry Pritchard, to dine with him and Willis, and, after the meal, Comer shot him in the head.
It is unclear whether Pritchard died immediately from the gunshot wound or later on. Comer later stabbed him in the neck. Comer then removed an Emergency Medical Technician (“EMT”) badge from Pritchard’s pocket, and Willis hid Pritchard’s body by covering it with wood.
After the murder, Comer and Willis drove to Pritchard’s campsite, where they stole a number of Pritchard’s belongings, as well as his dog. Comer and Willis then proceeded to the campsite of Jane Jones and Richard Smith, campers whom they had met earlier that day. Remembering from their earlier encounter that Jones and Smith were in possession of a small quantity of marijuana, Comer and Willis posed as “Arizona Drug Enforcement” officers, and ordered them out of their tent at gunpoint. Comer flashed the EMT badge and then tied up Jones and Smith with wire and duct tape. He put them in their truck and stole several items from their tent.
Comer then drove Jones’s and Smith’s truck, while Willis followed behind in his. After a short time, Willis stopped following Comer. When Jones asked to relieve herself, Comer permitted her to do so but accompanied her into the woods and sexually assaulted her. He then sexually assaulted her again in front of the truck. Comer threatened to kill Smith but Jones convinced him not to do so. Comer instead left Smith in the woods and drove off with Jones. When the truck ran out of gas, Comer and Jones walked back to Willis, and the three of them then drove together, along with Willis’s two children. During this journey, Comer shot and killed Pritchard’s dog, and sexually abused Jones twice more.
Jones managed to escape while Comer was fixing his truck. She was later picked up by a passing motorist and taken to the sheriff’s home. Smith, too, had managed to walk back to the Burnt Corral campground and had reported the incident to the Department of Public Safety. The police quickly apprehended Comer and Willis.
Comer and Willis were charged in Maricopa County with the first degree murder and armed robbery of Pritchard and the armed robbery, kidnapping, and aggravated assault of Jones and Smith. In addition, Comer was charged with two counts of sexual abuse and three counts of sexual assault of Jones. Willis subsequently pled guilty to one count of kidnapping in exchange for agreeing to testify against Comer. The other charges against her were dropped.
Arizona Department of Corrections
Inmate: COMER ROBERT C
PROCEEDINGS:
Presiding Judge: Ronald S. Reinstein
Aggravating Circumstances:
Canadian Coalition to Abolish the Death Penalty
The information on this webpage was compiled by the CCADP without the previous knowledge or consent of the prisoner. The CCADP is refusing to remove any Arizona prisoner materials from the internet until the law banning prisoners from the internet has been challenged and defeated, to ensure ALL Arizona death row prisoners are allowed to have their voices heard... Prisoners contacting the CCADP for removal under threats from the DOC receive a copy of the following: CLICK HERE
Robert Comer - Fighting to Die - Arizona Death Row
For more than two years, Comer has sought permission from a federal court
to drop his criminal appeals, which would expedite his trip to the death house.
The Ninth Circuit Court of Appeals instructed U.S. District Court Judge Roslyn Silver in June 2000 to determine "whether Mr. Comer's conditions of confinement at SMU II constitute punishment so harsh that he has been forced to abandon a natural desire to live."
News About Robert Comer
Write to Robert directly at:
News About Robert Comer:
"Prisoner longs to hurry death," by Rhonda Bodfield. (ARIZONA DAILY STAR)
Robert Comer has been called the most dangerous man in the Arizona prison system.
His death row cell in Florence is 7 feet by 11.5 feet. An expert psychiatrist concludes it is one of the most physically isolating places he's seen.
Comer, 45, who murdered a man in 1987, wants to drop his appeals and die as soon as possible.
His attorneys say he's not qualified to make that decision. The lawyers convinced the 9th U.S. Circuit Court of Appeals (news - web sites) that prison conditions may be part of the reason he's now
embracing death after years of fighting it. That panel ordered the U.S.District Court in Phoenix to determine his mental competency and then to answer whether he's making a voluntary decision or whether conditions are so harsh that he feels he has no choice. The ruling is expected later this month.
The question, really, is whether the human brain is wired to survive intact in the absence of nearly all stimulation and personal interaction.
While the case hinges on Comer alone, it could affect the fate of others. If the state loses, it may be forced to change how it deals with difficult inmates or risk similar court battles. Meanwhile, prisoner-rights advocates are contemplating a legal challenge to the way Arizona runs its "supermax" prisons.
Supermax prisons operate on the theory that locating problem inmates in one highly controlled facility makes the rest of the system more manageable.
Arizona's two supermax facilities can house 1,700 prisoners, 127 of them death row inmates. They're
there for the duration, as are prison gang members, juveniles tried as adults and mentally ill prisoners
with behavioral disorders.
Then there are the temporary boarders: Those who continually act out are sent there for at least six
months but can go back to the general prison population if they behave.
Comer is in a particularly sterile place. It doesn't help that he's had about 40 violations since entering
prison in Arizona in 1988, some for setting his cell on fire. He's known for his knack for manufacturing
crude knives.
His cell has no bars and no view of the outside world. Instead, he looks out at a concrete wall through
a metal grid punctuated by half-inch holes. Over that - because he has thrown liquid at officers and
assaulted an inmate walking past his cell with a sharpened metal tip on a tightly rolled paper pole - is a
layer of transparent Plexiglass through which he has to yell to be heard. It muffles sounds coming in,
like earplugs.
Correctional officers in the unit wear visors and body armor. Inmates can't see each other, because
they all face the same way. Comer has no furniture but a bed and toilet. His desk was taken away
because he cut a 22-inch piece of metal off of it last year with a lighter wheel. It wasn't until the past
few months that he's had a radio and a television.
With few exceptions, this is where he lives every hour. Every week, he is allowed three showers, one
five-minute phone call and three hours in a stark, only modestly larger recreation cell, with no athletic
equipment and a metal mesh ceiling. On the rare occasions when he leaves his pod, he is transported
shackled, face down on a gurney.
In its decision, the 9th Circuit noted Comer's habit of pacing morning to night, 12 to 20 hours at a time,
to keep from becoming, in his words, "a veggie." He has calculated that 300 laps is a mile. He does 30
to 50 miles a day. He punched a wall a year ago because he wanted "to feel something somewhere
other than inside my head."
Death row "volunteers," as such prisoners as Comer are called, are nothing new. Oklahoma City
bomber Timothy McVeigh was only the latest and most celebrated. Defense
attorneys are often in the uncomfortable position of arguing that the state should not assist in
government-sanctioned suicide, even in the face of criticism that they are using their clients to advance
their own anti-death-penalty views.
Three groups of attorneys are involved in Comer's case, including his original attorneys Pete
Eckerstrom and Julie Hall, of Tucson. Comer has appointed a new counsel who is siding with state
attorneys who say he should be allowed to make the decision.
Of the 38 states that have reinstated the death penalty, most have a supermax prison. Texas alone has
16. Florida in 2000 made its push to join the ranks. Its corrections commission cautioned that while
there has been little assessment of the effects of locking someone in such a cell for 23 hours a day,
some studies have found it can lead to depression, uncontrollable rage, delusion and paranoia. But
prison officials also say it is needed for security.
"As far as the allegation that it makes them worse, do you understand how ludicrous that is?" asked
Department of Corrections Director Terry Stewart. "Here we're dealing with a human being who either
won't behave in prison or he is a predator and you can't leave him in the general population. What else
are we going to do with him?
"Where he is is a function of who and what he is."
If it's safe, said attorney Eckerstrom, it's also "extremely creepy." On one tour, he said, a man howled
in a nearby cell. One paced. Another was curled into a fetal position, sleeping, in midafternoon.
"The people were behaving the way you would see animals behaving at a bad zoo," he said.
It's difficult to determine what shaped Comer. He apparently wasn't abused by his middle-class
parents. He went fishing, got average grades and was one badge away from Eagle Scout. A
psychiatrist who evaluated him suspects he was twisted in part by the California penal system, where
he served a five-year stint in 1978 for rape and kidnapping.
He did part of that time in Folsom's segregated housing unit, which would later be declared "cruel and
unusual punishment" by a U.S. District Court. Inmates there spent 24 hours a day in windowless cells,
5 feet by 8 feet, infested with rats and the stench of human excrement. The usual term was 30 days.
Comer spent five months.
In a 1987 letter to a friend, Comer recalled fearing that Folsom's gray walls were going to close in and
squash the life out of him. He wrote that he could feel his mind shut down, piece by piece.
"I used to mess with the rats," he wrote. "I never could figure out how they got in. At night they would
crawl on you. . . . I used to talk to the rats at first. After four months, they talked back."
Later he would write it was in those cells he "learned about the Bible and found there is no God." He
saw four knifings on Folsom's main yard and started making shanks. In a court affidavit, he said that at
first he thought he could put it behind him, but "I now know that once they take your humanity, you
never get it back."
In 1987, only three years after getting out of the California prison, Comer murdered a stranger at a
campground near Apache Lake, then kidnapped and raped a woman camping nearby. She escaped
and he was captured.
He didn't attend his trial. He tried not to attend his sentencing. Angered because guards had made his
handcuffs too tight earlier, he tried to stab them with a handmade shank. He was flushed out of his cell
with a high-powered hose and attended the hearing, bruised and shackled to a wheelchair, naked but
for a cloth over his lap, his head drooping toward his shoulder.
Comer refused to comment for this story, but details of his life are outlined in court records and in 10
hours of testimony during a three-day hearing in March before a federal judge, asking that his appeals
be waived. He comes across as an articulate man who prides himself on doing crossword puzzles in
ink without a dictionary.
Two expert psychiatrists disagree on whether he's competent.
Dr. Sally Johnson, a North Carolina psychiatrist who has worked on celebrity cases including the
Unabomber and John Hinckley, said she believes he is competent.
Dr. Terry Kupers, a California expert brought in by Eckerstrom who has written a book about
abysmal mental health care in prison, says Comer suffers from depression and post-traumatic stress
syndrome, which could distort his reasoning. Kupers says Comer's testimony during the hearing was a
180-degree turn, adding he believes Comer is saying what he thinks the court wants to hear. While he
once said that "waking up every day is worse than dying" and that he doesn't believe in the death
penalty, he now says he wants to pay his debt to society and could do more time "standing on my
head."
Prisoner advocates have suggested basic changes such as more rehabilitation services, more windows
and an outdoor recreation yard.
"It might be nice, but is it realistic?" asked Director Stewart. "Absolutely not."
The Arizona Attorney General's Office agreed in court filings: "This case is not a forum to evaluate
alternative methods of running a prison."
That forum, though, may be coming.
Eleanor Eisenberg, director of the Arizona Civil Liberties Union, said her organization is weighing a
range of prison issues for possible litigation, from supermax facilities to health care and discipline
policies.
That's no idle threat. In March, a federal court approved a settlement between the ACLU and
Wisconsin's Corrections Department. The settlement forces improved medical coverage, better
recreational facilities and vocational training. Under the agreement, prison officials can no longer call the
unit "supermax" or refer to the inmates as "the worst of the worst."
"There's a lot of support in the literature that the mental health of anybody in those conditions for any
period of time is going to deteriorate," Eisenberg said. "Most people who are in prison are going to get
out of prison. It seems to me our interest should be to have people come out of prison not worse than
when they went in, and ideally better prepared. They aren't getting there in complete isolation and in the
absence of any rehabilitation, psychological counseling or jobs skills development."
In his writings to the court, Comer said that unlike his victim, he can still think and hope and dream.
"I will say it's just time to end it," he wrote. "I've a lot of hate in me, that is what those lawyers mean
about the incarceration. But that's for somebody else to worry about, how to quit creating monsters."
------------------------------------------------------------------------------
"Arizona's Worst Criminal; Infamous killer Robert Comer now says he's the one who should die," by Paul Rubin. (Phoenix New Times May 2, 2002)
Soon after Robert "Gypsy" Comer awakes each morning, he starts walking.
Comer knows that 300 laps around his cell makes one mile, and he keeps track
of how far he's gone. He walks for hours on end, doing his time with a kind of Zen
focus, trying not to indulge in fantasies about life on the outside.
Comer calls it keeping his head in the box. The "box" is on death row, located at
Special Management Unit II (SMU II), a super-maximum institution at the Arizona
State Prison in Florence.
Except for a few hours a week, he is locked in this box around the clock.
Authorities have dubbed Comer the most dangerous inmate of the 28,000 in the
state's prison system, something the 45-year-old murderer and rapist doesn't
deny. He's a legendary bad boy among staffers and inmates, partly for his
uncanny knack of shaping shanks -- prison talk for knives -- and other weapons.
Comer exists in a harsh and desolate netherworld, where some of the most
vicious people that society has spawned are doomed to spend their remaining days.
In April 1988, a Maricopa County judge sentenced Comer to death, a year after
the California native committed one of this state's most horrifying and
high-profile crimes of the era.
On February 3, 1987, Comer murdered a stranger at a campground near Apache
Lake. He then raped a woman who'd been camping with her boyfriend at an
adjacent site, kidnapped her, and continued to sexually assault her. The
woman escaped into the rugged wilderness, and made her way to safety
after almost 24 harrowing hours. Police captured Comer and a female companion
after an extensive search that ended atop a hill in remote Gila County.
Comer fit the stereotype of a madman killer, in part because he looked like
a larger, even more feral version of Charles Manson -- long, wild hair,
bulging eyes, heavily tattooed. Trial prosecutor K.C. Scull told jurors that
Comer was the "reincarnation of the Devil on earth." The panel responded
with guilty verdicts on all counts.
These days, Robert Comer appears as presentable as a con with four
teardrop tattoos etched into the left side of his face possibly can. He keeps
his hair short, he's clean-shaven, and he's generally polite with strangers.
He even has a girlfriend, a nurse named Amy Young, who visits him once
a week.
By "price," he means his execution by lethal injection, and as soon as
possible. For more than two years, Comer has sought permission from a
federal court to drop his criminal appeals, which would expedite his trip to
the death house.
But it's uncertain if Comer will get his wish, because of a cutting-edge legal question raised in June 2000 by the Ninth Circuit Court of Appeals. That court instructed U.S. District Court Judge Roslyn Silver to determine "whether Mr. Comer's conditions of confinement [at SMU II] constitute punishment so harsh that he has been forced to abandon a natural desire to live."
In other words, has Comer's life at SMU II -- as unrelentingly secure as any penal facility in the nation -- so twisted his thinking that he's incapable of making a rational decision about his own survival?
"We have grave concerns that a mentally disturbed man may be seeking the court's assistance in ending his life . . ." the appellate court wrote.
Comer's appellate attorneys agree he's incompetent to drop his own appeals, mostly because of years in isolation at SMU II. They claim Comer is trying to commit suicide at the state's hands.
The inmate counters that attorneys Peter Eckerstrom and Julie Hall have put their own opposition to the death penalty ahead of his interests. "They never said anything about my competence until they found out I want to be executed," he says. "All of a sudden, I'm just nuts, incompetent."
In late 2000, Judge Silver appointed a second set of attorneys to represent Comer on the competency issue, because of the inmate's disenchantment with Eckerstrom and Hall. Those attorneys say he's eminently qualified to discontinuehis appeals.
Silver held a three-day evidentiary hearing at her Phoenix courtroom in late March to help with her decision. The session drew remarkable testimony from the killer himself, who explained why he wants to die.
"A couple years ago, I'd have chopped your head off just for looking crossways at me," Comer told the judge. "For no reason at all. I'm still the same guy as I was back then. But a lot of things have meaning for me now, like my victims. It's just time to end it."
Legal experts around the nation anxiously are awaiting Silver's ruling. If she decides Comer's years of isolation at SMU II have rendered him incompetent, and appellate courts uphold her ruling, other death row inmates being held in super-max units are likely to be affected.
The judge is expected to rule in a few weeks.
Robert Comer historically has been a defense's attorney's nightmare --
uncommunicative, unsympathetic and guilty of the crimes with which he's
been charged.
Records show Comer spent little time with his court-appointed attorney
after his 1987 arrest for murder and rape and other offenses. He chose not
to attend his seven-day jury trial, though, in hindsight, it wouldn't have mattered much.
Comer had the same chance at his trial as he'd allowed his victims at Apache Lake -- none.
His murder victim, Larry Pritchard, was a drifter whose fatal mistake was
settling down for the night at the same campground as Comer. He died from
a bullet fired at close range, after which Comer cut his throat.
The motive seems to have been a combination of robbery and an intense
desire to kill.
Tracy Andrews was spending the evening with her boyfriend, Richard
Brough, at a nearby campsite. Comer hog-tied Andrews to a vehicle, and
forced Brough to watch as he raped her the first time.
Andrews made an especially compelling witness, telling a rapt jury
how she'd later escaped Comer's clutches and fled into the wild.
It didn't help matters when she described how Comer had shot
Pritchard's purebred beagle after murdering the man. (Comer has
denied shooting the dog.)
His attorneys presented little by way of defense or mitigation. After the
conviction on all counts, Judge Ronald Reinstein demanded Comer's presence
at sentencing, a memorable event.
First, Maricopa County jailers rooted Comer from his cell with
high-powered water hoses, truncheons and fists. Comer tried to stab them
with a nine-inch-long shank during the clash. Finally, he was strapped to a
wheelchair, and pushed into Reinstein's court.
Naked except for a towel draped over his genitals, he sat before Reinstein
slumped and mute, his face bloodied from the jailhouse struggle, his body a
mélange of indecipherable tattoos, the very image of a modern-day monster.
The judge sentenced Comer to death, and added more than 300 years on
the rape-related convictions. Later that day, April 11, 1988, authorities
delivered Comer to death row in Florence, then located on Cellblock 6
at the main prison complex.
It wasn't his first incarceration in a maximum-security institution
Robert Charles Comer's mother wrote the following in her journal,
shortly before giving birth to him in San Jose, California.
"I feel that it will be a boy because only a boy can kick like this baby,"
Patricia Comer wrote on November 29, 1956.
Comer's history of violence and crime is told in thousands of pages of legal
documents, psychiatric reports and other paperwork that have become public
record over the years. Still, it remains something of a puzzle how Comer
evolved from a personable kid who finished one badge short of being an
Eagle Scout into a stone-cold killer.
He was raised in a middle-class family, the oldest of Patricia and Charles
Comer's four children, all boys. His father was an engineer for a technology firm,
and his mother worked as a quality-control inspector in Silicon Valley.
Photos of a youthful Comer depict a good-looking kid with an impish -- some
might say devilish -- grin. He loved to fish and was a member of the school safety
patrol, and played football for a time.
Comer's journey to death row started when he was detained as a juvenile in the
early 1970s on charges of assault, burglary and trespassing. He quit high
school during his senior year, and enlisted in the U.S. Army in January 1975.
(Comer later earned his diploma by passing a GED test.)
He was training to become a military policeman when his past caught up with
him. In July 1975, Army officials issued the 18-year-old an honorable discharge
after learning of his juvenile record. The next year, Comer served four months in a
California youth facility on a burglary rap, during which he became a member of an
offshoot of the Aryan Brotherhood.
After that, his crimes escalated. In December 1978, police arrested Comer
on charges of kidnapping, rape, assault with a deadly weapon, and other counts.
He plea-bargained to a relatively soft prison term of seven years, and was
sent for the first time to an adult prison.
Comer later admitted to having been involved in several stabbings during
his prison stint, some as perpetrator and others as recipient. Still in his early
20s, he spent months in solitary confinement at the prison in Folsom,
California, a profoundly violent institution.
Years later, Comer wrote about Folsom from Maricopa County Jail while
awaiting his trial for murder and rape:
"I remember feeling my mind shut down, one piece at a time. I used to
mess with the rats. I never could figure how they got in. At night, they
would crawl on you. At first, it bugged you. But just like love, or the girl
you left behind, you turned them all off. You live like a robot. . . . I used to
talk to the rats at first. After four months, they talked back. You think
you're going crazy, so you don't talk with the rats no more. . . . After 6 or 7
months, all your mind could say was, 'Fuck you.'"
Comer was released in August 1984 after he'd served less than six years,
and found sporadic work as a carpenter. He tells New Times he used
methamphetamines heavily during his 30 months of freedom after being
paroled, and became increasingly determined to seek revenge against
society for evils perpetrated against him at Folsom.
In February 1987, that revenge would take the form of murdering a
stranger, then repeatedly raping a young woman.
On April 11, 1988, Arizona State Prison authorities put Robert Comer in a death
row cell near its most infamous convict of the day, Robert Wayne Vickers.
"Bonzai," as Vickers had dubbed himself, already was a mythical character in the
Arizona prison system. He'd murdered two fellow inmates who allegedly had
"disrespected" him, and had carved his misspelled nickname into the back of his
first victim.
Inmates in proximity to Vickers feared him like no other, and kept their distance.
But he and Comer soon realized they were kindred spirits.
"He was not just a friend, he was my brother," Comer testified at his March
hearing. "We spilled blood together. We kept each other going, watched each
other's back, survived day to day. . . . Everybody knew if they messed with one
of us, they had to take both of us. You don't find that in prison. I would give my
life for him, as he would for me. We shared loyalty, honor, tribe, brotherhood,
friendship and kinship."
Authorities found Comer and Vickers so problematic that they yanked the pair off
death row, and put them in a segregated pod, a precursor to Arizona's
super-maximum units.
Super-max prisons came to the fore in the early 1990s as officials struggled to
deal with increasingly violent offenders. Now, SMU II houses about 720 inmates,
including those on death row. The facility also is home to the most uncontrollably
violent, the seriously mentally ill, and those designated as "STGs," or members
of the Security Threat Groups -- gangs.
In May 1996, officials placed Comer and Vickers in the Violence Control
Unit at the new SMU II, an even more secure facility. A year later,
authorities moved the pair and the other men on death row into a wing of
SMU II. (As of last week, 127 condemned men are incarcerated in that
wing. The two women on death row are at the Perryville prison west of
Phoenix.)
All the while, Comer's automatic appeals of his criminal convictions
continued to grind through the state legal system, then through federal
court.
The Arizona Supreme Court affirmed Comer's convictions in July 1990. In
1994, the State of Arizona issued a warrant of execution, another step on
the inmate's circuitous road toward death by lethal injection.
That year, Comer signed paperwork requesting the appointment of
so-called "habeas counsel." Such attorneys dissect the record for any
possible flaws that might lead a federal court to reconsider the death
sentence.
Tucson attorney Peter Eckerstrom became lead habeas counsel, and he
quickly won a stay of Comer's execution as he pursued the appeal. He was
joined several years later by co-counsel Julie Hall.
Comer tells New Times he'd basically forgotten about his appeal until
after he officially decided to seek execution in early 2000. "Surprised the
hell out of me," he says. "Then I thought, 'Oh, well. I'll just have to get the courts
up to speed about where I'm at on this.' But it hasn't quite worked out that way."
Robert Vickers was executed by lethal injection in May 1999. Bonzai's death
sent Comer into a months-long funk, and he vowed revenge. That August, he
fashioned yet another shank, on which he inscribed his late friend's nickname.
Comer sneaked the weapon into the recreation area, but corrections officers
subdued him with tear gas before anyone got hurt.
Months later, the inmate decided to get on with something he says he'd long been
contemplating. "I wanted to let them know they didn't have to play any more
games with Comer no more, that I wanted to pull my appeals," Comer tells
New Times. "It wasn't about my life in my box, because I can take that or leave
that. I can live in that box just fine. It's just the right thing to do."
In March 2000, he mailed several handwritten letters to judges and
prosecutors that repeated those sentiments. Comer's habeas lawyers say
they were stunned by Comer's letters, and tried to talk him out of it.
On April 15, 2000, attorney Julie Hall sent a 17-page handwritten letter to Comer --
whom she'd never met. The missive was a deeply personal plea to her client.
"Dear Gypsy," the letter started, "The things I am going to say are sincere and
from my heart, and not some line of bullshit from a lawyer."
Hall told Comer how much she hates SMU II, and how bad she feels after
speaking to her clients through the Plexiglas there.
"A glass wall that tries to tell people, this person you are looking at is not a person;
it is a specimen of evil that we removed from society. But I know the glass wall is lying,
because when I look through it, I am looking at a friend."
Hall -- whose sole legal focus is appealing death-penalty convictions -- said
she understood how Comer's destructive experiences at the Folsom prison
had affected him: "The story that needs to be told in your case is that
society has to share in the responsibility for the death of the man you were
convicted of killing. That society helped pull the trigger that night."
Even that overwrought plea didn't work. Comer remained determined to
die by lethal injection.
Volunteering for execution isn't as rare as it might seem. Since the U.S.
Supreme Court ruled in 1976 that capital punishment is constitutional, more
than 90 convicted murderers have asked to be put to death -- including 60
since 1996.
When the Ninth Circuit received Comer's letter, it already had been
considering his criminal appeal -- the one written by Peter Eckerstrom. The
court expressed concerns about Comer's mental state, and how that may
intersect with his life on SMU II. That took on added significance when
Judge Warren Ferguson noted that the inmate's request to die came amid
"serious questions about the constitutionality of his conviction and
sentence."
That comment strongly suggests the panel -- known in legal circles for its
civil libertarian bent -- is considering overturning Comer's death sentence,
maybe even his murder conviction. But the court in June 2000 put the
Comer case on hold until it hears from Judge Silver on two critical issues:
If Comer is legally competent to waive his appeals.
• If his decision to speed up his execution truly is voluntary.
In late 2000, Silver appointed Phoenix attorneys Mike Kimerer and Holly
Gieszl to represent Comer's desire to expedite his execution. Kimerer is one
of Arizona's most respected criminal-defense attorneys. Gieszl
mostly does health-care litigation, not criminal-defense work.
But she slowly won Comer's confidence -- no small feat -- by
visiting him almost every week at SMU II, sorting out his complex, often
mercurial moods, listening to his point of view.
Kimerer and Gieszl say they're anti-death penalty, but have had no
problem pursuing their unorthodox mission -- to help Comer convince the
courts that he should be allowed to die by lethal injection.
On the other side, habeas attorney Peter Eckerstrom felt compelled to
explain that the fact he and Julie Hall also are strongly opposed to the death
penalty has little to do with their trying to stave off Comer's execution.
"While it is true that we possess a moral opposition to the premeditated
and unnecessary taking of any human life, those personal views are entirely
irrelevant to these proceedings," he wrote Judge Silver last November.
"We have an overriding duty to represent the interests of our client.
Our view of the phenomenon of the death row volunteer is that it
represents a form of suicide that we would never endorse, encourage or assist."
Even though Comer doesn't want them as his legal advocates, Eckerstrom
indicates he and Hall will resign from the case only if Silver agrees to let the
inmate drop his appeals and the Ninth Circuit upholds her ruling.
To bolster their contention that Comer is not mentally competent to
decide to die, Eckerstrom and Hall hired California super-max expert
Terry Kupers to examine Comer and his cell at SMU II.
The California psychiatrist concluded that Comer has been rendered
incompetent. He wrote in a report to Silver that Comer's thinking stems
from a deep depression and other psychological maladies caused by the
extremely harsh living conditions.
"I have never seen a cell that is more physically alienating and isolating
than the . . . cell where Mr. Comer has been confined for years,"
Kupers wrote, after spending about 20 hours with Comer over several
sessions. "The conditions of confinement where Mr. Comer presently
resides are far beneath what human decency requires, and as a result
these conditions are aggravating the mental disorder that compels Mr.
Comer's rule-breaking and threatening behavior. In these difficult straits,
and as result of a mental disorder, Mr. Comer is not able to make an
intelligent and rational decision to waive his appeals and be executed."
Kupers also contends that Comer suffers from posttraumatic stress
syndrome, from the time he spent in solitary confinement 20 years ago at the
prison in Folsom.
"Mr. Comer is very proud of the fact that he has not 'gone off his rocker' after 14
years in isolated confinement," he wrote. "And I concur -- that is an impressive
accomplishment.
"A significant proportion of reasonable adults, were they subjected to the harsh
conditions and treatment that Mr. Comer has endured for so many years, would
certainly have lost their minds. But the absence of frank psychosis and being
free of mental disorder are two very different things."
Judge Silver appointed North Carolina's Dr. Sally Johnson to also examine
Comer. Johnson is a government psychiatrist who has conducted forensic
examinations of such superstar criminals as Theodore "The Unabomber"
Kaczynski, televangelist Jim Bakker, and would-be presidential assassin John
Hinckley Jr. (Hinckley once wrote her a poem, titled "A Poem for My Favorite
Pregnant Psychiatrist.")
Johnson spent 52 hours interviewing Comer before concluding he is competent
to waive his criminal appeals. She agreed with Kupers that the conditions of
Comer's incarceration are extremely severe, probably overly so. But Johnson
said the super-max hasn't made Comer incapable of making a rational decision to die.
"The question in regard to whether Mr. Comer's decision is voluntary is a
complex one," Dr. Johnson wrote. "Society has mandated through its jury
system that Mr. Comer be put to death. The implication is that the normal position
for Mr. Comer would be to disagree with society's mandate. Mr. Comer, on the
other hand, states he accepts the jury's decision. . . . He explains that his current
conditions of confinement are not the motivating factor for his decision [to drop
his appeals]."
She added: "Mr. Comer expressed remorse for his behavior, and felt it was
just that he be punished for his behavior within our society. He does not
appear to have any irrational or delusional thinking regarding death. He
does not believe he is able to be rehabilitated, and does not wish to have
continued involvement with anti-death penalty attorneys."
Security was extremely tight at the federal courthouse on March 27, the
day Robert Comer was to testify before Judge Silver.
Spectators had to sign in outside the courtroom, then step through a metal
detector. Comer's girlfriend, Amy Young, was there, along with no fewer
than a dozen prison officials. Some were in plainclothes, some in uniform.
They sat and stood near every door in the expansive courtroom.
Four bulky men wearing bulletproof jackets and safety goggles flanked
Comer.
The inmate sat attentively at a table in an orange jumpsuit between his
pro-execution attorneys Kimerer and Gieszl. He was handcuffed, shackled,
and wearing a belly chain. Attorneys Pete Eckerstrom and Julie Hall sat
directly across the room at another table.
It was the first time Comer had been in a courtroom since his bizarre
wheelchair-bound sentencing in 1988. More remarkably, it was the first
time he'd ever testified in court.
Silver started the proceedings by asking Comer, "How are you
feeling today mentally?"
"All right."
"Physically?"
"Pretty good."
Doctors Kupers and Johnson reiterated their opinions that Comer is,
respectively, incompetent and competent to drop his appeals.
Straight-talking deputy warden Blaine Marshall, who oversees death row at
SMU II, testified that Comer is coherent and bluntly honest with him,
and has consistently expressed a wish to be executed.
Corrections sergeant Wendy Hackney said Comer often has spoken with her
about wanting to speed up his execution. "I've never doubted that he
understands everything going on," she testified.
Finally, it was Comer's turn. During questioning by Holly Gieszl, he came
across as a man who has spent many hours contemplating his past, his
present and his future:
"I ended a whole bunch of innocent people's lives, and changed their lives
forever. I was sentenced to death. That's the legal sentence. I pulled my
appeal. I owe that to them. I owe it to myself, man. I was totally wrong. . . .
God, you guys are a lot more humane to me than I ever was to Larry
[Pritchard]. Remember I stuck a gun in this guy's ear and pulled the trigger,
scrambled his brains, right?"
What came next was an extraordinary dialogue between a jurist and a killer.
A no-nonsense former prosecutor, Silver asked Comer direct questions,
and he answered them thoughtfully and, by any definition of the word, competently.
"This has to do with me being tired," he told the judge. "Has to do with
me paying my debt to society. Let's do it. I don't know what
everybody's so scared about. Death is not that damned bad. Living ain't
that damned bad. But I killed Larry . . ."
Comer agreed that his life on SMU II is no joy ride. However,
contrary to Dr. Kupers' conclusions, he testified he's been able to survive it intact:
"I don't believe I have a life that will make me jump up and down and clap
my hands and go to a party or nothing. Within the limits that I have, I try to
live it fully . . . I mean, I can't get a weekend pass to go to the bowling
alley, and I love to bowl. But I don't live dead in that cell."
Comer said he should be locked up at SMU II because of his violent streak:
"I'm the guy who they invented super-maxes for. They let me out and
walk around the halls, I'll get along just like everybody else. Except I have this
problem. Someone runs their mouth at me, I deal with it."
Silver continued to grill Comer about that life.
"It seems Dr. Kupers is saying that your traumatic experiences in prison --
and elsewhere -- has been so bad that you're unable to cope now, and that
this has affected your decision to voluntarily decide the most
fundamental decision in life, which is to live or die. You understand?"
"Yes."
"Why should I think, and why should any court who reviews my decision, if
I should agree with you, believe that you're not just saying that in order to
end your life now, because it's so bad?"
"Ma'am, I've spent 15 years in an isolation cell. Already. And look at me.
What is wrong with me that I'm hiding? What am I hiding?"
"I don't think anybody would question that you have enormous capacity for
human endurance, enormous capacity," Silver responded. "But I
have heard you say a number of times that you're tired."
"I am tired. I'm not depressed, but tired."
Comer had indicated earlier that he's against the death penalty, which
led the judge to ask him, "If you don't believe in the death penalty, how
can you voluntarily decide to take your life, unless you're being
overwhelmed by your conditions such that you just want to take your
life?"
"It's the law," Comer said, sounding more like a prosecutor than a
convict. "Just because I say the law's wrong doesn't make the law wrong. I
just don't believe in it. I was sentenced to die, legally sentenced to die here."
Silver noted that Comer may yet win a new trial in his murder case.
"Yeah," Comer replied, "it's a good appeal, but it's for you all, not for me. I
killed Larry Pritchard. There is no doubt about that. So [prosecutor] K.C.
Scull called me a monster. What was I trying to make him call me? Sure didn't
want to be called Goldilocks."
"Do you understand you could be found not guilty?" the judge asked.
"Yes, ma'am."
"And I presume that you don't believe that that's really much of a possibility,
am I right?"
"No, ma'am."
"And why?"
"I did it."
On April 6, Judge Silver drove to Florence to see for herself how inmate
Comer lives. What she saw was this:
Comer's cell measures about eight feet by 11 and a half feet. A narrow bed is
attached to the back wall, with a thin, baby-blue blanket neatly tucked under
its mattress. At the foot of the bed is a television, which prison officials
recently provided as a reward for Comer's staying out of trouble for almost a year.
Prison officials won't allow him to hang photographs or memorabilia of
any kind on his walls. Beneath the bed are boxes of legal and other reading
materials. Near the front of the cell is a metal toilet and small wash basin,
with a few other sanitary items lined up above it. A tiny mirror is attached
to the wall above the basin.
The four other cells in Comer's pod also have a small stool and metal "desk" attached to the wall near the sink. But a few years ago, prison officials removed those items from Comer's cell because he somehow was fashioning shanks from them. (He's apparently put his shank-making on hold since last May, when he made the one in tribute to the anniversary of Robert Vickers' 1999 execution.)
Comer and the others in his pod wear headphones when listening to the radio or
watching television. That makes for an eerie silence, punctuated only by the
occasional clanging of the metal doors.
To add to the isolation, the front of Comer's cell is metal mesh with a small
slot that opens and closes for food and other deliveries. Another inmate on SMU
II once compared it to looking out at life -- a blank concrete wall in this instance --
through a colander.
Attached to the mesh is a supposedly unbreakable Plexiglas-like covering called
Lexan, designed to keep dangerous prisoners such as Comer from having
access to passersby with blow darts, zip guns and the like.
Because of the covering on all five cells in his pod, Comer cannot converse easily
with his peers. He says it's like talking with cotton balls in his ears, so he doesn't
say much to anyone.
Every non-prisoner who steps into Comer's pod must wear a protective
jacket and safety glasses.
He is allowed three hourlong "recreational periods" -- by himself --
each week in an enclosed outdoor space near his pod. It looks like a handball court
with a metal-mesh ceiling. (Prison officials may provide a handball to
inmates.) He may take three showers, each lasting up to 45 minutes.
Comer is allowed one five-minute phone call weekly, and may receive
approved visitors for two hours, once weekly. He may visit with his
attorney twice weekly, for up to three hours.
Whenever Comer leaves his pod, officers handcuff and shackle him to a
gurney, then move him, face down. They also fit him with a stun belt,
which zaps him if he makes sudden, pronounced movements.
Spending time in Comer's cell feels like being trapped in a tomb: It's easy to
understand why he walks endlessly, and why he says he tries not to dwell
much about life outside his box.
SMU II isn't for anyone, really, including Comer, but he's adapted to life
here as well as anyone could. Physically, this super-max is a safer place
for those around Comer, and for the inmate himself. Mentally, he seems as
normal as any violent career criminal that one might ever meet.
Instead of having to watch his back every second, Comer dabbles with
crossword puzzles, writing letters to Amy Young, perusing his legal papers,
and watching the tube.
"I am not Hannibal Lecter, but I'm not that far away from being him, either,
under the right circumstances," he tells New Times. "Know what I mean?"
-----------------------------------------------------------------------------------
"Execution Is Constitutional But Death Row May Be Illegal," by Robert Anthony Phillips. (June 15, 2001)
Do conditions on death row cause some condemned
prisoners to give up their appeals and volunteer for execution?
Some lawyers believe they do and the issue will soon get
a hearing before a federal court in Arizona.
In a case being watched closely by other criminal defense
lawyers trying to defend so-called death row "volunteers,"
Arizona sole practitioner Julie Hall argues that the "human
mind is not wired" to survive the isolation of death row
and triggers some prisoners to give up their appeals and
ask for death.
Hall is one of the lawyers representing Robert Comer,
44, a rapist and killer who wants to drop his appeals
and die by lethal injection. During his career, Hall has
represented two other so-called death row volunteers,
both of whom eventually got their wish and were executed.
But in the Comer case, Hall and another lawyer managed
to temporarily derail the condemned killer's death wish by
convincing the United States Court of Appeals for the
Ninth Circuit last June that Comer's isolation on death row
may have played a part in his volunteering for execution.
A hearing in federal district court in Arizona will be held on
the volunteer issue and Comer's competency later this summer.
Read the appeals court decision: Comer V. Stewart 98-99003)
Sole Practioner Fighting the Battle
While defense lawyers routinely challenge the competency
of condemned inmates wanting to be executed, Hall said
that to her knowledge, it is the first time a federal court
has ordered a hearing on whether conditions on death row
may have caused a condemned prisoner to volunteer.
Hall, who works exclusively on federal death penalty
appeals, failed to prevent the executions of two other
death row volunteers, Donald Miller and child killer Daren
Bolton. In the Miller case, Hall was appointed as a "next
friend" to attempt to continue appeals on Miller's behalf.
Hall said that Miller suffered severe depression most of his
life and the isolation on death row was "tortuous" and
inflamed his desire to die.
"There is no way that combining his mental illness and the
conditions in that prison that he could make a voluntary
decision to be executed," Hall said.
Death Row Impact
A key to the Comer case will be psychiatric studies and
testimony arguing that prisoners kept in long-term
maximum security housing suffer anxiety, confusion, a
sense of unreality, depression and are prone to violent
behavior. Isolation supposedly has more dramatic affects
on condemned prisoners already suffering from mental
illness.
Hall said that Comer has been kept in isolation for more
than 12 years and his mind has been affected.
Like most death penalty states, Arizona isolates
condemned prisoners in a special management unit.
Arizona death row is located in Florence, with condemned
prisoners fed in their cells, locked down 23 hours a day
and allowed no contact visits.
Camilla Strongin, a spokeswoman for the Arizona
Department of Corrections, said condemned prisoners are
isolated from the general prison population because they
have proven by their crimes that they are a danger to
other prisoners and guards.
Comer was sentenced to death for shooting a man at a
campground in 1987. Following that murder, Comer then
went to another campsite, hogtied another man and raped
the man's girlfriend while the victim watched, prosecutors
say.
Before being sentenced to death in Arizona, Comer had
spent years in a segregation in a California prison for other
crimes, Hall said. Since arriving on Arizona death row in
1988, Comer has been cited for 37 violations of prison
rules including possession and manufacture of weapons
and arson, prison officials said.
Pati Urias, a spokeswoman for the Arizona attorney
general's office, said that prosecutors believe Comer is
competent to make the decision to die and that death row
conditions are fair and humane.
Comer refused to be interviewed for this article. According
to a prison official, when asked if he wanted to do the
interview, Comer responded, "I hate reporters more than
lawyers."
State v. Comer, 165 Ariz. 413, 799 P.2d 333 (Ariz. 1990) (Direct Appeal)
Defendant was convicted in the Superior Court, Maricopa County, No. CR 87-01352, Ronald S. Reinstein, J., of first-degree murder, armed robbery, aggravated assault, kidnapping, sexual abuse, and sexual assault, and was sentenced to death. Defendant appealed. The Supreme Court, Joe W. Contreras, Court of Appeals Judge, held that: (1) the court properly refused to sever the murder and armed robbery counts involving one victim from counts involving two other victims; (2) sufficient evidence supported the armed robbery conviction; and (3) the trial court properly found the existence of three aggravating circumstances.
Affirmed.
Corcoran, J., issued an opinion concurring in the result.
JOE W. CONTRERAS, Court of Appeals Judge.
Following a jury trial, appellant Robert Charles Comer was convicted of 1 count of first degree murder, 3 counts of armed robbery, 2 counts of aggravated assault, 2 counts of kidnapping, 2 counts of sexual abuse and 3 counts of sexual assault. Appellant was sentenced to death for the murder and to aggravated, consecutive terms of imprisonment on the remaining counts, resulting in a sentence of imprisonment totaling 339 years. The murder conviction and sentence of death are here on automatic appeal, Arizona Rules of Criminal Procedure 31.2(b). We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. §§ 13-4031 and -4033.
ISSUES PRESENTED
Appellant raises the following issues for our review:
1) Whether the trial court erred by refusing to sever the Pritchard charges from the Jane Jones/Richard Smith charges.FN1
FN1. We will use fictitious names for the two living victims involved in this case, i.e. Jane Jones and Richard Smith. This is in accordance with our policy of October 24, 1989, in which the Chief Justice advised all appellate judges “to avoid, where possible, referring by name in appellate opinions to individual victims or witnesses who are minors or victims of crimes, where naming them would cause them danger or unnecessary embarrassment. Referring by name should occur only where it is absolutely necessary for clarity.” See State v. Bartlett, 792 P.2d 692, 693 n. 1 (1990).
2) Whether the trial court erred by denying appellant's motion for judgment of acquittal on the armed robbery and felony murder charges.
3) Whether the jury instruction on robbery constituted fundamental error.
4) Whether the trial court erred by failing to instruct the jury on reckless second degree murder, manslaughter, and negligent homicide.
5) Whether the trial court erred by denying appellant's motion to dismiss counts XII (sexual abuse) and XIII (sexual assault) for lack of venue.
6) Whether the trial court erred by refusing to strike two jurors for cause because of their exposure to pretrial publicity.
7) Whether the prosecutor engaged in misconduct in his closing argument.
8) Whether Arizona's death penalty sentencing scheme is unconstitutional.
9) Whether the trial court erred by finding as aggravating circumstances that the murder was committed for pecuniary gain and in an especially heinous and depraved manner.
10) Whether the enhanced sentences on Counts III-XI were based on invalid prior convictions.
FACTS
In mid-January, 1987, appellant, Robert Comer, his companion, Juneva Willis, and Willis' two children left Sacramento, California, with less than $500.00. They traveled through several states before arriving at the Burnt Corral campground at Apache Lake on February 2, 1987. When the couple arrived at the campground, they had no money.
The following evening appellant invited Larry Pritchard, who was camping nearby, to dinner at appellant's campsite. Pritchard was a large man who, because of a physical disability, stood, sat and walked with considerable difficulty. After dinner, appellant told Juvena Willis, “I'm going to blow him [Pritchard] away.” At approximately 9:00 p.m., appellant shot Pritchard in the head with a .38 revolver. Following the shooting, appellant forced Willis to look at the body and said, “See what I've done, I'm a cold and callous killer.” It was unclear whether Pritchard died immediately from the gunshot wound. Later, appellant stabbed Pritchard in the neck.
Nearby campers, including the camp host Marquis Boltz, heard the gunshot. Within ten minutes after the shooting, Boltz went to the campsite and issued a citation to appellant for discharging a firearm in the campgrounds. Appellant admitted to Boltz that he fired the gun but Boltz was unaware that appellant shot and then stabbed Pritchard.
Before leaving the campsite, appellant went through Pritchard's pockets and took Pritchard's Emergency Medical Technician (EMT) badge. Willis hid the body by covering it with wood. Appellant and Willis then packed up their camp gear and drove to Pritchard's campsite. Appellant took a camera, fishing equipment, maps, a hunting knife belonging to Pritchard and Pritchard's beagle puppy. He attempted to take gasoline from Pritchard's car, but the tank was empty. Appellant also searched for money, but found none. Appellant then drove off “to think”. After parking and thinking for about an hour, appellant and Willis drove to the Jones/Smith campsite.
Earlier that day, appellant had met Jane Jones and Richard Smith who were also camping in the area. Appellant knew that they had a small amount of marijuana. Posing as “Arizona Drug Enforcement” officers, appellant and Willis ordered Jones and Smith at gunpoint to come out of their tent and lie on the ground. Appellant briefly flashed Pritchard's EMT badge to substantiate his story that he was on official police business and asked them where they kept the marijuana. Appellant “arrested” the couple and bound them with wire and duct tape. He then searched their tent and took some marijuana, a small sum of money and other personal items.
Appellant placed the couple in their truck and drove away. Willis followed in appellant's truck. After driving a short time, appellant stopped, spoke to Willis, and continued driving. Willis did not follow. Later, Jane Jones asked appellant to stop so she could relieve herself. Appellant stopped, cut the tape binding Jones' feet and took her into the woods. After Jones relieved herself, appellant sexually abused her. When appellant and Jones returned to the truck, appellant tied Smith to the front bumper of the truck and laid Jones next to Smith. Appellant then forced Jones to engage in oral sexual contact and then proceeded to have vaginal sexual intercourse with her.
After the assaults, appellant threatened to kill Smith, but Jones talked him out of it. Appellant left Smith bound in the woods and drove off with Jones in the couple's truck. Shortly thereafter, when the truck became stuck in a ditch, appellant abandoned the vehicle, and he and Jones walked back to appellant's truck where Willis was waiting.
Appellant drove his truck through the night with Willis, Jones and the two children and eventually ended up on El Oso Mine Road in Gila County. At one point, appellant stopped the truck, pulled Pritchard's dog out of the truck, and shot and killed it. He then warned Jones that he would shoot her if she tried to escape. Appellant continued driving on El Oso Mine Road until he stopped a second time. At a second stop, appellant placed a sleeping bag on the ground and sexually abused Jones by pulling hard on her genitals.
Appellant continued driving and stopped a third time when the truck ran out of gas. He directed Willis and the children to remove the camping gear from the truck. He then took Jones into the woods and engaged in sexual intercourse with her. Meanwhile, Smith freed himself, walked back to the Burnt Corral campground and subsequently reported the incident to the Department of Public Safety.
Jones managed to run away while appellant was busy with the truck. On the morning of February 5th, she was picked up on the highway by a passing motorist and taken to the sheriff's office. Appellant and Willis were apprehended that afternoon without incident. The police found Pritchard's EMT badge buried in the sand and appellant's .38 revolver at the scene of the arrests.
Appellant and Willis were charged in Maricopa County with first degree murder and armed robbery of Pritchard and armed robbery, kidnapping and aggravated assault of Jones and Smith. In addition, appellant was charged with two counts of sexual abuse and three counts of sexual assault of Jones. The case against Willis was remanded to the grand jury for a redetermination of probable cause. The second indictment did not charge Willis with the murder of Pritchard. Willis subsequently pled guilty to one count of kidnapping, a dangerous offense. As part of the plea agreement she agreed to testify against appellant. The other charges against Willis were dismissed.
The jury found appellant guilty on all counts. Appellant was sentenced to death for the murder of Pritchard and to aggravated, consecutive terms of imprisonment for the other offenses. The trial judge found as aggravating circumstances for imposing the death penalty that appellant previously had been convicted of two felonies involving the use or threat of violence, that the murder for which he stood convicted was committed in expectation of pecuniary gain and that it was committed in an especially heinous and depraved manner. The trial judge found no mitigating circumstances.
SEVERANCE OF COUNTS
Appellant argues that the trial court erred by failing to grant his motion to sever the trial of the Pritchard counts (Counts I and II) from trial of the Jones/Smith counts (Counts III-XIII). Appellant asserts that Counts I and II were not properly joined with Counts III through XIII because the Pritchard offenses and the Jones/Smith offenses were not connected in their commission or as part of a common scheme or plan.
To succeed on his argument, appellant must show a clear abuse of discretion with respect to the trial court's decision to deny the motion to sever offenses. State v. Day, 148 Ariz. 490, 493, 715 P.2d 743, 746 (1986); State v. Roper, 140 Ariz. 459, 461, 682 P.2d 464, 466 (App.1984). Offenses may be joined if they: (1) are of the same or similar character; (2) are based on the same conduct or are otherwise connected together in their commission; or (3) are alleged to have been a part of a common scheme or plan. Rule 13.3(a), Ariz.R.Crim.P., 17 A.R.S. We have permitted joinder of offenses in a single trial where the offenses arose out of a series of connected acts, and the offenses were provable by much the same evidence. See State v. Martinez-Villareal, 145 Ariz. 441, 446, 702 P.2d 670, 675, cert. denied, 474 U.S. 975, 106 S.Ct. 339, 88 L.Ed.2d 324 (1985) (where the evidence of the burglary was entwined with the homicides the offenses were properly consolidated); State v. Gretzler ( Gretzler I ), 126 Ariz. 60, 73, 612 P.2d 1023, 1036 (1980) (offenses arising out of defendant's effort to leave Tucson without police detection were properly consolidated).
Initially, we agree with appellant's assertion that merely because the offenses were committed on the same day is an insufficient connection to justify their joinder. See State v. Stago, 82 Ariz. 285, 287, 312 P.2d 160, 162 (1957); State v. Curiel, 130 Ariz. 176, 184, 634 P.2d 988, 996 (App.1981). In this case, however, the Pritchard offenses and Jones/Smith offenses share more than temporal proximity. Contrary to appellant's assertion, the record demonstrates that the two sets of offenses were part of a connected series of events which shared the common purpose of obtaining money and supplies.
The evidence in this case clearly illustrates the connections between the Pritchard offenses and the Jones/Smith offenses. Approximately two weeks before the crimes were committed, appellant and Willis left California with a small amount of cash. Two or three days before arriving at the Burnt Corral campground, appellant stopped at the Orange Peel campground and stole food and liquor. By the time the couple arrived at the Burnt Corral campground, they had no money. On February 3rd, appellant met Larry Pritchard. On the same day, he also met Jones and Smith. That evening, appellant shot Pritchard and went to his campsite in search of money and supplies. Finding no money or other useful supplies, appellant, within a short time span, turned his attention to Jones and Smith. Appellant, armed with the same .38 revolver used to kill Pritchard, “arrested” the couple and used Pritchard's EMT badge to convince Jones and Smith that he was a police officer. He then proceeded to search the couple's personal belongings in his continuing effort to obtain money and supplies. At the arrest scene, the police found appellant's .38 revolver and Pritchard's EMT badge, which had been buried.
The evidence clearly indicates the murder/armed robbery offenses against Larry Pritchard and the aggravated assault/kidnapping/armed robbery/sexual assault and abuse crimes against Jane Jones and Richard Smith were part of appellant's continuing effort to obtain money and supplies. We conclude that the Pritchard charges and the Jones/Smith charges were connected together in their commission and were part of a common scheme or plan. Thus, the Pritchard offenses and the Jones/Smith offenses were properly joined pursuant to Rule 13.3(a)(2) and (3), Arizona Rules of Criminal Procedure.
Appellant next asserts that severance of the Jones/Smith offenses from the Pritchard offenses was necessary under Rule 13.4(a), Arizona Rules of Criminal Procedure, “to promote a fair determination of the guilt or innocence of any defendant of any offense....” He argues that there was a possibility that the jury inferred a criminal disposition from the evidence on one set of offenses or cumulated the evidence of guilt.
The defendant in Martinez-Villareal made a similar argument of prejudice. In that case, the court found no prejudice because the jury was properly instructed to consider each offense separately and was advised that the state had to prove each offense beyond a reasonable doubt. Martinez-Villareal, 145 Ariz. at 446, 702 P.2d at 675. In the present case, the trial court instructed the jury to consider each individual count with the evidence presented. In addition, the evidence was separate and distinct for each count. Therefore, the possibility that the jury confused the evidence on the Pritchard charges with the Jones/Smith charges was minimal.
Finally, appellant argues that, had the Pritchard counts been severed from the Jones/Smith counts, he would have testified in the murder case. Where joinder of counts is proper, the fifth amendment is not violated by the fact that the defendant must elect to testify on all or none of the counts. State v. Frederick, 129 Ariz. 269, 271, 630 P.2d 565, 567 (App.1981). Severance may be required when a defendant is prejudiced by the election to testify on all or none of the charges. See Cross v. United States, 335 F.2d 987, 989 (D.C.Cir.1964). Severance, however, is not automatic when the defendant elects to testify on some counts and remain silent as to the others. See Baker v. United States, 401 F.2d 958, 976-77 (D.C.Cir.1968), cert. denied, 400 U.S. 965, 91 S.Ct. 367, 27 L.Ed.2d 384 (1970). Before courts will grant a severance, the defendant must make a showing that he has both important testimony to give on some counts and strong reasons for not testifying on others. Id.; See United States v. Goldman, 750 F.2d 1221, 1225 (4th Cir.1984); State v. Via, 146 Ariz. 108, 115, 704 P.2d 238, 245 (1985), cert. denied, 475 U.S. 1048, 106 S.Ct. 1268, 89 L.Ed.2d 577 (1986).
In this case, appellant, through counsel, avowed that he would testify on the Pritchard charges, but that he could not testify on the Jones/Smith charges. Counsel told the trial court that appellant would testify that he never made the statements to Willis, “I'm going to blow him away” and “I'm a cold and callous killer.” Additionally, appellant avowed that he would testify that the shooting was not intentional and would explain the circumstances surrounding the shooting. Appellant asserted that he was unable to take the stand in the Jones/Smith trial because he would be forced to either admit to commission of the offenses or take the fifth amendment.
The trial court ruled that appellant had not convincingly demonstrated he had important testimony to give in the Pritchard case. We agree. Appellant did not elaborate on the nature of his testimony on the murder charge. The sole reason given for not testifying in the Jones/Smith offenses was that appellant would be forced to either admit or take the fifth amendment in the face of overwhelming evidence of his guilt presented at trial on these counts. Moreover, the sincerity of appellant's avowal that he would testify on the murder charges is questionable in light of the fact that appellant refused to attend any portion of the trial.
We conclude that the Pritchard offenses were properly joined with the Jones/Smith offenses pursuant to Rule 13.3(a)(2) and (3), Arizona Rules of Criminal Procedure, and find that the trial court did not abuse its discretion in refusing to grant the motion to sever offenses.
* * *
PROSECUTOR'S CLOSING ARGUMENT
Appellant contends the prosecutor committed reversible error during closing argument by characterizing appellant as a “monster”, as “filth”, and the “reincarnation of the devil on earth”, and by misstating the evidence.
Defense counsel objected to the prosecutor's characterization of appellant as a “monster” in the opening statement on the grounds that the prosecutor was going beyond the scope of opening statement and was arguing the case. The trial court sustained the objection and urged the prosecutor to refrain from using that type of language again in reference to appellant. The prosecutor asked the judge whether he could call appellant a monster in closing argument. The trial court distinguished between opening statement and closing argument and noted that defense counsel's objection was to the use of argument in the opening statement.
In his closing argument, the prosecutor characterized appellant as a “monster” and as “filth”. Defense counsel did not object. The prosecutor also referred to appellant as the “reincarnation of the devil.” Defense counsel made a timely objection to this characterization. Initially, the trial judge noted the objection and, following another characterization of appellant, overruled the objection.
We initially note that the failure to object to a comment in closing argument constitutes waiver of the right to review unless the comment amounts to fundamental error. State v. Thomas, 130 Ariz. 432, 435, 636 P.2d 1214, 1217 (1981). Attorneys, including prosecutors in criminal cases, are given wide latitude in their closing arguments to the jury. State v. Boag, 104 Ariz. 362, 366, 453 P.2d 508, 512 (1969). Within the latitude of closing argument counsel may comment on the vicious and inhuman nature of the defendant's acts. Id. In so doing, however, counsel may not make arguments which appeal to the passions and fears of the jury. State v. Mincey, 115 Ariz. 472, 484, 566 P.2d 273, 285 (1977), rev'd on other grounds, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). We believe that in this case the prosecutor's name-calling went beyond arguing the vicious nature of appellant's acts and was an appeal to the jury's passion and prejudice. Although the prosecutor's comments exceeded the bounds of appropriate closing argument, we nevertheless conclude the error was harmless beyond a reasonable doubt. In light of the overwhelming evidence of appellant's guilt, it is evident that the prosecutor's comments did not contribute to the verdict. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); State v. Anderson, 110 Ariz. 238, 517 P.2d 508 (1973).
Appellant also complains that the prosecutor misstated the evidence in his closing argument. Appellant points out that the prosecutor told the jury that Willis was never charged with the murder of Larry Pritchard and that the prosecutor stated several times that Pritchard was robbed “immediately” after he was shot. Appellant did not object to these statements at trial. Therefore, appellant has waived review of this claim on appeal unless this court finds fundamental error. See Thomas, 130 Ariz. at 435, 636 P.2d at 1217. We proceed to discuss and consider these claims.
In closing argument, the prosecutor stated, “Juneva Willis was never charged, is not charged in this case with homicide.” The prosecutor also stated “we could never prove or thought we could never prove that [Juneva Willis] had anything to do with the homicide.” The record shows that Juneva Willis was charged with the murder of Larry Pritchard in the original indictment. The trial court remanded the case to the grand jury for a redetermination of probable cause. The second indictment did not charge Willis with the murder of Pritchard. Defense counsel offered a copy of the second indictment against Willis into evidence. Although the prosecutor's comment that Willis was never charged with the murder is an incorrect statement of the facts, he corrected this misstatement when he stated she “is not charged” with the murder.
Finally, appellant contends the prosecutor's statements in closing argument that Pritchard was robbed “immediately” after he was killed and that he was robbed at appellant's campsite are misstatements of evidence. The record shows that Pritchard had an EMT badge while he was at the appellant's campsite shortly before the shooting and that appellant took it from him after the shooting. Later, appellant used Pritchard's EMT badge in the Jones/Smith robberies. Given these facts, the prosecutor's comment that Pritchard was robbed “immediately” following the shooting at appellant's campsite may fairly be inferred from the evidence. Accordingly, we find no fundamental error.
* * *
INDEPENDENT REVIEW AND APPELLANT'S CHALLENGES TO FINDINGS OF AGGRAVATING CIRCUMSTANCES
In capital cases, we have the duty to independently examine the record to determine the existence of aggravating and mitigating circumstances and the propriety of imposing of the death penalty. Gretzler II, 135 Ariz. at 57, 659 P.2d at 16; State v. Richmond, 114 Ariz. 186, 196, 560 P.2d 41, 51 (1976), cert. denied, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1101 (1977).
The trial court found three aggravating circumstances existed. First, the trial court found that appellant previously was convicted of a felony in the United States involving the use or threat of violence. A.R.S. § 13-703(F)(2). To support the finding, the trial court found that:
On April 3, 1979, the defendant was convicted in the Superior Court of California, County of Santa Clara, Case No. 71059 of the crimes of Rape by Threats and by Force, a felony under Sec. 261(2), 261(3), and 12022(b) of the California Penal Code, and also of Assault with a Deadly Weapon, a felony under Sec. 245(a) of the California Penal Code.
The state introduced a certified document of appellant's convictions. In addition, a fingerprint expert compared appellant's fingerprints taken when he was arrested in this case with the fingerprints attached to the documents of the California convictions and concluded that the fingerprints on both documents belonged to the same person. We conclude that the evidence supports the trial court's finding that appellant had two prior felony convictions involving the use or threat of violence against another person. We reviewed the statutory definitions of the earlier convictions and conclude that both involved the use or threat of violence upon another person. See State v. Romanosky, 162 Ariz. 217, 228, 782 P.2d 693, 704 (1989); State v. Gillies, 135 Ariz. 500, 511, 662 P.2d 1007, 1018 (1983).
Second, the trial court found that the murder was committed in expectation of pecuniary gain. A.R.S. § 13-703(F)(5). Appellant contends that this finding is not supported by the evidence. He emphasizes that almost an hour elapsed between the killing and the time the victim's property was taken, the limited value of the property taken and the fact that he destroyed property which might have facilitated the victim's identification.
To prove the existence of pecuniary gain as an aggravating factor, the evidence must show the defendant was motivated by an expectation of pecuniary gain. State v. LaGrand, 153 Ariz. 21, 35, 734 P.2d 563, 577, cert. denied, 484 U.S. 872, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987). The cause of the murder must be the expectation of receiving something of pecuniary value. Gillies, 135 Ariz. at 511-12, 662 P.2d at 1018-19. When the murder is part of an overall scheme to obtain something of pecuniary value the finding will be upheld. See LaGrand, 153 Ariz. at 36, 734 P.2d at 578; State v. Poland ( Poland II ), 144 Ariz. 388, 405-06, 698 P.2d 183, 200-01 (1985), aff'd, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986); State v. Hensley, 142 Ariz. 598, 603-04, 691 P.2d 689, 694-95 (1984).
In the present case, the evidence clearly demonstrates that the murder was motivated by appellant's need to obtain money and supplies. As we previously noted, appellant was out of money when he met Pritchard at the Burnt Corral campground. Appellant's financial condition coupled with his expectation of finding money or other valuables on Pritchard's body or at his campsite was the impetus behind the shooting. Appellant contends that the finding that the murder was committed with the expectation of pecuniary gain is erroneous because the items taken from Pritchard's campsite were of little or no value. This argument is meritless. The finding of pecuniary gain as an aggravating circumstance is not negated by the fact that appellant did not actually receive money or other valuables. See LaGrand, 153 Ariz. at 36, 734 P.2d at 578. In this case, the murder was committed with the expectation that appellant would find money, gas and other supplies at Pritchard's campsite. The fact that he did not obtain money or property of any substantial value does not negate his original expectation of pecuniary gain.
Finally, the trial court's characterization of the killing as “senseless” does not contradict the finding that the murder was committed in expectation of pecuniary gain. The murder was “senseless” in that it was not necessary to achieve appellant's goal of obtaining money and supplies, not that it was committed without purpose. Accordingly, we concur with the trial court's finding that the murder was committed with the expectation of pecuniary gain.
As a third aggravating factor, the trial court found that the murder was committed in an especially heinous and depraved manner. A.R.S. § 13-703(F)(6). Appellant contends this finding is unsupported by the evidence. We disagree.
Heinousness and depravity involve the mental state and attitude of the defendant as reflected in his words and actions. State v. Ceja, 126 Ariz. 35, 39, 612 P.2d 491, 495 (1980). In Gretzler II, we listed five factors that demonstrate a heinous or depraved state of mind: 1) the apparent relishing of the murder by the killer; 2) the infliction of gratuitous violence on the victim; 3) the mutilation of the victim; 4) the senselessness of the murder; and 5) the helplessness of the victim. Gretzler II, 135 Ariz. at 51-53, 659 P.2d at 10-12.
Based upon our review of the record, we conclude that appellant's words and actions demonstrate the killing was heinous and depraved. The record establishes four of the five factors listed above. The record indicates appellant relished the killing. Shortly after the shooting, appellant forced his companion, Juneva Willis, to look at the victim's body and described himself to her as “a cold and callous killer.” See State v. Walton, 159 Ariz. 571, 587, 769 P.2d 1017, 1033 (1989), aff'd, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990) (defendant's statement after the killing that he had “never seen a man pee in his pants before” was evidence of depravity). The evidence also demonstrates that appellant inflicted gratuitous violence on the victim. Appellant told Willis that he had stabbed Pritchard in the throat following the shooting. The autopsy report confirmed that the victim was stabbed in the throat at a time when he was almost dead or already dead. See Ceja, 126 Ariz. at 40, 612 P.2d at 496 (kicking victim in the face at a time when the victim was unconscious or dead indicated a depraved state of mind). Depravity is also established by the senselessness of the murder in that it was not necessary to carry out appellant's plan to rob Pritchard. See Correll, 148 Ariz. at 481, 715 P.2d at 734. Finally, the victim was helpless. Pritchard suffered from a physical disability that made it difficult for him to walk or stand. See State v. Zaragoza, 135 Ariz. 63, 69, 659 P.2d 22, 28, cert. denied, 462 U.S. 1124, 103 S.Ct. 3097, 77 L.Ed.2d 1356 (1983). The evidence strongly supports the trial court's finding of depravity.
The trial court found no mitigating circumstances sufficient to call for leniency. Appellant does not challenge this finding on appeal. We independently reviewed the record and do not find any mitigating circumstances sufficient to call for leniency.
PROPORTIONALITY REVIEW
In capital cases, we independently review the sentence to determine whether “the sentences of death are excessive or disproportionate to the penalty imposed in similar cases.” State v. Nash, 143 Ariz. 392, 406, 694 P.2d 222, 236, cert. denied, 471 U.S. 1143, 105 S.Ct. 2689, 86 L.Ed.2d 706 (1985); Richmond, 114 Ariz. at 196, 560 P.2d at 51.
We have considered other Arizona cases in which the defendant was sentenced to death upon a finding of two or more aggravating circumstances and no mitigating circumstances sufficient to call for leniency. State v. Serna, 163 Ariz. 260, 787 P.2d 1056 (1990); State v. LaGrand, 153 Ariz. 21, 734 P.2d 563 (1987); State v. Correll, 148 Ariz. 468, 715 P.2d 721 (1986); State v. Martinez-Villareal, 145 Ariz. 441, 702 P.2d 670 (1985); State v. Smith, 131 Ariz. 29, 638 P.2d 696 (1981); State v. Steelman, 126 Ariz. 19, 612 P.2d 475, cert. denied, 449 U.S. 913, 101 S.Ct. 287, 66 L.Ed.2d 141 (1980); State v. Ceja, 126 Ariz. 35, 612 P.2d 491 (1980); State v. Clark, 126 Ariz. 428, 616 P.2d 888, cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980). In addition, we have reviewed those cases where we reduced the sentence from death to life imprisonment. State v. Marlow, 163 Ariz. 65, 786 P.2d 395 (1989); State v. Rockwell, 161 Ariz. 5, 775 P.2d 1069 (1989); State v. Mauro, 159 Ariz. 186, 766 P.2d 59 (1988); State v. Rossi, 154 Ariz. 245, 741 P.2d 1223 (1987); State v. Johnson, 147 Ariz. 395, 710 P.2d 1050 (1985); State v. McDaniel, 136 Ariz. 188, 665 P.2d 70 (1983); State v. Graham, 135 Ariz. 209, 660 P.2d 460 (1983); State v. Watson, 129 Ariz. 60, 628 P.2d 943 (1981); State v. Brookover, 124 Ariz. 38, 601 P.2d 1322 (1979).
In the present case, the murder was committed with the expectation of pecuniary gain and in an especially heinous and depraved manner and appellant had prior convictions for crimes involving the use or threat of violence. In the absence of any mitigating circumstances, we conclude this murder falls above the norm of first degree murders. See State v. Blazak, 131 Ariz. 598, 604, 643 P.2d 694, 700, cert. denied, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982). Having considered other death penalty cases, we find the penalty imposed in this case proportional to the sentences imposed in other cases. Accordingly, we affirm the penalty of death.
SENTENCES ON COUNTS III-XI
Appellant was sentenced to aggravated, consecutive terms of imprisonment on Counts II-XIII. The trial court considered Count I to have been committed on a separate occasion from Count II. The sentence imposed on Count II was enhanced by the prior conviction of Count I. The trial court found that Counts III-VIII were committed on the same occasion and enhanced the sentences on these counts with the two prior convictions of Counts I and II. The trial court found that Counts IX-XI were committed on the same occasion and enhanced the sentences on those counts with the prior convictions of Counts I, II and III-VIII. The trial court found that Counts XII and XIII were committed on separate occasions and enhanced the sentences on Count XII with the prior convictions of Counts I, II, III-VIII and IX-XI and enhanced the sentence on Count XIII with the prior convictions of Counts I, II, III-VIII, IX-XI and XII. The trial court imposed the following terms of imprisonment on each count: Count II-28 years; Count III-35 years; Count IV-35 years; Count V-35 years; Count VI-35 years; Count VII-25 years; Count VIII-25 years; Count IX-8 years; Count X-35 years; Count XI-35 years; Count XII-8 years; Count XIII-35 years.
Appellant argues that Counts III through XI were improperly enhanced by the use of Counts I and II as prior felony convictions. He contends that because the convictions in Counts I and II must be reversed, the convictions on these counts cannot be used as prior convictions to enhance Counts III-XI.
Because we have rejected appellant's arguments regarding the asserted invalidity of his convictions on Counts I and II, we find no error in the trial court's use of Counts I and II as prior convictions to enhance the sentences on the remaining counts. Therefore, there is no basis to modify the sentences imposed in Counts III-XI or to remand the counts for resentencing.
CONCLUSION
We reviewed the entire record for fundamental error as required by A.R.S. § 13-4035, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). We found none. Accordingly, we affirm the convictions and sentences. GORDON, C.J., and CAMERON and MOELLER, JJ., concur.
Comer v. Schriro, 463 F.3d 934 (9th Cir. 2006) (Habeas).
Background: State prisoner petitioned for writ of habeas corpus challenging his conviction and capital sentence for first degree murder, armed robbery, kidnapping, aggravated assault, sexual assault, and sexual abuse, which had been affirmed on appeal, 165 Ariz. 413, 799 P.2d 333. The district court denied petition. After appeal was taken, state and prisoner moved to dismiss and Court of Appeals remanded, 215 F.3d 910. On remand, the United States District Court for the District of Arizona, Roslyn O. Silver, J., 230 F.Supp.2d 1016, granted prisoner's motion to dismiss his appointed habeas counsel and waive further review of his convictions and death sentence. Counsel appealed.
Holdings: The Court of Appeals, Ferguson, Circuit Judge, held that:
Affirmed in part, reversed in part, and remanded. Rymer, Circuit Judge, filed opinion concurring in part and dissenting in part.
FERGUSON, Circuit Judge.
We agree with the District Court that Comer competently and voluntarily waived his habeas appeal right. By upholding Comer's waiver, however, we would be permitting the State to execute Comer without any meaningful appellate review of his previously filed federal habeas claims, which would amount to a violation of the Eighth Amendment to the U.S. Constitution. We therefore deny the State's and Comer's motions to dismiss the appeal and proceed to review the District Court's denial of Comer's federal habeas petition.
We hold that Comer's sentence was invalid and hereby grant the writ of habeas corpus based on the violation of Comer's due process rights that occurred when he was sentenced to death while nearly naked, bleeding, shackled, and exhausted.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts of this case are deeply disturbing. Comer, his companion Juneva Willis (“Willis”), and Willis's two children arrived at the Burnt Corral campground in Apache Lake, Arizona on February 2, 1987. The next evening, Comer invited a nearby camper, Larry Pritchard, to dine with him and Willis, and, after the meal, Comer shot him in the head. It is unclear whether Pritchard died immediately from the gunshot wound or later on. Comer later stabbed him in the neck. Comer then removed an Emergency Medical Technician (“EMT”) badge from Pritchard's pocket, and Willis hid Pritchard's body by covering it with wood. After the murder, Comer and Willis drove to Pritchard's campsite, where they stole a number of Pritchard's belongings, as well as his dog.
Comer and Willis then proceeded to the campsite of Jane Jones and Richard Smith, campers whom they had met earlier that day. Remembering from their earlier encounter that Jones and Smith were in possession of a small quantity of marijuana, Comer and Willis posed as “Arizona Drug Enforcement” officers, and ordered them out of their tent at gunpoint. Comer flashed the EMT badge and then tied up Jones and Smith with wire and duct tape. He put them in their truck and stole several items from their tent.
Comer then drove Jones's and Smith's truck, while Willis followed behind in his. After a short time, Willis stopped following Comer. When Jones asked to relieve herself, Comer permitted her to do so but accompanied her into the woods and sexually assaulted her. He then sexually assaulted her again in front of the truck. Comer threatened to kill Smith but Jones convinced him not to do so. Comer instead left Smith in the woods and drove off with Jones. When the truck ran out of gas, Comer and Jones walked back to Willis, and the three of them then drove together, along with Willis's two children. During this journey, Comer shot and killed Pritchard's dog, and sexually abused Jones twice more.
Jones managed to escape while Comer was fixing his truck. She was later picked up by a passing motorist and taken to the sheriff's home. Smith, too, had managed to walk back to the Burnt Corral campground and had reported the incident to the Department of Public Safety. The police quickly apprehended Comer and Willis.
Charges
Convictions and Sentence
Comer was physically present in the courtroom for the first time on the day of his sentencing. He was shackled to a wheelchair and, except for a cloth draped over his genitals, he was naked. His body was slumped to one side and his head drooped toward his shoulder. He had visible abrasions on his body. After asking both the court deputy and a prison psychiatrist whether Comer was conscious, the state trial judge sentenced him to death for the murder of Pritchard and to aggravated, consecutive terms of imprisonment for the other offenses.
On direct appeal, the Arizona Supreme Court affirmed the convictions and sentence. Comer, 799 P.2d at 350.
State Post-Conviction Relief
Federal Habeas Corpus Petition
FN2. While Comer's habeas petition was pending, he filed a second petition for state post-conviction relief in state court challenging the constitutionality of his conviction and sentence. On September 22, 1998, the state trial court denied the petition on the ground that Comer's claims were procedurally precluded, and on December 6, 1999, the Arizona Supreme Court denied review.
FN3. Specifically, these claims were: (1) the trial court's failure and refusal to sever counts (Claims I and II), (2) the prosecutor's misconduct in repeating the use of dehumanizing epithets to characterize Comer (Claim III(A)), (3) the prosecutor's misconduct in using invective during closing argument (Claim III(B)(1)), (4) the prosecutor's misrepresentation of law and facts during closing argument (Claim III(C)), (5) the trial court's failure to strike two jurors for cause (Claim V(A)), (6) the trial court's error in impairing Comer's exercise of peremptory challenges (Claim V(B)), (7) the Arizona Supreme Court's finding of “helplessness of the victim” as an aggravating factor for sentencing (Claim XIII), (8) defense counsel's failure to undertake an adequate mitigation investigation (Claim XX(C)(4)), and (9) appellate counsel's failure to raise on appeal any issue raised in Comer's habeas petition (Claim XX(D)).
Appeal to this Court
Intervening Motion to Dismiss Appeal
Evidentiary Hearing
Pursuant to our order, the District Court conducted an evidentiary hearing in March 2002. Following extensive discovery and a three-day hearing, the District Court found in a 90-page opinion that Comer was competent to waive his habeas appeal right and that his waiver was made voluntarily. Habeas Counsel appealed the District Court's judgment to this Court.
We delayed issuing a briefing schedule until the Supreme Court decided Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (holding that Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), did not apply retroactively to cases already final on direct review).
* * *
III. CONCLUSION
We affirm the District Court's denial of Comer's habeas corpus petition as to the guilt phase of his trial. We reverse the District Court's denial of his writ of habeas corpus as to the penalty phase and remand with instructions to grant the writ as to the sentence unless Arizona begins resentencing proceedings within a reasonable amount of time to be determined by the District Court.
AFFIRMED in part; REVERSED in part and REMANDED.
DOB: 12/14/1956
Gender: MALE
Height: 74 inches
Weight: 185 lbs.
Ethnic: CAUCASIAN
Admission Date: 04/11/1988
Sentencing County: MARICOPA
Case #: 8701352
Convictions: ARMED ROBBERY, KIDNAPPING, AGGRAVATED ASSAULT, SEXUAL ABUSE, SEXUAL ASSAULT, PROMOTE PRISON CONTRABAND, MURDER 1ST DEGREE
Prosecutor: K.C. Skull
Defense Counsel: Roland Steinle, Ann Hutchins, and Stephen Venezia
Start of Trial: January 6, 1988
Verdict: January 21, 1988
Sentencing: April 11, 1988
Prior convictions involving violence
Pecuniary gain
Especially heinous, cruel or depraved
Conditions so harsh, prisoners would rather give up appeals...
Photos of Robert Comer
Robert C. Comer #067151
Arizona State Prison - Eyman
PO Box 3400 SMU II
Florence, Arizona
85232 USA
(1) district court's determination, that its own court-appointed expert was significantly more qualified to render competency opinion than expert of habeas counsel, was not clearly erroneous;
(2) prisoner voluntarily waived his federal habeas appeal right;
(3) review of merits of prisoner's federal habeas claims was warranted;
(4) some claims of prisoner impliedly had been exhausted, on their merits, by state appellate court's independent review of prisoner's capital case;
(5) joinder did not render trial fundamentally unfair;
(6) prisoner's right to testify under Fifth, Sixth, and Fourteenth Amendments had not been violated;
(7) prosecutor's improper use of dehumanizing epithets during closing argument did not render trial fundamentally unfair; and
(8) Fourteenth Amendment due process rights of prisoner had been violated.
Arizona death row prisoner, Robert Charles Comer (“Comer”), appealed the District Court's denial of his 28 U.S.C. § 2254 habeas petition challenging his conviction and capital sentence for first degree murder, armed robbery, kidnapping, aggravated assault, sexual assault, and sexual abuse. Before Comer's appeal could be heard, however, the State of Arizona (the “State”) and Comer filed motions to dismiss the appeal because Comer expressed his desire to be executed. On remand from this Court, the District Court held an evidentiary hearing and found Comer to have competently and voluntarily waived his habeas appeal right. Habeas Counsel now challenges that determination on appeal.
Comer and Willis were charged in Maricopa County with the first degree murder and armed robbery of Pritchard and the armed robbery, kidnapping, and aggravated assault of Jones and Smith. In addition, Comer was charged with two counts of sexual abuse and three counts of sexual assault of Jones. Willis subsequently pled guilty to one count of kidnapping in exchange for agreeing to testify against Comer. The other charges against her were dropped.
Comer was absent from the courtroom throughout his 1988 state trial for capital murder. After seven days of hearing evidence, a jury found Comer guilty on all counts.
On October 24, 1991, Comer filed a petition for post-conviction relief in state court challenging the constitutionality of his conviction and sentence. On November 10, 1992, the superior court denied the petition on the ground that Comer's claims were largely precluded and waived. The Arizona Supreme Court denied the petition for review on September 21, 1993, and the U.S. Supreme Court denied the petition for certiorari on April 4, 1994.
On July 19, 1994, Comer filed a federal habeas corpus petition with the District Court of Arizona. He later filed an amended petition on March 16, 1995.FN2 On August 2, 1996, the District Court found that Comer had procedurally defaulted on all his habeas claims except Claims I, II, III(A), III(B)(1), III(C) (in part), V(A), V(B), XIII, XX(C)(4), and XX(D), which largely concerned errors at trial and ineffective assistance of defense counsel.FN3 The District Court considered the merits of these claims and, on November 20, 1997, denied Comer's habeas petition.
On February 18, 1998, Comer filed a timely notice of denial of his habeas petition. This Court has jurisdiction to hear Comer's appeal pursuant to 28 U.S.C. § 2253.
After filing his appeal, Comer sent letters to the State Attorney General and to the state trial judge stating that he no longer wanted his appeal to be heard and expressing his desire to die. In light of these letters, the State moved to dismiss Comer's appeal contending that this Court lacked jurisdiction to determine any aspect of the case. Comer himself also filed a pro se motion to dismiss his appeal. Comer's originally appointed counsel-now Habeas Counsel-opposed both the State's and Comer's motions and asked this Court to order a procedure to determine the validity of Comer's appeal. On September 18, 2000, the District Court appointed Special Counsel to represent Comer concerning his decision to end his appeals and proceed to execution.
This Court subsequently decided to vacate the date for oral argument on the merits of Comer's appeal and held the motion to dismiss Comer's appeal in abeyance until the District Court held an evidentiary hearing on the separate questions of whether Comer was competent to terminate representation by counsel and waive legal review and, if so, whether his conditions of confinement rendered those decisions voluntary. Comer v. Stewart, 215 F.3d 910 (9th Cir.2000).