Debra Milke

Background

Debra Jean Milke (born March 10, 1964 in Berlin-Steglitz) was a German-born Arizona death row inmate. She was convicted in 1990 of the murder of her son Christopher Conan Milke (age 4) and was sentenced to death. She was the first female to be sentenced to death in Arizona since 1932. She was held at Arizona State Prison Complex - Perryville in Goodyear, Arizona.

Debra Milke (Sadeik) was born in Berlin, Germany, to a military family. In 1965 the Sadeik family moved to the U.S., where Milke attended high school and college. She married Mark Milke in 1984 and gave birth to one son, Christopher Conan Milke, in 1985. Debra and Mark divorced in 1988.

Debra and her four-year-old son Christopher shared an apartment with co-defendant James Styers and his two-year-old daughter. While Milke worked at an insurance agency, Styers, an unemployed and disabled veteran, watched Christopher. Milke and Christopher's father were divorced, and Milke had legal custody of Christopher. Christopher's father often visited with his son and sometimes took him overnight.

In September 1989, shortly after beginning a new job, Milke took out a $5000 life insurance policy on Christopher as part of her employee benefit plan. The policy named Milke as the beneficiary. Sometime between the time she bought the policy and the time of Christopher's death, Milke and Styers discussed the policy and the benefits.

The offence

On Saturday, December 2, 1989, at about 11:00 a.m., Styers, with Milke's permission and in her car, took Christopher from the apartment. Styers told Christopher they were going to Metrocenter so Christopher could see Santa Claus. Styers then picked up co-defendant Roger Scott, and the two men and Christopher had lunch and ran some errands.

Later, Styers told the police that he first dropped Scott off and then took Christopher to Metrocenter to see Santa Claus. Styers told the police he had to use the restroom, so he took Christopher into the men's room at Sears and had him wait outside the stall but inside the restroom. When he came out, Christopher was allegedly gone. Styers reported this scenario to Metrocenter security; eventually the police were called.

Styers called Milke around 2:45 p.m. and told her that Christopher was missing from Metrocenter. Milke called her father in Florence, Arizona, and told him Christopher was missing. Milke's stepmother, stepsister, and stepsister's boyfriend drove to Phoenix Saturday evening to be with her. Milke was interviewed several times throughout the night by police officers.

In the initial story presented to police, Styers claimed that he met Scott outside of Sears while looking for Christopher, that Scott told him that he had come to Metrocenter with a friend named Phil, that Styers and Scott looked for Christopher for a while, and that Styers eventually walked Scott to the bus stop and Scott went home.

Ultimately, Styers and Scott had discussed a plan with Milke. Milke told police that she decided it would be best for Christopher to die. Milke and Styers discussed the plan several times and included Scott on at least one occasion. The plan included that Styers and Scott would take Christopher, kill him, and then report him missing at Metrocenter, but Milke was not to know how Christopher was killed.

Christopher was shot to death in the desert. During a police interview, Debra Jean Milke conceded that she had conspired with Styers to have her son killed. She indicated that it would be better to have her son die than grow up like her husband. When police later found Christopher's body, they found that Christopher had been shot three times in the head. (In later proceedings it was described as shots to Christopher's head/back of the head.)

Investigation

On December 2, 1989, James Lynn Styers filed a missing child report, advising police that his roommates's son, Christopher Milke (age 4), had disappeared during their visit to Metrocenter mall. Roger Mark Scott was present with Styers. On December 3, 1989, Scott admitted during a police interview that he had accompanied Styers the previous day to a desert wash in the area of 99th Avenue and Jomax Road where Styers shot and killed Christopher Milke.

Styers agreed to provide Scott with $250 to file a social security claim. Styers believed he would receive some of Christopher's $5,000 life insurance policy. At the conclusion of the interview, Scott led police to the desert area where Christopher Milke's body was found.

Styers and Scott were interviewed separately. The Phoenix police interviewed Scott after the initial story. Scott's first story coincided with Styers' first story, but ultimately Scott led police to Christopher's body. After Scott's body-discovery information, a Phoenix police detective flew to Florence to interview Milke. She was told that her son had been found shot to death in the desert and that she was under arrest. The detective read her her Miranda rights, which she stated she understood.

During the Florence interview, Milke told the detective that she was upset with her son because he was going to turn out like his father--in jail, an alcoholic, and a drug user. Milke said that she verbalized these fears to Styers but did not think that he would ever hurt the child. She stated that she was not crazy, she just did not want Christopher to grow up like his father. She told the detective that she wanted God to take care of Christopher. She said she thought about suicide but decided against it because Christopher would then be in his father's custody. She decided it would be best for Christopher to die. She stated that she had a hard time telling Styers what she wanted, but she finally told him, and he agreed to help. Milke denied having a $5000 life insurance policy on Christopher, but stated that her father did; she denied that insurance money was her motivation, but admitted that it may have been Styers' and Scott's because Styers knew of the policy.

Milke was arrested and taken back to Phoenix. Additional facts about the circumstances of Milke's interrogation were discussed in later narrative material, including that the confession was described as unrecorded and not witnessed, and that no tape recorder had been used.

During the investigation, other Phoenix police detectives were told not to speak to Debra when lead detective Armando Saldate arrived. Milke was questioned in a closed-door interrogation, and Saldate later penned a narrative report indicating Milke had instigated the murder of her son Christopher. The confession was described as not tape-recorded, signed, or witnessed by anyone.

A later account also described that Christopher was shot three times in the back of the head from close range, and that when Roger Mark Scott led police to Christopher's body, the boy's chewing gum was clenched between his teeth.

Arrest

After more than fourteen hours of interrogation, Phoenix police arrested Roger Scott. Scott admitted that he knew where Christopher was and that the boy was dead and directed the police to a desert area north of Phoenix where Christopher's body was discovered.

Milke voluntarily went to the Pinal County sheriff's office, where she waited in a jail dispensary. Later she was transported and interviewed and then arrested and taken back to Phoenix.

Trial

Proceedings and parties

The proceedings in Arizona included Presiding Judge Cheryl K. Hendrix and Prosecutor Noel Levy. The start of trial was December 7, 1990.

Charges and verdict

Milke was charged with conspiracy to commit first degree murder, kidnapping, child abuse, and first-degree murder. At trial, the state withdrew the felony murder allegation.

The jury found Milke guilty of premeditated murder, conspiracy to commit first degree murder, kidnapping, and child abuse. The state alleged and the jury found the crimes of conspiracy, kidnapping, and child abuse to be of a dangerous nature.

Milke’s co-defendants, James Styers and Roger Scott, were charged and tried separately. Both were convicted of first degree murder and were sentenced to death.

Jury instruction and excusal of venireman for cause

Defendant argued that the trial court erroneously struck a venireman for cause based on his opposition to the death penalty. The trial judge asked:

THE COURT: Is there anyone here who . . . would rather not sit as a juror on this case because of the charge of first degree murder and because there is a possibility that the death penalty could be imposed? Mr. M.? P.M.: Yes. THE COURT: Would it make a difference if I told you that the jurors did not determine punishment; even in a capital case that decision is left to the Judge? P.M.: I don't think I'd want to have anything to do with it. I don't believe in capital punishment. THE COURT: All right. Thank you, sir. Anyone else?

The prosecutor later asked the court to strike P.M. for cause, which it did. Defense counsel did not object to this excusal, and both the prosecutor and defense counsel passed the panel for cause. The defendant waived any objection to the excusal “both by failing to object at the time of the excusal . . . and by expressly approving the panel at the Conclusion of voir dire.”

During trial, the court instructed the jury that "it is not necessary for the State to establish a motive for the Defendant to commit the crime."

The jury returned a verdict dated October 12, 1990.

Sentencing

Sentencing date and aggravating circumstances

Milke was sentenced on January 18, 1991 to death for the murder of her son. The sentencing included concurrent and consecutive terms on other counts.

Aggravating circumstances found included:

• The victim was under age 15 and the defendant was an adult.
• The murder was committed in expectation of pecuniary gain.
• The murder was committed in an especially heinous and depraved manner.

Sentence structure

Milke was sentenced to death for the murder and to terms of imprisonment on other counts, including:

• a concurrent life sentence without possibility of parole for 25 years for conspiracy,
• a concurrent 20 years for child abuse,
• a consecutive sentence of 20 years for kidnapping.

The trial court also stated: "considering the nature of the person and the nature of the crimes, the nature and extent of the aggravating circumstances and the nature and extent of the mitigating circumstances, I find that the mitigating circumstances are not sufficient to call for leniency."

Mitigating circumstances

The trial court found no statutory mitigating circumstances. It found that only three non-statutory circumstances were entitled to weight: no prior felony record, employment history, and conduct while incarcerated.

Milke offered non-statutory mitigating factors including grief, alleged legitimate question concerning guilt, lack of a prior felony record, potential for rehabilitation, deprived childhood, employment history, conduct while incarcerated and during trial, risk of future criminal conduct, and gender.

The trial court’s special verdict stated:

Testimony has been presented that the Defendant has experienced grief. However, no one has been able to state whether the grieving is for the loss of a son or is for the loss of freedom. On December 3, 1989[,] the defendant demonstrated little grief concerning the death of her son. Whatever the proper role of grief may be as a result of one's own acts, our independent review of the conflicting evidence leads us to agree with the trial court that defendant's grief in this case has not been shown to be a mitigating factor.

Appeals

Arizona Supreme Court appeal and cross-appeal

On December 21, 1993, the Arizona Supreme Court issued its opinion in State v. Milke, 177 Ariz. 118, 865 P.2d 779 (1993). The case was En Banc in Maricopa County. It was an appeal from the Superior Court of Maricopa County, with The Honorable Cheryl K. Hendrix, Judge. The opinion included: Moeller, Corcoran, Zlaket, Martone, McGregor Moeller; MOELLER, Vice Chief Justice.

The statement of the case recorded that Milke had been convicted by a jury of first degree murder, conspiracy to commit first degree murder, kidnapping, and child abuse. It also recorded that the victim of each of these crimes was her four-year-old son, Christopher. The court stated that Milke had been sentenced to death for murder and to terms of imprisonment on other counts, and that the appeal to the supreme court was automatic on the death sentence.

Issues presented on appeal included:

1. Whether it was error to strike one of the veniremen for cause.
2. Whether the jury instruction on motive constituted fundamental error.
3. Whether the child abuse conviction is based upon sufficient evidence.
4. Whether Arizona's death penalty statute is unconstitutional because:
   • the jury does not determine whether aggravating factors exist in capital cases, and
   • the sentencing court's discretion is not adequately channeled.
5. Whether the death penalty was properly imposed in this case.

Issues presented on cross-appeal included: 6. Whether the trial court erred by refusing to admit co-defendant Scott's confession at Milke's sentencing hearing. 7. Whether the trial court imposed an illegal sentence when it sentenced Milke to a concurrent rather than a consecutive sentence for child abuse. 8. Whether the trial court imposed an illegal sentence for conspiracy to commit first degree murder when it sentenced Milke pursuant to § 13-1003 rather than pursuant to § 13-703(A).

Rulings on appeal

The court found that it was not improper to excuse a juror whose views about the death penalty would prevent or substantially impair performance of duties in accordance with instructions and oath. It stated that defense counsel waived any objection.

On the motive instruction issue, the court noted that "it is not necessary for the State to establish a motive for the Defendant to commit the crime" was a correct statement of the law, and it held that there was no fundamental error when considering the totality of the circumstances, including closing arguments.

Regarding the child abuse conviction, the court set aside the defendant's conviction for child abuse pursuant to statutory obligation to review for fundamental error, stating that under the facts, a separate child abuse offense under A.R.S. § 13-3623(B)(1) did not occur when Christopher was murdered with premeditation. It emphasized that its holding had no effect on the use of child abuse as a predicate offense for felony murder.

Death sentence review and aggravating factors

The court discussed constitutional challenges to Arizona's death penalty procedure and rejected them based on cited authority.

With respect to aggravating factors, the trial court had found three statutory aggravating factors: (1) adult and victim under age 15, (2) expectation of pecuniary gain, and (3) especially heinous and depraved manner.

The court considered the especially heinous and depraved finding and addressed defendant’s challenges to that finding, including:

• senselessness,
• helplessness,
• reliance on the parent/child relationship,
• and whether additional aggravation was required beyond helplessness and senselessness.

The court held that the use of the parent/child relationship by the trial court in this case was permissible and within the Gretzler-Knapp parameters. It also held that additional factor of parent/child relationship was present, and concluded that it was constitutionally permissible to use that relationship in partial support of finding heinousness and depravity under § 13-703(F)(6).

On pecuniary gain, the court found the evidence did not establish the factor beyond a reasonable doubt in its independent review. It described that the trial court had concluded that the state had proven beyond a reasonable doubt that a motivating factor for the murder was the proceeds from the life insurance policy, but the supreme court concluded that conflicting inferences about Milke’s inconsistent statements on the policy left the state short of proving pecuniary gain beyond a reasonable doubt. The supreme court then stated that in its independent review it had set aside the finding of pecuniary gain as a statutory aggravating factor.

The court also conducted an independent review of aggravating and mitigating circumstances to determine whether the death penalty was properly imposed. It agreed with the trial court that no statutory mitigating circumstances were present and that only three non-statutory circumstances amounted to mitigation: no prior record, employment history, and conduct while incarcerated. It concluded that the other mitigation items were not shown by a preponderance of the evidence to be mitigating. It held that even though it set aside pecuniary gain as an aggravating factor, it nevertheless affirmed the death penalty on the murder count.

Cross-appeal rulings

The court did not decide the state's cross-appeal issue about admissibility of co-defendant Scott's confession at sentencing because it was moot in light of affirming the murder conviction and death sentence.

The issue about an illegal sentence for child abuse was moot because the child abuse conviction was being reversed.

On the conspiracy sentencing issue, the court held that the sentence imposed on the conspiracy count was proper under A.R.S. § 13-1003(D), stating that because defendant was convicted of conspiracy to commit first degree murder, which was a class 1 felony, the life sentence without possibility of release for 25 years was appropriate under the statute.

Final disposition by Arizona Supreme Court

The court searched the record for fundamental error. It:

• vacated the conviction for child abuse,
• affirmed the convictions for murder, conspiracy, and kidnapping,
• vacated the finding of pecuniary gain as a statutory aggravating factor,
• nevertheless affirmed the death penalty on the murder count,
• and affirmed the other sentences.

Other details

Milke was described in later narrative as held at Arizona State Prison Complex - Perryville in Goodyear, Arizona. In narrative material, additional personal background was included, including details of her divorce from Mark Milke, and the relationship and alleged threats involving Mark Milke. Additional narrative material described her drug-dependent husband Mark, divorce custody terms, supervised visitations, substance abuse counseling, and events leading to Debra Milke living with James Styers, including her fear of Mark’s threats and an episode where Mark allegedly attacked Debra.

The narrative also included statements that in her trial she was convicted and that the case involved a dispute over the nature and admissibility of a police detective’s claimed unrecorded conversation described as a confession. It also stated that she maintained privately that she had a hard time believing that her co-defendants had acted with her involvement.

The narrative also included later descriptions of appellate proceedings in which questions were raised about the admissibility of uncorroborated and unrecorded confessions, including discussion of the 9th Circuit Court of Appeals finding in September 2009 and a subsequent evidentiary hearing in which Judge Robert Broomfield disagreed with the appeal court’s opinion and found a valid waiver of Miranda rights. It also included verbatim statements from Judge Alex Kozinski at a hearing: “You know, I have never seen a case where there has been no signed Miranda waiver,” and “I don’t know any place in the civilized world in the last 30 years,” and “where a state has found a waiver of constitutional rights without a signed waiver.”