A.R.S. §13-751(F)(10)-VICTIM IS A PEACE OFFICER
A.R.S. §13-751(F)(10) currently provides that it shall be an aggravating circumstance where "[t]he murdered person was an on duty peace officer who was killed in the course of performing the officer’s official duties and the defendant knew, or should have known, that the murdered person was a peace officer."
Constitutionality: Under State v. (Edward James) Rose, 231 Ariz. 500, 297 P.3d 906 (2013), A.R.S. § 13-751(F)(10), which makes the killing of a police officer in the line of duty an aggravating circumstance, is constitutional. The (F)(10) factor neither arbitrarily nor irrationally distinguishes between a peace officer and a non-peace officer in violation of equal protection and due process principles. The Court cited Cruz, noting a similar lack of authority for the proposition that the legislature cannot identify the killing of an on-duty peace officer as an aggravating factor. Since punishment for criminal activity is within the purview of the legislature, the Court presumed the constitutionality of the statute “when there is a reasonable, even though debatable, basis for the enactment of a statute.” State v. Arnett, 119 Ariz. 88, 47-48, 579 P.2d 542, 551-52 (1978). In State v. Hulsey, --- P.3d ---, 2018 WL 455394 (2018) the Court held that defendant’s first degree murder conviction, and death eligibility based on A.R.S. §§13-751(F)(10) and 13-1105(A)(3) do not violate due process.
Application of the (F)(10) factor does not constitute cruel and unusual punishment in violation of the Eighth Amendment. The Court applied the “evolving standards of decency that mark the progress of a maturing society” to determine whether the punishment was cruel and unusual. Defendant conceded that other states recognize a peace officer’s murder as an aggravating factor. State v. (Edward James) Rose, 231 Ariz. 500, 297 P.3d 906 (2013).
History: The Arizona Legislature amended the capital sentencing statute in 1988 to include this aggravating circumstance. The effective date was September 30, 1988.
1999 language (effective as of August 6, 1999): In 1999, the legislature substituted the word “person” for “individual,” and “murdered person” for “victim.
2002 language (effective as of August 1, 2002): In 2002, the legislature made this provision gender neutral by replacing “his” with “the officer’s.”
Analysis: In reviewing the legal sufficiency of this factor, the court must find evidence that (1) the murder victim was an on-duty peace officer, (2) the officer was killed while performing official duties, and (3) the defendant knew, or should have known, that the victim was a peace officer.
Peace Officer: The term “peace officer” is defined in A.R.S. § 13-105(28) [“any person vested by law with a duty to maintain public order and make arrests”]. Prison guards do not qualify. See generally State v. Cropper, 206 Ariz. 153, 76 P.3d 424 (2003) ((F)(10) was not applied to defendant who committed 1997 murder of prison guard).
No Double Counting: A defendant can be charged with first-degree murder by killing a police officer in the line of duty, A.R.S. §13-1105(A)(3), and be eligible for the death penalty based solely on the aggravating circumstance of killing a police officer in the line of duty, A.R.S. §13-751(F)(10). Although these require proof of nearly identical facts, the Supreme Court has found no impermissible double counting. State v. Cruz, 218 Ariz. 149, 181 P.3d 196 (2008). There also is no creation of a presumption of death simply because upon conviction for first-degree murder, the defendant is eligible for the death penalty. Killing a person one knows to be a peace officer who is acting in the line of duty adequately narrows the class of persons subject to the death penalty. Id.
To date, only two opinions directly address this aggravating circumstance. State v. Cruz, 218 Ariz. 149, 181 P.3d 196 (2008), and State v. Martinez, 196 Ariz.451, 999 P.2d 795 (2000). In Cruz, the defendant shot to death a police officer who was chasing him after he ran during a routine investigation following a hit-and-run accident. Cruz did not contest that he knew the victim was a police officer acting in the line of duty when he was killed. In Martinez, the defendant shot to death a uniformed officer who had pulled him over for speeding. Martinez conceded the existence of this aggravating circumstance at sentencing and did not challenge it on appeal.
In three other cases the (F)(10) aggravating circumstance is mentioned, but only to note that the crimes occurred before the effective date of the amendment adding (F)(10) to the list of statutory aggravating circumstances. See State v. Mickel Herrera, 174 Ariz. 387, 850 P.2d 100 (1993); State v. William Herrera, Sr., 176 Ariz. 9, 859 P.2d 119 (1993); and State v. William Herrera, Jr., 176 Ariz. 21, 859 P.2d 131 (1993).
(F)(10) FINDING UPHELD
State v. Martinez, 196 Ariz. 451, 999 P.2d 795 (2000)
The victim, Officer Martin, was an on duty peace officer killed in the course of performing his official duties. He was in uniform and was in a marked police car when he pulled the defendant over. The defendant therefore knew or should have known that he was a peace officer. The defendant conceded the existence of this aggravating circumstance at sentencing and did not contest it on appeal.
State v. Cruz, 218 Ariz. 149, 181 P.3d 196 (2008)
The victim, Officer Hardesty, was an on duty peace officer killed in the course of performing his official duties. He and another officer were investigating a hit-and-run accident and contacted the defendant. The defendant ran off. He shot Hardesty as Hardesty was chasing him. The defendant did not contest the existence of this aggravating circumstance at trial and did not contest it on appeal.
State v. (Donald David) Delahanty, 226 Ariz. 502, 250 P.3d 1131 (2011)
F10 finding upheld. There was ample evidence to support the finding that the victim was a peace officer killed while performing his official duties. The officer, driving a marked patrol car, had stopped a car in which Delahanty was a passenger. Delahanty shot the officer three times in the head and neck, killing him.
State v. (Bryan Wayne) Hulsey, --- Ariz. ---, --- P.3d --- (2018) WL 455394 (January 18, 2018).
A.R.S. § 13-751(F)(10), which makes the killing of a police officer in the line of duty an aggravating circumstance, is constitutional. The (F)(10) factor neither arbitrarily nor irrationally distinguishes between a peace officer and a non-peace officer in violation of equal protection and due process principles. The Court citing State v. Cruz, 218 Ariz. 149, 169–70 ¶¶ 128–32 (2008), noting it previously addressed and rejected this claim, and declined to revisit that decision.
The Court, contrary to Hulsey’s argument, outlined that “Lowenfield [v. Phelps, 484 U.S. 231, 244 (1988)] requires that the sentencing scheme genuinely narrows the class of persons eligible for the death penalty and therefore ensures that the selected crimes are sufficiently serious that the offense reasonably justifies the severe sentence.” The Court continued, “the aggravator applies only to a small group of perpetrators who intentionally or knowingly kill on duty peace officers. See State v. Hidalgo, 241 Ariz. 543, 551 ¶ 24 (2017) (“An aggravating circumstance satisfies this narrowing requirement so long as it applies only to a subclass of murders.”); see also State v. Greenway, 170 Ariz. 155, 163–64 (1991).
(F)(10) FINDING REVERSED
No reported cases
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