CRUELTY FINDING UPHELD
State v. Knapp (Knapp I), 114 Ariz. 531, 562 P.2d 704 (1977)
The Court attempted for the first time to define the terms "heinous, cruel or depraved." Cruel means disposed to inflict pain especially in a wanton, insensate or vindictive manner, namely, sadistic. The Court found that the facts of this case fall squarely within the meaning of heinous, cruel or depraved, but did not separate the facts supporting cruelty from the facts supporting heinousness or depravity. The facts are that the defendant poured fuel in great quantity around the room where his infant daughters were sleeping, stood in the doorway and threw a lit match into the room, and then went to lie down while his infant daughters burned to death. The medical evidence showed that the cause of death was incineration as well as carbon monoxide poisoning.
State v. Steelman (Steelman II), 126 Ariz. 19, 612 P.2d 475 (1980)
The Court upheld the (F)(6) finding based on heinousness, but described the significant mental anguish suffered by the victims as the primary reason for this decision. The two victims were held prisoner in their own home by the defendant and codefendant Gretzler for the better part of a day. Victim Patricia Sandberg was so upset by all accounts that the defendants gave her Valium to calm her down. Both victims knew that their captors were armed, hiding from the police and anxious to escape. They were separated, bound and gagged. Victim Michael Sandberg was bound by twine attached to his legs and placed around his neck so that he would choke if he tried to straighten out his legs. Michael Sandberg was shot before his wife, Patricia, was also shot by the defendants.
State v. Ricky Tison (Ricky Tison I), 129 Ariz. 526, 633 P.2d 335 (1981)
There was no evidence offered regarding pain suffered by the victims other than the medical testimony indicating that Theresa Tyson did not die instantly, but bled to death. However, the sentencing judge found that the victims must have experienced a great deal of mental pain by being moved from the highway at gunpoint with the fear that they would be killed, and by witnessing the murders of other family members. The Court found this analysis reasonable, but did not rest its decision on the (F)(6) factor solely on cruelty, as it also found the murders to be heinous and depraved.
State v. Joseph Smith (Joseph Smith II), 131 Ariz. 29, 638 P.2d 696 (1981)
The Court upheld the (F)(6) finding for both victims based on the trial court's determinations. For victim Neva Lee, the trial court determined that she had been murdered by forcing dirt into her mouth and upper respiratory system and died of suffocation. She also suffered a stab wound near her vagina and tears to her vaginal area. For victim Sandy Spencer, the trial court determined that she died of suffocation just like Ms. Lee, and suffered 19 or 20 stab wounds to her groin and pelvic area. There was also a sewing needle embedded in her left breast.
State v. Gretzler (Gretzler III), 135 Ariz. 42, 659 P.2d 1 (1983)
Mental: Victims were held prisoner for an extended time; throughout imprisonment victims were uncertain as to their ultimate fate; female victim highly emotional and had to take medication while being held; female victim heard her husband get shot to death, and had to wait for her turn to come. Physical: Male victim tied up in a crouched position for a sustained period, twine tied his ankles to his neck so that it would cause choking if he straightened his legs.
State v. Gerlaugh (Gerlaugh I), 135 Ariz. 89, 659 P.2d 642 (1983)
Mental/Physical: Victim subjected to severe beatings lasting ten to fifteen minutes; one assailant held victim down while defendant got into victim's car and ran over him several times; victim was still conscious and begging to know the reason for attack; victim was then stabbed with a screwdriver numerous times until his death.
State v. Gillies (Gillies I), 135 Ariz. 500, 662 P.2d 1007 (1983)
Mental: Victim transported from Phoenix to Superstition Mountains knowing she would be killed. Physical: Victim raped, thrown off a forty-foot cliff, then brutalized and beaten into unconsciousness prior to her death.
State v. McDaniel (McDaniel II), 136 Ariz. 188, 665 P.2d 70 (1983)
Mental/Physical: Victim conscious after being beaten, gagged, tied, wrapped in a blanket and locked in trunk of his car; victim "banging" from inside trunk, in extreme August heat. Knew or Reason to Know: McDaniel should have foreseen victim's suffering.
State v. Adamson (Adamson II), 136 Ariz. 250, 665 P.2d 972 (1983)
Mental/Physical: Victim was conscious; bomb fragments were imbedded in victim's body; witnesses heard victim screaming for help; one leg was shattered from upper hip to ankle; other leg and arm were severely mutilated. Knew or Reason To Know: Means used to kill made suffering reasonably foreseeable.
State v. Lambright, 138 Ariz. 63, 673 P.2d 1 (1983)
Mental: Victim abducted, taken away from city, was scared and trembling; victim was sexually assaulted twice; victim's fear for life was evidenced by her asking captors if they intended to let her go. Physical: Victim choked, stabbed in chest and abdomen with the knife being twisted and turned inside the body; victim's throat was cut deeply; after these attacks she remained conscious and alive and raised herself up on one elbow when defendant then threw a large boulder on her head.
State v. Robert Smith, 138 Ariz. 79, 673 P.2d 17 (1983)
Mental/Physical: Defendant Smith shares full responsibility for cruelty, as he was assailant who repeatedly raped victim prior to murdering her.
Note: Companion case to State v. Lambright.
State v. Summerlin, 138 Ariz. 426, 675 P.2d 686 (1983)
Mental/Physical: Defensive wounds on victim's hand; evidence of rape also indicated physical and mental suffering.
State v. McCall (McCall I), 139 Ariz. 147, 677 P.2d 920 (1983)
Mental: Victims held at gunpoint, had hands taped and mouths gagged with socks; Court inferred that three victims were uncertain of their ultimate fate; victims endured hearing loved ones shot, and waiting their turn. Physical: One victim was shot in head first, but did not lose consciousness.
State v. Libberton, 141 Ariz. 132, 685 P.2d 1284 (1984)
Mental: Victim listened to discussion about his imminent killing, including where his body would be hidden; victim spent several hours uncertain of his ultimate fate; victim requested and was given one last cigarette; victim pleaded for his life. Physical: Victim beaten three separate times.
State v. James, 141 Ariz. 141, 685 P.2d 1293 (1984)
Mental: Several hours elapsed while victim knew he would be killed; victim was held at gunpoint while driving for two hours to place where he would be murdered; victim was caught trying to escape during one beating; victim begged for his life in exchange for valuables. Physical: Victim beaten beyond recognition before his death with fists, rocks, and a board; gun intended to kill victim misfired and set victim's clothes on fire.
State v. Chaney, 141 Ariz. 295, 686 P.2d 1265 (1984)
Mental/Physical: Victim, a doctor and part-time deputy, remained conscious for thirty minutes after being shot by a high powered rifle multiple times; victim crouched in his vehicle to avoid bullets fired at him; before help arrived he listened to radio transmissions stating that no one knew where he was; victim knew he was dying and acknowledged this to medics. Knew or Reason To Know: Chaney was close enough to see victim was in pain, then fired gun again; when Chaney left he knew victim was not dead and knew victim was suffering.
State v. Harding (Gage murder), 141 Ariz. 492, 687 P.2d 1247 (1984)
Physical: Victim's hands and feet were bound; victim was gagged and died slowly by asphyxiation.
State v. Clabourne (Clabourne I), 142 Ariz. 335, 690 P.2d 54 (1984)
Mental: Victim forced to undress and serve drinks to defendant and his friends; victim raped over a six hour period, and begged defendant to protect her. Physical: Victim beaten and raped; victim struggled as she was strangled, indicating a good deal of suffering.
State v. Gillies (Gillies II), 142 Ariz. 564, 691 P.2d 655 (1984)
Mental/Physical: Victim abducted, held eight hours, driven to secluded area, and raped; then victim tied up, put back in car, forced to guide defendants to her apartment where victim was raped again; victim driven into mountains, taken to embankment, and kicked off the edge; victim didn't die, begged for life, then was struck repeatedly in head with rock.
State v. Carriger (Carriger III), 143 Ariz. 142, 692 P.2d 991 (1984)
Mental: Victim pleaded for his life to no avail; victim suffered terror of being uncertain as to his fate, and helpless to avoid assailant.
State v. Roscoe (Roscoe I), 145 Ariz. 212, 700 P.2d 1312 (1984)
See State v. Roscoe (Roscoe II).
State v. Bracy, 145 Ariz. 520, 751 P.2d 464 (1985)
Mental: Victims bound and gagged; knew assailants were armed; could be inferred that victims were uncertain as to their ultimate fate; experienced hearing their own loved ones being shot to death, and then waited for their turn to come; one attacker said, "We don't need these two anymore." Physical: Court found that one of victims suffered physical pain because she did not lose consciousness from first wound to her head. See "Researcher's Commentary" in full Case Summary. Note: The analysis here, and in the full case summary, is largely identical to McCall.
State v. Hooper, 145 Ariz. 538, 751 P.2d 482 (1985)
See State v. Bracy.
State v. Rossi (Rossi I), 146 Ariz. 359, 706 P.2d 371 (1985)
Mental: Victim grazed by first gunshot, and remained conscious after second shot, which was to the chest; victim had time to contemplate his ultimate fate and to plead for his life before fatal shot. Physical: Ammunition used by defendant was designed to create greater tissue damage; victim was in pain and conscious after first two shots and before final shot to head.
State v. Correll, 148 Ariz. 468, 715 P.2d 721 (1986)
Mental: All three victims were bound with duct tape and driven into desert; after first victim was shot, other two knew they would be killed next.
State v. Castaneda, 150 Ariz. 382, 724 P.2d 1 (1986)
Mental: Victim suffered sexual abuse, taken to a desert area, forced to walk naked approximately 100 yards; victim realized that defendant intended to kill him; victim begged for his life. Physical: Victim was stabbed four times, and it may have taken five minutes to die; Court inferred victim in great pain from being left on a red ant hill.
State v. Walter LaGrand, 153 Ariz. 21, 734 P.2d 563 (1987)
Mental: Victim, a bank manager, was bound and gagged, called a liar, threatened with death, and had a letter opener placed against his throat. Physical: Court found it reasonable to assume that victim suffered some physical torment; victim received twenty-four stab wounds, only five of which would have immediately killed him.
State v. Moorman, 154 Ariz. 578, 744 P.2d 679 (1987)
Mental: Defendant admitted that he and his mother were arguing, that he tied her up, hit her and suffocated her. Physical: Bruises and puncture marks were inflicted before victim's death. Note: In this case the victim was the defendant's adoptive mother. The facts are shocking, but the findings of the trial court and Court do not rely on the most outrageous elements of the crime. The full case should be read to fully understand the limited factors discussed by the Court.
State v. Beaty, 158 Ariz. 232, 762 P.2d 519 (1988)
Mental: Victim was thirteen-year-old girl who suffered terror and horror; presence of vomit in victim's mouth indicated her mental anguish while defendant held her against her will and clamped a hand over her mouth to muffle her screams before killing her.
State v. Mauro (Mauro II), 159 Ariz. 186, 766 P.2d 59 (1988)
Mental/Physical: Court implicitly upheld cruelty finding; facts are set forth in Mauro.
State v. Vickers (Vickers II (Holsinger murder)), 159 Ariz. 532, 768 P.2d 1177 (1989)
Mental: Court did not discuss mental suffering, but did note that victim tried to combat fire raging around his head. Physical: By throwing flammable liquid on victim-inmate and igniting him, victim suffered great pain.
State v. Walton, 159 Ariz. 571, 769 P.2d 1017 (1989)
Mental: Victim's fear was so apparent that accomplice tried to reassure victim that he would not be hurt; victim was forced to lie down on the ground while defendant argued with his accomplice over victim's fate; victim also heard defendant tell his accomplices to turn up volume on car radio; implication was so clear to victim that he urinated in his pants and begged for his life. Physical: See "Cruelty Findings Reversed" Table.
State v. McCall (McCall II), 160 Ariz. 119, 770 P.2d 1165 (1989)
Mental: Victims were bound and gagged; knew their assailants were armed; could be inferred that they were uncertain as to their ultimate fate; experienced hearing their own loved ones being shot to death, and then wait for their turn to be killed. Physical: Court found that one of the victims suffered physical pain because she did not lose consciousness from the first wound to her head. See "Researcher's Commentary" in full Case Summary.
State v. Fulminante (Fulminante I), 161 Ariz. 237, 778 P.2d 602 (1988)
Mental: Victim suffered mental anguish at the time of the crime; defendant's own words were that he "choked her and made her beg a little bit." Physical: Defendant's own words were that he "choked her until every last breath and then shot her."
State v. Samuel Lopez (Samuel Lopez I), 163 Ariz. 108, 786 P.2d 959 (1990)
Mental: Court held that a victim must be conscious for the act of violence or infliction of wounds preceding death, but a finding of cruelty does not require that the victim be conscious for each and every wound. Physical: The victim's blood was splattered throughout the apartment. A stream of blood dried down the victim's body and onto her feet, indicating that the victim was standing for some time while being stabbed. Bruises and lacerations on her right arm were characteristic of defensive wounds.
State v. Robinson and Washington, 165 Ariz. 51, 796 P.2d 853 (1990)
Mental: Terror and uncertainty as to her ultimate fate contributed to the victim's mental suffering; victim was bound and forced to lie on bedroom floor, probably heard one of the intruders say they should "get" her teenage son, watched husband shot and must have realized she was next.
State v. Amaya-Ruiz, 166 Ariz. 152, 800 P.2d 1260 (1990)
Mental: When the victim answered the assailant's knock at the door, she yelled "leave me alone, I'll give you the gun." Physical: Witness heard scuffling noises; defensive wounds to the victim's hands indicated that she struggled to save her life.
State v. Lavers, 168 Ariz. 376, 814 P.2d 333 (1991)
Mental: Daughter uncertain as to her fate; saw defendant stab her mom, asked not to be hurt, tried to call for help, and cried when her mom was stabbed; mother begged to know the fate of her daughter. Physical: Court found mother suffered physical pain due to being stabbed in back.
State v. Cook, 170 Ariz. 40, 821 P.2d 731 (1991)
Mental: Victims endured six to seven hours of torture. The second victim was told to undress. The second victim cried after seeing the first victim dead. Physical: The first victim was cut with a knife, beaten with fists, burned with cigarettes, sodomized, and had his genitals mutilated. The second victim was bound, sodomized and strangled to death.
State v. Greenway, 170 Ariz. 155, 823 P.2d 22 (1992)
Mental: Mother and daughter terrorized in home and uncertain of their own and loved one's fate while lying face down next to each other. Physical: (Mother): Shot first in leg before being killed execution-style after gun was reloaded.
State v. Brewer, 170 Ariz. 486, 826 P.2d 783 (1992)
Mental: Victim told she would be killed; victim resisted; victim conscious during forty-five minute attack. Physical: Victim beaten, bitten, eyes gouged, bruised, choked twice unsuccessfully, and killed by third choking attempt.
State v. Rossi (Rossi III), 171 Ariz. 276, 830 P.2d 797 (1992)
Mental/Physical: Conscious for short time after second shot; time to ponder ultimate fate.
State v. Medrano (Medrano I), 173 Ariz. 393, 844 P.2d 560 (1992)
Mental/Physical: Conscious up to fifteen to thirty minutes after attack; defensive wounds; knew her two children and friend's daughter were in house during attack, as well as being eight weeks pregnant; twenty stabbing and slashing injuries.
State v. Salazar, 173 Ariz. 399, 844 P.2d 566 (1992)
Mental/Physical: Defensive wounds; consciousness; beaten until suffered cranial hemorrhage and broken nose; strangled with phone cord which fractured thyroid cartilage.
State v. George Lopez, 174 Ariz. 131, 847 P.2d 1078 (1992)
Mental/Physical: Victim was one-year-old boy who was conscious and felt pain for forty-five minutes before lapsing into coma; mental anguish because beaten by parent; skull fractures; bone driven into brain; abdominal injuries, torn pancreas and bowel.
State v. Hill, 174 Ariz. 313, 848 P.2d 1375 (1993)
Physical: Victim was set on fire, his trachea contained smoke, indicating he was alive during the fire, he thrashed about trying to escape; victim was conscious and experienced tremendous pain when defendant set him on fire.
State v. Mickel Herrera, 174 Ariz. 387, 850 P.2d 100 (1993)
See State v. William Herrera, Jr.
State v. Kiles, 175 Ariz. 358, 857 P.2d 1212 (1993)
Mental: (Five-year-old child): Watched her mother being assaulted, screamed and hollered. Physical: (Girlfriend): Prolonged, vicious beating; regained consciousness before final attack; broken arm; elbow punctures.
State v. Samuel Lopez (Samuel Lopez II), 175 Ariz. 407, 857 P.2d 1261 (1993)
Mental/Physical: Victim struggled over protracted period of time; stabbed twenty-three times in chest, three in abdomen; throat cut; sexually assaulted with semen in vagina and anus; defensive wounds on arms, bruises on body. Knew or Reason To Know: Suffering was not only foreseeable, it was unavoidably obvious.
State v. Bible, 175 Ariz. 549, 858 P.2d 1152 (1993)
Mental/Physical: Nine-year-old victim had clothes removed without being torn or cut; found naked with hands tied; reasonable inferences are that victim was alive, conscious and stripped before she was bound, and that she was conscious when bound; victim was struck as well as tied.
State v. William Herrera (Sr.), 176 Ariz. 9, 859 P.2d 119 (1993)
Mental/Physical: Although defendant did not kill police officer, he ordered sons to do so, which makes his participation in the murder substantial and intentional. Victim hit in head, causing deep gash; victim on ground with hands in front of face; begged for life; defendant commanded son to shoot police officer; victim struck by defendant's knee.
State v. William Herrera (Jr.), 176 Ariz. 21, 859 P.2d 131 (1993)
Mental/Physical: Victim hit in head with police radio that defendant threw, causing deep gash; victim on ground with hands over face while defendant told brother to shoot officer; victim was in this position for at least eighteen to twenty seconds and possibly two to three minutes; victim begged for life.
State v. Schurz, 176 Ariz. 46, 859 P.2d 156 (1993)
Mental/Physical: Victim conscious while receiving third and fourth degree burns over nearly 100% of body.
State v. Runningeagle, 176 Ariz. 59, 859 P.2d 169 (1993)
Mental: Defendant taunted victims with knife, broke through door of home with tire iron, defensive wounds; neighbor heard crying; victims lived three to four minutes after stabbing; couple watched each other suffer through attack. Physical: Knife wounds, fatal and nonfatal; lived three to four minutes after stabbing. Knew or Reason To Know: Found without extensive comment.
State v. Michael Apelt, 176 Ariz. 349, 861 P.2d 634 (1993)
Mental: Victim was forcibly subdued by man she believed to be a loving husband, and taken to desert where she was killed; scrapes on knees and defensive wound indicate consciousness during initial attack. Physical: Victim was hit repeatedly with great force; was conscious when stabbed in chest and four times in back and as her throat was slashed.
State v. Rudi Apelt, 176 Ariz. 369, 861 P.2d 654 (1993)
Mental/Physical: Court stated that cruelty is established for the reasons set forth in State v. Michael Apelt. Knew or Reason To Know: Rudi Apelt argued cruelty could not be attributed to him because he did not participate in the actual killing. However, cruelty focuses on the victim's suffering, not defendant's actions or mental state. Rudi knew his brother Michael was to transport Cindy to desert and kill her, therefore, Rudi knew or should have known Cindy would suffer great physical pain or mental anguish.
State v. Stuard, 176 Ariz. 589, 863 P.2d 881 (1993)
Physical: Victims suffered terrible pain during beatings and stabbings; Court did not provide a lengthy factual analysis because it found error in the mitigation phase of sentencing, requiring a reduction in the sentence.
State v. Ramirez, 178 Ariz. 116, 871 P.2d 237 (1994)
Mental/Physical: For twenty to thirty minutes, neighbors heard banging, screaming, cries for help, and running noises; blood and weapons found throughout apartment, each victim stabbed fifteen to twenty times; victims aware of each other's suffering. Knew or Reason To Know: victims' suffering inescapably foreseeable.
State v. Maturana, 180 Ariz. 126, 882 P.2d 933 (1994)
Mental/Physical: Victim conscious, defensive wounds, victim shaking and screaming after each gunshot.
State v. Bolton, 182 Ariz. 290, 896 P.2d 830 (1995)
Mental: Victim was abducted from bed by stranger, carried several blocks, placed into car, disrobed and stabbed; victim was conscious for substantial duration of crime until her death, as established by fingerprints and blood stains inside cab indicating that victim was standing upright after being stabbed. Physical: Medical evidence that a person with similar injuries would have suffered excruciating pain; took fifteen to thirty minutes to die after stabbing. Knew or Reason To Know: Only post wound suffering must be foreseeable; defendant's subjective intent irrelevant; Court found suffering objectively foreseeable.
State v. Stokley, 182 Ariz. 505, 898 P.2d 454 (1995)
Mental/Physical: Strangulation death not instantaneous; defendant repositioned hands during strangulation causing longer struggle; victims stabbed in or near eye, bruises and abrasions, stepped on, vaginal hemorrhaging, fractured cranium, skull lacerations. Knew or Reason To Know: Found, but Court gave no factual analysis.
State v. Walden, 183 Ariz. 595, 905 P.2d 974 (1995)
Mental/Physical: Victim's hand tangled in electrical cord used to strangle her, indicating she was conscious and was struggling to free the cord, blood splatters around the room indicating she was conscious and moving around the room during the attack, throat was slit, blunt force injuries to arms, legs, face, mouth, and cuts on chest.
State v. Roger and Robert Murray, 184 Ariz. 9, 906 P.2d 542 (1995)
Mental/Physical: Victims kidnapped at gunpoint in the middle of the night, one body found clutching other's arm, defensive wounds, killed execution-style.
State v. Roscoe (Roscoe II), 184 Ariz. 484, 910 P.2d 635 (1996)
Mental/Physical: Victim conscious when abducted, stripped and bound, forced to perform oral sex, gagged with panties, vaginally assaulted, strangled; medical testimony established that vaginal assault was excruciatingly painful and victim struggled to survive four to five minutes after being strangled.
State v. Kemp, 185 Ariz. 52, 912 P.2d 1281 (1996)
Mental: Victim abducted, driven into desert, provided killers with ATM number, removed from truck, forced to disrobe, and shot twice in back of head; only reasonable inference is that victim suffered incredible terror from moment of abduction until murder, and must have pondered his ultimate fate.
State v. Hurles, 185 Ariz. 199, 914 P.2d 1291 (1996)
Mental/Physical: Victim's consciousness demonstrated by trying to reach the phone, and later responding to paramedics at scene; suffered fifteen defensive stab wounds, eight stab wounds to head, twelve to torso, and two to lower extremities; blunt force trauma tore liver.
State v. Danny Jones, 185 Ariz. 471, 917 P.2d 200 (1996)
Mental/Physical: Robert Weaver: Victim bleeding and unconscious from initial blows, he regained consciousness and struggled to get up, smearing blood throughout garage; victim experienced pain and uncertainty about ultimate fate. Mental: Tisha Weaver: Victim was a child, aware of the attack on her grandmother, hid under the bed out of fear, was dragged out from under the bed and struggled with defendant before being killed, had time to contemplate her ultimate fate.
State v. Darrel Lee, 185 Ariz. 549, 917 P.2d 692 (1996)
Mental/Physical: Finding of cruelty upheld without further factual comment.
State v. Miles, 186 Ariz. 10, 918 P.2d 1028 (1996)
Mental: Victim abducted and driven to desert for twenty-five to thirty minutes, repeatedly begged not to be hurt, got on her knees, pleaded for her life; defendant participated extensively in the abduction, he obtained the gun, held gun on victim during drive to desert, stood nearby while codefendant shot victim. Knew or Reason To Know: All of the victim's mental suffering was reasonably foreseeable. Note: Codefendant of Jackson.
State v. Jackson, 186 Ariz. 20, 918 P.2d 1038 (1996)
Mental: Victim abducted and driven to desert for twenty-five to thirty minutes, repeatedly begged not to be hurt, got on her knees, pleaded for her life; defendant drew gun to her head three times, walked away in between and spoke to codefendant about whether to kill victim, within her hearing, returned to victim third time and shot her in the chest while her hands were in the air in a defensive posture.
State v. Towery, 186 Ariz. 168, 920 P.2d 290 (1996)
Mental/Physical: Victim confronted in home at gunpoint, bound, placed face down on bed, asked whether he wanted to be left tied up or put to sleep, remained conscious while subjected to an attempted strangling, injected with mystery substance, strangled again.
State v. Laird, 186 Ariz. 203, 920 P.2d 769 (1996)
Mental/Physical: Victim overpowered, locked in bathroom, hog-tied, gagged, noose tightened around neck and twisted with screwdriver; evidence of a fierce struggle between victim and defendant at murder scene.
State v. Miller, 186 Ariz. 314, 921 P.2d 1151 (1996)
Mental/Physical: Defendant responsible for codefendant's actions; victim shot, driven down to desert, held at gunpoint, struggled to escape, shot repeatedly.
State v. Dickens, 187 Ariz. 1, 926 P.2d 468 (1996)
Mental/Physical: Male victim forced to relinquish wallet at gunpoint and asked if ready to die; forced to watch wife killed execution-style; then shot in back of head; remained conscious for at least twenty minutes until found by deputy. Knew or Reason To Know: Defendant must have known one victim would watch the execution of the other.
State v. Lacy, 187 Ariz. 340, 929 P.2d 1288 (1996)
Mental/Physical: Medical testimony "strongly suggested" that blow to victim's head did not render her unconscious prior to the multiple gunshot wounds; defendant's own statements about the struggle that ensued after the blow support that conclusion.
State v. Detrich (Detrich II), 188 Ariz. 57, 932 P.2d 1328 (1997)
Mental: Victim conscious with defensive wounds on hands; dragged to car with knife to her throat, appeared terrified. Physical: Forty cutting wounds on victim's hands, chest, face, neck, abdomen, and thigh; throat cut ear to ear, slashing through voice box, esophagus, and part of cerebral column; after throat slit, victim attempted to respond to defendant's questions, but could only gurgle; blunt force injuries to head.
State v. Mann, 188 Ariz. 220, 934 P.2d 784 (1997)
Mental/Physical: Victim was alive and conscious for three to five minutes after defendant shot him, according to the defendant's girlfriend who was present for the murder; medical examiner testified that victim was probably only conscious for ten to twenty seconds and may have been in shock, but trial court found the girlfriend's testimony more persuasive, and Court deferred to factual findings of the trial judge.
State v. Barry Jones, 188 Ariz. 388, 937 P.2d 310 (1997)
Physical: Victim was a young child who was in pain for many hours after she was assaulted; victim was crying and vomiting with bruises on her face, fingers, and hands; medical testimony established that the blow to victim's bowel would have caused great pain initially and would have continued to cause pain afterward; victim also sustained painful genital injuries, as well as defensive wounds that establish she was conscious during the beating. Knew or Reason To Know: Victim's suffering was objectively foreseeable; defendant knew how severely he had beaten the victim and saw she was physically ill for the remainder of the evening; defendant lied that he had secured medical attention for the victim, intentionally extending her suffering by ensuring she did not receive medical care.
State v. Spreitz, 190 Ariz. 129, 945 P.2d 1260 (1997)
Mental/Physical: Victim was stripped naked, beat, raped, dragged, and finally struck in head with rock to kill her. Victim defecated in and on her clothing, which was significant to finding of mental anguish.
State v. Schackart, 190 Ariz. 238, 947 P.2d 315 (1997)
Mental/Physical: Victim was held hostage for four to five hours, uncertain as to her ultimate fate, sexually assaulted, told she may be tied up or drugged, struck in the head, strangled; victim was conscious for at least one or two minutes after strangling began; Court emphasized that although the facts in this case support a cruelty finding, all stranglings are not per se cruel and all sexual assault/killing combinations do not automatically support a cruelty finding.
State v. Rienhardt, 190 Ariz. 579, 951 P.2d 454 (1997)
Mental/Physical: Victim was taken hostage, threatened, beat, told he would be killed, endured twenty minute drive into desert, and was still alive when large rocks were dropped on his head to crush his skull. Victim's panicked statements to one of captors indicated he feared for his life.
State v. Trostle, 191 Ariz. 4, 951 P.2d 869 (1997)
Mental: Victim abducted at gunpoint, driven for thirty minutes into desert, forced to disrobe and kneel down, and begged for her life before being shot. Knew or Reason To Know: Court held defendant knew or should have known victim would suffer great mental anguish.
State v. Djerf, 191 Ariz. 583, 959 P.2d 1274 (1998)
This factor is based on whether the victim consciously suffered physical or mental pain, including uncertainty as to one's fate.
Albert Luna, Sr.. The evidence showed that this victim was conscious during all or part of the beating he suffered from the baseball bat. Even if unconscious earlier, he later regained consciousness and struggled with the defendant in the kitchen. There he was stabbed with a knife that pierced his right forearm and was embedded in his torso.
Damien Luna. The defendant tried unsuccessfully to break this five-year-old victim's neck and electrocute him before ultimately shooting him in the head. He was present when the defendant told Patricia that he had killed Rochelle, and unquestionably would have been uncertain of his own fate.
Rochelle Luna. Evidence that the victim was bound indicates consciousness, as there is no need to bind an unconscious person. This victim would have suffered uncertainty as to her fate when she was forced into the bedroom, gagged and bound. Moreover, she had abrasions and contusions on her wrists indicating a struggle against the restraints before she was raped, her throat slit and stabbed nine times.
Patricia Luna. The defendant did not dispute the cruelty finding for this victim who would have feared for her life for hours, been forced to watch the defendant kill her husband, and hear that the defendant had killed her daughter.
State v. Doerr, 193 Ariz. 56, 969 P.2d 1168 (1998)
Mental/Physical: The medical examiners could not specifically state the sequence of injuries or when the victim lost consciousness, however, the physical evidence indicated extreme pain and mental anguish. The victim had bruising and swelling on her arms consistent with defensive actions and hair clenched in her fist. Her nose had been broken, and she had cuts on her lip. She bled extensively from her vagina and rectum which indicated wounds prior to or during death. In total, she had twenty-six other injuries to her body. Furthermore, the physical evidence at the crime scene showed her bloody footprint on the bathtub and bloody hair swipes on the walls and other surfaces. These and other findings suggest a violent struggle. A neighbor heard a female screaming at 3:30 a.m. that morning. All of this supports a finding of pain and extreme cruelty.
State v. Sharp, 193 Ariz. 414, 973 P.2d 1171 (1999)
Mental/Physical: The trial court found cruelty based on the great physical and emotional pain suffered by the victim when she was sexually assaulted and murdered. The victim here was conscious and suffered physical pain while she was brutally beaten, sodomized and strangled. The victim had defensive wounds and scratched the defendant in an effort to defend herself. This shows that she anticipated her fate and suffered mental anguish during the attack.
State v. Todd Lee Smith, 193 Ariz. 452, 974 P.2d 431 (1999)
Mental/Physical: The trial court found that the state had proven cruelty beyond a reasonable doubt for Mrs. Tannehill, but not for Mr. Tannehill. The Court here agreed with that ruling. The facts could not show that Mr. Tannehill was conscious after the initial blows to his head. A surgically implanted plastic plate in Mr. Tannehill's head was shattered in the attack, but the medical examiner could not pinpoint when during the attack this would have occurred. It could have happened with the first blow, rendering the victim unconscious or killing him outright. This victim did not have any defensive wounds. Thus, there was insufficient evidence to prove cruelty for Mr. Tannehill. However, there was sufficient evidence to prove cruelty for Mrs. Tannehill. The defendant stated that he only knocked her down initially. She had defensive wounds indicating that she was alive during the attack and had the opportunity to fear for her life and her disabled husband's life. She would have watched as her elderly husband tried to defend them by grabbing at the defendant's gun. She would have seen the defendant beat her husband with the gun before she herself was beaten. The defendant himself stated that he beat her again when he saw her getting up from the first beating. Cruelty can be found where the victim experiences mental anguish over the uncertainty of her own fate, and where a victim witnesses the killing of a family member before she herself is killed.
State v. Medina, 193 Ariz. 504, 975 P.2d 94 (1999)
Mental/Physical: The victim's cries right before being run over by the defendant's car indicated both physical and mental pain and suffering.
State v. Van Adams, 194 Ariz. 408, 984 P.2d 16 (1999)
Mental/Physical: There was significant evidence that a struggle took place between the victim and her assailant. There were damaged candles and candlestick holders in the bathroom of the model home, buttons and semen stains in the closet, bruises on the victim's neck, the defendant had a black eye and a facial injury, paint and ceramic chips in the bathroom and the bed, the victim's torn and knotted clothing, and injuries on her hands and wrists. There was also medical testimony that it takes from ninety seconds to two or three minutes for a strangulation victim to lose consciousness, and that some of the victim's injuries were inflicted prior to death.
State v. Clabourne (Clabourne II), 194 Ariz. 379, 983 P.2d 748 (1999)
Mental/Physical: The defendant did not contest the trial judge's (F)(6) finding. The (F)(6) aggravating circumstance had been found by the trial court at the first sentencing hearing, and the Court in Clabourne I upheld that decision. The Court here reiterated its earlier decision upholding the finding of the (F)(6) aggravating circumstance. The victim was picked up by the defendant and codefendant, raped and forced to undress and serve her assailants drinks over a six hour period of time, begged this defendant to protect her and was ultimately strangled.
State v. Poyson, 198 Ariz. 70, 7 P.3d 79 (2000)
Mental/Physical: The Court found cruelty based on great physical pain and "unspeakable mental anguish" suffered by victims Delahunt and Wear. Both victims struggled with the defendant and his accomplice and repeatedly asked why they were being murdered. After Delahunt’s throat was slashed with a butter knife, the defendant slammed his head against the floor, pounded it with a rock, and drove the knife into the victim’s ear. Delahunt, 15 years old, struggled for 45 minutes before dying. He repeatedly asked the defendant and codefendant why they were trying to kill him. His hands showed defensive wounds. Wear begged the defendant not to hurt him, saying, "Bobby, stop. Bobby, don’t. I never did anything to hurt you." This victim was shot in the mouth, shattering several teeth. While conscious, he was struck in the head numerous times with a rifle and cinder block, and kicked in the head.
State v. Sansing, 200 Ariz. 347, 26 P.3d 1118 (2001)
Mental: The victim was conscious during at least part of, if not the majority of the attack. The defendant and his wife bound the victim with extension cords while the victim said, "Lord, please help me." The defendant struck the victim in the head with a club several times, rendering her temporarily unconscious. The defendant stipulated in his plea agreement that the victim was conscious when he returned after briefly leaving the house. He then raped and stabbed the victim while she was conscious. The victim died several minutes later. This evidence established the victim was aware of and had sufficient time to contemplate her fate.
State v. Canez (I), 202 Ariz. 133, 42 P.3d 564 (2002)
Physical/Mental: Canez attempted to strangle the victim, stabbed him six times and delivered 10 blunt force injuries to the head and 11 other blunt force injuries. The defendant used his fists, a frying pan, a laundry bag and a knife. The victim was conscious throughout the attack.
State v. Eugene Tucker, 205 Ariz. 157, 68 P.3d 110 (2003) (Ring)
Physical: The victim, Tucker’s girlfriend, had been raped vaginally and anally, bludgeoned about the head, strangled, and then shot twice in the head. The ligature marks for the strangulation were conclusively made before the victim died. Police officers testified that the disarray of the room and the various locations of blood spatter patterns and blood pools indicated there was a prolonged struggle. Although the medical examiner could not exactly ascertain the victim’s consciousness during the attack, the fact that she was handcuffed at some point during the attack indicated that she was conscious for a portion of it, as there would have been no need to subdue an unconscious victim. The extent of the victim’s injuries showed that she suffered physically. The finding of cruelty was deemed harmless beyond a reasonable doubt.
State v. (John Edward) Sansing, 206 Ariz. 232, 77 P.3d 70 (2003) (Ring)
The victim was a volunteer worker from the Living Springs Church who had driven to Sansing’s home to deliver food. Sansing told his wife that he planned to rob her when she arrived. The entire criminal course of conduct took place while Sansing’s wife and four children were present, and the victim begged the children to call 911 during the attack. Mental: It took Sansing 15 minutes to initially attack the victim, bind her and club her into unconsciousness. While being bound, the victim pleaded, “Lord, please help me” and “I don't want to die, but if this is the way you want me to come home, I am ready.” He then dragged her into the bedroom and sexually assaulted her while her arms and legs were bound. Sansing’s wife, who was present all along, heard the victim and Sansing speaking during the rape. Physical: The victim died of three stab wounds to the abdomen, each of which were not immediately fatal. It would have taken several minutes for the victim to bleed to death. Moreover, the wound patterns were consistent with twisting the knife inside the victim, and Sansing’s wife testified that she saw Sansing “grind” the knife into the victim. The medical examiner testified that the stab wounds would have caused pain. Also, the victim’s head wound from the initial clubbing was “substantial” and resulted in a “tremendous amount of bleeding” and would have caused pain. Note on Rape: “The evidence of the rape independently establishe[d] both mental and physical suffering.”
State v. (Robert Louis) Cromwell, 211 Ariz. 181,119 P.3d 488 (2005) Jury Trial/Indep. Review
Mental: Cromwell had met the victim’s mother that day as she walked to a store near to her apartment. The mother invited Cromwell to her apartment, which she shared with three daughters. The five all went out to eat together, then returned to the apartment, where the mother smoked some methamphetamine. Cromwell and the mother went out to a number of local bars so that the mother could fill out job applications and play some pool. They returned to the apartment and played cards until the mother received a call from a friend asking her to come to his house and settle a domestic dispute. The mother agreed and left her girls with Cromwell because he “seemed so nice.” Cromwell then raped the eldest daughter, 11-year-old-Stephanie, stabbed her thirteen times in the back and inflicted five blows to her head, including throwing a television set on top of her. Nine-year-old Amanda heard Stephanie crying at some point during the events, and saw Stephanie standing naked in a bathtub while Cromwell washed her down with wet socks. When the mother and a female friend returned, Cromwell rushed them, attacked them with a pool cue until the cue broke in two, and fled. Stephanie was faintly alive when the first officer arrived on the scene, but died by the time paramedics arrived. The medical examiner testified that Stephanie was alive when she suffered the vaginal trauma and received the stabbing injuries.
The court appeared almost at a loss for words, stating that the record was “replete” with evidence of cruelty. The court found that Stephanie “unquestionably suffered unspeakable mental anguish” based upon the medical examiner’s testimony that Stephanie was alive at the time of the sexual assault and the stabbings. The court concluded that “given her tender age, [she] was made to suffer pre-death anguish by conduct indescribable except in the most repulsive terms.”
State v. Ellison, 213 Ariz. 116, 140 P.3d 899 (2006) Jury Trial/Indep. Review
Mental Anguish: The Court found that the especially cruel aggravator based on extreme mental anguish was proved beyond a reasonable doubt. The evidence established that the Bouchers were conscious when they were bound and were aware of each other’s suffering. They were uncertain as to their ultimate fate after being attacked and bound by two men in their home at night. They also heard one man ordering the other to kill Mr. Boucher.
The Court rejected the state’s argument that the Bouchers’ physical injuries and the inherent nature of being suffocated or strangled also showed physical cruelty. There was no specific evidence that the Bouchers consciously suffered any extreme physical pain. The Court also noted that it has been unwilling to find that all stranglings are per se cruel.
State v. McGill, 213 Ariz. 147, 140 P.3d 930 (2006) Jury Trial/Indep. Review
McGill mixed gasoline with styrofoam creating a napalm-like mixture. He tossed the mixture upon the victim and set him afire. The victim was burned over 80% of his body, screamed in pain, and ultimately died. Setting a conscious person on fire necessarily causes the victim tremendous suffering which was enhanced by the napalm-like mixture which stuck to the victims and made it difficult rescuers to put out.
State v. (Joe Clarence) Smith, 215 Ariz. 221, 159 P.3d 531 (2007) (Ring)
Especially Cruel: The court found that overwhelming evidence established that the murders of Spencer and Lee were especially cruel. They both died of asphyxiation after having their noses and mouths filled with dirt and taped shut. Such asphyxiation would undoubtedly cause mental anguish and physical pain. At a minimum, Smith should have known pain and anguish would occur. Especially Heinous or Depraved: The court decided that because it independently concluded that the murders were especially cruel, it need not consider the jury’s separate findings of heinousness and depravity.
State v. (Wendi Elizabeth) Andriano, 215 Ariz. 497, 161 P.3d 540 (2007) Jury Trial/Indep. Review
Especially Cruel: The evidence showed that Andriano poisoned her husband, who was terminally ill with cancer, and left him to suffer a long time. She knew from her Internet research that poisoning with sodium azide would cause her husband physical pain and mental anguish. He was conscious as he suffered the effects of the poisoning, and remained conscious until Andriano struck him at least 23 times in the back of the head with a bar stool. The court concluded that cruelty was established based on either, or both, mental anguish or physical pain.
State v. (Cory Deonn) Morris, 215 Ariz. 324, 160 P.3d 203 (2007) Jury Trial/Indep. Review
Especially Cruel: The court found that the especially cruel aggravator based on extreme mental anguish was proved beyond a reasonable doubt. The evidence established that the victims were conscious and experienced pain for at least some period of time while they were being strangled. Three of the victims also struggled with Morris. Especially Heinous or Depraved: The court decided that because a finding of cruelty alone is sufficient to establish the (F)(6) aggravator, it need not address whether the jury abused its discretion in finding that the murders were also heinous and depraved.
State v. (Eugene) Tucker (Tucker II), 215 Ariz. 298, 160 P.3d 177 (2007) (Ring)
Especially Cruel finding upheld as to Victim 1 only. Physical Pain: Victim 1, the defendant’s girlfriend, had been raped vaginally and anally, bludgeoned about the head, strangled, and then shot twice in the head. The ligature marks made during strangulation were conclusively inflicted before the victim died and were used to control her consciousness. The various locations of blood spatter patterns and blood pools indicated there was a prolonged struggle. The court found that the victim was conscious when she was bound and strangled. The extent of her injuries showed that she suffered extreme physical pain. Especially Heinous or Depraved: The court decided that because the state established beyond a reasonable doubt that the victim’s murder was especially cruel, it did not need to also determine whether her murder was especially heinous or depraved.
State v. (Juan) Velazquez, 216 Ariz. 300, 166 P.3d 91 (2007) Jury Trial/Indep. Review
Especially Cruel – the Court found that the State proved beyond a reasonable doubt that the 20-month old child experienced intense physical pain as she was suffocated, squeezed, tripped, and left to die. She was conscious when she sustained the skull fracture that caused her death.
State v. McCray, 218 Ariz. 252, 183 P.3d 503 (2008)
Especially Cruel: The Court found that this aggravator was proved beyond a reasonable doubt. The evidence showed that the defendant forced his way into the victim’s apartment, physically assaulted her, raped her, and strangled her with a cord. The medical examiner testified that the victim probably died one to five minutes after the strangulation began, and he concluded from both the nature of her injuries and the condition of the apartment that a struggle probably occurred. The Court found that the victim was conscious during a substantial part of the “murder transaction” and that she suffered intense physical pain and mental anguish during that time. The defendant should have known that attacking, raping and strangling the victim would cause her severe physical and mental pain.
State v. Boggs, Steve, 218 Ariz. 89, 183 P.3d 392 (2008) Jury Trial/Indep. Review
Especially cruel: Defendant's detailed confession supported finding the murders were especially cruel due to mental anguish. The three victims were forced at gunpoint to lie down, ordered to empty their pockets, ordered to march into a freezer, and then shot in rapid succession. After the Defendant left the freezer, he heard screaming and returned and shot some more. ¶77-¶79.
State v. (Cody James) Martinez, 218 Ariz. 421, 189 P.3d 348 (2008) Jury Trial/Abuse of Discretion Review
Especially Cruel – Physical and Mental Pain: The Court found that substantial evidence supported the jury’s finding that the killing was especially cruel. The State conclusively established that Martinez’s ongoing physical violence against the victim caused the victim mental anguish that Martinez knew or should have known would have occurred. ¶¶69-71. Especially Heinous or Depraved: The Court decided that because the jury heard overwhelming evidence that the slaying was especially cruel, and a finding of cruelty alone is sufficient to establish the (F)(6) aggravator, it need not examine whether the jury abused its discretion in finding that the murders were also heinous and depraved. ¶71.
State v. (Patrick Wade) Bearup, 221 Ariz. 163, 211 P.3d 684 (2009)
The victim suffered both physical pain and mental anguish, and Bearup knew of his suffering. The victim attempted to stand and shield himself while screaming “No. Leave me alone,” as he was attacked with a baseball bat. The assault lasted between sixty and ninety seconds, and the victim suffered visible facial fractures and substantial blood loss.
State v. Alvie Copeland Kiles, 222 Ariz. 25, 213 P.3d 174 (2009)
(F)(6) cruelty upheld. Kiles admitted that the girlfriend remained conscious after the attack began, and medical testimony regarding defensive wounds supported that conclusion. The location of the blood indicates that the victim may have attempted to escape and suffered the pain of multiple blows before she lost consciousness and died.
State v. (Ryan Wesley) Kuhs, 223 Ariz. 376, 224 P.3d 192 (2010)
The victim suffered significant pain before his death. He was stabbed several times, and ultimately died by bleeding to death while choking on his own blood. The victim had ample opportunity to feel pain and to contemplate his own impending death. After a final stab wound to his head, the victim was not immediately unconscious, but lay unable to move in a pool of his own blood. Kuhs left the victim alive and dying, and took no action to alleviate his suffering. The jury did not abuse its discretion in finding this aggravating circumstance.
State v. (Leroy D.) Cropper, 223 Ariz. 522, 225 P.3d 579 (2010)
F6 cruelty finding upheld. The evidence demonstrated that Cropper sought out a violent confrontation. The struggle lasted up to two minutes, he acknowledged. Further, the medical testimony regarding the victim’s wounds and blood loss demonstrates that the officer suffered physical pain. The medical examiner explained that the wounds inflicted would have been particularly painful because of the “higher concentration of nerves” in the neck; the officer would have felt a “stinging, burning kind of pain.” The officer bled to death as a result of a number of penetrating injuries to his thyroid gland, the jugular vein, and his chest cavity and lung. Thus, it would have taken minutes for him to lose consciousness because the time it would have taken to lose consciousness was the time it took him to bleed out. Thus, the facts established beyond a reasonable doubt that the officer consciously suffered physical pain and Cropper knew or should have known he would experience such pain.
State v. (Joshua Idlefonso) Villalobos, 225 Ariz. 74, 235 P.3d 227 (2010)
F6 cruelty finding upheld. The State presented substantial evidence that the victim suffered and that Villalobos knew or should have known she was suffering, supporting the cruelty prong of this aggravator. Villalobos admitted that he beat the victim and she remained conscious. The medical examiner also testified that the victim was conscious after she was punched and would have been in pain comparable to that from a ruptured appendix. Ample evidence also supported the jury’s separate finding that the murder was especially heinous or depraved based on its conclusion that the murder was senseless, the victim was helpless, and Villalobos had a caregiver relationship with the victim.
State v. (Derek Don) Chappell, 225 Ariz. 229, 236 P.3d 1176 (2010)
F6 cruelty finding upheld. The medical examiner’s testimony supported a finding that Devon consciously experienced mental anguish before his death and Chappell knew or should have known that Devon would suffer. Chappell told reporters during a post-arrest press conference that Devon had struggled while in the pool and he remembered Devon “looking at [him] straight in the eyes as he was in the water.” The Court noted that “extreme” mental anguish is not required to establish this aggravator, and the mere fact that Devon was two years old, and possibly did not comprehend he was dying, did not prevent the jury from finding that he consciously experienced mental anguish before his death.
State v. (Mike Peter) Gallardo, 225 Ariz. 560, 242 P.3d 159 (2010)
F6 cruelty finding upheld. The record contained substantial evidence that the victim experienced mental anguish before death and that Gallardo knew or should have known that such suffering would occur. The victim almost certainly was conscious when bound, as there is no reason to bind an unconscious person. There also was evidence that the victim struggled against the ligatures attempting to free himself. That he was bound hand and foot, a pillowcase was tied over his head, and he struggled to free himself also indicates he had time to suffer significant uncertainty as to his fate.
State v. (Wayne Benoit) Prince, 226 Ariz. 516, 250 P.3d 1145 (2011)
F6 cruelty upheld. The victim experienced uncertainty about her fate, feared for her life, and consciously suffered mental anguish before being shot. On the night of the murder, she saw and heard Prince attack and savagely beat her mother in the family’s apartment. She stood beside her mother in the living room as Prince, gun in hand, screamed and threatened to kill the entire family. He prevented anyone from leaving and threw the victim violently to the floor when she tried to run for help. Following more argument and violence against the mother, Prince shot the victim in the head. At least twenty minutes passed between the time Prince and the mother arrived home and the shooting occurred.
State v. (Clarence) Dixon, 226 Ariz. 545, 250 P.3d 1174 (2011)
F6 cruelty upheld. The Court found especial mental cruelty had been proven. Deana had to have suffered mental anguish while she was hit, raped, and strangled, and Dixon should have known that she would suffer.
State v. (Dale Shawn) Hausner, 230 Ariz. 60, 280 P.3d 604 (2012)
State v. (Isiah) Patterson
(F)(6) finding not reviewed. The Court declined to review the jury finding that two of the murders were especially cruel, based on the finding that each of the murders was heinous or depraved, which suffices to establish the (F)(6) aggravator.
, 230 Ariz. 270, 283 P.3d 1 (2012)
(F)(6) finding upheld. The victim was conscious while the defendant repeatedly stabbed her. Although mortally wounded, she attempted to escape and seek help. The defendant chased her down, sat over her and stabbed her – a total of thirteen times. The jury did not abuse its discretion in finding the (F)(6) aggravator (“especially cruel”) based on the“..victim consciously suffer[ing] physical pain or mental anguish during at least some portion of the crime and the defendant knew or should have known that the victim would suffer.” State v. Dixon, 226 Ariz. 545, 556, 250 P.3d 1174, 1185 (2011).
State v. (Fabio Evelio) Gomez
, 2012 WL 6061679, 293 P.3d 495 (Ariz., 2012)
(F)(6) “especially cruel” finding upheld. The victim's injuries, her screams, evidence of a struggle in her apartment, and the fact that she had been gagged all indicated the victim was conscious during part of the attack. The Court held that regardless of when the victim lost consciousness as result of the eighteen blows to her head, the State proved beyond a reasonable doubt that she was conscious for part of the attack and suffered physically and mentally.
(F)(6) “heinous and depraved” also upheld. The State also proved beyond a reasonable doubt that defendant knew or should have known that the victim was suffering physically and mentally.The medical examiner testified that the victim suffered eighteen or more blows to her head, at least one of which was inflicted with as much force as that caused by a motor vehicle accident. She also suffered cuts, scrapes, bruises, and bone fractures. Her wounds suggested that she was conscious and moving while being beaten. She had defensive wounds and grip marks on her arms indicating that she struggled while being held down with significant force.
*State v. (Shawn Ryan) Grell (Grell III)
, 231 Ariz. 153, 291 P.3d 350 (2013)
On independent review, the Court found that the State proved all three aggravating factors beyond a reasonable doubt, but did not address them in detail in light of its conclusion that Grell’s mental retardation precluded imposition of the death penalty. The Court stated that
“Shawn Ryan Grell murdered his two-year-old daughter, Kristen Grell, by pouring gasoline on her and lighting her on fire,” adding a footnote: For a more detailed statement of facts relating to the underlying crime, see State v. Grell (Grell I ),
205 Ariz. 57, 58–59, ¶¶ 3–15, 66 P.3d 1234, 1235–36 (2003), and State v. Grell (Grell II ),
212 Ariz. 516, 518, ¶¶ 3–4, 135 P.3d 696, 698 (2006).
In Grell II
, 212 Ariz. 516, 519, 135 P.3d 696, 699 (2006):
In Grell II
|Citing the facts that Kristen was conscious when set on fire, that she had to have suffered immense physical pain, and that Grell should have foreseen the pain she would suffer, the court also found the crime “especially cruel.”
, 212 Ariz. 516, 519, 135 P.3d 696, 699 (2006):
State v. (Steven John) Parker
| In addition, while acknowledging that only a finding of cruelty was necessary to satisfy the § 13–703(F)(6) aggravating factor, the court also found the crime heinous and depraved. The court cited the following factors in making these findings: (1) the crime was senseless; (2) the victim was helpless; (3) the victim was the defendant's own child; (4) the method of killing ensured that the victim would suffer “unimaginable pain”; (5) the method ensured that the body would be disfigured; and (6) the defendant made comments to a convenience store clerk after the murder about seeing a dog set on fire.FN3 The court stated that these facts satisfied the test set forth in State v. Gretzler, 135 Ariz. 42, 659 P.2d 1 (1983), and concluded that the manner of killing, in addition to being cruel, was also heinous and depraved.
Cases where the death sentence was reduced have been marked with an *.
, 231 Ariz. 391, 296 P.3d 54 (2013)
To prove the especial cruelty aggravator, the state must establish “that a victim was conscious and suffered physical pain or mental anguish before death and that the defendant knew or should have known that the victim would suffer.” There was evidence that both V1 and V2 were conscious during the attack and that they suffered. V1 had several stab wounds, and the location of the wounds and the blood spatter indicate that he was stabbed before receiving the blunt force injury that killed him. Further, the blood spatter expert testified that V1 likely tried to come to V2's aid after he was initially attacked, suggesting that V1remained conscious and suffered physical pain and mental anguish.
As for V2, her ankles were bound with speaker wire and she had ligature marks and bruises, caused by blunt force trauma likely inflicted before her death, on her leg and foot. She also suffered knife wounds to her left hand and face. Although she would have remained conscious only a short while after her fatal injury — a stab wound to her chest that cut her aorta — even this small period of suffering can establish especial cruelty. Further, that V1 was bound supports a finding that she was conscious, and so would have suffered mental anguish. [Citations omitted].
State v. (Eric Deon) Boyston, 231 Ariz. 539, 298 P.3d 887 (2013)
The “especial cruelty” aggravating factor requires that “the victim consciously experienced physical or mental pain prior to death, and the defendant knew or should have known that suffering would occur. Consideration is given to not only the final act but the entire series of events.
Although defendant’s alleged PCP intoxication was referenced in the guilt phase, additional evidence was not introduced during the aggravation phase to rebut defendant’s ability to “know or should know” but was held until the penalty phase. Several witnesses indicated that defendant seemed normal. The jury did not abuse its discretion.
The defendant shot V2 twice in the back and once through his arm. V2 walked ten feet and said, “..it hurts.” The statement of pain was supported by ME testimony about blood-drop patterns, the location of pain receptors and the source of the blood. The jury could reasonably find that V2 was shot at close range inside the apartment and that significant physical pain ensued. The jury could as reasonably conclude that defendant knew or should have known that he had caused pain, as the defendant followed the wounded, barely walking V2 outside where he shot him two more times.
Defendant stabbed V5 nine times. Three to the facial area and two to his back were non-fatal wounds; of the four to the chest, one was fatal. The fatal wound would have resulted in death within a few seconds or minutes, up to twenty minutes. Because the victim’s hands were covered in blood, the ME testified that V5 likely attempted to stop the bleeding. The victim’s cries for help and attempts to stop the blood flow demonstrate not only physical pain but also mental anguish. The (F)(6) aggravator was established for this murder.
State v. (Robert) Hernandez, 232 Ariz. 313, 305 P.3d 378 (2013)
Substantial evidence supported the “especial cruelty” finding. “Especial cruelty” was established by the one victim’s awareness of her fate (herded into house; bound; hearing anguished cries of the men), and of a loved one’s suffering (heard pleas and screams coming from husband and brother in law in the other room). The finding was supported by substantial evidence as to the other two victims.
State v. (Trent Christopher) Benson, 232 Ariz. 452, 307 P.3d 19 (2013)
In special verdict forms the jury found both “especially cruel” and “especially heinous or depraved” as to each murder, the (F)(6) aggravator.
The finding of “especial cruelty” was supported by injuries to one victim that evidenced a struggle during strangulation (marks suggesting the ligature had to be readjusted; abrasions on her chin), suggesting the passage of time, pain and emotional trauma. Because “especial cruelty” was established, the “especially heinous or depraved” finding was not reviewed.
State v. (Christopher Mathew) Payne, 233 Ariz. 484, 314 P.3d 1239 (2013)
In special verdict forms the jury found both “especially cruel” and “especially heinous or depraved” as to each murder, the (F)(6) aggravator.
Although the jury instruction was erroneous (“the defendant intended, knew, or should have foreseen” the victims would suffer or experience mental anguish) under Carlson, in this case the defendant knew or should have known that the conduct would cause the result, and no jury could find otherwise. The evidence indicated that the children were locked in a closet where they lived in darkness and filth, suffering injuries and slow starvation, and is distinguishable from the Carlson accomplice.
Voluntary intoxication consideration – Failure to consider drug use to rebut (F)(6) aggravator was not fundamental error; defendant was permitted to argue intoxication as mitigation.
State v. Stephen Douglas Reeves,
233 Ariz. 182, 310 P.3d 970 (2013)
Reeves did not contest the sufficiency of the evidence to support three of the aggravators found by the jury—(F)(2), (F)(5), and (F)(7)(a); the record supported the findings.
The (F)(6) aggravating circumstance may be based on a finding that murder was especially cruel or that murder was especially heinous or depraved. “Especially cruel” requires proof that the victim experienced physical or mental pain and that the defendant knew or should have known that she would suffer:
[Defendant entered the office and] asked if the office was hiring; [the victim] said no, and he left. About five minutes later, defendant returned carrying a piece of concrete and demanded her car keys and cell phone. [The victim] attempted to push an alarm button. Defendant, who was much larger …, forced her to the floor and straddled her. For about eight minutes, while [she] screamed and struggled, defendant beat her, hit her with the concrete, wrenched her neck, and attempted to strangle her with his hands and a piece of wood. Finally, he retrieved a box cutter from another room and slit her throat. He turned off the lights and dragged her body into a back room.”
The record supported the “especially cruel” finding.
Because the jury in its special verdict found “especial cruelty,” the Court declined to reach defendant’s oral argument challenge to the sufficiency of evidence supporting the alternative (F)(6), “murder was especially heinous or depraved,” finding.
State v. Israel Joseph Naranjo, 234 Ariz. 233, 321 P.3d 398 (2014) “Especial cruelty” exists where “the victim consciously experiences physical or mental pain prior to death, and the defendant knew or should have known that suffering would occur.”
Mental anguish and physical pain are demonstrated by defensive wounds (broken nail and wounds on victim’s arms), testimony by an eyewitness about her mother’s screams and attempts to push the defendant away, and the victim talking to her daughter after the defendant left. The jury could find both consciousness during the attack and suffering.
Defendant’s ability to “know or should have known” of the victim’s suffering was not inconsistent with what the State termed his “lifetime drug abuse.” Rejection of the insanity defense meant the jury necessarily found that he was capable of understanding the nature of his actions. Further, stabbing the victim twelve times coupled with her screaming suggests he should have been aware that she was suffering. The record supports this finding.
State v. Burns, No. CR-11-0060-AP, 2015 WL 1018894 (Mar. 10, 2015)
Substantial evidence supported the finding that the victim was conscious and that she suffered mental and physical pain. The skull fractures, blood and earring in the defendant’s truck, as well as the victim’s ripped bra and top all suggest a struggle and sexual assault. The blood spatter and the bullet found in the sand established that the victim was shot after being taken out of the truck. When her body was found, she appeared to be clutching a branch, which further suggests that she was still conscious when she was shot and would have been aware of what was happening to her. The defendant knew or should have known that his actions would cause the victim to suffer.
Multiplicity and Double Jeopardy: (F)(2)
(Multiplicitous) Use of both the kidnapping and sexual assault convictions to establish the (F)(2) aggravator did not render the (F)(2) aggravator multiplicitous. Multiple contemporaneous convictions may be used to prove (F)(2).
(Double Jeopardy) The Court declined to address the claim that use of the predicate crimes to establish felony murder and then to establish “serious offense” and the (F)(2) aggravator, resulted in multiple punishments, as defendant was also convicted of premeditated murder, which conviction would stand were the felony murder conviction to fail. The Court noted, however, that the claim would fail on its merits, as an element of an offense can be used as a capital aggravator.
State v. Lynch (Lynch II), -- Ariz. --, -- P.3d -- , 2015 WL 5254845 (September 10, 2015)
The Court again independently reviewed the aggravation findings, and found that the F(6) especially cruel aggravator was established beyond a reasonable doubt. The conscious victim was bound to a chair, and injuries established both that he struggled and that he had time to contemplate his fate.
CRUELTY FINDING REVERSED
State v. Watson (Watson II), 120 Ariz. 441, 586 P.2d 1253 (1978)
After citing the dictionary definitions of cruel, heinous or depraved listed in State v. Richmond, the Court found that the facts of this case did not meet the standard. While the defendant went upstairs with the gun, the victim got his own gun and began shooting at the codefendant. The defendant then came back downstairs and shot the victim four times in the back, the last time when the victim was lying face down on the floor. Because this was a shootout between the victim and the two robbers, the Court felt that the evidence did not rise above the norm of first degree murders.
State v. Lujan, 124 Ariz. 365, 604 P.2d 629 (1979)
Using the dictionary definitions of heinous, cruel or depraved, the Court did not find that the murder in this case was done in such a manner as to set it apart from the norm of other first degree murders. Here, after a codefendant punched and knocked down the victim, the defendant came over and stabbed him once in the abdomen. A murder must senselessly or sadistically inflict great pain on the victim to be especially cruel. Here, there is nothing in the record to indicate that the victim suffered pain.
State v. Brookover, 124 Ariz. 38, 601 P.2d 1322 (1979)
The Court here cited the Florida Supreme Court's definition of heinous, atrocious or cruel. "It is our interpretation that heinous means extremely wicked or shockingly evil; that atrocious means outrageously wicked and vile; and, that cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies[,] the conscienceless or pitiless crime which is necessarily torturous to the victim." The victim here was shot twice in the back during a drug deal. While this certainly was cowardly, this does not rise to the level of a particularly cruel or depraved manner of murder.
State v. Madsen, 125 Ariz. 346, 609 P.2d 1046 (1980)
The defendant fired one shot from his rifle and hit the victim in the back of the head. The victim lost consciousness immediately and never regained it prior to death. The Court agreed with the trial judge that the murder was planned and cold-blooded, but felt that this supported the premeditation requirement for first degree murder as opposed to the (F)(6) aggravating factor. The Court noted that there was no debasement of the victim by the defendant, nor was the defendant's conduct perverted.
State v. Clark, 126 Ariz. 428, 616 P.2d 888 (1980)
No evidence that any of the four victims suffered any pain. The fatal wounds appear to have been delivered at vital body parts, and death ensued quickly.
State v. Bishop (Bishop II), 127 Ariz. 531, 62 P.2d 478 (1981)
It is unclear if the trial court made a separate cruelty finding, but the Court here states that the evidence does not support a cruelty finding. The medical examiner testified that the victim would have been incapable of feeling pain after the first blows to the head with the claw hammer. The victim thrashed about and made gasping sounds, but according to the medical testimony, would not have been conscious of pain.
State v. Ortiz, 131 Ariz. 195, 639 P.2d 1020 (1982)
The Court upheld the constitutionality of the "especially heinous, cruel or depraved" language of (F)(6) and found that those terms have not been defined in an unconstitutionally broad or vague manner. The Court disagreed with the trial court that this crime was especially cruel as the state could not prove beyond a reasonable doubt that the victim suffered during the commission of the murder. The victim was stabbed many times, may have been strangled, and was set on fire by the defendant.
State v. Woratzeck, 134 Ariz. 452, 657 P.2d 865 (1983)
The Court found the evidence inconclusive as to whether the victim suffered in such a way as to support a cruelty finding. However, the Court reiterated the pathologist's testimony that the blows to the head were inflicted last and were the cause of death. The victim was also strangled and stabbed three times in the chest before she suffered the two blows to the head. The victim suffered from Huntington's disease and had the mental capacity of a fifteen-year-old.
State v. Graham, 135 Ariz. 209, 660 P.2d 460 (1983)
Mental/Physical: Victim shot twice, in rapid succession, through a closed screen door; medical examiner testified that victim was rendered unconscious immediately, died within five minutes and did not suffer.
State v. Jeffers, 135 Ariz. 404, 661 P.2d 1105 (1983)
Mental/Physical: Victim was injected with heroin, after which she lost and never regained consciousness.
State v. Richmond (Richmond II), 136 Ariz. 312, 666 P.2d 57 (1983)
Physical: No evidence to indicate victim suffered more pain than that of initial blow which rendered him unconscious.
State v. Harding (Wise, Concannon murders), 137 Ariz. 278, 670 P.2d 383 (1983)
Mental/Physical: No evidence beyond a reasonable doubt that victims were conscious at time they were treated "sadistically."
State v. Villafuerte, 142 Ariz. 323, 690 P.2d 42 (1984)
Mental/Physical: State failed to show beyond a reasonable doubt that victim was conscious when acts of violence causing death were committed.
State v. Patrick Poland (Patrick Poland II), 144 Ariz. 388, 698 P.2d 183 (1985)
Mental/Physical: Court found insufficient evidence to indicate mental or physical suffering of victims, armored car guards; no conclusive evidence as to whether guards were drugged; state did not show that either were conscious at time of death; no evidence about conditions of victims' confinement.
State v. Michael Poland (Michael Poland II), 144 Ariz. 412, 698 P.2d 207 (1985)
Mental/Physical: Court found insufficient evidence to indicate mental or physical suffering of victims, armored car guards; no conclusive evidence as to whether guards were drugged; state did not show that either were conscious at time of death; no evidence about conditions of victims' confinement.
State v. Bernard Smith, 146 Ariz. 491, 707 P.2d 289 (1985)
Physical: Evidence of cruelty in this case was pain and mental anguish of victim during two weeks after shooting and before victim's death; since defendant shot victim in head, Court inferred that defendant intended to kill immediately, not to prolong suffering.
State v. Wallace (Wallace I), 151 Ariz. 362, 728 P.2d 232 (1986)
Mental: Court rejected finding because each victim was attacked quickly and by surprise. Physical: Court rejected finding because record is inconclusive as to whether any of victims were even conscious following initial blow to head.
State v. Walton, 159 Ariz. 571, 769 P.2d 1017 (1989)
Physical: Court rejected finding of physical pain, but not because victim did not suffer; victim forced to lie prone on ground with head immobile. Knew or Reason To Know: Victim's survival of shot to head, and subsequent floundering in desert for a week, were neither reasonably foreseeable nor intended.
State v. Hinchey (Hinchey I), 165 Ariz. 432, 799 P.2d 352 (1990)
Mental: Gunshot wound victim suffered could have rendered victim unconscious. Physical: Only evidence of physical suffering was moaning; medical examiner's testimony suggested that moaning might have been involuntary and reflexive act. Knew or Reason To Know: Court pointed out that the state presented no evidence that defendant intended or foresaw that victim would suffer.
State v. Jiménez, 165 Ariz. 444, 799 P.2d 785 (1990)
Mental: Court rejected a finding of mental suffering; victim knew and liked defendant, and had no reason to feel fear or experience apprehension. Physical: Defendant's own confession that victim had cried during the stabbing was unreliable; pathologist conclusively found that stab wounds occurred after victim's death.
State v. Soto-Fong, 187 Ariz. 186, 928 P.2d 610 (1996)
Mental: Three victims killed in rapid succession without appreciable time to contemplate ultimate fate. Physical: Where shots, stabbing, or blows are inflicted in quick succession, one leading rapidly to unconsciousness, a cruelty finding, without any additional supporting evidence, is not appropriate. Consciousness of victim must be established for finding of cruelty, but assumption that a murder is especially cruel whenever a victim remains conscious for some moments after being shot is flawed.
State v. Todd Lee Smith, 193 Ariz. 452, 974 P.2d 431 (1999)
The trial court did not make a cruelty finding for Mr. Tannehill, but only for Mrs. Tannehill. The Court agreed with that ruling and discussed both the propriety of the cruelty finding for Mrs. Tannehill, and the insufficient evidence to support a cruelty finding for Mr. Tannehill in its decision. See discussion under "Cruelty Finding Upheld."
State v. Lehr (I), 201 Ariz. 509, 38 P.3d 1172 (2002)
Mental: Based on the testimony of victims who survived the defendant's attacks, the trial court inferred the remaining murder was especially cruel because the victim suffered terror and mental anguish from the time she was abducted until the moment she was killed. The Supreme Court found that there was little known about the victim’s death and "it is simply too speculative to conclude that this homicide was committed in a cruel, heinous, or depraved manner."
State v. Carlson, 202 Ariz. 570, 48 P.3d 1180 (2002)
Physical/Mental The victim was bedridden and ill. The killers (not Carlson) repeatedly stabbed her as she tried to defend herself. She lay in her room for 3 hours, unable to call for help. She then lived for about 6 months before passing. The court found that while Carson, who hired the killers, might not have foreseen her co-conspirators would bungle the killing. The tort law concept of foreseeability does not apply in determining eligibility for the death penalty. Rather, only the concept of mens rea applies, which requires a finding that the defendant intended that the murder would be committed in such a way as to cause the victim to suffer or, absent intent, knew it would be so. Because Carson did not plan how the murder would be committed and could not have known that the killer would botch it by closing his eyes while repeatedly stabbing the victim, she could not be held responsible for the resulting cruelty.
State v. (Wayne) Prince, 206 Ariz. 24, 75 P.3d 114 (2003) (Ring)
Mental. After commencing a verbal and physical fight with his wife, Prince grabbed his wife’s thirteen-year-old daughter as she was trying to flee, threw her to the floor, and announced that he would kill the children and his wife and then kill himself. When the wife attempted to telephone the police, Prince threatened them and screamed obscenities, causing the wife to step between Prince and her daughter. Prince punched the wife in the face, placed his gun into a pillow and fired, from inches away, into the daughter’s head, killing her. He then shot his wife, who survived, and fled into hiding; failing to make good on the “kill himself” promise. The trial court found this factor based upon the daughter’s contemplation of her fate before being shot. The court held that “few especially cruel findings. . . are predicated solely on an inference that the victim contemplated his or her fate,” and “no witness could quantify the length of time between the point at which [the daughter] first experienced mental anguish and the moment that Prince shot [her].” It, therefore, could not conclude beyond a reasonable doubt that no reasonable jury would fail to find this factor.
State v. (Danny) Montano, 206 Ariz. 296, 77 P.3d 1246 (2003) (Ring)
Mental/Physical: The victim was stabbed 179 times and was alive between one and three minutes or five and ten minutes after the first fatal stab wound, depending upon which wound was inflicted first. According to the medical examiner, the victim would have suffered shock and then lost consciousness after losing two-to-three pints of blood. There was testimony elicited on cross-examination that raised the possibility that the victim fell unconscious after receiving blows from either Montano or his accomplice before the stabbings began. While the state introduced evidence that screams of pain and torture emanated from the victim’s cell after the assailants entered, his screams “also could [have] indicate[d] his reaction to the fighting taking place beforehand.” Therefore, the court could not conclude that no reasonable jury would have failed to find this factor.
State v. (Robert Joe) Moody, 208 Ariz. 24, 94 P.3d 1119 (2004) (Ring)
As to the first victim, who was Moody’s ex-girlfriend, she was cut with a kitchen knife, bludgeoned with a bb gun, and shot several times with a .22 caliber rifle. She had a defensive wound on her hand, a broken fingernail, and a lost contact lens. In addition, there was blood through the house and Moody admitted that there was a “violent struggle” before Moody subdued her by tying her into a chair. Regarding the second victim, Moody tied her up with such force that marks were left on her arms and wrists. During Moody’s trips to the bank to withdraw the victim’s money, the victim suffered physical anguish and mental anguish over her fate. However, because there was some evidence that Moody was in a disassociated state due to psychosis, drug impairment, or both, the court could not conclude beyond a reasonable doubt a jury would have found that Moody knew or should have known that the victims were suffering.
State v. (Gary Wayne) Snelling, 225 Ariz. 182, 236 P.3d 409 (2010)
F6 cruelty finding reversed. The Court found that cruelty had not been established beyond a reasonable doubt. The record showed only that the victim was suddenly confronted by an assailant who promptly strangled her to death and therefore, she did not contemplate her fate for very long. The State also presented no evidence of physical suffering because even if the victim was conscious for some time during the strangulation, that alone does not support a finding of physical pain.
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