A.R.S. § 13-751(F)(5)-COMMISSION OF MURDER FOR PECUNIARY VALUE
A.R.S. § 13-751(F)(5) provides that it shall be an aggravating circumstance where "[t]he defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value."
History: This aggravating circumstance was one of the six original aggravating circumstances included in the 1973 version of the capital sentencing statute. The constitutionality of this subsection was upheld in State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978).
Rejection of “Murder For Hire” Distinction: Originally, this aggravating circumstance was thought to apply to murders-for-hire or contract killings. The person who hired the murderer fit under (F)(4), and the person who committed the murder for money qualified under (F)(5). In State v. Clark, 126 Ariz. 428, 616 P.2d 888 (1980), the Court rejected this narrow interpretation of the (F)(5) aggravating circumstance. The Clark Court held that if the receipt or expectation of anything of pecuniary value is a cause of, or motive for, the murder, then the (F)(5) aggravating circumstance exists.
The Non-Exclusive Motive: Pecuniary gain does not apply in every case where a person has been killed and at the same time the defendant has benefited financially. State v. Correll, 148 Ariz. 468, 715 P.2d 721 (1986). There must be proof “that the murder would not have occurred but for the defendant’s pecuniary motive.” State v. Ring (III), 204 Ariz. 534, 560, 65 P.3d 915, 941 (2003). This often quoted “but for” language must be treated with care. As the court has further elaborated, "if the expectation of pecuniary gain is a motive, cause, or impetus for the murder and not merely a result of the murder," this factor has been proven. State v. Prasertphong, 206 Ariz. 167, 169, 76 P.3d 438, 440 (2003) (emphasis added); State v. Hyde, 186 Ariz. 252, 280, 921 P.2d 65, 683 (1996). This means that pecuniary gain need not be the exclusive cause or motivation for the murder; when “the expectation of pecuniary gain is among the causes of the killing, the aggravating factor of pecuniary gain is established." State v. West, 176 Ariz. 432, 448, 862 P.2d 192, 208 (1993); accord State v. Armstrong, 208 Ariz. 360, 363, 93 P.3d 1076, 1079, nt 2 (2004) (expressly rejecting the principle that pecuniary gain must be proven to be the sole, “but for” motive for the murder to support application of the (F)(5) aggravator).
Permissible Conclusions from the Taking/Non-Taking of Valuables (Robbery/Theft) “Proving a taking in a robbery or the existence of some economic motive at some point during the events surrounding a murder does not necessarily prove the motivation for a murder.” State v. Rutledge, 206 Ariz. 172, 175, 76 P.3d 443, 446 (2003) (citing to State v. Medina, 193 Ariz. 504, 975 P.2d 94 (1999)). In the absence direct evidence or strong inferences supporting the conclusion that there was a “motivating connection between the robbery and the homicide,” State v. Lamar, 210 Ariz. 571, 574, ¶11, 115 P.3d 611, 614 (2005) (emphasis omitted), it is legally unsupportable to conclude that “because money and items were taken, the purpose of the murder was pecuniary gain." State v. Gillies, 135 Ariz. 500, 512, 662 P.2d 1007, 1019 (1983). Thus, a “murder committed in expectation of pecuniary gain is distinguished from a ‘robbery gone bad’ or a ‘robbery that occurs close in time to a murder but that constitutes a separate event for the purpose of an [F] determination.’” Prasertphong, 206 Ariz. at 170, 76 P.3d at 441 (quoting State v. Sansing, 200 Ariz. 347, 353-44, 26 P.3d 1118, 1124-25 (2001)).
This principle notwithstanding, “the pecuniary gain aggravator does not require that property be taken from each victim, but rather only that a murder be prompted by the desire for pecuniary gain.” State v. Frank Anderson, 210 Ariz. 327, 351, ¶105, 111 P.3d 369, 393 (2005). Thus, for example, in Anderson, the fact that victims one and two were left with jewelry and a wrist-watch intact on their bodies after they were murdered, did not make the application of (F)(5) to them legally insufficient. Rather, the court found that the defendant’s motive to steal the third victim’s truck was sufficient to support applying (F)(5) to the first two victims. [Note that principle of a shared motive also applies in the (F)(8) (multiple homicides) context.]
Not Duplicative with Felony Murder: The preceding legal principle has also lead the court to conclude that the fact that a robbery did occur and that the defendant was convicted under a felony-murder theory based upon the robbery, does not render a finding of the (F)(5) factor duplicative, since the legal requirements for each are different. Anderson, 210 Ariz. at 351, ¶¶ 102-03, 111 P.3d at 393; see State v. Carriger, 143 Ariz. 142, 161, 692 P.2d 991, 1010 (1984) (“While armed robbery requires proof of a “taking of property from the victim,” the pecuniary gain aggravator requires proof that the defendant’s “motivation [for the murder] was the expectation of pecuniary gain”).
Evidentiary Standard: The pecuniary gain finding is a “highly fact-intensive inquiry” requiring the state to prove a “connection between the murder and motive through direct or strong circumstantial evidence.” Armstrong, 208 Ariz. at 363, 93 P.3d at 1079 (quoting Ring III, 204 Ariz. at 560, 65 P.3d at 941 (2003) (citing State v. Canez, 202 Ariz. 133, 159, 42 P.3d 564, 590 (2002)); accord Prasertphong, 206 Ariz. at 170, 76 P.3d at 441 (quoting Ring III, supra). The court’s repeated use of the above-quoted phrase “strong circumstances evidence” does not create a new evidentiary standard. This language was first used in State v. Gillies, 135 Ariz. 500, 512, 662 P.2d 1007, 1019 (1983), a case involving a kidnapping, rape and murder, where the trial judge applied the (F)(5) factor based solely on the fact that the assailants stole the victim’s purse and obtained money using her bank card after the victim was killed. The supreme court reversed, noting that there was no “tangible evidence, or strong circumstantial inference” to support the theory that the woman had been killed for her valuables, rather than to eliminate her as a witness to her own rape, which was the more apparent motive. Gillies, 125 Ariz. at 512, 662 P.2d at 1019. Gillies did not intend to carve out a heightened standard to exist somehow in coordination with the “beyond a reasonable doubt standard.”
Prior Intent to Kill Irrelevant: In order to find the pecuniary gain aggravating circumstance, a defendant need not intend to kill before taking the item of pecuniary value. For example, a claim that the defendant did not intend to kill before a robbery is irrelevant. State v. Fierro, 166 Ariz. 539, 804 P.2d 72 (1990).
Time Sequence: The killing and the robbery need not occur simultaneously, but the purpose of the killing must be to further the defendant's pecuniary motive. In assessing a motion to dismiss, a judge must consider if there is only evidence that the murder was accidental or unexpected, rather than part of a larger scheme. If an unexpected or accidental death occurs during the course of or flight from a robbery and is not in furtherance of the pecuniary goal, this does not in and of itself provide a sufficient basis to find this aggravating circumstance. State v. Harding, 137 Ariz. 278, 670 P.2d 383 (1983). Rather, the aggravating circumstance can be found only where the murder is part of the overall goal of pecuniary gain.
Intent to Conceal Detection Qualifies: The aggravating circumstance may be found when a defendant kills to facilitate his escape, or to hinder detection after a robbery. State v. Lee, 185 Ariz. 549, 917 P.2d 692 (1996).
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