(F)(5) FINDING UPHELD
State v. Holsinger, 115 Ariz. 89, 563 P.2d 888 (1977)
(F)(5) finding upheld without discussion. The facts show that the defendant conspired with several other people to cause the death of Dr. Harry Schornick. The defendant hired another person to kill the victim so that the defendant's wife would eventually inherit some money held in joint tenancy between the victim and the defendant's mother-in-law. The defendant expressed this motive to coconspirators and gave information to them about how to commit the crime. He furnished the murder weapon and advised the others that they would receive something of value for committing the crime and gave them money and drugs the evening of the crime. The actual intended victim was wounded and his housekeeper was shot and killed.
State v. Clark, 126 Ariz. 428, 616 P.2d 888 (1980)
(F)(5) finding upheld. The defendant worked as a wrangler on a ranch near Elfrida, Arizona for a year prior to the murders. On the day of the murders, he stabbed to death an older wrangler and then shot a younger wrangler before shooting the couple who owned the ranch. He then stole the couple's car, slashed the tires on the remaining vehicles, and left with credit cards, guns, jewelry and a saddle. The defense argued that the (F)(5) aggravator applied only to "hired gun" killings. The Court rejected this narrow interpretation by noting that if the receipt of money is a cause of the murder, then the aggravator has been established. The Court distinguished State v. Madsen by finding that these murders were committed for financial gain because the defendant left with an automobile, jewelry and other items of value. The circumstances surrounding these murders reflect that the expectation of financial gain was a cause of the murders. Note: Justice Gordon wrote a concurring opinion arguing that (F)(4) and (F)(5) apply only to hired killing situations. The Justice argues that this new expansive definition will now apply to cases where a killing occurs during a robbery and that if the Arizona legislature desired this effect, that could have been accomplished with more precise, specific language.
State v. Ricky Tison (Ricky Tison I), 129 Ariz. 526, 633 P.2d 335 (1981)
(F)(5) finding upheld. Ricky Wayne Tison and his two brothers, Raymond and Donald, assisted in the escape of their father, Gary Tison, and Randy Greenawalt from the Arizona State Prison. After having car trouble, the group flagged down the victims, exchanged items between the defendants' car and the victims' car, stole some money and weapons from the victims, and all four victims were shot to death. The evidence indicated that the victims' car was stopped only after the defendants' car broke down. The victims' car and other property were stolen. The defendant indicated that the entire purpose of stopping the victims' car was to obtain an automobile. Because the Court had previously determined that this aggravating circumstance existed outside of hired killer situations under State v. Clark, and that this circumstance could be found in a robbery-murder, it held that these murders were committed for financial gain.
State v. Raymond Tison (Raymond Tison I), 129 Ariz. 546, 633 P.2d 355 (1981).
(F)(5) finding upheld. The victims were found in and around the car that the defendant and his companions used to assist in the escape of the defendant's father and Randy Greenawalt from the Arizona State Prison. After they abandoned that car, the defendant and his companions left the scene of the murders in the victims' automobiles. "Considering all the facts, the conclusion is justified that the homicides were committed to secure a vehicle with which to continue their flight." The Court concluded that this aggravating circumstance was "clearly established."
State v. Blazak (Blazak II), 131 Ariz. 598, 643 P.2d 694 (1982)
(F)(5) finding upheld without extensive discussion. The facts supporting the finding are that Blazak attempted to rob the Brown Fox Tavern in Tucson. When the bartender refused to surrender his money, Blazak shot and killed him and a patron sitting nearby, then fled with an accomplice.
State v. Gerlaugh (Gerlaugh I), 134 Ariz. 164, 654 P.2d 800, as supplemented by, 135 Ariz. 89, 659 P.2d 642 (1983)
(F)(5) finding upheld. The evidence established that the defendant and two companions decided to hitchhike into Phoenix and to rob whomever offered them a ride. The victim picked them up and the defendant pointed a gun at him and demanded his money. The victim wrestled the gun from the defendant, but was knocked down and beaten. The defendant's companions held the victim down, while the defendant ran over him several times with the car, and finally, stabbed him with a screwdriver multiple times. The Court found that the facts amply support the conclusion that the taking of the victim's money was the motivation for the crime. "It is well settled that in this type of robbery/murder situation, the pecuniary gain circumstance is established."
State v. Woratzeck, 134 Ariz. 452, 657 P.2d 865 (1982)
(F)(5) finding upheld. The defendant killed Linda Louise Leslie, a 36-year-old with the mental capacity of a 15-year-old, who lived in a shed rented from the defendant and attached to his trailer. The defendant also robbed Leslie of approximately $107.00. In addition to the fact that the jury found defendant guilty of the robbery of Leslie, there was evidence that the defendant had been without money shortly before the murder. Witnesses testified that he had to borrow money to buy beer at a bar earlier on the evening of the murder. After the murder, the defendant had a sum of money almost identical to that taken from Leslie. The defendant's story that he won the money playing pool at the bar the previous evening was disputed by witnesses who said it would have been impossible to win that much money playing pool at that bar because any betting was always for small change.
State v. Gretzler (Gretzler III), 135 Ariz. 42, 659 P.2d 1 (1983)
(F)(5) finding upheld. In its discussion of this aggravating factor, the Court stated that the murder must be committed for financial gain. This aggravator is not limited to contract killings alone. Rather, it involves any murder committed for financial gain. After killing the Sandbergs, the defendant took their automobile, credit cards, blank checks and camera. These facts reflect a financial motivation. Like State v. Raymond Tison I, the victims here were murdered to obtain a car to continue the defendant's flight. The defendant even stated "we needed their car. So we tied them up and did them in."
State v. Graham, 135 Ariz. 209, 660 P.2d 460 (1983)
(F)(5) finding upheld. Citing State v. Clark, the Court looked to the defendant's statements that he went to the victim's house to rob him and that he did rob the victim after shooting him, to conclude that this evidence established the existence of this aggravating factor.
State v. Adamson (Adamson II), 136 Ariz. 250, 665 P.2d 972 (1983)
(F)(5) finding upheld. There has never been a question that this aggravating factor applies to hired killers. Here, the defendant told a witness that he would be receiving $10,000 for the murder. He also told this same witness that he was not worried about his defense because he had some money coming in and "his people" would be taking care of court costs. The defendant also appeared at an office in Phoenix three times to pick up his payment after the murder.
State v. Harding (Wise, Concannon murders), 137 Ariz. 278, 670 P.2d 383 (1983)
(F)(5) finding upheld. The Court found sufficient evidence to support a finding that Harding committed the murders in the course of obtaining valuable personal property from his victims. Harding killed two businessmen in a Tucson motel room, after first binding them and then removing clothing, a briefcase and credit cards from one of the victims. In addition, Harding left the scene of the murders in a car that had been in the possession of one of the victims. The Court concluded that this "sequence of binding, robbing and leaving helpless the victims while stealing their auto," supports the (F)(5) finding.
State v. Jordan (Jordan III), 137 Ariz. 504, 672 P.2d 169 (1983)
(F)(5) finding lawful on resentencing by the trial court, but the Court here did not consider it in this case. This murder occurred during the robbery of a grocery store.
State v. McCall (McCall I), 139 Ariz. 147, 677 P.2d 920 (1983).
(F)(5) finding upheld. A witness testified that McCall told him of McCall's participation in the murders and the expectation of receiving $10,000 as payment for the murders. The Court concluded that there is no doubt that (F)(5) applies to this type of "hired gun" situation.
State v. Libberton, 141 Ariz. 132, 685 P.2d 1284 (1984)
(F)(5) finding upheld. The defendant wanted the victim's car and money so that he could leave Arizona and escape his work furlough program. Pecuniary gain was a cause of this murder.
State v. Fisher (Fisher I), 141 Ariz. 227, 686 P.2d 750 (1984)
(F)(5) finding upheld. The trial court's (F)(5) finding was proper because Fisher's motive in killing the victim was financial. Fisher and his wife managed an apartment building owned by the victim. In their post-arrest statements, both Fisher and his wife stated that Fisher killed the victim for the $500.00 rent money he had collected for her. The absence of the victim's initials on stubs in the rent receipt book supported the statements of Fisher and his wife.
State v. Harding (Gage murder), 141 Ariz. 492, 687 P.2d 1247 (1984).
(F)(5) finding upheld. The victim was found in a motel room, bound and gagged. He died from asphyxiation because of the gagging. His wallet and car were missing. At the time of Harding's arrest, he had the victim's wallet and identification in a suitcase in the car Harding was driving. The Court reiterated that pecuniary gain must be the cause of the murder, not just a result. Here, the Court agreed with the trial court's finding that the purpose for binding and gagging the victim was to facilitate the robbery and hinder detection. "[T]he victim died as a direct result of the binding and gagging during the commission of the offense."
State v. Roger Smith (Roger Smith II), 141 Ariz. 510, 687 P.2d 1265 (1984)
(F)(5) finding upheld without discussion as the defendant did not contest this finding. The defendant decided to rob a store and took a loaded sawed-off shotgun inside, pointed it at the clerk, and shot the clerk in the head.
State v. Hensley (Hensley II), 142 Ariz. 598, 691 P.2d 689 (1984)
(F)(5) finding upheld. Citing State v. Harding, the Court here reiterated that the defendant's overall goal must be pecuniary gain before the (F)(5) factor can be found. If the death is unexpected or accidental and not in furtherance of pecuniary gain, then the factor does not apply. Here, the murders were part of the overall robbery scheme. The purpose was to facilitate the escape of the robbers. The defendant had the three victims lie on the floor of the bar where he shot each of them in the head so that no witnesses would be left to identify the robbers. These murders were not accidental or unexpected.
State v. Carriger (Carriger III), 143 Ariz. 142, 692 P.2d 991 (1984)
(F)(5) finding upheld. Carriger was convicted of killing a jewelry shop owner during the course of a robbery of the shop. Carriger argued that the pecuniary gain finding was unlawful for two reasons: first, it was specifically not found at his first sentencing and the state was barred from proving this aggravating circumstance; and second, the facts proving this circumstance are the same facts needed to prove the underlying felony of robbery. The Court found both arguments without merit. The state was not barred from proving this circumstance because the law had been clarified between the original sentencing and resentencing. At the time of his first sentencing, the Court had not yet held that pecuniary gain was defined to include a robbery. The facts did not change and they would have supported this finding at the original sentencing; the only change was the judicial construction of the statute. Further, the state must prove additional facts to prove this aggravating circumstance, once it has proved the robbery. Proving a taking in a robbery does not necessarily prove the motivation for a murder and the state cannot be said to be using one fact to prove two different items.
State v. Nash, 143 Ariz. 392, 694 P.2d 222 (1985)
(F)(5) finding upheld. The Court reiterated that this factor is not unconstitutionally vague and arbitrary. The defense argued that this factor should only apply to murder for hire situations, but the Court stated that this argument had already been rejected in State v. Clark. The (F)(5) aggravator means that receipt of something of pecuniary value must be the impetus for the murder, not just the result. Here, the murder was part of the overall scheme of robbery with the specific purpose to obtain items of pecuniary value. The defendant entered the coin shop with a gun and duffel bag and demanded money. He shot the defenseless victim, and after the victim tried unsuccessfully to defend himself, the defendant shot him two more times and took money. The defendant had a plan to rob and the murder furthered that plan. The murder was not unexpected or accidental, nor was it motivated by self-defense.
State v. Patrick Poland (Patrick Poland II), 144 Ariz. 388, 698 P.2d 183 (1985)
(F)(5) finding upheld. The state proved beyond a reasonable doubt that Poland had a financial motivation in committing these murders. Poland and his brother, Michael, robbed a Purolater van containing approximately $328,180.00 in cash, and killed the two Purolater guards. The Court concluded that the murders were part of an overall scheme to obtain items of pecuniary value and the finding was "clearly warranted."
State v. Michael Poland (Michael Poland II), 144 Ariz. 412, 698 P.2d 207 (1985)
(F)(5) finding upheld. These murders had a financial motivation. This defendant obtained items used in the robbery of the Purolator van and in disposing of the guards' bodies. The purchase of canvas bags in which the bodies were found indicates that the murders were contemplated during the planning of the robbery. These murders, therefore, were part of an overall scheme to obtain items of pecuniary value.
State v. Martinez-Villareal, 145 Ariz. 441, 702 P.2d 670 (1985)
(F)(5) finding upheld. This finding was not contested by the defendant on appeal. There was substantial evidence at trial to show that the defendant was at the ranch to rob the victims and steal a truck before he or another participant shot the two victims on the ranch.
State v. Bracy, 145 Ariz. 520, 751 P.2d 464 (1985)
(F)(5) finding upheld. The Court found sufficient evidence to establish that Bracy was a hired murderer, and concluded that the (F)(5) aggravating circumstance "indisputably" applies to this situation. Bracy was one of three assailants hired to murder the victim in connection with a business dispute. Evidence showed that prior to the murders, Bracy was given a stack of $100 bills as advance payment, that he told a third party that he would be getting $50,000.00 for a big job that was "not very pretty," and that other participants had described the murders as contract killings.
State v. Hooper, 145 Ariz. 538, 751 P.2d 482 (1985)
(F)(5) finding upheld. The defendant received some money as prepayment for the murders. The murders were described by a witness as contract killings, and all three codefendants were armed with guns shortly before the murders, and all spoke of coming into large amounts of money soon. The evidence showed that the defendant was part of Robert Cruz' criminal organization and an associate of codefendant William Bracy. Because the evidence established that the defendant was a hired murderer, it clearly fit within the (F)(5) aggravator.
State v. Rossi (Rossi I), 146 Ariz. 359, 706 P.2d 371 (1985)
(F)(5) finding upheld, but not discussed except in reference to its constitutionality which had previously been found by the Court in State v. Nash.
State v. Bernard Smith, 146 Ariz. 491, 707 P.2d 289 (1985)
(F)(5) finding upheld. The impetus for this murder was the expectation of pecuniary gain. Smith went into the Low Cost Market to purchase cigarettes. After paying for the cigarettes, he told the clerk to give him all the money in the cash register. When the clerk did not comply immediately and called for the manager, Smith shot the clerk, took the money from the cash register and left the store. Smith committed the murder "solely for the purpose of gaining access to the cash register, which was in the victim's control." Smith also claimed error in the trial judge's failure to specifically find that the (F)(5) aggravating circumstance was established beyond a reasonable doubt. The Court concluded that, although it is true that the state must prove the existence of aggravating circumstances beyond a reasonable doubt, this burden had been met by the state at trial in this case, and the lack of a specific, separate finding by the trial judge was not error. The Court noted that Smith was convicted of armed robbery of the clerk at the convenience store and that, under the facts of this case, but certainly not of all robberies, implicit in the finding by the jury that he committed armed robbery was a finding beyond a reasonable doubt that Smith had committed the murder for pecuniary gain.
State v. Correll, 148 Ariz. 468, 715 P.2d 721 (1986)
(F)(5) finding upheld. The Court rejected Correll's claim that the expectation of pecuniary gain was not the cause of the murders. Correll and an accomplice, Nabors, went to the mobile home of Nabors' coworker. Once inside, Nabors pulled out a gun and demanded money. Correll and Nabors led one victim through the house searching for money and valuables. After completing the search, Correll and Nabors drove three victims to the desert, made them lie face down on the ground, and shot them. Noting that the facts here are similar to State v. Hensley, the Court found the murders were part of the overall scheme of robbery, rather than unexpected or accidental. Correll and Nabors carefully executed the armed robbery and the murders were part of the scheme. "The only motivation for the killings was to leave no witnesses to the robbery."
State v. Karl LaGrand, 152 Ariz. 483, 733 P.2d 1066 (1987)
(F)(5) finding not addressed in this opinion. The Court refers the reader to its decision in State v. Walter LaGrand. Vice Chief Justice Feldman disagreed with the portion of the opinion dealing with pecuniary gain. He joined Chief Justice Gordon in his footnote indicating that he would have stricken the pecuniary gain finding and remanded to the trial court for resentencing. This murder occurred during a bungled robbery attempt at a bank. The bank manager was stabbed twenty-four times when he could not open the bank vault.
State v. Walter LaGrand, 153 Ariz. 21, 734 P.2d 563 (1987).
(F)(5) finding upheld. The Court noted that an unexpected or accidental death that occurs during the course of or flight from a robbery does not in itself provide a sufficient basis for finding the (F)(5) aggravating circumstance. But, the reason for the defendant's presence at the crime scene should not be ignored. "When the defendant comes to rob, the defendant expects pecuniary gain and this desire infects all other conduct of the defendant." Here, the attempted bank robbery "permeated the entire conduct of the defendant." Although he may have acted irrationally to the inability of the victim to open the safe, the murder was not accidental or unexpected. Justices Gordon and Feldman dissented from the portion of the opinion upholding the pecuniary gain finding. They disagreed that a pecuniary motive necessarily caused the murder merely because the LaGrands intended to rob the bank. They further disagreed that the murder was in furtherance of the goal of pecuniary gain because "it provided the LaGrands with neither access to nor escape with money or other valuables." And finally, they concluded that it was equally, if not more likely that the panic caused by the victim's kick to Karl LaGrand's leg motivated the LaGrands to kill the victim.
State v. Moorman, 154 Ariz. 578, 744 P.2d 679 (1987)
(F)(5) finding not addressed by the Court. The defendant did not contest this aggravating factor. The defendant was on compassionate leave from the Arizona State Prison in Florence staying in a nearby motel with his 74-year-old adoptive mother when he suffocated her and dismembered her. In his locker at the prison was a codicil to her will leaving her considerable estate to the defendant.
State v. Stevens, 158 Ariz. 595, 764 P.2d 724 (1988)
(F)(5) finding upheld without discussion of the facts supporting the finding. Stevens did not argue that the state failed to prove this aggravating circumstance and the Court noted that this aggravator is properly found when receipt of money was the motive for the murder. The facts described elsewhere in the opinion are that Stevens told one of the victims, Craven, to meet him at a convenience store. Craven and Nash, the other victim, drove to the convenience store and waited in their truck for Stevens to arrive. After Stevens arrived, he walked to the truck, pulled out a gun and pointed it at Craven's head and told both victims to empty their pockets and give the contents to him, and then shot at the victims, hitting only one of them. Stevens was later arrested with the gun and a large amount of cash under his shirt.
State v. Walton, 159 Ariz. 571, 769 P.2d 1017 (1989)
(F)(5) finding upheld. The killing and the robbery need not occur simultaneously, but the purpose of the killing must be to further the motive of pecuniary gain. Executing a victim to facilitate escape and hinder detection to successfully keep stolen items furthers a pecuniary gain motive. Here, the defendant killed the victim to facilitate his robbery of the victim's car. By killing the victim, the defendant expected to have time to flee the state with the victim's car and money.
State v. McCall (McCall II), 160 Ariz. 119, 770 P.2d 1163 (1989)
(F)(5) finding upheld. In defendant's earlier appeal, State v. McCall I, the Court agreed with the trial court that the defendant committed the murders in exchange for part of a $10,000.00 fee, concluding that there was "no doubt" that (F)(5) applies to this "hired gun" situation. In this opinion the Court again found ample evidence that this was a "hired gun" murder. The Court, however, disregarded the trial court's statement that "it is reasonable to conclude from the evidence that McCall shared in the profits of the jewelry and money that the victims were robbed of." Noting that the existence of aggravating circumstances must be established beyond a reasonable doubt, the Court said it was not clear whether the trial court found beyond a reasonable doubt that McCall intended to share in, or actually did share in the profit from the robberies. Nevertheless, the hired gun evidence alone supported the (F)(5) finding.
State v. Rockwell, 161 Ariz. 5, 775 P.2d 1069 (1989)
(F)(5) finding upheld. Rockwell shot and killed an employee at the Bingo Truck Stop near Kingman, Arizona. When the victim was found, the cash register was empty, except for two large bills under the money tray. Approximately $85.00 to $100.00 was missing from the cash register. In his statements to others, Rockwell referred to the incident as a "robbery." The logical inference is that defendant murdered the victim to further the robbery. The victim was shot without any apparent struggle. Even if the victim was shot after the money was taken from the cash register, the murder was part of the robbery because it resulted in eliminating the only witness to the crime.
State v. Marlow, 163 Ariz. 65, 786 P.2d 395 (1989)
(F)(5) finding upheld. The motivation for the murder was to rob the victim and leave no witness to that robbery. The victim had been gambling in Las Vegas and flashing his money. Codefendant testified that the victim was driven into Arizona, bound and robbed, kicked off a cliff, and hit on the head with a boulder several times. Citing State v. Correll, and State v. Hensley, the Court stated that similar motivations and killings had supported the pecuniary gain finding.
State v. Schad (Schad III), 163 Ariz. 411, 788 P.2d 1162 (1989)
(F)(5) finding upheld. The evidence "strongly supports" the trial court's (F)(5) finding. After encountering the victim, the defendant abandoned the stolen car that he had been driving and took the victim's car. He also left the murder scene with the victim's wallet, money, credit cards and ring. "This provides strong circumstantial evidence that the purpose of the murder was pecuniary gain."
State v. Robinson and Washington, 165 Ariz. 51, 796 P.2d 853 (1990)
(F)(5) finding against both Robinson and Washington was upheld as to Washington, but set aside as to Robinson. Washington's motivation was pecuniary gain. Washington searched the house for valuables and some items were stolen from the house. He demanded drugs and money from the victims. On the other hand, there is no evidence that Robinson thought the victims were drug dealers. He went to the house motivated only by revenge and a desire to retrieve Susan, the daughter of the victims and his common-law wife.
State v. Comer, 165 Ariz. 413, 799 P.2d 333 (1990)
(F)(5) finding upheld. The evidence established that Comer had run out of money when he arrived at the Burnt Corral campground. The victim was invited to dinner at Comer's campsite, after which Comer killed him. Comer then went to the victim's campsite and took a camera, fishing equipment and other items. He also looked for money, but found none. The murder was "clearly" motivated by Comer's need for money and supplies. The Court found no merit in Comer's claim that the (F)(5) finding was erroneous because the items taken from the victim's campsite were of little value. "[T]he murder was committed with the expectation that [Comer] would find money, gas and other supplies at [the victim's] campsite. The fact that he did not obtain money or property of any substantial value does not negate his original expectation of pecuniary gain."
State v. Ronald Williams, 166 Ariz. 132, 800 P.2d 1240 (1987)
(F)(5) finding upheld. Citing State v. Walter LaGrand, the Court held that there was no explanation for the killing other than the victim discovering a burglary in progress. Items were taken from the neighbor's house when the victim went over to investigate and was found shot to death. Unlike cases with other inferences of the motive for the killing, or where the facts make no inference more probable than another, here the facts suggested the killing occurred to permit the defendant to complete the burglary or to make his escape. Either way, pecuniary gain was a motivating circumstance.
State v. Fierro, 166 Ariz. 539, 804 P.2d 72 (1990)
(F)(5) finding upheld. The victim interrupted a burglary in progress. The Court found that the reason the defendant was even at this location was to steal, he expected pecuniary gain, and this expectation "tainted all his other conduct." The shooting was the result of the intentional crime of burglary and the motivation was the expectation of pecuniary gain. The Court stated that financial motivation must be the cause of the murder and not merely a result. There is no requirement that the defendant have an intent to kill beforehand. Killing to facilitate an escape and to permit the defendant to keep stolen items furthers the pecuniary gain motive.
State v. White (White I), 168 Ariz. 500, 815 P.2d 869 (1991)
(F)(5) finding upheld. The evidence established that the defendant's involvement in the killing of his girlfriend's husband, David, was for financial gain. The Court rejected the defendant's claim that although there was ample evidence that his girlfriend, Susan, wanted David killed for the insurance proceeds, his motives were less clear. The defendant claimed that Susan duped him because he was overcome by his infatuation for her and his desire to make a life with her. The Court found sufficient evidence indicating that the defendant killed David to share in the insurance proceeds with Susan. Prior to the murder, the defendant told his ex-wife that she would not need to worry about child support payments because he would be getting $100,000. The defendant made other inculpatory statements to witnesses, and on the day of David's funeral, he called Susan and discussed the paperwork she needed to do regarding the insurance. This evidence demonstrated that "neither love nor infatuation was defendant's primary motive to kill David." The Court distinguished this case from State v. Madsen, where the defendant killed his wife more than one year after taking out the insurance policy and made no immediate attempt to collect the insurance proceeds.
State v. Cook, 170 Ariz. 40, 821 P.2d 731 (1991)
(F)(5) finding as to one of the murders upheld. The murder was committed to successfully complete or get away with the robbery. Cook stole $90.00 from the victim's money pouch and when the victim discovered the pouch was missing, he was bound to a chair to keep him from escaping and to allow Cook and an accomplice to find anything else to steal. When the victim got loose and tried to escape, he was bound, tortured and finally killed. The Court found a clear causal link between the robbery and the murder.
State v. Greenway, 170 Ariz. 155, 823 P.2d 22 (1991)
(F)(5) finding upheld. The defendant argued that it was unconstitutional to consider pecuniary gain as an aggravating factor because it amounted to double counting an element of the robbery. Citing State v. Carriger, the Court found this argument to be without merit because the facts necessary to prove a taking of property are not the same as those necessary to prove a motive for murder. The Court also rejected the defendant's argument that the class of persons eligible for the death penalty has not been sufficiently narrowed by the legislature. The Court looked to whether the murders were accidental or unexpected, or were part of an overall scheme to rob to determine if the pecuniary gain factor was proven beyond a reasonable doubt. The defendant here planned the robbery ahead of time and armed himself with a gun and entered the victims' house. The defendant knew the victims were home at the time and made no effort to cover his face. He removed valuable items from the house, sent the codefendant outside, and killed the victims execution-style. These murders were part of the overall robbery scheme and were neither accidental nor unexpected. The purpose of the murders was to facilitate escape and hinder detection, which furthered the pecuniary goal.
State v. Hill, 174 Ariz. 313, 848 P.2d 1375 (1993)
(F)(5) finding upheld. The evidence showed that the victim's wallet discovered on the burned body contained no money and that the defendant was arrested with over $200 and the victim's grocery receipt in his possession. Also, close to the time of the murder, the defendant and victim had a heated argument over money that the victim allegedly owed the defendant. The defendant had no steady source of income and an expensive drinking habit. The Court found that all of these facts supported the inference that the defendant killed the victim for money that he needed and that he believed the victim owed him.
State v. Landrigan, 176 Ariz. 1, 859 P.2d 111 (1993)
(F)(5) finding upheld. Evidence supported a finding that pecuniary gain was the cause, not merely a result, of the murder. Landrigan had admitted that around the time of the murder, he had been getting money by robbing. Testimony established that the victim frequently tried to pick up men by flashing a wad of money, usually after he got his paycheck; that on the day he was killed he had picked up a man named "Jeff" and brought him home; and that he had picked up his paycheck that day. Landrigan, whose first name is "Jeff," matched the description of "Jeff" given by the victim to a friend, and was found wearing a shirt that belonged to the victim. The victim's apartment was ransacked and neither his paycheck nor its proceeds were located, although nothing else seemed to be missing. The killing did not appear to have been unexpected or accidental.
State v. Spencer, 176 Ariz. 36, 859 P.2d 146 (1993)
(F)(5) finding upheld. The defendant made the victim withdraw all funds from her bank account, and sold her car after the murder. He admitted his intent to steal a car. The Court reiterated the proposition that pecuniary gain must be "a motive, cause or impetus and not merely the result of the murder." The Court here found that pecuniary gain was at least one of the motives for the murder, and not merely an afterthought.
State v. Runningeagle, 176 Ariz. 59, 859 P.2d 169 (1993)
(F)(5) finding upheld. Runningeagle and his accomplices stopped at the Davis house to steal parts from a car parked outside. They took two carburetors from the Davis car, along with other items from the car and open garage. While engaged in this activity, they were confronted by an elderly neighbor, Mr. Williams and his wife. After the couple retreated into their home, Runningeagle and an accomplice broke through the couple's front door with a tire iron and beat and stabbed the couple to death. When police searched the house, they found an empty purse and found that Mrs. Williams' jewelry drawer was open and some jewelry was missing. The Court rejected Runningeagle's claim that because he was engaged in burglarizing the Davis home, his motivation for killing the Mr. and Mrs. Williams was not pecuniary gain, and that the burglary of the Williams home was an afterthought. The Court found that Runningeagle killed Mr. and Mrs. Williams in order to complete the Davis burglary, and therefore, the killing was to further the goal of pecuniary gain. The Court also found that Runningeagle killed Mr. and Mrs. Williams in order to steal from them.
State v. Michael Apelt, 176 Ariz. 349, 861 P.2d 634 (1993)
(F)(5) finding upheld. The Court found that the evidence showed beyond a reasonable doubt that the defendant killed the victim, his wife, to receive the $400,000 life insurance proceeds from a policy he had taken out on her. See State v. Rudi Apelt.
State v. Rudi Apelt, 176 Ariz. 369, 861 P.2d 654 (1993)
(F)(5) finding upheld. The defendant's brother, Michael, proposed to the victim a few days after meeting her. After marrying her, Michael pressured her to obtain life insurance because he wanted to kill her and collect the proceeds. Michael discussed the murder with the defendant, Rudi, several hours before it occurred. Rudi agreed to participate and followed Michael to the desert to participate in the murder. Rudi claimed that he did not agree to participate for pecuniary gain, but to go along with Michael. The Court found that even if Rudi participated only after Michael persuaded him, at least one of Rudi's motivations was pecuniary. Testimony supported the conclusion that the "bait" for Rudi's participation in the murder was Michael's promise that Rudi and he would have a lot of money to buy anything they wanted, and that they wouldn't have to work any more.
State v. West, 176 Ariz. 432, 862 P.2d 192 (1993)
(F)(5) finding upheld. The defendant was motivated by the desire to steal the victim's property. When the defendant was arrested in Illinois, his car contained some of the victim's property. Before he left Arizona, he moved electronic equipment from a hiding place in the desert to a car that he ultimately burned. The defendant stated that the car belonged to the victim whom he had robbed. The defendant argues that the pecuniary gain finding violated the Eighth Amendment because it repeats an element of the crime of burglary and does not sufficiently narrow the class of death-eligible defendants. The Court cited State v. Carriger in the robbery context for the distinction between proving the taking in a robbery and proving the motivation for a murder. In a burglary, the defendant need not intend to kill or even take property to be guilty. Similarly, a felony murder in the course of a burglary could be based on the defendant's intent to commit any felony, not just burglary, so it does not necessarily follow that pecuniary gain will be found in this situation. Federal cases have held that Arizona's sentencing scheme does narrow the class of death-eligible defendants sufficiently to comply with the Eighth Amendment. The defendant argues that within the pecuniary gain category there must be further narrowing between death-eligible and non-death-eligible murderers. This is not required. What is required is that the class of murderers in general be narrowed.
State v. Henry (Henry I), 176 Ariz. 569, 863 P.2d 861 (1993)
(F)(5) finding upheld. Henry's claim that he was not responsible for a codefendant's expectation of pecuniary gain missed the point that the record supported a finding of Henry's own expectation of pecuniary gain. Henry had an outstanding California warrant, and when his car broke down on the way out of California, he had a motive to take the victim's truck and eliminate him. Henry was convicted of both robbery and theft, and the Court found that those convictions were based on sufficient evidence.
State v. Scott, 177 Ariz. 131, 865 P.2d 792 (1993)
(F)(5) finding upheld. The defendant argued that the only evidence supporting this factor was his own statement that he was offered $250 to drive the car when codefendant Styers took the four-year-old victim, Christopher, out into the desert to kill him. The defense argument was that there was no corroboration by any independent evidence and that the corpus delicti doctrine prevented his statement from being used to establish pecuniary gain. The Court noted that the defendant cited no authority to support his position. The Court held that the corpus delicti doctrine does not apply at sentencing and therefore, no additional evidence was needed to support the defendant's statement. The statement alone was sufficient to prove this pecuniary gain aggravating circumstance.
State v. King, 180 Ariz. 268, 883 P.2d 1024 (1994)
(F)(5) finding upheld without discussion. The defendant went into a convenience market and during the robbery of the market, shot the store clerk and the security guard with the guard's gun.
State v. Ross, 180 Ariz. 598, 886 P.2d 1354 (1994)
(F)(5) finding upheld. The defendant's admitted objective was to steal money and identification. It is not relevant whether he intended to kill before the robbery. A person furthers his pecuniary gain motive when he kills to facilitate escape and to ensure keeping the stolen items. Here, the defendant killed to steal credit cards and bank cards. The defendant lured the victim real estate agent to a vacant store under the pretext of an interest in leasing the property. Once inside, the defendant demanded the victim's wallet and during the ensuing struggle, shot the victim in the head. The defendant dragged the victim's body behind the counter and again shot him in the head. After stealing the victim's wallet, the defendant immediately began using the victim's bank and credit cards. He withdrew money from a bank, obtained a temporary driver's license, and bought a car with the victim's identification. The defendant had the victim's wallet in his possession when the police arrested him.
State v. Gonzales, 181 Ariz. 502, 892 P.2d 838 (1995)
(F)(5) finding upheld. The defense argued that the murder was accidental and unexpected in that the robbery was already completed when the victim confronted him. The Court disagreed with this analysis. The Court stated that the (F)(5) factor is found where a motivation for the murder was the expectation of pecuniary gain, and that where a defendant kills to facilitate escape and to keep stolen items, he is furthering his pecuniary gain motive. Here, the victims interrupted the defendant during his burglary of their home. The defendant was there to steal and this intent "tainted all of his other conduct." This murder was not accidental given the sheer number of stab wounds. The defendant's primary motivation was to steal, and the murder was directly related to that goal.
State v. Willoughby, 181 Ariz. 530, 892 P.2d 1319 (1995)
(F)(5) finding upheld. Evidence showed that defendant did not merely receive insurance proceeds from an existing policy after his wife's death, but rather, he killed his wife for the purpose of making a financial gain. Prior to killing his wife, Willoughby pressed for a buyout agreement between his wife and her mother so that his wife's share of their business would be liquidated upon her death and distributed under her will. An integral part of the agreement was the purchase of additional life insurance on his wife's life. After the murder, Willoughby received proceeds from one policy and sought proceeds from another. Evidence also established that Willoughby said that his wife would have taken him "to the cleaners" if he had divorced her rather than killing her.
State v. Roger and Robert Murray, 184 Ariz. 9, 906 P.2d 542 (1995)
(F)(5) finding upheld. The defendants invaded the cafe and home of the two victims, robbed them of money and other items, stole their tow truck, shot them and fled the scene. The Court found no factual support for defendants' claim that the deaths were unexpected or accidental. The victims were shot execution-style, while lying on their stomachs. The evidence showed that the murders were committed in the course of, or flight from, the robbery and to further the goal of pecuniary gain.
State v. Spears, 184 Ariz. 277, 908 P.2d 1062 (1996)
(F)(5) finding upheld. The victim considered Spears to be her boyfriend and purchased a ticket for him to fly to Phoenix. Prior to killing the victim, Spears accompanied the victim when she withdrew large amounts of cash and had the title to her truck notarized so that she could transfer it to him. Although there was no evidence that Spears forced the victim to take these actions, the evidence suggested that he lured her under the guise that they would be going away together. Rejecting the claim that the state failed to prove that Spears formed the intent to steal the victim's money and truck before he killed her, the Court found that Spears committed the murder as part of a preconceived plan to obtain her money and truck.
State v. Kemp, 185 Ariz. 52, 912 P.2d 1281 (1996)
(F)(5) finding upheld. This killing took place during a kidnapping. The defendant purchased the murder weapon the day before the murder. As soon as the victim was abducted, the defendant took him to an ATM machine to withdraw money. The Court stated that on these facts, it was clear that the murder was committed for pecuniary gain.
State v. Danny Jones, 185 Ariz. 471, 917 P.2d 200 (1996)
(F)(5) finding upheld. After reiterating its position that a trial court may not find pecuniary gain in every case in which a person has been killed and the defendant has made a financial gain, the Court rejected Jones' claim that insufficient evidence supported the finding that his motive for the murders was pecuniary gain. Ample evidence showed that Jones killed the victims, Robert Weaver and his daughter, Tisha, as part of a plan to steal Robert's gun collection and leave Bullhead City. Jones was a friend of Robert's and knew about his gun collection. Jones was not working, had very little money and, on the day before the murders, was told that he must move out of a friend's residence. Jones wanted to leave Bullhead City because he knew that warrants were pending for his arrest. While Jones and Robert were talking in Robert's garage, Jones attacked him and beat him with a baseball bat. Jones entered the house where the gun collection was kept, attacked Robert's grandmother and daughter with the baseball bat, emptied the gun cabinet and departed in the grandmother's car. He left the car at a Bullhead City hotel, took a taxi to Las Vegas and paid the taxi driver with one of Robert's guns. He later sold most of the remaining guns from Robert's collection.
State v. Darrel Lee, 185 Ariz. 549, 917 P.2d 692 (1996)
(F)(5) finding upheld. Ample evidence supported the trial court's finding that this murder was committed to hinder detection so that Lee and his female accomplice could continue using the victim's car and credit cards. Lee and his accomplice asked the victim for a ride, got into his car and demanded his wallet, which contained cash, credit cards and an ATM card. The victim was tied up, placed in the trunk of the car and, during the next several days, was driven back and forth between Phoenix and California, while Lee and his accomplice repeatedly used the ATM and credit cards. After the victim twice escaped and attempted to flee, Lee and his accomplice killed the victim, placed the body in the trunk of the car, and eventually buried the body. The Court reiterated that to establish the (F)(5) aggravating circumstance, the state must prove that the receipt of pecuniary gain was a cause of and a motivation for the murder, not just a result of it. However, as the Court previously noted in State v. Rockwell, "[e]ven if [defendant] shot the victim after the money was taken . . ., the murder was part and parcel of the robbery because it resulted in eliminating the only witness to the crime."
State v. McKinney (State v. Hedlund), 185 Ariz. 567, 917 P.2d 1214 (1996)
(F)(5) finding upheld. Simply receiving profit from a murder is insufficient to satisfy this aggravating factor, but killing for the purpose of financial gain is enough. Here, the murders took place during a burglary spree the purpose of which was to find money or items to sell. Items stolen from the residence of one of the victims were in fact sold. Here, pecuniary gain was the primary, if not the sole, purpose of the murders.
State v. Miles, 186 Ariz. 10, 918 P.2d 1028 (1996)
(F)(5) finding upheld. A codefendant told the defendant that they were getting the murder weapon to obtain money. Directly before the carjacking and abduction of the victim, codefendant Jackson told the defendant that he was "gonna get somebody's car, take'em off in the middle of the desert and shoot them." In addition, hours after the murder the defendant was driving the victim's car and using her ATM card. He took the car to Phoenix and told a friend that the car belonged to him. He also used her credit card and withdrew money from the victim's bank account. After crashing the victim's car, the defendant was apprehended and had in his possession the victim's jewelry, bank and credit cards.
State v. Jackson, 186 Ariz. 20, 918 P.2d 1038 (1996)
(F)(5) finding upheld. Jackson did not challenge the (F)(5) finding on appeal and conceded at oral argument that his motivation for committing the murder was to steal the victim's car and valuables. The Court agreed without an extensive discussion of the facts supporting the finding. Jackson and two accomplices carjacked the victim, drove her to the desert, ordered her out of the car, shot and killed her, and then drove away with her car and purse. See also, State v. Miles (the codefendant's appeal).
State v. Towery, 186 Ariz. 168, 920 P.2d 290 (1996)
(F)(5) finding upheld. The defendant did not dispute this conclusion by the trial court. The Court found a clear pecuniary gain motive here and that financial gain was the impetus for the defendant's conduct during the robbery and killing. A codefendant stated that they went to this particular house to rob, and once inside, bound the victim while they loaded up the victim's car with a television, photocopy machine, cameras, jewelry, and other items. They also took money and credit cards. The defendant injected the victim with battery acid, and then strangled him. Both codefendants then left in the victim's car and, before abandoning it, removed the compact disc player.
State v. Laird, 186 Ariz. 203, 920 P.2d 769 (1996)
(F)(5) finding upheld without discussion of the facts supporting the finding. Laird did not challenge the finding on appeal and the Court agreed with the trial court that this aggravating circumstance exists beyond a reasonable doubt. The facts described elsewhere in the opinion are that Laird told his friends, at least two weeks before the murder, that he would be getting a blue Toyota 4x4 truck. The day before the murder, Laird ran away from his mother's home and rode his bicycle to the victim's home. He was familiar with the house because he had helped to grade the yard the month before. After the victim left to work a 12-hour night shift, Laird broke into the home and stayed until the victim arrived home the next morning. After the victim parked her truck in the garage, Laird attacked her, tied her up and ultimately strangled her, then dumped her body in the desert. Laird was arrested the next day while driving the victim's truck.
State v. Hyde, 186 Ariz. 252, 921 P.2d 655 (1996)
(F)(5) finding upheld. The Court stated that if the expectation of pecuniary gain is a motive, cause or impetus for the murder, and not merely a result, the factor may be found. It can be based on tangible evidence or strong circumstantial evidence, and need not be the exclusive cause for a murder. But it is not found where a murder has been committed and the defendant has made a financial gain merely at the same time. The murders occurred in a place of business near the end of the business day. Both victims habitually carried large amounts of cash. Money was taken from the register and probably from the victims. The defendant owed child support and told a fellow prisoner that he and the codefendant discussed their need for money before entering the market. The attempt to take the purse of one of the victims occurred before the murders. The defendant also stated that he "wouldn't deny" committing a theft in the store. Based on these facts, the pecuniary gain factor was found.
State v. Dickens, 187 Ariz. 1, 926 P.2d 468 (1996)
(F)(5) finding upheld without discussion of the facts supporting the finding. The facts described elsewhere in the opinion are that Dickens suggested a robbery to his young codefendant, Amaral, whom Dickens had met while working as a counselor at a placement center for violent juveniles. Dickens drove Amaral to a rest area on the interstate, waited for three hours until the victims drove into the rest area, gave Amaral a revolver and a walkie-talkie to communicate with him, and told Amaral "no witnesses." Amaral approached the victims, demanded their wallets and then shot both of the victims. Dickens picked up Amaral, then drove to the home of Dickens' brother, where Amaral removed cash, traveler's checks and a credit card, before burning the wallet and the remaining contents. The following morning, Amaral unsuccessfully attempted to use the victim's credit card. The Court noted that the (F)(5) finding is well supported by the facts and that the defendant did not challenge the finding on appeal. The Court once again rejected the argument that the (F)(5) aggravating circumstance is unconstitutional because it duplicates an element of the underlying crime of felony murder predicated on armed robbery.
State v. Soto-Fong, 187 Ariz. 186, 928 P.2d 610 (1996)
(F)(5) finding upheld. Substantial evidence demonstrated that the murders were part of a plan to rob the El Grande market and were motivated by pecuniary gain. Two codefendants testified as to the pecuniary motive and at least $175.00 was missing from the market. The Court rejected Soto-Fong's claim that the large amount of money left in the store negated a finding of a pecuniary gain motive. There was no evidence that Soto-Fong, despite his having been a former employee, knew about the $6,000.00 kept by the storeowner in cigarette cartons behind the counter. Detectives only fortuitously discovered this money some time after the murder. Likewise, the (F)(5) finding is not negated by the fact that none of the wallets, jewelry or monies of the victims was taken. The pecuniary gain finding "does not focus on whether the defendants were effective or thorough robbers, but on whether their motive was financial gain." Regarding testimony that the defendants intended to kill the victims even before the defendants entered the market, the Court said the "fact that the trio intended the murder in no way precludes the fact that they also intended to rob."
State v. Thornton, 187 Ariz. 325, 929 P.2d 676 (1996)
(F)(5) finding not contested by the defendant. The Court here summarily found the presence of this factor without discussion. The defendant burglarized the home of William Prince and then shot him in the head when Prince arrived home. He stole several items from the home. While awaiting trial for Prince's murder, the defendant escaped from jail and entered the home of Dale and Mary Duke. When the Dukes arrived home, the defendant shot Dale Duke and stole items from the home.
State v. Mann, 188 Ariz. 220, 934 P.2d 784 (1997)
(F)(5) finding upheld. Mann and his girlfriend sold drugs from their apartment in Tucson. Mann told his girlfriend of his plan to "rip off" his friend, Alberts, who was also involved in cocaine dealing. Mann arranged to sell a kilogram of cocaine to Alberts for $20,000. Mann planned to take the $20,000 from Alberts and give him a shoebox filled with newspaper instead of cocaine. Mann knew he would have to kill Alberts after completing the exchange. The plan changed when Alberts arrived with another man, Bazurto. After trading the money for the shoebox, Alberts lifted the lid of the box, and Mann shot him and then Bazurto. The Court rejected Mann's claim that the (F)(5) finding was erroneous because Bazurto arrived unexpectedly and killing him was not part of the original "rip off" plan. When Bazurto arrived unexpectedly, Mann made a choice after a period of thought, to kill both men in order to go through with the plan. Stealing the $20,000 was the motive for the murders of both Alberts and Bazurto.
State v. Henry (Henry II), 189 Ariz. 542, 944 P.2d 57 (1997)
(F)(5) finding already upheld in prior review, Henry I. The victim was kidnapped and stabbed and his truck stolen by the two defendants.
State v. Chad Lee (Reynolds, Lacey murders), 189 Ariz. 590, 944 P.2d 1204 (1997)
(F)(5) finding upheld. The defendant did not challenge the trial judge's pecuniary gain finding. The first murder occurred after the defendant and codefendant ordered a pizza to be delivered to a vacant house. When the victim arrived, she was confronted with a rifle, made to remove her clothing, and abducted into the desert. Her car was damaged. The codefendant sexually assaulted the victim twice before she was forced to withdraw money from an ATM machine. The defendant then shot and stabbed her. The second murder, only nine days later, involved the defendant and the same codefendant calling for a cab. After the victim drove the defendant to his destination, the defendant pulled out a gun and demanded money. The defendant fired the gun nine times and hit the victim four times. He then removed money from the victim's pockets, dumped the body and damaged the abandoned cab.
State v. Chad Lee (Drury murder), 189 Ariz. 608, 944 P.2d 1222 (1997)
(F)(5) finding upheld without discussion of the facts that support the finding. The facts described elsewhere in the opinion are that Lee entered a convenience store to buy cigarettes. After the store clerk opened the cash drawer, Lee took out his revolver and repeatedly shot the clerk. Lee picked up the cigarettes, took the entire cash drawer from the register and left the store. The defendant's "double-counting" challenge to the use of pecuniary gain as an aggravating circumstance was limited to his sentence for armed robbery (not the death sentence). The Court noted, however, that the legal principle is the same as in a challenge to a death sentence for felony-murder when the underlying felony is armed robbery. First, the legislature may adopt a sentencing scheme in which an element of a crime is also used for aggravation purposes. Moreover, pecuniary gain is not synonymous with robbery. "To prove robbery, the state must show a taking of property from the victim; to prove pecuniary gain, the state must show the actor's motivation was the expectation of pecuniary gain."
State v. Trostle, 191 Ariz. 4, 951 P.2d 869 (1997)
(F)(5) finding upheld. The defendant's motivation in the crime was for pecuniary gain and this desire infected all of his other conduct. A significant consideration is whether the killing was part of the overall robbery scheme, or was accidental or unexpected. The defendant admitted that he and his codefendant went to the mall and waited hours to steal a vehicle. He admitted they killed the victim to delay reporting of the theft, and to eliminate the only witness. This murder was not accidental or unexpected. This murder was directly connected to the stated goal of carjacking.
State v. Djerf, 191 Ariz. 583, 959 P.2d 1274 (1998)
(F)(5) finding upheld. The defendant argued that his motive was revenge, not pecuniary gain. However, the facts showed otherwise. After gaining entry into the home, the defendant immediately forced Patricia Luna to place personal property in the family car. After leaving the area in that car, the defendant kept those items before abandoning the car. The Court here found that these facts sufficiently showed that the (F)(5) factor had been proven beyond a reasonable doubt.
State v. Greene, 192 Ariz. 431, 967 P.2d 106 (1998).
(F)(5) finding upheld. Greene admitted that he killed the victim, but claimed that the killing was not motivated by the expectation of financial gain. Greene said that the victim approached him and offered to pay for a sex act, that the two drove to a secluded parking lot, that he "freaked out" after being touched by the victim, and that he struck the victim and then dumped his motionless body. Greene claimed he drove away, but then realized he needed money, so he returned and took the victim's wallet. Medical testimony and crime scene evidence undermined Greene's version of the killing and demonstrated the falsity of his proffered motivation. Crime scene evidence established that Greene did not return for the wallet, but instead had the wallet with him when he walked away from the victim's body at the scene. The finding that Greene intended to profit from the murder was further supported by his admitted need for money, drugs and transportation. Greene's subsequent use of the victim's credit cards to buy food and equipment, which he later traded for drugs, also demonstrated a pecuniary motive. Note: Because the Court rejected the trial court's (F)(6) finding in this case, pecuniary gain under (F)(5) was the sole aggravating circumstance supporting the death sentence. Although the majority found the (F)(5) aggravator alone sufficient to affirm the death sentence, Chief Justice Zlaket expressed doubt that this murder was above the norm of other first degree murders. In a lengthy dissent, he noted that the only instances in which the Court had previously upheld a death sentence based solely on the (F)(5) aggravator were cases involving substantial thought, preparation and planning, such as a carefully conceived plan to obtain insurance proceeds.
State v. Todd Smith, 193 Ariz. 452, 974 P.2d 431 (1999)
(F)(5) finding upheld. It was undisputed that the defendant went to the victims' trailer with the intent to rob. He had no money and no job. He was armed with a knife and a gun. He attacked the victims, stole their property, beat them again and slit their throats. His desire for pecuniary gain infected all his other conduct and he killed the victims when he believed that they were resisting his efforts to rob them. The defendant argues that his only motive was to rob and that he killed the victims after they attempted to resist him. The defendant cited no authority for the proposition that this aggravator does not apply when victims resist a robbery and are killed for it.
State v. White (White II), 194 Ariz. 344, 982 P.2d 819 (1999)
(F)(5) finding upheld. The defendant argued at his resentencing that he was not motivated by the life insurance proceeds, but by his love or infatuation with codefendant Susan Johnson, the victim's wife. The Court found "clear and forceful evidence of defendant's involvement in a calculated scheme to take the life of David Johnson in order to achieve pecuniary gain."
State v. Kayer, 194 Ariz. 423, 984 P.2d 31 (1999)
(F)(5) finding upheld. There was significant proof to support the pecuniary gain finding in this case. Witnesses heard the defendant continually bragging about his gambling system and observed his addictive behavior of constantly wanting money with which to gamble. The codefendant testified that the defendant planned to rob and then kill the victim. The defendant took the victim's money, credit cards and personal items from the crime scene. After the murder, the defendant took the victim's house keys and stole additional property from the house. Pawn shop receipts and witness testimony established that the victim sold virtually all of the victim's jewelry and guns.
State v. Robert Jones, 197 Ariz. 290, 4 P.3d 345 (2000)
(F)(5) finding upheld. Ample evidence showed the defendant and his codefendant intended to rob and murder their victims. The defendant shot one victim as he entered the Moon Smoke Shop. The codefendant hunted down and shot a second victim who was trying to escape. The defendant also attempted to shoot the remaining witnesses. This indicates that the codefendants began the robbery intending to murder anyone who happened to be in the store at the time. Likewise, in the second robbery, the victims were all shot execution style, although none challenged the defendants. These were not "robberies gone bad." The codefendants committed the murders to facilitate the robberies and then escape punishment. The Court rejected the defendant’s argument that (F)(5) was unconstitutional because it included ordinary robberies and thus did not set this case apart from those in which the death penalty was not available.
State v. Poyson, 198 Ariz. 70, 7 P.3d 79 (2000)
(F)(5) finding upheld. The Court found the record replete with evidence that showed the murders wee committed to facilitate the theft of a truck owned by one of the victims. The defendant admitted killing the victims to steal the truck and drive to Illinois. The defendant did not challenge this finding on appeal.
State v. Hoskins, 199 Ariz. 127, 14 P.3d 997 (2000)
(F)(5) finding upheld. The expectation of pecuniary gain is evident where a defendant commits a carjacking, takes control of a vehicle, and subsequently murders the victim to gain continuous undetected possession and use of the vehicle. This car was stolen and in the continuous possession of the defendant. The defendant made several prior statements of intent in conversations with friends. Before the murder, the defendant spoke of his plan to carjack a vehicle, kill the owner or driver, and drive to Pinetop. The record also indicates that the defendant was unemployed and did not have a vehicle. Pecuniary gain was at the heart of the defendant’s premeditated plan to obtain this vehicle.
The defendant argued that he was convicted of premeditated murder, not felony murder. The Court noted that the defendant was also convicted of armed robbery of the vehicle. A felony murder conviction does not guarantee a pecuniary gain finding, nor does the absence of such a conviction foreclose the pecuniary gain motive. Pecuniary gain refers to the actual motive whereas felony murder avoids motive. Felony murder and pecuniary gain may co-exist, but one may exist without the other; they are neither synonymous nor co-extensive. The jury may have concluded that the murder occurred well after the theft of the vehicle. The death penalty is not inappropriate simply because pecuniary gain is the only aggravating circumstance in the record.
The dissent sees a clear contradiction between the jury’s finding and the trial court’s pecuniary gain finding. If pecuniary gain was conclusively established as the basis for the murder, reasons the dissent, then the jury should have convicted on felony murder. Because the jury did not, that throws considerable doubt on the pecuniary gain finding.
State v. Harrod (I), 200 Ariz. 309, 26 P.3d 492 (2001).
(F)(5) finding upheld. The wife of a wealthy man inherited outright a large sum of money when her husband died. The deceased also had put nearly $4 million of his estate into a trust, which was to go to his children upon the death of his wife. At some point thereafter, the wife was murdered in her home. The state proved the defendant committed the crime through physical evidence and the defendant’s admissions, all of which indicated he had killed the victim after being promised payment of $100,000 from one of the trust beneficiaries. The Court relied on this evidence to conclude the killing "was a murder for hire, not a robbery gone bad."
State v. Canez, 202 Ariz. 133, 42 P.3d 564 (2002)
The Court stated that a murder committed during a robbery is not per se for pecuniary gain. However, robbing and killing a victim while making no attempt to conceal identity is powerful circumstantial evidence that the motive was pecuniary. Where the murder and robbery occur almost simultaneously, the Court will not attempt to divine if the motive to kill shifted from pecuniary gain to some other non-pecuniary motive.
State v. (Marcus) Finch, 202 Ariz. 410, 46 P.3d 421 (2002)
The defendant testified he shot the victim to prevent him from reporting the robbery. The Court held this established that the motive behind the killing was the taking of or ability to keep items of pecuniary value.
State v. Phillips, 202 Ariz. 427, 46 P.3d 1048 (2002)
During the third robbery, the defendant fired shots at the backs of customers seated at a bar. The shooting resulted in the murder victim’s escape attempt, which led to his being shot by the co-defendant. The shooting of the victim permitted the defendant and his cohort to obtain and keep the robbery proceeds. The defendant’s conduct during the third robbery, coupled with his desire for money, justified the trial court’s finding of (F)(5).
State v. Carlson, 202 Ariz. 570, 48 P.3d 1180 (2002)
Carlson wanted her mother-in-law killed so she could benefit from her trust fund and annuities. The Court held this established the motive for the killing. However, because (F)(4) and (F)(5) were based on related facts, they could not be independently assigned full weight.
State v. (Marcus) Finch (II) , 205 Ariz. 170, 68 P.3d 123 (May 6, 2003) (Ring)
(F)(5) finding upheld. Finch and his accomplice, Phillips, robbed a Tucson bar at gunpoint. After Phillips shot patrons with a shotgun, Finch emerged with a handgun and threatened to kill everyone. Two patrons fled through the front entrance to escape; Finch followed them and shot one of the fleeing men twice in the back, killing him. At trial, Finch admitted his participation in the robbery and testified that he killed the victim to “prevent him from telling anyone that a robbery was taking place.” Given this admission, no reasonable jury could conclude otherwise but that Finch killed for pecuniary motive.
State v. (Scott Douglas) Nordstrom, 206 Ariz. 242, 77 P.3d 40 ( Sept. 24, 2003) (Ring)
(F)(5) finding upheld. Nordstrom was convicted on six first-degree murder counts stemming from incidences at two locations on two different dates in Tucson - the Moon Smoke Shop and the Firefighters’ Union Hall. Because (1) the murders at both locations occurred simultaneously with the robberies of each establishment, (2) the murders “facilitated Nordstrom’s ability to secure pecuniary gain,” (3) there was no evidence suggesting any motive other than pecuniary gain or that it was a robbery gone bad, and (4) Nordstrom conceded that the State proved the pecuniary gain aggravating factor beyond a reasonable doubt, no reasonable jury would have failed to find this factor.
State v. (Frank Winfield) Anderson, 210 Ariz. 327, 111P.3d 639 ( 2005) Jury Trial/Indep. Review
(F)(5) finding upheld. In 1996, Anderson, his fourteen-year-old girlfriend, and 19-year-old Bobby Poyson, executed a common plan to kill three residents of the Kagen home located in Golden Valley , in order to steal a truck belonging to one of the victims. Those killed included Mrs. Kagen, her 15-year-old son, Robert, and the truck’s owner, Roland Wear.
The court found that the fact that two of the three victims were left with jewelry on their person after they were killed, and that the objective was only to steal Roland Wear’s truck, did not negate finding (F)(5) as to all of the victims. The evidence showed that Mrs. Kagen and her son were killed so that Anderson and his accomplices could obtain the truck belonging to Wear and leave no witnesses. “Unlike robbery, 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.” Moreover, it was not duplicitous to find the pecuniary gain aggravator when the defendant has been convicted of felony-murder based upon the felony of armed robbery. While armed robbery requires proof of a “taking of property from the victim,” (F)(5) requires proof that the defendant’s “motivation [for the murder] was the expectation of pecuniary gain.”
State v. (Homer Ray) Roseberry, 210 Ariz. 360, 111 P.3d 402 ( 2005) Jury Trial/Indep. Review
(F)(5) finding upheld. The court found that pecuniary motive in this case was “well supported.” In 1998, Roseberry began transporting marijuana for members of a drug-smuggling ring known as the Pembertons because Roseberry and his wife needed the money. In early October of 2000, Roseberry agreed to transport more than one thousand pounds of marijuana in his motorhome. The Pembertons told him that to guarantee the safety of the shipment, a man named Fred Fottler would accompany him on the trip. The marijuana was loaded into the RV in Phoenix, and the two men set off. Roseberry, however, had conspired with a friend, Charles Dvoracek, to aid him in stealing the shipment for themselves, and Dvoracek was poised at a Wickenburg restaurant stop; ready to steal the RV when Roseberry and Fottler stopped to eat. But instead of stopping at the restaurant, Roseberry pulled over onto the shoulder of the road and shot Fottler twice in the head. Roseberry exited the motorhome and told Dvoracek that he had decided to kill Fottler when he unexpectedly dozed off on the sofa. Upon hearing “gurgling sounds,” Roseberry returned to the RV and shot Fottler a third time. The two men then disposed of the body in a gully off of the roadway, discarded the weapon, and transferred some of the marijuana into Dvoracek’s vehicle. Roseberry returned to his home in Nevada with the stash and confessed to his wife what he had done. She arranged for two drug dealers from Indiana to fly in and purchase some of the marijuana. Roseberry and Dvoracek split all of the proceeds.
Aside from this evidence, the Supreme Court noted that that additional pecuniary gain motive could be gleaned from the fact that “Roseberry and his co-conspirators wasted no time in setting up a deal to sell some of the marijuana. Indeed, they called [the brother of Roseberry’s wife, who connected Roseberry with the Indiana drug-buyers], the very day Fottler was killed. Moreover, there was no other discernable reason for Roseberry to kill Fottler other than to secure the marijuana. There was no evidence that the men had even met prior to the drug run, nor was there evidence that Roseberry harbored any animus toward Fottler.
State v. Ellison, 213 Ariz. 116, 140 P.3d 899 (2006) Jury Trial/Indep. Review
(F)(5) finding upheld. Ellison’s motive for the murders was to facilitate the burglary. The Court found that evidence established that Ellison planned the burglary and, in order to escape and avoid detection, killed the Bouchers.
State v. Harrod ("Harrod III"), 218 Ariz. 268, 183 P.3d. 519 (2008)
There was “overwhelming evidence” that the defendant was a hired killer and therefore the murder was for pecuniary gain. ¶55-¶56. This opinion is from a jury imposed death sentence. The opinion from the earlier death sentence imposed by a judge is “Harrod I”, State v. Harrod, 200 Ariz. 309, 26 P.3d 492 (2001).
State v. Boggs, Steve, 218 Ariz. 325, 185 P.3d 111 (2008) Jury Trial/Indep. Review
Murder of three restaurant employees. Defendant told a detective that money was his motivation. Approximately $300 was taken from two cash registers and someone had attempted to pry open a third register. The victims' pockets were emptied and their wallets taken. The accomplice tried to use a victim's bank card at an ATM. The evidence established the aggravator. ¶74-¶76.
The Court rejected the argument that there were multiple motivations for the murders and therefore the pecuniary gain motive was lacking. The alleged other motives were a desire to silence witnesses and racist attitudes towards the victims. Silencing witnesses so that none survive the robbery is an act in furtherance of the robbery and supports the pecuniary gain factor. Because pecuniary gain need only be "a" motive or cause of the murder, the presence of other motives does not mean the aggravator is not proven.
State v. (Cody James) Martinez, 218 Ariz. 421, 189 P.3d 348 (2008) Jury Trial/Abuse of Discretion Review
The Court found that the jury did not abuse its discretion in finding the (F)(5) aggravator. The jury heard substantial evidence that Martinez agreed to rob the victim, and the victim was beaten and his jewelry taken. The victim was then transported to his family home, where more items were stolen. Pecuniary gain must be a motive for the murder, but it need not be the sole motive. The facts support the jury’s finding that the victim was murdered to allow Martinez to keep the stolen property and avoid capture. ¶¶66-68.
State v. (Alfredo Lucero) Garcia, 224 Ariz. 1, 226 P.3d 370 (2010)
F5 finding upheld. When the killing and robbery happen almost simultaneously, the Court will not attempt to divine the evolution of the defendant’s motive in order to discern when, or if, his reason for harming the victim shifted from pecuniary gain to some other speculative non-pecuniary drive. Considered in its totality, the evidence established beyond a reasonable doubt that Garcia’s participation in the murder was motivated by the expectation of pecuniary gain, even if assuming that the codefendant rather than Garcia shot the victim.
State v. (Jahmari Ali) Manuel, 229 Ariz. 1, 270 P.3d 828 (2011)
F5 finding upheld. Before the murder, Manuel had asked his girlfriend (D.J.) to go into the pawn shop and attempt to pawn a chain he had given her. D.J. testified that Manuel was “broke” and might have needed money for gas. The Supreme Court found that the jury also could infer that he had sent D.J. inside to determine who was present. Manuel entered the shop firing his weapon, suggesting that he committed the murder to facilitate the robbery. Manuel then took two pistols from the pawn shop. The jury could reasonably conclude that pecuniary gain was a motive, cause, or impetus for the murder.
State v. (Gilbert) Martinez, Sr., 230 Ariz. 208, 282 P.3d, 409 (2012)
(F)(5) finding upheld. Martinez and an accomplice “scoped out” the home, left to retrieve a gun, and then returned wearing gloves and masks to commit the burglary and theft. They took items from the home, Martinez shot one person, and then fled with the stolen property. Martinez went to the victims' home expecting pecuniary gain, and the murder allowed him “to keep the stolen property and avoid capture.” The record also contains sufficient evidence supporting the jury's finding that Martinez committed the murder for pecuniary gain. The jury did not abuse its discretion in finding the aggravating circumstance. [Citing Martinez, 218 Ariz. at 435, 189 P.3d at 362; see also State v. Ellison, 213 Ariz. 116, 143, 140 P.3d 899, 926 (2006)(finding pecuniary gain aggravating circumstance proven when defendant went to victims’ house to commit burglary and committed the murders to “escape and avoid detection”)].
State v. (Steven John) Parker, 231 Ariz. 391, 296 P.3d 54 (2013)
To prove the pecuniary gain aggravator, the state must show that “the expectation of pecuniary gain is a motive, cause, or impetus for the murder and not merely a result of the murder.” The State introduced evidence that V1's wallet and V2's purse were missing after the murders. Their credit and bank cards were used several times in the following days, including once at a bar that defendant had visited for a poker tournament and possibly again during the week of the murders, and on a route to Mexico at the time defendant was driving there. In addition, the State introduced evidence that defendant had financial problems when the murders occurred. The evidence of defendant's financial troubles, the use of the Smiths' credit and bank cards, and the inferences that can be drawn from that evidence support the jury's finding. [Citations omitted].
State v. (Edward James) Rose, 231 Ariz. 500, 297 P.3d 906 (2013)
Other than the (F)(5) aggravator, defendant did not contest the remaining (3) aggravating factors: (F)(2), (F)(7) or (F)(10); the Court found that sufficient evidence supported each of the aggravating factors.
To prove the “expectation of pecuniary gain” aggravator, the state must show that “the expectation of pecuniary gain is a motive, cause, or impetus for the murder and not merely a result of the murder.” The pecuniary gain aggravating factor requires a “causal connection between the pecuniary gain objective and the killing,” and may include “facilitat[ing] escape or hinder[ing] detection.” That the attempted theft by cashing a forged check had failed and defendant had not received any money before the officer arrived did not negate the “expectation of pecuniary gain” finding. Facts supporting this finding include (1) defendant’s statement that he would shoot anyone who tried to stop him from cashing the forged check; (2) the murder occurred close in time and location to the burglary; (3) the murder facilitated his escape and ability to hide temporarily; and – most persuasive under Cañez, 202 Ariz. 133, 159, 42 P.3d 564, 590(2002)– (4) defendant did not try to conceal his identity.
State v. (Shawna) Forde, 233 Ariz. 543, 315 P.3d 1200 (2014)
Substantial evidence demonstrated that defendant planned and participated in the robbery to fund the minuteman operation. She was aware that a cohort wanted to kill his competitor. She directed that the surviving victim be “finished off.” She then texted “competition gone,” after the murders. All demonstrate her willingness to facilitate the murders to accomplish the burglary to fund her organization.
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(5) pecuniary gain aggravator was established beyond a reasonable doubt. The Court found that the “facts establish that the co-defendants returned to the victim’s residence intending to steal more and to murder the victim to avoid detection.” The Court noted that Lynch and Sewhani used the victim’s credit card and then returned to the victim’s residence, tied him to a chair, killed him and then repeatedly used his credit and debit cards, including to secure a motel room in Lynch’s name. The victim’s gun and magazine were located in Lynch’s motel room and the victim’s car keys were in the truck Lynch was entering.