This main section is broken upon into ten subsections – one for each of the aggravating factors. Each begins with an introduction to the law concerning that aggravating circumstance, followed by case annotations in chronological order. The case citations are divided into “Upheld” and “Reversed” sections, and further divided if the law regarding the circumstance has substantially changed at some point; for example: “Old Law” and “New Law.”
1. Death Penalty Finding Requires One Found Aggravator: Each death sentence must rest on two findings: proof beyond a reasonable doubt of at least one aggravating circumstance set forth in A.R.S. § 13-751(F) and a finding “that there are no mitigating circumstances sufficiently substantial to call for leniency.” A.R.S. § 13-751(E).
2. No Non-Statutory Aggravators: Arizona does not recognize non-statutory aggravators. The State’s sentencing evidence, therefore, must be relevant to the fourteen enumerated aggravating circumstances listed in the statute under A.R.S. §13-751(F)(1) through (F)(14).
3. No Accomplice/Vicarious Liability for Aggravators: There is no accomplice liability for aggravating factors. In State v. Carlson, 202 Ariz. 570 (2002), the Arizona Supreme Court addressed for the first time the question of what legal boundaries should exist when the defendant was neither the actual killer nor a witness to the murder. The court rejected the tort theory of “reasonable foreseeability” that would permit vicarious liability, in favor of the criminal law concept of “mens rea.” So, for example, where the defendant assisted the accomplice in planting a bomb that would be triggered by the accomplice or the victim, the defendant can be said to have intended or at least known that the victim would suffer, thereby justifying applying the “cruelty” element of (F)(6). See Carlson, 202 Ariz. at 583 (discussing State v. Adamson, 136 Ariz. 250, 266 (1983)). But cruelty will not apply to the defendant who aided the accomplice in the killing, but did not intend the result, such as was the case in Carlson when the accomplices who actually did the killing bungled the job, causing the victim long suffering before death. See also State v. Walton, 159 Ariz. 571, 587 (1989) (defendant could not foresee that victim would survive gunshot to head and wander desert blind for one week before dying of exposure). Note that were there are multiple accomplices, and the defendant was an active participant in the actual murder(s), defendant is not spared the application of an aggravating factor merely because an accomplice administered the fatal blow. See State v. Anderson, 210 Ariz. 327, 353-54, ¶ 115-118, 111 P.3d 369, 395-96 (2005).
This concept is entirely distinct from the Enmund/Tison accomplice liability rule, which does not permit a defendant convicted of felony-murder to become eligible for the death penalty unless, at a minimum, he was a major participant in the underlying felony and demonstrated a reckless indifference to human. This accomplice liability theory is constitutional and separate from the application of aggravating factors at the sentencing phase.
4. Not Duplicative with Felony Murder (Burglary): The “expectation of pecuniary gain” (F)(5) aggravator was not automatically proven by the conviction for felony murder predicated on burglary. Burglary requires proof of entry with intent to “commit any theft or felony, ” while the (F)(5) aggravator requires proof that defendant’s motive was the expectation of pecuniary gain. State v. (Edward James) Rose, --- Ariz. ---, --- P.3d ---, 2013 WL 1338124 (April 5, 2013).
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