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Arizona Judicial Branch

GRATUITOUS VIOLENCE

GRATUITOUS VIOLENCE FINDING UPHELD

State v. Ceja (Ceja II), 115 Ariz. 413, 565 P.2d 1274 (1977)
PRE-GRETZLER CASE
Two victims were shot several times by the defendant. Victim Linda Leon was shot twice in the chest, dragged to another room, and shot four more times in the head. Victim Randy Leon was shot several times and then kicked in the head. This "barrage of violence" beyond what was necessary to kill or steal indicates a cruel or depraved nature apart from the usual or norm.

State v. Ceja (Ceja III), 126 Ariz. 35, 612 P.2d 491 (1980)
PRE-GRETZLER CASE
Same reasons as for Ceja II.

State v. Bishop (Bishop II), 127 Ariz. 531, 622 P.2d 478 (1981)
PRE-GRETZLER CASE
After striking the victim several times in the head with a hammer, the defendant removed items from the victim, tied his legs together, and dragged him to the edge of a mineshaft. The defendant then threw rocks on top of the victim as he lay twitching at the bottom of the mineshaft.

State v. Vickers (Vickers I (Ponciano murder)), 129 Ariz. 506, 633 P.2d 315 (1981)
PRE-GRETZLER CASE
The Arizona Supreme Court found that the evidence of the numerous stabbings, in addition to the carving of the word "Bonzai" in the victim's back reflected a mental state "marked by debasement." The cause of death was strangulation and the body sustained ten to twelve puncture wounds.

State v. Ortiz, 131 Ariz. 195, 639 P.2d 1020 (1981)
PRE-GRETZLER CASE
The Court upheld this finding without discussion. The victim may have been strangled, was stabbed, and was set on fire by the defendant. He then stabbed the victim's two young daughters and tried to set the house on fire. The two girls and the baby were able to escape. The Court found this murder to be "far more heinous and depraved than the norm of first degree murders."

State v. Woratzeck, 134 Ariz. 452, 657 P.2d 865 (1983)
PRE-GRETZLER CASE
The Court found this murder to be heinous or depraved. The violence committed against the victim was well beyond the point necessary to fulfill a plan to steal or even to kill. The victim suffered from Huntington's disease, lacked coordination, and had the mental capacity of a fifteen-year-old. She had been strangled, stabbed three times, struck on the head twice, and her house and body burned.

State v. Jeffers, 135 Ariz. 404, 661 P.2d 1105 (1983)
Defendant climbed on top of dead victim and hit her in face several times, which eventually resulted in additional wounds and bleeding.

State v. Harding (Wise, Concannon murders), 137 Ariz. 278, 670 P.2d 383 (1983)
Right side of victim's face was severely bruised and abraded; right ear lobe was nearly severed; jaw was broken, with bone fragments, and it was displaced from its normal position; injuries sustained required a number of blows to victim's face while stationary; second victim was perversely gagged.

State v. Summerlin, 138 Ariz. 426, 675 P.2d 686 (1983)
Several blows to victim's head were far more than needed to kill her.

State v. McCall (McCall I), 139 Ariz. 147, 677 P.2d 920 (1983)
Court appears to have made an alternative finding of mutilation or gratuitous violence; however, Court used mutilation language and stated that throat cutting at, near, or shortly after death was intended as a warning to others.

State v. Fisher (Fisher I), 141 Ariz. 227, 686 P.2d 750 (1984)
Victim suffered three separate blows to head with a claw hammer; each blow would have been fatal; violence was more than necessary to rob and even kill victim.

State v. Chaney, 141 Ariz. 295, 686 P.2d 1265 (1984)
Gratuitous violence finding not specifically made, but Court found high-powered weapon was repeatedly fired at the victim.

State v. Villafuerte, 142 Ariz. 323, 690 P.2d 42 (1984)
Court does not specify which facts were relied upon to find gratuitous violence; Court did note "perverse gagging" of victim with a ball of cloth in her nasal pharynx.

State v. Clabourne (Clabourne I), 142 Ariz. 335, 690 P.2d 54 (1984)
Victim near death after strangulation; stabbing unnecessary to accomplish murder; victim stabbed twice, once through heart.

State v. Gillies (Gillies II), 142 Ariz. 564, 691 P.2d 655 (1984)
Victim raped repeatedly, taken into mountains to edge of embankment, kicked over edge; when victim didn't die, defendants struck her in head with rock repeatedly; victim died of blood loss and crushed skull.

State v. Carriger (Carriger III), 143 Ariz. 142, 692 P.2d 991 (1984)
Victim's head was mutilated; defendant struck victim with a skillet so hard that victim's brain was jelled loose; struck victim with a pointed object; used victim's tie to strangle victim.

State v. Bracy, 145 Ariz. 520, 751 P.2d 464 (1985)
see State v. McCall.
Court found infliction of gratuitous violence or mutilation because victim shot twice in head then had throat slashed at or shortly after time of death; throat slashing intended as message to warn others.

State v. Hooper, 145 Ariz. 538, 751 P.2d 482 (1985)
see State v. Bracy.
see
State v. McCall.

State v. Rossi (Rossi I), 146 Ariz. 359, 706 P.2d 371 (1985)
Defendant used special bullets designed to inflict greater tissue damage than typical ammunition.

State v. Wallace (Wallace I), 151 Ariz. 362, 728 P.2d 232 (1986)
Defendant continued to strike victims in head after they collapsed to floor; one victim's brain matter spattered on floor and wall; defendant shoved a jagged portion of a broken baseball bat through another victim's throat after beating her; Court noted that a less violent alternative was readily available; defendant did not use loaded gun because noise would have alerted neighbors of crime.

State v. Walter LaGrand, 153 Ariz. 21, 734 P.2d 563 (1987)
Twenty-four stab wounds; bank manager bound and gagged; "callous disregard for human worth."

State v. Comer, 165 Ariz. 413, 799 P.2d 333 (1990)
Stabbed victim in throat after shooting victim; autopsy confirmed that victim was stabbed at a time when he was already dead, or almost dead.

State v. Hinchey (Hinchey I), 165 Ariz. 432, 799 P.2d 352 (1990)
Defendant used three separate instruments in the attack: a gun, a large bottle and a large knife; used more force than what was necessary to kill; victim shot twice in face; returned to beat victim over head with large bottle; returned third time and stabbed victim repeatedly, leaving knife protruding from abdomen.

State v. Jiménez, 165 Ariz. 444, 799 P.2d 785 (1990)
Court found both gratuitous violence and mutilation based on numerous postmortem stab wounds.

State v. Amaya-Ruiz, 166 Ariz. 152, 800 P.2d 1260 (1990)
Twenty-three stab wounds and contact gunshot wound to victim's head show gratuitous violence beyond that necessary to kill.

State v. Cook, 170 Ariz. 40, 821 P.2d 731 (1991)
Torture; first victim was cut with a knife, beaten with fists, burned with cigarettes, sodomized, and had his genitals mutilated.

State v. Brewer, 170 Ariz. 486, 826 P.2d 783 (1992)
Defendant had sexual intercourse with victim after she was dead.

State v. Rossi (Rossi III), 171 Ariz. 276, 830 P.2d 797 (1992)
Defendant used special bullets designed to inflict greater tissue damage than typical ammunition.

State v. Medrano (Medrano I), 173 Ariz. 393, 844 P.2d 560 (1992)
Numerous stab wounds.

State v. Kiles, 175 Ariz. 358, 857 P.2d 1212 (1993)
Found as to two victims. Girlfriend: knocked unconscious with one blow; bludgeoned with jack stem after regaining consciousness; fractured skull; shattered teeth; broken arm.

Nine-month-old baby: struck with jack stem approximately fourteen times; skull completely shattered; blood spread on four walls and ceiling of bedroom.

State v. Samuel Lopez, 175 Ariz. 407, 857 P.2d 1261 (1993)
Multiple stab wounds in chest and abdomen; throat cut; knife wounds to face; sexual assault; bound victim's eyes; gagged victim's mouth.

State v. West, 176 Ariz. 432, 862 P.2d 192 (1993)
Victim tied up; repeatedly struck in face; many broken bones in face; hard palate detached.

State v. Gallegos (Gallegos I), 178 Ariz. 1, 870 P.2d 1097 (1994)
Injuries to rectum of eight-year-old girl; defendant believed he committed necrophilia; naked, bruised, and battered body discarded under a tree.

State v. Maturana, 180 Ariz. 126, 882 P.2d 933 (1994)
Court commingles factors for gratuitous violence and mutilation. Victim shot at least twelve times in head and chest; some bullets caused multiple entrance wounds; defendant watched as codefendant repeatedly hacked body with machete; victim's jugular severed; defendant attempted to sever victim's head; body dumped in well.

State v. Stokley, 182 Ariz. 505, 898 P.2d 454 (1995)
Stabbing in eyes of victims and stomping on bodies could not have been thought to cause death and, therefore, constituted gratuitous violence.

State v. Aryon Williams, 183 Ariz. 368, 904 P.2d 437 (1995)
Body broken, crushed, torn, scraped, shot, dragged, beaten, and bruised; shot three times; blunt force injuries; internal injuries consisting of pierced and torn organs; fractured right femur; ribs fractured in thirty-one places; pelvic bone fractures; run over with car at least twice.

State v. Walden, 183 Ariz. 595, 905 P.2d 974 (1995)
Bruises on arms and legs; scraping or cutting injuries to neck, chest, and breast; gash on head; strangled; two deep cuts on throat.

State v. Roger and Robert Murray, 184 Ariz. 9, 906 P.2d 542 (1995)
Numerous gunshot wounds with different weapons.

State v. Gulbrandson, 184 Ariz. 46, 906 P.2d 579 (1995)
Victim brutally beaten with knives, scissors, and wooden salad fork; stabbed thirty-four times; blunt force injuries; broken nose; kicked or stomped on; asphyxiated due to probable strangulation.

State v. Danny Jones, 185 Ariz. 471, 917 P.2d 200 (1996)
Male victim hit with initial blows, regained consciousness, climbed on work bench, tried to flee, struck twice more in head with baseball bat, fell to ground, struck in head once more, where each successive blow was sufficient to cause death; female victim hit twice with baseball bat, which was sufficient to cause death, then pillow placed over her head, suffocated and/or strangled.

State v. Hyde, 186 Ariz. 252, 921 P.2d 655 (1996)
Beat male victim until skull bone visible and bleeding profusely; female victim suffered eight blows to head and inhaled blood; blows delivered with sufficient force not only to shatter bone, but to cut and tear brain tissue with bone fragments.

State v. Miller, 186 Ariz. 314, 921 P.2d 1151 (1996)
Cutting or pulling out victim's hair constituted gratuitous violence. See "Researcher's Commentary" in full Case Summary.

State v. Detrich (Detrich II), 188 Ariz. 57, 932 P.2d 1328 (1997)
Three fatal stab wounds left thirty-seven unnecessary and excessive stab wounds.

State v. Chad Lee (Drury murder), 189 Ariz. 608, 944 P.2d 1222 (1997)
Victim shot in shoulder, cheek, neck, and top of head; defendant then lifted counter top, walked around corner, and fired two shots into victim's right temple; since shot to top of head fatal, additional shots were gratuitous.

State v. Rienhardt, 190 Ariz. 579, 951 P.2d 454 (1997)
Gratuitous violence alone was sufficient to support a finding of heinous or depraved. Gratuitous violence is violence beyond that necessary to kill. Severe beating with butt of gun; shooting at close range with shotgun; dropping at least one boulder on victim's skull; rage perpetrated on victim was "shockingly evil."

State v. Tankersley, 191 Ariz. 359, 956 P.2d 486 (1998)
Court found both mutilation and gratuitous violence but did not distinguish which facts supported each finding individually. Victim strangled by her own oxygen tubes, physically and sexually assaulted while alive or at point of death; defendant caused feces to be smeared on victim's body and chewed off parts of victim's flesh while she was still alive.

State v. Doerr, 193 Ariz. 56, 969 P.2d 1168 (1998)
The medical examiner testified that the victim died of multiple blunt force trauma. In addition, she was sodomized with a metal pipe and a broom handle such that her rectal and vaginal cavities were ruptured. Her nose was fractured and face beaten so severely that family members could not identify her. One laceration was so deep it exposed the skull. The victim also suffered numerous knife slashes, bruises and injuries beyond that necessary to kill.

State v. Medina, 193 Ariz. 504, 975 P.2d 94 (1999)
The medical examiner testified that the victim had been run over twice by a car, and that he died after the first pass. The defendant told his girlfriend that he had run over the victim three times and that the victim's head turned a different way with each pass.

State v. Pandeli, 200 Ariz. 365, 26 P.3d 1136 (2002)
The victim died from a single deep knife slash to the throat. But forensic evidence also showed the defendant attempted to strangle the victim, and also inflicted numerous blows to the head and blows to the chest that fractured the victim’s sternum. The absence of defensive wounds undermined Pandeli's contention that a struggle had occurred; his actions thus were beyond that required to kill.

State v. (Antoin) Jones, 205 Ariz. 445, 72 P.3d 1264 (2003) (Ring)
Physical evidence that 12-year-old victim received at least nine blows to the head, shattering bone and exposing brain matter, was stabbed twice in the throat, had multiple abrasions on her face and chest, and had been sexually assaulted vaginally and anally, was sufficient to establish gratuitous violence beyond a reasonable doubt.

State v. (John Edward) Sansing, 206 Ariz. 232, 77 P.3d 70 (2003) (Ring)
Stipulated and uncontroverted facts established that Sansing struck the victim on the head with a club using enough force to break the club into two pieces and lacerate the victim’s scalp.  He later dragged her into his bedroom and raped her while her arms and legs were bound.  At some point he blindfolded her, gagged her with a sock in her mouth, and stabbed her in the abdomen three times.  Sansing’s wife observed Sansing “grind” the knife into the victim’s abdomen.  The victim was also found with ligature marks around her neck.  There was swelling and bruising on her forehead and left orbital region.  He face and lips were swollen and her frenulum was severed, which was attributed by the medical examiner to blunt force trauma to the mouth.  In all, the rape, facial wounds, neck ligatures, gagging, blind-folding, and grinding of the knife constituted, beyond a reasonable doubt, violence “beyond that necessary to kill.”

State v. (Patrick Wade) Bearup, 221 Ariz. 163, 211 P.3d 684 (2009)
Bearup cut off the victim’s finger to retrieve a ring.  Although it was not clear when the victim died, if Bearup cut off his finger when the victim was alive, he inflicted gratuitous violence; if he did so after the victim’s death, he mutilated a corpse.

State v. (Pete) Van Winkle, 230 Ariz. 387, 285 P.3d 308 (2012)
(F)(6) finding upheld. Although the trial court incorrectly instructed the jury regarding “gratuitous violence” (by failing to instruct that the state must show that the defendant continued to inflict violence after he knew or should have known that a fatal action had occurred), the error was harmless.  Proof that a defendant either employed gratuitous violence or relished the killing suffices to establish that a murder was especially heinous or depraved.  See State v. Rienhardt, 190 Ariz. 579, 590, 951 P.2D 454, 465 (1997).  Defendant beat the victim for nearly twenty minutes, punched him beat his head against the floor, and jumped up and down on his motionless body.  Because the attack began with a chokehold and testimony indicated that asphyxiation would have occurred within minutes; because the surveillance camera confirmed that less than two minutes into the attack the victim’s body was motionless, suggesting he had lost consciousness and died thereafter; and because the defendant continued the attack for several minutes, eventually trying to throw him from the second floor railing; and because the defendant admitted that he continued the attack after he knew the victim had died, the jury could conclude that defendant continued to inflict violence after he knew he had killed the victim.  This constitutes gratuitous violence.

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 aggravating factor, “especially heinous or depraved by inflicting gratuitous violence,” was established by evidence that defendant continued to inflict violence on the second victim after he “knew or should have known” she was dead. Because the “especially heinous or depraved” aggravating factor was established, the “especial cruelty” finding was not reviewed.

State v. (Christopher Mathew) Payne, 2013 WL 6252412 (November 21, 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 age of the victim may be considered for both “especial heinousness and depravity,”(F)(6), and the “young age of the victims,” (F)(9). A single fact may be used to support multiple aggravating factors as long as the fact is not weighed twice when assessing mitigation/ aggravation.

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. (Efren) Medina, 232 Ariz. 391, 306 P.3d 48 (2013)
Defendant should have known that running over an elderly man who had already been beaten would kill him; running over him multiple times evidenced gratuitous violence.

Because both relishing and gratuitous violence were found, a special verdict form was not necessary.



GRATUITOUS VIOLENCE FINDING REVERSED

State v. Richmond (Richmond II), 136 Ariz. 312, 666 P.2d 57 (1983)
Three justice plurality held gratuitous violence was not proven beyond a reasonable doubt where victim was killed by being run over twice by an automobile because there is no evidence that defendant knew victim was dead after first pass of car.

State v. Bernard Smith, 146 Ariz. 491, 707 P.2d 289 (1985)
Defendant shot victim only once and inflicted no further violence upon victim.

State v. Styers, 177 Ariz. 104, 865 P.2d 765 (1993)
Use of hypervelocity bullet did not constitute gratuitous violence because no evidence was presented that defendant used to bullets with intent of inflicting greater damage on victim.

State v. Scott, 177 Ariz. 131, 865 P.2d 792 (1993)
Medical evidence suggests that at least two of three wounds were fatal; firing one or two unnecessary shots does not necessarily constitute gratuitous violence.

State v. Richmond (Richmond III), 180 Ariz. 573, 886 P.2d 1329 (1994)
see State v. Richmond II.

State v. Soto-Fong, 187 Ariz. 186, 928 P.2d 610 (1996)
Gratuitous violence was found as an alternative to cruelty by trial court; Arizona Supreme Court held that alternative findings do not reach "beyond a reasonable doubt" standard; shots to body shortly after shot to head would probably not constitute gratuitous violence.

State v. Lacy, 187 Ariz. 340, 929 P.2d 1288 (1996)
Three gunshot wounds; evidence not sufficient to know which shot was fatal and therefore can't prove that one or more were gratuitous.

State v. Chad Lee (Reynolds, Lacey murders), 189 Ariz. 590, 944 P.2d 1204 (1997)
Court record did not establish time frame or sequence of four shots; did not establish beyond a reasonable doubt that violence was beyond that necessary to kill.

State v. Schackart, 190 Ariz. 238, 947 P.2d 315 (1997)
Majority of injuries to victim's head and neck connected with strangulation; one blow that chips tooth and lacerates tongue not sufficient for gratuitous violence.

State v. Canez (I), 202 Ariz. 133, 42 P.3d 564 (2002)
Defendant attempted to strangle the victim, stabbed him six times and delivered 10 blunt force injuries to the head and 11 other blunt force injuries. He used his fists, a frying pan, a laundry bag and a knife. The Court found that the violence was not beyond that necessary to kill because Canez simply escalated his attacks until he succeeded in killing the victim.

State v. (Robert Joe) Moody, 208 Ariz. 424, 94 P.3d 1119 (2004) (Ring)
In the first case, Moody accosted the victim with a knife, cut her, beat her, and shot her repeatedly with a .22 caliber rifle, reloading each time.  In the second case, after binding the victim and driving to the bank to withdraw money using the victim’s bankcard, he returned to slit the victim’s throat, stab her in the back and bludgeon her to death with hedge clippers.  Because no expert could pinpoint exactly which injuries caused the death of each victim and the State never attempted to establish that Moody knew which shots or blows caused each death, the court could not conclude that no reasonable jury would have failed to find this element beyond a reasonable doubt.

State v. (Frank Winfield) Anderson, 210 Ariz. 327, 111P.3d 639 ( 2005) Jury Trial/Indep. Review
The court conceded that in the cases of the two victims, Robert & Wear, to whom this factor was applied, gratuitous violence was a “closer question.”  Both Robert and Wear were subjected to “prolonged and varied attacks before they succumbed. [Robert] had his throat slashed, a knife pounded into his ear, and his head beaten with a rock.  Wear was shot through the jaw, hit over the head with a rifle butt and a lantern, and then killed by blows to the head from a cinder block.  While these multiple attacks were reprehensible, they d[id] not meet the (F)(6) test of gratuitous violence.  Each attack came in an attempt – albeit clumsy – to kill the victim, not to engage in violence beyond that necessary to kill.”

State v. Bocharski, 218 Ariz. 476, 189 P.3d 403 (2008)
The victim was stabbed twenty-four times on the face and neck in less than one minute. These blows certainly involved considerable violence and were not necessary to cause death, supporting the conclusion that the defendant inflicted more violence than that necessary to kill. However, the state must also show that the defendant continued to inflict violence after he knew or should have known that a fatal action had occurred. Because the medical examiner expressed uncertainty about when in the sequence the fatal wound occurred, the state failed to make this showing and gratuitous violence was not established.

State v. Wallace, 219 Ariz. 1, 191 P.3d 164 (2008)
The victim was hit four or five times to the head with a pipe wrench over a relatively brief period. The medical examiner was unable to opine as to which blow was fatal, let alone whether sufficient injury to kill had already been inflicted before the final blow. Although the assault on the victim was brutal and reprehensible, it came in an attempt to kill her, not to engage in violence beyond that necessary to kill.)

State v. (Aaron Brian) Gunches, 225 Ariz. 22, 234 P.3d 590 (2010)
F6 heinousness/depravity finding reversed. The Court reviewed the evidence supporting the jury’s aggravation finding of heinousness and depravity, which was based on the gratuitous violence factor. The medical examiner testified that each of the four wounds ultimately would have been fatal. Gunches fired the shots from several feet away and in rapid succession. The Court found that although there was substantial evidence that Gunches inflicted more violence than was necessary to kill, the record did not support the finding that he knew or should have known that he had fired the fatal shot and yet continued to inflict violence.

State v. (James Granvil) Wallace (Wallace IV), 229 Ariz. 155, 272 P.3d 1046 (2012)
F6 heinous/depravity finding reversed. Wallace killed two children. He struck the girl in the head at least ten times with a small wooden baseball bat, eventually breaking the bat, and dragged her into the bathroom and drove the broken bat into her throat. He struck the boy on the head with a pipe wrench at least eleven times. The medical examiner was unable to determine the order of the blows or which blow caused death, except as to the girl that the neck wound alone was not fatal and as to the boy that two separate wounds alone most likely would have been fatal. The Court found the evidence established that Wallace inflicted more injury on each child than necessary to kill. However, the evidence failed to establish that Wallace continued to inflict injury after he knew or should have known that he had inflicted a fatal wound as to each child. His actions were more akin to the clumsy and escalating attacks in other cases where gratuitous violence was not found. 


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