Capital Sentencing Guide

A.R.S. §13-751(F)(2)

A.R.S. §13-751(F)(2)-PRIOR CONVICTION-SERIOUS OFFENSE

From 1993 to the present--serious offense

A.R.S. § 13-751 (F)(2) currently provides that it shall be an aggravating circumstance where “[t]he defendant has been or was previously convicted of a serious offense, whether preparatory or completed.  Convictions for serious offenses committed on the same occasion as the homicide, or not committed on the same occasion but consolidated for trial with the homicide, shall be treated as a serious offense under this paragraph.”

History:  Though its language has been altered over the years, this aggravating circumstance was one of the original six circumstances listed in the 1973 capital sentencing statute.

Constitutionality: The (F)(2) aggravator is constitutional.The (F)(2) aggravating factor permits consideration of a prior conviction for a “serious offense,” which may have been committed contemporaneously with the murder.  The (F)(2) aggravator, by including the consideration of offenses committed contemporaneously with the murder, does not violate the Eighth Amendment.  “The aggravator [performs the narrowing function and reasonably justifies imposition of the death penalty; the aggravator] appropriately channels and limits the sentencer’s discretion by explicitly identifying which offenses qualify as ‘serious offenses.’” State v. Forde, 233 Ariz. 543, 315 P.3d 1200 (2014).

Timing of the OffenseFrom September 18, 2003 to the present:  Convictions entered prior to a sentencing hearing can be considered regardless of the order in which the underlying crimes occurred, or the order in which the convictions were entered.  State v. Chad Lee, 189 Ariz. 590, 944 P.2d 1204 (1997). See also, State v. Rogovich, 188 Ariz. 38, 932 P.2d (1997)(applies to convictions entered prior to sentencing hearing, regardless of the order in which the underlying crimes occurred).  Moreover, as indicated by the language of the statute, the legislature now allows convictions for offenses that occurred on the same occasion as the homicide or which have been consolidated for trial, to be used to prove the (F)(2) factor.

Prior to September 18, 2003:  Prior to the effective date of the 2003 amendment to § 13-751(F)(2), offenses could not support an (F)(2) finding when they arose from events occurring contemporaneously with the capital homicide.  See State v. Rutledge, 206 Ariz. 172, 175-76, 76 P.3d 443, 446-47 (2003); State v. Phillips, 202 Ariz. 427, 438, 46 P.3d 1048, 1059 (2002);  State v. Gretzler, 135 Ariz. 42, 57 n.2 (1983).  This being so, it should be emphasized that, so long as the events were not contemporaneous with the homicide, felony convictions obtained at the same trial as the capital homicide could be used to support this factor.  See State v Finch (II), 205 Ariz. 170, 68 P.3d 123 (2003) (defendant’s 27-felony-count convictions relating to the first two robberies, which occurred on earlier dates than the third robbery, where the victim was killed, were sufficient to support (F)(2), where all convictions including capital murder were obtained at same trial; use of convictions resulting from third robbery was harmless error).

Order of Crimes/Order of Verdicts:  It is important to note that in both the pre and post 2003 versions of this statute, all guilty verdicts rendered by the trier of fact entered prior to the commencement of the sentencing hearing, so long as no issues of contemporaneousness exist if it is a pre-2003 case, can be considered in support of the (F)(2) aggravator.  This is true regardless of the order in which the underlying crimes occurred or the order in which trier of fact rendered its verdicts.  The fact that the pre-2003 version of the statute read: “The defendant was previously convicted of a serious offense, whether preparatory or completed,” see A.R.S. 13-751(F)(2) (2002)(superseded), and it now reads, "The defendant has been or was previously convicted of a serious offense, whether preparatory or completed,” A.R.S. 13-751(F)(2) (emphasis added), is of no moment in considering when prior convictions can be considered for (F)(2) purposes.  The 2003 amendment was designed only to permit serious offenses that occurred contemporaneously with the homicide to be considered for this factor.  The “has been convicted” language was added to comport with language already set out in (F)(8) – the aggravating factor aimed at homicides occurring contemporaneously with each other.  Since (F)(8) was already phrased, “the defendant has been convicted of one or more other homicides,” the legislature added the “has been convicted” language to (F)(2) at the same time that it added the provision for contemporaneousness.  See State v. Rutledge, 206 Ariz. 172, 176 (2003) (“The only limitation is that the conviction for the serious offense must be rendered before sentencing on the murder”), and see n.3 (discussing this amendment and the purpose thereof); and see, e.g., State v. Jones, 197 Ariz. 290 (2000) (The defendant had three aggravated assault, 3 burglary, and 2 armed robbery convictions stemming from two robbery/murder events that occurred on two occasions.  Multiple victims were killed on each of the two occasions.  The court stated, “Because Jones was convicted of these serious offenses before the sentencing phase, each offense provides sufficient grounds for satisfying the F.2 factors for the murder offenses”) (emphasis added), cert. denied, 532 U.S. 978 (2001).  Thus, the addition of the “has been convicted” language denotes nothing more a desire to achieve language conformity with (F)(8).

Nature of the Offense:

From July 17, 1993 to the present  (The “Serious” Offense)

The state must prove beyond a reasonable doubt that the defendant has been convicted of a serious offense as defined in A.R.S. § 13-751(I). Those offenses are: first degree murder, second degree murder, manslaughter, aggravated assault involving a serious physical injury or committed by the use or threatening exhibition of a deadly weapon or dangerous instrument, sexual assault, any dangerous crime against children, arson of an occupied structure, robbery, first degree burglary, kidnapping, and sexual conduct with a minor under fifteen years of age. Two additional offenses were added to the list in 2005: second-degree burglary and terrorism. The inclusion of these offenses effect first-degree murders committed on or after August 12, 2005. Preparatory offenses include attempt, solicitation, conspiracy and facilitation. See A.R.S. §§ 13-1001 to 13-1006. This version of (F)(2) now encompasses crimes that can be committed with a reckless state of mind. That was not the case with the old version of the statute.

Note also that the list of crimes in A.R.S. §13-751(I) identifies serious offenses by name, not by statute number.  The sentencing court, therefore, may need to conduct an analysis similar to that set forth in State v. Martinez, 196 Ariz. 451, 999 P.2d 785, cert denied, 531 U.S. 934 (2000).  In Martinez, the Court upheld the trial court’s conclusion that aggravated assault includes not only the offense set forth in A.R.S. § 13-1204, but also the crime of dangerous or deadly assault by prisoner under A.R.S. §13-1206.  “A comparison of the statutes shows that [a crime committed pursuant to §13-1206] is the same as a § 13-1204(A)(2) aggravated assault committed by the use of a deadly weapon or dangerous instrument, with the additional element that the offense must be committed by a ‘prisoner.’”

Note also that, effective August 12, 2005, for the purposes of determining if a dangerous crime against children qualifies as a “serious offense,” a minor under the age of twelve includes an unborn child.

1973 - July 16, 1993 (The “Violent” Offense)

A.R.S. § 13-751(F)(2) formerly stated that it was an aggravating circumstance where "[t]he defendant was previously convicted of a felony in the United States involving the use or threat of violence on another person." Violence is defined as the exertion of any physical force so as to injure or abuse.  State v. Arnett, 119 Ariz. 38, 579 P.2d 542 (1978).

Two Prongs:

Two prongs must be satisfied to qualify a prior conviction as a felony involving violence.  First, the statutory definition must “necessarily involve[] the use or threat of violence.”  State v. Rogovich, 188 Ariz. 38, 44 (1997).  This means that the felony offense must involve violence by its nature; it is not relevant whether the defendant actually committed the felony in a violent mannerSee State v. Gillies, 135 Ariz. 500, 511 (1983), cert. denied, 470 U.S. 1059 (1985) (theft not a violent offense despite testimony from victim at aggravation phase that defendant had assaulted and threatened him during the class-six theft proffered by the State as satisfying (F)(2)); State v. Ysea, 191 Ariz. 372, 375-76, 956 P.2d 499, 502-03 (1998) (discussing Gillies and why solicitation to commit aggravated assault was not a violent offense for the purposes of (F)(2)); and see State v. Schackert, 190 Ariz. 238, 947 P.2d 315 (1997) (sexual assault and kidnapping, by statutory definitions alone, did not satisfy the violence requirement because each could be committed by deception as well as by violence); State v. Richmond, 180 Ariz. 573 (1994) (because kidnapping was not a statutorily violent crime, it was irrelevant that defendant used violence to kidnap); State v. Bible, 175 Ariz. 549 (1993), cert. denied, 511 U.S. 1046 (1994) (statutory definition alone of sexual assault did not satisfy “violence” requirement, since the element of “without consent” could be satisfied where the victim was deceived or incapable of valid consent).

Second, the offense must have been committed knowingly or intentionally.  If it is open to interpretation, and the offense could have been committed recklessly, the conviction will not satisfy (F)(2).  State v. McKinney, 185 Ariz. 567 (1996) (prior conviction did not satisfy (F)(2) because, on the face of the statute, crime might have been committed recklessly); compare with  State v. Walden, 183 Ariz. 595, 905 P.2d 974 (1995) (prior sexual assault and kidnapping convictions satisfied (F)(2) because jury instructions required finding that victim’s movements were restricted by physical force or intimidation to convict on kidnapping, and required finding that the victim was “coerced by the immediate or threatened use of force against a person or property” to convict on sexual assault).

What Evidence Can Be Considered:

In resolving these issues, the court can look to the relevant statutes, pleadings, jury instructions, and verdicts.  State v. Rogovich, 188 Ariz. 38, 44 (1997).   Testimony or other evidence from victims of the prior crime must not be considered.  State v. Gillies, 135 Ariz. 500 (1983); see also State v. Nash, 143 Ariz. 392 (1985) (court rejected defendant’s argument that without testimony regarding specific facts of each crime, the court cold not take notice that the crimes were violent felonies).  Other documents, such as the indictment or information should also not be considered.  Cf. State v. Hill, 174 Ariz. 313 (1993) (while prosecution offered evidence of the information, in addition to the judgment and sentence for the defendant’s Colorado conviction for assault with a deadly weapon, the court actually relied only on the statutory definition to find that the conviction qualified for (F)(2)).

Dangerous Offense

Where a prior felony is designated as a “dangerous offense,” the court should look to the definition of that term as in effect at the time of the crime.  See A.R.S. §§ 13-604(F),(G).  Generally, the definition as in effect for the past twenty years, that a dangerous offense involves either the “intentional or knowing infliction of serious physical injury or the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument,” should satisfy the requirement that the felony be one of  “violence.”  The court must then still consider if the mens rea requirement has been satisfied.

Proof that Defendant is the Person Who Committed the Offense  There must be documentation admitted showing that the defendant has committed the prior offense and the testimony of a parole officer or other official, alone, will not be sufficient.  (State v. Hauss, 140 Ariz. 230, 681 Ariz. 382 (1984))  The documentation of a prior conviction must establish that the defendant is the person to whom the document refers.  This can be accomplished by physical descriptions.  See State v. Carreon, 210 Ariz. 54, 107 P.3d 900 , 911 ¶¶53-54, n. 12 (2005) (DOC documents showed that defendant had identifying tattoo on his back of his nickname “East Side Longo”, and defendant had this exact tattoo).

Unanimity as to Multiple Prior Convictions:  Where the State presents evidence that the defendant has been convicted of more than one serious offense, the jury need not be unanimous as to which of the offenses were proven to apply this factor.  State v. Carreon, 210 Ariz. at 54, 107 P.3d at 900 ¶55-57.

Multiple Crimes Arising from the Same Criminal Transaction:  Multiple crimes arising from the same criminal transaction count individually, and not as only one previous criminal conviction.  State v. Carreon, 210 Ariz. at 54, 107 P.3d at 900 ¶58-59 (the court, citing to the language of the 2003 amended version of (F)(2), applied this principle to the defendant, who was subject to the 1993 version of (F)(2); it is unclear whether this principle applies to convictions occurring prior to July 17, 1993).

Noticing the (F)(2) Factor:  The State can notice the (F)(2) factor in anticipation that the jury will convict on a serious felony at the capital murder trial or at a separate proceeding prior to the capital trial.

Old Law/Pre-1993/Use or Threat of Violence (F)(2) Finding Upheld
Old Law/Pre-1993/Use or Threat of Violence (F)(2) Finding Reversed
New Law/Post-1993/Serious Offense (F)(2) Finding Upheld
New Law/Post-1993/Serious Offense (F)(2) Finding Reversed
Other Cases