SEPTEMBER 18, 2003 TO THE PRESENT/SERIOUS OFFENSE WHICH MAY BE CONTEMPORANEOUS WITH FIRST-DEGREE MURDER (F)(2) FINDINGS UPHELD
State v. (Manuel) Ovante, Jr., --- P.3d ---, 2013 WL 132542 (January 11, 2013)
After entering a guilty plea to the charges in connection with the 6/2008 offense (two counts of first degree murder (V1; V2) and one count of aggravated assault (as to the surviving victim, V3)), Ovante admitted the (F)(2) aggravator based on his conviction of aggravated assault with a handgun against V3. After Ovante pleaded guilty, the court conducted a second colloquy to confirm that he was knowingly, voluntarily, and intelligently admitting the aggravators and that he understood that death was a possible sentence.
SEPTEMBER 18, 2003 – PRESENT/SERIOUS OFFENSE WHICH MAY BE CONTEMPORANEOUS WITH FIRST-DEGREE MURDER (F)(2) FINDINGS REVERSED
*State v. Roque, 213 Ariz. 193, 141 P.3d 368 (2006) Jury Trial/Indep. Review
The trial court properly dismissed this aggravating factor based on Roque’s 1983 California conviction for attempted robbery. The attempted robbery offense in California would not have constituted attempted robbery in Arizona and therefore did not qualify as a serious offense under (F)(2).
State v. Tittle, 147 Ariz. 339, 710 P.2d 449 (1985)
The trial court found that the defendant's prior robbery conviction from California constituted a sufficient basis for an (F)(1) finding, but did not use this conviction to find (F)(2). The Court found that as a matter of law a robbery conviction constitutes an aggravating circumstance within the meaning of (F)(2). On remand, the trial court may consider that robbery conviction for both (F)(1) and (F)(2). The Court did caution, however, that if the trial court finds both (F)(1) and (F)(2), it may only weigh that robbery once in the sentencing process.
State v. Romanosky (Romanosky I), 162 Ariz. 217, 782 P.2d 693 (1989)
The state cross-appealed the trial court's refusal to consider the defendant's prior convictions for robbery, aggravated assault, aggravated robbery and attempted robbery. The jury had found the existence of these prior felonies, but the trial court would not consider them as potential aggravating circumstances because the state did not offer testimony from the victims in those cases or offer transcripts regarding the record of those crimes. The Court held that the trial court erred in not considering the prior felony convictions as statutory aggravating circumstances under (F)(2) absent extrinsic evidence. A court may take judicial notice that some crimes, by definition, are violent felonies. The statutory definition of the crime governs. If the definition of the crime necessarily included the use or threat of violence, then a trial court may find that it is a statutory aggravating circumstance under (F)(2). If the crime could have been committed without the use or threat of violence, then the prior conviction may not be used to support the (F)(2) finding. No extrinsic evidence is required.
State v. Schad (Schad III), 163 Ariz. 411, 788 P.2d 1162 (1989)
The defendant was previously convicted of second degree murder. The defendant argued that the death was an accident involving no physical force. The state argued that murder is inherently a violent crime, and cannot occur without some type of violence to the victim. The Court did not resolve the issue because the trial judge found that the total mitigation present was not sufficient to overcome any one of the aggravating factors in this case. The trial court found both (F)(1) and (F)(5) in addition to (F)(2). Any of those other factors would have been sufficient to support the death sentence.
State v. Lacy, 187 Ariz. 340, 929 P.2d 692 (1996)
(F)(2) finding not applicable. The trial court specifically found that (F)(1) and (F)(2) did not apply. The trial court did find (F)(8), but that aggravating circumstance did not exist at the time this murder occurred. The state asked the Court to substitute (F)(1) or (F)(2) for the (F)(8) finding. The Court declined to do so. The defendant was convicted of two counts of first degree murder, both of which happened on the same night at the same apartment.
Continue to A.R.S. § 13-751(F)(3)