Capital Sentencing Guide

A.R.S. § 13-751(F)(3)

A.R.S. § 13-751(F)(3)-GRAVE RISK OF DEATH TO OTHERS 

A.R.S. § 13-751(F)(3) provides that it shall be an aggravating circumstance where "[i]n the commission of the offense the defendant knowingly created a grave risk of death to another person or persons in addition to the person murdered during the commission of the offense."

History: This aggravating circumstance is one of the six original aggravating circumstances enacted by the Arizona Legislature in 1973, following the United States Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238 (1972).  This circumstance is sometimes confused with (F)(8), which makes multiple murders a separate aggravating circumstance.

The aggravator commonly applies when a defendant shoots the victim in a crowded area and thereby endangers, or perhaps even wounds, others standing near the victim.  E.g., State v. Doss, 116 Ariz. 156, 568 P.2d 1054 (1977)(victim in place crowded with college students; shots wound one student).  But see State v. Clark, 126 Ariz. 428, 616 P.2d 88 (1980)(did not apply when wife was in nearby room during murder of husband).

General Application:  The aggravator commonly applies when a defendant shoots the victim in a crowded area and thereby endangers, or perhaps even wounds, others standing near the victim.  E.g., State v. Doss, 116 Ariz. 156, 568 P.2d 1054 (1977)(victim killed in college gymnasium crowded with students registering for classes; shots wounded nearby student); State v. Blazak, 114 Ariz. 199, 560 P.2d 54 (1977); (gunshots in crowded bar killed two victims and wounded another); and compare with State v. Bernard Smith, 146 Ariz. 491, 502, 707 P.2d 289, 300 (1985) (“random and indiscriminate” shooting in a crowded room invokes this factor; this circumstance not present in this case).  Another common scenario occurs when a defendant sets a structure on fire, knowing that there are occupants inside other than the intended victim(s).  See State v. Ortiz, 131 Ariz. 195, 639 P.2d 1020 (1981), cert. denied, 456 U.S. 984 (1982) (defendant set house on fire to dispose of victim’s body, knowing that there were three small children inside - two of whom he had wounded).

Analysis:  “[T]he inquiry is whether, in the course of killing, the defendant knowingly engaged in conduct that created a real and substantial likelihood that a specific third person might suffer a fatal injury.”  State v. Wood, 180 Ariz. 53, 69, 881 P.2d 1158, 1174 (1994), cert. denied, 515 U.S. 1147 (1995) “No single factor is dispositive of this circumstance.”  Id.  However, four main considerations in the analysis are:

(1) Whether a third person was in close proximity to the victim, thus placing that person within the “zone of danger”;
(2) Whether the defendant’s actions were “during the murderous act itself”;
(3) Whether the defendant knowingly acted in a manner not actually intended to kill the third party; and
(4) Whether the defendant engaged in sufficiently risky behavior towards the third person.

The Answers to All Four Should Be “Yes.”

(1)  Zone of Danger:

Mere Presence:  The “general rule” is that the mere presence of bystanders when a gun is used does not substantiate this aggravating circumstance.  Wood, 180 Ariz. at 69, 881 P.2d 1174.  Rather, the third party must be so close to the victim as to be endangered by the attack on the victim.  Compare Bernard Smith, 146 Ariz. at 502, 707 P.2d at 300 (defendant did not place convenience store manager or other store customers in danger when he shot directly and purposefully at cashier); with State v. Ruben Johnson, 212 Ariz. 425, 133 P.3d 735 (2006) (even if not “in his mother’s arms,” 4-year-old child was in the “zone of danger” as he was in 10 x 10 foot room with his mother and had his cheek and shirt splattered with blood when defendant shot his mother in the head).

In Line of Fire:  While the victim must be close, the court has “never . . .limited this factor to cases in which another person was directly in the line of fire.”  Wood, 180 Ariz. at 69, 881 P.2d at 1174.  The court has found the “zone of danger” element where the defendant shot his intended victim once, turned his gun on a third person standing within five feet, then returned his attention to the victim and fired two more shots while the third person dove for cover.  State v. Nash, 143 Ariz. 392, 405, 694 P.2d 222, 235, cert. denied, 471 U.S. 1143 (1985); see Wood, 180 Ariz. at 69, 881 P.2d at 1174 (similar scenario; three employees in “confined garage” where one of the murders took place; defendant assumed “shooting stance” aimed at third party employee; one employee stood 6-8 feet away; one fled when the gun was pointed directly at him and another actually struggled with the defendant for control of the gun).

In Another Room:  When the third party is located in another room during the murder, it appears to be a very fact-based inquiry as to whether this aggravating circumstance applies.  For example, in State v. Clark, 126 Ariz. 428, 616 P.2d 88, cert. denied, 449 U.S. 1067 (1980), the court found that (F)(3) did not apply when the victim’s wife was in “another room” of the house at the time that her husband was shot to death.  The court stated that, “[e]ven given the ricocheting of bullets, Mrs. Thumm was not close enough to be within any sort of “zone of danger.””  Clark, 126 Ariz. at 436, 616 P.2d at 896.  The court acknowledged, however, that the record in this case made it “unclear” where the wife was specifically located.  Notably, the wife was subsequently murdered by the defendant.  In State v. Carreon, 210 Ariz. 54, 107 P.3d 900 ¶ 64 (2005), the Supreme Court found that two children who were together behind the closed door of their bedroom were “present” for the purposes of the shooting attack on their mother, who was hit multiple times, but not killed, while fleeing down a hallway towards that bedroom.  One spent bullet lodged in the children’s bedroom doorjamb.  However, the mother was not the intended murder victim; rather, it was her boyfriend who was actual murder target and who was killed when the defendant shot in the opposite direction at the boyfriend as he sat in the living room.  As a result, the court found that defendant’s risky acts did not occur during the murderous act itself.  But, had the mother been the intended victim, it is unclear whether or not this factor would have applied, given that the court upheld the defendant’s convictions for endangerment of the children.

(2) During the Murderous Act Itself:  Only the actions surrounding the “murderous act itself” qualify for (F)(3), State v. McCall, 139 Ariz. 147, 160, 677 P.2d 920, 933, cert. denied, 467 U.S. 1220 (1984), and this factor cannot apply to actions taken against a separate non-capital victim even if close in time.  See Carreon, supra; and see State v. Tucker, 205 Ariz. 157, 168, 68 P.3d 110 , 121 (2003) (reasonable juries could disagree on whether (F)(3) was proven where defendant killed all adult residents of a home, leaving an infant, who ultimately survived, alone in house; it was unclear whether risk of death to infant was present during defendant’s murderous attacks on victims; remanded for sentencing jury to resolve).

(3)  Intent To Act:  (F)(3) exists only when the defendant “knowingly” engages in conduct that creates a real and substantial likelihood that a third person might receive fatal injury, yet does not intend to kill that third party.  This requirement examines the defendant’s mental state in various ways: (1) whether he knew the bystander was present; (2) whether he intended to kill the bystander; and (3) whether he knew that his actions created a real and substantial likelihood that the bystander would be fatally injured.  The evidence must show that the defendant knew the bystander was present, and knowingly engaged in sufficiently risky behavior even though he did not intend to kill the bystander.  For example, State v. Ruben Johnson, 212 Ariz. 425, 133 P.3d 735 (2006), F(3) applied where the defendant announced his intentions, stating, “We’re here for the bitch,” as he entered the property, pushed past other third persons present, and shot the victim as she hid in a small bedroom room with her 4-year-old son, who was in the zone of danger.  In State v. Fierro, 166 Ariz. 539, 804 P.2d 72 (1990), (F)(3) applied where the defendant fired several shots at the victim who was standing outside his car.  The bullets struck the victim once and narrowly missed the victim’s girlfriend, whom the defendant knew was seated inside the car.  The defendant, however, did not intend to kill the girlfriend, though she clearly had been placed in the zone of danger by the defendant’s shots.  Cf. State v. Ricky Tison, 129 Ariz. 526, 633 P.2d 335 (1981)((F)(3) does not apply where the defendant intended to murder bystanders of first victim’s murder).  See also Tucker, 205 Ariz. at 168, 68 P.3d at 121 (reasonable juries could disagree on whether (F)(3) was proven where defendant killed all adult residents of a home, leaving an infant, who ultimately survived, alone in house, where there was insufficient evidence that the defendant knew that the child would be left alone for a very long time and, thereby, knowingly placed the infant at grave risk of death; remanded for sentencing jury to resolve).

(4) Sufficiently Risky:  Finally, the defendant must actually do something sufficiently risky that places the third party in grave danger of death.  This inquiry is also very fact intensive, and borderline cases often involve scenarios where the defendant only points a gun at a third party at some point during the crime or directly afterwards.  Merely pointing gun at a third party to quiet them and/or coerce their cooperation, either in aiding the commission of the murder or failing to act to thwart the defendant’s actions, is insufficient to support this factor.  See, e.g., State v. Jeffers, 135 Ariz. 404, 661 P.2d 1105, cert. denied, 464 U.S. 8 (1983) ((F)(3) not proven where defendant pointed gun at current girlfriend to quiet her and to ensure her cooperation while defendant finished murdering victim, his former girlfriend, by administering a heroin overdose and by strangulation; defendant also forced girlfriend to aid him).  In State v. Bernard Smith, supra, the court specifically rejected the application of (F)(3) based upon the trial court’s rationale that the defendant had engaged in risky conduct merely by bringing a loaded weapon into a convenience store where other persons, who could have sustained injury during the armed robbery, were present.  Smith, 146 Ariz. at 502, 707 P.2d at 300.




(F)(3) FINDING UPHELD

State v. Holsinger, 115 Ariz. 89, 563 P.2d 888 (1977)
(F)(3) finding upheld without discussion. The defendant solicited a codefendant to enter the house of Dr. Harry Schornick. Dr. Schornick was wounded, but not killed. Dr. Schornick's housekeeper was shot and killed.

State v. Doss, 116 Ariz. 156, 568 P.2d 1054 (1977)
(F)(3) finding upheld. The defendant shot the victim in a place crowded with college students, and one of the defendant's shots did wound one student.

State v. Ortiz, 131 Ariz. 195, 639 P.2d 639 (1982)
(F)(3) finding upheld. The defendant knowingly created a grave risk of death to three children when he tried to dispose of their mother's body by burning down the house with all four people inside. He stabbed two of the children and told all three to remain in the house until the fire department arrived. The Court rejected the defendant's argument that, as a matter of law, once the murder victim is dead, nothing the murderer does thereafter can be considered part of the "commission of the offense" within the meaning of (F)(3).

State v. Blazak (Blazak II), 131 Ariz. 598, 643 P.2d 694 (1982)
(F)(3) finding upheld without any analysis. The defendant, while armed and wearing a ski mask, attempted to rob the bartender of the Brown Fox Tavern in Tucson. When the bartender refused to give him money, the defendant shot both him and a patron seated nearby. A third person was also wounded. The Court concluded based on these facts that this murder constituted a grave risk to others in the bar at the time of the shooting.

State v. McMurtrey (McMurtrey I), 136 Ariz. 93, 664 P.2d 637 (1983)
(F)(3) finding upheld. The defendant was involved in a shooting at the Ranch House Bar in Tucson. Following an altercation, he left the bar, obtained a gun, returned to the bar and shot the three victims. He killed two people and wounded a third. The Court agreed with the trial court that the bar was crowded that night and that there were between five to nine other people in the immediate area of the victims when they were shot. When the defendant emptied his gun at the victims, he created a grave risk of death to those other people.

State v. Nash, 143 Ariz. 392, 694 P.2d 222 (1985)
(F)(3) finding upheld. The aggravator is proven if the defendant puts a third party in the "zone of danger" during the commission of the murder. Firing a gun while a third party was in close proximity to the victim and then pointing the murder weapon at the third party are two factors that put the third party in a zone of danger, and therefore, in grave risk of death. The murder of the victim took place during an armed robbery of a coin shop. After the defendant shot the victim, he pointed his gun at Susan McCullough but did not fire at her. She was five feet away from the defendant when he pointed the gun at her. She was in close proximity to the victim when he was shot three times by the defendant.

State v. McMurtrey (McMurtrey III), 151 Ariz. 105, 726 P.2d 202 (1986)
(F)(3) finding upheld. When the defendant shot the victims in a crowded bar there were five to nine others in the immediate area of the victims when they were shot.

State v. Vickers (Vickers II (Holsinger murder)), 159 Ariz. 532, 768 P.2d 1177 (1989)
(F)(3) finding upheld. The defendant set a fellow inmate on fire; the smoke endangered the lives of two other inmates.

State v. Fierro, 166 Ariz. 539, 804 P.2d 72 (1990)
(F)(3) finding upheld. The defendant fired several shots at the victim, striking him once and narrowly missing his girlfriend, whom the defendant knew was seated nearby. The defendant's acquittal on the charge of attempted murder showed that the girlfriend was not an intended victim of the shooting, though she was clearly in the zone of danger.

State v. Cornell, 179 Ariz. 314, 878 P.2d 1352 (1994)
(F)(3) finding upheld without discussion. Because the Court struck the trial court's (F)(1) finding, and reduced the sentence to life, the Court never addressed the merits of the (F)(3) finding. The facts apparently supporting the (F)(3) finding are that Cornell shot and killed his estranged girlfriend, Daphne, and wounded her father, Victor, at the Arizona Department of Transportation building. Victor drove his truck to the entrance of the building, let Daphne out of the truck, and then confronted Cornell, who had been following them. Cornell pulled out his gun, assumed a shooter's stance and opened fire. One shot hit Victor as he tried to take cover behind his truck, in which his granddaughter was still sitting. Cornell then followed Daphne into an office area in the building, and in the presence of her coworkers, fired at least three shots at her while she lay on the floor. Cornell then fled the building, threatening several people with his gun so that they would not interfere with his escape.

State v. Wood, 180 Ariz. 53, 881 P.2d 1158 (1994)
(F)(3) finding upheld. The aggravator applies only if the defendant's murderous act itself puts other people in the "zone of danger." The inquiry is whether, during the course of the murder, the defendant knowingly engaged in conduct that created a real and substantial likelihood that a specific third person might suffer a fatal injury. No single factor is dispositive of this aggravating circumstance. Here, three employees were present in the confined garage space where the defendant shot one of them. One of the employees was only six to eight feet away from the victim when he was shot. The defendant then turned toward another employee, as if to shoot him, but the employee fled. There was evidence that the defendant cocked and uncocked the gun twice between shooting the first victim and shooting the second. The other employees were found to be in the zone of danger based on the defendant's actions.

State v. Gonzales, 181 Ariz. 502, 892 P.2d 838 (1995)
(F)(3) finding upheld. The wife was confined in a 10-foot by 10-foot courtyard with the defendant as he stabbed her husband to death. She attempted to rescue her husband by jumping on the defendant's back as he was stabbing. According to the Court, "[o]ne who murders knowing that others are present can expect that someone may attempt to interfere, particularly when the person is the victim's spouse."

*State v. Roque, 213 Ariz. 193, 141 P.3d 368 (2006) Jury Trial/Indep. Review
Roque shot the victim while the victim was talking to another man. He fired five or six shots toward both men from a distance of 20 feet. Although Roque’s intended target was the victim, the other man was in the zone of danger and could have been hit or killed if Roque had not been an accurate shot.



(F)(3) FINDING REVERSED

State v. Ceja (Ceja II), 115 Ariz. 413, 565 P.2d 1274 (1977)
(F)(3) finding reversed. The defendant was shooting Linda in her bedroom when Randy drove up to the house. When Randy entered the house, the defendant ordered him to the bedroom and shot him. The Court reversed the finding because the evidence did not show that in killing Linda, the defendant created a grave risk of death to Randy.

State v. Watson (Watson II), 120 Ariz. 441, 586 P.2d 125 (1978)
(F)(3) finding reversed. At the time of the shootout between the defendant and the victim, the victim's wife and daughter had already left the house.

State v. Clark, 126 Ariz. 428, 616 P.2d 88 (1980)
(F)(3) finding reversed. The evidence showed that the wife was in another room when the defendant shot the husband. The defendant then went and shot the wife. According to the Court, "[e]ven given the ricocheting of bullets, [the wife] was not close enough to be within any sort of `zone of danger.'"

State v. Ricky Tison (Ricky Tison I), 129 Ariz. 526, 633 P.2d 335 (1981)
(F)(3) reversed. Because the four victims who were in the car the defendants wanted to steal to continue their escape from prison were "ruthlessly and intentionally murdered," the aggravator did not apply, even though some of the victims had been close enough physically so that each murder put others in a grave risk of danger.

State v. Raymond Tison (Raymond Tison I), 129 Ariz. 546, 633 P.2d 355 (1981)
(F)(3) reversed for reasons provided in State v. Ricky Tison I.

State v. Jeffers, 135 Ariz. 404, 661 P.2d 1105 (1983)
(F)(3) finding reversed. While the defendant was killing his victim by injecting her with heroin, Doris walked in on him. He pointed his gun at Doris, ordered her to be quiet, and then returned to the victim, whom he strangled. The trial court believed the defendant would have killed Doris had she not complied, but the Court disagreed, saying it appeared the defendant never intended to harm Doris. The Court said that the act of pointing a gun at someone by itself does not satisfy (F)(3).

State v. McCall (McCall I), 139 Ariz. 147, 677 P.2d 147 (1984)
(F)(3) finding reversed. The defendant placed three victims on the bed and shot all of them; two died and one lived. The factor does not apply when the defendant intends to murder all the victims, even though one may survive.

State v. Bracy, 145 Ariz. 520, 751 P.2d 464 (1985)
(F)(3) finding reversed. The defendant and two others bound and gagged three people and shot them each in the head, intending to kill them. One victim survived. The aggravator did not apply to either of the defendant's two death sentences because the survivor was an intended victim of the crime and not a bystander in the zone of danger during the murderous act.

State v. Hooper, 145 Ariz. 538, 751 P.2d 482 (1985)
(F)(3) finding reversed for the same reasons announced in the companion case of State v. Bracy.

State v. Rossi (Rossi I), 146 Ariz. 359, 706 P.2d 371 (1985)
(F)(3) finding reversed. The defendant attempted to murder a woman who came into the house after he had shot the victim to death. The Court said the aggravator was not satisfied because the woman was an intended murder victim and she had not been in the "zone of danger" during the victim's murder.

State v. Bernard Smith, 146 Ariz. 491, 707 P.2d 289 (1985)
(F)(3) finding reversed. The murderous act itself must put others in a zone of danger. The defendant entered a store and shot the cashier to obtain money in the register. Although there were other people in the store at the time of the shooting, the murderous act itself did not place them within the zone of danger. The defendant shot only at the victim; the shooting was not random and indiscriminate, but purposeful. The defendant pointed his gun at other people in the parking lot and told them to go. The Court found that this activity did not pose a grave risk of death to them.

State v. Johnson, 147 Ariz. 395, 710 P.2d 1050 (1985)
(F)(3) finding reversed. The factor did not apply because the defendant intended to kill both victims. The other person endangered by the shooting was an intended victim. Although each victim was close enough to the other that shooting one created a grave risk of danger to the other, (F)(3) does not apply when the defendant intends to kill both victims, and he does not care which one he kills first. The fact that one victim survives does not satisfy an (F)(3) finding.

State v. Brewer, 170 Ariz. 486, 826 P.2d 783 (1992)
(F)(3) finding reversed. The defendant murdered his pregnant girlfriend. The trial court found the factor based on the grave risk of death to the fetus. The Court found that this aggravating circumstance did not exist because the defendant acted with intent to kill the fetus.

State v. (Albert Martinez) Carreon, 210 Ariz. 54, 107 P.3d 900, (February 25, 2005) Jury Trial/Indep. Review
Carreon killed the unsuspecting victim while he reclined in an easy chair.  He then turned the gun upon the victim’s girlfriend, who fled down the apartment hallway towards the room in which her two young children were sleeping.  The girlfriend sustained three gunshot wounds and was left for dead, however, she survived.  The trial judge submitted this factor to the jury based upon the shots that were fired upon the girlfriend and which were directed towards the room where the children were sleeping.  In fact, one of the bullets ultimately lodged in the door jamb to the children’s room.  The Supreme Court reversed, holding that the “zone of danger” analysis applies only the “murderous act itself” and not to any other non-capital victims.  Because Carreon had shot in the opposite direction from the children’s room when he killed the victim, the children were “present” but not in the “zone of danger.”  Notably, the court upheld Carreon’s convictions for endangerment upon finding that Carreon had put the children in “actual substantial risk of imminent death.”  But this finding had no bearing on the (F)(3) analysis.

State v. McGill, 213 Ariz. 147, 140 P.3d 930 (2006)  Jury Trial/Indep. Review
(F)(3) finding reversed. A fire that set in one apartment spread to an attached apartment where there was one occupant who escaped.  The trial judge properly dismissed F3 as to the person in the adjoining apartment as there was no evidence that the defendant know the adjoining apartment was occupied.

State v. (Eugene) Tucker (Tucker II), 215 Ariz. 298, 160 P.3d 177 (2007) (Ring)
(F)(3) finding reversed. Tucker killed all the adults in a home, leaving a baby alone in its crib. One victim was killed in another room, and two were killed in the same room as the baby, but Tucker fired away from the crib when he shot those victims. The Supreme Court found the baby was not in the zone of danger during any of Tucker’s murderous acts.

State v. (Paul Bradley) Speer
, 221 Ariz. 409, 212 P.3d 787 (2009)
(F)(3) finding reversed. Although the state proved two components - the murderous act created a grave risk of death to a baby who was in the bed with the victim and there was a real and substantial likelihood that the baby would be killed, the State failed to prove that Speer knowingly created such a risk. Because Speer was not present at the murder, his co-defendant's knowledge that the baby was present could not be imputed to Speer. The Court found that at most, the evidence established that Speer knew that a child would be present somewhere in the apartment and this was insufficient to prove that he personally had the requisite knowledge.

Continue to A.R.S.§13-751(F)(4)