Capital Sentencing Guide

A.R.S.§13-751(F)(4)

A.R.S. § 13-751(F)(4)-PROCUREMENT OF MURDER BY PAYMENT OR PROMISE OF PAYMENT 

A.R.S. § 13-751(F)(4) provides that it shall be an aggravating circumstance where "[t]he defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value."

History: This aggravating circumstance is one of the six original aggravating circumstances included in the 1973 version of the capital sentencing statute.  The constitutionality of this subsection was upheld in State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978).

Not Just Murder-for-Hire:  Originally, this aggravating circumstance was thought to apply only to murders-for-hire or contract killings.  The person who hired the murderer fit under (F)(4), and the person who committed the murder for money was charged with (F)(5) (murder for pecuniary gain).  In State v. Clark, 126 Ariz. 428, 616 P.2d 888 (1980), the Court rejected this narrow interpretation of the (F)(5) aggravating circumstance.  See (F)(5) introduction for a more thorough discussion of what constitutes pecuniary gain.

The (F)(4) aggravating circumstance continues to have a narrow scope.  To date, there are only a handful of reported decisions reviewing a trial court's finding of the (F)(4) circumstance.

(F)(4) FINDING UPHELD


State v. Holsinger, 115 Ariz. 89, 563 P.2d 888 (1977)
(F)(4) finding upheld without discussion. The facts show that the defendant conspired with several other people to cause the death of Dr. Harry Schornick. The defendant hired another person to kill the victim so that the defendant's wife would eventually inherit some money held in joint tenancy between the victim and the defendant's mother-in-law. He expressed this motive to coconspirators and gave information to them about how to commit the crime. He furnished the murder weapon and advised the others that they would receive something of value for committing the crime and gave them money and drugs the evening of the crime. The actual intended victim was wounded and his housekeeper was shot and killed.

State v. Robinson and Washington, 165 Ariz. 51, 796 P.2d 853 (1990)
(F)(4) finding against Robinson upheld. Defendant Washington told police that defendant Robinson's plan was to rip off a cocaine dealer and take any money and drugs present in the house. Aside from this statement, Washington was guided to the house by Robinson and apparently did not know the victims. At the house, Washington demanded drugs or money from the victims. The Court found that these facts supported the trial court's ruling that Robinson procured the commission of the offense by promising pecuniary gain to Washington. Robinson went to the house motivated only by revenge and a desire to retrieve Susan, the daughter of the victims and his common-law wife.

State v. Michael Apelt, 176 Ariz. 349, 861 P.2d 634 (1993)
(F)(4) finding upheld. The Court found that the evidence clearly showed that the defendant procured his brother Rudi's involvement in the murder by promising him a share of the life insurance proceeds, thus satisfying the (F)(4) aggravating circumstance. Shortly before the murder, the defendant brought the life insurance papers to the motel and told the others that they would all have a lot of money if Cindy were killed. The Court stated that the most reasonable inference was that Rudi agreed to assist the defendant with the murder because of this promise of pecuniary gain.

State v. Carlson, 202 Ariz. 570, 48 P.3d 1180 (2002)
The defendant offered a co-defendant $20,000 to kill her mother-in-law. The co-defendant accepted and later killed the targeted victim. This established that the defendant procured the murder by payment or promise of payment. But because the trial court’s finding of procurement and pecuniary gain under (F)(5) were based on related facts, they should not be independently assigned full weight.

(F)(4) FINDING REVERSED

No reported cases.


Continue to A.R.S.§13-751(F)(5)