Capital Sentencing Guide

(F)(5) Finding Reversed

A.R.S.§13-751(F)(5) -COMMISSION OF MURDER FOR PECUNIARY GAIN

State v. Madsen, 125 Ariz. 346, 609 P.2d 1046 (1980)
(F)(5) finding reversed. The defendant shot his wife in the head after luring her out to the desert to go target shooting. He later collected $50,000 in insurance money from her "accidental" death. The defendant and the victim were separated but not divorced. He schemed with another person regarding the murder. After the murder, he told a third person that "[i]t's easy to get money, you just blow someone away and collect the insurance on it." The Court determined that the existence of the policy, the defendant's collection of the insurance money and his statement after the murder did not indicate that he committed the murder for the purpose of receiving the insurance proceeds. The receipt of the money must be the cause of the murder, not the result of the murder. The Court did not find sufficient evidence to conclude that the defendant had a financial motivation for the murder.

State v. Gillies (Gillies I), 135 Ariz. 500, 662 P.2d 1007 (1983).
(F)(5) finding reversed. Gillies and his companion accepted a ride home from the victim. En route, they grabbed the victim, stopped the car and raped her. Over a period of many hours, they drove her to her apartment and other locations, raped her, and eventually killed her. When arrested, Gillies was in possession of several of her belongings, including her credit cards. He had also withdrawn cash from her bank account by using her ATM card. The Court reiterated that receipt of items of pecuniary value must be the cause of the murder, not just the result. "Without some tangible evidence, or strong circumstantial inference, it is not for the sentencing court to conclude that because money and items were taken, the purpose of the murder was pecuniary gain." Here, the Court did not find any evidence that the receipt of pecuniary gain was a cause of the murder. In fact, Gillies' own confessions demonstrate that the purpose of the murder was to eliminate the victim as a witness to her own rape.

State v. James, 141 Ariz. 141, 685 P.2d 1293 (1984)
(F)(5) finding reversed based on the jury's acquittal on the aggravated robbery and theft charges. Although the Court found merit in the trial judge's argument, the Court thought that "mental gymnastics" would be required to uphold the finding in light of the jury's conclusion. The Court was left with a reasonable doubt as to whether the defendant's motive was pecuniary gain, and so could not uphold this aggravating factor.

State v. Wallace (Wallace I), 151 Ariz. 362, 728 P.2d 232 (1986)
(F)(5) finding reversed. The trial court found this aggravating circumstance only as to the murder of Susan Insalaco, the mother of the two other murder victims. After killing all three victims, the defendant stole money and Susan's truck to go get drunk. The Court found that while the defendant took these items, it was not clear that the theft of those items was the reason for the murder. The motive for the murders appears to have been based on the difficulties of the defendant's relationship with Susan. The taking of her property was therefore only incidental to the murder.

State v. Prince, 160 Ariz. 268, 772 P.2d 1121 (1989)
(F)(5) finding reversed. The state argued for the pecuniary gain factor in two ways: (1) the defendant and witness went to the victim's apartment after the murder and stole money and jewelry, and the defendant stole jewelry at the time of the murder; and (2) the defendant murdered the victim to eliminate a financial dispute or debt over money owed to the victim for drugs. The trial court accepted only the second argument. There was evidence that the defendant owed the victim money, however, the state did not prove beyond a reasonable doubt that the murder occurred because of this debt.

State v. Robinson and Washington, 165 Ariz. 51, 796 P.2d 853 (1990)
(F)(5) finding against both Robinson and Washington was upheld as to Washington, but set aside as to Robinson. Washington searched the house for valuables and some items were stolen from the house. He demanded drugs and money from the victims. On the other hand, there is no evidence that Robinson thought the victims were drug dealers. He 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. Styers, 177 Ariz. 104, 865 P.2d 765 (1993)
(F)(5) finding reversed. Evidence that Styers was having serious financial problems and that he knew about a five thousand dollar insurance policy on the four-year-old victim's life was insufficient to establish the (F)(5) aggravating circumstance beyond a reasonable doubt. Ample evidence showed that codefendant Milke, the victim's mother, had a desire and motive to want her son dead. She had tried to transfer custody of him to others in the past and she cared very much for a man who did not want to continue a relationship with a woman who had a small child. The evidence did not establish, however, that Milke had a financial motive for having her son killed, much less that she had a financial agreement to share the life insurance proceeds with the defendant.

State v. Milke, 177 Ariz. 118, 865 P.2d 779 (1993)
(F)(5) finding reversed. The victim in this case was the defendant's four-year-old son. In her statement to the police, the defendant gave conflicting reasons why she wanted her son killed: so he would not grow up like his father; or so she would be free from parental responsibilities. She had a $5,000 life insurance policy on the boy and lied to the police about the existence of the policy. The trial court found that the defendant's inconsistent statements regarding the life insurance policy evidenced a motive for the murder and that she was attempting to conceal this motive by her statements. The Court found it equally as plausible that she was just trying to divert suspicion away from herself by the statements. Given that either inference was as believable as the other, the Court concluded that the pecuniary gain factor was not proven beyond a reasonable doubt.

State v. Rienhardt, 190 Ariz. 579, 951 P.2d 454 (1997)
(F)(5) finding reversed. The victim was killed in connection with a drug deal gone awry. Rienhardt arranged to meet the victim, Ellis, and another man, Breedlove, at an apartment to purchase methamphetamines. Rienhardt gave Breedlove $1,180.00, with the understanding that Breedlove would return with the drugs. To secure the return of Breedlove, Ellis remained in the apartment with Rienhardt. When Breedlove did not return, Rienhardt beat Ellis and eventually took him to a remote location and killed him. The Court found that Rienhardt did not kill with the expectation of pecuniary gain. Rather, he killed because he was tricked and was not going to receive the drugs he had purchased. The state did not prove beyond a reasonable doubt that Rienhardt killed to frighten Breedlove into returning the money or drugs. It is equally, if not more, plausible that he killed Ellis out of rage or frustration at being cheated. The Court distinguished State v. LaGrand, in which the Court found that LaGrand came to rob, and that desire infected all his other conduct. Here, Rienhardt "came to buy drugs, not to steal, and he killed because the seller tricked him." As reprehensible as this conduct may be, Rienhardt did not kill as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value.

State v. Medina, 193 Ariz. 504, 975 P.2d 94 (1999)
(F)(5) finding reversed. The victim was pulled from his car, beaten, and then run over by the defendant's car several times. The defendant admitted to his girlfriend that he intended to steal the car, and the radio knobs were missing from the victim's car. The victim's car, however, was not stolen and the victim still had money in his pocket when he was found. The Court found that the reason for the beating may have been to steal, but that it does not necessarily follow that the murder occurred because of that desire. It is just as likely that the murder occurred for amusement, given the witness' characterization of the defendant's attitude right before the murder, and the fact that neither the car nor the radio was stolen. Unlike State v. LaGrand, the robbery here did not infect all of the defendant's other conduct. This case is more akin to State v. Rienhardt, where the killing was detached from the other, earlier attempt to steal. "The existence of an economic motive at some point during the events surrounding a murder is not enough to establish (F)(5). There must be a connection between the motive and the killing." The Court found that even if the defendant's earlier motive was to steal the car or radio, it cannot conclude that the later motive for the killing of the victim was pecuniary gain. Note: Justice Martone dissented from the Court's holding that this was not a case of pecuniary gain and disputed the argument that this case was more like Reinhardt than LaGrand. Justice Martone states that the defendant "came to rob," and that given that fact, this desire infected all his other conduct. He notes that the defendant told his girlfriend that he intended to steal the victim's car and radio. The knobs had been pulled off and the defendant convicted of robbery. This murder was not "removed in time and place" from the robbery. In fact, they occurred at the same time and at the same location.

State v. Sansing, 200 Ariz. 347, 26 P.3d 1118 (2001)
(F)(5) finding reversed.  After calling a church to request delivery of a food box for his family, Sansing told his wife he wanted to rob the church worker so he could buy more crack cocaine. When the delivery arrived, Sansing beat, bound, raped, strangled and ultimately stabbed the worker to death.   He then left the room and looked out of a window in a different room to ensure no one had seen his conduct.  When he returned, he removed the worker’s jewelry, which he later arranged to trade for cocaine.   Relying on State v. LaGrand, 153 Ariz. 21, 35, 734 P.2d 563, 577 (1987), the state claimed the defendant’s overall motive was to rob the victim and that his desire infected all of his conduct.  The Court disagreed, finding the state’s interpretation of LaGrand too broad.  A murder committed during a robbery or burglary is not per se motivated by pecuniary gain. Proof of a "robbery gone bad," or one that occurs close in time to a murder but that constitutes a separate event, is insufficient to sustain a (F)(5) finding. The requisite inquiry usually involves determining whether a motive for the murder was the facilitate the taking of or ability to keep items of pecuniary value. Also important is whether the murder was committed to facilitate escape or to hinder detection by police.  The facts proved neither that the killing was motivated by the expectation of pecuniary gain nor to facilitate escape and hinder detection. After the murder, Sansing left the victim in his house for 4 or 5 hours, then placed her in a visible location in his backyard. The next morning, he went to his sister’s home and confessed to her.

State v. (Kajornsak) Prasertphong, 206 Ariz. 167, 76 P.3d 438 ( Sept. 15, 2003) (Ring)
(F)(5) finding not harmless.   Conflicting evidence could have permitted the jury to conclude, contrary to the trial judge’s finding, either that the robbery occurred as a “separate event for the purpose of an [(F](5)] determination,” or that the murders resulted from a “robbery gone bad.”  This evidence included testimony and circumstantial evidence that supported Prasertphong’s defense that he had been unaware of his accomplice, Huerstel’s, plan to kill the employees of a Pizza Hut and that Prasertphong was a “late joiner” to the crime who acted out of “shock or panic” after the murders were committed.  While there was no dispute that Prasertphong tried to “snap” the neck of the female employee, he later told police that he could not go through with it (the employee died of additional, multiple gunshot wounds, not a broken neck).  There was also “some testimony” and ballistics evidence to support the theory that Huerstel was the only shooter.  And while Prasertphong did take the bank bag and debit card machine from the store, the cash register was left intact and one of the victim-employees was left with $340 in his pocket.

State v. (Sherman Lee) Rutledge, 206 Ariz. 172, 76 P.3d 443 (Sept. 16, 2003) (Ring)
(F)(5) finding not harmless.  A reasonable jury could have concluded that this factor did not apply, since there was no specific evidence that Rutledge’s motive was pecuniary gain when he lured the victims to a park on the pretext of obtaining drugs, then stole their new Ford Explorer.  This was true in spite of the fact that one witness testified that Rutledge told her that “something is going down,” and another testified that one of the victims said, “if you want it you can have it,” apparently referring to the vehicle.  The trial judge’s conclusion that this factor was proven rested on an assessment of witness credibility and interpretation of the circumstantial evidence, and a jury could assess these factors differently.

State v. (Shad Daniel) Armstrong, 208 Ariz. 360, 93 P.3d 1076 (July 15, 2004) (Ring).
(F)(5) finding not harmless. Armstrong killed his sister and her fiancé.  The fact that Armstrong had discussions with his co-conspirator before the murders about taking the victim’s property, and took property from both victims after killing them, created a plausible inference that pecuniary gain was a motive for the murder, but it was not the only inference, and reasonable jurors could have concluded differently.  This is particularly so since there was another major motivation for killing one of the victims: to keep her from telling the authorities about Armstrong’s prior criminal activity.

State v. (Robert Joe) Moody, 208 Ariz. 424, 94 P.3d 1119 (August 9, 2004) (Ring)
(F)(5) finding not harmless.  Victim 1: Moody accosted the victim with a knife, cut her, and forced her into her home office where he emptied her purse and took cash, a checkbook and some credit cards.  He then ordered the victim to write a check for $500 twice, since the first was smeared with blood.  He then bound her, beat her, and shot her repeatedly with a .22 caliber rifle, reloading each time.  Victim 2:  Moody bound the victim and took cash and credit cards from her purse, then demanded the victim’s PIN number.  After she gave him a number, he bound her further, covered her with a rug and weighted her down with a chair.  He then drove her car to the bank and unsuccessfully attempted to withdraw money.  When he returned, he again demanded the PIN, went back to the bank, and withdrew $300.  He then returned to the victim’s home, slit the victim’s throat, stabbed her in the back and bludgeoned her to death with hedge clippers.  He removed the bindings, wrapped them in a towel, and left in the victim’s car.

The court concluded that in spite of these uncontroverted events, because there was “substantial evidence” at trial that Moody had used “massive amounts” of cocaine at some time before the murders and that heavy cocaine use can lead to violent behavior, and there was evidence that a small t.v., a microwave, jewelry, and cocaine were left behind at one of the murder scenes, it could not conclude that no reasonable jury would have failed to find this factor beyond a reasonable doubt.  The court noted that it was a “plausible inference” to draw that Moody had a pecuniary motive to murder the victims, but it was not “the only reasonable inference” that could be drawn.

State v. (Albert Martinez) Carreon, 210 Ariz. 54, 107 P.3d 900 (2005) Jury Trial/ Indep. Review
(F)(5) finding reversed. Evidence showed that Carreon killed the victim because he was a “snitch” and that two other acquaintances of Carreon wanted the victim dead on this account.  On the day before the murder, Carreon came to the victim’s home and requested a loan of $100 so that he could pay his rent.  The following day - the day after the murder - Carreon was apprehended in front of the home of one of the men who wanted the victim dead, and Carreon had just over $1,000 in his pocket.  The court found that the mere fact that Carreon was “destitute one day and possessed more than $1,000 the next” was insufficient to support application of the (F)(5) factor.  Where a third party allegedly directs the killing, as in this case, there must be “direct evidence” of payment and a “direct connection” between the defendant and his purported employer.

State v. (Christopher George Theodore) Lamar
, 210 Ariz. 571, 115 P.3d 611 (2005) (Ring)
(F)(5) finding not harmless.  Lamar and his accomplices planned to rob and “rough up” the victim, who was an acquaintance of Lamar’s.  “The purpose of the plan was twofold: to steal Jones's money and possessions so they could pay rent and to ‘rough him up a little bit’ so he would stop spending time with [Lamar’s girlfriend].”  Lamar arranged to have lunch with the victim, and when the two returned to Lamar’s residence, the accomplices awaited them; one with a gun.  The victim was punched, bound, gagged, and held hostage for a number of hours until it grew dark.  He was robbed of his shoes, jewelry, $50, and some crack cocaine; then driven to a vacant lot, shot twice and dumped inside his car trunk.  Lamar and the accomplices took a cellular telephone, a radio, a CD player, a toolbox and a tool belt from the victim’s car; then pushed the car to a nearby gravel pit, dug a hole and buried the victim’s body.  The car was then burned.

The Court accepted the State’s concession that a “reasonable fact finder” could reach a conclusion other than that the killing was motivated by the robbery of the victim and the theft of money and/or drugs.

PRE-CLARK CASES

State v. Rumsey (Rumsey I), 130 Ariz. 427, 636 P.2d 1209 (1981)
The trial court did not think the (F)(5) pecuniary gain finding applied to situations other than contract killings based on State v. Madsen and did not impose the death penalty. When the defendant appealed his convictions and sentences, the state cross-appealed on this issue. Madsen was the law when this defendant was sentenced. Only three months later the Court clarified the issue in State v. Clark, and expanded the interpretation of the pecuniary gain aggravator to situations other than contract killing cases. Because the trial court erred in concluding that it could not find that the murder here was committed for monetary gain as a matter of law, the case was sent back to the trial court for resentencing. The victim picked up the defendant and witness who were hitchhiking somewhere in New Mexico or Texas. In Phoenix, the victim bought beer and food for the defendant and witness. The witness testified that the defendant noticed that the victim had over $300 in his wallet, and that the defendant was going to rob the victim. The defendant ordered the victim into the trunk of the victim's car, and when the victim refused, shot the victim. The defendant dragged the victim off the road and threw some money at the witness. Subsequently, in Rumsey II, the Court concluded that it was a double jeopardy violation for the trial court to impose the death penalty at resentencing. The original sentence of life imprisonment operated as an acquittal of the death penalty.

State v. Michael and Patrick Poland (Poland I), 132 Ariz. 269, 645 P.2d 784 (1982)
The trial court thought that the (F)(5) aggravating factor applied only to murder-for-hire situations and therefore did not find this factor proven beyond a reasonable doubt. After the trial in this case, the Court decided State v. Clark, where the Court held that the (F)(5) pecuniary gain factor was not limited to murder-for-hire situations. Since the defendants received $281,000 in cash from the Purolator van after drowning the two guards, the Court here stated that the trial court could find the existence of (F)(5) on retrial of the case.

State v. Richmond (Richmond II), 136 Ariz. 312, 666 P.2d 57 (1983)
Pecuniary gain finding under (F)(5) not discussed because it was not found by trial judge in initial sentencing. The trial judge was under the impression that this factor only applied in contract killings. The defendant's initial sentencing occurred prior to the decision in State v. Clark, where the Court specifically held that the pecuniary gain factor was not limited to contract killings.

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