Capital Sentencing Guide

A.R.S. § 13-751(F)(6)

A.R.S. § 13-751(F)(6) - HEINOUS, CRUEL OR DEPRAVED 

A.R.S. § 13-751(F)(6) provides that it shall be an aggravating circumstance where "[t]he defendant committed the offense in an especially heinous, cruel or depraved manner."

History:  The "especially heinous, cruel, or depraved" aggravating circumstance was one of the six original aggravating circumstances included in the 1973 version of the capital sentencing statute.

Vagueness Challenges:  In State v. Walton, the Court held that the "especially heinous, cruel, or depraved" aggravating circumstance is not unconstitutionally vague.  Walton, 159 Ariz. 571, 584-85, 769 P.2d 1017 (1989) (citing State v. Gretzler, 135 Ariz. 42, 57 n.2, 659 P.2d 1, 16 n.2 (1983).  However, in Walton v. Arizona, 497 U.S. 639, 110 S. Ct. 3047 (1990), the United States Supreme Court held the "especially heinous, cruel, or depraved" language is facially vague, but stated that the Court had given adequate "substance to the operative terms" for the construction of the aggravating circumstance to meet constitutional requirements.  Id. at 654, 110 S. Ct. at 3057.  The Court specifically held in Gretzler that the aggravating circumstance of "especially heinous, cruel, or depraved" must separate particular crimes from the "norm" of first degree murders, or the factor will not be upheld.  Gretzler, 135 Ariz. at 53, 659 P.2d at 12.  Post-Ring, the Arizona Supreme Court has continued to reject vagueness challenges to the (F)(6) factor where the jury imposed death.  See State v. Frank Anderson, 210 Ariz. 327, __, ¶¶ 109-14, 111 P.3d 369, 394-95 (2005) (rejecting vagueness challenges under Walton and Valerio v. Crawford, 306 F.3d 742, 747 (9th Cir. 2002) (en banc)).

Definitions of “Heinous,” “Cruel” and Depraved”

A.  Use of Dictionary Definitions: The Court first lends dictionary definitions to the terms "especially heinous, cruel, or depraved" in State v. Knapp, 114 Ariz. 531, 562 P.2d 704 (1977).  "Webster's Third New International Dictionary defines them as follows:  heinous: hatefully or shockingly evil: grossly bad; cruel: disposed to inflict pain esp. in a wanton, insensate or vindictive manner: sadistic; depraved: marked by debasement, corruption, perversion or deterioration."  Id. at 543.   The Court recently re-affirmed the use of these dictionary definitions in State v. Murdaugh, 209 Ariz. 19, 31, 97 P.3d 844, 856 (2004).

B.  “Especially”:  The Court narrowly interprets the (F)(6) aggravating circumstance to encompass only "a killing wherein additional circumstances of the nature enumerated above set the crime apart from the usual or the norm."  Id. (upholding the (F)(6) aggravating circumstance where a father burned his two daughters to death and medical evidence demonstrated that the cause of death was both carbon monoxide poisoning and incineration).  From its earliest definitions, the (F)(6) aggravating circumstance was intended not as a "catch-all" where no other aggravating circumstance was established, but only for murders that were especially horrific and “set …apart from the ‘usual’ first degree murder.”  State v. Ortiz, 131 Ariz. 195, 206, 639 P.2d 1020, 1031 (1981), reh. denied, (1982).  See State v. Carlson, 202 Ariz. 570, 582, 48 P.3d 1180, 1192 (2002) (“exceed the norm” and “so set them apart”); State v. Hoskins, 199 Ariz. 127, 63, 14 P.3d 997, 1033 (2000) (“above the norm of first degree murders”); State v. King, 180 Ariz. 268, 287, 883 P.2d 1024, 1043 (1994) (same);  State v. Zaragoza, 135 Ariz. 63, 68-69, 659 P.2d 22, 27-28 (1983) (“either the circumstances of the killing are so shocking…or the background of the murderer sets him apart from the usual first degree murderer”); State v. Lujan, 124 Ariz. 365, 372-75, 604 P.2d 629, 636-37 (1979) (“set apart from the normal first degree murder”).

C.  Disjunctive:  A.R.S. § 13-751(F)(6) is written in the disjunctive.  Only one of the three factors must be established to find the (F)(6) aggravating circumstance, but all three may be found.  Gretzler, 135 Ariz. at 51.  A finding of cruelty alone is sufficient to support a finding of this aggravating circumstance.  State v. Bolton, 182 Ariz. 290, 312, 896 P.2d 830 (1995).  A finding of heinousness or depravity alone is sufficient to support a finding of the (F)(6) aggravating circumstance.  State v. Gulbrandson, 184 Ariz. 46, 68, 906 P.2d 579 (1995).  When all three factors are established, only one aggravating circumstance is found.  State v. Miller, 186 Ariz. 314, 327, 921 P.2d 1151 (1996).

Especially “Cruel"; (The victim-oriented factor)

The Court's interpretation of "especially cruel" encompasses the mental anguish and physical pain of the victim.  State v. Clark, 126 Ariz. 428, 616 P.2d 888 (1980).  Sometimes the case law uses “mental distress” and sometimes it uses “mental anguish.  See State v. Carriger, 143 Ariz. 142, 160, 692 P.2d 991, 1009 (1984) (“mental distress”); State v. Murdaugh, 209 Ariz. 19, 30, 97 P.3d 844, 855 (2004) (“mental anguish”).  To find that a victim suffered mental anguish or physical pain, the Court must find beyond a reasonable doubt that (1) the victim was conscious during at least some portion of the crime and that (2) the defendant knew or should have known that the victim would suffer.  State v. Trostle, 191 Ariz. 4, 951 P.2d 869 (1997).  See State v. Moody, 208 Ariz. 424, 94 P.3d 1119 (2004) (court refused to uphold this factor on a Ring harmless error review where the evidence showed clearly that the victims did suffer, but there was disputed evidence as to whether the defendant was capable of knowing that they were suffering).

Mental anguish includes a victim's contemplation of his or her ultimate fate, State v. Jackson, 186 Ariz. 20, 918 P.2d 1038 (1996), and watching or hearing a loved one die while knowing the victim will be killed next.  State v. Dickens, 187 Ariz. 1, 926 P.2d 468 (1996); State v. Ramirez, 178 Ariz. 116, 871 P.2d 237 (1994).  A victim’s pleas for help and defensive wounds can support finding this factor.  State v. Sansing, 206 Ariz. 232, 235, 77 P.3d 30, 34 (2003); and see State v. Lambright, 138 Ariz. 63, 75, 673 P.2d 1, 13 (1983) (mental anguish shown by evidence that victim trembled and begged for life after being abducted and sexually assaulted), overruled on other grounds by Hedlund v. Sheldon, 173 Ariz. 143, 840 P.2d 1008 (1992).  More recently the court has noted that “few especially cruel findings . . . are predicated solely on an inference that the victim contemplated his or her fate,” especially when no witness can “quantify the length of time between the point at which [the victim] first experienced mental anguish and the moment that [the defendant] shot [her].”  State v. Prince, 206 Ariz. 24, 27, 75 P.3d 114, 117 (2003).

As to physical pain, the victim does not need to be conscious for “each and every wound” inflicted for cruelty to apply.  Sansing, 206 Ariz. at 235, 77 P.3d at 33 (quoting State v. Lopez (I), 163 Ariz. 18, 115, 786 P.2d 959, 966 (1990)).  Physical pain may be found where a conscious victim physically suffered for at least a short period of time.  State v. Schackart, 190 Ariz. 238, 947 P.2d 315 (1997) (holding victim hostage for four to five hours in the presence of a weapon, sexually assaulting her, striking her in the head, and strangling her); State v. William Herrera, Jr., 176 Ariz. 21, 859 P.2d 131 (1993) (finding victim was lying on the ground with a gash in his head for at least 18 seconds and possibly as much as two to three minutes).

Rape:  Evidence of a rape while the victim was conscious “independently establishes both mental and physical suffering.”  Sansing, 206 Ariz. at 236, 77 P.3d at 34.

Setting Someone on Fire (while alive):  Satisfies cruelty element, as the victim suffers both mental and physical suffering. State v. Schurz, 176 Ariz. 46, 859 P.2d 156, cert. denied, 510 U.S. 1026 (1993) (victim was conscious during burning and survived for a few hours before dying). Note that other cases support applying depravity to burning death.

No Vicarious Liability:  A defendant cannot be “vicariously liable” for cruelty in a capital case, absent a “plan intended or reasonably certain to cause suffering.”  State v. Carlson, 202 Ariz. 570, 583, 48 P.3d 1180, 1193 (2002).  The plan must be “such that suffering before death must be inherently and reasonably certain to occur, not just an untoward event.”  Id.  However, where the defendant actually participated in the killing, the fact that he did not actually perform the murder does not preclude application of the “cruelty” subpart of (F)(6).  See State v. Frank Anderson, 210 Ariz. at __, ¶109-14, 111 P.3d at 395 (where defendant held down first victim while co- conspirator administered fatal wound and both hit third victim and gave co-conspirator weapon with which to kill third victim, cruelty aspect of (F)(6) could lawfully be applied to defendant).

"Especially Heinous or Depraved" (The defendant-oriented factors)

The term “heinous or depraved” is used to describe the defendant’s state of mind.  Murdaugh, 209 Ariz. 19,31,97 P.3d 844, 856 (2004); State v. Ceja, 126 Ariz. 35, 39, 612 P.2d 491, 495 (1980); Clark, 126 Ariz. at 436, 616 P.2d at 896.   The Court's interpretation of "especially heinous or depraved" was restated in Gretzler.  The Court looks to the defendant's words and actions at or near the time of the offense, to determine the defendant's state of mind.  State v. Martinez-Villareal, 145 Ariz. 441, 451, 702 P.2d 670 (1985).

The Six Gretzler/Ross Factors:  The Court initially delineated five factors to be considered in determining whether the defendant's state of mind was "especially heinous or depraved": (1) whether the defendant apparently relished the murder; (2) whether the defendant inflicted gratuitous violence on the victim; (3) whether the defendant needlessly mutilated the victim; (4) the senselessness of the crime; and (5) the helplessness of the victim. Gretzler, 135 Ariz. at 52.  In State v. Ross, 180 Ariz. 598, 886 P.2d 1354 (1994), the Court added a sixth factor by recognizing that witness elimination as a motive for murder would support finding that a murder was heinous or depraved.  The Court, however, established strict evidentiary requirements for finding witness elimination as a motive.

1.  Relishing

A defendant relishes the murder when he or she takes pride in, or derives enjoyment from the killing as demonstrated by the defendant's words or actions.  State v. Detrich, 188 Ariz. 57, 932 P.2d 1328 (1997) (defendant asked codefendant, "It's dead, but it's warm. Do you want a shot at it?").  Bragging may constitute apparent relishing of the murder.  State v. Maturana, 180 Ariz. 126, 882 P.2d 933 (1994) (defendant bragged to another inmate about "how great it was"); State v. Rossi, 171 Ariz. 276, 830 P.2d 797 (1992) (defendant bragged to friends about the killing, gave bullets to a person as a souvenir, and complained that the bullets should have made a larger hole).  The Court held in State v. Roscoe, 184 Ariz. 484, 910 P.2d 635 (1996), that the defendant must "say or do something, other than commission of the crime itself, to show he savored the murder."  Id. at 500; accord Murdaugh, 209 Ariz. at 31-32, 97 P.3d at 856-57.  A finding of relishing only exists when the defendant affirmatively spoke or acted beyond the commission of the crime, and savored, took pride in or derived enjoyment from the murder.  See Murdaugh, 209 Ariz. at 31-32, 97 P.3d at 856-57 (where there was no evidence that the defendant did or said anything, beyond the commission of the crime itself, which manifested that he “savored the murder,” this Gretzler factor could not be found).

2.  Gratuitous Violence

The gratuitous violence factor focuses on the intent of the killer as evidenced by his actions. State v. Bocharski, 218 Ariz. 476, 189 P.3d 403 (2008). The fact finder must consider the killer’s intentional actions to determine whether he acted with the necessary vile state of mind. The state must make two showings. The state must first show that the defendant did, in fact, use violence beyond that necessary to kill. The state must also show that the defendant continued to inflict violence after he knew or should have known that a fatal action had occurred. Id.

The showing of using violence beyond that necessary to kill often involves a “barrage of violence.”  State v. Ceja, 115 Ariz. 413, 417, 565 P.2d 1274, 1278 (1977). See Bocharski, 218 Ariz. at 494 ¶ 86, 189 P.3d at 421 (twenty-four knife injuries to head and face, including eight stab wounds that penetrated deep into face and neck, unnecessary to cause death); State v. Detrich, 188 Ariz. 57, 932 P.2d 1328 (1997) (three stab wounds were fatal and thirty-seven others were excessive, constituting gratuitous violence); State v. Gulbrandson, 184 Ariz. 46, 906 P.2d 579 (1995) (the victim was brutally beaten with knives and scissors, and a wooden salad fork was left protruding from the body; victim was stabbed thirty-four times; victim died of asphyxiation due to strangling); State v. Salazar, 173 Ariz. 399, 412, 844 P.2d 566, 579 (1992) (finding gratuitous violence when a fragile, partially blind 83-year-old woman was beaten and strangled so severely that she suffered a broken nose and crushed Adam’s apple); State v. LaGrand, 153 Ariz. 21, 36-37, 734 P.2d 563, 578-79 (1987) (finding gratuitous violence when a bound and gagged man was stabbed twenty-four times).

The showing that the defendant continued to inflict violence after he knew or should have known that a fatal action had occurred provides essential evidence of the defendant’s intent to inflict gratuitous violence. Bocharski, 218 Ariz. at 494 ¶ 87, 189 P.3d at 421 (no showing that the defendant knew or should have known victim was dead yet continued to stab her when medical examiner expressed uncertainty of timing of fatal wound in sequence of twenty-four knife injuries inflicted in less than one minute). See also, State v. Detrich, 188 Ariz. 57, 932 P.2d 1328 (1997)(three stab wounds were fatal and thirty-seven others were excessive, constituting gratuitous violence); State v. Lee, 189 Ariz. 608, 619, 944 P.2d 1222, 1233 (1997) (finding gratuitous violence when, after inflicting a wound to the head that was “unquestionably fatal,” the defendant walked around the counter and shot the victim two more times); State v. Jones, 185 Ariz. 471, 488-89, 917 P.2d 200, 217-18 (1996)(finding gratuitous violence when the defendant, after inflicting two fatal blows, asphyxiated the victim); State v. Richmond, 180 Ariz. 573, 886 P.2d 1329 (1994)(no showing that the defendant knew or should have known the victim was dead after the first pass of the car).

When the majority of injuries are due to the means of death without additional abuse or injury, gratuitous violence may not be established. State v. Wallace, 219 Ariz. 1, 191 P.3d 164 (2008) (four or five blows to the head with a pipe wrench over a relatively brief period); State v. Schackart, 190 Ariz. 238, 947 P.2d 315 (1997) (injuries to the victim's head and neck were connected with strangulation, one blow that chips a tooth and lacerates the tongue does not constitute gratuitous violence); State v. Soto-Fong, 187 Ariz. 186, 928 P.2d 610 (1996) (gratuitous violence as an alternative to cruelty, depending on the order of infliction of wounds, does not meet the standard of proof─beyond a reasonable doubt─and the finding was reversed); State v. Styers, 177 Ariz. 104, 865 P.2d 765 (1993) (using hypervelocity bullets alone does not constitute gratuitous violence).

Necrophilia: an act of necrophilia “without question” constitutes the infliction of gratuitous violent on the victim.  State v. Gallegos, 178 Ariz. 1, 15, 870 P.2d 1097, 1111 (1994).

Setting Victim on Fire (while alive):  In State v. Knapp, 114 Ariz. 531, 532 P.3d 704 (1977) the court upheld a depravity finding where defendant set his infant children alight.  While the opinion did not discuss Gretzler factors because Gretzler had yet to be decided, the court stated, “we can hardly think of a more ghastly death than this for anyone.  Be believe it falls squarely within the meaning of ‘heinous, cruel or depraved.’” See also State v. Vickers, 159 Ariz. 532, 768 P.2d 1177 (1989) (defendant set fellow inmate alight; court upheld cruelty, depravity and heinousness on these facts; also found relishing)

3.  Needless Mutilation (a depravity indicator)

Needless mutilation occurs when the defendant mutilates the victim's body subsequent to death, reflecting "a mental state that is `marked by debasement.'"  State v. Vickers, 129 Ariz. 506, 515, 633 P.2d 315, 324 (1981) (carving the word "Bonzai" into the victim's back after death); accord State v. Pandeli (II), 204 Ariz. 569, 572, 65 P.3d 950, 953 (2003).  A separate purpose to mutilate the victim's corpse must be present.  State v. Richmond, 180 Ariz. 573, 580, 886 P.2d 1329 (1994).  Extensive mutilation of a body even if for the sole purpose of concealment will support a finding that the murder was “depraved.” See Murdaugh, 209 Ariz. at 32, 97 P.3d at 857 (defendant cut off finger pads, extracted teeth, and severed head and hands from the torso of the victim, and disposed of each separately) (note, Berch, J., concurring and dissenting, arguing that mutilation for concealment is not necessarily “needless”).

Occasionally, the Court has commingled gratuitous violence and needless mutilation.  State v. Stokley, 182 Ariz. 505, 898 P.2d 454 (1995) (both gratuitous violence and needless mutilation existed where defendant stabbed the eyes of the victims and stomped on their bodies, knowing it would not cause death).  Gratuitous violence or needless mutilation alone would be sufficient to find the murder was heinous or depraved, thus establishing the (F)(6) aggravating circumstance.  See State v. Spencer, 176 Ariz. 36, 859 P.2d 146 (1993) (needless mutilation alone was sufficient for a finding of heinousness or depravity where defendant raped and stabbed the victim, then poured accelerant on her and set her on fire).

4.  Senselessness

A murder is senseless when it is unnecessary for the defendant to achieve his or her criminal goal.  Schackart, 190 Ariz. 238, 947 P.2d 315 (1997); State v. Chad Lee (Drury murder), 189 Ariz. 608, 944 P.2d 1222 (1997).  Killing any child, even a stranger, satisfies this factor. See State v. Jones, 205 Ariz. 445, 450, 72 P.3d 1264, 1269 (2003) (defendant kidnapped 12-year-old girl from park, raped her and killed her; senselessness and h/d upheld); and see Stokley, 182 Ariz. 505, 898 P.2d 454 (1995).  The court can look to the defendant’s stated objective in assessing the applicability of this factor.  See Murdaugh, 209 Ariz. at __, ¶65, 97 P.3d at 857 (where defendant’s stated purpose was to teach victim a “lesson” by breaking his jaw, and this could have been accomplished with one blow to the head, it was senseless to ultimately murder the victim).   Senselessness alone is usually insufficient to support a finding of heinousness or depravity.  Schackart, 190 Ariz. 238, 947 P.2d 315 (1997).  See below for a further discussion on the sufficiency of senselessness to support this factor.

5.  Helplessness

A victim is helpless when he or she is disabled, mentally or physically, and unable to resist the murder.  State v. Hyde, 186 Ariz. 252, 921 P.2d 655 (1996) (victims were helpless where seventy-two-year-old male victim and fifty-year-old female victim were both physically small); Jackson, 186 Ariz. 20, 918 P.2d 1038 (1996) (victim driven into desert with no means of escape, unarmed and outnumbered three to one); State v. Murray, 184 Ariz. 9, 906 P.2d 542 (1995) (victims were elderly and could not easily summon aid).  An otherwise able victim can be rendered helpless by tying or binding them, see State v. Sansing, 206 Ariz. 232, 237, 77 P.3d 30, 35 (2003) (victim helpless after defendant and victim struggled and victim was ultimately bound), and a protracted struggle does not necessarily negate a finding of helplessness. Gulbrandson, 184 Ariz. 46, 906 P.2d 579 (1995) (same).  A victim's escape attempt also does not preclude a finding of helplessness.  Miller, 186 Ariz. 314, 921 P.2d 1151 (1996).

Senselessness & Helplessness - Satisfying the Heinous/Depraved Factor

Senselessness and helplessness alone are usually insufficient to uphold a finding of heinousness or depravity, without the presence of one of the other factors.  Trostle, 191 Ariz. 4, 951 P.2d 869 (1997); accord Sansing, 206 Ariz. at 237, 77 P.3d at 35.  But killing one's own child, or a child with whom the defendant shares the trust of a caretaker relationship can support a finding of heinous/depravity absent other factors.  State v. Milke, 177 Ariz. 118, 865 P.2d 779 (1993) (parent/child); Styers, 177 Ariz. 104, 865 P.2d 765 (1993) (caretaker/child); State v. Lopez, 174 Ariz. 131, 847 P.2d 1078 (1992) (parent/child); and compare with Prince, 206 Ariz. at 27-8, 75 P.3d at 117-18 (where evidence was not overwhelming as to existence of parent/child relationship between defendant and 13-year-old victim living with defendant and victim’s mother, senselessness/helplessness finding would not alone support the h/d factor beyond a reasonable doubt).  The Court believes that senselessness and helplessness are less probative of a defendant's state of mind than relishing, gratuitous violence, or needless mutilation.  Hyde, 186 Ariz. 252, 921 P.2d 655 (1996); accord State v. Moody, 208 Ariz. 424,473, 94 P.2d 1119, 1168 (2004).

6.  Witness Elimination

Witness elimination as a motive for murder may be established only when one of three categories of evidence exists to support the finding: (1) "[w]here the murder victim is a witness to some other crime, and is killed to prevent that person from testifying about the other crime"; (2) when "a statement by the defendant that witness elimination is a motive for the murder" is made; or (3) "where extraordinary circumstances of the crime show, beyond a reasonable doubt, that witness elimination is a motive."  Ross, 180 Ariz. at 606.  The evidentiary requirements articulated in Ross were prompted by a concern that "[t]oo often, claims of witness elimination are made with no evidence to back them up."  Id.   The Court has yet to define fully the phrase "some other crime" in the first category.  State v. Jones, 185 Ariz. 471, 488, 917 P.2d 200 (1996) (leaving open the question of whether the other crime witnessed by the victim may include a crime committed prior to the murder, but in the same time period or series of events, such as a case with multiple homicides).  The third Ross category, "extraordinary circumstances," exists only in the most extreme cases.  See Ross, 180 Ariz. at 606.  Where the murder victim is a witness to some other crime, and is killed to prevent that person from testifying about the other crime, witness elimination, alone, will be sufficient to support a finding of “especially heinous or depraved”.  State v. Ruben Johnson, 212 Ariz. 425, 133 P.3d 735, ¶¶58-60 (May 9, 2006). But where the witness was to the same crime, this factor, alone, will be insufficient to support a finding of  “especially heinous or depraved” unless the trier of fact finds an additional factor.  Johnson, supra; State v. Myles, 186 Ariz. 10, 17-18, 918 P.2d 1028, 1035-36 (1996); King, 180 Ariz. at 285, 883 P.2d at 1041.

Exclusivity of Gretzler/Ross Factors

The Gretzler/Ross factors are not exclusive.  However, the Court rarely steps beyond their narrow construction.  If the Court were to expand the definitions and meaning of "especially heinous, cruel, or depraved" beyond this narrow construction on an ad hoc basis, the consistent and narrow interpretation that shields the constitutionality of the statute would be obliterated.  State v. Barreras, 181 Ariz. 516, 523, 892 P.2d 852 (1995).

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