Capital Sentencing Guide

A.R.S. § 13-751(F)(7)

A.R.S. § 13-751(F)(7)-MURDER COMMITTED WHILE IN CUSTODY

A.R.S. § 13-751(F)(7) currently provides that it shall be an aggravating circumstance where "[t]he defendant committed the offense while: (a) In the custody of or on authorized or unauthorized release from the state department of corrections, a law enforcement agency or a county or city jail. (b) On probation for a felony offense."

History:  This aggravating circumstance was added to the six original aggravating circumstances in 1978.  The state legislature enacted it “to protect the guards and other inmates at such institutions where a defendant is confined and to discourage violence by incarcerated persons.”  State v. Gillies, 135 Ariz. 500, 512, 662 P.2d 1007, 1019 (1983).

1978 language (effective as of October 1, 1978):  The original version of this statute as enacted in 1978 read:  "while in the custody of the department of corrections, a law enforcement agency or county or city jail."  Sometimes this factor was misapplied to defendants who had committed murders while under the authority of the prison system, but who were on some kind of release status.  The Court had occasion to remind lower courts that the aggravating circumstance applied only to confined or incarcerated defendants.  It did not apply, for example, to a defendant on unsecured work furlough, Gillies I, or to one on a secured work furlough.  State v. Libberton, 141 Ariz. 132, 685 P.2d 1284 (1984).  Nor did it apply to a defendant serving his sentence in a federal halfway house with work-release restrictions.  State v. Medrano, 173 Ariz. 393, 844 P.2d 560 (1992).

1988 language (effective as of September 30, 1988):  In 1988, the legislature amended the original language by adding the word "state" before the department of corrections.

1993 language (effective as of July 17, 1993):  In 1993, the language of this aggravating circumstance was amended again, making it applicable to a defendant who committed a murder "while in the custody of or on authorized or unauthorized release from the state department of corrections, a law enforcement agency or a county or city jail.”

2003 language (effective as of September 18, 2003):  In 2003 the legislature added subsection (b), making this factor applicable if the murder was committed while the defendant was “on probation for a felony offense.”

Proof that Defendant is the Person Who Was In Custody or On Authorized Release:  There must be documentation admitted showing that the defendant was in custody or on release status at the time of committing the murder, and the testimony of a parole officer or other official, alone, will not be sufficient.  State v. Hurley, 154 Ariz. 124, 741 P.3d 257 (1987) (applying State v. Hauss, 140 Ariz. 230, 681 Ariz. 382 (1984)), cert. denied, 484 U.S. 1028 (1988).  The documentation of the defendant’s release status must establish that the defendant is the person to whom the document refers.  See State v. Carreon,  210 Ariz. 54, 66, ¶61, 107 P.3d 900, 913 (2005).  A physical description of the defendant may suffice, if it is sufficiently detailed.  See Carreon, 210 Ariz. at 65, ¶¶ 53-54 n.12,107 P.3d at 911 (in context of establishing (F)(2) [prior conviction] DOC documents showed that defendant had identifying tattoo on his back of his nickname “East Side Longo,” and defendant had this exact tattoo)

Federal Bureau of Prisons:  If a defendant is on release status from the Federal Bureau of Prisons, (F)(7) can apply, because it is within the Department of Justice, which is a “law enforcement agency.” State v. Lamar, 210 Ariz. 571, ¶15, 115 P.3d 611, 615 (2005).

(F)(7) & Ring:  (F)(7), unlike (F)(1) or (F)(2), must be found by a jury and is subject to harmless error review.  Lamar, 210 Ariz. at 576, ¶18, 115 P.3d at 616.



(F)(7) FINDING UPHELD

State v. Vickers (Vickers I (Ponciano murder)), 129 Ariz. 506, 633 P.2d 315 (1981)
(F)(7) finding upheld. The defendant murdered his cellmate. The finding was not contested on appeal.

State v. Vickers (Vickers II (Holsinger murder)), 159 Ariz. 532, 768 P.2d 1177 (1989)
(F)(7) finding upheld. This murder was also committed while the defendant was in the custody of the Department of Corrections.

State v. Serna (Serna I), 163 Ariz. 260, 787 P.2d 1956 (1990)
(F)(7) finding upheld. The defendant committed the present offense while in the custody of the Arizona Department of Corrections. The defendant was an inmate at the Perryville prison when he killed the victim.

State v. Thornton, 187 Ariz. 325, 929 P.2d 676 (1996)
(F)(7) finding upheld without discussion; not raised on appeal. The defendant had escaped from the Cochise County jail while awaiting trial. After his escape, he entered the home of the victims and shot and killed one of them.

State v. Medina, 193 Ariz. 504, 975 P.2d 94 (1999)
(F)(7) finding upheld without discussion; not raised on appeal. The defendant killed the victim while on release pending trial on other charges.

State v. Robert Jones, 197 Ariz. 290, 4 P.3d 345 (2000)
(F)(7) finding upheld.  Jones challenged this finding for the first time on appeal. The Court found that the circumstance was proven by uncontested testimony from the defendant’s parole officer that the defendant was in fact on parole (authorized release) at the time of the murders. In the absence of contravention, the parole officer’s testimony alone provides sufficient grounds for the trial court’s determination. The parole officer knew whether the defendant was in fact on parole at the time of the murders, and the statute requires nothing more.

State v. (Leroy) Cropper, 206 Ariz. 153, 76 P.3d 424 (2003) (Ring)
(F)(7) finding upheld.  Cropper did not contest the fact that he committed the murder while he was in the custody of the Arizona DOC (Cropper killed a prison guard).

State v. (Danny) Montano, 206 Ariz. 296, 77 P.3d 1246 (2003) (Ring)
(F)(7) finding upheld.  Montano, who was an inmate at the Cimmaron Unit of the DOC in Tucson at the time of the murder (he killed another inmate), conceded the in-custody aggravating circumstance as part of his penalty phase mitigation arguments.

State v. (Albert Martinez) Carreon, 210 Ariz. 54, 107 P.3d 900, (2005) Jury Trial/Indep. Review (F)(7) finding upheld.  There was documentation that Carreon was on authorized release from the DOC at the time that he committed the murder, and that Carreon was the person identified in the DOC documents.  No further discussion provided.

State v. (Christopher George Theodore) Lamar, 210 Ariz. 571, 115 P.3d 611 (2005) (Ring)
(F)(7) upheld (harmless).  The fact that Lamar was on supervised release status from the Federal Bureau of Prisons for his conviction for possession with intent to distribute cocaine, qualified for application of the (F)(7)(a) factor.  “Because the Federal Bureau of Prisons falls within the Department of Justice and because the Department of Justice is a ‘law enforcement agency,’ it follows that the Federal Bureau of Prisons is a ‘law enforcement agency’ under the terms of A.R.S. § 13-751.F.7.”  ¶15.  The court deduced that it was not the legislature’s intent to punish more severely individuals on release from state correctional institutions than those on release from the Federal Bureau of Prisons.

(F)(7) is not exempt from the Ring requirement that aggravators be found by a jury.  The court reasoned that “[i]n contrast to situations involving the F.1 and F.2 aggravating circumstances, no jury has found the underlying facts necessary to establish the F.7 aggravating circumstance.  A dispute may arise as to whether the individual who committed the offense was in custody at the time of the offense due to questions as to the date(s) of the offense(s) in relationship to the date of custody or release.” ¶18.

In this case it was harmless, since Lamar presented no evidence or argument that contradicted either the testimony of the State’s witness – a supervisor for the U.S. Probation Department – or the documentation submitted by the State corroborating the supervisor’s testimony.

State v. Ellison, 213 Ariz. 116, 140 P.3d 899 (2006) Jury Trial/Indep. Review
(F)(7) finding upheld. Ellison’s prison records showed he was on parole when he committed the murders.

State v. (Paul Bradley) Speer
, 221 Ariz. 409, 212 P.3d 787 (2009)
(F)(7) upheld. The murder in this case was committed while Speer was on parole from his armed robbery conviction and in the custody of the Maricopa County Sheriff’s Office on the burglary charge.

State v. (Leroy D.) Cropper, 223 Ariz. 522, 225 P.3d 579 (2010)
F7 finding upheld. Cropper did not contest the fact that he committed the murder of the prison guard while he was in the custody of the Arizona DOC.

State v. (Joshua Idlefonso) Villalobos, 225 Ariz. 74, 235 P.3d 227 (2010)
F7 finding upheld. The State introduced uncontroverted evidence that Villalobos was on authorized release from prison for federal and state drug charges at the time of the offense.

State v. (Benjamin Bernal) Cota, 229 Ariz. 136, 272 P.3d 1027 (2012)
F7 finding upheld.  There was ample evidence in the record to support the finding that the crime was committed while Cota was on parole.  This issue was not contested on appeal.

State v. (Pete) Van Winkle, 230 Ariz. 387, 285 P.3d 308 (2012)
(F)(7) finding upheld; (F)(7A) (IN CUSTODY IN COUNTY JAIL).Defendant did not challenge the State’s proof of the aggravating factor, (F)(7)(a)(in custody in county jail when murder committed).  The State proved the aggravator by presenting evidence that he was in custody at the time of the murder.

State v. (Robert)Hernandez, 232 Ariz. 313, 305 P.3d 378 (2013)
(F)(7) FINDING UPHELD (ON RELEASE FROM DOC) Defendant’s status, being on release from prison at the time of the crime, supported the (F)(7) aggravator.

State v. (Efren) Medina, 232 Ariz. 391, 306 P.3d 48 (2013)
(F)(7) FINDING UPHELD (ON RELEASE FROM PRISON) Defendant acknowledged sufficient evidence supported the aggravator. Because this aggravator and (F)(2) implicate different public policy concerns, the Court weighed both aggravators.


(F)(7) FINDING REVERSED

State v. Gillies (Gillies I), 135 Ariz. 500, 662 P.2d 1997 (1983)
(F)(7) finding reversed. The trial court found that the defendant committed the offense while in the custody of the Department of Corrections. The Court disagreed. On December 26, 1980, the defendant was granted work furlough status in connection with his prior theft conviction, permitting him to choose his place of residence and employment subject to approval by a supervising officer. The defendant moved to Weldon's Riding Stables where he both lived and worked at the time of the crime. A.R.S. § 31-234(C) states that a person in a work furlough program is in the "constructive custody" of the Department of Corrections. To fall within the terms of (F)(7), the defendant must have "committed the offense while in the custody of the department of corrections, a law enforcement agency or county or city jail." The legislative intent of this section is to protect the guards and other inmates at such institutions where a defendant is confined and to discourage violence by incarcerated persons. The Court held that (F)(7) does not apply to one who is on unsecured work furlough status.

State v. Medrano (Medrano I), 173 Ariz. 393, 844 P.2d 560 (1992)
(F)(7) finding reversed. The trial court erred by finding, under (F)(7), that the defendant committed the murder while in the custody of the United States Bureau of Prisons. At the time of the murder, the defendant was serving a federal sentence at a halfway house, and had reached the fourth of five levels of increasing liberties and privileges. To fall within the terms of (F)(7), the defendant must have "committed the offense while in the custody of the state department of corrections, a law enforcement agency or county or city jail." According to the Court, "[t]he legislative intent of this section is to protect the guards and other inmates at such institutions where a defendant is confined and to discourage violence by incarcerated persons." State v. Gillies I.

OTHER CASES

State v. Libberton, 141 Ariz. 132, 685 P.2d 1284 (1984)
(F)(7) did not apply. The trial court did not find the factor. The state, however, urged by cross-appeal that the factor did apply to the defendant. The state recognized the Court had held in State v. Gillies I, that this aggravating circumstance does not apply to persons on unsecured work furlough. The state distinguished Gillies I by saying that in this case defendant was on secured work furlough (he was required to return to the Durango facility each day at 6:00 p.m.) whereas the defendant in Gillies I was on unsecured work furlough. In Gillies I the Court stated that the legislature's purpose for enacting § 13-751(F)(7) is "to protect the guards and other inmates at such institutions where a defendant is confined and to discourage violence by incarcerated persons." The defendant was not confined when he committed the offense, nor was he incarcerated, therefore the factor did not apply to him.

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