A.R.S. § 13-751(F)(8)-MULTIPLE HOMICIDES
A.R.S. § 13-751(F)(8) provides that it shall be an aggravating circumstance where "[t]he defendant has been convicted of one or more other homicides, as defined in § 13-1101, which were committed during the commission of the offense."
History: This aggravating circumstance was adopted by the Arizona Legislature in 1984 to add multiple homicides to the list of capital aggravating circumstances. The effective date of this amendment is September 1, 1984. “The plain meaning of the statute reads that if a defendant has been convicted of one or more other homicides, and this conviction arose out of the commission of the offense, the homicide conviction is an aggravating factor that the state could allege and the trial judge may find.” State v. Greenway, 170 Ariz. 155, 167, 823 P.2d 22, 34 (1991). It is the only aggravating circumstance that specifically addresses contemporaneous killings. State v. Lacy, 187 Ariz. 340, 353, 929 P.2d 1288, 1301 (1996)((F)(1) and (F)(2) address prior convictions).
Temporal, Spatial & Motivation Analysis: To satisfy this factor, the state must “establish more than that the jury convicted the defendant of first degree murder and one or more other homicides occurring around the same time.” State v. Ring III, 204 Ariz. 534, 560, 65 P.3d 915, 941 (2003). The state must prove that the homicides were “temporally, spatially, and motivationally related, taking place during ‘one continuous course of criminal conduct.’” State v. Prasertphong, 206 Ariz. 167, 170, 76 P.3d 438, 441 (2003).
Spatial (“close physical proximity”): Spatial relationship found where victims were all in “close proximity” to each other. State v. Dann, 206 Ariz. 371, 373, 79 P.3d 58, 60 (2003) (all in same room in apartment sitting near each other); State v. Armstrong, 208 Ariz. 360, 93 P.3d 1076, 1080-81 (2004) (same); State v. Anderson, 210 Ariz. 327, 351, ¶¶ 106-08, 111 P.3d 369, 393-94 (2005) (three victims all killed in “close physical proximity” where they were murdered on the same residential property, even though in different locations on the property).
Temporal (“within moments of each other”): Victims were killed “within moments” of each other; during “short interrupted span of time.” Dann, 206 Ariz. at 373, 79 P.3d at 60. See Armstrong, 208 Ariz. at 364, 93 P.3d at 1080 (victims killed “within seconds of one another”); and see State v Glassel, 211 Ariz. 33, 116 P.3d 1193 (2005) (two victims killed within moments of each other as part of defendant's shooting spree).
Motivational (“related”; “inextricably intertwined”): The classic example of motivational uniformity is where all victims are killed for precisely the same reason. This was the case in Glassel, where the defendant shot at all homeowners attending at a board meeting in order to “get even.” Glassel, 211 Ariz at 41, ¶9, 116 P.3d at 1201. But where the defendant intended to kill one victim and killed other victims present to eliminate witnesses, the motives were sufficiently “related” to support the (F)(8) factor. Dann, 206 Ariz. at 374, 79 P.3d at 61. Also, it is sufficient that the same motivation for killing Victim 2 is “inextricably intertwined” with an additional motivation for killing Victim 1. The shared motive can be sufficient, and it need not have been the sole motivation for killing both or all of the victims; it need only have been “related.” Armstrong, 208 Ariz. at 364-65, 93 P.3d at 1080-81.
Caution in Application: In considering legal sufficiency, care should be taken to consider the nature of the homicide and the identity of the victim in light of the “entire murder transaction;” focus should not be simply placed upon “the final act that killed the victim.” State v. Lavers, 168 Ariz. 376, 393-34, 814 P.2d 333, 351 (1991). For example, in Lavers, the (F)(8) finding was upheld even though there was a three-hour time span between the murders, and the bodies were found in different locations. See also Frank Anderson (5-hour time span; bodies in different locations on same residential property).
Applies to Each 1st Degree Murder: Once proven, the aggravating circumstance applies to each of the first-degree murder convictions. State v. Djerf, 191 Ariz. 583, 959 P.2d 1274 (1998).
Mental State Irrelevant: The defendant’s mental state is not relevant. State v. Dickens, 187 Ariz. 1, 926 P.2d 468 (1996)(capital defendant told accomplice to eliminate any witnesses without knowing that there was more than one witness; (F)(8) nonetheless applied to both murder convictions); Prasertphong, 206 Ariz. at 171, 76 P.3d at 442 (defendant had same motivation to kill all three victims as his accomplice and the fact that defendant’s level of intent may have been different was irrelevant).
Harmless Error Review: Where the trier of fact fails to conduct the “temporal, spatial, and motivational” test, the Supreme Court can perform this analysis and find the error harmless. State v. Dann, 206 Ariz. 371, 373-74, 79 P.3d 58, 60-61 (2003).
No Reversals to Date: To date, no decision reverses an (F)(8) finding on the merits. The only reported cases finding that it was improperly applied are State v. Lacy, 187 Ariz. 340, 929 P.2d 1288 (1996), and State v. Correll, 148 Ariz. 468, 715 P.2d 721 (1986). There, the findings were reversed because (F)(8) could not apply to murders that occurred years before the effective date of the amendment adding it to the list of statutory aggravating circumstances.
(F)(8) FINDING UPHELD
State v. Stanley, 167 Ariz. 519, 809 P.2d 944 (1991)
(F)(8) finding upheld without discussion. The defendant shot his wife and five-year-old child and then disposed of their bodies.
State v. Lavers, 168 Ariz. 376, 814 P.2d 333 (1991)
(F)(8) finding upheld. The defendant killed his wife and her eleven-year-old daughter the same night. The wife was stabbed, and several hours later, shot in the second story apartment shared by the family. During the interim, the girl was chased to the outside of the first story apartment directly below the family apartment, and stabbed there. The defendant committed the murder of each victim during the commission of the murder of the other. There was a continuous course of conduct linking the murders of these two related victims. The Court said it would analyze "the temporal, spatial, and motivational relationships between the capital homicide and the collateral [homicide], as well as the nature of that [homicide] and the identity of its victim." In doing so, the Court said that it would "not hold a stopwatch on the events of the murder to avoid the clear intent of the legislature in enacting" (F)(8).
State v. Cook, 170 Ariz. 40, 821 P.2d 731 (1991)
(F)(8) finding upheld. The defendant was convicted of sodomizing, torturing and killing two men on the same night in the defendant's apartment. The second victim was detained and murdered after the two codefendants showed him the body of the first victim. The Court approved the trial court's finding that, although a few hours separated the two murders, "they were for all practical purposes committed at the same time and [in] one continuous course of conduct." At the sentencing hearing, the state relied solely on trial evidence to prove the aggravating factors, but failed to disclose in its memorandum the applicability of (F)(8). The trial court nonetheless found the factor present and the defendant did not object or offer rebuttal. Under the circumstances, the Court held that the prosecutor's failure to notify the defendant about (F)(8) did not prejudice him.
State v. Greenway, 170 Ariz. 155, 823 P.2d 22 (1991)
(F)(8) finding upheld. The defendant killed a mother and daughter after burglarizing their home. He argued that the factor could apply to one of the counts of first degree murder, but not to both because to do so would involve double counting. The Court rejected this argument. Relying in part on the Maryland courts' construction of a similarly worded factor, the Court concluded that the factor could apply as an aggravating factor to each and every charge of first degree murder when more than one person is murdered.
State v. Kiles, 175 Ariz. 358, 857 P.2d 1212 (1993)
(F)(8) finding upheld but not addressed. The defendant did not challenge the trial court's finding of the (F)(8) aggravating circumstance where the defendant was convicted of killing his girlfriend, her five-year-old daughter, and her nine-month-old daughter by beating them with a jack stem.
State v. Ramirez, 178 Ariz. 116, 871 P.2d 237 (1994)
(F)(8) finding upheld. The defendant was convicted of stabbing a female acquaintance and her fifteen-year-old daughter to death. Citing State v. Lavers, the Court said that it analyzes "the temporal, spatial, and motivational relationships between the capital homicide and the collateral [homicide], as well as the nature of that [homicide] and the identity of its victim" to determine if one murder was committed during the course of another. In this case, the Court said the murders occurred in same place, resulted from the same disturbance, and were committed in a relatively short period of time in what can be fairly viewed as one continuous course of criminal conduct. The trial court misstated the law by saying that the factor supports the death sentence on either conviction. The Court noted that the factor, once proven, applies to each conviction.
State v. Wood, 180 Ariz. 53, 881 P.2d 1158 (1994)
(F)(8) finding upheld without extensive discussion. Wood did not challenge the finding on appeal. Wood shot and killed his estranged girlfriend and her father at a Tucson body shop. The Court noted that this was a double murder and the trial court properly found the (F)(8) aggravating circumstance.
State v. King, 180 Ariz. 268, 883 P.2d 1024 (1994)
(F)(8) finding upheld. The defendant was convicted of killing a store clerk and a security guard during the robbery of a convenience store. The trial court stated incorrectly in its special verdict that the factor "supports the imposition of a death sentence on either" murder count. Once this factor is proven, it applies to each first degree murder conviction.
State v. Stokley, 182 Ariz. 505, 898 P.2d 454 (1995)
(F)(8) finding upheld without discussion. The defendant did not contest the finding on appeal. Two thirteen-year-old girls were sexually assaulted, strangled, stabbed in the right eye, and their bodies dumped down a mineshaft.
State v. Roger and Robert Murray, 184 Ariz. 9, 906 P.2d 542 (1995)
(F)(8) finding upheld. The two older victims were shot and killed at the store and restaurant where they lived outside Kingman, Arizona. Robert did not challenge the finding on appeal. Roger argued that it was double jeopardy to apply the multiple homicide aggravating factor in sentencing where the murders were part of the same offense. The Court rejected the argument, noting it had dismissed the same argument in State v. Greenway.
State v. Danny Jones, 185 Ariz. 471, 917 P.2d 200 (1996)
(F)(8) finding upheld without discussion. The defendant was convicted of killing two people in the same house at the same time. The defendant did not contest the finding on appeal.
State v. Hyde, 186 Ariz. 252, 921 P.2d 655 (1996)
(F)(8) finding upheld without discussion. The two victims, a father and daughter, were killed at the convenience store owned and operated by the family of the victims. The murder of each victim occurred during the murder of the other, and the defendant did not challenge this finding on appeal.
State v. Dickens, 187 Ariz. 1, 926 P.2d 468 (1996)
(F)(8) finding upheld. The defendant gave his juvenile codefendant a gun after they had agreed to commit a robbery. The defendant told the juvenile codefendant to leave no witnesses after the robbery. The juvenile codefendant shot and killed a couple at a rest area near Yuma, Arizona, and the two codefendants took the husband's wallet. The defendant challenged this finding on two grounds: first, he contended that he did not know nor foresee the existence of the second victim. The Court rejected this argument, saying that the (F)(8) aggravating circumstance requires no mental state. Second, he claimed the use of the aggravator violates the prohibitions against due process, double jeopardy and cruel and unusual punishment. The Court dismissed the claims, saying that it had already rejected the argument that multiple homicides as an aggravator under (F)(8) amounts to double counting.
State v. Soto-Fong, 187 Ariz. 186, 928 P.2d 610 (1996)
(F)(8) finding upheld. The defendant was convicted of the robbery-murder of three people in the El Grande market in Tucson, Arizona. The defendant challenged the constitutionality of the (F)(8) finding on the same double jeopardy grounds rejected in State v. Greenway. The Court declined to revisit the matter.
State v. Rogovich, 188 Ariz. 38, 932 P.2d 794 (1997)
(F)(8) finding upheld. The defendant, in a "homicidal rampage," killed four people on the same day but in different places. One was a store clerk killed that morning, and three others were women who lived in a nearby trailer park killed that afternoon. The Court noted that the trial court had correctly applied the aggravating factor to three of the murders because they were committed in "a continuous course of conduct." The Court said that, to find the (F)(8) factor, it looks to the temporal, spatial and motivational relationships between the capital homicide and the collateral homicide(s), as well as the nature of that homicide and the identity of that victim.
State v. Mann, 188 Ariz. 220, 934 P.2d 784 (1997)
(F)(8) finding upheld. The defendant was convicted of shooting two people in a drug rip-off. The Court rejected the argument that this aggravator constitutes elements of the offense and that it therefore should not be used to enhance the sentence.
State v. Djerf, 191 Ariz. 583, 959 P.2d 1274 (1998)
(F)(8) finding upheld. The defendant was convicted of killing four members of one family at one time. The Court approved the trial court's finding "that the [four] murders were spatially, temporally, and motivationally connected[; t]hey occurred within a brief period, at the same house, and were part of a continuous course of conduct." Once proved, this aggravating factor applied to each first degree murder conviction.
State v. Todd Lee Smith, 193 Ariz. 452, 974 P.2d 431 (1999)
(F)(8) finding upheld. The two older victims, a husband and wife, were killed and money and other items were taken while they were camping near Flagstaff, Arizona. The defendant did not challenge this finding on appeal.
State v. Robert Jones, 197 Ariz. 290, 4 P.3d 345 (2000)
The trial court found that each Moon Smoke Shop murder provided a sufficient basis for finding (F)(8) regarding the other. The trial court also found that for each of the murders at the Fire Fighters Union Hall the other murders committed at that same time sufficiently supported the (F)(8) aggravating circumstance. The Court, however, noted that it was impossible to tell from the record if the trial court "double counted" the murder convictions to support both the (F)(1) and the (F)(8) aggravating circumstances. That error was harmless, however, because with the number of murders committed in this case it is mathematically possible to satisfy both (F)(1) and (F)(8) without ever counting a single murder more than once. Furthermore, the aggravating circumstances combined with either (F)(1) or (F)(8) were sufficient to outweigh the mitigating circumstances.
State v. Poyson, 198 Ariz. 70, 7 P.3d 79 (2000)
The Court found that this aggravating circumstance existed for each of the three murders. The murders occurred over a relatively short period of time (five hours), at the same residence, and were part of a single course of conduct. The defendant did not challenge this finding on appeal.
State v. (Kajornsak) Prasertphong, 206 Ariz. 167, 76 P.3d 438 (2003) (Ring)
(F)(8) finding upheld. “Overwhelming evidence” established that the murders occurred “during a short time, at the same place, and were part of a continuous course of criminal conduct.” The jury verdicts also established that Prasertphong possessed the same motivation for killing as his accomplice. Moreover, (F)(8) does not require any mental state. No reasonable jury would have failed to find this factor.
State v. (Scott Douglas) Nordstrom, 206 Ariz. 242, 77 P.3d 40 (2003) (Ring)
(F)(8) finding upheld. Nordstrom was conviction on six first-degree murder counts stemming from two separate incidents on different dates. The court found that Nordstrom stood “indisputedly” convicted of one or more other homicides that were committed during the commission of the offense, since he killed more than one person on each occasion. The fact that the jury found some of the murders to be felony-murder and others to be premeditated, was a distinction with no legal difference since first-degree murder is only one crime regardless of whether it occurs as premeditated or felony-murder.
State v. (Brian Jeffrey) Dann, 206 Ariz. 371, 79 P.3d 58 (2003) (Ring)
(F)(8) finding upheld. Dann shot and killed three people, including his girlfriend. The trial court failed to analyze the three killings under the required “temporal, spatial and motivational” relationship test. Nevertheless, the Supreme Court found this harmless on independent review. Here, all of Dann’s victims were killed in close proximity to one another inside the front room of an apartment, where they had been seated near one another. They were also killed “within moments of one another,” according to testimony from one witness in whom Dann confided. Finally, the motivational requirement was shown by the “uncontroverted evidence” that Dann went to the apartment intending to kill one of the victims, and killed the remaining two because they were “there” and because one was simply a witness to the crimes. The court likened this case to Tucker, where the defendant intended to kill the girlfriend and killed others present to eliminate witnesses.
State v. (Shad Daniel) Armstrong, 208 Ariz. 360, 93 P.3d 1076 (2004) (Ring)
(F)(8) finding upheld: The defendant killed both victims “within seconds of one another” inside a trailer while the two victims sat near each other in the living room. The defendant walked into the room, shot Victim 1 in the chest, then turned and “immediately” shot victim 2 once in the chest and once in the head, and then turned back again to Victim 1 and shot him in the head. It was sufficient that the same motivation for killing Victim 2 – preventing Victim 2 from alerting the authorities as to his whereabouts - was “inextricably intertwined” with an additional motivation for killing Victim 1: sheer hatred of Victim 1 (Victim 2’s fiancé). The shared motive – avoiding a return to prison – was sufficient, and it need not have been the sole motivation for killing both victims; it need only have been “related.”
State v. (Frank Winfield) Anderson, 210 Ariz. 327, 111 P.3d 369 (2005) Jury Trial/Indep. Review
The three homicides met the (F)(8) requirement that the killings be temporally, spatially and motivationally related, where the murders occurred within five hours of one another, they were all committed on the same residential property (even though in different locations on the property), and the motivation for each killing was the same: a desire to steal the third victim’s truck and to leave no witnesses behind to report the crime.
State v. (Richard J.) Glassel, 211 Ariz. 33, 116 P.3d 1193 (2005) Jury Trial/Indep. Review
(F)(8) finding upheld. In April, 2000, 61-year-old Glassel stormed a homeowners association board meeting at Ventana Lakes armed with an AR-15 assault rifle, two 9-millimeter pistols and a .22 caliber pistol. He fired off 8 pistol shots in rapid succession, then let off two more rounds. When finally subdued, he had killed two people and wounded three others. When asked why he had done the shooting, Glassel responded, “I did it to get even, you f—king sons-of-bitches,” or “They f—ked me long enough. I’m getting even.” This aggravating factor was uncontested on appeal; therefore, there is no analysis of the spatial, temporal and motivational relationship.
Ed. note: Given the fact that the victims were killed within minutes of each other within the confines of the same room, and they were, by the defendant’s on-the-scene admission, all killed for the same reason, the 3-pronged time/space/motivational requirement was evidently extant.
State v. (Tracy Allen) Hampton, 213 Ariz. 167, 133 P.3d 735 (2006) Jury Trial/Indep. Review
(F)(8) finding upheld. The statutory requirement that the multiple murders be “temporally, spatially and motivationally related” to each other was satisfied. The killing of each victim – Findley, Ramsdell, and the unborn child – qualified as a homicide for purposes of this aggravator. They were clearly closely related in time, space and motivation. This aggravator carries more weight than other aggravators, and a triple homicide triples the loss.
State v. Ellison, 213 Ariz. 116, 140 P.3d 899 (2006) Jury Trial/Indep. Review
(F)(8) finding upheld. The statutory requirement that the multiple murders be “temporally, spatially and motivationally related” to each other was satisfied. The Bouchers, a married couple residing together, were both killed in the same room at approximately the same time.
State v. (Eugene) Tucker (Tucker II), 215 Ariz. 298, 160 P.3d 177 (2007) (Ring)
(F)(8) finding upheld. The requirement that the multiple murders be “temporally, spatially and motivationally related” to each other was satisfied. The murders all occurred on the same day and in the same apartment. The Court found it “difficult to imagine a motive for the killings [of Victims 2 and 3] unrelated to the murder of [Victim 1].”
State v. (Ruben) Garza, 216 Ariz. 56, 163 P.3d 1006 (2007) Jury Trial/Indep. Review
(F)(8) upheld. The statutory requirement that the multiple murders be “temporally, spatially and motivationally related” to each other was satisfied. Both victims were shot in the same house, one shortly after the other. The two homicides were also motivationally related. Garza shot the first victim in the living room and then went down the hallway to the bedroom and shot the other victim.
State v. Boggs, Steve, 218 Ariz. 325, 185 P.3d 111 (2008)(Death Penalty Upheld) Jury Sentencing/Indep. Review
The three murder victims were restaurant employees all killed during a robbery. The Defendant conceded the temporal and spatial relationship, but argued the homicides lacked the motivational relationship because he killed for other motives. The alleged motives included: one victim caused the accomplice to lose his job, the Defendant flipped out after the accomplice shot, the race of a victim and to eliminate a witness. "Regardless of Boggs' specific motive for committing the murders, all the murders involved a continuous course of criminal conduct." ¶82. Additionally, a racial motive applied to all victims as did the accomplices animosity toward the restaurant. ¶83-¶84.
State v. (Shad) Armstrong (Armstrong III), 218 Ariz. 451, 189 P.3d 378 (2008) (Ring)
On appeal, Armstrong did not dispute that the murders were temporally and spatially related; he contested only the state’s proof of a motivational relationship. The Court held that the motives for killing each victim need not be identical. It was sufficient that the same motivation for killing his sister – preventing her from alerting the authorities as to his whereabouts - was “inextricably intertwined” with an additional motivation for killing the fiancé – his hatred of the fiancé and the influence the fiancé had over his sister. The shared motive – avoiding a return to prison – was sufficient, and it need not have been the sole motivation for killing both victims; it need only have been “related.”
State v. (Brian Jeffrey) Dann, 220 Ariz. 351, 207 P.3d 604 (2009) (Ring)
To satisfy this factor, the State must prove that the homicides were “temporally, spatially, and motivationally related, taking place during one continuous course of criminal conduct.” Here, all of Dann’s victims were killed in close proximity to one another inside the front room of an apartment where they had been seated near one another. This satisfies the spatial relationship requirement. They were also killed within moments of one another, according to testimony from one witness in whom Dann confided. The short, uninterrupted time within which these actions occurred satisfies the temporal relationship requirement. Finally, the State established the motivational requirement through evidence that Dann went to the apartment intending to kill one of the victims, and then killed the second and third victims because they were “there” and because one was simply a witness to the crime.
State v. (Julius Jarreau) Moore, 222 Ariz. 1, 213 P.3d 150 (2009)
The record showed a temporal, spatial and motivational relationship between the murders. The temporal element was satisfied by the surviving victim’s testimony that within seconds she saw Moore shoot her and Mata, and then heard multiple gunshots. The other two victims, Guadalupe and Delia, were shot inside their house, while Mata was shot just outside the front door, satisfying the spatial element. And because it was difficult to imagine a motive for the murders of Delia and Guadalupe unrelated to Mata’s murder, the motivational element was satisfied.
State v. Alvie Copeland Kiles, 222 Ariz. 25, 213 P.3d 174 (2009)
(F)(8) finding upheld. Kiles was convicted of first degree murder of three victims. On appeal, he did not dispute that he murdered the two children, and his own testimony confirmed that he bludgeoned the girlfriend to death. He admitted killing the children because they had seen the girlfriend’s murder and were screaming. All the murders were committed at the same time. Given the evidence, it is difficult to imagine a motive for killing the children unrelated to the girlfriend’s murder.
State v. (Rodney Eugene) Hardy, 230 Ariz. 281, 283 P.3d 12 (2012)
(F)(8) finding upheld.The jury found that Hardy was convicted of one or more homicides during the commission of the offense, and Hardy did not contest the finding.
State v. (Manuel) Ovante, Jr., 231 Ariz. 180, 291 P.3d 974 (2013)
After entering a guilty plea to the charges (two counts of first degree murder (V1; V2) and one count of aggravated assault (as to the surviving victim, V3)), Ovante admitted the (F)(8) aggravator based on his premeditated murder of V2. After Ovante pleaded guilty, the court conducted a second colloquy to confirm that he was knowingly, voluntarily, and intelligently admitting the aggravators and that he understood that death was a possible sentence.
State v. (Steven John) Parker, 231 Ariz. 391, 296 P.3d 54 (2013)
To prove the multiple homicides aggravator, the state must show that the murders were “temporally, spatially, and motivationally related, taking place during one continuous course of criminal conduct.” Defendant argued that the evidence suggesting that V1 came to V2's aid indicates that, even if defendant was the initial assailant, he killed V1 in self-defense and, thus, did not have the same motivation for V1's killing as for V2's. The jury, however, could have inferred that both homicides were committed during the same course of conduct and with the same motive, whether pecuniary gain or another motive. [Citation omitted].
State v. (Eric Deon) Boyston, 231 Ariz. 539, 298 P.3d 887 (2013)
The evidence demonstrated that the homicides took place during a “continuous course of criminal conduct” and were “temporally, spatially, and motivationally related.” The murders occurred within minutes of each other, both within and in the immediate vicinity of the grandmother’s apartment, tying them together in time and space. The statement, “It’s time to take care of everyone who did me wrong…” could be seen to tie the murders motivationally, as did his later statement: “Oh, I better get you, too;” “You m**f***ers crossed me too many times.”
And, as to V2, who was stabbed after a fistfight at the scene, the jury could have determined that the same statement (“…to take care of everyone…”) included V2 amongst those who “did him wrong. The jury rejected “heat of passion” or self-defense when it convicted defendant of premeditated murder.
State v. (Robert) Hernandez,-- P.3d --, 2013 WL 3864529 (July 26, 2013)
(F)(8) FINDING UPHELD Hernandez did not contest the (F)(8) finding and the record supported the finding. He and a co-defendant broke into a house and lay in wait for the occupants to arrive. When they arrived with two cousins who were visiting them, Hernandez and the co-defendant terrorized them and eventually shot all four, killing three.
State v. (Christopher Mathew) Payne, -- P.3d --, 2013 WL 4456849 (August 21, 2013)
(F)(8) FINDING UPHELD Although the jury instruction was deficient, as it failed to instruct jurors of the requirement there be a “temporal, spatial and motivational relationship between the homicides,” fundamental error was not demonstrated and any error was harmless in this case.
Temporal proximity focuses not on the timing of the deaths [Defendant claimed the deaths occurred a week apart.] but rather on the conduct that caused the deaths (locking the children in a closet and starving them over several months).
The motivational element was demonstrated by evidence that the children were a “bother,” misbehaved and were a nuisance; there was no evidence that the reason behind the conduct differed as to each child.
(F)(8) FINDING REVERSED
State v. Correll, 148 Ariz. 468, 715 P.2d 721 (1986)
(F)(8) finding reversed. The defendant was convicted of the strangling death of one victim and the shooting deaths of two other victims. All the victims were killed the same night after the defendant and codefendant searched the trailer for valuables. The defendant argued that (F)(8) should not apply in this case because the crime occurred before the enactment of the amendment adding (F)(8) to the list of aggravating factors. The Court agreed with this argument and found that application of (F)(8) to this defendant would constitute an ex post facto law and is constitutionally prohibited.
State v. Lacy, 187 Ariz. 340, 929 P.2d 1288 (1996)
(F)(8) finding reversed. Here, two women were killed in the same apartment at the same time, but the statutory factor did not exist when these murders were committed in 1982. The Court rejected the state's suggestion to substitute the (F)(1) aggravator or (F)(2) aggravator, though the trial court had expressly found neither factor applied in this case. The Court noted that "(F)(8) plainly refers to `other homicides' committed `during the commission of the offense." Thus, it specifically addresses contemporaneous killings, which are not addressed by any other aggravating factor.
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