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Arizona Judicial Branch

1980-1983

State v. Evans (Evans II), 124 Ariz. 526, 606 P.2d 16 (1980)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder and armed robbery, and was sentenced to death for the murder. On direct appeal, the Arizona Supreme Court affirmed his conviction, but remanded for resentencing pursuant to State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978). Evans I, 120 Ariz. 158, 584 P.2d 1149 (1978). At resentencing, the defendant was again sentenced to death. This is thedefendant's automatic, direct appeal from that resentencing.

AGGRAVATING CIRCUMSTANCES:

There is no discussion of aggravating circumstances in this opinion.

MITIGATING CIRCUMSTANCES:

The Court found that there were no mitigating circumstances sufficiently substantial to call for leniency in this case. More specifically, the Court found that the defendant failed to prove by a preponderance of the evidence the existence of the following mitigating circumstance:

(G)(1) Significant Impairment

JUDGMENT: Death sentence affirmed.


State v. Arnett (Arnett II), 125 Ariz. 201, 608 P.2d 778 (1980)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Yavapai) of first-degree murder and sentenced to death. On appeal, the Arizona Supreme Court remanded for resentencing, Arnett I, 119 Ariz. 38, 579 P.2d 542 (1978), based on State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978). The trial court reimposed the death sentence. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
The (F)(1) finding was upheld without discussion. See discussion in Arnett I.

(F)(2) (Prior Violent Felony) - UPHELD
The (F)(2) finding was upheld without discussion. See discussion in Arnett I.

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstances existed, but were not sufficiently substantial to call for leniency:

Mental Impairment ["serious emotional problems"]
Difficult childhood/family history
Lack of education
Remorse
Rehabilitation
Character [
not killing a security guard when arrested previously]

The Court found that the defendant's age was not a mitigating circumstance in this case because the defendant was not immature and was not of an age where he should not be held responsible for his actions.

JUDGMENT: Conviction and death sentence affirmed.


State v. Mata (Mata I), 125 Ariz. 233, 609 P.2d 48 (1980)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder and sentenced to death. Upon resentencing, pursuant to State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978), the defendant was sentenced to death. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
The (F)(1) finding was upheld without discussion.

(F)(6) (Heinous, Cruel or Depraved) - UPHELD
The (F)(6) finding was upheld without discussion. The facts were that the defendant and his brother beat and raped the victim and placed her in a car, then drove away from the brother's apartment. The Defendant killed the victim on the side of the road by cutting her throat with a knife all the way through to her spine.

MITIGATING CIRCUMSTANCES:

The Court found that the trial court was correct in finding the "absence of any mitigating circumstances." There is no further discussion of mitigating circumstances in this opinion.

JUDGMENT: Conviction and sentence affirmed.


State v. Madsen, 125 Ariz. 346, 609 P.2d 1046 (1980)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Yavapai) of first-degree murder and sentenced to death. This is his automatic appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - 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. 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.

(F)(6) (Heinous, Cruel or Depraved) - REVERSED

Cruel: Reversed. The defendant fired one shot from his rifle and hit the victim in the back of the head. The victim lost consciousness immediately and never regained it prior to death.

Heinous or Depraved: Reversed. The Court agreed that the murder was planned and cold-blooded, but believed that supported the premeditation requirement for first-degree murder, not the (F)(6) aggravating circumstance. The Court noted that there was no debasement of the victim by the defendant, nor was the defendant's conduct perverted.

MITIGATING CIRCUMSTANCES:

No discussion of mitigating circumstances because the Court reversed the trial court's finding on both of the aggravating circumstances and reduced the sentence to life.

JUDGMENT: Conviction affirmed, but death sentence reduced to life imprisonment without the possibility of parole for twenty-five years.


State v. Sylvester Smith, 125 Ariz. 412, 610 P.2d 46 (1980)

PROCEDURAL POSTURE:

The defendant was convicted in Superior Court (Maricopa) of first-degree murder and sentenced to death. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
The defendant was convicted of murder in Texas in 1968. The trial court judicially noticed and relied on a 1973 Texas statute to determine that the 1968 conviction for murder with malice satisfied the (F)(1) aggravating circumstance. The Court found this not to be error because the offense was, at a minimum, equivalent to second-degree murder in Arizona, and under Arizona law, a life sentence could be imposed for that crime.

(F)(2) (Prior Violent Felony) - UPHELD
The Court seems to uphold the trial court's (F)(2) finding based on a prior conviction for aggravated assault.

MITIGATING CIRCUMSTANCES:

None sufficiently substantial to call for leniency. The Court found that the defendant did not prove the existence of the following as mitigating circumstances:

(G)(1) - Significant impairment [from consumption of alcohol]
Victim's actions [
and that defendant acted in self-defense]

JUDGMENT: Conviction and death sentence affirmed.


State v. Steelman (Steelman II), 126 Ariz. 19, 612 P.2d 475 (1980)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of two counts of first-degree murder, burglary, kidnapping, and two counts of armed robbery. He was sentenced to death on the murder counts. The Arizona Supreme Court affirmed the convictions, but remanded the case for resentencing pursuant to State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978). Steelman I, 120 Ariz. 301, 585 P.2d 1213 (1978). At resentencing, the trial court again imposed death sentences for the murders. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
The defendant was previously convicted of nine counts of first-degree murder and five first-degree robbery counts, which were committed after the murder at issue. The Court held that the sentencing statute makes no reference to when the acts underlying the convictions must be committed. (F)(1) goes to the determination of a defendant's character and is not a recidivist or enhancement statute meant to serve as a warning to first offenders and encourage their reform. The defendant's prior convictions were properly used as an aggravating circumstance under (F)(1), even though these prior convictions were a result of the case being submitted to the trial court on the basis of the grand jury transcripts.

(F)(2) (Prior Violent Felony) - UPHELD
See discussion under (F)(1) above .

(F)(6) (Heinous, Cruel or Depraved) - UPHELD

Heinous or Depraved: Upheld.
The Court upheld the (F)(6) finding based on heinousness, but described the significant mental anguish suffered by the victims as the primary reason for this decision. [Mental anguish is usually viewed in the context of a cruelty finding]. The two victims were held prisoner in their own home by the defendant and codefendant, Gretzler, for the better part of a day. Victim Patricia Sandberg was so upset by all accounts that the defendants gave her valium to calm her down. Both victims knew that their captors were armed, hiding from the police and anxious to escape. The victims were separated, bound and gagged. Victim Michael Sandberg was bound by twine attached to his legs and placed around his neck so that he would choke if he tried to straighten out his legs. Michael Sandberg was shot before his wife, Patricia, was also shot by the defendants.

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstance existed, but it was not sufficiently substantial to call for leniency when weighed against the aggravating circumstances:

(G)(1) - Significant Impairment [mental illness]

JUDGMENT: Death sentences affirmed.



State v. Ceja
(Ceja III), 126 Ariz. 35, 612 P.2d 491 (1980)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of two counts of first-degree murder and sentenced to death. On direct appeal, the Arizona Supreme Court reversed and remanded for a new trial. Ceja I, 113 Ariz. 39, 546 P.2d 6 (1976). After a retrial, the defendant was again convicted on both counts and sentenced to death. The Arizona Supreme Court again affirmed the convictions and sentences. Ceja II, 115 Ariz. 413, 565 P.2d 1274 (1977). The case was remanded for resentencing pursuant to State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978). The defendant was again sentenced to death and this is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(6) (Heinous, Cruel or Depraved) - UPHELD

Cruel: Not Found. Evidence was inconclusive on whether the victims suffered.

Heinous or Depraved: Upheld.
Gratuitous Violence: Two people were shot several times by the defendant in a drug rip-off. Victim Randy Leon was shot several times and kicked in the head repeatedly after death. Victim Linda Leon was initially shot twice in the chest, dragged to another room, and shot four more times in the head. This "barrage of violence" beyond that necessary to steal or kill indicates a cruel or depraved nature apart from the norm.
Mutilation: See gratuitous violence.

MITIGATING CIRCUMSTANCES:

None sufficiently substantial to call for leniency. The Court found that the defendant failed to prove the following mitigating circumstance:

(G)(1) Significant Impairment - [brain damage from marijuana and paint sniffing]

JUDGMENT: Death sentence affirmed.


State v. Jordan (Jordan II), 126 Ariz. 283, 614 P.2d 825 (1980)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder and sentenced to death. The Arizona Supreme Court affirmed the conviction and sentence in Jordan I, 114 Ariz. 452, 561 P.2d 1224 (1976). The case was remanded for resentencing pursuant to State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978). The death sentence was reimposed and this is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
The Court rejected the defendant's argument that convictions must occur before the commission of the murder for which he received death sentence. The Court also rejected the defendant's argument that convictions are not final because they are being collaterally attacked by means of petitions for habeas corpus. Until a prior conviction is set aside, it may be used to enhance a sentence, though invalid prior convictions may not be used as an aggravating circumstance to support the death penalty.

(F)(2) (Prior Violent Felony) - UPHELD
The defendant was previously convicted four times in Texas. The Court rejected the defendant's argument that since the Texas convictions were entered after the murder, those prior convictions should not count for the (F)(2) aggravating circumstance. The Court also found that a conviction occurs at the time judgment of conviction is entered, and that a conviction for another offense may be an aggravating circumstance even if both the offense and conviction occur after the murder which is being punished. State v. Steelman, 126 Ariz. 19, 612 P.2d 475 (1980). The Court also stated that a prior conviction may be used as an (F)(2) aggravating circumstance even though an appeal is pending for the prior conviction, because it remains in effect until set aside.

MITIGATING CIRCUMSTANCES:

None sufficiently substantial to call for leniency. The Court found that the defendant failed to prove the existence of the following as mitigating circumstances:

(G)(1) Significant Impairment - Alcohol or drugs
Felony murder/Lack of intent
Cooperation with state authorities

JUDGMENT: Death sentence affirmed.


State v. Clark, 126 Ariz. 428, 616 P.2d 888 (1980)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Cochise) of four counts of first-degree murder. He was sentenced to death on each count. This is his automatic appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(3) (Grave Risk of Death to Others) - REVERSED
The evidence showed that the wife was in another room when the defendant shot the husband. The defendant then went and shot the wife. "Even given the ricocheting of bullets, [the wife] was not close enough to be within any sort of 'zone of danger.'"

(F)(5) (Pecuniary Gain) - UPHELD
The defendant worked as a wrangler on a ranch near Elfrida, Arizona for a year prior to the murders. On the day of the murders, he stabbed to death an older wrangler and then shot a younger wrangler before shooting the couple who owned the ranch. He then stole the couple's car, slashed the tires on the remaining vehicles, and left with credit cards, guns, jewelry and a saddle. The defense argued that the (F)(5) aggravator applied only to "hired gun" killings. The Court rejected this narrow interpretation by noting that if the receipt of money is a cause of the murder, then the aggravator has been established. [Note: Justice Gordon wrote a concurring opinion arguing that (F)(4) and (F)(5) apply only to hired killing situations. He argued that this new expansive definition will apply to cases where a killing occurs during a robbery, and if the Legislature had desired that effect, it could have been accomplished with more precise, specific language.]

(F)(6) (Heinous, Cruel or Depraved) - UPHELD

Cruel: Reversed. No evidence that any of the four victims suffered any pain. The fatal wounds appear to have been delivered at vital body parts and death ensued quickly.

Heinous or Depraved: Upheld.
Relishing: The defendant killed four human beings without justification or excuse. Two of them had provided a home and work for him after his release from a juvenile correctional institution. The third victim was supposed to be a friend of the defendant. The defendant's state of mind was illustrated by his comment, "[y]ou should have seen Charley when I hit him with those cutters." The defendant also kept a spent bullet as a grisly souvenir of his crime.
Senselessness: See Relishing, above.

MITIGATING CIRCUMSTANCES:

None sufficiently substantial to call for leniency. The Court noted, without further discussion, that the defendant argued the following as mitigating circumstances:

Mental Impairment [emotional problems produced by antisocial personality]
Age
Difficult childhood/Family history
Lack of criminal record

JUDGMENT: Convictions and sentences affirmed.


State v. Bishop (Bishop II), 127 Ariz. 531, 622 P.2d 478 (1981)

PROCEDURAL POSTURE: The defendant was convicted of first-degree murder in Superior Court (Maricopa) and sentenced to death. On appeal, the conviction and sentence were affirmed. Bishop I, 118 Ariz. 263, 576 P.2d 122 (1978). The case was remanded for resentencing pursuant to State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978) and the death sentence was reimposed. This is the defendant's automatic direct appeal to the Arizona Supreme Court, consolidated with a review of the denial of the defendant's Rule 32 petition.

AGGRAVATING CIRCUMSTANCES:

(F)(6) (Heinous, Cruel or Depraved) - UPHELD

Cruel: Reversed. It is unclear whether the trial court made a separate cruelty finding, but the Court states that the evidence does not support a cruelty finding. The medical examiner testified that the victim would have been incapable of feeling pain after the first blows to the head with the claw hammer. The victim thrashed about and made gasping sounds, but according to medical testimony, would not have been conscious of pain.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. After striking one victim several times with a hammer, the defendant removed personal items from one victim, tied his legs together and dragged him to the edge of a mineshaft, then threw rocks on top of the victim as he lay twitching at the bottom of the mineshaft.
Relishing: Found. After throwing rocks on top of the victim's body in a mineshaft, the defendant cleaned up the area along with his codefendants, and as he drove away in the victim's car, he said "[g]oodbye Norman. I hope we never see you again."

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstances existed, but were not sufficiently substantial to call for leniency:

Lack of Criminal History
Cooperation with police
Low Intelligence/Lack of Education

The Court found that the defendant failed to prove by a preponderance of the evidence the existence of the following as mitigating circumstances:

(G)(2) Duress

JUDGMENT: Death sentence affirmed.


State v. Greenawalt, 128 Ariz. 150, 624 P.2d 828 (1981)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Yuma) of four counts of first-degree murder, two counts of armed robbery, three counts of kidnapping, and one count of theft of a motor vehicle. He was sentenced to death on each of the murder counts. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
The Court held that certified copies of prior first-degree murder convictions satisfy (F)(1) because those crimes are punishable by life imprisonment or death in Arizona.

(F)(2) (Prior Violent Felony) - UPHELD
The Court held that the photographs of the crime scene and testimony of law enforcement officials concerning the details of the prior crimes of violence (first-degree murder and robbery) committed by the defendant were highly relevant to the determination of whether a crime of violence had occurred, and thus were properly received by the trial court.

MITIGATING CIRCUMSTANCES:

None sufficiently substantial to call for leniency. The Court found that the defendant failed to prove by a preponderance of the evidence any of the following mitigating circumstances:

(G)(1) - Significant impairment
(G)(2) - Duress
(G)(3) - Minor participation
(G)(4) - Death not reasonably foreseeable

JUDGMENT: Death sentences affirmed.


State v. Superior Court (Gretzler II), 128 Ariz. 583, 627 P.2d 1081 (1981)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of first-degree murder and sentenced to death. The Arizona Supreme Court, in Gretzler I, 126 Ariz. 60, 612 P.2d 1023 (1980), remanded for resentencing. The state filed this special action to review the trial court's order precluding the state from using the defendant's nine California murder convictions as aggravating circumstances under the death penalty statute.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
The defendant's pleas to nine prior murder convictions in California were upheld as not void, and could be used as an aggravating circumstance under (F)(1).

(F)(2) (Prior Violent Felony) - UPHELD
The Court held that the defendant's convictions in California of nine murders could be used as aggravating circumstances, even though they were the result of a plea agreement premised in part on the California court's misunderstanding that those pleas would not affect any other charge in any other jurisdiction. The judgments were entered in good faith and there was no indication that the defendant was purposely misled, or that he pleaded to crimes he did not commit.

MITIGATING CIRCUMSTANCES:

There is no discussion of mitigating circumstances in this opinion.

JUDGMENT: The California judgments may be used as aggravating circumstances under the death penalty statute.


State v. Watson (Watson III), 129 Ariz. 60, 628 P.2d 943 (1981)

PROCEDURAL POSTURE:

The defendant was convicted in Superior Court (Pima) of first-degree murder and was sentenced to death. On appeal, the Arizona Supreme Court affirmed the conviction, but remanded for resentencing. , 114 Ariz. 1, 559 P.2d 121 (1976). On appeal following resentencing, the Arizona Supreme Court set aside the trial court's finding as to two aggravating circumstances and again remanded for resentencing. , 120 Ariz. 441, 586 P.2d 1253 (1978). The death sentence was imposed again and this is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
This finding was upheld based on a robbery conviction.

(F)(2) (Prior Violent Felony) - UPHELD
This finding was upheld based on a robbery conviction.

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstances existed and were sufficiently substantial to call for leniency in this case:

Model Prisoner
Age [21 years old at time of murder]
Victim's actions [evidence supports a finding that victim shot first (twice)]
Sentencing Disparity [codefendant received a life sentence]

JUDGMENT: Sentence reduced to life imprisonment without the possibility of parole for twenty-five years, due to mitigation.


State v. Vickers (Vickers I (Ponciano murder)), 129 Ariz. 506,633 P.2d 315 (1981)

PROCEDURAL POSTURE:

The defendant was convicted in Superior Court (Pinal) of first-degree murder and sentenced to death. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:(F)(1) (Prior Life or Death Felony) - UPHELD
Prior conviction for assault with a deadly weapon under former A.R.S. §13-249 was sufficient to establish this aggravating circumstance.

(F)(2) (Prior Violent Felony) - UPHELD
Prior conviction for assault with a deadly weapon under former A.R.S. §13-249 was sufficient to establish this aggravating circumstance.

(F)(6) (Heinous, Cruel or Depraved) - UPHELD

Cruel: Not addressed

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The Court found that the evidence of the numerous stab wounds, in addition to the carving of the word "Bonzai" in the victim's back reflected a mental state "marked by debasement." The cause of death was strangulation and the body sustained ten to twelve puncture wounds.
Mutilation: Found. The defendant carved the word "Bonzai" in the victim's back.

(F)(7) (Murder Committed while in Custody) - UPHELD
The defendant murdered his cellmate while incarcerated at the Arizona State Prison. The (F)(7) finding was not contested on appeal.

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstance existed, but was not sufficiently substantial to call for leniency:

Age [20 year-old at time of crime]

The Court found that the defendant failed to prove by a preponderance of the evidence the following mitigating circumstance:

(G)(1) - Significant Impairment [evidence proffered was of sociopathic/psychopathic personality].

The Court found that the following did not constitute a mitigating circumstance:

Shared responsibility of prison officials for the death of victim

JUDGMENT: Conviction and death sentence affirmed.



State v. Ricky Tison
 (Ricky Tison I), 129 Ariz. 526, 633 P.2d 335 (1981)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Yuma) of four counts of first-degree murder, three counts of kidnapping, two counts of armed robbery and theft of a motor vehicle. He was sentenced to death on the murder counts. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - DISCUSSED
The Court stated that the (F)(1) finding should have been made by trial court. The defendant was convicted of seventeen counts of assault with a deadly weapon for the events that took place at the prison in Florence and at his capture in Pinal County. The trial court believed that these charges could have been brought in a single information or indictment along with the charges in this case. The Court found that this viewpoint unduly limits the statutory reach of the legislation. These were separate criminal offenses, which took place at the prison and at the roadblock. They were punishable by life imprisonment and should have been considered as (F)(1) aggravating circumstances.

(F)(2) (Prior Violent Felony) - DISCUSSED
See discussion under (F)(1), above. These convictions would support both the (F)(1) and the (F)(2) aggravating circumstances. The felony convictions of assault necessarily involved the kind of violent behavior against which this aggravating circumstance is directed. Although some of these crimes occurred after the offenses now on review, they would still be sufficient to support an (F)(2) finding. The consideration of these convictions as aggravating circumstances serves the legitimate purpose of the statute to evaluate the character and propensities of the defendant.

(F)(3) (Grave Risk of Death to Others) - REVERSED
Because the four victims who were in the car the defendants wanted to steal to continue their escape from prison were "ruthlessly and intentionally murdered," this aggravating circumstance did not exist, even though some of the victims had been close enough physically so that each murder put others in a grave risk of danger.

(F)(5) (Pecuniary Gain) - UPHELD
Ricky Wayne Tison and his two brothers, Raymond and Donald, assisted in the escape of their father, Gary Tison, and Randy Greenawalt from the Arizona State Prison. After having car trouble, the group flagged down the victims, exchanged items between the defendants' car and the victims' car, stole some money and weapons from the victims, and all four victims were shot to death. The evidence indicated that the victims' car was stopped only after the defendants' car broke down. The victims' car and other property were stolen. The defendant indicated that the entire purpose of stopping the victims' car was to obtain an automobile. Because the Court had previously determined that this aggravating circumstance existed outside of hired killer situations under State v. Clark, 126 Ariz. 428, 616 P.2d 888 (1980), and that this circumstance could be found in a robbery-murder, it held that these murders were committed for financial gain.

(F)(6) (Heinous, Cruel or Depraved) - UPHELD

Cruel: Upheld.
Mental Anguish: Found. There was no evidence offered regarding pain suffered by the victims other than the medical testimony indicating that Theresa Tyson did not die instantly, but bled to death. However, the sentencing judge found that the victims must have experienced a great deal of mental anguish by being moved from the highway at gunpoint with the fear tat they would be killed, and by witnessing the murders of other family members. The Court found this analysis reasonable, but did not base its (F)(6) finding solely on cruelty, as it also found the murders to be heinous and depraved.
Physical Pain: See Mental anguish.

Heinous and Depraved: Upheld.
Senselessness: Found. The Court found these murders to be heinous and depraved because of the senselessness of the murders, the inability of the victims to stop the escape in such an isolated area, and the fact that a young child who posed no threat to the captors was shot in the arms of his mother. There were less violent alternatives available to prevent the captors' detection by the authorities than to slaughter the entire family. These demonstrate that the slayers had a shockingly evil state of mind.

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstances existed, but were not sufficiently substantial to call for leniency:

Age
Felony Murder conviction
Lack of Criminal History

The Court found that the defendant failed to prove the existence of the following as mitigating circumstances:

Duress
Minor Participation

JUDGMENT: Convictions and sentences affirmed.



State v. Raymond Tison (Raymond Tison I), 129 Ariz. 546, 633 P.2d 355 (1981)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Yuma) of four counts of first-degree murder, three counts of kidnapping, two counts of armed robbery and theft of a motor vehicle. He was sentenced to death on the murder counts. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - DISCUSSED
See discussion in Ricky Tison I, 129 Ariz. 526, 633 P.2d 335 (1981).

(F)(2) (Prior Violent Felony) - DISCUSSED
See discussion in Ricky Tison I, 129 Ariz. 526, 633 P.2d 335 (1981).

(F)(3) (Grave Risk of Death to Others) - REVERSED
Because the four victims who were in the car the defendants wanted to steal to continue their escape from prison were "ruthlessly and intentionally murdered," this aggravating circumstance did not exist, even though some of the victims had been close enough physically so that each murder put others in a grave risk of danger.

(F)(5) (Pecuniary Gain) - UPHELD
The victims were found in and around the car that the defendant and his companions used to assist in the escape of the defendant's father and Randy Greenawalt from the Arizona State Prison. After they abandoned that car, the defendant and his companions left the scene of the murders in the victims' automobiles. "Considering all the facts, the conclusion is justified that the homicides were committed to secure a vehicle with which to continue their flight." The Court concluded that this aggravating circumstance was "clearly established."

(F)(6) (Heinous, Cruel or Depraved) - UPHELD

Cruel: Not addressed

Heinous and Depraved: Upheld.
Senselessness: Found. The Court found these murders to be heinous and depraved because of the senselessness of the murders, the inability of the victims to stop the escape in such an isolated area, and the fact that a 22-month-old child who posed no threat to the captors was shot in the arms of his mother. There were less violent alternatives available to prevent the captors' detection by the authorities than to slaughter the entire family. These actions compel the conclusion that the slayers had a shockingly evil state of mind.

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstances existed, but were not sufficiently substantial to call for leniency:

Age
Felony Murder conviction
Lack of Criminal History

The Court found that the defendant failed to prove the existence of the following as mitigating circumstances:

(G)(2) Duress
(G)(3) Minor Participation

JUDGMENT: Convictions and sentences affirmed.



State v. Schad
 (Schad I), 129 Ariz. 557, 633 P.2d 366 (1981)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Yavapai) of first-degree murder and sentenced to death. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
The defendant was previously convicted of second-degree murder, which was sufficient to support the (F)(1) finding.

(F)(2) (Prior Violent Felony) - UPHELD
The defendant was previously convicted of second-degree murder where the victim was strangled. This conviction was sufficient to support the (F)(2) finding.

MITIGATING CIRCUMSTANCES:

The trial court found the fact that the defendant was a model prisoner was a mitigating circumstance, but the Court agreed that it was not sufficiently substantial to call for leniency.

The Court found that the defendant failed to prove the existence of the following as mitigating circumstances:

Residual doubt
Lack of intent to kill

JUDGMENT: Conviction and sentence affirmed.



State v. Britson
, 130 Ariz. 380, 636 P.2d 628 (1981)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of first-degree murder, armed robbery, and armed kidnapping. He was sentenced to death for the murder. After a hearing on a petition for post-conviction relief, the defendant was again sentenced to death. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - UPHELD
Prior out of state convictions for aggravated assault with a dangerous weapon, attempted murder, and aggravated battery were sufficient to support trial court's (F)(2) finding.

MITIGATING CIRCUMSTANCES:

None sufficiently substantial to call for leniency. The Court found that the defendant failed to prove the existence of the following as mitigating circumstances:

(G)(1) Significant impairment - Alcohol or drugs [intoxication]
Victim's actions [classic lover's triangle and victim had knife]
Sufficiency of evidence [conviction based on testimony of wife who hated him]

JUDGMENT: Conviction and death sentence affirmed.



State v. Rumsey
 (Rumsey I), 130 Ariz. 427, 636 P.2d 1209 (1981)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first- degree murder and armed robbery. He was sentenced to life imprisonment without the possibility of parole for twenty-five years on the murder conviction and to twenty-one years on the armed robbery conviction to be served consecutively. This is his appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - DISCUSSED
The trial court did not believe the (F)(5) pecuniary gain finding applied to situations other than contract killings based on State v. Madsen, 125 Ariz. 346, 609 P.2d 1046 (1980). When the defendant appealed his convictions and sentences, the State cross-appealed on this issue. Madsen was the law when this defendant was sentenced. However, only three months later, the Arizona Supreme Court clarified the issue in State v. Clark, 126 Ariz. 428, 616 P.2d 888 (1980), 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 facts here were that 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 he 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. Then the defendant dragged the victim off the road and threw some money at the witness.

MITIGATING CIRCUMSTANCES:

No discussion of mitigating circumstances in this opinion.

JUDGMENT: Convictions affirmed and armed robbery sentence affirmed. Life sentence for the murder conviction vacated, and remanded for resentencing. [Chief Justice Struckmeyer dissented from this opinion arguing that the life sentence should be affirmed where, as here, a resentencing opens the possibility that the death penalty could be imposed. He maintained that permitting a possible resentence of death where the State cross-appeals will have a chilling effect on a defendant with a life sentence and a meritorious appeal.]. On resentencing, the defendant was given the death sentence. On appeal from that resentencing, the Arizona Supreme Court held that because the defendant was originally given a sentence of life imprisonment, he could not constitutionally be given the death penalty at resentencing. The original sentence of life imprisonment operated as an acquittal of the death penalty. State v. Rumsey (Rumsey II), 136 Ariz. 166, 665 P.2d 48 (1983).



State v. Joseph Smith
 (Joseph Smith II), 131 Ariz. 29, 638 P.2d 696 (1982)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of two counts of first-degree murder and was sentenced to death on each of the murder counts. The Arizona Supreme Court remanded for resentencing pursuant to State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978), and the trial court again imposed the death penalty. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
Prior convictions for rape, rape in the first degree, and murder in the first degree were sufficient to support the (F)(1) finding. The defendant was sentenced to death on each of the murder counts in this case, and the finding of a prior conviction of murder was based, as to each victim, on the murder of the other victim.

(F)(2) (Prior Violent Felony) - UPHELD
Prior convictions for rape, rape in the first degree, and murder in the first degree were sufficient to support the (F)(2) finding. The defendant was sentenced to death on each of the murder counts in this case, and the finding of a prior conviction of murder was based, as to each victim, on the murder of the other victim.

(F)(6) (Heinous, Cruel or Depraved) - UPHELD

Cruel: Upheld. As to one of the victims, Neva Lee, the trial court found that she had been murdered by forcing dirt into her mouth and upper respiratory system and died of suffocation. She also suffered a stab wound near her vagina and tears to her vaginal area. For victim Sandy Spencer, the trial court determined that she died of suffocation just like Ms. Lee, and suffered 19 to 20 stab wounds to her groin and pelvic area. There was also a sewing needle embedded in her left breast.

Heinous and Depraved: Not addressed.

MITIGATING CIRCUMSTANCES:

None. The Court found that the defendant failed to prove by a preponderance of the evidence the existence of the (G)(1) mitigating circumstance, or any mental impairment at all.

JUDGMENT: Convictions and sentences affirmed.



State v. Ortiz
, 131 Ariz. 195, 639 P.2d 1020 (1982)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of first-degree murder, three counts of attempted first-degree murder, two counts of aggravated assault, arson of an occupied structure, first-degree burglary, and conspiracy to commit first-degree murder. The defendant was sentenced to death on the murder count. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - REVERSED
The basis for finding this aggravating circumstance was a conspiracy conviction entered at the same time as the murder conviction. The Court reversed the (F)(1) finding, stating that "a prior conviction must be entered prior to the time for which jeopardy attaches on the first-degree murder charge." Note: Subsequently, in State v. Gretzler, 135 Ariz. 42, 57 n.2 (1983), the Court explained this decision. The Court stated that convictions entered prior to a sentencing hearing may be considered regardless of the order in which the underlying crimes occurred, or the order in which the convictions were entered. To the extent any language in Ortiz suggests the contrary, it is disapproved. In Ortiz, "the trial court erred in considering a contemporaneous conviction for conspiracy to commit murder as aggravation for the murder. This exclusion from consideration is best understood as having been required because both convictions arose out of the same set of events."

(F)(3) (Grave Risk of Death to Others) - UPHELD
The defendant knowingly created a grave risk of death to three children when he tried to dispose of their mother's body by burning down the house with all four people inside. He stabbed two of the children and told all three to remain in the house until the fire department arrived. The Court rejected the defendant's argument that, as a matter of law, once the murder victim is dead, nothing the murderer does thereafter can be considered part of the "commission of the offense" within the meaning of (F)(3).

(F)(6) (Heinous, Cruel or Depraved) - UPHELD

Cruel: Reversed. The Court disagreed with the trial court that this crime was especially cruel because the state could not prove beyond a reasonable doubt that the victim suffered during the commission of the murder. The victim was stabbed many times, may have been strangled, and was set on fire by the defendant.

Heinous and Depraved: Upheld. The Court upheld this finding without discussion, but it appears that gratuitous violence may have been the basis for the finding. The victim was stabbed, may have been strangled, and was set on fire by the defendant. He then stabbed the victim's two young daughters and tried to set the house on fire. The two girls and the baby were able to escape. The Court found this murder to be "far more heinous and depraved than the norm of first-degree murders."

MITIGATING CIRCUMSTANCES:

None sufficiently substantial to call for leniency. The Court noted that the trial court found the following were not mitigating circumstances under the facts of this case:

Mental impairment - [ability to distinguish right from wrong]; Duress; Lack of intent to kill; Length of jury deliberations; Lack of criminal history; Intelligence; Good character; Good behavior in jail; and Likelihood of recidivism

JUDGMENT: Convictions and sentences affirmed.



State v. Blazak
 (Blazak II), 131 Ariz. 598, 643 P.2d 694 (1982)

PROCEDURAL POSTURE: The defendant was convicted of two counts of first-degree murder, one count of assault with intent to commit murder, and one count of attempted armed robbery, and was sentenced to death on the murder counts. His convictions and sentences were affirmed by the Arizona Supreme Court in Blazak I, 114 Ariz. 199, 560 P.2d 54 (1977). The Court ordered a resentencing, pursuant to State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978), and the defendant was again sentenced to death. The defendant unsuccessfully sought post-conviction relief. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
This aggravating circumstance was upheld without discussion. The trial court based its (F)(1) finding on prior convictions for robbery and assault with intent to commit murder.

(F)(2) (Prior Violent Felony) - UPHELD
This aggravating circumstance was upheld without discussion. The finding was based on the prior convictions for robbery and assault with intent to commit murder.

(F)(3) (Grave Risk of Death to Others) - UPHELD
The (F)(3) finding was upheld without any analysis. The defendant, while armed and wearing a ski mask, attempted to rob the bartender of the Brown Fox Tavern in Tucson. When the bartender refused to give him money, the defendant shot both him and a patron seated nearby. A third person was also wounded. The Court concluded that based on these facts, this murder constituted a grave risk to others in the bar at the time of the shooting.

(F)(5) (Pecuniary Gain) - UPHELD
The (F)(5) finding was upheld without extensive discussion. The facts supporting the finding are that Blazak attempted to rob the Brown Fox Tavern in Tucson. When the bartender refused to surrender his money, Blazak shot and killed him and a patron sitting nearby, then fled with an accomplice.

MITIGATING CIRCUMSTANCES:

There is no discussion of mitigating circumstances in this opinion. It is unclear what mitigation evidence, if any, was presented by the defendant. But the Court rejected the arguments made by the defendant in the context of a speedy trial type right in capital sentencing - the prejudices inherent in presenting mitigation evidence years after the crime, and oppression from receiving a second death sentence.

JUDGMENT: Death sentence affirmed.



State v. Valencia
 (Valencia III), 132 Ariz. 248, 645 P.2d 239 (1982)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of first-degree murder and sentenced to death. The Arizona Supreme Court remanded for resentencing, in Valencia I, 121 Ariz. 191, 589 P.2d 434 (1979), pursuant to State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978). The trial court again imposed the death penalty and the defendant appealed. The Arizona Supreme Court again remanded for resentencing before a different judge because the trial judge had spoken with the victim's family regarding the family's wishes regarding the death penalty. Valencia II, 124 Ariz. 139, 602 P.2d 807 (1979). On remand, the defendant was again sentenced to death. This is his automatic, direct appeal from that second resentencing.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
Prior convictions in Arizona of rape, kidnapping, and robbery were sufficient to support the (F)(1) finding.

(F)(2) (Prior Violent Felony) - UPHELD
Prior convictions in Arizona of rape, kidnapping, and robbery were sufficient to support the (F)(2) finding.

MITIGATING CIRCUMSTANCES:

The Court found the defendant's young age (16 years old at the time of the murder) a substantial and relevant factor that must be given "great weight."

JUDGMENT: The defendant's sentence was reduced to life imprisonment without the possibility of parole for twenty-five years, to be served consecutively to the forty to sixty year sentence on his rape conviction. This reduction was based on the defendant's young age, sixteen, at the time of the murder.



State v. Michael and Patrick Poland
 (Poland I), 132 Ariz. 269, 645 P.2d 784 (1982)

PROCEDURAL POSTURE: The defendants were convicted in Superior Court (Yavapai) of first-degree murder and were sentenced to death. This is the defendants' automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - DISCUSSED
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 Arizona Supreme Court decided State v. Clark, holding 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 the (F)(5) aggravating circumstance on retrial of the case.

(F)(6) (Heinous, Cruel or Depraved) - REVERSED
The Court restated the definitions of the terms "especially heinous, cruel, or depraved," as set forth in State v. Knapp, 114 Ariz. 531, 562 P.2d 704 (1977). The Court reaffirmed that cruelty consists of mental and physical pain inflicted on the victim, whereas heinousness and depravity focus on the mental state and attitude of the defendant as shown by his actions or words. 132 Ariz. at 285.

Cruel: Reversed.
Mental Anguish: Not addressed.
Physical Pain: Not found. No evidence of suffering by the security guard victims. No evidence that the guards had been "bound or injured prior to being placed in the water and there were no signs of a struggle."

Heinous or Depraved: Reversed. The Court noted that this finding focuses on the state of mind of the defendants and, although their state of mind may be inferred from their behavior, "we know nothing of the circumstances under which the guards were held hostage." The state failed to prove "beyond a reasonable doubt that the murders were committed in an `especially heinous, cruel or depraved manner.'" 132 Ariz. at 285.

MITIGATING CIRCUMSTANCES:

There is no discussion of mitigating circumstances in this opinion.

JUDGMENT: Convictions reversed and remanded for a new trial.


State v. Woratzeck, 134 Ariz. 452, 657 P.2d 865 (1983)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pinal) of first-degree murder, armed robbery and burglary of residential structure and was sentenced to death for the murder. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
The defendant killed Linda Louise Leslie, a 36-year old with the mental capacity of a 15-year old, who lived in a shed rented from the defendant and attached to his trailer. The defendant also robbed Leslie of approximately $107.00. In addition to the fact that the jury found defendant guilty of the robbery of Leslie, there was evidence that the defendant had been without money shortly before the murder. Witnesses testified that he had to borrow money to buy beer at a bar earlier on the evening of the murder. After the murder, the defendant had a sum of money almost identical to that taken from Leslie. The defendant's story that he won the money playing pool at the bar the previous evening was disputed by witnesses who said it would have been impossible to win that much money playing pool at that bar because any betting was always for small change.

(F)(6) (Heinous, Cruel or Depraved) - UPHELD

Cruel: Reversed. The Court found the evidence inconclusive as to whether the victim suffered in such a way as to support a cruelty finding. However, the Court reiterated the pathologist's testimony that the blows to the head were inflicted last and were the cause of death. The victim was also strangled and stabbed three times in the chest before she suffered the two blows to the head. The victim suffered from Huntington's disease and had the mental capacity of a fifteen-year-old.

Heinous or Depraved: Upheld
Gratuitous Violence: Found. The violence committed against the victim was well beyond the point necessary to fulfill a plan to steal or even to kill. The victim suffered from Huntington's disease, lacked coordination, and had the mental capacity of a fifteen-year-old. She had been strangled, stabbed three time, struck on the head twice, and her house and body burned.
Helplessness: Found. The murder was heinous or depraved in part because the victim was physically helpless. The victim had Huntington's disease, lacked coordination, and had the mental capacity of a fifteen-year-old. The Court found that during the attack she would have most likely not understood what was happening and would have been physically helpless.

MITIGATING CIRCUMSTANCES:

The Court found that the defendant failed to prove by a preponderance of the evidence the following mitigating circumstance:

(G)(1) - Significant impairment - [by intoxication]

JUDGMENT: Conviction and death sentence affirmed.




State v. Gretzler
(Gretzler III), 135 Ariz. 42, 659 P.2d 1 (1983)

PROCEDURAL POSTURE:

The defendant was convicted in Superior Court (Pima) of two counts of first-degree murder and was sentenced to death for each of the murders. On direct appeal, the Arizona Supreme Court remanded the case for resentencing. State v. Gretzler, 126 Ariz. 60, 612 P.2d 1023. The trial court resentenced the defendant to death and this is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
Nine prior convictions for first-degree murder were sufficient to support the finding of this aggravating circumstance.

(F)(2) (Prior Violent Felony) - UPHELD
Nine prior convictions for first-degree murder were sufficient to support the finding of this aggravating circumstance.

(F)(5) (Pecuniary Gain) - UPHELD
The Court reiterated that this aggravating circumstance is not limited to contract killings, but rather, includes any murder committed for financial gain. After killing the Sandbergs, Gretzler took their automobile, credit cards, blank checks and camera. These facts reflect a financial motivation. Like State v. Tison, 129 Ariz. 546, 633 P.2d 355 (1981), the victims here were murdered to obtain a car to continue the defendant's flight. Gretzler stated "we needed their car. So we tied them up and did them in."

(F)(6) (Heinous, Cruel or Depraved) - UPHELD

Cruel: Upheld. "[C]ruel: disposed to inflict pain esp. in a wanton, insensate or vindictive manner: sadistic." 135 Ariz. at 51 (quoting State v. Knapp, 114 Ariz. 531, 543, 562 P.2d 704, 716 (1977)). "[C]ruelty involves the pain and distress visited upon the victims . . . ." "[O]ur concept of cruelty involves not only physical pain, but also `mental * * * distress visited upon the victims.'" "Where, however, there is no evidence that the victims actually suffered physical or mental pain prior to death, or where the evidence presented is inconclusive, we have held that cruelty was not shown." 135 Ariz. at 51.
Mental Anguish: Found. Both victims "suffered mental anguish as a result of being held prisoner for an extended period." Due to captivity, the female victim was highly emotional and had to take medication while being held prisoner. The victims "knew that their captors were armed, hiding from the police, and anxious to escape. It may be inferred that throughout their imprisonment, they were uncertain as to their ultimate fate. This uncertainty had to be intensified when they were taken to separate rooms, bound and gagged." 135 Ariz. at 53 (citing Steelman II). The female victim "had to endure the unimaginable terror of having her husband shot to death within her hearing, and then having to wait for her own turn to come." 135 Ariz. at 53.
Physical Pain: Found. The Court stated that "[t]he Sandbergs clearly suffered the kind of `mental and physical distress' we have held constitutes cruelty." 135 Ariz. at 53 (citing State v. Tison, 129 Ariz. 526, 543, 633 P.2d 335, 352 (1981)). The male victim was tied up in a crouched position for a sustained period. Twine was used to tie his ankles to his neck with the twine running up his back and around his neck in a V-pattern such that it would cause choking if he straightened his legs. The Court did not relate any facts of the female victim's physical distress or pain. It is unclear whether the Court, despite its statement that the couple suffered mental and physical distress, actually found physical-based cruelty with respect to the female victim.

Heinous or Depraved: Not found by trial court.
Although the trial court found cruelty as support for the (F)(6) aggravating circumstance, and did not address heinousness or depravity, the Arizona Supreme Court provided a lengthy analysis of "heinous or depraved" in response to the defendant's argument that the entire "heinous, cruel or depraved" circumstance was unconstitutionally broad and vague. The Court restated the specific factors that were "suggested" in its prior decisions as supporting a finding of heinousness or depravity. Those factors are: relishing, infliction of gratuitous violence, mutilation, senselessness, and helplessness.
Gratuitous Violence: The Court referred to gratuitous violence as a factor supporting heinousness or depravity, but did not apply the factor to this case.
Mutilation: The Court referred to mutilation as a factor supporting heinousness or depravity, but did not apply the factor to this case.
Relishing: The Court referred to relishing as a factor supporting heinousness or depravity, but did not apply the factor to this case.
Senselessness: The Court referred to senselessness as a factor supporting heinousness or depravity, but did not apply the factor to this case.
Helplessness: The Court referred to helplessness as a factor supporting heinousness or depravity, but did not apply the factor to this case.

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstances existed, but were not sufficiently substantial to call for leniency:

(G)(1) - Significant impairment - [continuous drug use impaired volitional capabilities]
Difficult Childhood/Family history
Favorable adjustment to prison

JUDGMENT: Convictions and sentences affirmed.



State v. Zaragoza
, 135 Ariz. 63, 659 P.2d 22 (1983)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder and was sentenced to death. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - UPHELD
Prior convictions for assault with a deadly weapon and aggravated assault sufficient to support trial court's finding of this aggravating circumstance. Both offenses involved the actual use of violence on another person.

(F)(6) (Heinous, Cruel or Depraved) - UPHELD
The Court reiterated the definitions of the terms "especially heinous, cruel, or depraved," as set forth in State v. Knapp, 114 Ariz. 531, 562 P.2d 704 (1977), and reaffirmed its holding in State v. Poland, 132 Ariz. 269, 645 P.2d 784 (1982), establishing that cruelty consists of mental and physical pain inflicted on the victim, whereas heinousness or depravity focuses on the defendant's state of mind. The Court also recognized "that all first degree murders are heinous, cruel, or depraved to a degree. In order to fall within §13-751(F)(6), however, a murder must be especially heinous, cruel, or depraved. There must be something about the murder that sets it apart from the norm of first degree murder." 135 Ariz. at 68.

Cruel: Not found by trial court. Supreme Court agreed.
Mental Anguish: Not addressed.
Physical Pain: Not found. Consciousness of the victim at the time she received the blows to her head could not be established and there was no evidence that she suffered great pain.

Heinous or Depraved: Upheld.
Senselessness: Found. The Court found that the defendant could have "accomplished whatever criminal goals he desired without killing her. . . We find that by sexually assaulting Winifred Duggan and senselessly killing her, knowing full well that by virtue of her advanced age and limited mental capabilities she was easy prey, appellant demonstrated a shockingly evil and corrupt state of mind." 135 Ariz. at 69-70.
Helplessness: Found. The Court held that the seventy-eight-year-old victim had limited mental capacity and was, therefore, easily manipulated, which rendered her helpless.

MITIGATING CIRCUMSTANCES:

None sufficiently substantial to call for leniency. The Court found that the defendant failed to prove the existence of the following as mitigating circumstances:

(G)(1) - Significant impairment - [intoxication]
Felony murder instruction/Lack of intent to kill

JUDGMENT: Convictions and sentences affirmed.



State v. Gerlaugh
 (Gerlaugh I), 134 Ariz. 164, as supplemented by 135 Ariz. 89, 659 P.2d 642 (1983)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder and was sentenced to death. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

F(5) (Pecuniary Gain) - UPHELD
The evidence established that the defendant and two companions decided to hitchhike into Phoenix and to rob whomever offered them a ride. They were picked up by the victim and the defendant pointed a gun at him and demanded his money. The victim wrestled the gun from the defendant, but was knocked down and beaten. The defendant's companions held the victim down, while the defendant ran over him several times with the car, and finally, stabbed him with a screwdriver multiple times. The Court found that the facts amply support the conclusion that the taking of the victim's money was the motivation for the crime. "It is well settled that in this type of robbery/murder situation, the pecuniary gain circumstance is established."

F(6) (Heinous, Cruel or Depraved) - UPHELD
The majority of the Court upheld the trial court finding of F(6) without comment. Justice Cameron, in his concurring opinion, set forth his reasoning for upholding the F(6) factor. "I agree that the death penalty is appropriate in the instant case. I feel, however, that the imposition of this most serious sanction requires a more thorough enunciation of our reasons than is contained in the supplemental opinion." 135 Ariz. at 90 (concurring opinion).

Cruel: Upheld.
Mental Anguish: Found. See Physical Pain.
Physical Pain: Found. The Court held that "[b]efore murdering the victim, the killers subjected him to severe beatings for a period lasting between ten and fifteen minutes. With the victim still struggling, two of his assailants held him down to the road while the third, Gerlaugh, got into the victim's car and ran him over with it several times. The evidence shows that although the victim was badly hurt, he was still conscious at this time, and in fact began pleading with his assailants to tell him the reason for their attack. Defendant Gerlaugh then took a screwdriver from the rear of the car, which was used to stab the victim numerous times until his death. By killing Schwartz in this manner, the murderers caused him to suffer pain to an extent which clearly constitutes cruelty under our sentencing statute."

Heinous or Depraved: Not addressed.

MITIGATING CIRCUMSTANCES:

None sufficiently substantial to call for leniency. The Court found the defendant failed to prove that his youthful age at the time of the murder (19 years old) was a substantial mitigating circumstance, in light of his individual maturity and experience.

JUDGMENT: Conviction and sentence affirmed.



State v. Graham
, 135 Ariz. 209, 660 P.2d 460 (1983)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Mohave) of one count of first-degree murder and was sentenced to death. This is the defendant's automatic direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
Citing State v. Clark, 126 Ariz. 428, 616 P.2d 888 (1980), the Court looked to the defendant's statements that he went to the victim's house to rob him and that he did rob the victim after shooting him, to conclude that this aggravating circumstance exists.

(F)(6) (Heinous, Cruel or Depraved) - REVERSED

Cruel: Reversed.
Mental Anguish: Not found. See Physical Pain.
Physical Pain: Not found. The defendant knocked on the door to the victim's house, and when the victim turned on the lights and opened the door, defendant turned and fired twice in rapid succession through the still closed screen door. The victim was shot once in the head and once in the chest. The medical examiner testified that in his opinion the victim was rendered unconscious immediately, died within five minutes and did not suffer.

Heinous or Depraved: Reversed.
Relishing: Not found. Two witnesses testified that defendant smiled as he told them the victim "squealed like a rabbit" when he was shot. However, the Court was not convinced that this, even if true, proved defendant relished the crime. The Court pointed to evidence that characterized defendant as an extremely immature person who was easily influenced by others, particularly by one of the testifying witnesses, and concluded that any statements made by defendant about the killing "are more likely attributable to his immaturity, nervousness and need to impress his peers than to a hardened attitude towards the death of another."

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstances existed and were sufficiently substantial to call for leniency:

(G)(1) - Significant impairment - [drug intoxication, chronic drug abuse, neurological problems, brain damage]
Lack of criminal history
Age - [21 years old at time of murder

JUDGMENT: Conviction affirmed, but death sentence reduced to life imprisonment without possibility of parole for twenty-five years, after reweighing mitigating circumstances against the one remaining aggravating circumstance, pecuniary gain.



State v. Jeffers
, 135 Ariz. 404, 661 P.2d 1105 (1983)

PROCEDURAL POSTURE:

The defendant was convicted in Superior Court (Pima) of first-degree murder and sentenced to death. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(3) (Grave Risk of Death) - REVERSED
While the defendant was killing his victim by injecting her with heroin, Doris walked in on him. He pointed his gun at Doris, ordered her to be quiet, and then returned to the victim, whom he strangled. The trial court believed the defendant would have killed Doris had she not complied, but the Court disagreed, saying it appeared the defendant never intended to harm Doris. The Court said that the act of pointing a gun at someone by itself does not establish this aggravating circumstance.

(F)(6) (Heinous, Cruel or Depraved) - UPHELD

Cruel: Reversed.
Mental Anguish: Not found. Victim was injected with heroin, after which she lost and never regained consciousness. Since she was unconscious, there was no mental anguish.
Physical Pain: Not found. Because the victim was unconscious, she experienced no pain.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. "[C]ourts may consider the murderer's acts after the victim's death in determining if this aggravating factor exists." 135 Ariz. at 429. Defendant "climbed on top of the dead victim and hit her in the face several times which eventually resulted in additional wounds and bleeding."
Relishing: Found. "[W]hile Jeffers was beating the victim he called her `a bitch and a dirty snitch' and with each striking blow said, `This one is for so and so. [naming several names].'" 135 Ariz. at 430.

MITIGATING CIRCUMSTANCES:

None sufficiently substantial to call for leniency. The Court found that the defendant failed to prove the existence of the following mitigating circumstances:

(G)(1) - Significant impairment - [from drugs]
Victim's actions - [stormy relationship/heat of passion]
Residual doubt/Claim of innocence

It appears that the Court agreed with the trial court that the following mitigating circumstances existed:

Stress - [had some reason to be provoked]
Drug intoxication - [ingested heroin on the day of murder]

JUDGMENT: Conviction and sentence affirmed.


State v. Gillies (Gillies I), 135 Ariz. 500, 662 P.2d 1007 (1983)

PROCEDURAL POSTURE:

The defendant was convicted in Superior Court (Maricopa) of first-degree murder, kidnapping, sexual assault, aggravated robbery, and computer fraud. The defendant was sentenced to death on the first-degree murder count. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - REVERSED
The trial court found this aggravating circumstance based on a prior conviction for theft. The trial court allowed the victim in the prior theft case to testify regarding the violent circumstances of that crime. The Court held that the trial court incorrectly applied the (F)(2) aggravator. The prior conviction must be for a felony that by its statutory definition involves violence or the threat of violence on another person. Allowing a victim to testify regarding a prior crime violated due process.

(F)(5) (Pecuniary Gain) - 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.

(F)(6) (Heinous, Cruel or Depraved) - UPHELD

Cruel: Upheld.
Mental Anguish: Found. Victim "was transported from Phoenix to the Superstitions not knowing her fate. . . . The victim clearly suffered both physical pain and mental anguish." 135 Ariz. at 513.
Physical Pain: Found. Victim was repeatedly raped, then thrown off a forty-foot cliff, then further brutalized and beaten into unconsciousness prior to her death. "We find an abundance of evidence of cruelty and that the statutory aggravating circumstance of `especially cruel, heinous or depraved' is present." 135 Ariz. at 513.

Heinous or Depraved: Not addressed. "Because the finding of cruelty is so compelling, it is unnecessary to make specific findings of heinousness and depravity."

(F)(7) (Murder Committed while in Custody) - REVERSED
The trial court found that the defendant committed the murder 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 §13-751(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 §13-751(F)(7) does not apply to one who is on unsecured work furlough status.

MITIGATING CIRCUMSTANCES:

The Court found the defendant's age at the time of the murder (20 years old) was a mitigating circumstance but not sufficiently substantial to call for leniency. The Court found that the defendant failed to prove the existence of the following mitigating circumstances:

(G)(1) - Significant Impairment
Mental Disorder
Intoxication
Felony Murder/Lack of intent to kill
Sentencing Disparity

JUDGMENT:
Convictions and death sentence affirmed. In a supplemental opinion, the Court remanded for resentencing on the first-degree murder count because the Court had struck down three of the four aggravating circumstances found by the trial court. "Law and policy would indicate that the trial judge should again make the determination required by A.R.S. §13-751(F)."


State v. McMurtrey (McMurtrey I), 136 Ariz. 93, 664 P.2d 637 (1983)

PROCEDURAL POSTURE:

The defendant was convicted in Superior Court (Pima) of two counts of first-degree murder and attempted first-degree murder and was sentenced to death on each of the murder counts. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(3) (Grave Risk of Death to Others) - UPHELD
The defendant was involved in a shooting at the Ranch House Bar in Tucson. Following an altercation, he left the bar, obtained a gun, returned to the bar and shot the three victims. He killed two people and wounded a third. The Court agreed with the trial court that the bar was crowded that night and that there were between five to nine other people in the immediate area of the victims when they were shot. When the defendant emptied his gun at the victims, he created a grave risk of death to those other people.

MITIGATING CIRCUMSTANCES:

The Court remanded to the trial court for resentencing because the trial judge did not properly consider the mitigating evidence of impairment offered by the defendant. The trial court must first evaluate evidence regarding the defendant's mental condition to determine if it satisfies the requirements of the (G)(1) mitigating circumstance. The trial court did that here, and found that the defendant had an antisocial personality. Because the trial court concluded that those kinds of character defects are not mitigating under Arizona law, no further evaluation of that evidence occurred. Under Lockett and Watson, the inquiry should not end there. The trial court must examine the evidence further "to determine whether it in some other way suggested that [the defendant] . . . should be shown leniency."

JUDGMENT: Convictions and sentence for attempted first-degree murder affirmed. Remanded for resentencing on the murder counts, directing the trial judge to fully consider the mitigation evidence.


State v. McDaniel (McDaniel II), 136 Ariz. 188, 665 P.2d 70 (1983)

PROCEDURAL POSTURE: The defendant was tried four times on the first-degree murder charge that is the subject of this appeal. In the first trial, a motion for new trial was granted. After the second trial, the defendant's conviction was reversed by the Arizona Supreme Court on direct appeal. State v. McDaniel, 127 Ariz. 13, 617 P.2d 1129 (1980). The third trial resulted in a mistrial. In the fourth trial the defendant was convicted of first-degree murder, robbery, and kidnapping, and was sentenced to death for the murder. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(6) (Heinous, Cruel or Depraved) - UPHELD

Cruel: Upheld.
Mental Anguish: Found. The Court did not distinguish between mental anguish and physical pain in its cruelty analysis. The Court found that evidence existed that the victim was conscious after being beaten, gagged, tied, wrapped in a blanket and locked in the trunk of his car. While being driven to an apartment complex where he was abandoned, the victim was "banging" in the trunk. "These facts, aggravated by the extreme August heat, indicate that [victim] suffered prior to his death as a result of the defendant's actions."
Physical Pain: Found. See Mental Anguish.
Knew or Reason to Know that Victim Would Suffer: Found. The Court stated that "under these circumstances McDaniel should have foreseen the victim's suffering."

Heinous or Depraved: Not addressed.

MITIGATING CIRCUMSTANCES:

The Court the defendant's lack of intent to kill was a mitigating circumstance sufficiently substantial to call for leniency. Whether a defendant intended to kill is an important consideration when deciding if the death penalty is an appropriate sentence. American criminal law has long considered a defendant's intentions, and therefore his moral guilt, to be crucial to the degree of his criminal culpability. McDaniel and several others participated in robbing, beating, gagging and tying the victim, then locking him in the trunk of his own car. The car was then driven to an apartment complex and abandoned. But there was a "good deal of evidence" suggesting that McDaniel and his accomplices did not intend to kill the victim. The car in which the victim was locked was left in an apartment complex where people would likely hear him inside the trunk. The windows to the car were left open and the keys were in the ignition so that someone walking by who heard the victim could let him out. Moreover, the jury's general verdict finding McDaniel guilty of first-degree murder did not establish his intent to kill since the jury could have convicted on either a premeditation or a felony-murder theory.

JUDGMENT: Convictions and noncapital sentences affirmed. The death sentence was reduced to life imprisonment without the possibility of parole for 25 years.


State v. Adamson (Adamson II), 136 Ariz. 250, 665 P.2d 972 (1983)

PROCEDURAL POSTURE:

The defendant pleaded guilty to second-degree murder and testified against James Robison and Max Dunlap. The convictions of Robison and Dunlap were reversed and remanded. Adamson refused to testify at the new trials without further consideration. Defendant was held in breach of his plea bargain and first-degree murder charges were reinstated. The defendant was convicted in Superior Court (Maricopa) of first-degree murder and was sentenced to death. This is the defendant's direct appeal of his death sentence to the Arizona Supreme Court, along with an appeal of the denial of his petition for post-conviction relief.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
There has never been any question that this aggravating circumstance applies to hired killers. Here, Adamson told a witness that he would be receiving $10,000.00 for the murder. He also told this same witness that he was not worried about his defense because he had some money coming in and "his people" would be taking care of court costs. Adamson also appeared at an office in Phoenix three times to pick up his payment after the murder.

(F)(6) (Heinous, Cruel or Depraved) - UPHELD

Cruel: Upheld.
Mental Anguish: Found. Victim was conscious during bombing as evidenced by his screams.
Physical Pain: Found. "The victim clearly suffered in the instant case." 136 Ariz. at 266. Witnesses heard the victim screaming for help. Bomb fragments were imbedded in the victim's body. One leg was shattered from his upper hip to his ankle and had the "appearance of hamburger." 136 Ariz. at 266. Victim's other leg and arm were "severely mutilated." "The force of the explosion sent a piece of flesh the size of a softball across the parking lot."
Knew or Reason to Know that Victim Would Suffer: Found. "The defendant must also intend that the victim suffer or reasonably foresee that there is a substantial likelihood that the victim will suffer as a consequence of the defendant's acts. . . . The means used to kill Bolles made it reasonably foreseeable to Adamson that if Bolles did not die instantaneously there was a substantial likelihood that he would suffer a great deal from his injuries."

Heinous or Depraved: Not addressed.

MITIGATING CIRCUMSTANCES:

The Court considered the following in mitigation, but found they were not sufficiently substantial to call for leniency:

Cooperation with federal and state authorities
Length of legal proceedings

JUDGMENT: Conviction and sentence affirmed.



State v. Richmond
 (Richmond II), 136 Ariz. 312, 666 P.2d 57 (1983)

PROCEDURAL POSTURE: The defendant was convicted of first-degree murder in 1974 and he received a death sentence. On direct appeal, the Arizona Supreme Court affirmed the conviction and sentence, but later vacated the death sentence pursuant to State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978), and remanded for resentencing. The defendant was resentenced to death after a new sentencing hearing. This is the defendant's direct appeal to the Arizona Supreme Court, along with an appeal of the denial of his petition for post-conviction relief.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
Prior conviction for murder was sufficient to support the trial court's finding of this aggravating circumstance, even though the conviction was obtained after the conviction in this case, but before resentencing.

(F)(2) (Prior Violent Felony) - UPHELD
Prior conviction for murder and kidnapping were sufficient to support a finding of this aggravating circumstance, even though the convictions were obtained after the conviction in this case, but before resentencing.

(F)(5) (Pecuniary Gain) - NOT ADDRESSED
The (F)(5) aggravating circumstance was not addressed because it was not found by trial judge in the initial sentencing. The trial judge believed that this aggravating circumstance only applied in contract killings. The defendant's initial sentencing occurred prior to the decision in State v. Clark, 126 Ariz. 428, 616 P.2d 888 (1980), where the Arizona Supreme Court specifically held that the pecuniary gain factor was not limited to contract killings.

(F)(6) (Heinous, Cruel or Depraved) - REVERSED
The death sentence was upheld by a majority of the justices (4-1), however, the aggravating circumstance of "especially cruel, heinous, or depraved" was only found by two justices Holohan and Hays. Justices Cameron, Gordon and Feldman did not find that this aggravating circumstance existed.

Cruel: Reversed.
Mental Anguish: Not addressed.
Physical Pain: Not found. None of the justices found the murder "especially cruel," because "there is no evidence in the record to indicate the victim suffered more pain than that of the initial blow which rendered him unconscious." 136 Ariz. at 319.
Knew or Reason to Know that Victim Would Suffer: Not addressed.

Heinous or Depraved: Reversed (3 justices).
Gratuitous Violence: Not found.
Holohan & Hays: Found. The opinion refers to "gratuitous violence," but does not distinguish facts that support gratuitous violence from the facts supporting mutilation. See Mutilation.
Cameron & Gordon: Not found. Victim was killed by being run over by an automobile. "There is no evidence to suggest that the defendant knew or should have known that the victim was dead after the first pass of the car." 136 Ariz. at 323. "There has been no showing that this defendant inflicted any violence on the victim which he must have known was `beyond the point necessary to kill.'" 136 Ariz. at 323.
Feldman: Not found. In his dissenting opinion, Justice Feldman agrees with Justices Cameron and Gordon that this murder is not heinous and depraved, but does not make any specific findings as to gratuitous violence.
Mutilation: Not found.
Holohan & Hays: Found. Victim was unconscious and bleeding when the defendant ran over the victim twice from different directions. The defendant ran over the victim's head, crushing his skull and killing the victim, then defendant ran over the victim's body. Two large pools of blood, approximately 30 feet apart, at the crime scene were consistent with the body being run over and dragged to the location where it was found. The facts demonstrate "ghastly mutilation" of the victim. The two justices found the crime to be "especially heinous," but stated that it could also be found "especially depraved." 136 Ariz. at 323.
Cameron & Gordon: Not found. "Here there is no suggestion of distinct acts, apart from the killing specifically performed to mutilate the victim's body. Any disfigurement of the victim in this case was the direct result of the killing itself. I do not believe we should stretch the definition of `mutilation' to cover all murders in which the victim's body is disfigured, where there is not indication of a separate purpose to mutilate the corpse." 136 Ariz. at 323. Heinousness and depravity focus on the killer's state of mind, not on the appearance of the corpse.
Feldman: Not found. In his dissenting opinion, Justice Feldman agrees with Justices Cameron and Gordon that this murder is not heinous and depraved, but does not make any specific findings as to mutilation.

MITIGATING CIRCUMSTANCES:

The Court noted that the following were proffered in mitigation, but did not make any specific findings with regard to the proffered evidence:

Sentencing disparity
Victim's actions
Felony murder instruction
Family support
Changed character

JUDGMENT: Conviction and death sentence affirmed.



State v. Harding
 (Wise, Concannon murders), 137 Ariz. 278, 670 P.2d 383 (1983)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of two counts of first-degree murder, two counts of robbery, two counts of kidnapping and theft. The defendant was sentenced to death for each of the murders. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
Prior convictions in Arizona of dangerous or deadly assault by prisoner, and two counts of first-degree murder were sufficient to support trial court's finding of the (F)(1) aggravating circumstance.

(F)(2) (Prior Violent Felony) - UPHELD
Prior conviction and sentence to life imprisonment for dangerous or deadly assault by prisoner were sufficient to support trial court's finding of this aggravating circumstance. This felony involves commission of an assault "using or exhibiting a deadly weapon or dangerous instrument," or the knowing or intentional infliction of "serious physical injury" on the assaulted party. The Court also considered the facts of the conviction, that the defendant had struck a fellow inmate several times with a dart discharged through a blowgun, in upholding this aggravating circumstance.

(F)(5) (Pecuniary Gain) - UPHELD
Sufficient evidence supported a finding that Harding committed the murders in the course of obtaining valuable personal property from his victims. Harding killed two businessmen in a Tucson motel room, after first binding them and then removing clothing, a briefcase and credit cards from one of the victims. Harding left the scene of the murders in a car that had been in the possession of one of the victims. This "sequence of binding, robbing and leaving helpless the victims while stealing their auto," supported the (F)(5) finding.

(F)(6) (Heinous, Cruel or Depraved) - UPHELD

Cruel: Reversed.
Mental Anguish: Not found. "Because there is no evidence beyond a reasonable doubt that the victims were conscious, the state's evidence fails to establish that this sadistic treatment was especially cruel to the victims." Physical Pain: Not found. See Mental Anguish.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The right side of one victim's face was severely bruised and abraded. His right ear lobe was nearly severed. His jaw was broken, with bone fragments, and it was displaced from its normal position. "The nature and location of the damage sustained required a number of blows to the victim's face while the victim was stationary." "The savage beating of [victim], regardless of its timing, reflects a depraved mental state. The same is true of the treatment given [the other victim], who was perversely gagged."
Mutilation: Found. "Even if the beating with the lamp base occurred after the victim's decease, we still find this to be an act of gratuitous violence and a debasement of a corpse bordering on `mutilation of the victim.'"
Helplessness: Found. "The helplessness of the victim plus the gratuitous nature of the bludgeoning, beyond the point necessary to rob or to dispatch the victims by shooting, renders the beating apart from the usual or the norm, and it is therefore depraved."

MITIGATING CIRCUMSTANCES:

The defendant chose not to present any evidence in mitigation, despite the trial court's urging him to do so. The trial court found no mitigating circumstances, and upon a review of the entire record, the Court found no "conclusive evidence tending to show mitigation" of the death sentences.

JUDGMENT: Convictions and consecutive death sentences affirmed.



State v. Jordan
 (Jordan III), 137 Ariz. 504, 672 P.2d 169 (1983)

PROCEDURAL POSTURE:
The defendant was convicted in Superior Court (Maricopa) of first-degree murder and sentenced to death in 1975. After the judgment was affirmed on appeal, State v. Jordan, 114 Ariz. 452, 561 P.2d 1224 (1976), vacated, 438 U.S. 911, 98 S.Ct. 3138, 57 L.Ed.2d 1157 (1978)(Jordan I), the case was remanded pursuant to the Arizona Supreme Court's decision in State v. Watson, and the defendant was again sentenced to death. That second death sentence was again affirmed on appeal by the Arizona Supreme Court. Jordan II, 126 Ariz. 283, 614 P.2d 825 P.2d 825 (1980) (pecuniary gain aggravator found by the trial court, but not considered by the Arizona Supreme Court on appeal). The Arizona Supreme Court set the date for execution at March 23, 1983, and on February 16, 1983, the defendant filed a Rule 32 petition. The Superior Court denied the petition and the Arizona Supreme Court stayed the execution on appeal to hear the Rule 32 petition. This is the ruling from that appeal.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
The Court reiterated that the defendant's arguments against the use of his four prior felony convictions had already been heard and rejected in Jordan I, and that these prior convictions had been proven beyond a reasonable doubt at trial.

(F)(2) (Prior Violent Felony) - UPHELD
The defendant argued that his prior felony convictions were not proven beyond a reasonable doubt. The Court found that there was sufficient evidence in the record to prove the existence of the prior convictions and affirmed that these convictions were sufficient to support the (F)(2) finding. See Jordan I and Jordan II.

(F)(5) (Pecuniary Gain) - UPHELD
The trial court's (F)(5) finding at resentencing was lawful, but the Court did not consider it here .

MITIGATING CIRCUMSTANCES:

There is no discussion of mitigation in this opinion. See review of mitigation in Jordan II.

JUDGMENT: Case remanded to the trial court to hold an evidentiary hearing on the defendant's Rule 32 petition. After remand for resentencing in accordance with this opinion, the trial court sentenced the defendant to life imprisonment without the possibility of parole for twenty-five years.



State v. Lambright
, 138 Ariz. 63, 673 P.2d 1 (1983)

PROCEDURAL POSTURE: The defendant was convicted in the Superior Court (Pima) of first-degree murder, kidnapping, and sexual assault. This is the defendant's automatic, direct appeal to the Arizona Supreme Court. State v. Smith, 138 Ariz. 79, 673 P.2d 17 (1983), is a companion case.

AGGRAVATING CIRCUMSTANCES:

(F)(6) (Heinous, Cruel or Depraved) - UPHELD

Cruel: Upheld.
Mental Anguish: Found. The victim was abducted and driven away from the city. She was scared and trembling. The victim was sexually assaulted, taken to an isolated location and put in fear for her life "as evidenced by her asking her captors if they intended to let her go." 138 Ariz. at 75. The victim was sexually assaulted a second time and then killed.
Physical Pain: Found. "[T]he manner of killing was one which was physically painful to the victim." 138 Ariz. at 75. The victim was choked, stabbed in the chest and abdomen with the knife being twisted and turned inside the body, and her throat was cut deeply. "After these attacks she remained alive and was still conscious, as she raised herself up on one elbow when her assailants turned to leave. The defendant then threw a large boulder down on her head." 138 Ariz. at 75.

Heinous or Depraved: Upheld.
Relishing: Found. "[W]hen the defendant was arrested one year after the murder he was wearing a necklace with a charm that had belonged to Ms. Owen." 138 Ariz. at 75. Defendant had kept the necklace as a souvenir of the trip. "A heinous and depraved state of mind is also demonstrated by Lambright's participation in the macabre celebration of the killing during which the group played the song `We are the Champions.'" 138 Ariz. at 75.

MITIGATING CIRCUMSTANCES:

None sufficiently substantial to call for leniency. The Court noted the following mitigating circumstances proffered by the defendant, but it is unclear whether the Court found them to be mitigating circumstances here:

Lack of criminal history - [for violent crime]
Military service
Difficult childhood/Family history
Sentencing disparity - [Court agreed that grant of immunity was "appalling"]

JUDGMENT: Convictions and sentences affirmed.



State v. Robert Smith
, 138 Ariz. 79, 673 P.2d 17 (1983)

PROCEDURAL POSTURE: The defendant was convicted in the Superior Court (Pima) of first-degree murder, kidnapping, and sexual assault. This is defendant's automatic, direct appeal to the Arizona Supreme Court. State v. Lambright, 138 Ariz. 63, 673 P.2d 1 (1983), is a companion case.

AGGRAVATING CIRCUMSTANCES:

(F)(6) (Heinous, Cruel or Depraved) - UPHELD

Cruel: Upheld.
Mental Anguish: Found. "The victim was made to suffer great mental anguish . . . prior to her death." See the facts supporting mental anguish in Lambright, 138 Ariz. at 75.
Physical Pain: Found. "The victim was made to suffer great . . . physical pain prior to her death. Defendant Smith shares full responsibility for the cruelty toward Ms. Owen. In fact, he was the one who repeatedly raped the victim prior to murdering her. Cruelty was clearly established." 138 Ariz. at 85. See also the facts supporting Physical Pain in Lambright, 138 Ariz. at 75.

Heinous or Depraved: Reversed. "The evidence suggesting Smith also had a heinous and depraved attitude toward the crime is equivocal." 138 Ariz. at 85.
Relishing: Not found. Although the Court did not specifically refer to "relishing," it stated that the only evidence of heinousness or depravity was the uncorroborated testimony of one witness that the defendant was the one who requested the playing of the song "We are the Champions." That evidence does not establish beyond a reasonable doubt that defendant "had a heinous and depraved attitude toward the crime." 138 Ariz. at 85.

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstances existed, and cumulatively were "significant," but were not sufficiently substantial to call for leniency:

Difficult childhood/Family history
Lack of criminal history
Remorse
Family Ties
Sentencing disparity
Low intelligence

The Court found that the defendant failed to prove by a preponderance of the evidence the existence of the following mitigating circumstances:

(G)(1) - Significant Impairment
(G)(3) - Minor Participation
Felony Murder/Lack of intent to kill

JUDGMENT: Convictions and sentences affirmed.



State v. Summerlin
, 138 Ariz. 426, 675 P.2d 686 (1983)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder and sexual assault. The death penalty was imposed for the murder conviction. This is defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - UPHELD
The trial court's finding of this aggravating circumstance was upheld without discussion.

(F)(6) (Heinous, Cruel or Depraved) - UPHELD

Cruel: Upheld.
Mental Anguish: Found. See Physical Pain.
Physical Pain: Found. "Evidence of the victim's bruised hand indicates that she attempted to ward off blows. This evidence and the evidence of rape are indications of physical and mental pain. These acts constitute cruelty." 138 Ariz. at 436.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. "[T]he several blows to the victim's head were far more in number than those needed to kill her. It is obvious from the battered condition of the victim's body that she was incapable of defending herself." 138 Ariz. at 436.
Mutilation: Found. The Court provided no explanation of the facts supporting the finding.
Relishing: Found. "As for defendant's state of mind, we must consider such things as defendant's `apparent relishing of the murder,' `inflicting of gratuitous violence on the victim,' `mutilation of the victim,' and `senselessness of the crime, and helplessness of the victim.' We find that all of the above-listed circumstances were present." 138 Ariz. at 436. The Court provided no further explanation of the facts supporting the finding.
Senselessness: Found. No explanation of the facts supporting the finding. See Relishing.
Helplessness: Found. No explanation of the facts supporting the finding. See Relishing.

MITIGATING CIRCUMSTANCES:

There is no discussion of mitigating circumstances in this opinion.

JUDGMENT: Convictions and sentences affirmed.



State v. McCall
 (McCall I), 139 Ariz. 147, 677 P.2d 920 (1983)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of two counts of first-degree murder, one count of conspiracy to commit first-degree murder, one count attempted murder, three counts of kidnapping, three counts of armed robbery, and one count of first-degree burglary. The death penalty was imposed for each of the murder convictions. This is defendant's automatic, direct appeal to the Arizona Supreme Court. State v. Cruz, 137 Ariz. 541, 672 P.2d 470 (1983) is a companion case.

AGGRAVATING CIRCUMSTANCES:

(F)(3) (Grave Risk of Death to Others) - REVERSED
The defendant placed three victims on the bed and shot all of them; two died and one lived. This aggravating circumstance does not exist when the defendant intends to murder all the victims, even though one may survive.

(F)(5) (Pecuniary Gain) - UPHELD
A witness testified that McCall told him of McCall's participation in the murders and the expectation of receiving $10,000 as payment for the murders. The Court concluded that there is no doubt that (F)(5) applies to this type of "hired gun" situation.

(F)(6) (Heinous, Cruel or Depraved) - UPHELD

Cruel: Upheld.
Mental Anguish: Found. The three victims were led around the home at gunpoint by three men. The victims surrendered their valuables, were forced to lie on a bed with hands taped and mouths gagged with socks. The victims knew that their assailants were armed. The Court inferred that the victims were uncertain of their ultimate fate and found that they endured the "unimaginable terror" of listening to loved ones being shot and waiting for their own turn. 139 Ariz. at 161.
Physical Pain: Found. One victim, Mrs. Phelps, was shot in the head the first time, but did not lose consciousness or die from that shot. The Court found that the wound certainly caused physical pain.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. But see, Mutilation below.
Mutilation: Found. One victim, Pat Redmond, was shot twice in the head, followed by his throat being cut open. Medical experts testified that his throat was cut at the time of death or shortly thereafter. Evidence existed to support the finding that the mutilation was intended as a warning to others. It is not entirely clear whether the Court found mutilation or gratuitous violence, however, the Court used mutilation language in connection with the facts. In another codefendant's case, based on the same facts, the Court said that the victim, Pat Redmond, was shot twice through the head and also had his throat slashed "at the time of his death or shortly thereafter" and that "the infliction of gratuitous violence or mutilation of the victim indicates depravity or heinousness." State v. Bracy, 145 Ariz. 520, 538, 751 P.2d 464 (1985).
Senselessness: Found. The murder of Helen Phelps was "particularly senseless" in that "[s]he was an elderly houseguest of the Redmonds with no possible interest in their business affairs. Her murder in no way furthered the plan of the killers." 139 Ariz. at 161.

MITIGATING CIRCUMSTANCES:

None sufficiently substantial to call for leniency. The Court found that the defendant failed to prove the following as a mitigating circumstance: Quality of evidence at trial - and contradictions in testimony of a particular witness concerning aggravating circumstances.

JUDGMENT: Convictions and sentences affirmed.