Search 

Azcourts.gov

Arizona Judicial Branch

1984-1986

State v. Libberton, 141 Ariz. 132, 685 P.2d 1284 (1984)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder, aggravated robbery, kidnapping and theft. The defendant was sentenced to death for the murder. This is the defendant's automatic, direct appeal to the Arizona Supreme Court. State v. James, 141 Ariz. 141, 685 P.2d 1293 (1984), is a companion case.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
The defendant wanted the victim's car and money so that he could leave Arizona and escape his work furlough program. Pecuniary gain was a cause of this murder.

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

Cruel: Upheld.
Mental Anguish: Found. The victim experienced "great mental anguish" before his death. The victim listened to his captors discuss killing him and where they would hide his body. He was forced into his own car, driven two hours at gunpoint to the place the defendant had discussed killing him. The first attack occurred a couple of hours after midnight and the victim was not killed until daybreak. The victim spent several hours uncertain as to his ultimate fate. After being taken to the edge of the mineshaft, the victim requested and was given one last cigarette. "Therefore, even after arriving at the place chosen for the murder, Maya was subjected to the additional torment of being allowed to delay the inevitable by smoking his final cigarette while his assailants stood by, delaying their final assault until he finished. Finally, Maya pleaded for his life. We find that these facts beyond any reasonable doubt establish mental cruelty."
Physical Pain: Found. The Court found that the victim also suffered physical abuse by being beaten three separate times, and then finally was beaten, while conscious, with rocks and a board. The Court held that the defendant "inflicted physical pain" on the victim. 141 Ariz. at 140.

Heinous or Depraved: Not addressed.

(F)(7) Finding (Murder Committed while in Custody) - NOT FOUND
The trial court did not find this aggravating circumstance. The state, however, urged by cross-appeal that the factor did apply to the defendant. The state recognized the Arizona Supreme Court had held in State v. Gillies (Gillies I), 135 Ariz. 500, 512, 662 P.2d 1007, 1019 (1983), that this aggravating circumstance does not apply to persons on unsecured work furlough. The state distinguished Gillies I by saying that in this case defendant was on secured work furlough (he was required to return to the Durango facility each day at 6:00 p.m.) whereas the defendant in Gillies I was on unsecured work furlough. In Gillies I, the Court stated that the legislature's purpose for enacting section 13-751(F)(7) is "to protect the guards and other inmates at such institutions where a defendant is confined and to discourage violence by incarcerated persons." Gillies I, 135 Ariz. at 512, 662 P.2d at 1019. The defendant was not confined when he committed the offense, nor was he incarcerated, therefore the circumstance did not exist in this case.

MITIGATING CIRCUMSTANCES:

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

Age - [20 years old at the time of the murder]

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

(G)(1) - Significant Impairment - [never given psychological care]
(G)(3) - Minor Participation
Follower

JUDGMENT: Convictions and sentences affirmed.


State v. James, 141 Ariz. 141, 685 P.2d 1293 (1984)

PROCEDURAL POSTURE:
The defendant was convicted in Superior Court (Maricopa) of first-degree murder and kidnapping, but was acquitted of aggravated robbery and theft. Defendant was sentenced to death for the murder. This is the defendant's automatic, direct appeal to the Arizona Supreme Court. State v. Libberton, 141 Ariz. 132, 685 P.2d 1284 (1984), is a companion case.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - REVERSED
The (F)(5) finding was reversed based on the jury's acquittal on the aggravated robbery and theft charges. Although the Court found merit in the trial judge's argument, the Court thought that "mental gymnastics" would be required to uphold the finding in light of the jury's conclusion. The Court was left with reasonable doubt as to whether the defendant's motive was pecuniary gain, and so could not uphold this aggravating circumstance.

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

Cruel: Upheld.
Mental Anguish: Found. From the time that the defendant expressed intent to kill the victim, it was several hours before the killing actually took place, leaving the victim to contemplate his ultimate fate. During the victim's captivity, the defendant beat and taunted the victim, as well as held him at gunpoint while driving for two hours to the place where the victim was murdered. The victim tried to escape during one beating, but was caught. The victim begged for his life in exchange for his valuables.
Physical Pain: Found. The victim was beaten beyond recognition before his death with fists, rocks, and a board. The gun intended to kill the victim misfired and lit the victim's clothes on fire.
Knew or Reason to Know that Victim Would Suffer: Not addressed, though the Court stated that pain and distress were inflicted deliberately and sadistically.

Heinous or Depraved: Upheld.
Relishing: Found. Defendant bragged about his role and the difficulties encountered in killing the victim. The Court found that the defendant felt no remorse. Further, disposing of the victim's body in an isolated desert area after he was mercilessly beaten demonstrated callousness and disregard for the victim's family who would never have learned of the victim's fate but for defendant's and co-defendants' "later brazenness." 141 Ariz. at 147.
Senselessness: Found. There was no reason to kill the victim other than greed and prejudice against one different from oneself.

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:

Impaired capacity - [use of LSD on day of murder]
Remorse
Duress

JUDGMENT: Convictions and sentences affirmed.


State v. Fisher (Fisher I), 141 Ariz. 227, 686 P.2d 750 (1984)

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

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
The trial court's (F)(5) finding was proper because Fisher's motive in killing the victim was financial. Fisher and his wife managed an apartment building owned by the victim. In their post-arrest statements, both Fisher and his wife state that Fisher killed the victim for the $500.00 rent money he had collected for her. The absence of the victim's initials on stubs in the rent receipt book supported the statements of Fisher and his wife.

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

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The victim was hit three separate times with a claw hammer. Any one of the blows would have been fatal by itself. The blows "shattered her skull and at least one had driven bone into her brain." 141 Ariz. at 252. The violence exceeded that which was necessary to rob and kill the victim, a seventy-three-year-old woman.
Senselessness: Found. Although the Court did not specifically refer to "senselessness," the Court stated that the defendant's decision to murder the victim, notwithstanding the generosity and concern she expressed for the defendant and his wife, demonstrated heinousness and depravity.

MITIGATING CIRCUMSTANCES:

The Court found that there was no evidence the trial court did not consider the following mitigating circumstances, but they were not sufficiently substantial to call for leniency:

Sentencing Disparity
Lack of criminal history
Impact of death penalty on the defendant's family

JUDGMENT: Conviction and death sentence affirmed.


State v. Chaney, 141 Ariz. 295, 686 P.2d 1265 (1984)

PROCEDURAL POSTURE:
The defendant was convicted in Superior Court (Coconino) of first-degree murder, kidnapping, aggravated assault, two counts of aggravated robbery, one count burglary, and one count theft. Defendant 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. Victim said "goddamn someone please help," into the sheriff's car microphone. 141 Ariz. at 312. As defendant fired his high-powered rifle, the victim crouched in his vehicle to avoid the bullets. Shattered glass and other projectiles struck the victim. While the victim was in the crouched position, he could not reach any of his weapons. The victim was shot several times. After the attack, the victim, a doctor and part-time deputy, remained conscious for approximately thirty minutes. He knew he was slowly bleeding to death and told the medics "I'm dying, I'm dying." He saw his left arm hanging from his body by a muscle. "Before help arrived, he could hear the radio transmissions and the fact that no one was sure where he was for several minutes. It is not necessary to speculate about the victim's mental anguish; he helplessly and uselessly begged and waited for help." 141 Ariz. at 312.
Physical Pain: Found. See Mental Anguish.
Knew or Reason to Know that Victim Would Suffer: Found. "Chaney stood close enough to the victim to see that the victim was in great pain; Chaney then fired again. When Chaney left he knew the victim was not dead and Chaney knew the victim was suffering."

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. Although the Court did not specifically refer to "gratuitous violence," it did state that "repeatedly firing a high powered destructive weapon at the victim tends to show the crime was heinous and depraved."
Senselessness: Found. Once the victim was down, Chaney could have taken the victim's guns and disabled the two-way radio as he had just done with the other deputy. Thus, the crime was senseless."
Helplessness: Found. Once the victim was injured, he was helpless. The defendant saw this before he fired the last shot. "Shooting a helpless victim from behind at close range is evidence of this aggravating circumstance."

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:

Mental Impairment
Family Background
Sentencing Disparity
Not harming Other Victims

JUDGMENT: Convictions and sentences affirmed.


State v. Harding (Gage murder), 141 Ariz. 492, 687 P.2d 1247 (1984)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder, robbery, and theft and was sentenced to death for the murder. This is 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 this aggravating circumstance.

(F)(2) (Prior Violent Felony) - UPHELD
Prior convictions in Arizona of dangerous or deadly assault by prisoner and two counts of first degree murder sufficient to support trial court's finding of this aggravating circumstance.

(F)(5) (Pecuniary Gain ) - UPHELD
The victim was found in a motel room, bound and gagged. He died from asphyxiation because of the gagging. His wallet and car were missing. At the time of Harding's arrest, Harding had the victim's wallet and identification in a suitcase in the car Harding was driving. The Court reiterated that pecuniary gain must be the cause of the murder, not just a result. Here, the Court agreed with the trial court's finding that the purpose for binding and gagging the victim was to facilitate the robbery and hinder detection. "[T]he victim died as a direct result of the binding and gagging during the commission of the offense."

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

Cruel: Upheld.
Physical Pain: Found. The victim's hands and feet were bound with tape and were then tied tightly together behind his back. A wash cloth was stuffed in his mouth and throat. He was face down with his head on a pillow. The medical testimony established that the washcloth was far enough down the victim's throat that he could not breathe even through his nose, and that he died slowly by asphyxiation because of the gagging.

Heinous or Depraved: Not addressed.

MITIGATING CIRCUMSTANCES:

The Court found no mitigating circumstances sufficient to call for leniency. The defendant failed to prove by a preponderance of the evidence the existence of the following mitigating circumstance:

Lack of intent to kill

JUDGMENT: Convictions and sentences affirmed.


State v. Roger Smith (Roger Smith II), 141 Ariz. 510, 687 P.2d 1265 (1984)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder and armed robbery. Defendant was sentenced to death for the murder. On direct appeal, the Arizona Supreme Court affirmed the convictions and armed robbery sentence, but vacated the death sentence and remanded the case for resentencing. State v. Smith, 136 Ariz. 273, 665 P.2d 995 (1983). The trial court resentenced the defendant to death and this is defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - UPHELD
The trial court erroneously relied on a transcript from the previous sentencing hearing concerning the victim's testimony regarding a prior kidnapping conviction obtained in Tennessee as support for this aggravating circumstance. The Court found this to be harmless error because the defendant admitted the conviction, and based on Tennessee's definition of kidnapping, the prior conviction supported a finding that his aggravating circumstance exists.

(F)(5) (Pecuniary Gain) - UPHELD
The (F)(5) finding was upheld without discussion because the defendant did not contest the finding on appeal. The defendant had decided to rob a store, took a loaded sawed-off shotgun inside, pointed it at the clerk, and shot the clerk in the head.

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

Cruel: Not addressed.

Heinous or Depraved: Reversed.
Senselessness: Not found. The trial court found the crime was committed in an especially depraved manner because it was senseless, in that the defendant could have committed the robbery and escaped without harming or killing the victim. 141 Ariz. at 511. The Court disagreed with the trial court's reasoning, noting that "[t]he facts of this killing are similar to State v. Jordan, 137 Ariz. 504, 672 P.2d 169 (1983), in which we found the murder not to be especially heinous, cruel, or depraved." 141 Ariz. at 511. Although the Court stated that there were other facts in the record to support depravity in this case, the Court did not consider those facts because the trial court ignored them in its special verdict. The Court concluded that the trial court must not have found those facts to be true beyond a reasonable doubt.

MITIGATING CIRCUMSTANCES:

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

Remorse

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

Age - [21 years old at time of murder]
Family Ties
Lack of Intent to Kill
Claim of Innocence - [the gun accidentally discharged]
Impairment - [from drug and alcohol use on day of crime]

JUDGMENT: Death sentence affirmed.


State v. Villafuerte, 142 Ariz. 323, 690 P.2d 42 (1984)

PROCEDURAL POSTURE:
The defendant was convicted in Superior Court (Maricopa) of first-degree murder, kidnapping, and theft of property valued in excess of $1000. Defendant 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: Reversed. "To find cruelty the State must show beyond a reasonable doubt that the victim was conscious when the acts of violence causing death were committed." 142 Ariz. at 331 (citation omitted). In this case, the medical expert could not determine whether the victim was conscious after she received the blow to her head that caused a hairline fracture. Therefore, the State failed to prove cruelty beyond a reasonable doubt.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The Court mentioned gratuitous violence, but did not specify facts that support the finding. The Court did note that the victim was gagged with a ball of cloth in her nasal pharynx and that this kind of "perverse gagging" indicates a depraved state of mind.
Senselessness: Found. In order for the defendant to fulfill his stated purpose of preventing the victim from calling the police immediately after the defendant departed the scene, it was not necessary for the defendant to bind and gag the victim in such an extreme manner as to assure her death by suffocation.
Helplessness: Found. The defendant left the victim alive, but bound and gagged in such a manner that she could not get assistance. Further, the defendant waited to tell police about the victim until twenty-four hours after he was apprehended and forty-eight hours after he had left the victim bound and gagged.

MITIGATING CIRCUMSTANCES:
No mitigating circumstances were found by the trial court. The Court found no mitigating circumstances sufficient to outweigh the aggravating circumstance.

JUDGMENT: Convictions and sentences affirmed.


State v. Clabourne (Clabourne I), 142 Ariz. 335, 690 P.2d 54 (1984)

PROCEDURAL POSTURE:
The defendant was convicted in Superior Court (Pima) of first-degree murder, kidnapping, and three counts of sexual assault. He 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 victim was forced to undress and serve drinks to the defendant and his friends. She was raped repeatedly over a six-hour period and evidence showed she begged the defendant to protect her, indicating she was in great fear for her life.
Physical Pain: Found. The victim was beat and raped repeatedly over a six-hour period. Evidence supported the finding that the victim struggled while she was strangled, which indicates a good deal of suffering. 142 Ariz. at 348.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. "The victim was near death after the strangulation and the stabbing was unnecessary to accomplish the murder. Still defendant stabbed her twice, once through the heart."

MITIGATING CIRCUMSTANCES:

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

Age - [20 years old at time of murder]
Difficult childhood/Family history

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

(G)(1) - Significant Impairment
Remorse

JUDGMENT: Conviction and sentence affirmed.


State v. Gillies (Gillies II), 142 Ariz. 564, 691 P.2d 655 (1984)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder, sexual assault, aggravated robbery, kidnapping and computer fraud. On direct appeal, the convictions were upheld, but the case was remanded for resentencing, due to improper admission of a prior conviction and error in sentencing. State v. Gillies, 135 Ariz. 500, 662 P.2d 1007 (1983). The defendant was resentenced to death and this is 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 victim was held for eight hours before she was killed. The victim was forced to drive to a secluded area and was then raped by defendant and Logan. She was then tied up, put in the back of her car, and forced to guide them to her Scottsdale apartment. Both men raped the victim again. The victim was then placed in her car and driven to the Superstition Mountains. Once in a secluded area, the men took her from the car, brought her to the edge of an embankment and told her to climb down. The defendant hit her when she refused. The victim was kicked off the edge by Logan, but the fall didn't kill her. She begged to be left alone to die. Each man blames the other for actually hitting her in the head with a rock to kill her. Evidence shows that it took several blows to kill her. The victim died from loss of blood and a crushed skull. The victim spent up to eight hours uncertain of her ultimate fate, which constitutes cruelty.
Physical Pain: Found. See Mental Anguish.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The "savage manner of death" was found as a factor to support heinousness and depravity. 142 Ariz. at 570.
Relishing: Found. Although the Court did not specifically refer to "relishing," the Court found that defendant's comments to co-defendant Logan ("Wasn't the Superstitions fun"), made in the presence of defendant's girlfriend, supported a heinous and depraved finding. Additionally, defendant's comments to police with regard to the possibility of a death penalty in this case ("All that, for killing that bitch?") supported a heinous and depraved finding.
Senselessness: Found. The murder was found to be senseless, but the Court did not elaborate on the facts supporting this finding.
Witness Elimination: Found. The defendant told an acquaintance that he and Logan killed the victim so she could not testify against them for raping her. In his pro se brief, the defendant stated that the murder made sense or had meaning because it served to eliminate the only possible witness to the crimes of kidnapping, aggravated robbery, and sexual assault. "We believe elimination of witnesses, as a motive for murder, also illustrates heinousness and depravity."

MITIGATING CIRCUMSTANCES:

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

Age - [20 years old at time of murder]
Model Prisoner - [becoming religious and showing remorse]

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

(G)(1) - Significant Impairment - [intoxication]
Felony Murder/Lack of intent to kill
Sentencing Disparity

JUDGMENT: Convictions and sentences affirmed.


State v. Hensley (Hensley II), 142 Ariz. 598, 691 P.2d 689 (1984)

PROCEDURAL POSTURE: Defendant was convicted in Superior Court (Maricopa) of two counts of first-degree murder, attempted murder and armed robbery. He was sentenced to death and appealed to the Arizona Supreme Court. The Court affirmed the conviction and remanded the case back to the trial judge for resentencing in State v. Hensley (Hensley I), 137 Ariz. 80, 669 P.2d 58 (1983). After remand, the death sentence was reimposed and this is his automatic appeal from that second sentence to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
Citing State v. Harding, 137 Ariz. 278, 670 P.2d 383 (1983), the Court here reiterates that the defendant's overall goal must be one of pecuniary gain before the (F)(5) aggravating circumstance can be found. If the death is unexpected or accidental and not in furtherance of the pecuniary gain goal, then the factor does not apply. Looking to the facts of this case, the murders were part of the overall robbery scheme. The specific purpose was to facilitate the escape of the robbers. The defendant had the three victims lie on the floor of the bar where he shot each of them in the head so that no witnesses would be left to identify the robbers. These murders were not accidental or unexpected.

MITIGATING CIRCUMSTANCES:

The Court found the mitigation offered by the defendant - that he had obtained a GED degree - was not sufficiently substantial to call for leniency.

JUDGMENT: Conviction and sentence affirmed. After affirming the death sentence the second time, the defendant petitioned for post-conviction relief in the trial court. The trial court granted relief, vacating the death sentence because his counsel was ineffective at sentencing for not introducing evidence of his intoxication at the time of the crime. On resentencing, the defendant received two consecutive life sentences without the possibility of parole for 25 years on the murder convictions.


State v. Carriger (Carriger III), 143 Ariz. 142, 692 P.2d 991 (1984)

PROCEDURAL POSTURE:
Defendant was convicted in Superior Court (Maricopa) of first-degree murder and robbery. Defendant was sentenced to death for the murder. On direct appeal, the Arizona Supreme Court affirmed the convictions and sentences. State v. Carriger, 123 Ariz. 335 (1979). In 1982, the defendant filed a Rule 32 petition in the Arizona Supreme Court. The Court found that trial counsel was ineffective at sentencing, reversed the sentence and remanded the case for resentencing and consideration of any other matters properly raised. The trial court rejected all Rule 32 claims and resentenced the defendant to death for the murder. This is defendant's automatic, direct appeal to the Arizona Supreme Court. The appealable issues from the Rule 32 petition are also addressed by the Court.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - UPHELD
This finding was upheld without discussion.

(F)(5) (Pecuniary gain) - UPHELD
Carriger was convicted of killing a jewelry shop owner during the course of a robbery of the shop. Carriger argued that the pecuniary gain finding was unlawful for two reasons; first, it was specifically not found at his first sentencing and the state was barred from proving this aggravating circumstance, and second, the facts proving this circumstance are the same facts needed to prove the underlying felony of robbery. The Court found both arguments without merit. The state was not barred from proving this circumstance because the law had been clarified between the original sentencing and resentencing. At the time of his first sentencing, the Court had not yet held that pecuniary gain was defined to include a robbery. The facts did not change and they would have supported this finding at the original sentencing; the only change was the judicial construction of the statute. Further, the state must prove additional facts to prove this aggravating circumstance, once it has proved the robbery. Proving a taking in a robbery does not necessarily prove the motivation for a murder and the state cannot be said to be using one fact to prove two different items.

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

Cruel: Upheld.
Mental Anguish: Found. The victim pleaded for his life to no avail. The defendant bound the victim, who was unable to avoid the blows that killed him. "The inference is that the victim suffered the terror of being uncertain as to his fate and being helpless to avoid the assailant."

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The defendant used three forms of attack to kill the victim. "Carriger inflicted gratuitous pain on the victim. . . . He struck the victim with a skillet so hard that pieces of the skillet flew off and the victim's brain was `jelled loose'; he then struck the victim in the head with a pointed object; finally, he used the victim's tie to strangle the victim. The bloody scene and the mutilation of the victim's head tend to prove the crime was heinous and depraved."
Senselessness: Found. Because the victim was bound, he was unable to hinder the defendant's flight from the jewelry store robbery, "making the crime senseless."
Helplessness: Found. "[T]he victim was bound and helpless and the blows came from behind the victim."

MITIGATING CIRCUMSTANCES:

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

Model Prisoner -[polite, few disciplinary problems]
Saved life of fellow inmate
Risked retaliation to ensure safety of prison counselor
Writes poetry, fiction and paints
Family Ties

The Court found the defendant failed to prove the following were mitigating circumstances:

Residual doubt
Claim of innocence
Quality of evidence at trial -[untrustworthiness of state's main witness]
Conducted survey of death row inmates to determine why people kill]

JUDGMENT: Convictions and sentences affirmed.


State v. Nash, 143 Ariz. 392, 694 P.2d 222 (1985)

PROCEDURAL POSTURE:
The defendant was convicted in Superior Court (Maricopa) of first- degree murder, armed robbery, aggravated assault, and theft. He received prison sentences on all counts, except the murder conviction for which he received the death penalty. This is his direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - UPHELD
The state presented sufficient evidence that the defendant was convicted of robbery, assault with intent to murder, aggravated robbery, and second degree murder. The defendant argued that without testimony regarding the specific facts of each crime, the Court cannot judicially notice that those crimes were violent felonies upon other persons. The Court disagreed and took judicial notice that all of the defendant's prior convictions, which, by definition, were violent felonies committed against other persons.

(F)(3) (Grave Risk of Death to Others - UPHELD
The factor is satisfied if the defendant puts a third party in the Azone of danger@ during the commission of the murder. Firing a gun while a third party was within close proximity of the victim and then pointing the murder weapon at the third party are two factors that put the third party in a zone of danger, and therefore, in grave risk of death. The murder of the victim took place during an armed robbery of a coin shop. After the defendant shot the victim, he pointed his gun at Susan McCullough but did not fire at her. She was five feet away from the defendant when he pointed the gun at her. She was in close proximity to the victim when he was shot three times by the defendant.

(F)(5) (Pecuniary Gain) - UPHELD
The Court reiterated that this aggravating circumstance is not unconstitutionally vague and arbitrary. The defense argued that (F)(5) should only apply to murder for hire situations, but the Court stated that this argument had already been rejected in State v. Clark, 126 Ariz. 428, 616 P.2d 888 (1980). Receiving something of pecuniary value must be the impetus for the murder, not just the result. Here, the murder was part of the overall scheme of robbery with the specific purpose to obtain items of pecuniary value. The defendant entered the coin shop with a gun and duffel bag and demanded money. He shot the defenseless victim, and after the victim tried unsuccessfully to defend himself, the defendant shot him again two more times and took money. The defendant had a plan to rob and the murder furthered that plan. The murder was not unexpected or accidental. This murder was not motivated by self-defense.

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

The Court found that the following was not mitigating in this case:

Age -[67 years old at time of crime]

JUDGMENT: Convictions and sentences affirmed.


State v. Patrick Poland (Patrick Poland II), 144 Ariz. 388, 698 P.2d 183 (1985)

PROCEDURAL POSTURE:
On retrial defendant was convicted in Superior Court (Yavapai) of two counts of first-degree murder. The trial court imposed the death penalty based on three aggravating factors. This is defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - UPHELD
The defendant had previously been convicted of a bank robbery. The Arizona Supreme Court noted that a court may take judicial notice that certain felonies, by definition, involve violence against others. Fear of force is an element of robbery and the conviction is sufficient to support the (F)(2) finding.

(F)(5) (Pecuniary Gain) - UPHELD
The state proved beyond a reasonable doubt that Poland had a financial motivation in committing these murders. Poland and his brother, Michael, robbed a Purolator van containing approximately $328,180.00 in cash, and killed the two Purolator guards. The Court concluded that the murders were part of an overall scheme to obtain items of pecuniary value and the finding was "clearly warranted."

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

Cruel: Reversed.
Mental Anguish: Not found. See physical pain.
Physical Pain: Not found. The state did not show that the victims were conscious at the time of their death. Both victims (armored car guards) were believed to have drowned, although one might have died of a heart attack. There was no conclusive evidence whether the guards were drugged. Further, there was no evidence concerning the conditions of their confinement. Autopsies revealed no evidence that the guards were bound or injured prior to being placed in the water, and there was no sign of a struggle.

Heinous or Depraved: Reversed.
The Court found insufficient evidence on the record of the exact circumstances of the guards' deaths. Especially lacking was any information of the circumstances under which the guards were held hostage.

MITIGATING CIRCUMSTANCES:

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

Age -[27 years old at time of crime]
Model Prisoner

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

Good Character

JUDGMENT: Conviction and sentences affirmed.


State v. Michael Poland (Michael Poland II), 144 Ariz. 412, 698 P.2d 207 (1985)

PROCEDURAL POSTURE:
On retrial the defendant was convicted in Superior Court (Yavapai) of two counts of first-degree murder. The trial court imposed the death penalty based on two aggravating factors. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
These murders had a financial motivation. The defendant obtained items used in the robbery of the Purolator van and in disposing of the guards' bodies. The purchase of canvas bags in which the bodies were found indicates that the murders were contemplated during the planning of the robbery. These murders, therefore, were part of an overall scheme to obtain items of pecuniary value.

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

Cruel: Reversed.
Mental Anguish: Not found. See physical pain.
Physical Pain: Not found. The state did not show that the victims were conscious at the time of their death. Both victims (armored car guards) were believed to have drowned, although one might have died of a heart attack. There was no conclusive evidence whether the guards were drugged. Further, there was no evidence concerning the conditions of their confinement. Autopsies revealed no evidence that the guards were bound or injured prior to being placed in the water, and there was no sign of a struggle.

Heinous or Depraved: Reversed.
The Court found insufficient evidence on the record of the exact circumstances of the guards' deaths. Especially lacking was any information of the circumstances under which the guards were held hostage.

MITIGATING CIRCUMSTANCES:

The Court found the existence of the following mitigating circumstances, but they were not sufficiently substantial to call for leniency:

Age -[36 years old at the time of the murder]
Family Ties
Model Prisoner

The Court found that the defendant failed to prove the following mitigating circumstance:

Good Character

JUDGMENT: Conviction affirmed. Although the (F)(6) finding was reversed, the Court upheld the death sentence based on A.R.S. § 13-751(F)(5).


State v. Gerlaugh (Gerlaugh II), 144 Ariz. 449, 698 P.2d 694 (1985)

PROCEDURAL POSTURE: Defendant was convicted, at a joint trial, in Superior Court (Maricopa) of first-degree murder, armed robbery, and kidnapping. Defendant was sentenced to death for the murder. His convictions and sentences were affirmed on appeal. Defendant then brought a petition for post-conviction relief pursuant to Rule 32. After an evidentiary hearing, the trial court denied his Rule 32 petition. This is the defendant's appeal from the denial of his Rule 32 petition.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
The Arizona Supreme Court found no error in the trial court's finding that this aggravating circumstance existed. The defendant had previously been convicted of robbery. He did not contest the (F)(1) finding on appeal. He did not contest the existence of the prior conviction, nor the fact that a life sentence was imposable for that crime.

(F)(5) (Pecuniary Gain) - UPHELD


(F)
(6) (Heinous, Cruel or Depraved) - UPHELD
The trial court's finding of "especially heinous, cruel or depraved manner" was not erroneous. The finding was not discussed further by the Court. 144 Ariz. at 458.

Cruel: Not Addressed

Heinous or Depraved: Not addressed

MITIGATING CIRCUMSTANCES:
In reviewing the denial of the defendant's Rule 32 petition, which claimed ineffective assistance of counsel at sentencing, the court considered whether certain mitigating evidence would have changed the result. The Court found no probability that the evidence would have established the following mitigating circumstances:

(G)(1) Significant Impairment
Difficult childhood
Age
Sentencing Disparity
Follower
Cooperation
Impairment - [intoxication]
Good Character

JUDGMENT: Order denying post-conviction relief was affirmed.


State v. Roscoe (Roscoe I) , 145 Ariz. 212, 700 P.2d 1312 (1984)

PROCEDURAL POSTURE:
Defendant was convicted in Superior Court (Maricopa) of first-degree murder, kidnapping, and two counts of child molesting. The trial court imposed the death penalty. This is defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

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

Cruel: Upheld.
Mental Anguish: Found. See Physical Pain.
Physical Pain: Found. The Court found that the seven-year-old victim experienced both mental and physical suffering but does not further elaborate on the facts.

Heinous or Depraved: Upheld.
Senselessness: Found. The Court found generally that the crime reflected a heinous and depraved state of mind. The Court specifically said that the killing was senseless, given the abduction, violent sexual penetration and strangulation of a helpless seven-year-old child.
Helplessness: Found. See "senselessness."

MITIGATING CIRCUMSTANCES:

The Court found the existence of the following mitigating circumstances, but they were not sufficiently substantial to call for leniency:

Age
Family Ties

The Court found that the defendant failed to prove the following mitigating circumstance:

Felony murder instruction -[no evidence of lack of intent]

JUDGMENT: Conviction and death sentence affirmed. Defendant was granted a new trial in state post-conviction proceedings after showing that the state had offered fabricated evidence at trial. Defendant was again convicted and sentenced to death. State v. Roscoe, 910 P.2d 635, 184 Ariz. 484 (1996).


State v. Martinez-Villareal, 145 Ariz. 441, 702 P.2d 670 (1985)

PROCEDURAL POSTURE:
Defendant was convicted in Superior Court (Santa Cruz) of two counts of first-degree murder and one count of first-degree burglary. The trial court imposed the death penalty. This is defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
This finding was not contested by the defendant on appeal. There was substantial evidence at trial to show that the defendant was at the ranch to rob the victims and steal a truck before he or another participant shot the two victims on the ranch.

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

Cruel: Not addressed.

Heinous or Depraved: Upheld.
Relishing: Found. The defendant relished the killing by bragging that he murdered to show "machismo." "This horrific form of ego gratification constitutes a manifest disregard for the fundamental principles upon which our society is based." 145 Ariz. at 451.
Senselessness: Found. The murders were senseless, but the Court did not elaborate on the facts beyond mention that the victims were unarmed.
Helplessness: Found. The Court explicitly states that the victims were "helpless," noting that they were unarmed and offered no apparent resistance to the burglary.

MITIGATING CIRCUMSTANCES:

The Court found that the defendant failed to prove the following mitigating circumstances

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

JUDGMENT: Convictions and sentences affirmed.


State v. Bracy, 145 Ariz. 520, 751 P.2d 464 (1985)

PROCEDURAL POSTURE:
Defendant was convicted in Superior Court (Maricopa) of one count of conspiracy to commit first-degree murder, two counts of first-degree murder, one count of attempted first-degree murder, three counts of kidnapping, three counts of armed robbery, and one count of first-degree burglary. The trial court imposed the death penalty for each first-degree murder conviction.. This is defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
Prior conviction in Illinois on three counts of first degree murder were sufficient to support trial court's (F)(1) finding.

(F)(2) (Prior Violent Felony) - UPHELD
The defendant was previously convicted in Illinois of three counts of armed robbery and three counts of aggravated kidnapping. The Court took judicial notice that all of those crimes involved the use or threat of violence against others.

(F)(3) (Grave Risk of Death) - REVERSED
The defendant and two others bound and gagged three people and shot them each in the head, intending to kill them. One victim survived. This aggravating circumstance did not exist with respect to either of the two murders, because the survivor was an intended victim of the crime and not a bystander in the zone of danger during the murderous act.

(F)(5) (Pecuniary Gain) - UPHELD
The Court found sufficient evidence to establish that Bracy was a hired murderer, and concluded that this aggravating circumstance "indisputably" applies to this fact situation. Bracy was one of three assailants hired to murder the victim in connection with a business dispute. Evidence showed that prior to the murders, Bracy was given a stack of $100 bills as advance payment, that he told a third part that he would be getting $50,000 for a big job that was "not very pretty," and that other participants had described the murders as contract killings.

(F)(6) (Heinous, Cruel or Depraved) - UPHELD
The Court cited State v. McCall, 139 Ariz. 147, 677 P.2d 920 (1983), cert. denied, 467 U.S. 1220, 104 S. Ct. 2670, 81 L. Ed. 2d 375 (1984), for its discussion of the facts of this case. The factual analysis below is largely identical to the analysis in McCall.

Cruel: Upheld.
Mental Anguish: Found. The Court found that the victims experienced mental suffering during the crimes. The victims were "herded" throughout the home where they were killed at gunpoint. They were forced to lie down on the bed, had their hands taped behind their backs and were gagged with socks. They knew the assailants were armed. It could be inferred that they were uncertain as to their ultimate fate. Except for the first victim shot, they had to experience hearing their loved ones shot to death, and then wait for their own turn to come. In addition, one of the attackers said "we don't need these two anymore" immediately before the shooting started.
Physical Pain: Found as to one of the victims. Expert medical testimony was given that the victim did not die from the first gunshot wound to her head, that she did not lose consciousness from that wound, and that she most certainly suffered pain from that wound.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. See "Mutilation."
Mutilation: Found. The Court found the infliction of gratuitous violence or mutilation as to one of the victims. The victim was not only shot twice in the head, but also had his throat slashed open. Medical testimony established the that slashing came just at the time of death or shortly thereafter. Testimony also supported that this slashing was designed to be a "message" to warn other people.
Senselessness: Found. The Court found that the killing of one of the victims was senseless. The victim was an elderly houseguest of the other victims, and had no possible interest in their business affairs. Her murder did not further the plan [see "note" below] of the killers.
Helplessness: Found. See "senselessness."

MITIGATING CIRCUMSTANCES:

The Court found no mitigating circumstances sufficiently substantial to call for leniency. The Court found that the defendant's claim of innocence was not a mitigating circumstance. The defendant testified at the sentencing hearing that he was not in Arizona on the date of the murder and didn't kill anyone. The Court noted that the jury found just the opposite and there was ample evidence to support the verdict.

JUDGMENT: Conviction and sentences affirmed.

Note: The facts of this case were also set out in the appeal of McCall's co-defendant. See State v. Cruz, 137 Ariz. 541, 672 P.2d 470 (1983). The "plan" involved the killing of one of the victims; the other two (his wife and mother-in-law) were at his home and thereby became victims as well.

Comment: In their discussion of "cruelty," the Court noted that the defendant must intend that the victim suffer or reasonably foresee that there is a substantial likelihood that the victim will suffer. See State v. Adamson, 136 Ariz. 250, 665 P.2d 972, cert. denied, 464 U.S. 865, 104 S. Ct. 204, 78 L. Ed. 2d 178 (1983). This standard was met with respect to the mental anguish of the victims. However, the Court seems not to have applied the Adamson requirement to the finding of physical pain by one of the victims. Compare the subsequent case of State v. Smith, 146 Ariz. 491, 707 P.2d 289 (1985), where the Court finds that a gunshot to the head was not intended to prolong suffering, but rather kill immediately.


State v. Hooper, 145 Ariz. 538, 751 P.2d 482 (1985)

PROCEDURAL POSTURE:
The defendant was convicted in Superior Court (Maricopa) of one count of conspiracy to commit first-degree murder, two counts of first-degree murder, one count of attempted first-degree murder, three counts of kidnapping, three counts of armed robbery, and one count of first-degree burglary. The Court imposed the death penalty for each count of first-degree murder. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
Prior conviction in Illinois on three counts of first degree murder sufficient to support trial court's finding of this aggravating circumstance.

(F)(2) (Prior Violent Felony) - UPHELD
Prior conviction in Illinois on three counts of armed robbery and three counts of aggravated kidnapping sufficient to support trial court's finding of this aggravating circumstance. The Court took judicial notice that all these crimes involve the use or threat of violence against others.

(F)(3) (Grave Risk of Death) - REVERSED
The defendant and two others bound and gagged three people and shot them each in the head, intending to kill them. One victim survived. This aggravating circumstance did not exist with respect to either of the murders, because the survivor was an intended victim of the crime and not a bystander in the zone of danger during the murderous act.

(F)(5) (Pecuniary Gain) - UPHELD
The defendant received some money as prepayment for the murders. The murders were described by a witness as contract killings, and all three codefendants were armed with guns shortly before the murders, and all spoke of coming into large amounts of money soon. The evidence showed that the defendant was part of Robert Cruz' criminal organization and an associate of codefendant William Bracy. Because the evidence established that the defendant was a hired murderer, it clearly fit within the (F)(5) aggravator.

(F)(6) (Heinous, Cruel or Depraved) - UPHELD
For the same reasons stated in State v. Bracy, 145 Ariz. 520, 751 P.2d 464 (1985), the Court found the defendant committed the offense in an especially heinous, cruel, or depraved manner. The analysis is not repeated here.

Cruel: Upheld.
Mental Anguish: Found. See State v. Bracy.
Physical Pain: Found. See State v. Bracy.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. See State v. Bracy.
Mutilation: Found. See State v. Bracy.
Relishing: Not addressed.
Senselessness: Found. See State v. Bracy.
Helplessness: Found. See State v. Bracy.

MITIGATING CIRCUMSTANCES:

The Court found that defense counsel's argument at sentencing hearing that the death penalty is immoral, and the defendant's opposition to the death penalty are not mitigating circumstances sufficiently substantial to call for leniency.

JUDGMENT: Conviction and sentences are affirmed.


State v. Rossi (Rossi I), 146 Ariz. 359, 706 P.2d 371 (1985)

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

AGGRAVATING CIRCUMSTANCES:

(F)(3) (Grave Risk of Death) - REVERSED
The defendant attempted to murder a woman who came into the house after he had shot the victim to death. The Court said the factor was not satisfied because the woman was an intended murder victim and she had not been in the "zone of danger" during the victim's murder.

(F)(5) (Pecuniary Gain) - UPHELD
The (F)(5) finding was not discussed, except in reference to the constitutionality of this aggravating circumstance, which had been previously decided in State v. Nash, 143 Ariz. 392, 694 P.2d 222 (1985).

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

Cruel: Upheld.
Mental Anguish: Found. The victim was grazed by the first gunshot, and remained conscious after the second shot, which was to the chest. The victim had time to reflect as to his ultimate fate and to plead for his life before the fatal shot.
Physical Pain: Found. The victim was in pain before his death. The first shot grazed the victim, and the second shot was to the chest. The ammunition used by the defendant was designed to create greater tissue damage. The victim was conscious for a brief time after both shots were fired and before the final, fatal shot to the head.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. Defendant used special bullets designed to inflict greater tissue damage than typical ammunition.
Relishing: Found. The defendant bragged about the murder, and gave three spent bullets as a "souvenir" to a friend. After shooting the victim, defendant said "that the bullets did not make as big a hole as they're supposed to."
Senselessness: Found. The murder was not necessary to complete the goal of robbery and escape.
Helplessness: Found. The victim was sixty-six years old and in failing health. The victim was in no position to prevent the robbery after defendant shot him in the chest, further rendering him helpless.

MITIGATING CIRCUMSTANCES:

The Court vacated the death sentence because the trial court used the wrong standard to evaluate the (G)(1) and (G)(2) mitigating circumstances. The trial court thought that in order for impairment to be a mitigating circumstance under (G)(1), it would have to rise to the level of a defense. Similarly, he thought that in order to have the (G)(2) circumstance of duress, it would have to rise to the level of a defense. The Court also found that the defendant failed to prove by a preponderance of the evidence his ability to be rehabilitated.

JUDGMENT: Death sentence vacated, not because of error in finding aggravation, but due to error in determining mitigation.

In Rossi II, 154 Ariz. 245, 741 P.2d 1233 (1987), the Court found ability for rehabilitation, but held lack of showing that defendant was so impaired that he could not appreciate the wrongfulness of his actions at the time of the murder. No opinion was expressed as to a sentence of life or death. In Rossi III, 171 Ariz. 276, 830 P.2d 797 (1992), the Court ultimately upheld the imposition of the death penalty for this murder. At no time after the first appeal was the trial court's determination that the murder was committed in an especially "heinous, cruel, or depraved" manner ever at issue.


State v. Bernard Smith, 146 Ariz. 491, 707 P.2d 289 (1985)

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

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
The defendant had been convicted of three prior armed robberies in Arizona, which were on appeal at the time of his trial for this murder. Under Arizona law, the defendant had received a mandatory life sentence for each of those convictions. The Court reiterated that until a conviction is set aside, it should count as a conviction under this aggravating circumstance.

(F)(2) (Prior Violent Felony) - UPHELD
The defendant was previously convicted in Arizona of three counts of armed robbery. The Court took judicial notice of the fact that armed robbery is a violent felony committed against another person.

(F)(3) (Grave Risk of Death) - REVERSED
The murderous act itself must put others in a zone of danger. The defendant entered a store and shot the cashier to obtain money in the register. Although there were other people in the store at the time of the shooting the murderous at itself did not place them within the zone of danger. The defendant shot only at the victim; the shooting was not random and indiscriminate, but purposeful. The defendant pointed his gun at other people in the parking lot and told them to go. The Court found that this activity did not pose a grave risk of death to them.

(F)(5) (Pecuniary Gain) - UPHELD
The impetus for this murder was the expectation of pecuniary gain. Smith went into the Low Cost Market to purchase cigarettes. After paying for the cigarettes, he told the clerk to give him all the money in the cash register. When the clerk did not comply immediately and called for the manager, Smith shot the clerk, took the money from the cash register and left the store. Smith committed the murder "solely for the purpose of gaining access to the cash register, which was in the victim's control." Smith, 146 Ariz. at 503. Smith also claimed error in the trial judge's failure to specifically find that the (F)(5) aggravating circumstance was established beyond a reasonable doubt. The Court concluded that, although it is true that the state must prove the existence of aggravating circumstances beyond a reasonable doubt, this burden had been met by the state at trial in this case, and the lack of a specific, separate finding by the trial judge was not error in this case. The Court noted that Smith was convicted of armed robbery of the clerk at the convenience store and that, under the facts of this case, but certainly not of all robberies, implicit in the finding by the jury that he committed armed robbery was a finding beyond a reasonable doubt that Smith had committed the murder for pecuniary gain.

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

Cruel: Reversed.
Knew or Reason to Know that Victim Would Suffer: Not found. The evidence of cruelty was the pain and mental anguish of the victim during the two weeks after the shooting and before the victim's death. However, the Court said that the state must show that the defendant either intended or reasonably foresaw that the victim would suffer as a result of the defendant's acts. The Court noted that the defendant shot the victim in the head, which seems to show an intent to kill immediately, not an intent to prolong suffering. See State v. Adamson, 136 Ariz. 250, 665 P.2d 972, cert. denied, 464 U.S. 865, 104 S. Ct. 204, 78 L. Ed. 2d 178 (1983); State v. Harding, 141 Ariz. 492, 687 P.2d 1247 (1984).

Heinous or Depraved: Reversed.
Gratuitous Violence: Not found. Defendant shot victim once and inflicted no further violence.
Mutilation: Not found. The Court stated the defendant did not mutilate the victim.
Relishing: Not found. "That defendant's actions may have been cold and deliberate demonstrates not heinousness or depravity but the element of intent, which established the mens rea necessary for the crime of first degree murder but is of no consequence in the death sentencing determination." 146 Ariz. at 504.

MITIGATING CIRCUMSTANCES:

The Court found no mitigating circumstances sufficient to call for leniency. The Court found the defendant's age (30 years old at the time of the murder) was not a mitigating circumstance.

JUDGMENT: Conviction and death sentence affirmed. The Court found error in the trial court's finding of 13-751(F)(6) and -751(F)(3), but affirmed the death sentence in light of the other three aggravating circumstances and lack of mitigating circumstances.


State v. Evans (Evans III), 147 Ariz. 57, 708 P.2d 738 (1985)

PROCEDURAL POSTURE:
The defendant was convicted in Superior Court (Maricopa of first- degree murder and armed robbery and sentenced to death. On appeal, the case was remanded to the trial court for resentencing. The death sentence was again imposed. The Arizona Supreme Court, in Evans II, 124 Ariz. 526, 606 P.2d 16 (1980), affirmed the reimposition of the death sentence. The defendant then petitioned for post-conviction relief, which was denied by the trial court. This is the appeal from the denial of post-conviction relief.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - UPHELD
The defendant had previously been convicted in California of first degree attempted robbery. The Court found that this crime could not be committed without the use of force or fear against another after reviewing the applicable California statute. The notation in the entry of judgment that the defendant did not use a deadly weapon during the commission of the offense does not mean that this was not a crime of violence, as that language concerned sentencing enhancement as opposed to the nature of the crime itself.

MITIGATING CIRCUMSTANCES:

There is no discussion of mitigating circumstances in this opinion. This is the review of denial of post conviction relief.

JUDGMENT: The defendant is denied relief.

The defendant filed a petition for habeas relief in federal court. The district court denied relief and the defendant appealed that decision to the Ninth Circuit Court of Appeals. The Ninth Circuit affirmed the conviction, but reversed the trial court's ruling based on ineffective assistance of counsel at sentencing. The Ninth Circuit released the defendant from the death sentence and remanded the case to state court for resentencing. Evans v. Lewis, 855 F.2d 631 (1988).


State v. Tittle, 147 Ariz. 339, 710 P.2d 449 (1985)

PROCEDURAL POSTURE:
The defendant was convicted in Superior Court (Maricopa) of first- degree murder and armed robbery and he 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) - UPHELD
The defendant had a 1965 California robbery conviction. He acknowledged that in 1965 a first-time robbery conviction in Arizona was punishable by five years to life. The Court rejected the argument that robbery was not punishable by life imprisonment in Arizona at time of the defendant's capital sentencing. The trial court was required to look at the potential penalty imposable at time the defendant was sentenced on the original conviction.

(F)(2) (Prior Violent Felony) - DISCUSSED
The trial court did not consider the California robbery conviction in connection with the (F)(2) aggravating circumstance. The Court noted that on remand, the trial court could also consider the robbery conviction for the purposes of (F)(2), without violating double jeopardy.

MITIGATING CIRCUMSTANCES:

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

Remorse
Model Prisoner [changed attitudes and religious]

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

(G)(1) Significant Impairment [heroin use on day of murder]

JUDGMENT: Remanded for resentencing.


State v. Johnson, 147 Ariz. 395, 710 P.2d 1050 (1985)

PROCEDURAL POSTURE:
The defendant was convicted in Superior Court (Maricopa) of first-degree murder and attempted first-degree murder. Defendant was 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
This aggravating circumstance did not exist because the defendant intended to kill both victims. The other person endangered by the shooting was an intended victim. Although each victim was close enough to the other that shooting one created a grave risk of death to the other, (F)(3) does not apply when the defendant intends to kill both victims and he does not care which one he kills first. The fact that one victim survives does not satisfy an (F)(3) finding.

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

Cruel: Not addressed.

Heinous or Depraved: Reversed.
Senselessness: Found. While the Court admits that the killing was senseless, this alone does not constitute a finding of heinous or depraved conduct. The Court said: "The record does not support the finding of heinous or depraved conduct in the case before us. Defendant killed senselessly, without apparent purpose or motive, possibly while inebriated or to some extent mentally deranged. As reprehensible as this may be, it is not outside the `norm' of first-degree murders. It certainly is not the type of conduct previously recognized as `heinous or depraved' in our cases." 147 Ariz. at 401.

MITIGATING CIRCUMSTANCES:

No discussion of mitigating circumstances.

JUDGMENT: Both aggravators were overturned, and therefore the death sentence was vacated. The Court remanded for resentencing with instructions that defendant be sentenced to imprisonment for life without possibility of parole for twenty-five years.


State v. Correll, 148 Ariz. 468, 715 P.2d 721 (1986)

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

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - UPHELD
The defendant was previously convicted in California on three counts of robbery. He received an enhanced sentence on one of those counts because he used a firearm in the commission of a felony. The Arizona Supreme Court reviewed the statute under which the defendant was convicted and rejected the argument that a person could commit robbery with the threat of violence against the property, and not the person, of another. The Court held that armed robbery against the property of a victim does not occur without the threat of violence against the person as well.

(F)(5) (Pecuniary Gain) - UPHELD
The Court rejected Correll's claim that the expectation of pecuniary gain was not the cause of the murders. Correll and an accomplice, Nabors, went to the mobile home of Nabors' co-worker. Once inside, Nabors pulled out a gun and demanded money. Correll and Nabors led one victim through the house searching for money and valuables. After completing the search, Correll and Nabors drove three victims to the desert, made them lie face down on the ground, and shot them. Noting that the facts here are similar to State v. Hensley, 142 Ariz. 598, 691 P.2d 689 (1984), the Court found the murders were part of the overall scheme of robbery, rather than unexpected or accidental. Correll and Nabors carefully executed the armed robbery and the murders were part of the scheme. "The only motivation for the killings was to leave no witnesses to the robbery." 148 Ariz. at 479.

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

Cruel: Upheld.
Mental Anguish: Found. All three victims experienced great distress. The victims were bound with duct tape and driven into the desert, and forced on the ground. After the first victim was shot, the other two victims knew they would come next. The Court held the victim, Cady, must have suffered even more distress after the gun misfired multiple times before she was finally killed.

Heinous or Depraved: Upheld.
Senselessness: Found. The murders were unnecessary to accomplish the robbery.
Helplessness: Found. The victims were helpless as they were bound and gagged. The victims could not resist and were killed one by one.
Witness Elimination: Found. The only ascertainable motive for the murders was to eliminate any witnesses from the robbery. Defendant demonstrated a "total disregard for human life." 148 Ariz. at 481.

Note: In State v. Barreras, 181 Ariz. 516, 892 P.2d 852 (1995), the Court questioned the soundness in Correll of using the same aspect, not leaving a witness to the crime behind, to support both a finding of "senselessness" and of "witness elimination." State v. Barreras, 181 Ariz. at 523 n.6, 892 P.2d at 859 n..6.

(F)(8) (Multiple Homicides) - REVERSED
The defendant was convicted of the strangling death of one victim and the shooting deaths of two other victims. All the victims were killed the same night after the defendant and codefendant searched the trailer for valuables. The defendant argued that this aggravating circumstance was inapplicable in this case because the crime occurred before the enactment of the amendment adding (F)(8) to the list of aggravating circumstances. The Court agreed and found that application of (F)(8) to this defendant would constitute an ex post facto law and is constitutionally prohibited.

MITIGATING CIRCUMSTANCES:

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

Age - [24 years old at time of murder]
Cooperation in preparation of presentence report

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 [psychological problems]
(G)(3) Minor Participation [as to two of the victims]

But regarding the third victim, the Court found insufficient evidence that the defendant intended to kill or actually killed, in order to satisfy the Enmund standard. The court reduced that sentence to life.

JUDGMENT: Convictions and judgments are affirmed. All sentences are affirmed, except the sentence on one of the murder counts, as the Court could not find support for a finding that defendant intended to kill that victim beyond a reasonable doubt.


State v. Castaneda, 150 Ariz. 382, 724 P.2d 1 (1986)

PROCEDURAL POSTURE:
Defendant was convicted in Superior Court (Pima) of one count of first-degree murder, six counts of sexual conduct with a minor under 15, and two counts of kidnapping. Defendant was sentenced to death. This is defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
The defendant had previously been convicted of aggravated assault, assault with intent to commit rape, assault with a deadly weapon, armed burglary, and lewd and lascivious acts. Some of these priors were discussed in an earlier appeal of this case in State v. Castaneda, 111 Ariz. 264, 528 P.2d 608 (1974). Here, the defendant claimed that there was no factual basis for his competency to plead guilty to those earlier offenses. The record indicates, however, that two mental health experts testified to the fact that the defendant was competent to plead guilty. The defense then argued that the court never notified the defendant that by pleading guilty, these convictions could be used to support the imposition of the death penalty. Again, the record indicates that the judge did discuss the fact that the prior convictions could be considered in sentencing on the capital case.

(F)(2) (Prior Violent Felony) - UPHELD
See discussion under (F)(1). The Court found testimony in the record sufficient to show that the defendant was competent to plead guilty to other offenses, and that the trial judge told the defendant that these prior convictions could be considered in sentencing on the capital case.

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

Cruel: Upheld.
Mental Anguish: Found. The victim was sexually abused at defendant's shop, taken to a desert area and forced to walk naked approximately 100 yards across the desert in bare feet. Witness testimony indicated that the victim realized that defendant intended to kill him. The victim begged for his life.
Physical Pain: Found. Defendant stabbed the victim in the chest four times. It may have taken the victim as long as five minutes to die. Evidence also indicated that the victim died in great pain from lying on a red anthill.

Heinous or Depraved: Not addressed.

MITIGATING CIRCUMSTANCES:

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

Difficult childhood/Family history
Model Prisoner
Remorse

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 [psychological problems]
(G)(2) Duress [personality disorder and impulse control do not amount to duress]

JUDGMENT: Convictions and sentences affirmed.


State v. McMurtrey (McMurtrey III), 151 Ariz. 105, 726 P.2d 202 (1986)

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. The Arizona Supreme Court remanded for resentencing. State v. McMurtrey (McMurtrey I), 136 Ariz. 93, 664 P.2d 637 (1983). The defendant again received the death sentence, and that sentence was also set aside and remanded for resentencing. State v. McMurtrey (McMurtrey II), 143 Ariz. 71, 691 P.2d 1099 (1984). The defendant was sentenced to death for the third time and this is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(3) (Grave Risk of Death to Others) - UPHELD
When the defendant shot the victims in a crowded bar, there were five to nine others "in the immediate area of the victims when they were shot."

MITIGATING CIRCUMSTANCES:

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 [mental state and intoxication]

JUDGMENT: Death sentence affirmed.


State v. Wallace (Wallace I), 151 Ariz. 362, 728 P.2d 232 (1986)

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

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - REVERSED
The trial court found this aggravating circumstance only as to the murder of Susan Insalaco, the mother of the two other murder victims. After killing all three victims, the defendant stole money and Susan's truck to go get drunk. The Court found that while the defendant took these items, it was not clear that the theft of those items was the reason for the murder. The motive for the murders appears to have been based on the difficulties of the defendant's relationship with Susan. The taking of her property was therefore, only incidental to the murder.

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

Cruel: Reversed.
Mental Anguish: Not found. No evidence of mental anguish can be established where each of the three victims was attacked quickly and by surprise, and there is no evidence that they were conscious after the initial blow.
Physical Pain: Not found. Physical pain is not established beyond a reasonable doubt because the record is inconclusive as to whether any of the victims were even conscious following the initial blow to the head.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The Court found gratuitous violence because defendant continued to strike the victims over the head after they had collapsed to the floor. One victim was struck so severely that a substantial amount of brain matter was spattered on the floor and wall. In killing another victim, defendant shoved a jagged portion of the broken baseball bat through her throat after beating her. The Court noted that a less violent alternative was clearly available, since defendant admitted to having a loaded gun with him the afternoon of the killings. Defendant chose not to use it because the noise would alert neighbors of the crime.
Senselessness: Found. The Court found senselessness because defendant waited for several hours, then brutally murdered a mother and her two children. Defendant had no quarrel with the two children. He lived with them as a family for more than two years.

MITIGATING CIRCUMSTANCES:

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

Remorse

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 [by intoxication or drugs]
(G)(2) Duress [including claim that crimes were result of passion]

JUDGMENT: Conviction affirmed. Finding of F(6) aggravation upheld for all three counts. Death sentence on two counts (not dealing with F(5) aggravation) affirmed. Remand for resentencing on count III, the murder of the mother, with F(6) aggravation upheld, but F(5) aggravation reversed.