Capital Sentencing Guide

1987-1989

State v. Ronald Williams, 166 Ariz. 132, 800 P.2d 1240 (1987)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder and burglary. He was sentenced to death for the murder conviction and fourteen years in prison for the burglary. 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 with almost no discussion. The defendant had two prior felony convictions for murder at the time he was sentenced for the 1981 murder of a Scottsdale man during a burglary. The Arizona Supreme Court summarily agreed with the trial court that these two prior murder convictions, despite any of the circumstances surrounding those murders, sufficiently meet the requirements for an (F)(1) finding.

(F)(2) (Prior Violent Felony) - UPHELD
The (F)(2) finding was upheld with very little discussion. The defendant had two prior convictions for murder. At least one of those prior convictions was for felony murder. The Court found both convictions to be for serious crimes involving violence.

(F)(5) (Pecuniary Gain) - UPHELD
Citing State v. Walter LaGrand, 153 Ariz. 21, 734 P.2d 563 (1987), the Court held that no explanation exists for the killing other than the victim discovered a burglary in progress. Items were taken from the neighbor's house when the victim went over to investigate and was found shot to death. Unlike cases where other inferences exist as to the motive for the killing, or where the facts make no one inference any more probable than another, here the facts point to the killing occurring to permit the defendant to complete the burglary or make his escape. Either way, pecuniary gain was a motivating circumstance.

MITIGATING CIRCUMSTANCES:

The Court found that there were no mitigating circumstances sufficiently substantial to call for leniency. The Court found the defendant failed to prove by a preponderance of the evidence the existence of the following as mitigating circumstances:

Family Ties
Model Prisoner [good behavior]
Difficult Childhood/Family History
Circumstances of the prior convictions

JUDGMENT: Convictions and sentences affirmed.


State v. Karl LaGrand, 152 Ariz. 483, 733 P.2d 1066 (1987)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of first-degree murder, attempted murder, attempted armed robbery in the first-degree, attempted armed robbery, and two counts of kidnapping. Along with his half-brother, Walter LaGrand, the defendant was sentenced to death on the murder conviction and to concurrent terms of imprisonment for the other convictions. This is his automatic, direct appeal to the Arizona Supreme Court. 

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
The pecuniary gain finding under (F)(5) was not discussed in this opinion. The Court refers the reader to the decision in State v. Walter LaGrand, 153 Ariz. 21, 734 P.2d 563 (1987).

MITIGATING CIRCUMSTANCES:
There is no discussion of mitigating circumstances in this opinion. The Court stated that the analysis of the specific findings of aggravating and mitigating circumstances in State v. Walter LaGrand, 153 Ariz. 21, 734 P.2d 563 (1987), applies here.

JUDGMENT: Convictions and sentences affirmed. Vice Chief Justice Feldman concurred in the decision but disagreed with the portion of the opinion dealing with pecuniary gain. He joined Chief Justice Gordon in his footnote indicating that he would have stricken the pecuniary gain finding and remanded to the trial court for resentencing.


State v. Walter LaGrand, 153 Ariz. 21, 734 P.2d 563 (1987)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of first-degree murder, attempted murder, attempted armed robbery [of a bank], and two counts of kidnapping. He was sentenced to death for the murder. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - UPHELD
The defendant was previously convicted of armed robbery and kidnapping. The Court found that those convictions had been proven beyond a reasonable doubt, and that they involved the use or threat of violence sufficient to support this aggravating circumstance.

(F)(5) (Pecuniary Gain) - UPHELD
The Court noted that an unexpected or accidental death that occurs during the course of or flight from a robbery does not in itself provide a sufficient basis for finding the (F)(5) aggravating circumstance. But, the reason for the defendant's presence at the crime scene should not be ignored. "When the defendant comes to rob, the defendant expects pecuniary gain and this desire infects all other conduct of the defendant." Here, the attempted bank robbery "permeated the entire conduct of the defendant." Although he may have acted irrationally to the inability of the victim to open the safe, the murder was not accidental or unexpected. Justices Gordon and Feldman dissented from the portion of the opinion upholding the pecuniary gain finding. They disagreed that a pecuniary motive necessarily caused the murder merely because the LaGrands intended to rob the bank. They further disagreed that the murder was in furtherance of the goal of pecuniary gain because "it provided the LaGrands with neither access to nor escape with money or other valuables." And finally, they concluded that it was equally , if not more likely that the panic caused by the victim's kick to Karl LaGrand's leg motivated the LaGrands to kill the victim.

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

Cruel: Upheld.
Mental Anguish: Found. The Court found mental anguish as the victim, the bank manager, was bound and gagged, called a liar (about his inability to open the bank's safe), and threatened with death more than once. The victim had a letter opener placed against his throat.
Physical Pain: Found. The victim received twenty-four stab wounds, only five of which would have immediately killed the victim. Therefore, the Court found it reasonable to assume that the victim suffered "some physical torment" prior to dying.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The Court found gratuitous violence and mutilation in stabbing a bound and gagged man twenty-four times. The defendant had a "callous disregard for human worth."
Mutilation: See "gratuitous violence."
Helplessness: Found. The victim was bound and gagged.

MITIGATING CIRCUMSTANCES:

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

Age [19 years old at time of the murder]
Difficult Childhood/Family History
Lack of Intent to Kill [may have killed victim out of fear and surprise - not calculated]
Remorse

JUDGMENT: Convictions and sentences are affirmed.


State v. Rossi (Rossi II), 154 Ariz. 245, 741 P.2d 245 (1987)

PROCEDURAL POSTURE:
The defendant was convicted in Superior Court (Maricopa) of first-degree burglary, attempted first-degree murder and first-degree murder, and was sentenced to death for the murder. On appeal, the Arizona Supreme Court affirmed the convictions, but vacated the death sentence and remanded for resentencing. Rossi I, 146 Ariz. 359, 706 P.2d 371. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

There is no discussion of aggravating circumstances in this opinion.

MITIGATING CIRCUMSTANCES:

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

(G)(1) Significant Impairment [cocaine addiction]
Potential for Rehabilitation

The Court remanded to the trial court for resentencing, directing the trial court to consider these mitigating circumstances when imposing a new sentence.

JUDGMENT: Affirmed in part, but remanded for resentencing.


State v. Moorman, 154 Ariz. 578, 744 P.2d 679 (1987)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pinal) of the first-degree murder of his adoptive mother while on release from the Arizona State Prison at Florence for a three-day compassionate furlough, and was sentenced to death. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

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

(F)(5) (Pecuniary Gain) - UPHELD
This aggravating circumstance was upheld without discussion. The defendant did not contest the finding on appeal. The defendant was on compassionate leave from the Arizona State Prison in Florence and staying in a nearby motel with his 74-year old adoptive mother when he suffocated her and dismembered her. In his locker at the prison was a codicil to her will leaving her considerable estate to the defendant.

(F)(6) (Heinous, Cruel or Depraved) - UPHELD
The Court upheld the trial court's (F)(6) finding, but did not go into detail in analyzing the specific facts of this brutal murder and dismemberment.

Cruel: Upheld.
Mental Anguish: Found. In defendant's confession, he admitted that he and the victim were arguing, and that he tied her up, hit her and suffocated her.
Physical Pain: Found. Bruises and puncture marks were inflicted before the victim's death. The medical examiner showed slides of predeath bruises on the victim's face, breasts, legs, and buttocks. The medical examiner stated that the victim was most likely awake when some of the wounds were inflicted.

Heinous or Depraved: Not addressed.

MITIGATING CIRCUMSTANCES:

The Court found that the (G)(1) Significant Impairment mitigating circumstance existed, but agreed with the trial court that it was not sufficiently substantial to call for leniency in this case.

JUDGMENT: Conviction and sentence of death affirmed.

Comment: The Court found that "[m]atricide is above the norm of first degree murders." 154 Ariz. at 587.


State v. Arnett (Arnett III), 158 Ariz. 15, 760 P.2d 1064 (1988)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Mohave and Yavapai) of first-degree murder and sentenced to death. On appeal, the case was remanded for resentencing, State v. Arnett (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, which was upheld on appeal by the Arizona Supreme Court. State v. Arnett (Arnett II), 125 Ariz. 201, 608 P.2d 778 (1980). The defendant then petitioned for post-conviction relief. The trial court denied that petition and this appeal to the Arizona Supreme Court followed.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
The (F)(1) finding was upheld based on a California conviction for lewd and lascivious acts upon a child under the age of fourteen. While this conviction supports both an (F)(1) and an (F)(2) finding, and there is no constitutional prohibition against using it as support for those aggravating circumstances, it may only be weighed once in determining whether to impose a death sentence.

(F)(2) (Prior Violent Felony) - UPHELD
The defendant was previously convicted of robbery. The trial court found that this robbery conviction supported both the (F)(1) and the (F)(2) finding. The Court agreed, but cautioned that it may only be weighed once.

MITIGATING CIRCUMSTANCES:

There is no discussion of mitigating circumstances in this case.

JUDGMENT: Conviction and death sentence affirmed.


State v. Beaty, 158 Ariz. 232, 762 P.2d 519 (1988)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder and sexual assault committed while on probation or parole for a prior felony conviction. The defendant was sentenced to death based on a finding of one aggravating circumstance, A.R.S. § 13-751(F)(6). 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 suffered terror and horror. The Court noted the presence of vomit in the victim's mouth: "Surely the process of holding the victim against her will, clamping a hand over her mouth to muffle her screams, thus causing her to vomit reflects the terror and horror that must have been present in the victim's mind."

Heinous or Depraved: Upheld.
Senselessness: Found. The Court found that the murder was senseless as the victim was a thirteen-year-old girl who was helpless against the defendant. The victim was also sexually assaulted either contemporaneously with or shortly after her death. The Court prefaced the above determination commenting on the circumstances in State v. Zaragoza, 135 Ariz. 63, 659 P.2d 22 (1983) (attacking a seventy-eight-year-old victim who was "easy prey" showed a shockingly evil and corrupt state of mind). The Court also cited State v. Roscoe, 145 Ariz. 212, 700 P.2d 1312 (1984), where the murder and sexual assault of a seven-year-old girl is by its nature repugnant to a civilized society.
Helplessness: Found. See "senselessness."

MITIGATING CIRCUMSTANCES:

The trial court found no mitigating circumstances existed, and the Court affirmed the death sentence without discussion of mitigation.

JUDGMENT: Convictions and sentences affirmed.


State v. Stevens, 158 Ariz. 595, 764 P.2d 724 (1988)

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

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
The (F)(5) finding was upheld without discussion of the facts supporting the finding. Stevens did not argue that the state failed to prove this aggravating circumstance and the Court noted that this aggravator is properly found when receipt of money was the motive for the murder. The facts described elsewhere in the opinion are that Stevens told one of the victims, Craven, to meet him at a convenience store. Craven and Nash, the other victim, drove to the convenience store and waited in their truck for Stevens to arrive. After Stevens arrived, he walked to the truck, pulled out a gun and pointed it at Craven's head and told both victims to empty their pockets and give the contents to him, and then shot at the victims, hitting only one of them. Stevens was later arrested with the gun and a large amount of cash under his shirt.

MITIGATING CIRCUMSTANCES:

The Court found that the (G)(1) Significant Impairment mitigating circumstance existed and concluded that it was sufficiently substantial to call for leniency in this case.

JUDGMENT: Convictions and non-capital sentences affirmed. Death sentence vacated to life imprisonment without the possibility of parole for 25 years, based on the Arizona Supreme Court's determination that the mitigation in this case outweighed the (F)(5) aggravating circumstance.


State v. Mauro (Mauro II), 159 Ariz. 186, 766 P.2d 59 (1988)

PROCEDURAL POSTURE:
The defendant was convicted in Superior Court (Coconino) of first-degree murder and child abuse. The defendant was sentenced to death based on a finding of two aggravating circumstances. On appeal, the Court reversed and remanded. The state appealed, and the United States Supreme Court reversed and remanded to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
The (F)(1) finding was supported by a Colorado conviction for felony menacing. The Court rejected the defendant's argument that (F)(1) violates double jeopardy or double punishment principles under A.R.S. §13-116.

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

(F)(6) (Heinous, Cruel or Depraved) - UPHELD
The A.R.S. § 13-751(F)(6) determination is not reviewed, it is only implicitly validated while the Court reduces the sentence to life imprisonment due to substantial mitigation. The factual analysis below is the product of the authors, not the Court, and the findings come from the first decision, 149 Ariz. 24, 716 P.2d 393 (1986).

Cruel: Upheld.
Mental Anguish: Found. The victim, defendant's seven-year-old son began crying and screaming from the bathroom, where he had been imprisoned for several days by his father.
Physical Pain: Found. Defendant went into the bathroom and forced a rolled sock and two cloths down the boy's throat. The boy died of asphyxiation. The seven-year-old victim weighed only thirty-eight pounds. He had numerous bruises and abrasions over his body, some of which were recent. Marks on his ankles were consistent with having been bound, and he showed signs of malnutrition. Wounds on the victim's body indicated a struggle shortly before death, including strong resistance to the sock being placed in his mouth.

Heinous or Depraved: Upheld.
Relishing: Found. At a K-Mart store, after disposing of his son's body, defendant claimed to have killed the devil and to have put him in a suitcase, but that he was still moving.
Senselessness: Found. The victim was defendant's son.
Helplessness: Found. The victim was only seven years old, and the confinement and malnutrition he had suffered showed his helplessness.

MITIGATING CIRCUMSTANCES:

The Court found that the (G)(1) Significant Impairment mitigating circumstance existed and that it was sufficiently substantial to call for leniency in this case.

JUDGMENT: Conviction affirmed. Death sentence reduced to life imprisonment due to substantial mitigation.


State v. Vickers (Vickers II (Holsinger murder)), 159 Ariz. 532,768 P.2d 1177 (1989)

PROCEDURAL POSTURE:
The defendant was convicted in Superior Court (Pinal) of first-degree murder and arson of an occupied structure. He was sentenced to death based on A.R.S. §§ 13-751(F)(1), -751(F)(2), -751(F)(3), 751(F)(6), and -751(F)(7). 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 assault with a deadly weapon, murder in the first degree, and dangerous or deadly assault by a prisoner. The first-degree murder had been set aside and a new trial ordered, but the other two convictions were valid and punishable under Arizona law by imprisonment. Thus, the other two convictions still supported this aggravating circumstance.

(F)(2) (Prior Violent Felony) - UPHELD
See discussion under (F)(1). The defendant previously had been convicted of assault with a deadly weapon, first degree murder, and dangerous or deadly assault by a prisoner. The first-degree murder conviction was overturned and remanded for a new trial. The other two convictions were valid and involved the use or threat of violence on another person. The two remaining convictions were sufficient to support this aggravating circumstance.

(F)(3) (Grave Risk of Death) - UPHELD
The defendant set a fellow inmate on fire; the smoke endangered the lives of two other inmates.

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

Cruel: Upheld.
Physical Pain: Found. By throwing flammable liquid on the victim-inmate and igniting him, the victim suffered great pain. The victim received burns over most of his body and died from burns to his bronchial tubes and lungs. Medical testimony established that the victim was upright during part of the attack and tried to extinguish the flames around his head, demonstrating consciousness. 159 Ariz. at 546.

Heinous or Depraved: Upheld.
Relishing: Found. When asked by prison officials if the victim was dead, the defendant stated, "He ought to be. He's on fire."
Senselessness: Found. Defendant had not been harmed by the victim.
Helplessness: Found. Victim was a physically handicapped man locked in his cell. He had no way to escape and no defense.

(F)(7) (Murder Committed while in Custody) - UPHELD
The defendant committed this murder while in the custody of the Department of Corrections, at the Arizona State Prison.

MITIGATING CIRCUMSTANCES:

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

Age [23 years old at the time of the murder]

JUDGMENT: Conviction and death sentence affirmed.


State v. Walton, 159 Ariz. 571, 769 P.2d 1017 (1989)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of first-degree murder, armed robbery, kidnapping, and theft by control. The death penalty was imposed based on A.R.S. §§ 13-751(F)(5) and 751(F)(6). This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
Walton killed the victim to facilitate Walton's robbery of the victim's car. By killing the victim, Walton expected to have time to flee the state with the victim's car and money. To support a finding of this aggravating circumstance, the killing and the robbery need not occur simultaneously, but the purpose of the killing must be to further the motive of pecuniary gain. Executing a victim to facilitate escape and hinder detection to successfully keep stolen items furthers a pecuniary gain motive.

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

Cruel: Upheld.
Mental Anguish: Found. The victim was driven out to a remote area of the desert. The victim's fear was so apparent that an accomplice tried to reassure the victim that he would not be hurt. The victim was forced to lie down on ground while defendant argued with an accomplice over the victim's fate. As defendant marched the victim out into the desert, the victim heard defendant tell accomplices to turn up the volume on the car radio. The implication was so clear to the victim that he urinated in his pants and begged defendant not to kill him.
Physical Pain: Not found. The victim was forced to lie prone on the ground with his head immobile. When defendant shot the victim, he intended to kill him immediately. Therefore, the victim's survival of the shot to the head, and subsequent floundering in the desert for a week (before death from exposure and pneumonia) were neither reasonably foreseeable nor intended. Accordingly, the physical suffering of this victim falls outside the definition of cruelty as outlined by the Court.
Knew or Reason to Know that Victim Would Suffer: Not found as to physical suffering. The victim's physical suffering was not reasonably foreseeable or intended. 159 Ariz. at 587.

Heinous or Depraved: Upheld.
Relishing: Found. The defendant's remark after the murder that he had "never seen a man pee in his pants before" showed a callous fascination with the murder. The Court noted: "The statement shows an indifference to the suffering of the victim and evidences a sense of pleasure which the defendant took in the killing." 159 Ariz. at 587. However, the fact that defendant and his accomplices bought hamburgers and took them home to eat them did not show relishing. The trio had not eaten because they had no money until after committing the crime. The State had tried to characterize the meal as a victory party.

MITIGATING CIRCUMSTANCES:

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

Age [20 years old at time of the murder]

The Court found that the defendant failed to prove beyond a reasonable doubt the existence of the following mitigating circumstances:

(G)(3) Minor Participation
(G)(4) Death not Reasonably Foreseeable

JUDGMENT: Convictions and sentences affirmed.


State v. McCall (McCall II), 160 Ariz. 119, 770 P.2d 1165 (1989)

PROCEDURAL POSTURE: This is the second review of the case and it is consolidated with the defendant's Rule 32 post-conviction relief petition. In 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) ("McCall I"), the Court affirmed all convictions and sentences. In McCall I, the Court reviewed the trial court's imposition of the death sentence based on three aggravating circumstances pursuant to A.R.S. §§ 13-751(F)(3), 751(F)(5), and 751(F)(6), and reversed the trial court's (F)(3) finding.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
In defendant's earlier appeal, State v. McCall (McCall I), 139 Ariz. 147, 677 P.2d 147 (1984), the Court agreed with the trial court that the defendant committed the murders in exchange for part of a $10,000.00 fee, concluding that there was "no doubt" that (F)(5) applies to this "hired gun" situation. In this opinion the Court again found ample evidence that this was a "hired gun" murder. The Court, however, disregarded the trial court's statement that "it is reasonable to conclude from the evidence that McCall shared in the profits of the jewelry and money that the victims were robbed of." Noting that the existence of aggravating circumstances must be established beyond a reasonable doubt, the Court said it was not clear whether the trial court found beyond a reasonable doubt that McCall intended to share in, or actually did share in the profit from the robberies. Nevertheless, the hired gun evidence, alone, supported the (F)(5) finding.

(F)(6) (Heinous, Cruel or Depraved) - UPHELD
The facts supporting this finding are taken from McCall I.

Cruel: Upheld.
Mental Anguish: Found. 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.
Physical Pain: Found. Expert medical testimony was given that one 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 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. The Court appears to make an alternative finding of mutilation or gratuitous violence. However, the Court used mutilation language in connection with the facts.
Senselessness: Found as to one of the victims. 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:

There is no discussion of mitigating circumstances in this opinion. See discussion in McCall I, 139 Ariz. 147, 677 P.2d 920 (1983).

JUDGMENT: Convictions 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 its discussion of "cruelty," the Court noted that a 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 suffering by one of the victims. See 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 to kill immediately.


State v. Prince, 160 Ariz. 268, 772 P.2d 1121 (1989)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder and sentenced to death based on a finding of one aggravating circumstance, A.R.S. §13-751(F)(5). This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - REVERSED
The state argued for the pecuniary gain factor in two ways: (1) the defendant and witness went to the victim's apartment after the murder and stole money and jewelry, and the defendant stole jewelry at the time of the murder; and (2) the defendant murdered the victim to eliminate a financial dispute or debt over money owed to the victim for drugs. The trial court rejected the first argument and only found the pecuniary gain aggravator based on the second argument. There was evidence that the defendant owed the victim money, based on the defendant's admission to this effect, a ledger owned by the victim, and a statement made by the victim to a witness about meeting someone who owed him money. However, while this may establish that the debt existed, it does not prove beyond a reasonable doubt that the murder occurred because of this debt. The Court concluded that the evidence simply did not meet the required standard of proof to support this aggravating circumstance.

MITIGATING CIRCUMSTANCES:

There is no discussion of mitigating circumstances in this case because the Court reversed the finding on the sole aggravating circumstance and reduced the sentence to life imprisonment.

JUDGMENT: Conviction affirmed, but death sentence modified to life imprisonment without the possibility of parole for twenty-five years. Remanded to the trial court to determine if the defendant's sentence on the murder conviction should be consecutive or concurrent to his earlier sentence on a drug charge.


State v. Wallace (Wallace II), 160 Ariz. 424, 773 P.2d 983 (1989)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of three counts of first-degree murder and two counts of armed robbery. He was sentenced to death on each of the murder counts. On direct appeal, the Arizona Supreme Court affirmed in part, vacated in part and remanded for resentencing on one murder count. State v. Wallace (Wallace I), 151 Ariz. 362, 728 P.2d 232 (1986). At resentencing, the defendant was again sentenced to death. This is the defendant's automatic direct appeal from that resentencing.

AGGRAVATING CIRCUMSTANCES:

There is no discussion of aggravating circumstances in this opinion. See Wallace I, 151 Ariz. 362, 728 P.2d 232 (1986).

MITIGATING CIRCUMSTANCES:

The Court found that there were no mitigating circumstances in this case that would call for leniency. 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
Difficult Childhood/Family History

JUDGMENT: Death sentence affirmed.


State v. Rockwell, 161 Ariz. 5, 775 P.2d 1069 (1989)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Mohave) of first-degree murder and robbery, and was sentenced to death for the murder. This is his automatic, direct appeal to the Arizona Supreme Court, consolidated with a review of the trial court's denial of his petition for post-conviction relief.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - REVERSED
The defendant was convicted of a robbery and an assault on a child. At the sentencing hearing the state produced no evidence of the prior convictions, instead relying on a stipulation at trial. However, the trial stipulation did not prove the prior convictions, it only proved certain criminal acts. Normally, the state introduces certified copies of the conviction and evidence establishing that the defendant is the person to whom the document refers. There was insufficient evidence in this case to support the (F)(2) aggravating circumstance.

(F)(5) (Pecuniary Gain) - UPHELD
Rockwell shot and killed an employee at the Bingo Truck Stop near Kingman, Arizona. When the victim was found, the cash register was empty, except for two large bills under the money tray. Approximately $85.00 to $100.00 was missing from the cash register. In his statements to others, Rockwell referred to the incident as a "robbery." The logical inference is that defendant murdered the victim to further the robbery. The victim was shot without any apparent struggle. Even if the victim was shot after the money was taken from the cash register, the murder was part of the robbery because it resulted in eliminating the only witness to the crime.

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

Age [21 years old at the time of the murder]
Difficult Childhood/Family Background
Recommendation for Leniency [by presentence report writer]
"Unique Circumstances of the Conviction" [see Note below]

Note: This case is frequently cited as the only case in which the Court ascribed mitigating weight to "residual doubt." For more information, see the discussion of Rockwell in the Residual Doubt section.

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


State v. Fulminante (Fulminante I), 161 Ariz. 237, 778 P.2d 602 (1988)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder and was sentenced to death for the murder based on A.R.S. § 13-751(F)(6). 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 suffered mental anguish at the time of the crime. Defendant's own words were that he "choked her and made her beg a little bit." 161 Ariz. at 255.
Physical Pain: Found. Defendant's own words were that he "choked her until every last breath and then shot her." 161 Ariz. at 255.

Heinous or Depraved: Upheld.
Relishing: Found. Defendant told an informant that he "hated" the victim and referred to the victim as a "little fucking bitch." Defendant also said, "I want to go piss on her grave." Statements regarding the cruelty of the crime (made by defendant and noted above) showed that defendant was bragging and relishing crime. Testimony suggested that defendant made other statements to informants relating to forcing the victim to perform oral sex, rape, torture, and beating. The trial court found that such statements were in fact made, and the Supreme Court pointed to the statements as evidence of defendant's state of mind. (Note that the trial court did not find beyond a reasonable doubt that such sexual misconduct occurred, and therefore did not consider the possibility of sexual misconduct on the issue of cruelty.)
Senselessness: Found. The defendant could have accomplished other criminal acts or goals without killing the victim.
Helplessness: Found. The Court considered the "special relationship of sacred parental trust which was violated." The victim was the stepdaughter of the defendant. The eleven-year-old victim weighed only ninety pounds, was under parental control, and was capable of manipulation by defendant. The defendant isolated the victim in a remote desert area, where she could not be heard or escape. The victim posed no threat at any time.

MITIGATING CIRCUMSTANCES:

There is no discussion of mitigating circumstances in this opinion.

JUDGMENT: Conviction and sentence set aside, and case remanded for new trial based on coerced confession.


State v. Romanosky (Romanosky I), 162 Ariz. 217, 787 P.2d 693 (1989)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa County) of first-degree murder, armed robbery and aggravated 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)(2) (Prior Violent Felony) - DISCUSSED
The state cross-appealed the trial court's refusal to consider the defendant's prior convictions for robbery, aggravated assault, aggravated robbery and attempted robbery. The jury had found the existence of these prior felonies, but the trial court would not consider them as potential aggravating circumstances because the state did not offer testimony from the victims in those cases or offer transcripts regarding the record of those crimes. The Court held that the trial court erred in not considering the prior felony convictions as statutory aggravating circumstances under (F)(2) absent extrinsic evidence. A court may take judicial notice that some crimes, by definition, are violent felonies. The statutory definition of the crime governs. If the definition of the crime necessarily included the use or threat of violence, then a trial court may find that it is a statutory aggravating circumstance under (F)(2). If the crime could have been committed without the use or threat of violence, then the prior conviction may not be used to support the (F)(2) finding. No extrinsic evidence is required.

MITIGATING CIRCUMSTANCES:

There is no discussion of mitigating circumstances in this opinion.

JUDGMENT: Convictions and sentences set aside and case remanded for a new trial.


State v. Marlow, 163 Ariz. 65, 786 P.2d 395 (1989)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Mohave) of murder and sentenced to death pursuant to A.R.S. §§ 13-751(F)(6), 751(F)(2), and 751(F)(5). Marlow's accomplice was a key state's witness. The accomplice received a stipulated sentence of four years in prison as the result of a plea bargain to aggravated robbery. 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 that the defendant had previously been convicted in New Mexico of assault with intent to commit a violent felony. The Court found that there was insufficient evidence in the record to prove the (F)(2) aggravating circumstance. The documentary evidence submitted adequately showed that a prior conviction existed, however, the testimony linking the defendant to that conviction was insufficient.

(F)(5) (Pecuniary Gain) - UPHELD
The motivation for the murder was to rob the victim and leave no witness to that robbery. The victim had been gambling in Las Vegas and flashing his money. A codefendant testified that the victim was driven into Arizona, bound and robbed, kicked off a cliff, and hit on the head with a boulder several times. Citing State v. Correll, 148 Ariz. 468, 715 P.2d 721 (1986), and State v. Hensley, 142 Ariz. 598, 691 P.2d 689 (1984), the Court stated that similar motivations and killings had supported the pecuniary gain finding.

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

Cruel: Not addressed.

Heinous or Depraved: Upheld.
Witness Elimination: Found. The Court held that the motive for the killing, to eliminate the victim as a witness to the robbery, supported a finding of "heinous or depraved." The defendant and his accomplice befriended a gambler who got lucky playing keno. They left Las Vegas with the gambler, and drove in defendant's car into Arizona. A short distance into Arizona, defendant stopped, pulled a knife and made the victim take off his shoes and socks. The victim was bound and robbed. Defendant eventually drove to a turnoff of the road and stopped, took the victim outside and kicked the victim over a cliff. The defendant then followed the victim to the bottom of the cliff and hit him several times on the head with a boulder. See Note, below.

MITIGATING CIRCUMSTANCES:

The Court found that the dramatic disparity between the defendant's death sentence and his codefendant's four-year sentence was sufficiently substantial to call for leniency in this case. The defendant and codefendant were both originally charged with first-degree murder. Moreover, the state requested an accomplice instruction at defendant's trial and argued an accomplice theory to the jury. A jury note indicated that the jury considered whether the codefendant, who had a prior homicide conviction, had struck the fatal blow. While the Court appreciated the difficult tactical choices that must sometimes be made by the prosecutor to obtain a conviction. Once the prosecution obtains such a conviction, a "disparity between the sentences of accomplices of the sort that occurred in this case must be considered and may be found as a mitigating circumstance and weighed" in determining whether to impose a death sentence.

JUDGMENT: Conviction is affirmed. Sentence is reduced from death to life imprisonment without the possibility of parole for twenty-five years. The Court indicated that the evidence supported that the murder was for pecuniary gain and that it supported the murder was committed in a heinous or depraved manner. However, the Court recognized that it could weigh only once the fact that the motive for the killing was to avoid detection. State v. Tittle, 147 Ariz. 339, 710 P.2d 449 (1985). Since there was no proof beyond a reasonable doubt to support a finding of A.R.S. § 13-751(F)(2), the Court weighed only one substantial aggravating circumstance against a substantial mitigating circumstance, that the co-defendant received only a four year sentence.

Note: Marlow was heavily criticized in State v. King, 180 Ariz. 268, 285 (1994). The King Court addressed directly whether A.R.S. § 13-751(F)(6) permits a finding of depravity based solely on a finding that the motive for the killing was to eliminate witnesses. The King Court held that it does not. The King Court attributed a lack of discussion concerning the Marlow decision to the ultimate reduction of the sentence to life imprisonment.



State v. 
Schad (Schad III), 163 Ariz. 411, 788 P.2d 1162 (1989)

PROCEDURAL POSTURE:
The defendant was convicted of first-degree murder and sentenced to death. On direct appeal, the Arizona Supreme Court affirmed the sentence in Schad I, 129 Ariz. 557, 633 P.2d 366 (1981). On the defendant's petition for post-conviction relief, the Arizona Supreme Court reversed the conviction, holding that the trial court committed fundamental error by instructing the jury on felony murder without defining the elements of the underlying felony. Schad II, 142 Ariz. 619, 691 P.2d 710 (1984). On remand, the defendant was convicted of first-degree murder and sentenced to death. 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 second-degree murder, which occurred in connection with mutual acts of sodomy. The defendant argued that changes in the criminal code reducing sodomy to a misdemeanor and the elimination of second-degree felony murder require that this Utah conviction not be considered in sentencing. The Court disagreed and argued that it must look to the penalty in effect at the time the defendant was sentenced for the prior crime. In 1968, the maximum penalty for second-degree murder was life imprisonment. Furthermore, the underlying offense was not sodomy, but second degree murder based on the manner in which the sodomy was performed. The victim in that case was found in a closet with his hands and feet bound and two pieces of cloth around his neck. The cloth around the neck was apparently used to restrict the flow of blood to the brain to heighten the erotic stimulus. Aside from the issue of the constitutionality of consensual sodomy statutes, a state may lawfully punish a person for engaging in conduct that exhibits a knowing or reckless disregard for human life.

(F)(2) (Prior Violent Felony) - DISCUSSED
The defendant was previously convicted of second-degree murder. The defendant argued that death was an accident involving no physical force. The state argued that murder is inherently a violent crime, and cannot occur without some type of violence to the victim. The Court did not resolve the issue because the trial judge found that the total mitigation present was not sufficient to overcome any one of the aggravating factors in this case. The trial court found both (F)(1) and (F)(5) in addition to (F)(2). Any of those other factors would have been sufficient to support the death sentence.

(F)(5) (Pecuniary Gain) - UPHELD
The evidence "strongly supports" the trial court's (F)(5) finding. After encountering the victim, the defendant abandoned the stolen car that he had been driving and took the victim's car. He also left the murder scene with the victim's wallet, money, credit cards and ring. "This provides strong circumstantial evidence that the purpose of the murder was pecuniary gain."

MITIGATING CIRCUMSTANCES:

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

Potential for Rehabilitation
Model Prisoner ["exemplary behavior"]

JUDGMENT: Conviction and sentence affirmed.