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Arizona Judicial Branch

1990-1992

State v. Samuel Lopez (Samuel Lopez I), 163 Ariz. 108, 786 P.2d 959 (1990)

PROCEDURAL POSTURE:
(Samuel Lopez I), 163 Ariz. 108, 786 P.2d 959 (1990) The defendant was convicted in Superior Court (Maricopa) of first-degree murder, kidnapping, sexual assault, and burglary, and 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) - REVERSED
The trial court found (F)(2) based on a previous resisting arrest conviction. The Court looked to the statutory definition of resisting arrest and concluded that one can commit resisting arrest under subsection 2 without using or threatening violence. Therefore, this conviction cannot be used as the basis for an (F)(2) finding.

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

Cruel: Upheld.
Mental Anguish: Found. The Court held that the victim must be conscious "during the act of violence or infliction of wounds preceding the victim's death. Our case law does not support defendant's assertion that a finding of cruelty requires that the victim be conscious for each and every wound." See physical pain.
Physical Pain: Found. "From the evidence of a vicious and prolonged beating, stabbing and rape, the trial judge could and did conclude that the victim endured great pain and suffering prior to death." 163 Ariz. at 115. The Court found the evidence demonstrated a struggle had ensued through every room in the apartment, splattering blood throughout, with blood drops on the bathroom and kitchen floors. "A concentration of blood drops in the kitchen, as well as the stream of dried blood down the victim's body and onto her bloodstained feet, indicated the victim stood for some time while being stabbed. The victim had three lacerations on her scalp and a stab wound to the left cheek. These injuries, although not fatal, caused a considerable amount of bleeding. The victim had lacerations on her right arm and bruises and cuts on her left hand, all of which were characteristic of defensive wounds." 163 Ariz. at 115.

Heinous or Depraved: Upheld. The defendant did not challenge this finding, but the Court held, in its independent review, that the record establishes these elements beyond a reasonable doubt.

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 circumstance:

(G)(1) Significant Impairment [alcohol]

JUDGMENT: Convictions and all sentences except the death sentence affirmed. Death sentence remanded for resentencing because one aggravating circumstance, A.R.S. § 13-751(F)(2), was reversed.


State v. Serna (Serna I), 163 Ariz. 260, 787 P.2d 1056 (1990)

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)(2) (Prior Violent Felony) - UPHELD
The (F)(2) finding was upheld with minimal discussion. The defendant did not challenge this finding on appeal.

(F)(7) (Murder Committed while in Custody) - UPHELD
The defendant committed this offense while in the custody of the Arizona Department of Corrections. The defendant was an inmate at the Perryville prison when he killed the victim.

MITIGATING CIRCUMSTANCES:

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

Model Prisoner [religious and ministers to other inmates]

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

Residual Doubt/Innocence

JUDGMENT: Conviction and death sentence affirmed.


State v. Robinson and Washington, 165 Ariz. 51, 796 P.2d 853 (1990)

PROCEDURAL POSTURE: Codefendants Robinson and Washington were convicted in Superior Court (Yuma) of first-degree murder, attempted first-degree murder, aggravated assault, first-degree burglary and armed robbery after a joint jury trial. Both were sentenced to death. This is the defendants' automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(4) (Procured Commission of Offense) - UPHELD (as to Robinson)
Washington told police that he agreed to participate in Robinson's plan to rip off a cocaine dealer and take any money and drugs present in the house. Apparently, Washington did not know that the victims were actually the parents of Robinson's common-law wife, and not drug dealers. Washington was guided to the house by Robinson. At the house, Washington demanded drugs or money from the victims. The Court found that these facts supported the trial court's finding that Robinson procured the commission of the offense by promising pecuniary gain to Washington.

(F)(5) (Pecuniary Gain) - UPHELD (as to Washington) 
                                         REVERSED (as to Robinson)
Washington's motivation for committing the murders was pecuniary gain. He searched the house for valuables and some items were stolen from the house. He also demanded drugs and money from the victims. On the other hand, there is no evidence that Robinson thought the victims were drug dealers. He went to the house motivated only by revenge and a desire to retrieve Susan, his common-law wife, who was the daughter of the victims.

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

Cruel: Upheld.
Mental Anguish: Found. The Court found that the wife experienced mental anguish before the murder. "The evidence indicated that Sterleen Hill was startled by the sudden intrusion of two armed individuals in her home. She and her husband were bound and forced to lie face down on their bedroom floor while demands were made upon them to produce drugs and money. Being bound would have caused Sterleen great distress. The Court could infer that Sterleen was uncertain as to her ultimate fate. Because there was no evidence that she was rendered unconscious by a physical blow prior to being executed, she, like Ralph Hill, probably heard one of the intruders state that they should `get' the Hills' teenage son. Ralph Hill testified that he was then suddenly rendered unconscious. The evidence supports the inference that his loss of consciousness resulted from being shot in the back with a .12Cgauge shotgun. Sterleen Hill would have witnessed this. Being aware that Ralph had been shot, and undoubtedly realizing that she was next, supports a finding of mental suffering by Sterleen." Moreover, since the weapon was a pump shotgun, a short span of time must have lapsed between the shot to the husband's back and the killing of the wife.

Heinous or Depraved: Upheld.
Senselessness: Found. "As difficult as it may be to define depravity, the gangland-style action of forcing two elderly persons to lay face down on the floor, tying them up, then senselessly shooting them amounts to depraved conduct."

MITIGATING CIRCUMSTANCES:

Robinson did not proffer any mitigation and the Court agreed with the trial court that no mitigating circumstances existed. As for Washington, the Court found the following mitigating circumstance existed, but was not sufficiently substantial to call for leniency:

Family Ties [single parent, raising young son]

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

Impairment [to "any degree" from alcohol]
Age [27 years old at time of crime]

JUDGMENT: Convictions and sentences affirmed.


State v. Comer, 165 Ariz. 413, 799 P.2d 333 (1990)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder, armed robbery, aggravated assault, kidnapping, sexual abuse, and sexual assault and 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 in California of rape, by threats and by force, and assault with a deadly weapon. A certified copy of these convictions was introduced, along with fingerprint evidence linking the documents to the defendant. The Court noted that the statutory definitions of both crimes involved the use or threat of violence upon another person.

(F)(5) (Pecuniary Gain) - UPHELD
The evidence established that Comer had run out of money when he arrived at the Burnt Corral campground. The victim was invited to dinner at Comer's campsite, after which Comer killed him. Comer then went to the victim's campsite and took a camera, fishing equipment and other items. He also looked for money, but found none. The murder was "clearly" motivated by Comer's need for money and supplies. The Court found no merit in Comer's claim that the (F)(5) finding was erroneous because the items taken from the victim's campsite were of little value. "[T]he murder was committed with the expectation that [Comer] would find money, gas and other supplies at [the victim's] campsite. The fact that he did not obtain money or property of any substantial value does not negate his original expectation of pecuniary gain."

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

Cruel: Not addressed.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The defendant told his companion that he stabbed the victim in the throat after the shooting, which the autopsy confirmed.
Relishing: Found. Shortly after shooting the victim, defendant forced his companion to look at the victim's body and described himself to her as "a cold and callous killer." 165 Ariz. at 429.
Senselessness: Found. It was not necessary to kill the victim in order to rob him. The term "senseless" does not mean the crime was committed without purpose, but rather that it was unnecessary to achieve the defendant's goal, such as robbery. 165 Ariz. at 429.
Helplessness: Found. The victim suffered from a physical disability that made it difficult for him to walk or stand.

MITIGATING CIRCUMSTANCES:

The trial court found no mitigating circumstances sufficiently substantial to call for leniency, and the Court agreed after an independent review of the record. (There is no further discussion in this opinion about what, if any, mitigation evidence was presented by the defendant).

JUDGMENT: Convictions and sentences affirmed.


State v. Hinchey (Hinchey I), 165 Ariz. 432, 799 P.2d 352 (1990)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder and attempted first-degree murder, and 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) - REVERSED
The trial court found the existence of this aggravating factor based on a prior conviction for endangerment, took judicial notice of this conviction, and heard testimony from the murder victim's mother to prove that violence was used in the prior endangerment offense. The Court reiterated that the crime must, by statutory definition, involve the use or threat of violence. Furthermore, the court may consider only evidence of the conviction. Allowing other evidence violates the defendant's due process rights. Endangerment cannot support this aggravating factor as the statutory definition does not necessarily require violence, namely the exertion of physical force or an intent to harm.

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

Cruel: Reversed. "To qualify as a §13-751(F)(6) 'committed in an especially cruel manner' aggravating circumstance, defendant's acts must have been committed while the victim was conscious; otherwise, the evidence is inconclusive as to whether the victim actually suffered pain or distress."
Mental Anguish: Not found. The Court found insufficient evidence of mental anguish because consciousness of the victim was not proven beyond a reasonable doubt. The medical examiner's testimony suggested that the gunshot wound could have rendered the victim unconscious. The defendant confessed that he shot the victim first, and the state presented no evidence to contradict the defendant's confession.
Physical Pain: Not found. The State conceded that the victim's moaning was the only evidence that she suffered pain, and such moaning might have been an involuntary and reflexive act. The medical examiner's testimony suggested that the gunshot wound could have rendered the victim unconscious, and medical evidence could not determine whether the gunshot to the head or stab wounds to the abdomen came first.
Knew or Reason to Know that Victim Would Suffer: Not found. "In addition, the State must show that defendant either intended or reasonably foresaw that the victim would suffer as a result of his acts." 165 Ariz. at 438. The Court points out that the State presented no evidence that defendant intended or foresaw that the victim would suffer.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The Court held that the defendant used considerably more force than was necessary. The attack was committed with three separate instruments (a gun, a large bottle and a large knife). The victim was shot twice in the face, the defendant left the victim to pursue her mother, and returned to beat the victim over the head with a large bottle. Defendant then went to the kitchen to retrieve a large knife, returned to the victim's room and stabbed her several times, leaving the knife protruding from her abdomen.
Senselessness: Found. See helplessness.
Helplessness: Found. The victim, a seventeen-year-old girl, was asleep and helpless when defendant first entered her room.

MITIGATING CIRCUMSTANCES:

There is no discussion of mitigating circumstances in this opinion because the Court remanded for resentencing after reversing the (F)(2) aggravating circumstance. The Court noted that the trial court found that the mitigating circumstances were not sufficiently substantial to outweigh the two aggravating circumstances. Because the Court could not tell whether the trial court would have found the mitigating circumstances sufficient to outweigh the single remaining aggravating circumstance, the Court remanded to allow the trial court another opportunity to exercise its sentencing discretion.

JUDGMENT: Conviction affirmed. Death sentence vacated and remanded to the trial court for a hearing and resentencing because one aggravator, A.R.S. § 13-751(F)(2), was reversed. The trial court relied on Hinchey I to determine that the murder was "heinous or depraved," so Hinchey II did not revisit the issue.


State v. Jiménez, 165 Ariz. 444, 799 P.2d 785 (1990)

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

AGGRAVATING CIRCUMSTANCES:

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

Cruel: Reversed.
The trial court erroneously considered the fact that the victim was under fifteen years of age in its cruelty analysis. The victim's age is considered a separate aggravating circumstance pursuant to A.R.S. § 13-751(F)(9), and must not be considered a second time to support a finding of cruelty. The trial court also considered the victim "helpless," which is a factor to support that the murder was "heinous or depraved," but not cruel. "To support a finding of cruelty, the state must prove beyond a reasonable doubt that the victim was conscious and suffered pain or distress at the time of the offense. . . . It is not inherently `cruel' to murder a victim quickly and by surprise." 165 Ariz. at 453-54.
Mental Anguish: Not found. The victim knew and liked the defendant, and had no reason to feel fear or experience apprehension under the circumstances.
Physical Pain: Not found. Postmortem multiple stab wounds cannot be evidence of cruelty because they could not contribute to the victim's suffering. However, the stab wounds may be considered as evidence of heinousness or depravity. 165 Ariz. at 454. In his confession, defendant said that he heard the victim cry between the two incidents of strangulation. "We find this evidence inconclusive to establish beyond a reasonable doubt that the victim suffered in such a way that the Court could conclude the crime was committed in an especially cruel manner within the specific legal meaning of A.R.S. § 13-751(F)(6). . . . Although defendant related at one point that the victim was crying while he was stabbing her, the pathologist conclusively found that the stab wounds occurred after her death." The Court also noted that the defendant was "hearing voices," rendering his statements unreliable. Moreover, the state did not present any expert or other testimony that the "cry" was evidence of consciousness, as opposed to an involuntary reflex.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The Court found both gratuitous violence and mutilation based on the numerous postmortem stab wounds.
Mutilation: Found. Numerous postmortem stab wounds establish mutilation.
Senselessness: Found. Defendant, with no apparent reason, murdered a helpless child who trusted him.
Helplessness: Found. The victim was a five-year-old child who trusted defendant.

(F)(9) (Victim under 15 Years of Age) - UPHELD
The defendant committed the murder at age seventeen and was tried as an adult. The victim was under fifteen years of age.

MITIGATING CIRCUMSTANCES:

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

Age [17 years old at time of murder]

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

(G)(1) Significant Impairment [schizophrenic with hallucinations]

JUDGMENT: Conviction affirmed. Sentence modified to life imprisonment without possibility of parole until defendant has served at least thirty-five years, pursuant to A.R.S. § 13-751(A), (E), and (F)(9), which apply because the victim was under fifteen years of age. The sentence was modified because the defendant's mental incapacity outweighed aggravating circumstances.


State v. Amaya-Ruiz, 166 Ariz. 152, 800 P.2d 1260 (1990)

PROCEDURAL POSTURE:
The defendant was convicted in Superior Court (Pima) of first-degree murder, manslaughter, theft of property with a value of $1,000 or more, and first-degree burglary. He was sentenced to death for the murder. This is the defendant's automatic, direct appeal to the Arizona Supreme Court, consolidated with the denial of his petition for post-conviction relief.

AGGRAVATING CIRCUMSTANCES:

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

Cruel: Upheld.
Mental Anguish: Found. The victim suffered mental distress. When the victim answered assailant's knock at the door, she yelled "leave me alone, I'll give you the gun," and a struggle ensued. 166 Ariz. at 177.
Physical Pain: Found. Scuffling noises were heard by a witness; defensive wounds were discovered on the victim's hands; the crime scene evinced a violent struggle with blood splatters throughout several rooms, indicating that she struggled to save her life.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The Court found that twenty-three stab wounds and a contact gunshot wound to the victim's head show gratuitous violence beyond that necessary to kill.
Senselessness: Found. The Court found the killing senseless in that the victim and her husband had befriended the defendant and provided him with food, shelter, and clothing.

MITIGATING CIRCUMSTANCES:

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

Age
Lack of Criminal History
Intelligence
Remorse

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

Cooperation [with law enforcement]
Difficult Childhood/Family History
Residual Doubt/ Innocence

JUDGMENT: Convictions and sentences affirmed, except manslaughter conviction is reversed and remanded for further proceedings.


State v. Fierro, 166 Ariz. 539, 804 P.2d 72 (1990)

PROCEDURAL POSTURE: The defendant was convicted in the Superior Court (Maricopa) of first-degree murder and first-degree burglary. He was sentenced to death for the murder, and to life imprisonment without possibility of parole for 25 years on the burglary. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - REVERSED
The defendant had previously been convicted in Texas of aggravated assault on a police officer and robbery. He was also convicted in Arizona of aggravated assault and resisting arrest. Violence means the exertion of physical force so as to injure or abuse. Only those felony convictions in which force was employed or threatened with the intent to injure or abuse will be considered for the (F)(2) finding. Ordinarily, aggravated assault and robbery, by definition, involve the use or threat of violence. However, the Texas legislature amended the statutes to encompass reckless behavior. Therefore, the Texas convictions cannot support the (F)(2) finding. Similarly, it is possible to commit aggravated assault in Arizona without the use or threat of violence also, especially here, where there is no evidence of the specific subsection under which the defendant was convicted.

(F)(3) (Grave Risk of Death to Others) - UPHELD
The defendant fired several shots at the victim, striking him once and narrowly missing his girlfriend, whom the defendant knew was seated nearby. The defendant's acquittal on the charge of attempted murder showed that the girlfriend was not an intended victim of the shooting, though she was clearly in the zone of danger.

(F)(5) (Pecuniary Gain) - UPHELD
The victim interrupted a burglary in progress. The Court found that the reason the defendant was even at this location was to steal, he expected pecuniary gain, and this expectation "tainted all his other conduct." The shooting was the result of the intentional crime of burglary and the motivation was the expectation of pecuniary gain. There is no requirement that the defendant have an intent to kill beforehand. Killing to facilitate an escape and to permit the defendant to keep stolen items furthers the pecuniary gain motive.

MITIGATING CIRCUMSTANCES:

Although the trial court found insufficient evidence to establish "significant" impairment under the (G)(1) mitigating circumstance, the trial court should have considered whether the proffered evidence suggested leniency in some other way. The Court reviewed the defendant's psychological history evidence and concluded that it had an independent mitigating effect. The Court found that the following mitigating circumstances existed and, cumulatively, were sufficient to call for leniency in this case:

Psychological history
History of Alcohol Abuse
Felony Murder conviction
Victim's actions [victim may have fired first]
Age [27 years old at time of murder]

JUDGMENT: Murder conviction affirmed, but sentence modified to life imprisonment without the possibility of parole until he has served at least 25 years to be served consecutively to the life sentence for the burglary. The (F)(2) finding was reversed and the mitigation was not properly evaluated.


State v. Stanley, 167 Ariz. 519, 809 P.2d 944 (1991)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Yavapai) of two counts of first-degree murder. The death penalty was imposed for one of the murders based upon A.R.S. §§ 13-751(F)(6), 751(F)(8), and 751(F)(9). This is defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

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

Cruel: Not addressed.

Heinous or Depraved: Upheld.
The defendant killed his own five-year-old daughter. It was her murder, and not the murder of his wife, for which defendant was sentenced to death. "When a father kills his own child, his actions cannot be characterized as sensible, nor can his state of mind be considered other than perverted. This fact sets this crime apart from the norm of first-degree murders and warrants a finding that the murder was committed in an especially depraved manner." 167 Ariz. at 529. The Court took special notice of the trial court's focus on defendant's actions after the murders. After disposal of the bodies and attempts to conceal evidence, defendant rented a "racy" video and took the time to watch at least part of it before he was arrested.
Senselessness: Found. The killing of a helpless child is senseless and demonstrates a disregard for human life, especially when the child is your own.
Helplessness: Found. The victim was a five-year-old child, alone with her parents and her twelve-month-old brother. She depended on her parents for care and her mother had been shot.
Witness Elimination: Found. Testimony established that defendant shot his daughter because she had seen him shoot the child's mother. This was the only motive for the killing.

(F)(8) (Multiple Homicides) - UPHELD
The (F)(8) finding was upheld without discussion. The defendant shot his wife and five-year-old child and then disposed of the bodies.

(F)(9) (Victim under 15-years of Age) - UPHELD
The (F)(9) finding was upheld without discussion.

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstances existed, but were insufficiently substantial to call for leniency:

Lack of Criminal History [minimal]
Good Character [adequate family man, rehabilitated self from substance abuse, no violent behavior]
Remorse

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

(G)(1) Significant Impairment - [chronic drug and alcohol abuse]

JUDGMENT: Convictions and death sentence affirmed.


State v. Lavers, 168 Ariz. 376, 814 P.2d 333 (1991)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of two counts of first-degree murder. The death penalty was imposed for each murder based on A.R.S. §§ 13-751(F)(6) and 751(F)(8), and as to one of the murders, (F)(9). This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(6) (Heinous, Cruel or Depraved) - UPHELD
(Two victims, Jennifer=daughter, Mary=mother)

Cruel: Upheld.
Mental Anguish: Found.
Jennifer: The victim was uncertain of her ultimate fate after she saw defendant stab her mother. Jennifer asked not to be hurt, cried when her mother was stabbed, and ran to a neighbor's home for help before defendant stabbed her in the chest. "[M]ental anguish is not related to the weapon used." 168 Ariz. at 392.
Mary: The victim was stabbed in the back, which paralyzed her. Defendant accused her of not being paralyzed, but rather of being lazy and not wanting to get up. Mary was begging to know the fate of her daughter. She yelled to warn the police that defendant had a gun when they arrived at the apartment.
Physical Pain: Found as to Mary. The Court found Mary suffered physical pain, due to being stabbed in the back.

(F)(8) (Multiple Homicides) - UPHELD
The defendant killed his wife and her eleven-year-old daughter the same night. The wife was stabbed, and several hours later, shot in the second story apartment shared by the family. During the interim, the girl was chased to the outside of the first story apartment directly below the family apartment, and stabbed there. The defendant committed the murder of each victim during the commission of the murder of the other. There was a continuous course of conduct linking the murders of these two related victims. The Arizona Supreme Court said it would analyze "the temporal, spatial, and motivational relationships between the capital homicide and the collateral [homicide], as well as the nature of that [homicide] and the identity of its victim." In doing so, the Court said that it would "not hold a stopwatch on the events of the murder to avoid the clear intent of the legislature in enacting" (F)(8).

(F)(9) (Victim under 15 Years of Age) - UPHELD
The (F)(9) finding was upheld without discussion, as to Jennie, who was 11-years old at the time of the murder, while the defendant was an adult.

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstances existed, but were insufficiently substantial to call for leniency:

Mental Impairment [personality disorder and alcohol dependence]
Lack of Criminal History [discounted by prior arrests for domestic violence]
Model Prisoner
Military Service/Employment Record

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

(G)(1) Significant Impairment

JUDGMENT: Convictions and death sentences affirmed.


State v. White (White I), 168 Ariz. 500, 815 P.2d 869 (1991)

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

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
The evidence established that the defendant's involvement in the killing of his girlfriend's husband, David, was for financial gain. The Court rejected the defendant's claim that although there was ample evidence that his girlfriend, Susan, wanted David killed for the insurance proceeds, his motives were less clear. The defendant claimed that he was duped by Susan because he was overcome by his infatuation for her and his desire to make a life with her. The Court found sufficient evidence indicating that the defendant killed David to share in the insurance proceeds with Susan. Prior to the murder, the defendant told his ex-wife that she would not need to worry about child support payments because he would be getting $100,000. The defendant made other inculpatory statements to witnesses, and on the day of David's funeral, he called Susan and discussed the paperwork she needed to do regarding the insurance. This evidence demonstrated that "neither love nor infatuation was defendant's primary motive to kill David." The Court distinguished this case from State v. Madsen, 125 Ariz. 346, 609 P.2d 1046 (1980), where the defendant killed his wife more than one year after taking out the insurance policy and made no immediate attempt to collect the insurance proceeds.

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstances existed, but were insufficiently substantial to call for leniency:

Mental Impairment [personality disorder and alcohol dependence]
Lack of Criminal History [discounted by prior arrests for domestic violence]
Model Prisoner
Military Service/Employment Record

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

(G)(1) Significant Impairment

JUDGMENT: Convictions and sentences affirmed.


State v. Schaaf, 169 Ariz. 323, 819 P.2d 909 (1991)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder, aggravated assault, sexual assault, and kidnapping. 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 (F)(1) finding was upheld without discussion.

(F)(2) (Prior Violent Felony) - REVERSED
The defendant was previously convicted in Nevada of two counts of attempted murder with a deadly weapon. The Court concluded that those convictions do not support an (F)(2) finding because the statutory definition of attempted murder in Nevada does not involve violence or the threat of violence on another person. The Court looks to the statutory definition, and no other evidence, to determine if the prior convictions involved the use or threat of violence. Under the Nevada statute, one may attempt to commit a violent crime without engaging in the use or threat of violence.

MITIGATING CIRCUMSTANCES:

The Court noted a variety of items proffered to the trial court in mitigation, but did not discuss them. The Court remanded to the trial court for resentencing because one of the two aggravating circumstances was set aside.

JUDGMENT: Conviction affirmed and case remanded for resentencing.


State v. Cook, 170 Ariz. 40, 821 P.2d 731 (1991)

PROCEDURAL POSTURE: Defendant was convicted in Superior Court (Mohave) of two counts of first-degree murder and was sentenced to death. The death penalty was imposed based on F)(5), (F)(6), and (F)(8). This is defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
The (F)(5) finding as to one of the murders was upheld. The murder was committed to successfully complete or get away with the robbery. Cook stole $90.00 from the victim's money pouch and when the victim discovered the pouch was missing, he was bound to a chair to keep him from escaping and to allow Cook and an accomplice to find anything else to steal. When the victim got loose and tried to escape, he was bound, tortured and finally killed. The Court found a clear causal link between the robbery and the murder.

(F)(6) (Heinous, Cruel or Depraved) - UPHELD
The Court described the facts of this case as falling "clearly within §13-751(F)(6), if not at the extreme end of the spectrum." 170 Ariz. at 61. Accordingly, the Court did not categorize the specific details of the murders into the proscribed factors. The categorization below is the analysis of the authors, and not the Court. Before utilizing this case it would be appropriate to read the full fact pattern.

Cruel: Upheld.
Mental Anguish: Found. The first victim endured six to seven hours of torture where he was cut, beaten, burned, sodomized and had a staple driven through his foreskin. 170 Ariz. at 45-46. The first victim was strangled with a pipe across his throat. Defendant made the second victim, a sixteen-year-old runaway, undress. Then the second victim was shown the body of the first victim and he cried at seeing the first victim's body. The second victim continued crying after being sodomized. Defendant and his accomplice tried to kill the second victim unsuccessfully before the defendant killed him by strangling him on the floor.
Physical Pain: Found. The first victim was cut with a knife, beaten with fists, burned with cigarettes, sodomized, and had his genitals mutilated. The second victim was bound, sodomized and then strangled to death.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. See Physical Pain.
Relishing: Found. Defendant and accomplice waited until the "witching hour" (midnight) to perform the first murder. They showed the second victim the body of the first victim. Defendant said "this one is mine" when it came to the actual killing of the second victim.
Senselessness: Found. The murders were not necessary to accomplish the sodomization of each victim.
Helplessness: Found. Both victims were alone, one at a time, against their two attackers.

(F)(8) (Multiple Homicides) - UPHELD
The defendant was convicted of sodomizing, torturing and killing two men on the same night in the defendant's apartment. The second victim was detained and murdered after the two codefendants showed him the body of the first victim. The Court approved the trial court's finding that, although a few hours separated the two murders, "they were for all practical purposes committed at the same time and [in] one continuous course of conduct." At the sentencing hearing, the state relied solely on trial evidence to prove the aggravating factors, but failed to disclose in its memorandum the applicability of (F)(8). The trial court nonetheless found the factor present and the defendant did not object or offer rebuttal. Under the circumstances, the Court held that the prosecutor's failure to notify the defendant about (F)(8) did not prejudice him.

MITIGATING CIRCUMSTANCES:

The Court found that there were no mitigating factors warranting leniency in this case. The Court found the defendant failed to prove the existence of the following as mitigating circumstances:

Lack of Criminal History [had extensive misdemeanor history]
(G)(1) Significant Impairment
Mental Health
Intoxication
Sentencing Disparity

JUDGMENT: Conviction and death sentences affirmed.


State v. Greenway, 170 Ariz. 155, 823 P.2d 22 (1991)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of two counts of first-degree murder, one count of first-degree burglary, one count of armed robbery, one count of theft by control, and one count of arson of an unoccupied structure. The death penalty was imposed for each murder count based on F)(5), (F)(6), and (F)(8). This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
The defendant argued that it was unconstitutional to consider pecuniary gain as an aggravating factor because it amounted to double counting an element of the robbery. Citing State v. Carriger, 143 Ariz. 142, 692 P.2d 991 (1984), the Court found this argument to be without merit because the facts necessary to prove a taking of property are not the same necessary to prove a motive for murder. The Court also rejected the defendant's argument that the class of persons eligible for the death penalty has not been sufficiently narrowed by the legislature. The Court looked to whether the murders were accidental or unexpected, or were part of an overall scheme to rob to determine if the pecuniary gain factor was proven beyond a reasonable doubt. The defendant here planned the robbery ahead of time and armed himself with a gun and entered the victims' house. The defendant knew the victims were home at the time and made no effort to cover his face. He removed valuable items from the house, sent the codefendant outside, and killed the victims execution style. These murders were part of the overall robbery scheme and were neither accidental nor unexpected. The purpose of the murders was to facilitate escape and hinder detection, which furthered the pecuniary goal.

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

Cruel: Upheld.
Mental Anguish: Found. "[A] crime is committed in an especially cruel manner when the [defendant] inflicts mental anguish or physical abuse before the victim's death." 170 Ariz. at 165 (quoting State v. Walton, 159 Ariz. 571, 586, 769 P.2d 1017, 1032 (1989) (emphasis added)). Mother and daughter were forced to lie face down while robbed at gunpoint. Mother was shot in the leg first, and both were shot execution style. Both victims suffered "mental distress and psychological terror" because they were uncertain of their fates as they lay next to each other while defendant robbed the house. Moreover, one family member witnessed the killing of the other and then waited for her own death. "Psychological pain may be the equivalent of the most severe physical torture." 170 Ariz. at 165.
Physical Pain: Found as to the Mother. Mother was shot first in the leg. She was conscious long enough for defendant to place a pillow over her head and fire the fatal shot. Mother suffered pain long enough for defendant to reload a .22 caliber bolt-action rifle. 170 Ariz. at 166.
Knew or Reason to Know that Victim Would Suffer: Found. The Court found that the defendant should have known of the mental anguish the victims would suffer because of the uncertainty of their fates and the physical pain the mother would endure after being shot in the leg. "[T]his Court has previously focused on whether a defendant knew or should have known that the victims would suffer not whether he subjectively intended the victims to suffer. . . . The fact that defendant did not intend for them to suffer is irrelevant." 170 Ariz. at 166 (citations omitted).

Heinous or Depraved: Upheld.
Relishing: Found. Defendant demonstrated indifference and pleasure in the murders by bragging to a co-worker the next day about the killing and providing a graphic description of blood gushing out of the victim's head. The co-worker said defendant made the killings sound like something he would just do over the weekend. A cellmate described defendant as nonchalant, saying "I just blew two people away." 170 Ariz. at 167.
Helplessness: Found. The two women were defenseless against the two armed assailants. Shooting the mother in the leg before her death made it impossible for her to stop the crime.
Witness Elimination: Found. The Court found that committing the murders to eliminate witnesses to the robbery shows a "complete lack of understanding of the value of human life." 170 Ariz. at 167 (quoting State v. Correll, 148 Ariz. 468, 481, 715 P.2d 721, 734 (1986) (citing State v. Smith, 141 Ariz. 510, 512, 687 P.2d 1265, 1267 (1984))). Defendant's coworker and cellmate testified that defendant killed the victims so they wouldn't be eyewitnesses to the robbery.

(F)(8) (Multiple Homicides) - UPHELD
The defendant killed a mother and daughter after burglarizing their home. He argued that this aggravator could apply to one of the counts of first-degree murder, but not to both because to do so would involve double counting. The Arizona Supreme Court rejected this argument. Relying in part on the Maryland courts' construction of a similarly worded factor, the Court concluded that the factor could apply as an aggravating factor to each and every charge of first-degree murder when more than one person is murdered.

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstances existed, but were insufficiently substantial to call for leniency:

Age [19 years old at time of murder]

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

Sentencing Disparity
Intelligence [low I.Q. of 72]

JUDGMENT: Conviction and death sentence affirmed. All three aggravating factors were upheld.


State v. Brewer, 170 Ariz. 486, 826 P.2d 783 (1992)

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

AGGRAVATING CIRCUMSTANCES:

(F)(3) (Grave Risk of Death to Others) - REVERSED
The defendant murdered his pregnant girlfriend. The trial court found this aggravating circumstance based on the grave risk of death to the fetus. The Court found that this aggravator did not exist because the defendant acted with intent to kill the fetus.

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

Cruel: Upheld.
Mental Anguish:
Mental Anguish: Found. "Cruelty is defined as the infliction of pain and suffering in a wanton, insensitive, or vindictive manner." 170 Ariz. at 501. The Court found that the victim was told she was going to be killed and a forty-five minute struggle ensued, throughout which the victim was conscious. Consciousness was demonstrated by the victim's resistance to the attack. The Court found that the victim must have experienced "anguish and terror" during the struggle, knowing that defendant planned to kill her. 170 Ariz. at 501.
Physical Pain: Found. During the attack, which the victim resisted in every possible way, defendant beat, strangled, pounded on, and threw the victim. Defendant bashed her head against a wall, attempted to break the victim's arms by smashing them against a dresser, tried to gouge out her eyes, causing severe eye damage in the assault. Defendant bit the victim multiple times, bruised most of her body, and prevented her attempted escape. Defendant finally choked the victim three times until he believed she was dead. "The victim's ordeal, moreover, was sufficiently prolonged and painful to warrant a finding of cruelty." 170 Ariz. at 501-502. The medical examiner testified that the injuries suffered by the victim would have inflicted enormous pain, particularly the eye injury.
Knew or Reason to Know that Victim Would Suffer: Found. "We believe the defendant was fully aware that his attack would inflict great physical and emotional pain." 170 Ariz. at 501. The Court further held that defendant had time to consider his actions, the cruelty being inflicted, and the victim's pain, but continued in the attack unabated.

Heinous or Depraved: Upheld.
Gratuitous Violence:
Gratuitous Violence: Found. The Court held that defendant's admission of necrophilia, specifically, engaging in sexual intercourse with the victim's corpse, constituted gratuitous violence.
Senselessness: Found. The victim was defendant's girlfriend and expectant mother of defendant's child. The Court found no reason for the killing, except that the victim had threatened to leave defendant.
Helplessness: Found. The victim was more than five months pregnant and not a significant threat to defendant. The victim was initially able to resist the attack, but as the struggle progressed, she became increasingly impaired. The Court held that the victim was entirely helpless toward the end of the assault, particularly during the multiple strangulations which rendered her unconscious.

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstances existed, but were insufficiently substantial to call for leniency:

Impairment [personality disorder]
Difficult Childhood/Family History
Lack of Criminal History

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

Duress [personality disorder does not prove duress]
Age [22 years old at time of crime]
Remorse

JUDGMENT: Conviction for first-degree murder, based on a guilty plea, and sentence of death affirmed.


State v. Rossi (Rossi III), 171 Ariz. 276, 830 P.2d 797 (1992)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder, attempted first-degree murder, and first-degree burglary. Defendant was sentenced to death for the murder. Defendant appealed and the Arizona Supreme Court, 146 Ariz. 359, 706 P.2d 371 (1985), vacated the original death sentence and remanded to the trial court for resentencing. In that first appeal, defendant's convictions and other sentences, save the death penalty, were affirmed. Defendant was again sentenced to death at the trial court, and the Supreme Court, 154 Ariz. 245, 741 P.2d 1223 (1987), affirmed the decision in part and remanded for resentencing. The trial court sentenced defendant to death for a third time. From that resentencing, defendant now has his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

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

Cruel: Upheld.
Mental Anguish: Found. The Court held that the victim was in pain, was conscious for a short duration after being shot the second time, and had time to ponder the uncertainty of his ultimate fate. This was demonstrated by the victim telling defendant "you have my money, you shot me, what more do you want." 171 Ariz. at 279.
Physical Pain: Found. See Mental Anguish.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The Court found gratuitous violence, though that finding is not explicitly stated, by holding that "defendant used bullets designed to inflict greater tissue damage on a human body." 171 Ariz. at 280.
Relishing: Found. The Court expressly finds defendant relished the murder when he bragged to friends about the killing, gave three bullets to Bill Nelson as a souvenir, and complained that the bullets should have made a larger hole in the victim. 171 Ariz. at 280.
Senselessness: Found. Defendant could have committed the burglary and escaped without committing the murder. The defendant was "totally without regard for human life." 171 Ariz. at 280.
Helplessness: Found. The victim was sixty-six years old, in poor health, and unable to prevent the burglary.

MITIGATING CIRCUMSTANCES:

There is no discussion of mitigation in this opinion. See prior Rossi I and Rossi II opinions cited above.

JUDGMENT: Sentence affirmed.


State v. Atwood, 171 Ariz. 576, 832 P.2d 593 (1992)

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

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
In 1974, the defendant was convicted in California of lewd and lascivious conduct for a crime that occurred on June 18, 1974. Arizona's 1974 equivalent, A.R.S. §13-652, provided for a sentence of five years to life for the offense. The defendant argued that the statute that succeeded §13-652, which modified the sentence to less than life imprisonment, should control because it was in effect at the time the defendant was sentenced for his California crime. The Court clarified that the relevant date for (F)(1) purposes is the date the prior offense occurred, not the date of sentencing for that offense, or the date of sentencing for the capital murder conviction.

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstances existed, but were insufficiently substantial to call for leniency:

Family Ties [love and support of parents]
Cooperation [with law enforcement]
Rehabilitation
Model Prisoner [changed character]

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

Impairment [drug use]
Age [28 years old at time of crime]
Remorse
Good Conduct during trial
Residual Doubt

JUDGMENT: Convictions and sentences affirmed.


State v. Medrano (Medrano I) , 173 Ariz. 393, 844 P.2d 560 (1992)

PROCEDURAL POSTURE: The defendant was convicted in the Superior Court (Pima) for first-degree murder, kidnapping, sexual assault, and burglary. Defendant was sentenced to death for the murder. This is defendant's automatic, direct appeal to the Arizona Supreme Court. Denial of defendant's petition for post-conviction relief has been consolidated with this appeal.

AGGRAVATING CIRCUMSTANCES:

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

Cruel: Upheld.
Mental Anguish: Found. The state proved beyond a reasonable doubt that the victim was conscious during the attack, demonstrated by numerous defensive wounds. 173 Ariz. at 397. Evidence shows that the victim could have survived for fifteen to thirty minutes after she was wounded. The victim knew her two children and a friend's daughter were in the house during the attack, as well as being aware she was eight weeks pregnant, which contributed to her significant mental anguish.
Physical Pain: Found. The state proved the victim suffered pain during consciousness. 173 Ariz. at 397. Evidence demonstrates that twenty stabbing and slashing injuries, four of which were serious enough to cause death without medical attention, caused physical pain.

Heinous or Depraved: Court stated that it didn't need to find heinousness or depravity because it found cruelty and the terms are in the disjunctive.
Gratuitous Violence: Found. The numerous stab wounds demonstrate gratuitous violence. 173 Ariz. at 398.
Helplessness: Found. The victim was helpless against the attack.

(F)(7) (Commission of Murder While in Custody) - REVERSED
The trial court erred by finding, under (F)(7), that the defendant committed the murder while in the custody of the United States Bureau of Prisons. At the time of the murder, the defendant was serving a federal sentence at a halfway house, and had reached the fourth of five levels of increasing liberties and privileges. To fall within the terms of (F)(7), the defendant must have "committed the offense while in the custody of the state department of corrections, a law enforcement agency or county or city jail." According to the Arizona Supreme Court, "[t]he legislative intent of this section is to protect the guards and other inmates at such institutions where a defendant is confined and to discourage violence by incarcerated persons." State v. Gillies (Gillies I), 135 Ariz. 500, 512, 662 P.2d 1007, 1019 (1983).

MITIGATING CIRCUMSTANCES:

There is no discussion of mitigating circumstances in this case because the Court set aside one of the aggravating circumstances and remanded to the trial court for resentencing.

JUDGMENT: Convictions affirmed; remanded for sentencing after (F)(7) finding was reversed.


State v. Salazar, 173 Ariz. 399, 844 P.2d 566 (1992)

PROCEDURAL POSTURE: The defendant was convicted in the Superior Court (Pima) of first-degree murder, kidnapping, and first-degree burglary. Defendant was sentenced to death for the murder. Defendant's petition for post-conviction relief was denied. The petition for review is consolidated with 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's defensive wounds were found to signify her consciousness through "some considerable portion of her agony." 173 Ariz. at 412.
Physical Pain: Found. "[T]he victim had defensive wounds on her arms and hands, was beaten so severely that she suffered a cranial hemorrhage and broken nose, and was strangled with a phone cord so fiercely that it fractured her thyroid cartilage (Adam's apple)." 173 Ariz. at 412.

Heinous or Depraved: Upheld. The Court upheld the finding of helplessness, but stated that cruelty alone was "sufficient to constitute an aggravating circumstance under A.R.S. § 13-751 (F)(6)." 173 Ariz. at 412. See "Comment," below.
Helplessness: Found. "The victim was a fragile, partially blind eighty-three-year-old woman who weighed less than ninety pounds. She was totally helpless and at the complete mercy of her younger and stronger assailants. She was brutally beaten and then strangled with a force that not only killed her but crushed her Adam's apple . . . ."

MITIGATING CIRCUMSTANCES:

The Court found that there were no mitigating circumstances in this case sufficient 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:

Impairment [intoxication]
(G)(3) Minor Participation
(G)(4) Death not Reasonably Foreseeable
Age [22 years old at time of crime]

JUDGMENT: Conviction and sentences affirmed.

Comment: The Arizona Supreme Court attached an appendix regarding the F(6) factor where the trial court also found gratuitous violence. The Court may have relied on the trial court's findings as listed in the appendix to uphold the finding that the killing was heinous and depraved, since, usually, a finding of helplessness alone is insufficient to support such a finding.


State v. George Lopez, 174 Ariz. 131, 847 P.2d 1078 (1992)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of felony murder and child abuse. 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, a one-year-old boy, was conscious and felt pain for at least forty-five minutes before lapsing into a coma. "Anthony must also have suffered some mental anguish while he remained conscious, knowing that one of the two people he depended on and trusted to care for and love him had beaten him repeatedly about the head and body and did nothing to stop the pain and comfort him." 174 Ariz. at 144.
Physical Pain: Found. A doctor "testified that the skull fractures, especially the one where a piece of the child's skull was driven into his brain, would have caused Anthony `an excessive amount of pain.' He stated that the abdominal injuries, the torn pancreas and bowel would have been very painful, `like somebody performing surgery without anesthesia.'" 174 Ariz. at 143.

Heinous or Depraved: Upheld.
Senselessness: Found. "Although the factors of senselessness and helplessness of the victim need not always, by themselves, justify a finding that the murder was heinous or depraved, they do inform the trial court of the defendant's mental state." 174 Ariz. at 144. The Court found the murder was senseless. After bathing his child, defendant was putting lotion on Anthony when the infant urinated. In response, the defendant hit the child. "While such a reaction might be excused as a momentary flash of anger, the continued beating Anthony received, as evidenced by the extent of his injuries, bespeaks a `shockingly evil' mind and constitutes heinous conduct. We can conceive of no act more senseless than beating a one-year-old child to death."
Helplessness: Found. "Anthony was clearly helpless and unable to defend himself from the blows inflicted by Lopez and unable to seek aid for his injuries. The one person who could have sought medical help for Anthony, Lopez, took pains to make it appear that an accident had occurred. . . . Lopez' decision to protect himself at the expense of the life of his one-year-old son is the essence of depravity." 174 Ariz. at 144.

(F)(9) (Victim under Fifteen Years of Age) - UPHELD
The (F)(9) finding was upheld without discussion. The defendant beat his one-year-old son severely and then kept the mother from taking the child to the hospital for treatment.

MITIGATING CIRCUMSTANCES:

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

Good Character

JUDGMENT: Convictions and sentences affirmed.