Search 

Azcourts.gov

Arizona Judicial Branch

1993-1995

State v. Hill, 174 Ariz. 313, 848 P.2d 1375 (1993)

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

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - UPHELD
The defendant was convicted in Colorado of assault with a deadly weapon. The Court looked to the statutory definition of that offense in Colorado to determine if the crime involved violence or the threat of violence. The state introduced evidence of the information, judgment and sentence for that crime. The statute required intent to commit bodily injury on another person. This was sufficient to prove the existence of the aggravating circumstance.

(F)(5) (Pecuniary Gain) - UPHELD
The evidence showed that the victim's wallet discovered on the burned body contained no money and that the defendant was arrested with over $200 and the victim's grocery receipt in his possession. Also, close to the time of the murder, the defendant and victim had a heated argument over money that the victim allegedly owed the defendant. The defendant had no steady source of income and an expensive drinking habit. The Court found that all of these facts supported the inference that the defendant killed the victim for money that he needed and that he believed the victim owed him.

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

Cruel: Upheld.
Physical Pain: Found. The evidence showed that defendant set the victim on fire. The victim's trachea contained smoke, which demonstrates that the victim was alive during the fire. "Evidence also showed that the victim thrashed about, possibly attempting to get up to escape the fire. We agree with the trial court that this is sufficient to establish that the victim was conscious and quite obviously suffered tremendous pain from defendant setting him on fire." 174 Ariz. at 328.

Heinous or Depraved: Not addressed.

MITIGATING CIRCUMSTANCES:

Without any discussion, the Court agreed with the trial court's conclusion that the (G)(1) mitigating circumstance existed, based on impairment from years of alcohol abuse, but was insufficient to call for leniency. The Court found no additional mitigating factors that would warrant leniency.

JUDGMENT: Conviction and sentence affirmed.


State v. Mickel Herrera, 174 Ariz. 387, 850 P.2d 100 (1993)

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

AGGRAVATING CIRCUMSTANCES:

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

Cruel: Upheld.
Mental Anguish: Found. "[W]e believe that the record supports the trial court's conclusion that the deputy suffered both physical abuse and mental anguish before his death, and we agree with the trial court that this murder was committed in an especially cruel manner. See our discussion of this issue in our opinion, in State v. Herrera, Jr. I, 174 Ariz. 372, 378, 850 P.2d 85, 91 (1993)." 174 Ariz. at 397.
Physical Pain: Found. See mental anguish.

Heinous or Depraved: Not addressed.

MITIGATING CIRCUMSTANCES:

The Court found that the defendant failed to prove by a preponderance of the evidence the existence of the (G)(1) significant impairment mitigating circumstance. The Court found that the following mitigating circumstances existed, and that cumulatively the mitigating circumstances were sufficiently substantial to call for leniency:

(G)(2) - Duress
Impairment [intoxication ]
Difficult Childhood/Family History
Age [18 years old at time of crime]
Intelligence [borderline I.Q.]

JUDGMENT: Convictions affirmed; death sentence reduced to life imprisonment without possibility of parole for twenty-five years. "The mitigating circumstances of defendant's duress, young age, and dysfunctional family background, coupled with additional evidence of his borderline IQ and drinking at the time of the incident, require leniency." 174 Ariz. at 400.

Comment: The reader may also refer to the companion cases involving defendant's codefendants (father and brother). State v. Herrera, 176 Ariz. 9, 859 P.2d 119 (1993), cert. denied, 510 U.S. 966, 114 S. Ct. 446, 126 L.Ed. 2d 379 (1993); State v. Herrera, 176 Ariz. 21, 859 P.2d 131 (1993), cert. denied, 510 U.S. 951, 114 S. Ct. 398, 126 L.Ed. 2d 346 (1993).


State v. Kiles, 175 Ariz. 358, 857 P.2d 1212 (1993)

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

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - UPHELD
(F)(2) finding upheld for each of three murders. The defendant had previously been convicted of attempted aggravated assault, and aggravated assault. The defendant argued that these prior convictions are insufficient to support an (F)(2) finding based on State v. Fierro, 166 Ariz. 539, 804 P.2d 72 (1990). The Arizona Supreme Court disagreed and noted that in Fierro there was no evidence of the specific subsection under which the defendant was convicted. Here, on the other hand, the record shows that the defendant was convicted under subsection (A)(8) of the aggravated assault statute for committing an assault while the victim was bound, restrained, or the victim's capacity to resist was substantially impaired. The Court held that a conviction under this subsection necessarily involved the use or threat of violence. Similarly, the attempted aggravated assault conviction is also sufficient to support the (F)(2) aggravating factor because attempt is a specific intent crime involving intentional conduct. It would not be possible to commit an attempted aggravated assault in a reckless manner.

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

Cruel: Upheld.
Mental Anguish: Found as to the five-year-old child. "[W]e agree with the trial court that her murder was especially cruel because of the mental anguish she suffered before she was bludgeoned to death. The record indicates that the child saw defendant assault her mother, that she screamed and hollered, and that defendant murdered her because she saw him murder her mother." Terror was inflicted on the five-year-old child by witnessing her mother's death at the defendant's hands, which "clearly must have conveyed to her the prospect of her own impending death." 175 Ariz. at 372.
Physical Pain: Found as to the girlfriend.
This murder was found to be especially cruel because "she suffered a `prolonged, vicious beating . . . during a portion of which she was clearly conscious.'" 175 Ariz. at 371. The girlfriend regained consciousness before the final attack and had defensive wounds of a broken arm and elbow punctures. "Moreover, the location of the victim's blood on the front door threshold indicates that she may have attempted to escape. We believe that this cumulative evidence provides sufficient evidence that the girlfriend suffered the pain of multiple blows before she lost consciousness and died." 175 Ariz. at 371-72.
Knew or Reason to Know that Victim Would Suffer: Found. "[T]o find the aggravating circumstance of cruelty, a trial court need not find that a defendant intended to kill; it must determine that a defendant either intended to inflict mental anguish or physical pain upon a victim or `reasonably fore[saw] ... a substantial likelihood' that his actions would have that effect." 175 Ariz. at 367 (quoting State v. Adamson, 136 Ariz. 250, 266, 665 P.2d 972, 988 (1983) (citing State v. Gretzler, 135 Ariz. 42, 51, 659 P.2d 1, 10 (1983))).

Heinous or Depraved: Upheld.
Gratuitous Violence: Found as to two victims.
(i) Girlfriend: She was initially knocked unconscious with one blow. After she regained consciousness, defendant "continued bludgeoning her with the jack stem, fracturing her skull, shattering her teeth, and breaking her arm." 175 Ariz. at 373.
(ii) Nine-month-old baby: Defendant struck the baby with a jack stem approximately fourteen times. The baby's skull was completely shattered and her blood was spread on the four walls and ceiling of her bedroom.
Senselessness: Found as to two victims.
(i) Five-year-old-child and (ii) Nine-month-old baby: "Neither child was old enough to defend herself against defendant's attack or even to support her mother in the argument between her mother and defendant. The killing of two helpless children is senseless and demonstrates a total disregard for human life and is also evidence of a `shockingly evil state of mind.'" 175 Ariz. at 373 (citation omitted).
Helplessness: Found as to two victims. See senselessness.

(F)(8) (Multiple Homicides) - UPHELD

The (F)(8) finding was upheld, but not addressed. The defendant did not challenge the trial court's finding of the (F)(8) aggravating circumstance where the defendant was convicted of killing his girlfriend, her five-year-old daughter, and her nine-month-old daughter by beating them with a jack stem.

(F)(9) (Victim under Fifteen Years of Age) - UPHELD

The (F)(9) finding was upheld without discussion. The defendant was an adult and the two victims were five years old and nine months old, respectively, at the time they were killed.

MITIGATING CIRCUMSTANCES:

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

Impairment [drug use and intoxication]

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

Domestic nature of the murder

JUDGMENT: Convictions and sentences affirmed.


State v. Samuel Lopez (Samuel Lopez II), 175 Ariz. 407, 857 P.2d 1261 (1993)

PROCEDURAL POSTURE: Defendant was convicted in Superior Court (Maricopa) of first-degree murder and other offenses, and was sentenced to death. On appeal, the convictions were affirmed, but the death sentenced was vacated and remanded for resentencing. Defendant was resentenced to death. This is defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

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

Cruel: Upheld.
Mental Anguish: Found. "Obviously, the victim endured great physical and mental anguish over a relatively protracted period of time while she struggled for her life." Her suffering was not only foreseeable, it was unavoidably obvious to the defendant." 175 Ariz. at 411.
Physical Pain: Found. The victim was stabbed twenty-three times in the upper chest and three times in the abdomen. "Her throat was cut. She was sexually assaulted and had semen in both her vagina and anus. She had defensive wounds on her forearms. There were bruises on her body. The apartment was knocked asunder, evidencing a terrific struggle for life during which time the victim was obviously conscious." 175 Ariz. at 411.
Knew or Reason to Know that Victim Would Suffer: Found. "Her suffering was not only foreseeable, it was unavoidably obvious to the defendant." 175 Ariz. at 411.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. "[T]he clear fact is that the multiple stab wounds in the chest and the abdomen, along with the throat cutting, certainly qualify as gratuitous violence." 175 Ariz. at 412. "Moreover, the knife wounds to the face, the sexual assault, the binding of the victim's eyes, and the gagging of her mouth were not directed toward killing the victim and clearly bespeak gratuitous violence." 175 Ariz. at 412.
Senselessness: Found. There was no reason to kill the victim since the sexual assault could be accomplished without murder.
Helplessness: Found. "The victim was a 59-year-old, 124-pound woman . . . [who] was gagged so she could not call for help." 175 Ariz. at 412. The victim was blindfolded at some point, and although she struggled, "for all practical purposes this uneven match was over after the first serious wounds were inflicted on the victim." 175 Ariz. at 412.

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]
Model Prisoner [good behavior in jail]

JUDGMENT: Death sentence affirmed.


State v. Bible, 175 Ariz. 549, 858 P.2d 1152 (1993)

PROCEDURAL POSTURE: Defendant was convicted in Superior Court (Coconino) of first-degree murder, kidnapping, and molestation of a child under fifteen years of age. Defendant was sentenced to death. This is defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - REVERSED
The defendant had previously been convicted of kidnapping and sexual assault. After analyzing each statute, the Court determined that each of those crimes could be committed without the use or threat of violence. Therefore, neither one could support the (F)(2) finding.

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

Cruel: Upheld.
Mental Anguish: Found. The victim's clothes were removed without being torn or cut and the victim was found naked with her hands tied. The Court found that this indicated that her hands were tied after she was naked and that since her hands needed to be bound, she must have been conscious. "There would be no need to bind an unconscious victim. . . . Reasonable inferences from this evidence are that the victim was alive, conscious, and stripped before she was bound and that she was conscious when bound." The Court held that evidence supports a finding of consciousness and, further, that this nine-year-old victim suffered physical and mental anguish before being killed. "Obviously, the victim would have been terrified."
Physical Pain: Found. The Court found physical pain, but did not specify whether it was the blows, the victim being tied, or some other fact. See mental anguish.
Knew or Reason to Know that Victim Would Suffer: Found. "Nor can it be argued that the mental and physical pain inflicted was unforeseen or fortuitous." 175 Ariz. at 605.

Heinous or Depraved: Not addressed.


(F)(9) (Victim under Fifteen Years of Age) - UPHELD
The (F)(9) finding was upheld without discussion. The defendant was an adult and the victim was nine years old at the time she was killed.

MITIGATING CIRCUMSTANCES:

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

Family Ties [love and support by and for family]

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

(G)(1) Significant Impairment [from Alcohol or Drugs]
Impairment [intoxication]

JUDGMENT: Convictions and sentence affirmed.


State v. Landrigan, 176 Ariz. 1, 859 P.2d 111 (1993)

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

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - UPHELD
The (F)(2) finding upheld without extensive discussion. Landrigan did not contest the (F)(2) finding on appeal. The Court noted that the (F)(2) finding was supported by a prior Oklahoma conviction for assault and battery with a dangerous weapon, under Okla. Stat. tit. 21, §§ 641, 642, 645 (1971). The state proved the existence of the conviction by producing certified public records from Oklahoma, and the state's expert matched Landrigan's fingerprints with those on the records.

(F)(5) (Pecuniary Gain) - UPHELD
Evidence supported a finding that pecuniary gain was the cause, not merely a result, of the murder. Landrigan had admitted that around the time of the murder, he had been getting money by robbing. Testimony established that the victim frequently tried to pick up men by flashing a wad of money, usually after he got his paycheck, that on the day he was killed he had picked up a man named "Jeff" and brought him home, and that he had picked up his paycheck that day. Landrigan, whose first name is "Jeff," matched the description of "Jeff" given by the victim to a friend, and was found wearing a shirt that belonged to the victim. The victim's apartment was ransacked and neither his paycheck nor its proceeds were located, although nothing else seemed to be missing. The killing did not appear to have been unexpected or accidental. Additionally, the Court concluded that Landrigan's convictions for theft and burglary were supported by sufficient evidence.

MITIGATING CIRCUMSTANCES:

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

Impairment [intoxication]


JUDGMENT:
Convictions and sentences affirmed.


State v. William Herrera, Sr., 176 Ariz. 9, 859 P.2d 119 (1993)

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

AGGRAVATING CIRCUMSTANCES:

(F)(6) (Heinous, Cruel or Depraved) - UPHELD
Defendant did not actually kill the victim, but he did order his sons to do so. The Court found that the victim's death was the result intended by defendant, and that his participation in the murder was substantial and intentional. Assessment of aggravating circumstances was still appropriate in his case, though the aggravators are based upon his son's conduct. The Court held, however, that evidence of aggravating circumstances must come from defendant's own trial or aggravation/mitigation hearing. The Court found no reversible error, though, in the fact that the evidence of cruelty came from the son's trial.

Cruel: Upheld.
Mental Anguish: Found. The victim was a police officer who was questioning defendants when they attacked him. The victim was forced after a struggle to lie on the ground helpless as his own gun was used to shoot him. The Court found that the victim suffered mental anguish and "that defendant was actively engaged in causing that pain and anguish." The Court found that the victim shielded himself from the gun with his hands and "heard defendant command his son to `Shoot him.'" The Court further found defendant's intent for the victim to be killed by his son was "manifestly clear by [his] statements and manner at the time [the victim] was killed." Further, defendant's participation in the murder was "substantial and intentional."
Physical Pain: Found. The Court determined that defendant actively engaged in inflicting physical pain on the victim. The victim was physically overpowered by defendant and his sons, was forced to lie on the ground, received a painful gash in his forehead, and was struck by defendant's knee.

Heinous or Depraved: Not addressed.

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:

(G)(3) Minor Participation

JUDGMENT: Convictions and sentences affirmed.

Comment: The reader may also want to see the companion cases of co-defendants. State v. Herrera, 176 Ariz. 21, 859 P.2d 131 (1993), cert. denied, 510 U.S. 951, 114 S. Ct. 398, 126 L. Ed. 2d 346 (1993); State v. Herrera, 174 Ariz. 387, 850 P.2d 100 (1993).


State v. William Herrera, Jr., 176 Ariz. 21, 859 P.2d 131 (1993)

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

AGGRAVATING CIRCUMSTANCES:

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

Cruel: Upheld.
Mental Anguish: Found. Defendant threw the victims police radio at his head causing a deep gash in the victim's forehead. Lying on the ground, the victim put his hands over his face while defendant instructed his brother to shoot the officer. The victim was in this situation for at least eighteen seconds and possible up to two or three minutes, according to testimony, while begging for his life. The testimony was corroborated by physical evidence of powder burns on the victim's hands, which appeared to have been held in front of his face in a defensive posture.
Physical Pain: Found. The gash on the victim's head subjected the victim to physical pain.

Heinous or Depraved: Not addressed.

MITIGATING CIRCUMSTANCES:

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

Age [20 years at time of crime]
Impairment [from Alcohol]

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

(G)(1) Significant Impairment [from Alcohol]
(G)(3) Minor Participation

JUDGMENT: Convictions and sentences affirmed.

Comment: The reader may also want to see the companion cases of co-defendants. State v. Herrera, 176 Ariz. 9, 859 P.2d 119 (1993), cert. denied, 510 U.S. 966, 114 S. Ct. 446, 126 L. Ed. 379 (1993); State v. Herrera, 174 Ariz. 387, 850 P.2d 100 (1993).


State v. Spencer, 176 Ariz. 36, 859 P.2d 146 (1993)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder and other offenses, 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
Before his capital murder conviction, the defendant had been convicted of armed robbery, a class 2 felony, with two prior convictions and while on probation. He had received a life sentence for that conviction under A.R.S. § 13-604.02. Because that statute had been enacted after § 13-751(F)(1), he argued it could not be used to support (F)(1). The Arizona Supreme Court rejected this argument, stating that the legislature is presumed to know the law when it passes a statute, and that it presumed § 13-604.02 would apply to § 13-751. Moreover, the defendant did not dispute that his armed robbery sentence was lawful.

(F)(2) (Prior Violent Felony) - UPHELD
The trial court found that the defendant was previously convicted of robbery and armed robbery. The statutory definitions of those offenses necessarily involve the use or threat of violence against another person. The armed robbery conviction can satisfy either (F)(1) or (F)(2), so long as it is weighed only once. Since there were no mitigating factors, no additional balancing was required.

(F)(5) (Pecuniary Gain) - UPHELD
The defendant made the victim withdraw all funds from her bank account, and sold her car after the murder. He admitted his intent to steal a car. The Arizona Supreme Court cited State v. Greenway, 170 Ariz. 155, 823 P.2d 22 (1991), State v. LaGrand, 153 Ariz. 21, 734 P.2d 563 (1987), and State v. Bernard Smith, 146 Ariz. 491, 707 P.2d 289 (1985), for the proposition that pecuniary gain must be "a motive, cause or impetus and not merely the result of the murder." The Court here found no reasonable doubt that pecuniary gain was at least one of the motives for the murder and not merely an afterthought.

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

Cruel: Not addressed. "Because we find that the murder was heinous or depraved, we need not decide whether it was committed in a cruel manner." 176 Ariz. at 43.

Heinous or Depraved: Upheld.
Mutilation: Found. "[A]fter he raped and stabbed the victim he doused her with an accelerant and set her on fire. Spencer does not attempt to argue that this was not mutilation. This alone supports the finding of heinousness or depravity." 176 Ariz. at 44.
Senselessness: Found. Although the murder was carried out to aid defendant's completion of the theft, it was unnecessary to kill the victim in order to accomplish the theft of her car and money from her bank account. Defendant was in control of the victim and her car for some time before the murder. "There was no reason to kill except to fulfill his depraved plot." 176 Ariz. at 44.

MITIGATING CIRCUMSTANCES:

The Court found that there were no mitigating circumstances in this case sufficient to call for leniency. The Court found the following was not a mitigating circumstance: Good Behavior at Trial

JUDGMENT: Convictions and sentences affirmed.


State v. Schurz, 176 Ariz. 46, 859 P.2d 156 (1993)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder and attempted aggravated robbery. Defendant was sentenced to death for the murder. This is defendant's automatic, direct appeal to the Arizona Supreme Court. The Court granted review of the denial of defendant's petition for post-conviction relief and consolidated it with the automatic appeal.

AGGRAVATING CIRCUMSTANCES:

(F)(6) (Heinous, Cruel or Depraved) - UPHELD
Defendant did not challenge the finding of the aggravating circumstance of "especially cruel, heinous or depraved." Therefore, the Court addressed this finding only peripherally and did not separate the findings into the Gretzler categories.

Cruel: Upheld. The Court stated that "[t]he suffering both mental and physical of a person who remains conscious while receiving third and fourth degree burns over almost 100% of his body more than adequately demonstrates cruelty." 176 Ariz. at 56.
Mental Anguish: Found.
Physical Pain: Found.

Heinous or Depraved: Upheld. The Court's only mention of heinousness and depravity is as follows: "[t]he cold-blooded burning to death of a person who is attempting to flee demonstrates the kind of `vile' mind-set that we have labeled heinous or depraved." 176 Ariz. at 56.

MITIGATING CIRCUMSTANCES:

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

Difficult childhood/Family History
Impairment [personality disorder]
Impairment [intoxication and substance abuse]
Lack of Criminal History
Rehabilitation [but only that he completed GED and substance abuse treatment - reports showed he had a violent personality extremely maladapted to living in society]

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

(G)(1) Significant Impairment
Sentencing Disparity

JUDGMENT: Convictions and sentences affirmed.


State v. Runningeagle, 176 Ariz. 59, 859 P.2d 169 (1993)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) on two counts of first-degree murder, two counts of theft, one count of first-degree burglary, one count of second-degree burglary, and one count of third-degree burglary. Defendant was sentenced to death for the murders. This is defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
Runningeagle and his accomplices stopped at the Davis house to steal parts from a car parked outside. They took two carburetors from the Davis car, along with other items from the car and open garage. While engaged in this activity, they were confronted by an elderly neighbor, Mr. Williams and his wife. After the couple retreated into their home, Runningeagle and an accomplice broke through the couple's front door with a tire iron and beat and stabbed the couple to death. When police searched the house, they found an empty purse and found that Mrs. Williams' jewelry drawer was open and some jewelry was missing. The Court rejected Runningeagle's claim that because he was engaged in burglarizing the Davis home, his motivation for killing the Mr. and Mrs. Williams was not pecuniary gain, and that the burglary of the Williams home was an afterthought. The Court found that Runningeagle killed Mr. and Mrs. Williams in order to complete the Davis burglary, and therefore, the killing was to further the goal of pecuniary gain. The Court also found that Runningeagle killed Mr. and Mrs. Williams in order to steal from them.

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

Cruel: Upheld.
Mental Anguish: Found. Defendant taunted both of the victims with his knife and pursued them into their home by breaking through the door with a tire iron. Mr. Williams, one of the victims, had a knife wound through his forearm, demonstrating his efforts to fend off the attack. "Mrs. Williams had a superficial knife wound on her neck consistent with having a knife pressed to her throat. A neighbor heard Mrs. Williams crying. Expert testimony established that the [victims] lived for three to four minutes after being stabbed." 176 Ariz. at 65. The Court found that the couple suffered horrible mental pain while watching each other suffer through the attack.
Physical Pain: Found. The victims both had knife wounds, fatal and nonfatal, including the defensive wound on Mr. Williams' arm and the wound on Mrs. Williams' neck. The Court held that the evidence supported a finding of physical pain. 176 Ariz. at 65.
Knew or Reason to Know that Victim Would Suffer: Found. Defendant argued that because he did not intend for the victims to suffer that cruelty should not have been found. The Court disagreed, explaining that he knew or should have known that his actions would cause suffering. 176 Ariz. at 65.

Heinous or Depraved: Upheld.
Relishing: Found. Defendant and his co-perpetrator were laughing as they returned to the car after killing the Williams. Defendant also bragged to his girlfriend about having been in a "good fight." 176 Ariz. at 65.
Senselessness: Found. The Court simply affirmed without explaining this finding.
Helplessness: Found. The Court affirmed, but did not explain this finding.

MITIGATING CIRCUMSTANCES:

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

(G)(1) Significant Impairment
Age [19 years old at time of crime]
Remorse

JUDGMENT: Convictions and sentences affirmed.


State v. Michael Apelt, 176 Ariz. 349, 861 P.2d 634 (1993)

PROCEDURAL POSTURE: Defendant was convicted in Superior Court (Pinal) of premeditated first-degree murder and conspiracy to commit first-degree murder and was sentenced to death. This is defendant's automatic, direct appeal to the Arizona Supreme Court. Defendant's appellate review of the denial of his petition for post-conviction relief has been consolidated with this appeal.

AGGRAVATING CIRCUMSTANCES:

(F)(4) (Procurement of Murder by Payment) - UPHELD
The Court found that the evidence clearly showed that the defendant procured his brother Rudi's involvement in the murder by promising him a share of the life insurance proceeds, thus satisfying the (F)(4) aggravating circumstance. Shortly before the murder, the defendant brought the life insurance papers to the motel and told the others that they would all have a lot of money if Cindy were killed. The Court stated that the most reasonable inference was that Rudi agreed to assist the defendant with the murder because of this promise of pecuniary gain.

(F)(5) (Pecuniary Gain) - UPHELD
The Court found that the evidence established beyond a reasonable doubt that the defendant killed his wife to receive the $400,000 life insurance proceeds from a policy he had taken out on her life. See State v. Rudi Apelt, 176 Ariz. 369, 861 P.2d 654 (1993).

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

Cruel: Upheld.
Mental Anguish: Found. "The evidence [of]...the presence of her purse in the apartment and the presence of a towel and some nylon cord at the murder scene, indicates that she was forcibly subdued by the man she thought was her loving husband." 176 Ariz. at 367. The victim was conscious when initially attacked which was demonstrated by scrapes on her knees and a defensive wound on one of her hands.
Physical Pain: Found. Evidence established that the victim "was conscious as she was stabbed once in the chest, four times in the back, and as her throat was slashed." 176 Ariz. at 367. In upholding the death sentence, the Court held that the victim "suffered great physical and emotional pain." Id.

Heinous or Depraved: Not addressed.

MITIGATING CIRCUMSTANCES:

The Court agreed with the trial court that the defendant had not proven any mitigating circumstances sufficient to call for leniency. The Court notes the following mitigating circumstances proffered by the defendant, but it is unclear whether the Court found they existed at all or only that they were insufficient to call for leniency.

Age
Remorse
Cooperation [ with presentence report writer]
Model Prisoner [changed character and newfound religious beliefs]
Lack of Criminal History
Military Service
Good Behavior at Trial
Germany does not have death penalty
Sentencing Disparity [this was not mitigating because it was explained disparity]

JUDGMENT: Convictions and sentences affirmed.


State v. Rudi Apelt, 176 Ariz. 369, 861 P.2d 654 (1993)

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

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
The defendant's brother, Michael, proposed to the victim a few days after meeting her. After marrying her, Michael pressured her to obtain life insurance because he wanted to kill her and collect the proceeds. Michael discussed the murder with the defendant, Rudi, several hours before it occurred. Rudi agreed to participate and followed Michael to the desert to participate in the murder. Rudi claimed that he did not agree to participate for pecuniary gain, but to go along with Michael. The Court found that even if Rudi participated only after Michael persuaded him, at least one of Rudi's motivations was pecuniary. Testimony supported the conclusion that the "bait" for Rudi's participation in the murder was Michael's promise that Rudi and he would have a lot of money to buy anything they wanted, and that they wouldn't have to work any more.

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

Cruel: Upheld.
Mental Anguish: Found. "We also find, for the reasons stated in the companion case, State v. Michael Apelt, 176 Ariz. 349, that the murder was committed in an especially cruel manner." 176 Ariz. at 376.
Physical Pain: Found. See Mental Anguish.
Knew or Reason to Know that Victim Would Suffer: Found. "Defendant argues, however, that the cruelty of the killing cannot be attributed to him because the Court cannot find, beyond a reasonable doubt, that he participated in the actual killing. In contrast to heinousness and depravity, cruelty focuses on the suffering of the victim rather than on the actions or mental state of the defendant. The cruelty of the killing is attributable to the defendant if he knew or should have known that the victim would suffer. The evidence in this case established that Rudi knew Michael was to transport Cindy to the desert where they would kill her, and that Michael would ensure that Cindy could not see where she was going. Therefore, Rudi knew, or should have known, that Cindy would suffer great physical or mental anguish in the course of her kidnapping and murder."

Heinous or Depraved: Not addressed.

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:

(G)(1) Significant Impairment
(G)(3) Minor Participation

JUDGMENT: Conviction and sentence affirmed.

Comment: The reader should also see the companion case involving this defendant's brother, State v. Michael Apelt, 176 Ariz. 349, 861 P.2d 634 (1993), cert. denied, 513 U.S. 834, 115 S. Ct. 113, 130 L. Ed. 2d 59 (1994).


State v. West, 176 Ariz. 432, 862 P.2d 192 (1993)

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

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - UPHELD
The defendant had previously been convicted of manslaughter in Illinois. The defendant argued that there was insufficient evidence admitted to prove this prior conviction. The Court agreed that insufficient evidence had been admitted at the trial court, but found that the defendant had agreed to a stipulation regarding this prior conviction. The defendant complained that he did not personally participate in that stipulation. However, the Court noted that this was not an exceptional circumstance requiring the defendant's consent. If any error occurred in the trial judge basing the (F)(2) finding on the stipulation, it was invited by the defendant.

(F)(5) (Pecuniary Gain) - UPHELD
The defendant was motivated by the desire to steal the victim's property. When the defendant was arrested in Illinois, his car contained some of the victim's property. Before he left Arizona, he moved electronic equipment from a hiding place in the desert to a car that he ultimately burned. The defendant stated that the car belonged to the victim whom he had robbed. The defendant argued that the pecuniary gain finding violated the Eighth Amendment because it repeats an element of the crime of burglary and does not sufficiently narrow the class of death-eligible defendants. The Court cited State v. Carriger, 143 Ariz. 142, 692 P.2d 991 (1984), in the robbery context for the distinction between proving the taking in a robbery and proving the motivation for a murder. In a burglary, the defendant need not intend to kill or even take property to be guilty. Similarly, a felony murder in the course of a burglary could be based on the defendant's intent to commit any felony, not just burglary, so it does not necessarily follow that pecuniary gain will be found in this situation. Federal cases have held that Arizona's sentencing scheme does narrow the class of death-eligible defendants sufficiently to comply with the Eighth Amendment. Defendant argued that within the pecuniary gain category, there must be further narrowing between death-eligible and non-death-eligible murderers. This is not required. What is required is that the class of murderers in general be narrowed.

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

Cruel: Not Addressed. "Because the words in the statute `especially cruel, heinous, or depraved,' are stated in the disjunctive, a finding of any one of the three factors will suffice for finding that this aggravating factor exists. We, therefore, do not separately analyze defendant's attack on the trial court's finding that the murder was also especially cruel." 176 Ariz. at 448 (citation omitted).

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The victim was tied up and had been hit in the face so many times that many bones were broken and the victim's hard palate detached. The Court found that this level of violence far surpassed anything necessary to commit burglary.
Relishing: Found. Defendant bragged to people that he "beat the fuck out of some old man." 176 Ariz. at 448. Also, defendant had proudly displayed cuts and bruises on his hands that he said came from the crime. 176 Ariz. at 448.
Senselessness: Found. The Court simply stated that the murder was unnecessary to complete the underlying crime. The Court further stated that defendant did nothing to render assistance, even after urged to do so.
Helplessness: Found. The Court simply stated that the victim was helpless. No further elaboration is given. However, the finding of this factor may be due to the advanced age of the victim and the severe beating received, which may demonstrate a lack of ability to ward off the attack.

MITIGATING CIRCUMSTANCES:

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

Substance Abuse history [not given "much weight"]

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

(G)(1) Significant Impairment
Age [28 years old at time of crime]
Remorse
Good Character
Felony Murder/Lack of Intent
Limited Education
Difficult Childhood/Family Background
Cooperation with authorities
Family Ties
Failure to complete drug rehabilitation

JUDGMENT: Convictions and sentence affirmed.


State v. Henry (Henry I), 176 Ariz. 569, 863 P.2d 861 (1993)

PROCEDURAL POSTURE: The defendant was convicted in superior Court (Mohave) of first-degree murder, kidnapping, theft and robbery. He was sentenced to death for the murder and terms of imprisonment for the other convictions. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - REVERSED in part
Prior conviction in California of involuntary manslaughter reversed. The Court held that the statutory definition of the crime controls, and, under California law, involuntary manslaughter can be committed without the exertion of physical force so as to injure or abuse, therefore, the factor does not apply. (F)(2) requires more than simply a volitional act that results in death. The Court found that the prior armed robbery conviction could not be committed "recklessly" and by statutory definition must be accomplished against a person's will by "means of force or fear" and therefore satisfies the (F)(2) factor. However, this conviction could not be used as both an (F)(1) factor and an (F)(2) factor. Remanded for clarification that the trial judge weighed this aggravating circumstance only once.

(F)(5) (Pecuniary Gain) - UPHELD
Henry's claim that he was not responsible for a codefendant's expectation of pecuniary gain missed the point that the record supported a finding of Henry's own expectation of pecuniary gain. Henry had an outstanding California warrant, and when his car broke down on the way out of California, he had a motive to take the victim's truck and eliminate him. Henry was convicted of both robbery and theft, and the Court found that those convictions were based on sufficient evidence.

MITIGATING CIRCUMSTANCES:

The Court found that there were no mitigating circumstances in this case sufficient to call for leniency. The Court noted that the defendant proffered the following mitigating circumstances and the trial court properly concluded they were entitled to little or no weight in this case.

Difficult Childhood/Family History
Good Character [had saved lives in the past]

JUDGMENT: Convictions and non-capital sentences affirmed. Remanded for resentencing on the first-degree murder conviction.


State v. Stuard, 176 Ariz. 589, 863 P.2d 881 (1993)

PROCEDURAL POSTURE:
The defendant was convicted in Superior Court (Maricopa) of three counts of first-degree murder, one count of attempted first-degree murder, and counts of first- and second-degree burglary, attempted sexual assault, and armed robbery. Defendant was sentenced to death for each of the murders. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
This finding was not contested on appeal. The defendant was convicted of three counts of first-degree murder and a previous robbery.

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

Cruel: Upheld.
Physical Pain: Found. The Court does not address the F(6) aggravating factor at length because it had decided to reduce the three death sentences to life due to error in the mitigation phase of sentencing. "In light of our holding that the trial judge improperly interpreted or misapprehended significant mitigating evidence sufficiently substantial to call for leniency in the weighing process, it is unnecessary to prolong this review by repeating the evidentiary facts set forth ante in `Facts and Procedural History.' Suffice it to say that the victims must have suffered terrible pain during the beatings and stabbings. We therefore conclude that the evidence established beyond a reasonable doubt that the § 13-751(F)(6) aggravating circumstance was present." 176 Ariz. at 605 (citation omitted).

Heinous or Depraved: Not addressed.

MITIGATING CIRCUMSTANCES:

The trial court found that the defendant had proven the existence of the (G)(1) Significant Impairment mitigating circumstance, but concluded that this mitigating circumstance was not sufficiently substantial to call for leniency. The Court disagreed, finding that this mitigating circumstance was sufficiently substantial to call for leniency in this case. All three experts agreed that the defendant was mentally impaired at the time of the murders and that this impairment contributed to the homicides. The Court weighed this evidence and concluded that it would be improper to impose the death penalty when the murders were so significantly based on mental illness. In a dissenting opinion, Justice Martone evaluated the mental health evidence differently and concluded that the trial court correctly found the existence of (G)(1) significant impairment, but that it did not outweigh the aggravating circumstance.

JUDGMENT: Convictions affirmed; death sentences reduced to life without the possibility of parole for twenty-five years, to be served consecutively.


State v. Styers, 177 Ariz. 104, 865 P.2d 765 (1993)

PROCEDURAL POSTURE: Defendant was convicted in the Superior Court (Maricopa) of first-degree murder, conspiracy to commit first-degree murder, child abuse, and kidnapping. Defendant was sentenced to death on the murder count. This is defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - REVERSED
Evidence that Styers was having serious financial problems and that he knew about a five thousand dollar insurance policy on the 5-year old victim's life was insufficient to establish the (F)(5) aggravating circumstance beyond a reasonable doubt. Ample evidence showed that co-defendant Milke, the victim's mother, had a desire and motive to want her son dead. She had tried to transfer custody of him to others in the past and she cared very much for a man who did not want to continue a relationship with a woman who had a small child. The evidence did not establish, however, that Milke had a financial motive for having her son killed, much less that she had a financial agreement to share the life insurance proceeds with the defendant.

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

Cruel: Not addressed.

Heinous or Depraved: Upheld on findings of senselessness and helplessness alone. "The circumstances of this crime are indeed shocking, and they separate this crime from the `norm' of first degree murders. The evidence supports the especially heinous and depraved aggravating circumstance." 177 Ariz. at 116.
Gratuitous Violence: Not found. The Court refused to find gratuitous violence simply because defendant used a hypervelocity bullet. The Court found no evidence "that defendant used these particular bullets because he wanted to inflict greater damage to the victim."
Relishing: Not found. The trial court found that "defendant's depraved attitude was revealed by witnesses who testified that they heard him say, prior to the killing, that he wished Christopher dead." However, the Arizona Supreme Court held this statement did not support a finding that defendant relished the murder.
Senselessness: Found. "Although there was no legal `parent/child' relationship, defendant and victim did share a special relationship in that defendant was the child's full-time caregiver for several months before he killed him. This fact illustrates the depravity of defendant and makes the crime even more senseless and the victim especially helpless as to this defendant."
Helplessness: Found. The victim was four years old. The defendant betrayed the trust of the victim and used knowledge of the victim his love of Santa Claus and hunting snakes to lure him to the desolate desert wash for the purpose of killing him. The nature of the defendant's relationship with the victim made the victim especially helpless to this defendant.

(F)(9) (Victim under Fifteen Years of Age) - UPHELD
The defendant was an adult and the victim was four years old at the time of the murder. The defendant argued that the trial court "double counted" the victim's age to find both the (F)(9) and the (F)(6) aggravating circumstances. The trial court relied on the victim's age to find that the victim was helpless under the (F)(6) analysis. The Court held that one fact could be used to establish two aggravating circumstances, provided that it is weighed only once. Trial judges are presumed to know the law and to apply it in making sentencing decisions. The Court presumed, without evidence to the contrary, that the trial court committed no error. The Court itself weighed the victim's age only once in its independent review of the sentence.

MITIGATING CIRCUMSTANCES:

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

Lack of Criminal History
Military Service

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

Impairment [post-traumatic stress disorder]
Felony Murder instruction

JUDGMENT: Child abuse conviction and sentence vacated. Convictions and sentences for first-degree murder, conspiracy to commit first-degree murder, and kidnapping affirmed.

Comment: Reader should also refer to the opinions in the cases of Styers' co-defendants: State v. Milke, 177 Ariz. 118, 865 P.2d 779 (1993); State v. Scott, 177 Ariz. 131, 865 P.2d 792 (1993).


State v. Milke, 177 Ariz. 118, 865 P.2d 779 (1993)

PROCEDURAL POSTURE: Defendant was convicted in Superior Court (Maricopa) of first-degree murder, conspiracy to commit first-degree murder, kidnapping, and child abuse. This is defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - REVERSED
The victim in this case was the defendant's four-year-old son. In her statement to the police, the defendant gave conflicting reasons why she wanted her son killed: so he would not grow up like his father; or so she would be free from parental responsibilities. She had a $5,000 life insurance policy on the boy and lied to the police about the existence of the policy. The trial court found that the defendant's inconsistent statements regarding the life insurance policy evidenced a motive for the murder and that she was attempting to conceal this motive by her statements. The Court found it equally as plausible that she was just trying to divert suspicion away from herself by the statements. Given that either inference was as believable as the other was, the Court concluded that the pecuniary gain factor was not proven beyond a reasonable doubt.

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

Cruel: Not addressed.

Heinous or Depraved: Found. The evidence at trial showed that defendant had arranged with co-defendant Styers to kill her four-year-old son, Christopher. The Court indicated that the Gretzler factors are not exclusive and that the trial court properly found that this parent/child relationship contributes to a finding of heinousness and depravity, citing as precedent, State v. Stanley, 167 Ariz. 519 (1991) and State v. Fulminante, 161 Ariz. 237 (1989). "The crime in this case can be described without reservation as `hatefully or shockingly evil' and `marked by debasement, corruption, perversion or deterioration.' The parent/child relationship is a circumstance that separates this crime from the `norm' of first degree murders."
Senselessness: Found. "Killing her own son so that he would not grow up to be like his father, or killing him so she could be free from parental burdens is, indeed, senseless." 177 Ariz. at 125.
Helplessness: Found. "Most assuredly, four-year-old Christopher was a helpless victim. He was delivered into the hands of his killers by the person upon who he should have been able to rely for protection and compassion his mother." 177 Ariz. at 125. The defendant/mother knew that the victim trusted the other defendant, Styers, who was the child's daytime caretaker.

(F)(9) (Victim under Fifteen Years of Age) - UPHELD
The (F)(9) finding was upheld without discussion. The defendant was an adult and the victim was four years old at the time of the murder.

MITIGATING CIRCUMSTANCES:

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

Lack of Criminal History
Employment Record
Model Prisoner [good behavior]

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

Residual Doubt
Difficult Childhood/Family History]
Potential for Rehabilitation
Grief
Gender

JUDGMENT: The conviction and sentence for child abuse was vacated. All other convictions and sentences affirmed.

Comment: The reader should also refer to the opinions in the companion cases of Milke's co-defendants: State v. Styers, 177 Ariz. 104, 865 P.2d 779 (1993); State v. Scott, 177 Ariz. 131, 865 P.2d 792 (1993).


State v. Scott, 177 Ariz. 131, 865 P.2d 792 (1993)

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

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
The defendant argued that the only evidence supporting this factor was his own statement that he was offered $250 to drive the car when codefendant Styers took the four-year-old victim, Christopher, out into the desert to kill him. The defense argument was that there was no corroboration by any independent evidence and that the corpus delicti doctrine prevented his statement from being used to establish pecuniary gain. The Court noted that the defendant cited no authority to support his position. The Court held that the corpus delicti doctrine does not apply at sentencing and therefore, no additional evidence was needed to support the defendant's statement. The statement alone was sufficient to prove this pecuniary gain factor.

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

Cruel: Not addressed.

Heinous or Depraved: Upheld.
The defendant agreed to help co-defendant James Lynne Styers kill co-defendant Debra Jean Milke's four-year-old son, Christopher. Defendant admitted during a police interview that he accompanied Styers to a desert wash where Styers shot and killed Christopher. Styers expected to receive some of Christopher's $5,000 life insurance policy payout.
Gratuitous Violence: Not found. "While the medical evidence suggests that at least two of the three wounds suffered by the victim were fatal, the firing of one, or even two, unnecessary shots does not lead to the conclusion that gratuitous violence was inflicted." 177 Ariz. at 143.
Relishing: Not found. "Styers' alleged post-homicide reference to the victim as `that little bastard' would not suggest that Defendant `relished' the murder even if the Court were inclined to impute the statement to Defendant. A review of the cases leaves the clear impression that more is required in order to establish that the killer relished the murder." 177 Ariz. at 143.
Senselessness: Found. The Court found that senselessness and helplessness, together, but without any other factors, were sufficient to establish heinousness and depravity. Neither one alone would suffice, but together, they were enough to support the finding of heinous or depraved, as indicated in State v. Stanley, 167 Ariz. 519 (1991), and State v. Wallace, 151 Ariz. 362 (1986). The Court explained that the import of the Gretzler factors is to determine if the murder is above the norm. This inquiry (whether the murder is above the norm) is an "overarching standard, having no connection to any specific aggravating circumstance. Numerous subsequent decisions, however, suggest that this element is part and parcel of the inquiry necessitated by 13-751. The Court finds that this murder was both shocking and repugnant and does, indeed, stand out above the norm." 177 Ariz. at 143-44. The Court also noted it had discussed this issue separately in the companion case of State v. Milke, 177 Ariz. 118, 865 P.2d 779 (1993).
Helplessness: Found. See discussion under Senselessness.

(F)(9) (Victim under Fifteen Years of Age) - UPHELD
The defendant was an adult and the victim was four years old at the time he was taken from his home and killed in the desert. The Court rejected the defendant's argument that the trial court gave the victims age double weight by using the victim's age to support both the (F)(9) and the (F)(6) aggravating circumstances (helplessness factor). Age can satisfy two separate aggravating circumstances, but can only be counted once in the weighing process.

MITIGATING CIRCUMSTANCES:

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

Lack of Criminal History
Cooperation [with police]
Model Prisoner [good behavior while incarcerated and at trial]
Family Ties [loving relationship with mother]
Psychological history
Felony Murder instruction

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

Residual Doubt
Difficult Childhood/Family History]
Potential for Rehabilitation
Employment history
Remorse
Alcohol abuse history

JUDGMENT: Convictions and sentences affirmed.

Comment: The reader should also refer to the opinions in the companion cases of Milke's co-defendants: State v. Styers, 177 Ariz. 104, 865 P.2d 779 (1993); State v. Milke, 177 Ariz. 118, 865 P.2d 792 (1993).


State v. Gallegos (Gallegos I), 178 Ariz. 1, 870 P.2d 1097 (1994)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder and sexual conduct with a minor under the age of fifteen. Defendant was sentenced to death for the murder. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

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

Cruel: Not addressed - because the Court upheld heinousness and depravity.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The medical examiner testified that injuries to the eight-year-old female victim's rectum were inflicted either premortem or perimortem. Defendant admitted to anal intercourse with the victim for between fifteen and twenty minutes after her body went limp and after he believed she was dead. The Court found that defendant believed he committed necrophilia. Defendant stated that "it wasn't like she was going to tell anybody," so "why not" do it because he knew he would be caught the next day. 178 Ariz. at 15. After sodomizing the victim, defendant discarded her naked, bruised and battered body under a tree, where she was found the following day.
Senselessness: Found. See Helplessness. "We believe that the record in this case supports a finding of senselessness, helplessness, and gratuitous violence." 178 Ariz. at 15. Senselessness and helplessness, "in isolation," do not always lead to a finding of heinousness and depravity. 178 Ariz. at 14. However, if either or both is considered with other factors, that can lead to a finding of heinousness and depravity.
Helplessness: Found. The victim was an eight-year-old girl, weighing fifty-seven pounds and standing four feet, five inches tall. The defendant is an eighteen-year-old male who had a trust relationship with the victim. The defendant went into the victim's room while she slept and suffocated her. The victim "never had a chance." 178 Ariz. at 15.

(F)(9) (Victim under Fifteen Years of Age) - UPHELD
The defendant was an adult and the murder victim was eight years old at the time of the sexual assault and murder. On appeal, the defendant did not contest the (F)(9) finding, but argued he had been "double punished@ because the trial court considered victim's age to establish the (F)(6) factor. Specifically, the defendant argued that the finding of helplessness was a repetition of fact that the victim was a child. The Court held that this argument was without merit. The same evidence may "support the finding of more than one aggravating factor, as long as it is only weighed once in determining whether to impose the death penalty." Moreover, the Court disagreed that the helplessness finding was based solely on the victim's age. The defendant's status as a kind of "uncle" to the child victim, his access to the victims bedroom, and the fact the victim was asleep at the time of the attack, all supported a finding of helplessness, apart from the victim's young age.

MITIGATING CIRCUMSTANCES:

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

Impairment ["to some degree" by alcohol use on night of murder]
History of alcohol and drug abuse
Age [18 years old at the time of the murder]
Remorse
Cooperation with police
Recommendation for leniency [from police officers on case]

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

(G)(1) Significant Impairment [alcohol and drug use]
Lack of Intent to Kill
Sentencing Disparity [not applicable where insufficient evidence to charge the other party]

The Court agreed with the trial court that the defendant's impairment from alcohol and drug use on the night of the murder did not rise to the level of "significant" impairment contemplated by the (G)(1) mitigating circumstance. But the trial court should have considered whether the evidence that the defendant was impaired to some degree, along with his history of alcohol and drug abuse, constituted a nonstatutory mitigating circumstance. After considering the evidence, the Court found that the defendant's impairment constituted a nonstatutory mitigating circumstance and remanded for resentencing because it could not clearly ascertain whether the trial court would have sentenced Gallegos to death if it had considered his impairment as a nonstatutory mitigating circumstance.

JUDGMENT: Convictions and sentence for sexual conduct with a minor under the age of fifteen affirmed. Remand for resentencing on the first-degree murder conviction due to a finding of impairment as an additional mitigating circumstance not considered by the trial court.


State v. Ramirez, 178 Ariz. 116, 871 P.2d 237 (1994)

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

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - UPHELD
The defendant's prior convictions were for aggravated assault and robbery. The Court examined the statutes under which the defendant was convicted and found that the specific subsections of the statutes necessarily involved violence or the threat of violence to another. In State v. Fierro, 166 Ariz. 539, 804 P.2d 72 (1990), the Court held that a conviction for aggravated assault under A.R.S. §13-1203 and §13-1204 did not qualify as an aggravating factor because it was possible to commit the crime without the use or threat of violence. Here, the state avoided that problem by proving the specific subsections that applied, and those subsections necessarily involved violence. The robbery statute also necessarily involved the use or threat of violence.

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

Cruel: Upheld.
Mental Anguish: Found. The Court found that the victims experienced great pain and suffering over a prolonged period of time. Neighbors heard "banging, screaming, cries for help, and running noises" for twenty to thirty minutes. 178 Ariz. at 129. Blood and murder weapons were scattered throughout the apartment. The victims were conscious during repeated stabbings. Each victim was stabbed fifteen to twenty times. Each victim was aware of the other victim's suffering. Victim, Mrs. G., had defensive wounds from the struggle. Under these facts, the Court found that F(6), "especially cruel," applied to both murder counts.
Physical Pain: Found. See Mental Anguish.
Knew or Reason to Know that Victim Would Suffer: The Court found the victim's suffering to be inescapably foreseeable to defendant.

Heinous or Depraved: Not addressed.

(F)(8) (Multiple Homicides) - UPHELD
The defendant was convicted of stabbing a female acquaintance and her fifteen-year-old daughter to death. Citing State v. Lavers, 168 Ariz. 376, 814 P.2d 333 (1991), the Court said that it analyzes the temporal, spatial, and motivational relationships between the capital homicide and the collateral [homicide], as well as the nature of that [homicide] and the identify of its victim to determine if one murder was committed during the course of another. In this case, the Court said the murders occurred in same place, resulted from the same disturbance, and were committed in a relatively short period of time in what can be fairly viewed as one continuous course of criminal conduct. The trial court misstated the law by saying that the factor supports the death sentence on either conviction. The Court noted that the factor, once proven, applies to each conviction.

MITIGATING CIRCUMSTANCES:

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

(G)(1) Significant Impairment
Difficult Childhood/Family History [including gang affiliation]
Lack of Education
Psychological history
Chronic substance abuse
Family Ties

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

Remorse
Model Prisoner
Residual Doubt

JUDGMENT: Convictions and sentences affirmed.


State v. Cornell, 179 Ariz. 314, 878 P.2d 1352 (1994)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder, attempted first degree murder, aggravated assault, and first degree burglary. 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) - REVERSED
The trial court's (F)(1) finding was based on an aggravated assault conviction for which the defendant received a life sentence. That conviction was subsequently reversed on appeal. The defendant was retried on that charge and found guilty of a misdemeanor. The Court agreed with the defendant that the conviction could no longer support the (F)(1) aggravating circumstance. However, instead of remanding the case to be reweighed by the trial judge, the Court reduced the sentence to life imprisonment without the possibility of parole for twenty-five years to be served consecutive to all other sentences imposed.

(F)(3) (Grave Risk of Death to Others) - UPHELD
The (F)(3) finding was upheld without discussion. Because the Court reversed the trial court's (F)(1) finding, and reduced the sentence to life, the Court never addressed the merits of the (F)(3) finding. The facts apparently supporting the (F)(3) finding are that Cornell shot and killed his estranged girlfriend, Daphne, and wounded her father, Victor, at the Arizona Department of Transportation (ADOT) building. Victor drove his truck to the entrance of the building, let Daphne out of the truck, and then confronted Cornell, who had been following them. Cornell pulled out his gun, assumed a shooter's stance and opened fire. One shot hit Victor as he tried to take cover behind his truck, in which his granddaughter was still sitting. Cornell then followed Daphne into an office area in the building, and in the presence of her co-workers, fired at least three shots at her while she lay on the floor. Cornell then fled the building, threatening several people with his gun so that they would not interfere with his escape.

MITIGATING CIRCUMSTANCES:

There is no discussion of mitigating circumstances in this opinion because the Court set aside one of the aggravating circumstances and reduced the sentence to life.

JUDGMENT: Convictions and sentences affirmed except the death sentence, which was reduced to life imprisonment without the possibility of parole for twenty-five years to be served consecutively to the defendant's other sentences.


State v. Wood, 180 Ariz. 53, 881 P.2d 1158 (1994)

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

AGGRAVATING CIRCUMSTANCES:

(F)(3) (Grave Risk of Death to Others) - UPHELD
This aggravating circumstance exists only if the defendant's murderous act itself puts other people in the "zone of danger." The inquiry is whether, during the course of the murder, the defendant knowingly engaged in conduct that created a real and substantial likelihood that a specific third person might suffer a fatal injury. No single factor is dispositive of this aggravating circumstance. Here, three employees were present in the confined garage space where the defendant shot one of them. One of the employees was only six to eight feet away from the victim when he was shot. The defendant then turned toward another employee, as if to shoot him, but the employee fled. There was evidence that the defendant cocked and uncocked the gun twice between shooting the first victim and shooting the second. The other employees were found to be in the zone of danger based on the defendant's actions.

(F)(8) (Multiple Homicides) - UPHELD
The (F)(8) finding was upheld without extensive discussion. Wood did not challenge the finding on appeal. Wood shot and killed his estranged girlfriend and her father at a Tucson body shop. The Court noted that this was a double murder and the trial court properly found the existence of the (F)(8) aggravating circumstance.

MITIGATING CIRCUMSTANCES:

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

Impulsive personality exacerbated by drug and alcohol abuse ["little, if any" weight]
History of substance abuse ["little, if any" weight]
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:

(G)(1) Significant Impairment [mental or alcohol/drugs]
(G)(2) Duress
(G)(4) Death not Reasonably Foreseeable
Difficult Childhood/Family History

JUDGMENT: Convictions and sentences affirmed.


State v. Maturana, 180 Ariz. 126, 882 P.2d 933 (1994)

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

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - UPHELD
The trial court's (F)(2) finding was based on Maturana's prior conviction for aggravated assault in Texas. Maturana argued that the state did not prove the existence of the previous conviction beyond a reasonable doubt because the state failed to introduce a certified copy of the conviction. Rejecting this argument, the Court noted that the state introduced, at the sentencing hearing, certified copies of the indictment, plea agreement, and judgment on plea of guilt, as proof that Maturana was previously convicted of stabbing another person with a homemade spear.

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

Cruel: Upheld.
Mental Anguish: Found. The Court found that the victim was conscious through much of the attack due to possible defensive wounds on the victim's forearm and hand. Additionally, the defendant had bragged to another inmate that the victim was shaking and screaming after each gunshot.
Physical Pain: Found. The Court did not differentiate between mental anguish and physical pain, but concluded that the victim both "suffered physical pain and endured mental anguish during this attack."

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The Court concluded that both gratuitous violence and mutilation existed and commingled the factors. The victim was shot at least twelve times in the head and chest. Some bullets caused multiple entrance wounds. Further, the defendant watched as co-defendant Ballard repeatedly hacked the body with a machete. One machete wound nearly severed the victim's jugular vein and defendant apparently attempted to sever the victim's head before dumping the body in a rancher's well.
Mutilation: Found. The Court addressed gratuitous violence and mutilation together.
Relishing: Found. Defendant demonstrated no remorse and bragged to another inmate about "how great it was." 180 Ariz. at 132. Defendant further stated that he tricked the victim into going to the desert to make him pay for being a snitch and a thief.
Senselessness: Not addressed. The Court declined to address senselessness because heinousness and depravity were already found based on other factors.

MITIGATING CIRCUMSTANCES:

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

(G)(1) Significant Impairment [drug usage]; (G)(2) Duress; (G)(3) Minor Participation;
(G)(4) Death not Reasonably Foreseeable; Age [32 years old at time of crime];
Difficult Childhood/Family History; Substance Abuse; Military Service; Remorse;
Family Ties; Model Prisoner; Low Intelligence; Sentencing Disparity

JUDGMENT: Convictions and sentences affirmed.


State v. King, 180 Ariz. 268, 883 P.2d 1024 (1994)

PROCEDURAL POSTURE: Defendant was convicted in Superior Court (Maricopa) of first-degree murder and sentenced to death. This is 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. The defendant went into a convenience market, and while robbing the market, shot the store clerk and the security guard with the guard's gun.

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

Cruel: Not addressed.

Heinous or Depraved: Reversed.
Witness Elimination: Found. The Court found witness elimination did exist, but alone, it was not sufficient to uphold a finding of heinousness and depravity. In Greenway, 170 Ariz. 155, 823 P.2d 22 (1991), "Chief Justice Feldman specially concurred, emphasizing that although `killing to eliminate witnesses may be a factor in finding depravity,' the Court has never held that a finding of heinousness and depravity could be based solely on a finding that a murder was motivated by a desire to eliminate a witness." 180 Ariz. at 284. The Court held that A.R.S. § 13-751(F)(6) does not permit it to find that a killing is especially heinous or depraved based solely on a finding that the motive for the killing was to eliminate witnesses. 180 Ariz. at 285. Witness elimination has an important evidentiary value in refuting a defense claim that a murder is not senseless if it is done to avoid prosecution. 180 Ariz. at 286. The circumstances of the murder must "raise it above the norm of first degree murders." In this case, it was a cold-blooded murder demonstrating a vile state of mind and qualified as witness elimination. However, witness elimination alone, without other factors, is not enough to raise this murder "above the norm."

(F)(8) (Multiple Homicides) - UPHELD
The defendant was convicted of killing a store clerk and a security guard during the robbery of a convenience store. The trial court stated incorrectly in its special verdict that the factor "supports the imposition of a death sentence on either" murder count. Once this factor is proven, it applies to each first-degree murder conviction.

MITIGATING CIRCUMSTANCES:

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

Difficult Childhood/Family History
Substance Abuse
Antisocial Personality Disorder
Post-Traumatic Stress Disorder
Family Ties

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

(G)(1) Significant Impairment [mental or alcohol/drugs]
Age [26 years old at time of crime]
Remorse

JUDGMENT: Death sentence affirmed, even without F(6) because of pecuniary gain and other felony convictions.


State v. Richmond (Richmond III), 180 Ariz. 573, 886 P.2d 1329 (1994)

PROCEDURAL POSTURE: On remand from the U.S. Supreme Court, this is the third review by the Arizona Supreme Court. Defendant was convicted, again, in Superior Court (Pima) of robbery and first-degree murder and sentenced to death for first-degree murder. This is defendant's automatic direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

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

(F)(2) (Prior Violent Felony) - REVERSED
The defendant was previously convicted of kidnapping. At the time of the defendant's murder trial, (F)(2) required that the prior conviction be predicated upon a statute wherein the use or threat of violence is a necessary element of the crime. The statutory definition, not the facts of the underlying conviction, dictate whether the crime fits within the (F)(2) aggravator. The Court held that (F)(2) did not apply in this case for several reasons. Initially, the trial court improperly received testimony concerning the facts of the previous conviction. The state never introduced a formal record of the conviction, but introduced only a copy of the information charging the defendant and a copy of the sentencing minute entry, both of which indicated that the defendant kidnapped the victim while armed with a deadly weapon. The Court could not determine which section of the kidnapping statute applied to this particular case. The statute itself includes subsections that allow for a kidnapping conviction without the use or threat of violence. From this record, it was not possible to determine the specific subsection of the kidnapping statute in question. Therefore, the (F)(2) finding was reversed.

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

Cruel: Not addressed because it was rejected in the 1983 review of this case. The record did not indicate the victim suffered more than the initial blow which rendered him unconscious. 180 Ariz. at 579.

Heinous or Depraved: Reversed.
Gratuitous Violence: Not found. The victim was run over by a car twice after having been beaten with rocks and fists. The Court found the record was unclear on the issue of whether defendant was the driver. A witness, Faith, testified that defendant was driving, but she was high on heroin at the time, had been vomiting during the incident and was lying in the back seat with her eyes closed when the other two people (including defendant) got into the car and drove away. Another witness stated that Faith had told her previously that defendant was not driving. Defendant stated that a third party was the driver. The Court next addressed, if defendant were the driver, whether driving over someone twice constitutes gratuitous violence. There was no evidence as to whether defendant intended to mutilate the victim or whether, thinking he was not yet dead from the beating, he simply intended to kill him. The Court found it possible that if a person intentionally drives over a person twice, whether or not he knows the victim is dead after the first pass, it could be gratuitous violence. However, the Court, in this case, did not find gratuitous violence.
Mutilation: Not found. The Court addressed mutilation in conjunction with gratuitous violence.

MITIGATING CIRCUMSTANCES:

The Court reduced the defendant's death sentence to life, based largely on the evidence of his changed character during the twenty years since he was originally sentenced to death. The Court found the evidence quite "persuasive and unusual for a capital case." See case annotation in Model Prisoner section.

JUDGMENT: Convictions affirmed, sentence of death reduced to life in prison without the possibility of parole for twenty-five years, to be served consecutively to a life sentence for a "prior" murder conviction.

Note: For extensive prior history, see case summary for State v. Richmond, 136 Ariz. 312, 666 P.2d 57 (1983).


State v. Ross, 180 Ariz. 598, 886 P.2d 1354 (1994)

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

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
The defendant's admitted objective was to steal money and identification. It is not relevant whether he intended to kill before the robbery. A person furthers his pecuniary gain motive when he kills to facilitate escape and to ensure keeping the stolen items. Here, the defendant killed to steal credit cards and bankcards. The defendant lured the victim real estate agent to a vacant store under the pretext of an interest in leasing the property. Once inside, the defendant demanded the victim's wallet and during the ensuing struggle, shot the victim in the head. The defendant dragged the victim's body behind the counter and again shot him in the head. After stealing the victim's wallet, the defendant immediately began using the victim's bank and credit cards. He withdrew money from a bank, obtained a temporary driver's license, and bought a car with the victim's identification. The defendant had the victim's wallet in his possession when he was arrested by the police.

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

Cruel: Not addressed.

Heinous or Depraved: Reversed. Senselessness and helplessness alone "will ordinarily not be sufficient to prove heinousness or depravity." 180 Ariz. at 607.
Senselessness: Found. Defendant argued that the victim fought back during the robbery so he had to shoot him to complete the robbery. The Court disagreed. Defendant had the victim's wallet before the second shot was fired, so there was no need to shoot again. Defendant could have taken victim's wallet without killing him.
Helplessness: Found. The victim was shot twice. He was rendered helpless by the first shot and hence, the second shot was delivered when the victim was helpless. 180 Ariz. at 606.
Witness Elimination: Not found. The Court articulated three fact patterns where witness elimination may be found, pursuant to previously existing case law. First, "where the murder victim is a witness to some other crime, and is killed to prevent that person from testifying about the other crime"; second, when "a statement by the defendant that witness elimination is a motive for the murder" is made; third, "where extraordinary circumstances of the crime show, beyond a reasonable doubt, that witness elimination is a motive. This will only occur in the most extreme cases." 180 Ariz. at 606. The Court held that the facts of this case did not fit into any of the three categories.

MITIGATING CIRCUMSTANCES:

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

Lack of Criminal History
Family Ties

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

Difficult Childhood/Family History; Model Prisoner; and Cooperation with police

JUDGMENT: Convictions and death sentence affirmed. The Arizona Supreme Court reversed the (F)(6) finding and then reweighed the aggravating and mitigating circumstances before affirming the sentence.


State v. Hinchey (Hinchey II), 181 Ariz. 307, 890 P.2d 602 (1995)

PROCEDURAL POSTURE: The defendant was convicted after his second trial in Superior Court (Maricopa) of first-degree murder and attempted first-degree murder and he was sentenced to death. On direct appeal, the Arizona Supreme Court affirmed the convictions but vacated the death sentence and remanded for resentencing. At resentencing, the defendant was again sentenced to death. This is his automatic, direct appeal from that resentencing.

AGGRAVATING CIRCUMSTANCES:

There is no discussion of aggravating circumstances in this opinion.

MITIGATING CIRCUMSTANCES:

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

(G)(1) Significant Impairment [personality disorder]
Stress
Jury foreman's affidavit stating death penalty not deserved
Adjustment to incarceration
Originally given life sentence pursuant to plea agreement

JUDGMENT: Death sentence affirmed.


State v. Gonzales, 181 Ariz. 502, 892 P.2d 838 (1995)

PROCEDURAL POSTURE: The defendant was convicted after his second trial in Superior Court (Maricopa) of felony murder, aggravated assault, theft, armed robbery, and two counts of burglary. The first trial ended in a hung jury. He was sentenced to death on the murder conviction, and prison sentences on the noncapital convictions. This is his automatic appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(3) (Grave Risk of Death) - UPHELD
The wife was confined a 10-foot by 10-foot courtyard with the defendant as he stabbed her husband to death. She attempted to rescue her husband by jumping on the defendant's back as he was stabbing. According to the Court, "[o]ne who murders knowing that others are present can expect that someone may attempt to interfere, particularly when the person is the victims spouse."

(F)(5) (Pecuniary Gain) - UPHELD
The defense argued that the murder was accidental and unexpected in that the robbery was already completed when he was confronted by the victim. The Court disagreed with this analysis. The Court stated that the (F)(5) factor is found where a motivation for the murder was the expectation of pecuniary gain, and that where a defendant kills to facilitate escape and to keep stolen items, he is furthering his pecuniary gain motive. Here, the victims interrupted the defendant during his burglary of their home. The defendant was there to steal and this intent "tainted all of his other conduct." This murder was not accidental given the sheer number of stab wounds. The defendant's primary motivation was to steal, and the murder was directly related to that goal.

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:

Felony Murder conviction
Good Character

JUDGMENT: Convictions and sentences affirmed.


State v. Barreras, 181 Ariz. 516, 892 P.2d 852 (1995)

PROCEDURAL POSTURE: Defendant pleaded no contest in Superior Court (Maricopa) to first-degree murder and sexual assault, and was sentenced to death for the murder. This is defendant's automatic direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

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

Cruel: Not addressed.

Heinous or Depraved: Reversed. After reversing the witness elimination finding, only senselessness and helplessness remained. The Court has repeatedly held that "in most cases the senselessness and helplessness factors alone will not support a finding of heinousness or depravity." 181 Ariz. at 523. In the present case, the Court found senselessness and helplessness were not sufficient to find heinousness and depravity.
Senselessness: Found. The Court found senselessness was established beyond a reasonable doubt in that defendant easily could have completed the sexual assault without killing the victim. 181 Ariz. at 522.
Helplessness: Found. The Court held that the victim's "diminished mental capacity and functional age clearly rendered her helpless at defendant's hands." 181 Ariz. at 522. The victim was nineteen years of age, because of tuberous sclerosis, she had the mental age of a three- to four-year-old child. Further, the Court compared the victim's size to defendant's, but still found that the victim's diminished mental capacity rendered her helpless.
Witness Elimination: Not found. Citing the three witness elimination factors articulated in State v. Ross, 180 Ariz. 598, 886 P.2d 1354 (1994), the Court held that, in this case, the record did not support a finding beyond a reasonable doubt that witness elimination motivated defendant. The victim had not witnessed any unrelated crime, defendant had not said anything to demonstrate that witness elimination was his motive, and no sufficient other circumstances existed to make an extreme case. 181 Ariz. at 523.

MITIGATING CIRCUMSTANCES:

Because the Court reversed the (F)(6) finding and reduced the sentence to life, it was unnecessary to weigh the "significant mitigating evidence involving the defendant's organic brain damage and low I.Q." The Court did not discuss the specific evidence that was considered "significant."

JUDGMENT: Convictions for sexual assault and murder affirmed. Sentence for sexual assault affirmed. Sentence of death reduced to life imprisonment without possibility of release for twenty-five years to be served consecutively to all other sentences.


State v. Willoughby, 181 Ariz. 530, 892 P.2d 1319 (1995)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first degree premeditated murder, conspiracy to commit murder, fraudulent schemes and artifices, armed robbery, obstructing criminal investigation and filing fraudulent insurance claim, and he was sentenced to death for the murder. This is defendant's automatic, direct appeal to the Arizona Supreme Court.

(F)(5) (Pecuniary Gain) - UPHELD
Evidence showed that defendant did not merely receive insurance proceeds from an existing policy after his wife's death, but rather, he killed his wife for the purpose of making a financial gain. Prior to killing his wife, Willoughby pressed for a buyout agreement between his wife and her mother so that his wife's share of their business would be liquidated upon her death and distributed under her will. An integral part of the agreement was the purchase of additional life insurance on his wife's life. After the murder, Willoughby received proceeds from one policy and sought proceeds from another. Evidence also established that Willoughby said that his wife would have taken him "to the cleaners" if he had divorced her rather than killing her.

MITIGATING CIRCUMSTANCES:

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

Good Character.

The Court noted that the proof in this case of a great many past good deeds, even if prompted by impure psychological motives, had considerable mitigating value and was entitled to substantial weight.

JUDGMENT: Convictions and sentences affirmed.


State v. Bolton, 182 Ariz. 290, 896 P.2d 830 (1995)

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

AGGRAVATING CIRCUMSTANCES:

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

Cruel: Upheld.
Mental Anguish: Found. The victim was abducted from her bed by a stranger, carried several blocks, placed in a dirty car, disrobed and stabbed to death. The Court concluded that the victim was conscious for a substantial duration between the beginning of the crimes and her death. This conclusion was supported by the victim's fingerprints on the left rear window and door handle of the taxicab, blood stains which indicated the victim was upright after being stabbed, and the absence of any other injury that would have impaired the victim's consciousness prior to being stabbed. "Obviously, the three-year-old victim was terrified beyond imagination." 182 Ariz. at 311.
Physical Pain: Found. The Court was persuaded by medical evidence that a person with similar injuries to the victim would have suffered "excruciating pain" while she died over a fifteen to thirty minute period. The victim may not have been conscious for the entire fifteen to thirty minutes, but the Court held that with these circumstances, a brief period of consciousness would be enough to establish cruelty. 182 Ariz. at 311. Knew or Reason to Know that Victim Would Suffer: Found. "To support a finding of cruelty, only post wound suffering must be foreseeable. A defendant's subjective intent to cause suffering and the singularity of the wound are irrelevant altogether." 182 Ariz. at 311-12 (citation omitted). The Court found the victim's post wound suffering to be foreseeable because it was not the type of wound that kills or disables instantly like a gunshot to the head. "It makes no difference that the trial court did not expressly refer to foreseeability in its special verdict."

Heinous or Depraved: Not addressed. The Court refused to address heinousness or depravity because it found the F(6) factor established by cruelty.

(F)(9) (Victim under Fifteen Years of Age) - UPHELD
The defendant was an adult and the victim was three years of age at the time she was abducted from her parents' home. She was stabbed and her body abandoned. On appeal the defendant attacked the constitutionality of the death penalty statute, in particular the (F)(9) factor, because its finding resulted in an automatic death sentence. The Court rejected the argument without much discussion and noted that the statute is constitutional because it requires the trial court to consider the mitigating circumstances and weigh them against the aggravating factors. The defendant also contended the victim's age was counted twice, once to find the (F)(9) factor and again to find the (F)(6) factor. The Court found no basis for that argument in the record.

MITIGATING CIRCUMSTANCES:

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

Age [19 years old at time of crime] [given little weight because crime not impulsive]

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

Impairment
Difficult Childhood/Family History
Repeated past institutionalization
Felony Murder [instruction and conviction]
(G)(4) Death not Reasonably Foreseeable

JUDGMENT: Convictions and sentences affirmed.


State v. Stokley, 182 Ariz. 505, 898 P.2d 454 (1995)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Cochise) of two counts of first-degree murder, two counts of kidnapping, and one count of sexual conduct with a minor under the age of fifteen. 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. A medical expert testified that strangulation, the cause of death, usually takes twelve to fifteen minutes with at least a few minutes of consciousness, and death is not instantaneous. This is partially true in this case where defendant constantly repositioned his hands during the manual strangulation. 182 Ariz. at 517. There was evidence that the victims struggled during this time. Thus, the victims were conscious during at least part of the attack.
Physical Pain: Found. The victims had been stabbed in or near the eye, had many bruises and abrasions, and one victim had been stepped on with defendant's shoe, before death or shortly thereafter. The Court found that at least some of these injuries occurred before death and that this constituted cruelty. Further, evidence of hemorrhaging in the vaginal area was present for both victims, indicating sexual activity before death. One victim endured a fractured cranium and laceration of the skull. The Court found that both victims had struggled and were conscious when at least some of the injuries were inflicted, which is sufficient to establish cruelty. 182 Ariz. at 517.
Knew or Reason to Know that Victim Would Suffer: Found. The Court stated that defendant knew or should have known the victims would suffer, but did not provide any factual analysis.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The Court affirmed the findings that stabbing the eyes of the victims, as well as stomping on their bodies, could not have been thought to cause death and, therefore, constituted gratuitous violence and mutilation. 182 Ariz. at 518.
Mutilation: Found. See Gratuitous Violence.
Senselessness: Found. The Court stated that the killing of "a helpless child" is senseless.
Helplessness: Found. The Court found that the victims were defenseless against the attacks when they were "driven to a remote rural area in the middle of the night, sexually assaulted, stabbed, stomped, stripped, strangled, and thrown down a mine shaft." 182 Ariz. at 518.
Witness Elimination: Found. A dialogue between defendant and a detective revealed that defendant's motive to kill the victims after the sexual assault was due to his fear they would tell. This fulfills the second Ross witness elimination category.

(F)(8) (Multiple Homicides) - UPHELD
The (F)(8) finding was upheld without discussion. The defendant did not contest the finding on appeal. Two thirteen-year old girls were sexually assaulted, strangled, stabbed in the eye, and dumped down a mineshaft.

(F)(9) (Victim under Fifteen Years of Age) - UPHELD
The (F)(9) finding was upheld without discussion. The defendant was an adult at the time the crimes were committed, and the two victims were both under the age of fifteen.

MITIGATING CIRCUMSTANCES:

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

Mental disorders
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:

(G)(1) Significant Impairment [mental and alcohol/drugs]
Intoxication
History of substance abuse
(G)(3) Minor Participation
(G)(4) Death not Reasonably Foreseeable
Cooperation [with police]
Sentencing Disparity
Potential for Rehabilitation/Lack of Future Dangerousness
Difficult Childhood/Family History
Good Character
Model Prisoner [pretrial and presentence]
Felony Murder /Lack of Intent to Kill
Remorse

JUDGMENT: Convictions and sentences affirmed.


State v. Aryon Williams, 183 Ariz. 368, 904 P.2d 437 (1995)

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

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - UPHELD in part, REVERSED in part
The trial court used the defendant's convictions of armed robbery and attempted murder, in connection with the current case, as (F)(2) factors. The Court affirmed the use of the armed robbery conviction because armed robbery, by its terms, is a felony that involves the use or threat of violence on another person. The Court concluded that the attempted murder conviction cannot support an (F)(2) finding because, under the terms of the statute, the crime of attempted first degree murder does not necessarily involve the use or threat of violence on another person. The Court stated, however, that the attempted murder charge is irrelevant because the armed robbery conviction supports the (F)(2) finding. The Court also cited several cases which state that convictions entered prior to a sentencing hearing may be considered regardless of the order in which the underlying crimes occurred or the order in which the convictions were entered. (F)(2) was properly applied for the armed robbery conviction.

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

Cruel: Not addressed.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. "Unquestionably, this murder involved gratuitous violence. Rita's body was broken, crushed, torn, scraped, shot, dragged, beaten, and bruised. In addition to being shot three times, Rita suffered a savage beating with a hard object, resulting in blunt force injuries covering virtually her entire upper body. Her internal injuries, consisting of pierced and torn organs, were numerous and severe. One of the gunshots completely fractured Rita's right femur, her ribs were fractured in at least thirty-one places and she suffered a broken nose, a fractured breast bone, fractured collar bones, and massive fractures of the pelvic bone. She was run over by an automobile at least twice. The number and nature of Rita's injuries belie any claim that defendant did not inflict violence in excess of that necessary to kill."
Helplessness: Found. The Court found that after the victim was shot and beaten, she was helpless unable to defend herself against further attack.

MITIGATING CIRCUMSTANCES:

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

Family Ties
Lack of Criminal History
Good Character

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

(G)(1) Significant Impairment
(G)(2) Duress; Age [23 years old at time of murder]
Victim's Actions
Recommendation for leniency from victim's sister [not related to the defendant, his character, or the circumstances of the murder]
Race

JUDGMENT: Convictions and sentences affirmed.


State v. Walden, 183 Ariz. 595, 905 P.2d 974 (1995)

PROCEDURAL POSTURE:
The defendant was convicted in Superior Court (Pima) of first-degree murder, four counts of sexual assault, two counts of sexual abuse, aggravated assault, two counts of dangerous kidnapping, kidnapping, dangerous burglary, burglary, and robbery. He was sentenced to death for the murder. This is defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
The defendant was convicted of dangerous kidnapping and dangerous aggravated assault at the same time as his first-degree murder conviction. The kidnapping and aggravated assault offenses occurred prior to the murder, while all charges were tried together. The defendant argued that these "Hannah" priors were insufficient to support an (F)(1) finding because a conviction is not entered before the court renders judgment, and judgment occurs at the time of sentencing. This argument was rejected because "conviction" means a determination of guilt, not judgment. The Court analyzed the meaning of conviction under both the Rules of Criminal Procedure and in its ordinary usage. A determination of guilt occurs by a plea in open court, or by the return of a guilty verdict. To require the formal entry of judgment would lead to irrational and arbitrary results.

(F)(2) (Prior Violent Felony) - UPHELD
The defendant had previously been convicted of aggravated assault in 1990. He was also convicted in the present case for kidnapping, aggravated assault and sexual assault. For the 1990 aggravated assault conviction, the specific subsection, A.R.S. §13-751(A)(2), necessarily involves the use or threat of violence. The defendant was also convicted of aggravated assault in the present case under A.R.S. §13-1204(A)(2). The Court determined this by looking at the jury instructions. The Court also held that the sexual assault conviction satisfied (F)(2) because it necessarily involved the use or threat of violence. The Court previously held that the use or threat of violence was not necessarily an element of sexual assault because the lack of consent could be satisfied where the victim was deceived or incapable of valid consent. See State v. Bible, 175 Ariz. 549, 858 P.2d 152 (1993). Here, the Court looked to the jury instruction defining "without consent" only to mean that the victim was coerced by the immediate or threatened use of force. Similarly, the jury instruction about the kidnapping charge required a finding that the victim's movements were restricted by physical force or intimidation.

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

Cruel: Upheld.
Mental Anguish: Found. The Court found the victim was conscious during at least a portion of the attack. Evidence supporting this finding includes: tangling of the victim's hand in the electrical cord used to strangle her, indicating she was conscious and struggling to free the cord; splattering of blood all around the room, indicating the victim was moving around the room during the attack; a large splatter of blood from the victim's carotid artery demonstrated that the victim's throat was cut in a different location than where the body was found.
Physical Pain: Found. The victim received several blunt force injuries to her arms, legs, face, and mouth, and cuts on her chest. The Court did not distinguish between mental anguish and physical pain.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The "nature" of the victim's wounds demonstrated defendant's intent to inflict unnecessary and gratuitous violence beyond that which was needed to kill the victim. Her injuries included bruises on her arms and legs; scraping or cutting injuries to her neck, chest, and breast; a gash wound on her head; strangulation; and at least two deep cuts to her throat. 183 Ariz. at 619.
Senselessness: Found. The Court found the murder senseless because it was unnecessary to complete the sexual assault.
Helplessness: Found. Defendant beat the victim and repeatedly injured her in an effort to overcome her resistance to his attack. The victim was five feet tall, weighing 100 pounds, whereas defendant stood six feet two inches tall and weighed 195 pounds.
Witness Elimination: Not found. The Court overturned the trial court's finding because this killing did not fit any of the three Ross categories: the victim was not killed to prevent her testimony regarding another crime; defendant made no statements linking this crime to witness elimination; no extraordinary circumstances exist.

MITIGATING CIRCUMSTANCES:

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

Good Character
Model Prisoner

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

Difficult Childhood/Family History

JUDGMENT: Convictions and sentences affirmed.


State v. Roger and Robert Murray, 184 Ariz. 9, 906 P.2d 542 (1995)

PROCEDURAL POSTURE: This case addresses two defendants: Robert Murray and Roger Murray. The F(6) findings for both defendants were discussed simultaneously by the Court. Defendants were each convicted in Superior Court (Mohave) of two counts of first-degree murder and one count of armed robbery. Each was sentenced to death for the murders. This is defendants' joint automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
Defendants invaded the cafe and home of two victims, robbed them of money and other items, stole their tow truck, shot them and fled the scene. The Court found no factual support for defendants' claim that the deaths were unexpected or accidental. The victims were shot execution style, while lying on their stomachs. The evidence showed that the murders were committed in the course of, or flight from the robbery, and to further the goal of pecuniary gain.

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

Cruel: Upheld.
Mental Anguish: Found. "[T]he victims were kidnapped at gunpoint; they were forced to lie down; the crime occurred in the middle of the night and by surprise; the victims had no opportunity to defend themselves or summon aid; and they had time to consider their fate." 184 Ariz. at 37. "Due to the execution style of the murders, Applehans clutching Morrison's arm, in addition to the lacerations on Morrison and signs of struggle, the state proved beyond a reasonable doubt that the victims suffered from mental as well as physical pain and suffering before death." 184 Ariz. at 37.
Physical Pain: Found. See Mental Anguish. The Court did not distinguish between mental anguish and physical pain.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The Court found that "[g]ratuitous violence is supported by the numerous gunshot wounds to the victims' heads with different weapons, displaying violence far beyond that necessary to kill." 184 Ariz. at 38.
Senselessness: Found. The Court found the murders were senseless because they were unnecessary for defendants to complete the robberies.
Helplessness: Found. "The victims were relatively elderly and helpless against the younger assailants. The trial court also noted that the victims could not have summoned aid easily, thus buttressing the finding of helplessness." 184 Ariz. at 38 (citations omitted).
Witness Elimination: Not addressed. Though found by the trial court prior to publication of State v. Ross, the Supreme Court refused to review this finding under the newly articulated standard since F(6) heinousness and depravity were already supported by a finding of gratuitous violence, senselessness, and helplessness.

(F)(8) (Multiple Homicides) - UPHELD
The two older victims were shot and killed at the store and restaurant where they lived outside Kingman, Arizona. Robert did not challenge the finding on appeal. Roger argued that it was double jeopardy to apply the multiple homicide aggravating factor in sentencing where the murders were part of the same offense. The Court rejected the argument, noting it had dismissed the same argument in State v. Greenway, 170 Ariz. 155, 823 P.2d 22 (1991).

MITIGATING CIRCUMSTANCES:

Roger:

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

Mental Health history [hyperactivity and "mental disorders"]

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

(G)(1) Significant Impairment [mental or alcohol/drugs]
Alcohol and Drug Abuse
(G)(2) Duress
(G)(4) Death not Reasonably Foreseeable
Age [20 years old at time of crime]
Difficult Childhood/Family History [failed to show impact at time of crime]
Remorse
Felony Murder Instruction [not relevant where there is a finding of guilt for premeditated murder]
Cooperation with police
Residual Doubt

Robert:

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

Potential for Rehabilitation

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

(G)(1) Significant Impairment [alcohol/drugs]
Impairment [intoxication]
Lack of Criminal History
Difficult Childhood/Family History [failed to show impact at time of crime]
Life Sentence would adequately protect society [did not "qualify as mitigation"]

JUDGMENT: Convictions and sentences affirmed for both defendants.


State v. Gulbrandson, 184 Ariz. 46, 906 P.2d 579 (1995)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of premeditated first-degree murder and theft. Defendant was sentenced to death for the murder. 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.
Gratuitous Violence: Found. The Court defined gratuitous violence as "violence in excess of that necessary to commit the crime." 184 Ariz. at 68. "In the special verdict, the trial court characterized the murder `as a brutally savage attack of shocking proportions.' Defendant apparently used numerous instruments to inflict injury to Irene: namely, several knives, scissors, and a wooden salad fork." The victim was stabbed thirty-four times, along with blunt force injuries and a broken nose. The evidence suggested that defendant had also kicked or stomped on the victim. She died of asphyxiation, due to probable strangulation, and of multiple stab wounds. Upon these facts, the Court found that gratuitous violence exhibiting a heinous or depraved mind was established. 184 Ariz. at 68.
Relishing: Not found. The Court found that although gambling the day after the murder "reflects a certain amount of callousness," without more, it did not establish beyond a reasonable doubt that defendant relished the murder. 184 Ariz. at 68. The Court also noted that defendant called his mother expressing that "he had done a terrible thing. He thought he had killed Irene." He also stated that he was contemplating suicide. On these facts, the Court held that relishing was not established beyond a reasonable doubt.
Helplessness: Found. The Court held that evidence of a "protracted struggle does not negate the finding of helplessness." 184 Ariz. at 69. Defendant ultimately rendered the victim helpless by binding her.

MITIGATING CIRCUMSTANCES:

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

Behavioral or Character Disorders
Stress
Model Prisoner

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

(G)(1) Significant Impairment
(G)(2) Duress
Rehabilitation/Lack of Future Dangerousness
Remorse
Family Ties

JUDGMENT: Convictions and sentences affirmed.