Capital Sentencing Guide

1996-1999

State v. Spears, 184 Ariz. 277, 908 P.2d 1062 (1996)

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

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
The victim considered Spears to be her boyfriend and purchased a ticket for him to fly to Phoenix. Prior to killing the victim, Spears accompanied the victim while she withdrew large amounts of cash and while she had the title to her truck notarized so that she could transfer it to him. Although there was no evidence that Spears forced the victim to take these actions, the evidence suggested that he lured her under the guise that they would be going away together. Rejecting the claim that the state failed to prove that Spears formed the intent to steal the victim's money and truck before he killed her, the Court found that Spears committed the murder as part of a preconceived plan to obtain her money and truck.

MITIGATING CIRCUMSTANCES:

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

Lack of Criminal History
Difficult Childhood/Family History
Model Prisoner [good conduct in jail and at trial only - not adoption of new goals]

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

Age [33 years old at time of crime]
Remorse
Family Ties
Residual Doubt
Rehabilitation/Lack of Future Dangerousness
Employment History/Military Service
Cooperation [with police]

JUDGMENT: Convictions and sentences affirmed.


State v. Roscoe (Roscoe II), 184 Ariz. 484, 910 P.2d 635 (1996)

PROCEDURAL POSTURE: The defendant's convictions were affirmed on appeal, 145 Ariz. 212, 700 P.2d 1312, but he was granted a new trial in state post-conviction relief proceedings. He was again convicted in Superior Court (Maricopa) of child molestation, kidnapping, and first-degree murder, and was sentenced to death for the murder. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

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

Cruel: Upheld.
Mental Anguish: Found. The Court found that the victim experienced both mental anguish and physical pain. "The victim was conscious when she was abducted, stripped, and bound. Roscoe forced the victim to fellate him before gagging her with her panties. The mental anguish she must have felt is unimaginable." 184 Ariz. at 500.
Physical Pain: Found. The Court found that medical testimony established that "the vaginal assault was excruciatingly painful and that the victim struggled to survive, for perhaps four to five minutes, after being strangled. Beyond any doubt, this murder was especially cruel." 184 Ariz. at 500.

Heinous or Depraved: Reversed. However, F(6) was upheld on the basis of cruelty alone.
Relishing: Reversed. "Intuitively, the nature of Laura's murder is clearly debased and perverse. But in most cases in which relishing is established, we require that the defendant say or do something, other than commission of the crime itself, to show he savored the murder." 184 Ariz. at 500. "The relishing factor is also conspicuously absent from recent child sex cases. Given the precedent and lack of evidence in the record to indicate to the contrary, we do not believe the record and our previous cases support the trial court's finding of relishing." 184 Ariz. at 500. The Court held that relishing was not established beyond a reasonable doubt.
Senselessness: Found. The Court found senselessness without elaboration, repeating its well-established rule that senselessness and helplessness alone "are usually insufficient" to establish heinousness or depravity. 184 Ariz. at 500.
Helplessness: Found without discussion. See senselessness.

MITIGATING CIRCUMSTANCES:

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

Family Ties [love and support of family]
Employment History
Model Prisoner [good conduct and adoption of new goals]

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

Mental Impairment
Lack of Criminal History

JUDGMENT: Conviction and death sentence affirmed.


State v. Kemp, 185 Ariz. 52, 912 P.2d 1281 (1996)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of first-degree felony murder, armed robbery, and kidnapping. He 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 was convicted of robbery in California. The trial court found this sufficient evidence to support the (F)(2) aggravator. The defendant argued that the state failed to prove his conviction beyond a reasonable doubt. The Court rejected this argument as without merit as the defendant stipulated to his previous conviction. The defendant also argued that his prior robbery was not a crime of violence against another person. A prior conviction satisfies (F)(2) only if it involves the use or threat of violence against a person. Extrinsic evidence explaining the prior conviction is not admissible to prove that the prior conviction involved violence against a person. State v. Romanosky (Romanosky I), 162 Ariz. 217, 227, 782 P.2d 693 (1989). The Court then examined the California robbery statute and concluded that robbery includes a threat of violence against the victim. Since robbery involves the use or threat of violence, it is sufficient to support the (F)(2) aggravating circumstance.

(F)(5) (Pecuniary Gain) - UPHELD
This killing occurred during a kidnapping and the defendant was convicted of felony murder. The defendant purchased the murder weapon the day before the murder. As soon as the victim was abducted, the defendant took him to an ATM machine to withdraw cash. The Court stated that on these facts, it was clear that the murder was committed for pecuniary gain.

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

Cruel: Upheld.
Mental Anguish: Found. The victim was abducted from his apartment complex's parking lot and driven to the desert. Consciousness during the abduction, at least, is established because, at some point after his abduction, the victim provided defendant with his ATM pin number. He was killed in the desert after being removed from the truck and forced to disrobe. He died of two gunshot wounds to the back of his head, approximately 100 feet off a dirt road in the desert. Two spent bullet casings were found around the victim's body. "The only reasonable inference from these facts is that Juarez suffered incredible terror from the moment of his abduction until his murder." 185 Ariz. at 65. The Court found that the victim must have pondered his ultimate fate during these events.

Heinous or Depraved: Not addressed.

MITIGATING CIRCUMSTANCES:

The Court agreed with the trial court that the defendant failed to prove the existence of any mitigating circumstances because he did not offer any evidence or present any witnesses. The defendant sought to prove the following mitigating circumstances by a sentencing memorandum: Personality Disorder; Model Prisoner; Residual Doubt; Family Ties; Follower; and Failure to receive psychological counseling.

JUDGMENT: Convictions and sentences affirmed.


State v. Medrano (Medrano II), 185 Ariz. 192, 914 P.2d 225 (1996)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of first-degree murder, kidnapping, sexual assault, and burglary, and was sentenced to death for the murder. On direct appeal, the Arizona Supreme Court affirmed in part, reversed in part, and remanded for resentencing. Medrano I, 173 Ariz. 393, 844 P.2d 560 (1992). The trial court reimposed the death penalty and this is the defendant's automatic, direct appeal to the Arizona Supreme Court from that resentencing.

AGGRAVATING CIRCUMSTANCES:

There is no discussion of aggravating circumstances in this opinion. See Medrano I.

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
Cocaine use and history of drug abuse

JUDGMENT: Death sentence affirmed.


State v. Hurles, 185 Ariz. 199, 914 P.2d 1291 (1996)

PROCEDURAL POSTURE:
The defendant was convicted in Superior Court (Maricopa) of first-degree murder and 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. The Court found the victim was conscious based on evidence that she tried to reach a phone, later responded to paramedics who treated her at the scene, and a witness who saw her directly after the attack spoke to her before calling 911. The Court found that the victim must have suffered "great terror." 185 Ariz. at 207.
Physical Pain: Found. The Court found that the victim suffered "great pain" during the attack. The victim endured fifteen defensive stab wounds to her hands, eight stab wounds to her head, twelve stab wounds to her torso, and two stab wounds to her lower extremities. The victim further suffered blunt force trauma, which tore her liver. The Court found this "barrage of violence" to be "above the norm of even first-degree murder, leaving no room to doubt that this murder was especially cruel." 185 Ariz. at 207.

Heinous or Depraved: Not addressed.

MITIGATING CIRCUMSTANCES:

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

Difficult Childhood/Family History
Model Prisoner [good behavior]

JUDGMENT: Conviction and sentence affirmed.


State v. Gallegos (Gallegos II), 185 Ariz. 340, 916 P.2d 1056 (1996)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first degree murder and sexual conduct with a minor. He was sentenced to death on the murder conviction. In State v. Gallegos (Gallegos I), 178 Ariz. 1, 870 P.2d 1097 (1994), the Arizona Supreme Court remanded to the trial court for resentencing. At resentencing, the trial court again imposed the death penalty. This is the defendant's automatic, direct appeal from that resentencing to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(6) (Heinous, Cruel or Depraved) - UPHELD
The Court upholds this finding without discussion. For a complete discussion, see Gallegos I, 178 Ariz. 1, 870 P.2d 1097 (1994).

(F)(9) (Victim under Fifteen Years of Age) - UPHELD
The (F)(9) finding was upheld without discussion. See facts of the case noted in the earlier appeal of this case in Gallegos I, 178 Ariz. 1, 870 P.2d 1097 (1994).

MITIGATING CIRCUMSTANCES:

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

Age [18 years old at time of crime]
Impairment [intoxication]
Substance Abuse History
Remorse
Recommendations 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
Lack of Criminal History
Lack of Intent to Kill

JUDGMENT: Death sentence affirmed.


State v. Danny Jones, 185 Ariz. 471, 917 P.2d 200 (1996)

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

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
After reiterating its position that a trial court may not find pecuniary gain in every case in which a person has been killed and the defendant has made a financial gain, the Court rejected Jones' claim that insufficient evidence supported the finding that his motive for the murders was pecuniary gain. Ample evidence showed that Jones killed the victims, Robert Weaver and his daughter, Tisha, as part of a plan to steal Robert's gun collection and leave Bullhead City. Jones was a friend of Robert's and knew about his gun collection. Jones was not working, had very little money and, on the day before the murders, was told that he must move out of a friend's residence. Jones wanted to leave Bullhead City because he knew that warrants were pending for his arrest. While Jones and Robert were talking in Robert's garage, Jones attacked him and beat him with a baseball bat. Jones entered the house where the gun collection was kept, attacked Robert's grandmother and daughter with the baseball bat, emptied the gun cabinet and departed in the grandmother's car. He left the car at a Bullhead City hotel, took a taxi to Las Vegas and paid the taxi driver with one of Robert's guns. He later sold most of the remaining guns from Robert's collection.

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

Cruel: Upheld.
Mental Anguish: Found. The Court held this factor applied to both murders.
ROBERT WEAVER: The Court found that "after the initial blows, Robert fell to the ground, where he remained unconscious and bleeding for at least 10 to 15 minutes. Robert then moved between the garage door and Katherine Gumina's car, leaving a bloody handprint smeared across the length of the garage door and blood on the side of the car, and climbed on top of a work bench, leaving blood along the east wall. This evidence is sufficient to establish that Robert regained consciousness and experienced pain and uncertainty about his fate and thus is sufficient to uphold the trial court's finding of cruelty." 185 Ariz. at 487.
TISHA WEAVER: The Court found that Tisha had time to contemplate her ultimate fate because she was aware that her great-grandmother had been attacked, and she struggled with defendant. The Court relied on the following evidence: "(1) although Tisha was wearing pajamas when the police discovered her body, the beds were still made and she had not yet gone to bed when the murders occurred; (2) a child's workbook and colored pencils were in the living room; (3) Tisha's body was under the master bedroom bed with her legs spread and marks on the carpet indicating that she had been pulled out from under the bed; and (4) the police found a black bracelet, similar to one that defendant had been seen wearing, next to Tisha's head." 185 Ariz. at 487. The Court found this evidence supported the finding that Tisha was conscious when the murders occurred, she hid out of fear, and she struggled with defendant and pulled the bracelet off of him. The Court held that she experienced uncertainty about her ultimate fate, supporting cruelty.
Physical Pain: Found as to Robert Weaver. See mental anguish.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found as to both murders.
ROBERT WEAVER: Expert testimony indicated that "after the initial blows, Robert regained consciousness, attempted to flee, and climbed on top of a work bench. . . .[W]hile Robert was on the work bench, defendant struck him at least two additional times in the head with the baseball bat, and as he fell to the ground, defendant struck him in the head at least once more." 185 Ariz. at 488. Since each blow was capable of causing death, the Court found gratuitous violence beyond a reasonable doubt.
TISHA WEAVER: The Court found that Tisha was hit twice in the head with a baseball bat, a pillow was placed over her head, and she was suffocated, strangled, or both. 185 Ariz. at 488-89. The evidence supported a finding of gratuitous violence because the head injuries were sufficient to kill Tisha. "[D]efendant had struck Tisha with the baseball bat with sufficient force to create a wound several inches wide, extending from her left ear to her left cheek. He then struck her a second time on the back of her head. After delivering these two fatal blows, defendant then asphyxiated her, far exceeding the amount of violence necessary to cause death." 185 Ariz. at 489.
Senselessness: Found as to both murders.
ROBERT WEAVER: The Court found that initial blows knocked Robert unconscious. Defendant could have taken the guns without killing Robert.
TISHA WEAVER: The Court found senselessness because Tisha was a seven-year-old child and in no way an obstacle to defendant's goal of taking guns.
Helplessness: Found as to both murders.
ROBERT WEAVER: The Court found that after the initial blows rendered Robert unconscious, he was helpless against defendant. Even after recovering consciousness and attempting to flee, the Court found that he would have been physically unable to stop defendant from taking the guns and the victim was, therefore, helpless.
TISHA WEAVER: The Court found her to be a seven-year-old, helpless victim, but did not elaborate further.
Witness Elimination: Reversed. The trial court found defendant murdered Tisha Weaver to eliminate her as a witness. The Arizona Supreme Court reversed, finding "there is no clear evidence of the sequence of the homicides, and we cannot determine conclusively whether Tisha directly witnessed the attack on Ms. Gumina." Therefore, the first Ross category was not satisfied. The second and third Ross categories were not satisfied because defendant made no statements that the murder of Tisha was for the purpose of witness elimination, and there were no extreme circumstances pointing to witness elimination as a motive.

(F)(8) (Multiple Homicides) - UPHELD
The (F)(8) finding was upheld without discussion. The defendant was convicted of killing two people in the same house and at the same time. The defendant did not contest the finding on appeal.

(F)(9) (Victim under Fifteen Years of Age) - UPHELD
The defendant was an adult and one of the murder victims was under fifteen years of age.

MITIGATING CIRCUMSTANCES:

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

Impairment [alcohol use at time of crime]
History of Substance Abuse
Head Injuries [may have caused behavioral disorders]

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
Difficult Childhood/Family History
Rehabilitation/Lack of Future Dangerousness
Recommendations for leniency
Remorse

JUDGMENT: Convictions and sentences affirmed.


State v. Darrel Lee, 185 Ariz. 549, 917 P.2d 692 (1996)

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

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - UPHELD
The defendant was previously convicted or robbery in Arizona. The Court found that the robbery statute requires the use or threat of violence on another person. The Court rejected the defendant's reliance on State v. Fierro, 166 Ariz. 539, 804 P.2d 72 (1990), and the claim that the (F)(2) aggravating circumstance was unconstitutionally vague.

(F)(5) (Pecuniary Gain) - UPHELD
Ample evidence supported the trial court's finding that this murder was committed to hinder detection so that Lee and his female accomplice could continue using the victim's car and credit cards. Lee and his accomplice asked the victim for a ride, got into his car and demanded his wallet, which contained cash, credit cards and an ATM card. The victim was tied up, placed in the trunk of the car and, during the next several days, was driven back and forth between Phoenix and California, while Lee and his accomplice repeatedly used the ATM and credit cards. After the victim twice escaped and attempted to flee, Lee and his accomplice killed the victim, placed the body in the trunk of the car, and eventually buried the body. The Court reiterated that to establish the (F)(5) aggravating circumstance, the state must prove that the receipt of pecuniary gain was a cause of and a motivation for the murder, not just a result of it. However, as the Court previously noted in State v. Rockwell, 161 Ariz. 5, 14, 775 P.2d 1069, 1078 (1989), "[e]ven if [defendant] shot the victim after the money was taken . . ., the murder was part and parcel of the robbery because it resulted in eliminating the only witness to the crime."

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

Cruel: Upheld. Without comment, the Court held that A.R.S. § 13-751(F)(6) is not unconstitutionally vague as applied in this case.

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
(G)(4) Death not Reasonably Foreseeable
Felony Murder/Lack of Intent to Kill
Rehabilitation/Lack of Future Dangerousness

JUDGMENT: Murder conviction and death sentence affirmed.


State v. McKinney (and State v. Hedlund), 185 Ariz. 567, 917 P.2d 1214 (1996)

PROCEDURAL POSTURE:
The defendants were convicted in the Superior Court (Maricopa) of first-degree murder and sentenced to death. This is their automatic, direct appeal to the Arizona Supreme Court. McKinney was convicted of two counts of first-degree murder. Hedlund was convicted of one count of first-degree murder and one count of second-degree murder. The murders took place during a series of residential burglaries. Dual juries were ordered by the trial judge in this case. That order was the subject of a special action in the Court of Appeals, 171 Ariz. 566, 832 P.2d 219 (1992), which vacated the order of the trial judge and remanded. A petition for special action to the Arizona Supreme Court was filed, 173 Ariz. 143, 840 P.2d 1008 (1992), and that Court found the decision to impanel a dual jury was not a local rule and did not exceed the trial judge's authority. The opinion of the Court of Appeals was vacated and the order of the trial court affirmed.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - REVERSED
Hedlund was convicted of second-degree murder at the same time he was convicted of first-degree murder. The two crimes occurred several weeks apart, but the counts were consolidated for trial. He challenged the trial court's finding of the second-degree murder conviction as sufficient to support the (F)(2) aggravator. A conviction occurs when the jury renders its verdict. Convictions entered prior to the sentencing hearing may be considered regardless of the order in which the convictions were entered. State v. Richmond (Richmond II), 136 Ariz. 312, 318-19, 666 P.2d 57, 63-64 (1983). This defendant's second-degree murder conviction occurred when the jury returned its verdict and prior to his capital sentencing hearing. Therefore, it could be used as an (F)(2) aggravating circumstance. The Court then examined whether the prior conviction was for a crime of violence. Looking to the statute and not to the facts of the prior case, the statute in question contains a subsection that makes a conviction for second-degree murder possible based on reckless behavior. Thus, the prior conviction does not qualify as a crime of violence. The Court noted that this problem is now moot, as the amendment to (F)(2) now delineates all degrees of second-degree murder as a "serious offense" and thus would qualify as an aggravator under (F)(2).

(F)(5) (Pecuniary Gain) - UPHELD
Simply receiving profit from a murder is insufficient to satisfy this aggravating factor, but killing for the purpose of financial gain is enough. Here, the murders took place during a burglary spree where the purpose of the burglaries was to find money or items to sell. Items stolen from the residence of one of the victims were in fact sold. Here, pecuniary gain was the primary, if not the sole, purpose of the murders.

MITIGATING CIRCUMSTANCES:

The Court found that McKinney proved the existence of the following mitigating circumstance, but it was not sufficiently substantial to call for leniency: Difficult Childhood/Family History

The Court found that Hedlund proved the existence of the following mitigating circumstance, but it was not sufficiently substantial to call for leniency: Difficult Childhood/Family History

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

Impairment [mental or alcohol use]
(G)(3) Minor Participation

JUDGMENT: Convictions and sentences affirmed.


State v. Miles, 186 Ariz. 10, 918 P.2d 1028 (1996)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of first-degree murder, dangerous kidnapping, and dangerous armed robbery. 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 stipulated at trial that he had previously been convicted of three dangerous felonies (armed robbery) and did not challenge the (F)(2) finding on appeal.

(F)(5) (Pecuniary Gain) - UPHELD
A codefendant told the defendant that they were getting the murder weapon to obtain money. Directly before the carjacking and abduction of the victim, codefendant Jackson told the defendant that he was "gonna get somebody's car, take'em off in the middle of the desert and shoot them." In addition, hours after the murder the defendant was driving the victim's car and using her ATM card. He took the car to Phoenix and told a friend that the car belonged to him. He also used her credit card and withdrew money from the victim's bank account. After crashing the victim's car, the defendant was apprehended and had in his possession the victim's jewelry, bank and credit cards.

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

Cruel: Upheld.
Mental Anguish: Found. "Miles participated extensively in the kidnapping and abduction. He went to get the gun, drove in the car, held the gun during the drive to the desert, and stood nearby while Jackson shot [the victim]. During the 25-30 minute drive, Miles described the victim as `scared to death.' At the scene of the murder, Miles said he heard her cry and plead for her life." 186 Ariz. at 17 (citation omitted). Defendant watched the victim drop to her knees as Jackson shot her.
Knew or Reason to Know that Victim Would Suffer: Found. The Court found that the victim's suffering was foreseeable and the murder was especially cruel.

Heinous or Depraved: Reversed. After reversing the witness elimination factor, only senselessness and helplessness remained. The Court determined that in this case, senselessness and helplessness were not sufficient to substantiate heinousness and depravity as to defendant Miles.
Senselessness: Found. The murder was not necessary to take the victim's money and car.
Helplessness: Found. "The victim was unarmed and shoeless. She was outnumbered 3 to 1 and did not resist. The evidence showed that the bullet first passed through her forearm before it pierced her heart. This is consistent with the finding that she had her hands up in a defensive position before she was shot."
Witness Elimination: Not found. No evidence exists to satisfy the Ross categories.

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstances existed, but were insufficiently substantial to call for leniency. The Court did not provide any discussion of these circumstances, but listed them as nonstatutory mitigating circumstances and noted that the state did not contest these findings:

Felony Murder conviction
Good Character [reputation for nonviolence]
Remorse
Family and personal situation [mother died, separated from wife and child, lost his job]

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 [drug use]

JUDGMENT: Convictions and sentences affirmed.


State v. Jackson, 186 Ariz. 20, 918 P.2d 1038 (1996)

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

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
Jackson did not challenge the (F)(5) finding on appeal and conceded at oral argument that his motivation for committing the murder was to steal the victim's car and valuables. The Court agreed, without an extensive discussion of the facts supporting the finding. Jackson and two accomplices carjacked the victim, drove her to the desert, ordered her out of the car, shot and killed her, and then drove away with her car and purse. See also, State v. Miles, 186 Ariz. 10, 918 P.2d 1028 (1996) (the codefendant's appeal).

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

Cruel: Upheld.
Mental Anguish: Found. The victim was scared during a twenty-five to thirty minute drive into the desert and "repeatedly begged her captors not to hurt her." 186 Ariz. at 29. "At the scene of the murder, the victim got on her knees and continued to plead for her life. Jackson drew the gun down on her 3 times, walked back to the vehicle several feet away and then returned to the victim. Each time, within the hearing of the victim, Jackson spoke to Miles and Hernandez about her fate. On his third trip back to the victim, she stood and had her hands in the air in a defensive posture. The victim begged for her life. Jackson then shot her in the chest." 186 Ariz. at 29.

Heinous or Depraved: Upheld.
Relishing: Found. According to co-defendant's testimony, immediately following the murder, defendant sang a song. On the drive back to Tucson, defendant twice told his co-defendants that he wanted to do it again. Upon encountering a bicyclist, defendant said, "Lets jack this guy right here." Later, while passing a woman jogging, defendant said, "Lets jack her, too." 186 Ariz. at 30.
Senselessness: Found. The victim was driven into the desert, forced to remove her shoes, jacket, and briefly, her pants. Defendant could have gotten away with the victim's car without immediate detection, and the theft of the victim's vehicle could have been accomplished without the murder.
Helplessness: Found. The victim was unarmed, with no shoes or jacket, did not resist, and was outnumbered three to one. The bullet passed through her forearm before entering her chest, showing that her arms were in a defensive posture.
Witness Elimination: Not found. The Court held that there was no evidence to support a finding of witness elimination under the Ross categories.

MITIGATING CIRCUMSTANCES:

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

Age [16 years old at time of murder - but diminished 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:

Sentencing Disparity [disparity was justified by relative culpability of parties]

JUDGMENT: Convictions and sentences affirmed.


State v. Towery, 186 Ariz. 168, 920 P.2d 290 (1996)

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

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
It was undisputed that Towery was convicted of four counts of armed robbery, committed while on parole, making him eligible for a life sentence. The Court stated that these facts support a finding under both (F)(1) and (F)(2). Although the facts support a finding that both circumstances exist, a court may not give weight to both circumstances when each is supported by the same facts. See, e.g., State v. Spencer, 176 Ariz. 36, 859 P.2d 146 (1993).

(F)(2) (Prior Violent Felony) - UPHELD
The defendant was convicted or armed robbery involving the threat of violence while on parole. The Court did not discuss this other than to say that the prior conviction makes the defendant eligible for the death penalty under both (F)(1) and (F)(2).

(F)(5) (Pecuniary Gain) - UPHELD
The defendant did not dispute this conclusion by the trial court. The Court found a clear pecuniary gain motive by the defendant in his going to the victim's house, and that financial gain was the impetus for his conduct during the ensuing robbery and killing. A codefendant stated that they went to this particular house to rob, and once inside, bound the victim while they loaded up the victim's car with a television, photocopy machine, cameras, jewelry, and other items. They also took money and credit cards. The defendant injected the victim with battery acid, and then strangled him. Both codefendants then left in the victim's car and, before abandoning it, removed the compact disc player.

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

Cruel: Upheld.
Mental Anguish: Found. The victim was "conscious when the two men with a gun confronted him in his home, bound his hands behind his back, took him upstairs, asked him whether he wanted to be left tied up or put to sleep, placed him face down on his bed, and pushed his head down while pulling on the [plastic garbage container tie] to strangle him. He was conscious while defendant stabbed his arms several times to inject a mystery substance. Defendant believed [the victim] was conscious after the injections because he heard Jones snoring, pretending to be asleep, even though defendant had injected no sleeping medication. [The victim] was therefore conscious when he was strangled the first time. These events certainly caused [the victim] mental anguish about his fate . . . ." 186 Ariz. at 188.
Physical Pain: Found. Based on the above listed facts, the Court found that "the needle punctures and first strangulation caused [the victim] physical suffering." 186 Ariz. at 188.

Heinous or Depraved: Not addressed.

MITIGATING CIRCUMSTANCES:

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

Impairment [drug use]
Sentencing Disparity
Difficult Childhood/Family History

JUDGMENT: First-degree murder conviction and death sentence affirmed.


State v. Laird, 186 Ariz. 203, 920 P.2d 769 (1996)

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

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
The finding was upheld without discussion of the facts supporting the finding. Laird did not challenge the finding on appeal and the Court agreed with the trial court that this aggravating circumstance exists beyond a reasonable doubt. The facts described elsewhere in the opinion are that Laird told his friends, at least two weeks before the murder, that he would be getting a blue Toyota 4x4 truck. The day before the murder, Laird ran away from his mother's home and rode his bicycle to the victim's home. He was familiar with the house because he had helped to grade the yard the month before. After the victim left to work a 12-hour night shift, Laird broke into the home and stayed until the victim arrived home the next morning. After the victim parked her truck in the garage, Laird attacked her, tied her up and ultimately strangled her, then dumped her body in the desert. Laird was arrested the next day while driving the victim's truck.

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

Cruel: Upheld.
Mental Anguish: Found. The Court found both mental anguish and physical pain, but did not distinguish among the facts supporting each. See Physical Pain.
Physical Pain: Found. Prior to the attack, defendant did not have any scratches on his hands or face. Following the attack, defendant's face and hands were scratched and showed bite marks, and his lips and knuckles were swollen. There was evidence of a struggle at the scene of the murder. A potted plant was overturned, with dirt everywhere. Yellow fibers and debris covered the floor. There were knife holes and gouges in the walls. Evidence showed that defendant "overpowered the victim and locked her in the bathroom. He hog-tied her with a yellow cord and gagged her with a sock. He reversed the lock on the bathroom door and put towels under it. Laird's blood was on the victim's bed. Laird murdered her by tightening a noose around her neck like a tourniquet. He twisted the noose with a screwdriver. She was alive when he strangled her." 186 Ariz. at 208.

Heinous or Depraved: Not addressed.

MITIGATING CIRCUMSTANCES:

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

Age [17 years old at time of murder - diminished weight because crime not impulsive]
Difficult Childhood/Family History [not substantial weight because no connection to crime]

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
Intoxication

JUDGMENT: Convictions and sentences affirmed.


State v. Hyde, 186 Ariz. 252, 921 P.2d 655 (1996)

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

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
The Court has stated that if the expectation of pecuniary gain is a motive, cause or impetus for the murder, and not merely a result, the factor may be found. It can be based on tangible evidence or strong circumstantial evidence, and need not be the exclusive cause for a murder. But it is not found where a murder has been committed and the defendant has made a financial gain merely at the same time. The murders occurred in a place of business near the end of the business day. Both victims habitually carried large amounts of cash. Money was taken from the register and probably from the victims. The defendant owed child support and told a fellow prisoner that he and the codefendant discussed their need for money before entering the market. The attempt to take the purse of one of the victims occurred before the murders. The defendant also stated that he "wouldn't deny" committing a theft in the store. Based on these facts, the pecuniary gain factor was found.

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

Cruel: Not addressed.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. Defendant confessed to beating one victim, John Lee, on the head with his Bowie knife until the victim's skull was visible and he was bleeding profusely. A second victim, Ginger Lee, was beaten to the floor by a co-defendant while defendant beat John Lee. Both victims were beaten even after they were dead and their skulls were shattered by the repeated blows. "Ginger suffered 8 such blows, and she lived long enough to inhale some blood. John Lee also sustained multiple blows to the head. The medical examiner testified that Lee probably died shortly after the attack began. In both cases, the blows were delivered with sufficient force not only to shatter the bone but to cut and tear the brain tissue by forcing the bone fragments into it." 186 Ariz. at 281. The repeated bludgeoning of both victims constituted gratuitous violence.
Senselessness: Found. "A murder is senseless if it is unnecessary for the defendant to complete his objective." After the victims were subdued, the murders were unnecessary to complete the theft.
Helplessness: Found. John Lee was seventy-two years old and small in size. Ginger Lee was fifty years old and also small like her father. Due to their age, size, and the fact that defendants had subdued them before the vicious attacks began, the Court held that both victims were helpless.
Witness Elimination: Not found. None of the Ross categories were satisfied, and therefore, the Court overturned the trial court's finding that the murders were committed to eliminate witnesses.

(F)(8) (Multiple Homicides) - UPHELD
This finding was upheld without discussion. The two victims, a father and daughter, were killed at the convenience store owned and operated by the family of the victims. The murder of each victim occurred during the murder of the other, and the defendant did not challenge the finding on appeal.

MITIGATING CIRCUMSTANCES:

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

Good Character [nonviolent person before these crimes]

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
Age [28 years old at time of crime]
Habitual Substance Abuse
Sentencing Disparity

JUDGMENT: Convictions and sentences affirmed.


State v. Miller, 186 Ariz. 314, 921 P.2d 1151 (1996)

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

AGGRAVATING CIRCUMSTANCES:

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

Cruel: Upheld.
Mental Anguish: Found. The Court held that the victim experienced "great mental and physical suffering." Defendant was held responsible for the actions of his co-defendant from the point of giving the co-defendant a gun. "Thus, Miller is responsible for the suffering the victim experienced after being shot on Mt. Lemmon and driven down to the desert, a period of time in which Miller had the gun. The victim clearly experienced even more mental and physical anguish at the desert. She struggled to escape. By Miller's admission, he shot the victim repeatedly once they stopped." 186 Ariz. at 325.
Physical Pain: Found. See Mental Anguish.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The Court held that cutting or pulling the victim's hair out was sufficient to constitute gratuitous violence. The gratuitous violence finding in this case is unusual. There was some factual disagreement over whether the victim's hair was pulled or cut, but the State eventually stipulated that the hair had been cut. The trial court assumed at sentencing that defendant had pulled out large clumps of the victim's hair. During the sentencing, defendant interrupted to assert that the hair was cut, not pulled. The trial court stated that "whether it was cut or yanked it demonstrates a lack of humanity about somebody." On appeal, the Court agreed with the trial court, stating that "[w]hether he cut her hair or pulled it out, he inflicted injury beyond that necessary to kill." 186 Ariz. at 325. In most other cases in which the Court has found the existence of gratuitous violence, a far greater level of violence occurred.
Senselessness: Found. The trial court found senselessness and defendant did not challenge that finding.
Helplessness: Found. The Court held that the trial court's finding of helplessness was not inconsistent with its finding that the victim was attempting to escape. The co-defendant had already shot the victim when defendant approached the victim with a gun in hand. At the time defendant approached the victim, she was helpless.

MITIGATING CIRCUMSTANCES:

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

Remorse; Difficult Childhood/Family History; and Model Prisoner [became religious after arrest]

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 [intoxication]; Duress; Impulsivity; Cooperation; Follower; Lack of Criminal History; Lack of Intent to Kill; Sentencing Disparity; Intelligence; Family Ties

JUDGMENT: Convictions and sentences affirmed.


State v. Dickens, 187 Ariz. 1, 926 P.2d 468 (1996)

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

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
This finding was upheld without discussion of the facts supporting the finding. The facts described elsewhere in the opinion are that Dickens suggested a robbery to his young codefendant, Amaral, whom Dickens had met while working as a counselor at a placement center for violent juveniles. Dickens drove Amaral to a rest area on the interstate, waited for three hours until the victims drove into the rest area, gave Amaral a revolver and a walkie-talkie to communicate with him, and told Amaral "no witnesses." Amaral approached the victims, demanded their wallets and then shot both of the victims. Dickens picked up Amaral, then drove to the home of Dickens' brother, where Amaral removed cash, traveler's checks and a credit card, before burning the wallet and the remaining contents. The following morning, Amaral unsuccessfully attempted to use the victim's credit card. The Court noted that the (F)(5) finding is well supported by the facts and that the defendant did not challenge the finding on appeal. The Court once again rejected the argument that the (F)(5) aggravating circumstance is unconstitutional because it duplicates an element of the underlying crime of felony-murder, which is predicated on the armed robbery.

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

Cruel: Upheld.
Mental Anguish: Found. One victim, Bryan, was forced at gunpoint to relinquish his wallet and was then asked if he was ready to die. Bryan was then forced to watch the execution-style killing of his wife, followed by his own execution by a gunshot to the back of the head. After being shot, Bryan suffered consciously for at least twenty minutes until he was found by the police deputy. He was aware that he and his wife had been assaulted and shot.
Physical Pain: Found. See Mental Anguish.
Knew or Reason to Know that Victim Would Suffer: Found. The Court rejected the defendant's claim that the F(6) aggravating circumstance should not be applied to him because he did not personally murder Bryan "and thus did not inflict, intend or foresee the cruelty Bryan experienced." 187 Ariz. at 24. The Court found that the evidence established beyond a reasonable doubt that defendant did foresee or should have foreseen that a victim would suffer. Defendant "planned the murders, provided transportation to the scene, and patiently waited several hours to choose a suitable victim or victims. Defendant was admittedly intimately familiar with accomplice Amaral's violent temper and impulsiveness, yet he provided Amaral with a gun, instructed him to rob, and told him not to leave any witnesses. Defendant must have known that one victim would necessarily witness the execution of the other." 187 Ariz. at 24-25.

Heinous or Depraved: Not addressed.

(F)(8) (Multiple Homicides) - UPHELD
The defendant challenged this finding on two grounds: first, he contended that he did not know or foresee the existence of the second victim. The Court rejected this argument, saying that the (F)(8) factor requires no mental state. Second, he claimed the use of the factor violates due process and the prohibitions against double jeopardy and cruel and unusual punishment. The Court dismissed the claims, saying that it had already rejected the argument that multiple homicides as an aggravator under (F)(8) amounts to double counting.

MITIGATING CIRCUMSTANCES:

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

Difficult Childhood/Family History
Felony Murder conviction
Remorse
Family Ties

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

Impairment
(G)(3) Minor Participation
(G)(4) Death not Reasonably Foreseeable
Age [26 years old at time of crime]
Sentencing Disparity [disparity was explained because codefendant was 16 years old and entered into plea agreement]

JUDGMENT: Convictions and sentences affirmed.


State v. Soto-Fong, 187 Ariz. 186, 928 P.2d 610 (1996).

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

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
Substantial evidence demonstrated that murders were part of a plan to rob the El Grande market and were motivated by pecuniary gain. Two codefendants testified as to the pecuniary motive and at least $175.00 was missing from the market. The Court rejected Soto-Fong's claim that the large amount of money left in the store negated a finding of pecuniary gain motive. There was no evidence that Soto-Fong, despite his having been a former employee, knew about the $6,000.00 kept by the storeowner in cigarette cartons behind the counter. Detectives only fortuitously discovered this money some time after the murder. Likewise, the (F)(5) finding is not negated by the fact that none of the wallets, jewelry or monies of the victims was taken. The pecuniary gain finding "does not focus on whether the defendants were effective or thorough robbers, but on whether their motive was financial gain." Regarding testimony that the defendants intended to kill the victims even before the defendants entered the market, the Court said the "fact that the trio intended the murder in no way precludes the fact that they also intended to rob."

(F)(6) (Heinous, Cruel or Depraved) - REVERSED
The trial court made alternative findings of either cruelty because shots to the body caused pain before the shot to the head was rendered, or gratuitous violence because the shot to the head killed the victims and the subsequent shots to the body were gratuitous. The Court stated that "[w]e do not believe that an alternative finding based on a hypothetical set of facts can serve to death qualify a defendant under (F)(6). A trial court must determine whether an aggravating factor has been proven beyond a reasonable doubt. . . . The (F)(6) aggravating circumstance has several components (cruelty, heinousness, and depravity). Proof beyond a reasonable doubt of any one of them justify a finding of the (F)(6) aggravator. The circumstance is not proven if none of the individual component parts has been proven beyond a reasonable doubt. To conclude that a murder would be especially cruel or heinous if committed in an assumed manner, without evidence that it was committed in that manner, falls short of the mark."

Cruel: Reversed. The Court clarified the law regarding the consciousness of the victim in evaluating cruelty. "[T]he state's arguments on appeal in support of an (F)(6) finding of physical cruelty, appear to be based on the assumption that a murder is especially cruel whenever the victim remains conscious for some moments after being shot. We find this assumption to be flawed." 187 Ariz. at 203. The definition of cruelty is "disposed to inflict pain esp. in a wanton, insensate or vindictive manner: sadistic." 187 Ariz. at 203 (quoting Gretzler, 135 Ariz. 42, 51, 659 P.2d 1, 10 (1983)).
Mental Anguish: Not found. A murder is especially cruel if the victim suffers mental anguish by watching or hearing another person being killed. In this case, the three victims were killed in "rapid succession without any appreciable time to contemplate their fate. . . . Given the haste with which the trio exited the scene, it is unreasonable to assume that they lingered before their last shots." 187 Ariz. at 204, 205. Therefore, the trial court's finding of mental anguish as to the murders of Huang and Arriola was overturned.
Physical Pain: Not found. The Court followed "the implicit rule of Ortiz, Bishop, and Ceja, that where shots, stabbings, or blows are inflicted in quick succession, one of them leading rapidly to unconsciousness, a finding of cruelty, without any additional supporting evidence, is not appropriate."
FRED GEE: The state offered no persuasive evidence to establish that the chest wound occurred prior to the head wound, and therefore, the state did not prove beyond a reasonable doubt that this victim suffered any physical pain.
RAYMOND ARRIOLA: This victim was shot in the head and the abdomen with two different caliber bullets (.25 and .38 caliber). However, no proof beyond a reasonable doubt established the order of the shots. Therefore, physical pain was not found.
ZEWAN HUANG: This victim was shot three or four times in the head, back, chest, and arm. Testimony could not establish consciousness after the first shot, even though evidence of two different bullets (.25 caliber and .38 caliber) was present.

Heinous or Depraved: Reversed.
Gratuitous Violence: Not found. The trial court's "alternative finding" of gratuitous violence was reversed by the Court. Moreover, the Court found that shots to the body shortly after a shot to the head would probably not constitute gratuitous violence. 187 Ariz. at 205.
Senselessness: Found. However, the reversal of the gratuitous violence and witness elimination findings left only senselessness and helplessness, which alone are usually insufficient to support a finding of heinousness or depravity. The Court held that this case does not present unique or limited circumstances to call for a finding of heinousness or depravity based on senselessness and helplessness alone.
Helplessness: Found. See Senselessness.
Witness Elimination: Not found. The Court held that the first and second Ross categories witness to another crime and statement by the defendant were not present in this case. As to the third Ross category, "extraordinary circumstances," the Court found that category "requires a very high level of proof found only in the most `extreme' cases" and the present case is not "extraordinary" or "extreme." 187 Ariz. at 205. Here, the murders were part of a robbery-gone-bad when one of the victims fought back. Therefore, the Court reversed the finding of witness elimination.

(F)(8) (Multiple Homicides) - UPHELD
The defendant was convicted of the robbery-murder of three people in the El Grande market in Tucson, Arizona. The defendant challenged the constitutionality of the (F)(8) finding on the same double jeopardy grounds rejected in State v. Greenway, 170 Ariz. 155, 823 P.2d 22 (1991). The Court declined to revisit the matter.

MITIGATING CIRCUMSTANCES:

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

Age [17 years old at time of crime]
Employment history

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

Lack of Criminal History
Family Ties
Felony Murder instruction
Residual Doubt
Good Behavior at trial [not "relevant" in mitigation]
Life Sentence Available [this is a sentencing option, not a mitigating circumstance]

JUDGMENT: Convictions and sentences affirmed.


State v. Thornton, 187 Ariz. 325, 929 P.2d 676 (1996)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Cochise) of first-degree murder, burglary, controlling property of another, and kidnapping for one victim, first degree murder, burglary and kidnapping of the second victim, and escape. The defendant was sentenced to death for the murder of the second victim, and prison on the other counts. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
The (F)(1) finding was upheld without discussion. The finding was not contested on appeal.

(F)(5) (Pecuniary Gain) - UPHELD
The trial court found pecuniary gain under (F)(5) and the defendant did not contest that finding. The Court here summarily found the existence of this aggravating circumstance without discussion. The defendant burglarized the home of William Prince and then shot him in the head when Prince arrived home. He stole several items from the home. Prince was the first murder victim. After escaping from jail, the defendant entered the home of Dale and Mary Duke. When the Dukes arrived home, the defendant shot Dale Duke, the second murder victim, and stole items from the home.

(F)(7) (Murder Committed while in Custody) - UPHELD
The (F)(7) finding was upheld without discussion; it was not raised on appeal. The defendant had escaped from the Cochise County jail while awaiting trial. After his escape, he entered the home of the victims and shot and killed one of them.

(F)(9) (Age of Victim) - UPHELD
The (F)(9) finding was upheld without discussion. The defendant was an adult and the victim was more than seventy years of age at the time of the murder.

MITIGATING CIRCUMSTANCES:

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

Impairment [personality disorder resulting from traumatic childhood]
Difficult Childhood/Family 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
Good Character [23 felony convictions are not reflective of person with good character]
Cooperation with law enforcement [acted in self-interest only]

JUDGMENT: All convictions and sentences affirmed.


State v. Lacy, 187 Ariz. 340, 929 P.2d 1288 (1996)

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

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - REVERSED
The (F)(1) finding is inapplicable in this case. The Court noted that the (F)(1) finding is not interchangeable with the (F)(8) finding for multiple homicides.

(F)(2) (Prior Violent Felony) - NOT FOUND
The Court refused to consider whether (F)(2) was intended to apply only to prior convictions that are separated by time and space from the offense for which the defendant is now being sentenced to death.

(F)(3) (Grave Risk of Death to Others) - REVERSED
This aggravating circumstance does not exist when the defendant actually intended to kill multiple victims; the (F)(8) aggravating circumstance allows for consideration of multiple victims.

(F)(6) (Heinous, Cruel or Depraved) - UPHELD (as to one victim only)

Cruel: Upheld (as to one victim, Susan England). The trial court did not find cruelty as to the second victim, Teresa Acuna.
Mental Anguish: Found. The medical examiner's testimony "strongly suggested" that a blow to the head of one victim, Susan, did not knock her unconscious. That conclusion is supported by defendant's statements about the struggle he witnessed. Upon these brief facts, the Court found cruelty, stating that "[t]his young woman clearly suffered both mental and physical pain." 187 Ariz. at 354.
Physical Pain: Found. See Mental Anguish.

Heinous or Depraved: Reversed (as to both victims).
Gratuitous Violence: Not Found. Although the trial court referred to "multiple gunshot wounds" in its special verdict, there was insufficient evidence in the record to support a gratuitous violence finding beyond a reasonable doubt. Medical testimony did not establish which shot was fatal, so the Court could not conclude that "injuries were inflicted beyond those necessary to cause death." 187 Ariz. at 354.
Senselessness: Found. However, senselessness and helplessness, without more, were not sufficient to support a finding of heinousness or depravity.
Helplessness: Found. However, senselessness and helplessness, without more, were not sufficient to support a finding of heinousness or depravity.

(F)(8) (Multiple Homicides) - REVERSED
Here, two women were killed in the same apartment at the same time, but the statutory factor did not exist when these murders were committed in 1982. The Arizona Supreme Court rejected the state's suggestion to substitute the (F)(1) aggravator or (F)(2) aggravator, though the trial court had expressly found neither factor applied in this case. The Court noted that "(F)(8) plainly refers to 'other homicides' committed 'during the commission of the offense.' Thus, it specifically addresses contemporaneous killings," which are not addressed by any other aggravating factor.

MITIGATING CIRCUMSTANCES:

There is no discussion of mitigating circumstances in this case because the Court reduced each of the death sentences to life imprisonment. The Court concluded that an Enmund/Tison finding could never be made in this case, and therefore, vacated the death sentences. The Court did note, however, that the views of the victims' family members who may not have wanted the death penalty imposed was not relevant in mitigation because it was not related to the defendant or the circumstances of the crime.

JUDGMENT: Convictions affirmed. Because no aggravating circumstances remained on count two, Teresa Acuna, and only one aggravating circumstance remained on count one, Susan England, and because the Court concluded that an Enmund/Tison finding could never be made beyond a reasonable doubt in this case, each of the death sentences were reduced to life imprisonment without the possibility of parole for twenty-five years, to run consecutively.


State v. Rogovich, 188 Ariz. 38, 932 P.2d 794 (1997)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of four counts of first-degree murder, two counts of aggravated assault, two counts of armed robbery and one count of unlawful flight from a law enforcement vehicle. He was sentenced to death on three of his four murder convictions. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
The Court rejected the defendant's argument that this aggravating circumstance applies only to convictions obtained outside the state of Arizona.

(F)(2) (Prior Violent Felony) - UPHELD
The defendant was convicted of four counts of first-degree murder, two counts of aggravated assault, two counts of armed robbery, and once count of unlawful flight from a law enforcement vehicle. He was sentenced to death on three of the four murder counts. The three murders for which he received the death sentence occurred the same afternoon in a trailer park. The fourth murder occurred earlier that morning in a convenience store. The Court held that the defendant's armed robbery and aggravated assault convictions satisfy (F)(2) because they were entered prior to sentencing. (F)(2) applies to convictions entered prior to sentencing, regardless of the order in which the underlying crimes occurred or the convictions entered. The aggravated assault conviction applied because the specific subsection under which the defendant was convicted required the use or threat of violence.

(F)(8) (Multiple Homicides) - UPHELD
The defendant, in a "homicidal rampage," killed four people on the same day but in different places. One was a store clerk killed that morning, and three others were three women who lived in a nearby trailer park killed that afternoon. The Court noted that the trial court had correctly applied the aggravating circumstance to three of the murders because they were committed in "a continuous course of conduct." The Court said that, to find the (F)(8) aggravating circumstance, it looks to the temporal, spatial and motivational relationships between the capital homicide and the collateral homicide(s), as well as the nature of that homicide and the identity of that victim.

MITIGATING CIRCUMSTANCES:

The Court agreed with the trial court that the following mitigating circumstances existed and were sufficiently substantial to call for leniency for one of the murders, but not for the other three murders.

(G)(1) Significant Impairment
Difficult Childhood/Family History
Lack of Criminal History
Employment Record
Model Prisoner [good behavior]
Remorse

JUDGMENT: Convictions and sentences affirmed.


State v. Detrich (Detrich II), 188 Ariz. 57, 932 P.2d 1328 (1997)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of first-degree murder, kidnapping, and sexual abuse. He was sentenced to death for the murder, but on direct appeal, the Arizona Supreme Court reversed the murder and kidnapping convictions and remanded for a new trial. State v. Detrich, 178 Ariz. 380, 873 P.2d 1302 (1994). At the retrial, defendant was convicted of first-degree murder and kidnapping, and was sentenced to death for the murder. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

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

Cruel: Upheld. "In determining whether a murder was especially cruel, we must view the entire murder scenario, not just the final act that killed the victim." 188 Ariz. at 67.
Mental Anguish: Found. Testimony established that the victim appeared terrified as defendant told her she was going to die and dragged her to the car with a knife to her throat. The Court found that the victim suffered mental distress, noting that "anyone in the victim's situation would have been uncertain as to his or her ultimate fate." 188 Ariz. at 68.
Physical Pain: Found. The Court found "overwhelming evidence" of the victim's consciousness throughout the crime, including defensive wounds on her hands. The victim had forty cutting wounds on her hands, chest, face, neck, abdomen, and thigh. The cut to her throat extended from ear to ear, slashing through her voice box, esophagus, and into her cerebral column. "After her throat was slit, she attempted to answer defendant's questions, but was able only to gurgle in response." 188 Ariz. at 67. The victim also had blunt force injuries to her nose, jaw, and scalp, as well as scraping and tearing of the lining of her mouth. The Court found that "[s]he must have suffered excruciating pain before she died." 188 Ariz. at 68.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The Court held that only three stab wounds were potentially fatal, leaving thirty-seven unnecessary and excessive wounds, which constituted gratuitous violence.
Relishing: Found. "Defendant's statement to [co-defendant], `It's dead, but it's warm. Do you want a shot at it?' clearly shows that defendant relished the murder. The trial court found that this statement showed an abhorrent lack of regard for human life, and we agree." 188 Ariz. at 68.
Senselessness: Found. Defendant was seeking repayment for money he wasted on bad drugs. Murdering the victim was not only unnecessary to achieve this goal, it was counterproductive.
Helplessness: Found. Defendant held a knife to the throat of the unarmed and partially clothed victim while he dragged her to the car. She had no means of escape. While in the car, defendant was on top of her, abusing and stabbing her, and she was unable to defend herself.

MITIGATING CIRCUMSTANCES:

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

(G)(1) Significant Impairment [alcohol use at time of crime]
Remorse

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

Sentencing Disparity [disparity explained by differences in culpability]

JUDGMENT: Convictions and sentences affirmed.


State v. Mann, 188 Ariz. 220, 934 P.2d 784 (1997)

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

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
Mann and his girlfriend sold drugs from their apartment in Tucson. Mann told his girlfriend of his plan to "rip off" his friend, Alberts, who was also involved in cocaine dealing. Mann arranged to sell a kilogram of cocaine to Alberts for $20,000. Mann planned to take the $20,000 from Alberts and give him a shoebox filled with newspaper instead of cocaine. Mann knew he would have to kill Alberts after completing the exchange. The plan changed when Alberts arrived with another man, Bazurto. After trading the money for the shoebox, Alberts lifted the lid of the box, and Mann shot him and then Bazurto. The Court rejected Mann's claim that the (F)(5) finding was erroneous because Bazurto arrived unexpectedly and killing him was not part of the original "rip off" plan. When Bazurto arrived unexpectedly, Mann made a choice, after a period of thought, to kill both men in order to go through with the plan. Stealing the $20,000 was the motive for the murders of both Alberts and Bazurto.

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

Cruel: Upheld.
Mental Anguish: Found. The Court did not distinguish the facts supporting mental anguish from those supporting physical pain, but addressed the issue that consciousness must be proven to establish cruelty. Testimony from defendant's girlfriend, who was present for the murders, established that one victim, Bazurto, was alive and conscious for three to five minutes. The trial judge found this testimony persuasive, though the medical examiner could not concur. The medical examiner testified that Bazurto probably was conscious for only ten to twenty seconds and may have been in shock. The trial court found that the girlfriend's testimony of three to five minutes was more persuasive. The Arizona Supreme Court deferred to the factual findings of the trial judge and upheld the cruelty finding.
Physical Pain: Found. See Mental Anguish.

Heinous or Depraved: Not addressed.

(F)(8) (Multiple Homicides) - UPHELD
The defendant was convicted of shooting two people in a drug rip-off. The Court rejected the argument that this factor constitutes elements of the offense and that it therefore should not be used to enhance the sentence.

MITIGATING CIRCUMSTANCES:

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

Difficult Childhood/Family History
Family Ties
Good Character [changed lifestyle after murders, quit using drugs, held steady job]

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

Cooperation; Lack of Criminal History;
Sentencing Disparity; and Life Sentence available

JUDGMENT: Convictions and sentences affirmed.


State v. Barry Jones, 188 Ariz. 388, 937 P.2d 310 (1997)

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

AGGRAVATING CIRCUMSTANCES:

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

Cruel: Upheld.
Physical Pain: Found. The Court found that the victim suffered physical pain for many hours after defendant assaulted her. "She was crying and vomiting and had bruises on her face, fingers, and hands. The emergency room physician testified that the blow to Rachel's bowel would have caused great pain initially and would have continued to cause pain to a lesser extent thereafter." 188 Ariz. at 399. The victim also suffered painful genital injuries, as well as defensive wounds that establish that she was conscious during the beating. "It is beyond question that Rachel suffered especial cruelty within the meaning of section 13-751(F)(6) during her terrifying last day of life." 188 Ariz. at 400.
Knew or Reason to Know that Victim Would Suffer: Found. "When the suffering is experienced after the infliction of a fatal wound, that suffering must have been `objectively foreseeable' to support a finding of cruelty. The defendant's subjective intent to cause suffering is irrelevant." 188 Ariz. at 399 (citations omitted). Here, defendant knew how severely he had beaten the victim. She was struck dozens of times by fists, elbows, and perhaps blunt instruments. The victim was physically ill for the remainder of the evening. Defendant told others that he had taken the victim for medical attention when he had not, which prevented others from seeking the medical attention the victim desperately needed. The Court found that defendant intentionally extended the victim's suffering by ensuring she did not receive medical care.

Heinous or Depraved: Not addressed.

(F)(9) (Victim under Fifteen Years of Age) - UPHELD
The defendant was an adult and the victim was four years old when she was beaten and sexually assaulted. She ultimately died from her injuries. The Court found the existence of this aggravator with no discussion beyond establishing the defendant's and the victim's respective ages.

MITIGATING CIRCUMSTANCES:

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

(G)(1) Significant Impairment
Impairment [methamphetamine use at time of murder]
Difficult Childhood/Family History
Responsibility of victim's mother [for not taking child to hospital for treatment]

JUDGMENT: Convictions and sentences affirmed.


State v. Henry (Henry II), 189 Ariz. 542, 944 P.2d 57 (1997)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Mohave) of first- degree murder, kidnapping, theft and robbery in December of 1987. He was sentenced to death for the murder and to prison on the other noncapital convictions. On direct appeal to the Arizona Supreme Court, the noncapital convictions and sentences were affirmed, but the court reversed one aggravator and remanded the case back to the trial court for resentencing. State v. Henry, 176 Ariz. 569, 863 P.2d 861 (1993). On remand, the trial court reimposed the death penalty. This is now the automatic appeal from that resentencing.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - UPHELD
The defendant's prior conviction for armed robbery in California could count as an (F)(2) circumstance because it involved the threat of violence. The Court again rejected the defendant's argument that the crime, as defined by California statute, does not necessarily involve the use or threat of violence against another person. The Court also rejected his argument that the twenty-five year old conviction was too remote. The Court noted that the language of (F)(2) does not expressly provide a time limit. The Court assumed that the omission of a time limit was intentional.

(F)(5) (Pecuniary Gain) - UPHELD
The Court does not discuss the (F)(5) finding, which had already been upheld in a prior review, Henry I, 176 Ariz. 569, 863 P.2d 861 (1993).

MITIGATING CIRCUMSTANCES:

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

(G)(1) Significant Impairment [intoxication at time of crime]
Difficult Childhood/Family History
Good Character [had saved lives]

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

Felony Murder instruction
Intelligence/Education
Model Prisoner
Sentencing Disparity

JUDGMENT: Death sentence affirmed.


State v. Chad Lee (Reynolds, Lacey murders), 189 Ariz. 590, 944 P.2d 1204 (1997)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of two counts of first-degree murder, one count kidnapping, sexual assault, armed robbery, and theft. He 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
The defendant argued that (F)(1) could not apply because the murder was committed before the murder conviction for which he was sentenced here. The Court said that convictions entered prior to sentencing may be considered regardless of the order in which the underlying crimes occurred or the order in which the convictions were entered. For (F)(1) purposes, a conviction occurs upon determination of guilt.

(F)(2) (Prior Violent Felony) - UPHELD
The defendant was convicted for aggravated robbery and aggravated assault, crimes committed after the murders for which he was sentenced to death. The defendant was convicted of those crimes before he was convicted of murder. Citing State v. Gretzler, 135 Ariz. 42, 57 n.2, 659 P.2d 1, 16 n.2 (1983), the Court held that a sentencing court may consider any convictions entered previously without regard to the order of the underlying crimes. The statutory definitions of both aggravated robbery and aggravated assault necessarily involved the use or threat of violence.

(F)(5) (Pecuniary Gain) - UPHELD
The defendant did not challenge the trial judge's pecuniary gain finding. The first murder occurred after the defendant and codefendant ordered a pizza to be delivered to a vacant house. When the victim arrived, she was confronted with a rifle, made to remove her clothing, and abducted into the desert. Her car was damaged. The codefendant sexually assaulted the victim twice before she was forced to withdraw money from an ATM machine. The defendant then shot and stabbed her. The second murder, only nine days later, involved the defendant and the same codefendant calling for a cab. After the victim drove the defendant to his destination, the defendant pulled out a gun and demanded money. The defendant fired the gun nine times and hit the victim four times. He then removed money from the victim's pockets, dumped the body and damaged the abandoned cab.

(F)(6) (Heinous, Cruel or Depraved) -  
    UPHELD as to Reynolds
    REVERSED as to Lacey

Cruel: Not addressed.

Heinous or Depraved: Reversed as to David Lacey.
Gratuitous Violence: Not found. The state argued that the trial court found gratuitous violence, in addition to senselessness, because the special verdict mentioned that four shots had hit the victim, one of which was a "hard contact" shot, and other factors supported the senselessness finding. The Court held that the record did not establish the time frame or sequence of the gunshots, and therefore, does not establish beyond a reasonable doubt that violence beyond that necessary to kill was used.
Senselessness: Found. The Court emphasized that for a finding of heinous, cruel or depraved to be established, the murder must be above the norm of first-degree murders. Further, senselessness and helplessness, without other circumstances, are usually not sufficient to support a finding of heinousness or depravity. A quick succession of gunshots does not present the unique or limited circumstances in which senselessness or helplessness would establish heinousness or depravity. Here, defendant fired nine shots, four of which struck the victim, David Lacey, during a robbery. The Court found this fact pattern to fit most closely with cases in which senselessness did not establish heinousness or depravity.

MITIGATING CIRCUMSTANCES:

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

Age
Lack of Criminal History
Difficult Childhood/Family History
Cooperation
Remorse

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

Follower
Good Character

JUDGMENT: Convictions and sentences affirmed.

Comment: A.R.S. § 13-751(F)(6) was established as to Linda Reynolds murder, though not clearly discussed, and was reversed as to David Lacey murder. When deciding whether F(6) has been established, the trial judge "must consider more than the categories provided by Gretzler. `[J]ustice cannot be reduced to a theorem.' In order to determine whether a defendant's actions demonstrate a vile state of mind at the time of the murder, a trial judge must examine `the factual differences between Tison, Ortiz, and Clark [cases finding heinousness and depravity] on the one hand, and Lujan and Blazak [cases where heinousness and depravity finding was reversed] on the other.'" 944 P.2d at 1219-20 (quoting State v. Mata, 185 Ariz. at 326, 916 P.2d at 1041). The Court then elaborated on the factual differences among the above listed cases, distinguishing when heinousness or depravity is established and when it is not.


State v. Chad Lee (Drury murder), 189 Ariz. 608, 944 P.2d 1222 (1997)

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

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
The defendant argued that (F)(1) could not apply because the murder was committed before the murder conviction for which he was sentenced here. The Court said that convictions entered prior to sentencing may be considered regardless of the order in which the underlying crimes occurred or the order in which the convictions were entered. For (F)(1) purposes, a conviction occurs upon determination of guilt.

(F)(2) (Prior Violent Felony) - UPHELD
The (F)(2) finding was upheld for the same reasons noted in State v. Chad Lee (Reynolds, Lacey murders), 189 Ariz. 590, 944 P.2d 1204 (1997).

(F)(5) (Pecuniary Gain) - UPHELD
This finding was upheld without discussion of the facts that support the finding. The facts described elsewhere in the opinion are that Lee entered a convenience store to buy cigarettes. After the store clerk opened the cash drawer, Lee took out his revolver and repeatedly shot the clerk. Lee picked up the cigarettes, took the entire cash drawer from the register and left the store. The defendant's "double-counting" challenge to the use of pecuniary gain as an aggravating circumstance was limited to his sentence for armed robbery (not the death sentence). The Court noted, however, that the legal principle is the same as in a challenge to a death sentence for felony-murder when the underlying felony is armed robbery. First, the legislature may adopt a sentencing scheme in which an element of a crime is also used for aggravation purposes. Moreover, pecuniary gain is not synonymous with robbery. "To prove robbery, the state must show a taking of property from the victim; to prove pecuniary gain, the state must show the actor's motivation was the expectation of pecuniary gain."

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

Cruel: Not addressed.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. Gratuitous violence, alone without other factors, may be sufficient to find heinousness or depravity. "After shooting Drury in the shoulder, cheek, neck, and top of the head, defendant lifted the counter top, walked around the counter, and fired two shots into Drury's right temple, just above the ear. One of the bullets went through Drury's head and into the glass cabinet next to where Drury was sitting. Because the shot downward into the top of Drury's head was unquestionably fatal, defendant's actions lifting the counter top, walking around the counter, and firing two more shots into Drury's temple constituted gratuitous violence." 944 P.2d at 1233.
Senselessness: Found. Senselessness is established when the murder is unnecessary for defendant to complete his or her objective. The victim was unarmed, but defendant claimed the victim resisted and tried to grab defendant's gun. The evidence demonstrated that the victim was shot in the shoulder and fell backward, which may have disabled the victim. The Court found that defendant could have taken the cash drawer and fled at that point, making the murder unnecessary. The killing was senseless because it was unnecessary to complete the robbery.

MITIGATING CIRCUMSTANCES:

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

Age
Lack of Criminal History
Difficult Childhood/Family History

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

Cooperation with police
Remorse

JUDGMENT: Convictions and sentences affirmed.


State v. Spreitz, 190 Ariz. 129, 945 P.2d 1260 (1997)

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

AGGRAVATING CIRCUMSTANCES:

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

Cruel: Upheld.
Mental Anguish: Found. The Court found defendant's confession and the physical evidence at the scene discredited defendant's later claim that he killed the victim before stripping naked, beating, raping, and dragging her to her final location. Defendant's early admission was that he beat her because she was fighting back and he finally struck her with a rock when she would not stop yelling. The trial court found that evidence the victim defecated in and on her clothing was significant to the finding of mental anguish, and the Arizona Supreme Court concurred. Further, blood consistent with the victim and not defendant was found in defendant's car trunk and the scene showed drag marks and the bloody rocks used to kill the victim. The Court found that defendant brutally beat and raped the victim in an attack lasting several minutes before he crushed her skull.
Physical Pain: Found. The Court does not separate the findings of mental anguish and physical pain. See Mental Anguish.

Heinous or Depraved: Not addressed.

MITIGATING CIRCUMSTANCES:

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

Age
Lack of Criminal History
Difficult Childhood/Family History
Lack of Criminal History
Potential for Rehabilitation
Remorse

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 [mental or alcohol/drugs]
Model Prisoner [pretrial and presentence good behavior is not mitigating]

JUDGMENT: Convictions and sentences affirmed.


State v. Schackart, 190 Ariz. 238, 947 P.2d 315 (1997)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of first-degree murder, kidnapping, and sexual assault, and was sentenced to death for the murder. On direct appeal, the Arizona Supreme Court affirmed the convictions and non-capital sentences, but vacated the death sentence and remanded for resentencing, due to deficiencies in the record. State v. Schackart, 175 Ariz. 238, 858 P.2d 639 (1993). The defendant was resentenced to death and this is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - REVERSED
At the time of the murder, (F)(2) required a prior conviction of a felony in the United States involving the use or threat of violence on another person. The trial court found the existence of (F)(2) because of the defendant's prior convictions for sexual assault, kidnapping and aggravated assault. The Court found that the sexual assault and kidnapping crimes can be perpetrated by deception as well as by force, and so those crimes would not support the (F)(2) finding. Also, the state did not prove the specific subsection of aggravated assault regarding that prior conviction, so there was no proof of a conviction that necessarily involved the use or threat of violence. The Court declined to use judicial notice at the appellate level to establish the existence of aggravating factors and refused to apply the new (F)(2) factor because of the prohibition of the ex post facto clauses of the United States and Arizona Constitutions.

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

Cruel: Upheld.
Mental Anguish: Found. The Court found the four to five hours the victim was held, the presence of a gun, the sexual assault, defendant's discussion with the victim about tying her up or drugging her, defendant striking her in the head, the strangling, and the victim's uncertainty about her ultimate fate support a finding of cruelty. The medical examiner testified that the victim would have remained conscious for a minute or two after the strangling began. The Court stressed that all stranglings are not per se cruel and that all sexual assault/killing combinations do not automatically qualify under F(6). However, the facts in this case support the finding of cruelty.
Physical Pain: Found. See Mental Anguish.

Heinous or Depraved: Reversed.
Gratuitous Violence: Not found. The majority of injuries to the victim's neck and face were connected with the strangulation. Except for a broken tooth and lacerated tongue, no other evidence of violence beyond the strangling exists. The Court stated that "[w]e do not believe a single blow that chips a tooth qualifies as gratuitous violence." 947 P.2d at 326. To establish gratuitous violence, "more definitive proof of additional, severe brutality" is required. 947 P.2d at 326.
Relishing: Not found. The trial court found that "[D]uring that strangulation and prior to death, according to the pathologist, hundreds of small hemorrhages appeared in the victim's eyes and on her face as blood vessels burst . . . . With both hands on her neck and the victim face up you . . . must have watched those hemorrhages appear." 947 P.2d at 326 (quoting the trial court's special verdict). Defendant claimed that he could not have seen the hemorrhaging appear because it was nearly dark outside, the motel room lights were off, and the victim was lying face down on the bed when he strangled her. The victim's chipped tooth was found in the bed sheets, perhaps supporting defendant's claim. The medical examiner did not address when the hemorrhages appeared or the victim's position. "With nothing more in the record, we cannot say that the defendant ever saw, much less relished, the hemorrhages as he strangled the victim." 947 P.2d at 326. Further, the Court held that the ego gratification seen in other cases did not exist here because defendant turned himself in shortly after the crime and, according to the record, never boasted about the murder to anyone.
Senselessness: Found. The Court stated that the trial judge determined the killing was completely unnecessary, but the Court goes on to reaffirm that senselessness and helplessness, without more, are usually insufficient to support a finding of heinousness or depravity.
Witness Elimination: Not found. No facts in this case fit any of the three Ross categories.

MITIGATING CIRCUMSTANCES:

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

Age [21 years old at time of murder]
Cooperation
Good Character [positive activities as a youth; community activities]
Stress

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 [mental or alcohol/drugs]
(G)(2) Duress
(G)(4) Death not Reasonably Foreseeable
Model Prisoner [pretrial and presentence good behavior is not mitigating]
Military record
Remorse
Residual Doubt
Life Sentence available [this is a "sentencing option" not a mitigating circumstance]

JUDGMENT: Convictions and sentences affirmed.

Comment: The state asked the Court to consider other factors in connection with the (F)(6) aggravating circumstance, including the relationship between the victim and defendant. The victim was defendant's friend and was attempting to help defendant through a crisis in his life. "A few cases have mentioned the relationship between a defendant and a victim when evaluating aggravation, however (F)(6) has only been established where there was significantly more proof of gratuitous violence. We refuse to find [heinousness or depravity] based solely on the relationship between defendant and the victim. To do so would expand the meaning of `heinous and depraved,' thereby instituting `a regime of ad hoc sentencing, destroying the definitional consistency [and constitutionality] of our sentencing process.'" 947 P.2d at 327.


State v. Rienhardt, 190 Ariz. 579, 951 P.2d 454 (1997)

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

AGGRAVATING CIRCUMSTANCES:


(F)(2) (Prior Serious Offense) - UPHELD
The trial court found beyond a reasonable doubt that the defendant had previously been convicted of a crime of violence. The Court found that the trial court incorrectly applied the old (F)(2) factor, and not the new (F)(2) factor, which was amended in 1993. The murder was committed in 1995, so the new (F)(2) factor should have been used. Accordingly, the trial court should have considered whether the prior conviction for aggravated assault constituted a serious offense. The Court here found that the prior conviction fit within the definition of serious offense, and that therefore the (F)(2) aggravator properly existed.

(F)(5) (Pecuniary Gain) - REVERSED
The victim was killed in connection with a drug deal gone awry. Rienhardt arranged to meet the victim, Ellis, and another man, Breedlove, at an apartment to purchase methamphetamines. Rienhardt gave Breedlove $1,180, with the understanding that Breedlove would return with the drugs. To secure the return of Breedlove, Ellis remained in the apartment with Rienhardt. When Breedlove did not return, Rienhardt beat Ellis and eventually took him to a remote location and killed him. The Court found that Rienhardt did not kill in expectation of pecuniary gain, but rather, he killed because he was tricked and was not going to receive the drugs he had purchased. The state did not prove beyond a reasonable doubt that Rienhardt killed to frighten Breedlove into returning the money or drugs. It is equally, if not more, plausible that he killed Ellis out of rage or frustration at being cheated. The Court distinguished State v. LaGrand, in which the Court found that LaGrand came to rob, and that desire infected all his other conduct. Here, Rienhardt "came to buy drugs, not to steal, and he killed because the seller tricked him." As reprehensible as this conduct may be, Rienhardt did not kill as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value.

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

Cruel: Upheld.
Mental Anguish: Found. Defendant took the victim hostage, threatened him, beat him, and after stating his intention, drove the victim to the desert and killed him. The victim feared for his life, as evidenced by his panicked statements to one of the captors. He endured a twenty-minute car ride to a remote location after hearing defendant state he would drive him to the desert and kill him. He further endured a severe beating at the murder scene and was alive when defendant dropped large rocks on his head to crush his skull. The Court held that the victim "suffered extreme mental anguish with respect to his ultimate fate."
Physical Pain: Found. The Court held that the victim's suffering was also physical, based on the severe beating the victim received, the defensive wounds on his hand and wrist caused by a gunshot wound, the aspiration of blood into his lungs during the beating to his head indicating that he was alive during that beating, and the crushing of his skull when large rocks were dropped on his head while he was still alive.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. Gratuitous violence exists when a defendant uses violence beyond that necessary to kill. Here, the Court found that the severe beating with the butt of a shot gun the victim received, the shooting of the victim at close range with a shotgun, and the dropping of at least one of the boulders on the victim's skull, qualified as gratuitous violence. The rage inflicted upon the victim was "shockingly evil." Although the trial court also found relishing, senselessness and helplessness, the Arizona Supreme Court only addressed gratuitous violence because gratuitous violence alone may demonstrate heinousness or depravity.

MITIGATING CIRCUMSTANCES:

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

Family Ties
Employment History

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 consumption and stress]
History of Alcohol and Drug Abuse

JUDGMENT: Convictions and sentences affirmed.


State v. Trostle, 191 Ariz. 4, 951 P.2d 869 (1997)

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

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
The defendant's motivation in the crime was for pecuniary gain and this desire infected all of his other conduct. A significant consideration is whether the killing was part of the overall robbery scheme, or was accidental or unexpected. The defendant admitted that he and his codefendant went to the mall and waited hours to steal a vehicle. He admitted they killed the victim to delay reporting of the theft, and to eliminate the only witness. This murder was not accidental or unexpected. The murder was directly connected to the stated goal of carjacking.

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

Cruel: Upheld.
Mental Anguish: Found. The victim was confronted with a shotgun, abducted by strangers, driven for thirty minutes into the desert, threatened with the shotgun until her death, forced to walk into the desert, disrobe, and kneel down before being shot. The defendant's own statements to police confirmed that the victim begged for her life and was frightened.
Knew or Reason to Know that Victim Would Suffer: Found. The Court held that under these facts defendant knew or should have known the victim would suffer great mental anguish.

Heinous or Depraved: Reversed.
Senselessness: Found. The Court reaffirmed its holding that senselessness and helplessness alone are usually insufficient to support a finding of heinousness or depravity.
Helplessness: Found. See Senselessness.

MITIGATING CIRCUMSTANCES:

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

Impairment [long-term psychological damage from childhood abuse]
Age [20 years old at time of murder]
Cooperation
Family Ties
Rehabilitation [ability to function well in structured environment]
Lack of Criminal History
Remorse

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

(G)(2) Duress; (G)(3) Minor Participation; (G)(4) Death not Reasonably Foreseeable
Good Conduct during Trial; Recommendations for leniency from victim's family;
Natural Life Sentence available

JUDGMENT: Convictions and non-capital sentences affirmed. Death sentence reduced to natural life imprisonment due primarily to a finding of mental impairment.


State v. Tankersley, 191 Ariz. 359, 956 P.2d 486 (1998)

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

AGGRAVATING CIRCUMSTANCES:

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

Cruel: Not Addressed.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. See Mutilation.
Mutilation: Found. The Court found evidence of "both mutilation to the victim's body and gratuitous violence," but did not distinguish among the facts supporting each. The victim was strangled by her own oxygen tubes and was physically and sexually assaulted while still alive or at the point of death. The defendant caused feces to be smeared on the victim's body and chewed off parts of the victim's flesh while she was
still alive.
Senselessness: Found. See Helplessness.
Helplessness: Found. Defendant was a healthy male in good physical condition, while the victim was an ill, elderly woman connected to oxygen tubes, who posed no threat or harm to defendant and was wholly at his mercy.

MITIGATING CIRCUMSTANCES:

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

Impairment [alcohol use at time of murder]
Substance Abuse History
Difficult Childhood/Family History
Model Prisoner [good behavior during previous incarceration]

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

JUDGMENT: Convictions and sentences affirmed.


State v. Djerf, 191 Ariz. 583, 959 P.2d 1274 (1998)

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

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
The defendant argued that his real motive was revenge, not pecuniary gain. The Court upheld this finding because the defendant had forced Patricia to remove items from the home and place them in the family car. After fleeing the scene in the car, the defendant kept those items before leaving the car in a parking lot. The Court found this to be sufficient evidence to support this aggravating factor.

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

Cruel: Upheld.
Albert Luna, Sr.: The evidence showed that this victim was conscious during all or part of the beating he suffered from the baseball bat. Even if unconscious earlier, he later regained consciousness and struggled with the defendant in the kitchen. There he was stabbed with a knife that pierced his right forearm and was embedded in his torso.
Damien Luna: The defendant tried unsuccessfully to break this five-year-old victim's neck and electrocute him before ultimately shooting him in the head. He was present when the defendant told Patricia that he had killed Rochelle, and unquestionably would have been uncertain of his own fate.
Rochelle Luna. Evidence that the victim was bound indicates consciousness, as there is no need to bind an unconscious person. This victim would have suffered uncertainty as to her fate when she was forced into the bedroom, gagged and bound. Moreover, she had abrasions and contusions on her wrists indicating a struggle against the restraints before she was raped, her throat slit and stabbed nine times.
Patricia Luna. The defendant did not dispute the cruelty finding for this victim who feared for her life for hours, forced to watch the defendant kill her husband, and hear that the defendant had killed her daughter.

Heinous or Depraved: Not addressed.

(F)(8) (Multiple Homicides) - UPHELD
The Court agreed with the trial court that this aggravating circumstance exists for each of the four murders. The defendant was convicted of one or more homicides committed during the course of the murder. All four murders were spatially, temporally and motivationally related.

(F)(9) (Victim under Fifteen Years of Age) - UPHELD
The Court agreed with the trial court that the state proved beyond a reasonable doubt that Damien Luna was less than 15 years of age at the time of his murder.

MITIGATING CIRCUMSTANCES:

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

Age [23 years old at time of murders]
Difficult Childhood/Family History
Remorse

JUDGMENT: Convictions and sentences affirmed.


State v. Greene, 192 Ariz. 431, 967 P.2d 106 (1998)

PROCEDURAL POSTURE: The defendant was convicted in the Superior Court (Pima) of premeditated and felony murder, robbery, kidnapping, theft and forgery. The defendant was sentenced to death on the murder conviction and to terms of imprisonment for the noncapital convictions. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
The defendant had an admitted need for money, drugs and transportation at the time he encountered the victim. He testified that he was homeless and was attempting to avoid a drug dealer who had threatened him over an outstanding debt. He was hungry, tired and craving methamphetamine at the time of the killing. After the murder, the defendant was driving the victim's car and using the victim's credit cards within hours. When one comes to rob, that pecuniary motive infects all other conduct. Here, the defendant killed the victim to obtain cash or credit cards for money or drugs. [A dissenting opinion by Chief Justice Zlaket argues that not all pecuniary gain cases are alike or ought to be given the same weight. He distinguishes this case from cases where the defendant prepared a meticulous and careful plan to murder. Here, there was a lack of substantial planning or scheming. Because the evidence in this case supports only a weak pecuniary gain finding, he would have reduced the sentence to life.]

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

Cruel: Not addressed.

Heinous or Depraved: Reversed
Relishing: Not found. Relishing refers to conduct which shows debasement or perversion and indicates that the defendant savored the murder. The trial court found relishing based on a statement by the defendant and several letters written by him. His statement was that he had "clubbed a faggot." This language is insufficient to support a relishing finding. Similarly, the defendant's display of the victim's driver's license did not indicate his enjoyment of the crime or that the license was a souvenir. The defendant merely showed the license to the witness to counter the witness' disbelief that the defendant had killed someone. Approximately one month after his arrest, the defendant wrote a letter stating that he "was the wrong white boy to be picked up by a faggot who ended up with his fuckin' skull caved in." While this showed a tremendous lack of remorse and constituted bragging, it did not show beyond a reasonable doubt that the defendant enjoyed the killing or what his state of mind was at the time of the murder. In another letter written two weeks after his conviction, the defendant wrote "convicted murderer" and "death row alley" below his signature. Again, while this demonstrates extraordinary callousness and lack of remorse, it does not prove that he relished the killing at the time of the murder.
Senselessness: After the Court reversed the relishing finding, it merely stated that senselessness and helplessness without more are ordinarily insufficient to sustain a finding of heinousness or depravity.
Helplessness: After the Court reversed the relishing finding, it merely stated that senselessness and helplessness without more are ordinarily insufficient to sustain a finding of heinousness or depravity.

MITIGATING CIRCUMSTANCES:

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

Education
Lack of Criminal History
Family Ties [effect of execution on the defendant's children]

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 [drug use and withdrawal]
Impairment [drug use and withdrawal]
Difficult Childhood/Family History
Remorse
Good Character
Family Ties [did not have good marriage or healthy family life]
Employment History
Potential for Rehabilitation

JUDGMENT: Kidnapping conviction reversed. All other convictions and sentences affirmed.


State v. Doerr, 193 Ariz. 56, 969 P.2d 1168 (1998)

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

AGGRAVATING CIRCUMSTANCES:

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

Cruel: Upheld. Cruelty focuses on the victim's pain and suffering before death. The medical examiners could not specifically state the sequence of injuries or when she lost consciousness, however, the physical evidence indicated extreme pain and mental anguish. The victim had bruising and swelling on her arms consistent with defensive actions and hair clenched in her fist. Her nose had been broken, and she had cuts on her lip. She bled extensively from her vagina and rectum, which indicated wounds prior to or during death. In total, she had twenty-six other injuries to her body. Furthermore, the physical evidence at the crime scene showed her bloody footprint on the bathtub and bloody hair swipes on the walls and other surfaces. These and other findings suggest a violent struggle. A neighbor heard a female screaming at 3:30 that morning. All of this supports a finding of pain and extreme cruelty.

Heinous or Depraved: Upheld
Relishing: Found. A relishing finding requires something other than the crime itself to show that the defendant savored the murder. The testimony at trial of the defendant's cellmate reiterating the defendant's description of playing with the victim's blood was sufficient for the trial court and for this Court to find that the defendant relished this murder.
Mutilation: Found. Mutilation involves the purposeful severing of body parts distinct from the killing itself. Here, the victim's left nipple was cut off and marks above the right nipple suggested an attempt to amputate it as well.
Gratuitous Violence: Found. This is defined as violence beyond that which is necessary to kill. The medical examiner testified that the victim died of multiple blunt force trauma. In addition, she was sodomized with a metal pipe and a broom handle such that her rectal and vaginal cavities were ruptured. Her nose was fractured and face beaten so severely that family members could not identify her. One laceration was so deep it exposed the skull. The victim also suffered numerous knife slashes, bruises and injuries beyond that necessary to kill.

MITIGATING CIRCUMSTANCES:

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

Difficult Childhood/Family History

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 [organic brain damage and intoxication]
Impairment to some degree [brain damage or intoxication]
Low Intelligence
Cooperation

JUDGMENT: Conviction and sentence affirmed.


State v. Sharp, 193 Ariz. 414, 973 P.2d 1171 (1999)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Cochise) of first- degree premeditated murder and felony murder, kidnapping and sexual assault. He was sentenced to death on the murder convictions and to terms of imprisonment on the noncapital convictions. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

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

Cruel: Upheld. The trial court found cruelty based on the great physical and emotional pain suffered by the victim when she was sexually assaulted and murdered. The victim here was conscious and suffered physical pain while she was brutally beaten, sodomized and strangled. The victim had defensive wounds and scratched the defendant in an effort to defend herself. This shows that she anticipated her fate and suffered mental anguish during the attack.
Mental Anguish: Found.
Physical Pain: Found.

Heinous or Depraved: Not addressed.

MITIGATING CIRCUMSTANCES:

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

Difficult Childhood/Family History [given little weight because uncorroborated]
History of Drug and Alcohol Abuse [given little weight because uncorroborated]
Lack of Criminal History [given little weight because of long misdemeanor history]

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 ["agitated delirium" from alcohol/drug use]
Age [24 years old at time of murder]
Felony Murder instruction [found guilty of premeditation - clearly had intent to kill]
Police negligence [not relevant in mitigation]

JUDGMENT: Convictions and death sentence affirmed.


State v. Todd Lee Smith, 193 Ariz. 452, 974 P.2d 431 (1999)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Coconino) of two counts of first-degree murder, both felony and premeditated murder for each count, armed robbery and first-degree burglary. He was sentenced to death for the murder convictions, and to consecutive eighteen-year sentences for the noncapital crimes. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
It is undisputed that the defendant went to the victims' trailer to rob. He had no money and no job. He was armed with a knife and a gun. He attacked the victims, stole their property, beat them and slit their throats. His desire for pecuniary gain infected all his other conduct, and he killed the victims when he believed that they were resisting his efforts to rob them. The defendant argued that his only motive was to rob and that he killed the victims only after they attempted to resist him, and that this aggravator should not apply in this situation. He cited no authority for that proposition and the Court rejected it.

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

Cruel: Upheld (as to Mrs. Tannehill). The trial court found that the state had proven cruelty beyond a reasonable doubt for Mrs. Tannehill, but not for Mr. Tannehill. The Court here agrees with that ruling. The evidence did not establish that Mr. Tannehill was conscious after the initial blows to his head. A surgically implanted plastic plate in Mr. Tannehill's head was shattered in the attack, but the medical examiner could not pinpoint when during the attack this would have occurred. It could have happened with the first blow, rendering the victim unconscious or killing him outright. This victim did not have any defensive wounds. Thus, there was insufficient evidence to prove cruelty for Mr. Tannehill. However, there was sufficient evidence to prove cruelty for Mrs. Tannehill. The defendant stated that he only knocked her down initially. She had defensive wounds indicating that she was alive during the attack and had the opportunity to fear for her life and her disabled husband's life. She would have watched as her elderly husband tried to defend them by grabbing at the defendant's gun. She would have seen the defendant beat her husband with the gun before she herself was beaten. The defendant himself stated that he beat her again when he saw her getting up from the first beating. Cruelty can be found where the victim experiences mental anguish over the uncertainty of her own fate, and where a victim witnesses the killing of a family member before she herself is killed.

Heinous or Depraved: Not addressed

(F)(8) (Multiple Homicides) - UPHELD
The defendant did not challenge the trial court's (F)(8) finding. The defendant killed two people at the same time and in the same location.

(F)(9) (Victim Seventy or More Years of Age) - UPHELD
The defendant argued that this aggravating circumstance is unconstitutional because it considers whom the victim killed as opposed to the propensities of the defendant. However, the defendant cited no authority to support this proposition. The Court found the age of the victim to have a rational basis, and therefore, is an appropriate aggravating circumstance. By adopting the (F)(9) circumstance, the legislature determined that the young and the old are especially vulnerable, should be protected, and their murders are more abhorrent than other first-degree murders. This information is relevant to the propensities of the defendant because those who prey on the very young or the very old are more dangerous to society than other murderers. The defendant does not dispute the finding that both victims were more than seventy years old.

MITIGATING CIRCUMSTANCES:

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

Mental impairment [not "significant" impairment]
Behavioral and personality disorders
Long-term effect of head injuries
Chronic substance abuse
[long-term addiction]
Lack of criminal history
Cooperation with law enforcement
Family ties
[love for his son]
Good conduct in court hearings
Newfound religious beliefs

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

(G)(1) - Significant Impairment - [Mental or Alcohol/Drugs]

JUDGMENT: Convictions and sentences affirmed.


State v. Medina, 193 Ariz. 504, 975 P.2d 94 (1999)

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

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Serious Offense) - UPHELD
The (F)(2) finding was upheld without discussion.

(F)(5) (Pecuniary Gain) - REVERSED
The Court pointed to the fact that the victim still had money in his pocket and his car was not stolen after the murder. The victim was incapacitated from the beating and could not have prevented the taking of his car or radio. While the reason for the beating may have been a desire to steal, it does not necessarily follow that the same is true for the murder. It is just as likely that the defendant drove over the victim for amusement. "The existence of an economic motive at some point during the events surrounding a murder is not enough to establish (F)(5). There must be a connection between the motive and the killing." Note, however, a dissent from Justice Martone regarding the pecuniary gain aggravating circumstance.

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

Cruel: Upheld. The victim's cries right before being run over by the defendant's car indicated both physical and mental pain and suffering.

Heinous or Depraved: Upheld.
Relishing: Found. The defendant's laughter and joking about driving over speed bumps shortly after the murder, and looking forward to the publicity generated by his crime indicated that he relished it.
Gratuitous Violence: Found. The medical examiner testified that the victim had been run over twice by a car, and that he died after the first pass. The defendant told his girlfriend that he had run over the victim three times and that the victim's head turned a different way with each pass.
Mutilation: Not found. The trial court found mutilation from the defendant running over the victim. This is the same conduct that caused the murder. The Court did not find a separate purpose to mutilate, apart from the killing itself.
Senselessness: Found. This murder served no rational purpose, was without an apparent motive, and the victim posed no threat to the defendant. The Court agreed with the trial judge that the murder was senseless.
Helplessness: Found. The victim was intoxicated at the time of the killing. His attackers were much younger and stronger. The Court found helplessness because the victim could not realistically defend himself.

(F)(9) (Victim Seventy Years of Age or Older) - UPHELD
The victim was seventy-one years of age at the time of his death. Defense counsel's argument that this was not proven beyond a reasonable doubt was dismissed as being without merit where two witnesses testified to the victim's age, the defendant did not dispute this testimony at trial, and the defendant admitted the victim's age in his sentencing memorandum. More significantly, the defendant argued that the (F)(9) aggravator should only apply where the state proves that the defendant was aware of the victim's age. He points to the (F)(10) aggravator, which specifically requires that the defendant be aware of the victim's status. The Court disagreed, noting that the plain language of the statute does not include knowledge as one of its elements. The defendant also argued that the trial judge double counted the victim's age in determining that this murder was senseless under (F)(6). The Court again disagreed, not only presuming that the trial judge correctly followed the law in considering the victim's age only once in sentencing the defendant, but also finding that there were no specific allegations to support the trial judge having considered the victim's age inappropriately.

MITIGATING CIRCUMSTANCES:

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

(G)(1) Significant Impairment [alcohol and drug use at time of crime]
Personality Disorders
Age [18 years old at time of murder]
Difficult Childhood/Family History

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

Rehabilitation/Lack of Future Dangerousness
Remorse
Gang Membership
Death Penalty is disproportionate to life sentences given in other cases

JUDGMENT: Convictions and sentences affirmed.


State v. White ( White II), 193 Ariz. 344, 982 P.2d 819 (1999)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Yavapai) of first-degree murder and conspiracy to commit first-degree murder. He was sentenced to death on the murder count. On appeal, the convictions and sentences were affirmed. State v. Michael White (Michael White I), 168 Ariz. 500, 815 P.2d 869 (1991). In 1992, the defendant petitioned for post-conviction relief. In 1995, he filed an amended petition. The trial court granted the defendant a new sentencing hearing on his ineffective assistance of counsel claim. At that resentencing, the defendant again received the death penalty on the murder conviction. This is his automatic, direct appeal from that resentencing to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
The defendant argued at his resentencing that he was not motivated by the life insurance proceeds, but by his love or infatuation for codefendant Susan Johnson, the victim's wife. The Court found "clear and forceful evidence of the defendant's involvement in a calculated scheme to take the life of David Johnson in order to achieve pecuniary gain."

MITIGATING CIRCUMSTANCES:

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

Recommendation for leniency [by Prosecutor]
Model Prisoner
Acceptance of life in prison
Lack of criminal history

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

Sentencing Disparity [the disparity was explained]
Potential for Rehabilitation / Lack of Future Dangerousness
Aberrant Behavior
Prosecutorial Policy of Yavapai County Attorney's Office

JUDGMENT: Convictions and sentences affirmed.


State v. Van Adams, 194 Ariz. 408, 984 P.2d 16 (1999)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder, kidnapping, attempted sexual assault, and second-degree burglary. He was sentenced to death for the murder. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Serious Offense) - UPHELD
The defendant was previously convicted of assault with intent to commit rape in California. The Court looked to the statutory definition of that crime in California to determine that it meets the definition of sexual assault in Arizona, and therefore, constitutes a serious offense under Arizona law. The Court found sufficient evidence that the State satisfied its burden of proof on this aggravating circumstance. The victim of that prior crime testified at the trial of this case in which she identified the defendant as the person who had attacked her in California. The Court agreed with the defendant that the trial court should not have considered her testimony to establish the prior conviction, but found no reversible error.

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

Cruel: Upheld
There was significant evidence that a struggle took place between the victim and her assailant. There were damaged candles and candlesticks in the bathroom, buttons and semen stains in the closet, bruises on the victim's neck, the defendant had a black eye and a facial injury, paint and ceramic chips in the bathroom and the bed, the victim's torn and knotted clothing, and injuries on her hands and wrists. There was also medical testimony that it takes from ninety seconds to two or three minutes for a strangulation victim to lose consciousness and that some of her injuries were inflicted prior to her death.

MITIGATING CIRCUMSTANCES:

The defendant refused to present mitigation evidence, stating that he voluntarily waived his right to do so, and that he was instructing his counsel not to do so. He also instructed his family not to cooperate with his counsel's efforts to investigate his background. Despite the defendant's refusal to cooperate in presenting mitigation, defense counsel advised the trial judge that the defendant planned a reconciliation with his wife and child. [See also Family Ties section]. This sole mitigating circumstance offered by defense counsel did not outweigh the aggravating circumstances of especial cruelty and a prior serious offense.

JUDGMENT: Convictions and sentences affirmed.


State v. Clabourne (Clabourne II), 194 Ariz. 379, 983 P.2d 748 (1999)

PROCEDURAL POSTURE:
The defendant was convicted in Superior Court (Pima) of first-degree murder, kidnapping, and three counts of sexual assault. He was sentenced to death on the murder conviction. On appeal, the sentence was affirmed. State v. Clabourne (Clabourne I), 142 Ariz. 335, 690 P.2d 54 (1984). The federal district court found ineffective assistance of counsel during sentencing and remanded the case for resentencing. The Ninth Circuit affirmed that decision. Clabourne v. Lewis, 64 F.3d 1373 (9th Cir. 1995). The defendant was resentenced to death on the murder conviction and this is his automatic, direct appeal to the Arizona Supreme Court from that resentencing.

AGGRAVATING CIRCUMSTANCES:

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

Cruel: Upheld
The defendant did not contest the trial judge's (F)(6) finding. The (F)(6) aggravating circumstance was found by the trial court at the first sentencing hearing, and that decision was upheld by the Arizona Supreme Court in Clabourne I. The victim was picked up by the defendant and codefendant, raped and forced to undress and serve her assailants drinks over a six hour period of time, begged this defendant to protect her and was ultimately strangled.

MITIGATING CIRCUMSTANCES:

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

Age
Mental Impairment - [
passive personality/impulsive/easily manipulated]

The Court found that the defendant failed to prove the following mitigating circumstances existed in this case:

(G)(1) -Significant Impairment - [mental]
(G)(2) -Duress
Impairment from Alcohol or Drugs - [
intoxication at time of offense]
Difficult Childhood/Family History
Sentencing Disparity

The Court found that the following were not mitigating:

Economic cost of death penalty
Length of time on death row
Codefendant was the mastermind of the killing

JUDGMENT: Death sentence affirmed.


State v. Kayer, 194 Ariz. 423, 984 P. 2d 31 (1999)

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

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Serious Offense) - UPHELD
The defendant was previously convicted of first-degree burglary, which is one of the enumerated "serious" offenses in A.R.S. §13-751 (I). The state presented documentation of the 1981 first-degree burglary conviction, which was sufficient to prove the existence of the (F)(2) aggravating circumstance.

(F)(5) (Pecuniary Gain) - UPHELD
The Court found sufficient evidence to support the pecuniary gain finding in this case. Witnesses heard the defendant continually bragging about his gambling system and observed his addictive behavior of constantly wanting money with which to gamble. The codefendant testified that the defendant planned to rob and then kill the victim. The defendant took the victim's money, credit cards and personal items from the crime scene. After the murder, the defendant took the victim's house keys and stole additional property from the house. Pawnshop receipts and witness testimony established that the defendant sold virtually all of the victim's jewelry and guns.

MITIGATING CIRCUMSTANCES:

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

Family Ties [importance in the life of his children]

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 [mental illness and intoxication]
Intoxication
Impairment [bipolar or manic depressive condition]
Military Service
Sentencing Disparity

The Court found that the following were not mitigating circumstances:

Medical Problems [post-murder physical health]
High Intelligence
Cost of execution
Ability to contribute to society

JUDGMENT: Convictions and sentences affirmed.