Capital Sentencing Guide

2000-2002

State v. Martinez, 196 Ariz. 451, 999 P.2d 795 (2000)

PROCEDURAL POSTURE:
The defendant was convicted in Superior Court (Maricopa) 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 conceded that his aggravated assault conviction under A.R.S. §§13-1203(A)(2) and 1204(A)(2) qualified as a serious offense for the purpose of the (F)(2) aggravating circumstance. However, he contested the trial court’s finding that his conviction for two counts of Dangerous or Deadly Assault by a Prisoner under A.R.S. §§13-1203 and 1206 were serious offenses because that crime was not among those listed in the statute. He also argued that because one can commit that offense recklessly, it should not qualify as a serious offense. The Court agreed with the trial court that the list of offenses in A.R.S. §13-751(I) is not specific to statute number, and encompasses aggravated assault by prisoners. The second argument regarding reckless assault erroneously assumes that the old (F)(2) concepts carried over to the new (F)(2). All of these convictions satisfy the current version of the (F)(2) aggravating circumstance.

(F)(10) (Victim was On Duty Peace Officer) - UPHELD
The victim, Officer Martin, was an on duty peace officer killed in the course of performing his official duties. He was in uniform and was in a marked police car when he pulled the defendant over. The defendant knew, or should have known, that he was a peace officer. The defendant conceded the existence of this aggravating circumstance at sentencing, and did not contest it on appeal.

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

Age [19 years old at time of the murder]
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]
Difficult Childhood/Family History [no nexus to the murder]

JUDGMENT: Convictions and sentences affirmed.


State v. Robert Jones, 197 Ariz. 290, 4 P.3d 345 (2000)

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

AGGRAVATING CIRCUMSTANCES:

(F)(1)(Prior Life or Death Felony) – UPHELD

The defendant was convicted of two killings at the Moon Smoke Shop and four killings at the Fire Fighters Union Hall. Because he was convicted of all six murders prior to sentencing, and because each set of murders provides a sufficient basis for finding the circumstance as to the other set of murders, the Court found (F)(1) proven beyond a reasonable doubt. The defendant did not challenge this finding on appeal.

(F)(2)(Prior Serious Offense) – UPHELD
The Court found this aggravating circumstance satisfied by the defendant’s convictions on three counts of aggravated assault, three counts of armed robbery, and two counts of first degree burglary. Because the defendant was convicted of these serious offenses before the sentencing phase, each offense provided sufficient grounds for satisfying (F)(2) for the murder offenses. The trial judge was careful not to consider the murder convictions for (F)(2) as they had already been considered in the (F)(1) determination.

(F)(5)(Pecuniary Gain) – UPHELD
Ample evidence showed the defendant and his codefendant intended to rob and murder their victims. The defendant shot one victim as he entered the Moon Smoke Shop. The codefendant hunted down and shot a second victim who was trying to escape. The defendant also attempted to shoot the remaining witnesses. This indicates that the codefendants began the robbery intending to murder anyone who happened to be in the store at the time. Likewise, in the second robbery, the victims were all shot execution style, although none challenged the defendants. These were not "robberies gone bad." The codefendants committed the murders to facilitate the robberies and then escape punishment. The Court rejected the defendant’s argument that (F)(5) was unconstitutional because it included ordinary robberies and thus did not set this case apart from those in which the death penalty was not available.

(F)(7)(Commission of Murder While in Custody) – UPHELD
The defendant challenged this finding for the first time on appeal. The Court found that the circumstance was proven by uncontested testimony from the defendant’s parole officer that the defendant was in fact on parole (authorized release) at the time of the murders. In the absence of contravention, the parole officer’s testimony alone provides sufficient grounds for the trial court’s determination. The parole officer knew whether the defendant was in fact on parole at the time of the murders, and the statute requires nothing more.

(F)(8)(Multiple Homicides) – HARMLESS ERROR
The trial court found that both Moon Smoke Shop murders provided a sufficient basis for finding (F)(8) regarding the other murder. The trial court also found that for each of the murders at the Fire Fighters Union Hall the others murders committed at that same time sufficiently supported the (F)(8) aggravating circumstance. The Court, however, noted that it was impossible to tell from the record if the trial court "double counted" the murder convictions to support both the (F)(1) and the (F)(8) aggravating circumstances. That error was harmless, however, because with the number of murders committed in this case it is mathematically possible to satisfy both (F)(1) and (F)(8) without ever counting a single murder more than once. Furthermore, the aggravating circumstances combined with either (F)(1) or (F)(8) were sufficient to outweigh the mitigating circumstances.

MITIGATING CIRCUMSTANCES:
The defendant did not challenge on appeal any of the trial court’s mitigation findings.

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

Devotion to family
The Court found that the defendant failed to prove by a preponderance of the evidence the existence of the following as mitigating circumstances, or assigned them no weight if proven:
(G)(1) – Significant Impairment [alcohol and drug use; personality disorders]
(G)(3) – Minor Participation
Good Character
History of providing emotional and financial support for family
Good behavior during trial
Potential for rehabilitation

 

JUDGMENT: Convictions and sentences affirmed.


State v. Poyson, 198 Ariz. 70, 7 P.3d 79 (2000)

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

AGGRAVATING CIRCUMSTANCES:
Three different victims:

Delahunt – (F)(5), (F)(6) cruelty, (F)(8)
Wear – (F)(5), (F)(6) cruelty, (F)(8)
Kagen – (F)(5), (F)(8)

(F)(5) (Pecuniary Gain) – UPHELD
The Court found the record replete with evidence that showed the murders were committed to facilitate the theft of a truck owned by one of the victims. The defendant admitted killing the victims to steal the truck and drive to Illinois. The defendant did not challenge this finding on appeal.

(F)(6) (Heinous, Cruel or Depraved) – UPHELD
Mental anguish: Found. The Court found cruelty based on great physical pain and "unspeakable mental anguish" suffered by victims Delahunt and Wear. Both victims struggled with the defendant and his accomplice and repeatedly asked why they were being murdered. After Delahunt’s throat was slashed with a butter knife, the defendant slammed his head against the floor, pounded it with a rock and drove the knife into his ear. Delahunt, 15 years old, struggled for 45 minutes before dying. He repeatedly asked the defendant and codefendant why they were trying to kill him. His hands showed defensive wounds. Wear begged the defendant not to hurt him, saying, "Bobby, stop. Bobby, don’t. I never did anything to hurt you." He was shot in the mouth, shattering several teeth. While conscious, he was struck in the head numerous times with a rifle and cinder block and kicked in the head.

Physical Pain: Found. See Mental Anguish.
Knew or Reason to Know that Victim would Suffer: No discussion.
The defendant did not challenge the cruelty findings on appeal.
Heinous or Depraved: Not addressed.

(F)(8)(Multiple Homicides) – UPHELD
The Court found that this aggravating circumstance existed for each of the three murders. The murders occurred over a relatively short period of time (five hours), at the same residence, and were part of a single course of conduct. The defendant did not challenge this finding on appeal.

MITIGATING CIRCUMSTANCES:

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

Age [19 years old at time of murders]

The Court found that the defendant failed to prove by a preponderance of the evidence the existence of the following as mitigating circumstances, or assigned them no mitigating weight if proven:

Drug use
(G)(1) – Significant Impairment [marijuana and PCP]
Cooperation with police
Personality disorders
Difficult childhood/family history
Remorse

JUDGMENT: Convictions and sentences affirmed.


State v. Hoskins, 199 Ariz. 127, 14 P.3d 997 (2000)

PROCEDURAL POSTURE:
The defendant was convicted in Superior Court (Maricopa) of premeditated murder, kidnapping, armed robbery and theft. He was sentenced to death on the murder count. This is his automatic direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:


(F)(5) (Pecuniary Gain) – UPHELD
The expectation of pecuniary gain is evident where a defendant commits a carjacking, takes control of a vehicle, and subsequently murders the victim to gain continuous undetected possession and use of the vehicle. This car was stolen and in the continuous possession of the defendant. The defendant made several prior statements of intent in conversations with friends. Before the murder, the defendant spoke of his plan to carjack a vehicle, kill the owner or driver, and drive to Pinetop. The record also indicates that the defendant was unemployed and did not have a vehicle. Pecuniary gain was at the heart of the defendant’s premeditated plan to obtain this vehicle.

The defendant argued that he was convicted of premeditated murder, not felony murder. The Court noted that the defendant was also convicted of armed robbery of the vehicle. A felony murder conviction does not guarantee a pecuniary gain finding, nor does the absence of such a conviction foreclose the pecuniary gain motive. Pecuniary gain refers to the actual motive whereas felony murder avoids motive. Felony murder and pecuniary gain may co-exist, but one may exist without the other; they are neither synonymous nor co-extensive. The jury may have concluded that the murder occurred well after the theft of the vehicle. The death penalty is not inappropriate simply because pecuniary gain is the only aggravating circumstance in the record.

The dissent sees a clear contradiction between the jury’s finding and the trial court’s pecuniary gain finding. If pecuniary gain was conclusively established as the basis for the murder, reasons the dissent, then the jury should have convicted on felony murder. Because the jury did not, that throws considerable doubt on the pecuniary gain finding.

MITIGATING CIRCUMSTANCES:

The Court found that the following were not proven by a preponderance of the evidence or were assigned no weight in mitigation if proven:

(G)(1) – Significant Impairment [bipolar disorder, antisocial personality disorder, emotional immaturity and impulsivity]
(G)(2) – Duress
(G)(3) – Minor Participant
(G)(4) – Unforeseeability of Death
Sentencing disparity

JUDGMENT: Convictions and sentences affirmed.


State v. Scott Douglas Nordstrom, 200 Ariz. 229, 25 P.3d 717 (2001)

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

AGGRAVATING CIRCUMSTANCES:

(F)(1)(Prior Life or Death Felony) – UPHELD

The Court’s opinion refers to its analysis of the factor in the appeal of co-defendant Robert Jones. See State v. Jones, 197 Ariz. 290, 4 P.2d 345 (2000). The defendant did not challenge this finding on appeal.

(F)(5)(Pecuniary Gain) – UPHELD
The Court’s opinion refers to its analysis of the factor in the appeal of co-defendant Robert Jones. See State v. Jones, 197 Ariz. 290, 4 P.2d 345 (2000). The defendant did not challenge this finding on appeal.

(F)(8)(Multiple Homicides) – HARMLESS ERROR
The Court’s opinion refers to its analysis of the factor in the appeal of co-defendant Robert Jones. See State v. Jones, 197 Ariz. 290, 4 P.2d 345 (2000). The defendant did not challenge this finding on appeal.

MITIGATING CIRCUMSTANCES:
The defendant did not challenge on appeal any of the trial court’s mitigation findings.

The Court found that the following mitigating circumstances had been proven, but were not sufficiently substantial to call for leniency:
        Employment history
        Caring parent and family relationship

The Court found that the defendant failed to prove by a preponderance of the evidence the existence of the following as mitigating circumstances, or assigned them no weight if proven:
        Difficult childhood and family background
        Mental health issues
        Artistic talent
        Defendant was a follower
        Successful adjustment to prison
        Residual doubt
        No prior convictions for serious offenses

JUDGMENT:
Convictions and sentences affirmed


State v. Ring, 200 Ariz. 267, 25 P.3d 1139 (2001)

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

AGGRAVATING CIRCUMSTANCES:


(F)(5) (Pecuniary Gain) – UPHELD
The reason for the victim’s murder was to obtain the approximately $500,000 in cash in the armored car.

(F)(6) (Heinous, Cruel or Depraved) – REVERSED
Cruel: Not addressed
Heinous or Depraved: Reversed

Relishing:  Not found. Uncorroborated testimony from an accomplice was that the defendant said in an "offhand" manner, "you guys are forgetting something … you’re forgetting to congratulate me on my shot." The Court said the comments showed a calculated plan to kill, the defendant’s satisfaction over the success of his plan and extreme callousness or lack of remorse after the murder, but that they did not support a finding that the defendant actually relished the act of murdering the victim.

Senselessness:  Found. Though any murder is senseless in its brutality and finality, the evidence did not support the State’s argument that the defendant could have seized the armored van without killing the victim. The defendant and his accomplices may have believed, from the way the victim was sitting in the van, that they could not have gained access to it or subdued the victim without a "potentially protracted and boisterous struggle." But the Court noted "that the entire inquiry is pointless" because a finding of senselessness alone cannot support a heinous/depraved finding.

MITIGATING CIRCUMSTANCES:

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

The Court noted that the defendant had no prior felony convictions, but did have prior misdemeanor convictions for carrying a concealed weapon and for impersonating a public servant.

The Court found that the defendant failed to prove by a preponderance of the evidence the existence of the following as mitigating circumstances, or assigned them no mitigating weight if proven:
    Previous work as a police officer, correctional officer, bounty hunter, and confidential informant
    (G)(3) – Minor participation
    Residual doubt

JUDGMENT:
Convictions and sentences affirmed. The United States Supreme Court granted defendant’s petition for certiorari. Ring v. Arizona, 122 S.Ct. 865 (U.S. Jan 11, 2002)(No. 01-488).


State v. Harrod, 200 Ariz. 309, 26 P.3d 492 (2001)

PROCEDURAL POSTURE:
The defendant was convicted in Superior Court (Maricopa) of premeditated murder and felony murder. He was sentenced to death. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:


(F)(5) (Pecuniary Gain) – UPHELD
The defendant’s ex-wife testified that the defendant told her he killed the victim after being promised $100,000 from a beneficiary who wanted access to his inheritance. The state also introduced evidence of wire transfers and checks from the beneficiary to the defendant totaling about $35,000. The Court relied on this evidence to conclude the killing "was a murder for hire, not a robbery gone bad."

MITIGATING CIRCUMSTANCES:

The Court agreed with the trial court that the defendant failed to prove the following mitigating factors by a preponderance of the evidence:
        (G)(3) Minor Participation
        (G)(5) Age (defendant age 34)
        Absence of Biological Father (no causal link to crime)
        Disproportionate Sentence

The Court found the following mitigating circumstances existed, but were not sufficiently substantial to call for leniency:
        Lack of Criminal Record
        Good Behavior in Prison
        Supportive Family

The Court agreed with the trial court’s finding that it had no lingering doubt about the defendant’s guilt.

The Court concluded it "thus need not reach the question of whether residual doubt is a mitigating factor which the defendant must prove."

Despite concluding residual doubt was not present in the case, two justices wrote special concurrences to discuss the concept. Justice Jones wrote that consideration of residual doubt at sentencing does not fall within the permissible scope of A.R.S. §13-751(G), because that provision refers to "any aspect of the defendant’s character, propensities or record and any of the circumstances of the offense." In a separate special concurrence, Justice Feldman, with Justice Zlaket concurring, wrote that "it is time to make clear to the bench and bar that residual doubt is a mitigating factor." Justice Feldman reasoned that residual doubt should be considered, especially given the recent evidence showing wrongful convictions occur in capital cases. He also disagreed with Justice Jones, finding that the statute does not limit mitigation to evidence of the defendant’s character and circumstances of the offense, but only provides examples for the command to consider any factors relevant to sentencing. He concluded, "Residual doubt, properly defined, should be considered a substantial mitigating circumstance, and the court should say so."

JUDGMENT:
Convictions and sentences affirmed.


State v. Sansing, 200 Ariz. 347, 26 P.3d 1118 (2001)

PROCEDURAL POSTURE
: The defendant pleaded guilty in Superior Court (Maricopa) to first degree murder, kidnapping, armed robbery and sexual assault. He was sentenced to death. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) – REVERSED
After calling a church to request delivery of a food box for his family, the defendant told his wife he wanted to rob the church worker so he could buy more crack cocaine. When the delivery arrived, the defendant threw the victim down onto the floor. With his wife’s help, he bound her wrists and knocked her unconscious with a club. Leaving her on the floor, the defendant took her keys and moved her truck from the front of the house to a nearby parking lot. The victim regained consciousness before the defendant returned. When he returned, the defendant raped and stabbed the worker. She died several minutes later. The defendant left the room and looked out of a window in a different room to ensure no one had seen his conduct. He then removed the worker’s jewelry, which he later arranged to trade for cocaine.

Relying on State v. LaGrand, 153 Ariz. 21, 35, 734 P.2d 563, 577 (1987), the state claimed the defendant’s overall motive was to rob the victim and that his desire infected all of his conduct. The Court disagreed, finding the state’s interpretation of LaGrand too broad. A murder committed during a robbery or burglary is not per se motivated by pecuniary gain. Proof of a "robbery gone bad," or one that occurs close in time to a murder but that constitutes a separate event, is insufficient to sustain a (F)(5) finding. The requisite inquiry usually involves determining whether a motive for the murder was the facilitate the taking of or ability to keep items of pecuniary value. Also important is whether the murder was committed to facilitate escape or to hinder detection by police.

The facts proved neither that the killing was motivated by the expectation of pecuniary gain nor to facilitate escape and hinder detection. After the murder, the defendant left the victim in his house for 4 or 5 hours, then placed her in a visible location in his backyard. The next morning, he went to his sister’s home and confessed to her.

(F)(6) (Especially Heinous, Cruel or Depraved) – UPHELD
Cruel: Upheld

Mental Anguish: Found. The victim was conscious during at least part of, if not the majority of the attack, including when the defendant and his wife bound her with extension cords. All four of the defendant’s children reported that the victim said, "Lord, please help me." The defendant stipulated in his plea agreement that the victim was conscious when he returned after briefly leaving the house. The defendant’s wife testified she heard the victim and the defendant talking during the sexual assault and that the victim had asked the children several times during the attack to call the police. This established the victim was aware of and had sufficient time to contemplate her fate.

Heinous or depraved: Having found sufficient proof of cruelty, the Court found it unnecessary to address whether the facts established heinousness or depravity.

MITIGATING CIRCUMSTANCES:
The Court found the following mitigating factors existed, but were not sufficiently substantial to call for leniency:
        Difficult childhood and family background (insufficient causal link to offenses)
        Non-statutory impaired capacity to appreciate wrongfulness of conduct or to conform conduct to legal requirements [abuse of crack cocaine] (insufficient causal link to offenses)

The Court rejected the defendant’s argument that the trial judge violated the victim’s rights to be heard by failing to consider as mitigation the victim’s daughter’s request for mercy. The evidence is not relevant to the defendant’s character or circumstances of the crime. And a sentencing judge is forbidden from considering any recommendation made by the victim regarding the sentence.

JUDGMENT:
Convictions and sentences affirmed.


State v. Pandeli, 200 Ariz. 365, 26 P.3d 1136 (2002)

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

AGGRAVATING CIRCUMSTANCES:

(F)(2) (PRIOR CONVICTION- SERIOUS OFFENSE) – UPHELD
The defendant’s prior conviction for second degree murder was a "serious offense" supporting the (F)(2) aggravator.

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – UPHELD
        Heinous or depraved: Upheld 

Gratuitous Violence: Found The victim died from a single deep knife slash to the throat. But forensic evidence also showed the defendant attempted to strangle the victim, and also inflicted blows to the head and chest that fractured the victim’s sternum. The absence of defensive wounds undermined the defendant’s contention that a struggle had occurred. The defendant’s actions thus were beyond that required to kill.

            Mutilation: Found
            The severing of both of the victim’s breasts after her death established mutilation.

MITIGATING CIRCUMSTANCES:

The Court found the following mitigating factors existed, but were not sufficiently substantial to call for leniency:
        Rehabilitation
        Adapted to incarceration
        Educational advancements since incarceration
        Remorse
        Religious Faith

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

(G)(1) -- Significant Impairment: The Court assented to the trial court’s resolution of credibility disputes and found the defendant failed to meet his burden of proof.
Family and Developmental History, Mental/Emotional health. No nexus established.
Residual Doubt
Poor Health
Cooperation with Law Enforcement
Good Character

JUDGMENT: Conviction and death sentence affirmed.


State v. Lehr, 201 Ariz. 509, 38 P.3d 1172 (2002)

PROCEDURAL POSTURE: The defendant, in connection with attacks on ten different women, was convicted in Superior Court (Maricopa) of three counts of first degree murder and numerous assaults and sexual offenses. He was sentenced to death. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (PRIOR CONVICTION- LIFE IMPRISONMENT OR DEATH) – UPHELD
Three victims were murdered and seven victims survived the attacks. Two of the murder convictions were reversed for limitations on cross-examination of DNA experts. The remaining murder conviction was affirmed. The trial judge had used the two murder convictions, now reversed, to aggravate the other murder conviction under (F)(1). Nevertheless, the Supreme Court affirmed the (F)(1) finding because it was supported by numerous counts of kidnapping and sexual assault, for which life sentences were imposed.

(F)(2) (OLD LAW/PRE-1993/PRIOR CONVICTION- USE OR THREAT OF VIOLENCE) – UPHELD
Convictions for attempted first degree murder and aggravated assault were felonies "involving the use or threat of violence on another person" under the pre-1993 version of (F)(2).

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – REVERSED
        Cruel: Reversed
        Heinous or depraved: Reversed

Based on the testimony of victims who survived the defendant's attacks, the trial court inferred the remaining murder was especially cruel because the victim suffered terror and mental anguish from the time she was abducted until the moment she was killed. The Supreme Court found that there was little known about the victim’s death and "it is simply too speculative to conclude that this homicide was committed in a cruel, heinous, or depraved manner." Although the (F)(6) factor was set aside, the death sentence was affirmed based on the (F)(1) and (F)(2) factors.

MITIGATING CIRCUMSTANCES:

The trial court found the following non-statutory mitigating factors existed, but were not sufficiently substantial to call for leniency:
        Defendant was a good father, a good husband and a good son.
        Defendant had no prior criminal record of violence.
        Defendant had been a model prisoner while in custody.

The Court affirmed the trial court’s findings that the following were not mitigating circumstances:
        Expert opinion regarding the appropriateness of the death penalty.
        Harm to the defendant’s family.
        A single request for the death penalty from only one victim’s family
        Lack of good role models
        Residual Doubt was not proven by preponderance.

The Supreme Court agreed that the mitigation was weak and affirmed the death sentence.

JUDGMENT: One murder conviction and death sentence affirmed. Two other murder convictions reversed.


State v. Canez, 202 Ariz. 133, 42 P.3d 564 (2002)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pinal) of felony murder, armed robbery and burglary and was sentenced to death. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (PRIOR CONVICTION- SERIOUS OFFENSE) – UPHELD
Following the jury verdicts, the trial court held a bench trial and found beyond a reasonable doubt the defendant had four prior convictions. At the capital sentencing hearing held seven months later, the trial judge found beyond a reasonable doubt the defendant has been convicted of the serious offenses of first degree burglary and aggravated robbery. The Court found it unnecessary for the prior convictions to be separately litigated in the capital sentencing hearing.

(F)(5) (PECUNIARY GAIN) – UPHELD
The Court stated that a murder committed during a robbery is not per se for pecuniary gain. However, robbing and killing a victim while making no attempt to conceal identity is powerful circumstantial evidence that the motive was pecuniary. Where the murder and robbery occur almost simultaneously, the Court will not attempt to divine if the motive to kill shifted from pecuniary gain to some other non-pecuniary motive.

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – UPHELD

Cruel: Upheld
The evidence showed that the victim was conscious throughout the assaults and the Court upheld the cruelty finding

Heinous or depraved: Reversed
Gratuitous Violence: Reversed. Defendant attempted to strangle the victim, stabbed him six times and delivered 10 blunt force injuries to the head and 11 other blunt force injuries. The defendant used his fists, a frying pan, a laundry bag and a knife. The Court found that the violence was not beyond that necessary to kill because the defendant simply escalated his attacks until he succeeded in killing the victim.

Senselessness: Found. The Court stated that senselessness and helplessness together would not justify a finding of heinousness or depravity.

Helplessness: Found. The Court stated that senselessness and helplessness together would not justify a finding of heinousness or depravity.

(F)(9) – Elderly Victim – Upheld: 
The Court held that even without the victim’s birth certificate, the evidence supported the trial court’s finding that the victim was at least 70 years old.

MITIGATING CIRCUMSTANCES:
The Court found the following mitigating factors existed, but were not sufficiently substantial to call for leniency:
        Drug and Alcohol Use
        Traumatic Childhood and Dysfunctional Family
        Love of Family
        Mental Illness or Impairment

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

(G)(1) -- Significant Impairment (intoxication/drug craving, brain damage, mental illness, retardation
Felony Murder
Good Character
Good Conduct in Court
Disparate Sentence of Co-Defendant

JUDGMENT: Murder conviction and death sentence affirmed.


State v. Finch, 202 Ariz. 410, 46 P.3d 421 (2002)

PROCEDURAL POSTURE:
The defendant was convicted in Superior Court (Pima) of first degree felony murder and several non-homicide counts resulting from three different robberies. The sole murder occurred during the third robbery. He was sentenced to death. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (PRIOR CONVICTION- SERIOUS OFFENSE) – UPHELD
All of the charges were consolidated for one trial. At sentencing, the trial court based its finding on the defendant’s convictions, entered before sentencing, for armed robbery, kidnapping and aggravated assault from the first and second robberies. The Court held that convictions entered simultaneously with the murder conviction but before sentencing satisfy (F)(2). Because the convictions stemming from the first and second robberies were entered before sentencing, they qualify as previous serious offenses under (F)(2).

(F)(5) (PECUNIARY GAIN) – UPHELD
The defendant testified he shot the victim to prevent him from reporting the robbery. The Court held this established the motive behind the killing was the taking of or ability keep items of pecuniary value.

MITIGATING CIRCUMSTANCES:
The Court found the following mitigating factors existed, but were not sufficiently substantial to call for leniency:
    Family Support
    Remorse
    Difficult Childhood
    Rehabilitative Potential
    Personal Growth and Good Behavior During Incarceration
    Cooperation with Authorities

The Court found the defendant failed to prove by a preponderance of the evidence the existence of the following mitigating circumstances:
    (G)(1) -- Significant Impairment (intoxication/drug)
    Felony Murder
    Effects of Execution on Children
    Emotion Duress Caused by Need for Drugs
    Impairment Due to Drugs and Alcohol

JUDGMENT: Murder conviction and death sentence affirmed.


State v. Phillips, 202 Ariz. 427, 46 P.3d 1048 (2002)

PROCEDURAL POSTURE:
The defendant was convicted in Superior Court (Pima) of first degree felony and premeditated murder and several non-homicide counts resulting from three different robberies. The sole murder occurred during the third robbery. He was sentenced to death. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (PRIOR CONVICTION- SERIOUS OFFENSE) – UPHELD IN PART; REVERSED IN PART
All of the charges were consolidated for one trial. At sentencing, the trial court based its finding on the defendant’s convictions, entered before sentencing, for armed robbery, kidnapping and aggravated assault from the first, second and third robberies. The Court held that convictions entered simultaneously with the murder conviction but before sentencing satisfy (F)(2), so long as they do not arise from the same set of events as the murder. The trial court did not err by relying on the convictions from the first and second robberies because they were entered before sentencing. But the court did err by considering the convictions from the third robbery because, although they were also entered before sentencing, they arose from the same set of events as the murder. In addition, the court properly relied on the defendant’s 1998 convictions for armed robbery, aggravated assault, and robbery.

(F)(5) (PECUNIARY GAIN) – UPHELD
During the third robbery, the defendant fired shots at the backs of customers seated at a bar. The shooting resulted in the murder victim’s escape attempt, which led to his being shot by the co-defendant. The shooting of the victim permitted the defendant and his cohort to obtain and keep the robbery proceeds. The defendant’s conduct during the third robbery, coupled with his desire for money, justified the trial court’s finding of (F)(5).

MITIGATING CIRCUMSTANCES:

The Court found the following mitigating factor existed, but was not sufficiently substantial to call for leniency:
    Family Support

The Court found the defendant failed to prove by a preponderance of the evidence the existence of the following mitigating circumstances:
    (G)(1) -- Significant Impairment (intoxication/drug)
    Substance Abuse
    Difficult Childhood
    Minor Participation
    Age
    Familial Responsibility
    Remorse
    Felony Murder Conviction

JUDGMENT: Murder conviction and death sentence affirmed.


 

State v. Carlson 202 Ariz. 570, 48 P.3d 1180 (2002)

PROCEDURAL POSTURE: 
The defendant was convicted in Superior Court (Maricopa) of first degree murder and other offenses resulting from the contract killing of the defendant’s mother-in-law. She was sentenced to death. This is her automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(4) (PROCUREMENT OF MURDER BY PAYMENT OR PROMISE OF PAYMENT) - UPHELD
The defendant offered a co-defendant $20,000 to kill her mother-in-law. The co-defendant accepted and later killed the targeted victim.

(F)(5) (PECUNIARY GAIN) – UPHELD
The defendant wanted her mother-in-law killed so she could benefit from her trust fund and annuities. The Court held this established the motive for the killing. However, because (F)(4) and (F)(5) were based on related facts, they should not be independently assigned full weight.

(F)(6) (HEINOUS, CRUEL, OR DEPRAVED) – REVERSED
The victim was bedridden and ill. The killers repeatedly stabbed her as she tried to defend herself. She lay in her room for 3 hours, unable to call for help. She then lived for about 6 months before passing. The trial court found that while the defendant might not have foreseen her co-conspirators would bungle the killing, she was nonetheless responsible for the resulting pain and suffering, making the killing especially cruel.

The Supreme Court held the tort law concept of foreseeability did not apply in determining eligibility for the death penalty. The Court instead applied the criminal law concept of mens rea, and required a finding that the defendant intended that the murder would be committed in such a way as to cause the victim to suffer or, absent intent, knew it would be so. Because the defendant did not plan how the murder would be committed and could not have known that the killer would botch it by closing his eyes while repeatedly stabbing the victim, she could not be held responsible for the resulting cruelty.

The trial court found heinousness and depravity based on mutilation, senselessness and helplessness. The Supreme Court found insufficient support for mutilation or senselessness, but agreed the victim was helpless. Noting that helplessness alone would not support a finding of heinousness or depravity, the Court considered whether the familial relationship between the defendant and the victim, when added to the victim’s helpless condition, justified the (F)(6) finding. Distinguishing the case from those involving a parent killing his/her young child, the Court held the defendant’s relationship with the victim did not render the crime heinous or depraved.

MITIGATING CIRCUMSTANCES:
The Court found the following mitigating factors existed and were sufficiently substantial to call for leniency:
    (G)(2) – Duress
    Criminal History
    Brain Damage
    Sentencing Disparity

The Court found the defendant failed to prove by a preponderance of the evidence the existence of the following mitigating circumstances:
    (G)(1) -- Significant Impairment (brain damage)
    (G)(3) – Minor Participation
    Motivated by need for money to be used to gain custody of children.

JUDGMENT:  Murder conviction affirmed. Death sentence reduced to natural life without the possibility of parole.