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Arizona Judicial Branch

2003-2006


State v. (Eugene) Tucker, 205 Ariz. 157, 68 P.3d 110 (May 5, 2003)
(RING HARMLESS ERROR REVIEW)

PROCEDURAL POSTURE:  Tucker was convicted in Superior Court (Maricopa) of three counts of first-degree murder, sexual assault, kidnapping and burglary, and sentenced to death for the triple homicide of Tucker’s girlfriend, the girlfriend’s brother and the brother’s girlfriend.  This is his direct appeal.

AGGRAVATING CIRCUMSTANCES:

(F)(3) (GRAVE RISK OF DEATH TO ANOTHER) - REVERSED (NOT HARMLESS)
Tucker killed all the adults in a home, leaving a baby alone in its crib.  The Supreme Court could not conclude that any reasonable jury would have found that the defendant knew that the infant laying in a crib near the bed in which he killed two of the victims, would remain in the crib, unaided and alone, for a long period of time.  Also, there was no evidence that the infant was endangered during the killings.

(F)(6) (HEINOUS, CRUEL OR DEPRAVED) - UPHELD AS TO VICTIM 1 ONLY

Cruelty - Upheld.
Physical Pain: Victim 1, the defendant’s girlfriend, had been raped vaginally and anally, bludgeoned about the head, strangled, and then shot twice in the head.  The ligature marks made during strangulation were conclusively inflicted before the victim died.  Police officers testified that the disarray of the room and the various locations of blood spatter patterns and blood pools indicated there was a prolonged struggle.  Although the medical examiner could not exactly ascertain the victim’s consciousness during the attack, the fact that she was handcuffed at some point during the attack indicated that she was conscious for a portion of it, as there would have been no need to subdue an unconscious victim.  The extent of the victim’s injuries showed that she suffered physically.

Heinous or Depraved - Reversed (Not Harmless)
Witness Elimination: Reversed (Not harmless).  Victims 2 & 3, Victim 1’s brother and his girlfriend, were each shot once in the head, and the girlfriend had a “through and through” gunshot hole in her thumb.  The medical examiner could not ascertain whether the 2 victims, who were killed in their bed, were awake or asleep when shot.  The court could not conclude that any jury would have found that these “execution-style” murders had been committed for the purpose of witness elimination beyond a reasonable doubt; moreover, more is required to find heinousness/depravity.

Helplessness: No finding. Court does not address helplessness, but concludes, overall, that reasonable jurors could disagree as to whether these killings were heinous/depraved.

(F)(8) (MULTIPLE HOMICIDES) – UPHELD
The requirement that the multiple murders be “temporally, spatially and motivationally related” to each other was satisfied.  The murders all occurred in the same apartment, which “clearly indicate[d] a spatial relationship.”  Even if the State’s theory that Victims 2 & 3 were killed to eliminate witnesses to the murder of Victim 1, which would evidence differing motivations for the three murders, the court found it “difficult to imagine a motive for the killings unrelated to the murder of [Victim 1].”

MITIGATING CIRCUMSTANCES:

Found: (G)(5) (Age) & Lack of a Prior Criminal Record were found.
Rejected:  Rehabilitation Potential & Good Character.

Because the trial judge’s rejection of the non-statutory mitigation was based almost entirely upon his assessment of the credibility of the defendant’s mother, who testified to these matters, the court concluded that a reasonable jury might have found or weighed the factors differently.

JUDGMENT:   Death Sentence Vacated and Remanded for New Jury Sentencing Hearing.


State v. (Darrel) Pandeli (II), 204 Ariz. 569, 65 P.3d 950 ( April 3, 2003 )
(Ring harmless error review)

PROCEDURAL POSTURE: Pandeli was convicted in Superior Court (Maricopa) of one count of first degree murder and sentenced to death for the murder of a woman that he had picked up in a neighborhood bar.  After confessing to the crime, Pandeli confessed to killing another woman on an earlier occasion.  On direct appeal, the Supreme Court affirmed both the conviction and the sentence.  See State v. Pandeli (I), 200 Ariz. 365, 26 P.3d 1136 (2001).  The judgment was vacated by the United States Supreme Court on direct appeal, and remanded for further consideration of the death sentence in light of the recent Ring II decision.  See Pandeli v. Arizona , 536 U.S. 953 (2002) (mem.).  This is the opinion that followed.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (PRIOR CONVICTION FOR A SERIOUS OFFENSE) - UPHELD
In 1996, Pandeli had been convicted of second-degree murder for killing another female victim.

(F)(6) (HEINOUS, CRUEL OR DEPRAVED) - UPHELD

Heinous or Depraved - Upheld
Mutilation:  Upheld.  The medical examiner testified at trial that the victim’s nipples had been excised post-mortem, and he explained that it took at least four strokes of a knife to sever the right nipple and at least two, possible three, strokes to sever the left.  Pandeli confessed to police that he killed the victim and removed her nipples after she was dead, and that he disposed of the body parts either by throwing them in the garbage or down his toilet.  Post-mortem mutilation indicates “a mental state that is ‘marked by debasement’” and supports a finding of specially heinous or depraved.  It was unlikely that a reasonable jury would have failed to find (F)(6) based on the mutilation in this case.

MITIGATING CIRCUMSTANCES:
The trial court failed to find any applicable mitigators.  Because the defense presented an expert who diagnosed Pandeli as suffering from paranoid schizophrenia and post-traumatic stress disorder and testified that these disorders could have contributed to Pandeli’s conduct, and the State’s expert contradicted this testimony, the court found that it could not find beyond a reasonable doubt that a jury would have assessed the defense expert’s testimony in the same manner as the trial judge.

JUDGMENT: Death Sentence Vacated and Remanded for New Jury Sentencing Hearing.


State v. (Keith) Phillips (II), 205 Ariz. 145, 67 P.3d 1228 ( May 6, 2003 )
(Ring harmless error review)

PROCEDURAL POSTURE:  Phillips was convicted in Superior Court (Pima) of first degree murder (premeditated and felony murder), 2 counts of attempted murder, and 45 counts each of armed robbery, kidnapping, and aggravated assault, all stemming from 3 separate armed robberies occurring over a 16-day period, and he was sentenced to death. (This is the companion to State v. Finch).  On direct appeal, the Supreme Court affirmed all convictions except premeditated murder, and affirmed all sentences.  See 202 Ariz. 427, 46 P.3d 1048 (2002).  As Phillips’ certiorari petition to the United States Supreme Court was pending at the time that Ring II was decided, the case was remanded to the Arizona Supreme Court for harmless error analysis of the death sentence.  This opinion followed.  (Please note that at his re-sentencing before a jury in 2004, which was ordered by the court in this opinion, Phillips received life).

AGGRAVATING CIRCUMSTANCES:

(F)(2)  (PRIOR SERIOUS OFFENSE) – UPHELD
Phillips had been convicted of armed robbery and aggravated assault in 1998.  His convictions in the present case, involving a series of three armed robberies, occurred in 1999.  The 1998 convictions were properly considered in applying this factor.  The trial court also considered the felony convictions from the first two robberies, which occurred on earlier dates, as applied to the homicide committed in the third robbery.  These were also properly applied to find (F)(2).  But the trial court further considered felonies committed during the third robbery, which involved the homicide; these were improperly applied to (F)(2) under the capital sentencing statute as it existed at the time that Phillips committed the instant offense, but the error was harmless given all the other prior serious offenses.

(F)(5) (PECUNIARY GAIN)  - REVERSED (NOT HARMLESS)
The court found that the trial judge’s determination regarding Phillips’ motive for the killing, which he did not execute himself (the accomplice shot the victim that ultimately died while Phillips shot and wounded other victims), was so fact bound, that reasonable jurors could have come to differing conclusions regarding Phillips’ pecuniary motive.

MITIGATING CIRCUMSTANCES:
The court did not specify the two mitigating circumstances found, but noted that many proffered mitigating circumstances (more than 10 in all) were not found.  Given the evidence, the Supreme Court could not conclude that a reasonable jury might not have found further mitigation, or that the jury might have weighed the found mitigation differently against the aggravators.

JUDGMENTDeath Sentence Vacated and Remanded for New Jury Sentencing Hearing.


State v. (Marcus) Finch (II), 205 Ariz. 170, 68 P.3d 123 ( May 6, 2003 )
(Ring harmless error review)

PROCEDURAL POSTURE:  Finch was convicted in Superior Court (Pima) of first degree felony murder, 2 counts of attempted murder, and 45 counts each of armed robbery, kidnapping, and aggravated assault, all stemming from 3 separate armed robberies that occurred over a 16-day period, and he was sentenced to death. (This is the companion to State v. Phillips).  On direct appeal, the Supreme Court affirmed all convictions and all sentences.  See 202 Ariz. 410, 46 P.3d 421 (2002).  Because Finch’s certiorari petition to the United States Supreme Court was pending at the time that Ring II was decided, the case was remanded to the Arizona Supreme Court for harmless error analysis of Finch’s death sentence.  This opinion followed.

AGGRAVATING CIRCUMSTANCES:

(F)(2)  (PRIOR SERIOUS OFFENSE) – UPHELD
Finch was subject to the (F)(2) statute as written prior to September, 2003.  As a result, only his 27 felony convictions relating to the first two robberies, which occurred on earlier dates than the third robbery when the victim was killed, could support this factor.  The felony conviction from the third robbery could not be used to support (F)(2).  Harmless overall.

(F)(5) (PECUNIARY GAIN)  - UPHELD
Finch and his accomplice, Phillips, robbed a Tucson bar at gunpoint.  After Phillips shot patrons with a shotgun, Finch emerged with a handgun and threatened to kill everyone.  Two patrons fled through the front entrance to escape; Finch followed them and shot one of the fleeing men twice in the back, killing him.  At trial, Finch admitted his participation in the robbery and testified that he killed the victim to “prevent him from telling anyone that a robbery was taking place.” Given this admission, no reasonable jury could conclude otherwise but that Finch killed for pecuniary motive.

MITIGATING CIRCUMSTANCES:
The court found several mitigating circumstances, but failed to find several others.  Given the evidence, the Supreme Court could not conclude that a reasonable jury might not have found further mitigation, or that the jury might have weighed the found mitigation differently against the aggravators.

JUDGMENTDeath Sentence Vacated and Remanded for New Jury Sentencing Hearing.


State v. (Antoin) Jones, 205 Ariz. 445, 72 P.3d 1264 ( July 7, 2003 )
(RING HARMLESS ERROR REVIEW)

PROCEDURAL POSTURE
:
  Jones was convicted in Superior Court (Maricopa) on one count of first degree premeditated murder, kidnapping of a minor under the age of fifteen, and two counts of sexual assault of a minor under the age of fifteen, and he was sentenced to death for kidnapping and murdering a 12-year-old girl.  His convictions and non-death sentences were affirmed in a prior opinion at 203 Ariz. 1, 49 P.3d 273 (2002).  This supplemental opinion performed the Ring harmless error analysis on his death sentence.

AGGRAVATING CIRCUMSTANCES:

(F)(6) (HEINOUS, CRUEL OR DEPRAVED)  - UPHELD
Facts: The victim was a 12-year-old girl who had disappeared from a park; her body was discovered the next day in a dumpster behind an abandoned bar in Phoenix .  Her hands were bound behind her back with a sock and another sock was tied around her neck.  She was covered in blood and clothed only in a t-shirt and training bra, which had been pushed up over her breasts.  The autopsy disclosed that the victim died as a result of blunt force trauma to the head.  Her severely shattered skull had a least nine separate injuries consistent with the curvature of a socket wrench.  She also had two stab wounds in her neck, and abrasions and scrapes on her face and chest.  The victim had additional injuries indicating that she had been raped and sodomized.  Jones was immediately suspected, since several items belonging to him were found under the victim’s body, including a time slip from the fast food restaurant where he worked.  After questioning, Jones admitted to necrophilia but contended that a friend did the killing.  After initially denying any knowledge of the crime, Jones’ girlfriend subsequently told police that Jones had confessed the killing to her, recounted the event in vivid detail, and brought her to the dumpster so that he could retrieve some evidence.

Cruelty – Reversed (Not Harmless)
Mental/Physical: Not Harmless.   Because the evidence of cruelty came from Jones’ girlfriend, who testified as to how Jones had described the killing to her, and Jones had challenged the veracity of this testimony at trial based upon the girlfriend’s initial denial of any knowledge regarding the killing, a reasonable jury might have accorded the testimony different weight than did the trial judge.  Also, the forensic pathologist was unable to fix the precise time that the victim lost consciousness and there was no additional evidence of a struggle, such as ligature marks.  As a result, the court could not conclude that no reasonable jury would have failed to find the killing to be cruel.

Heinous or Depraved  - Upheld
Gratuitous Violence:  Upheld.  Physical evidence that victim received at least nine blows to the head which shattered bone and exposed brain matter, was stabbed twice in the throat, had multiple abrasions on her face and chest, and had been sexually assaulted vaginally and anally, was sufficient to establish gratuitous violence beyond a reasonable doubt.

Senselessness & Helplessness: Upheld.  Fact that victim was 91 pounds, 61 inches tall and female, and was tied up, rendering her unable to escape or resist, evidenced beyond a reasonable doubt that the victim was helpless and her murder senseless.  The court repeated the Stanley principle that “the killing of a helpless child is inherently senseless and demonstrates a disregard for human life, satisfying two of the five Gretzler factors.” 

Relishing: Reversed (Not Harmless).  Because the trial court solely relied upon the testimony of the Jones’ girlfriend for evidence of relishing, a jury could have weighed the girlfriend’s testimony differently.

Witness Elimination:  Reversed (Not Harmless): Same reason as relishing.   

(F)(9) (AGE OF THE VICTIM  - victim under 15; defendant was adult)  - UPHELD
Because the jury convicted Jones not only of first degree murder, but also of kidnapping a minor under the age of fifteen and two counts of sexual assault of a minor under the age of fifteen, the trial court’s finding that (F)(9) applied was harmless beyond a reasonable doubt, since the victim’s age constituted a substantive element of each of these crimes.

MITIGATING CIRCUMSTANCES:

Found by Trial Court

  • Defendant’s “intellectual deficit”

  • Defendant’s biographical misfortune, including a dysfunctional family & upbringing

  • Good character

  • Social immaturity

  • Inability to take responsibility

  • Lack of education

  • Cultural disorientation/alienation

  • Difficult early teen years & prior home life

  • Family ties

Not Found by Trial Court

(G)(1) (SUBSTANTIAL IMPAIRMENT)

  • Residual doubt

  • Minimal participation in the crime

  • Lack of intent to kill

  • Remorse

  • Culpability of others

  • Outcome disparity

  • Ability to be rehabilitated

  • Low probability of recidivism

  • Mental health issues

Because the trial court’s decision to reject (G)(1) “rested so heavily” on his accrediting the State expert’s opinion that Jones was malingering, and discounting the defense expert’s opinion that Jones suffered from “cognitive disorder, [not] otherwise specified” which would “impair” his ability to appreciate the wrongfulness of his acts, a jury could reach a different conclusion regarding this factor.   As to the non-statutory mitigation, because all of the proffered evidence was rejected by the trial court based heavily upon an assessment of witness credibility, these findings also could not be harmless beyond a reasonable doubt.

JUDGMENTDeath Sentence Vacated and Remanded for New Jury Sentencing Hearing.


State v. (Arturo) Canez, 205 Ariz. 620, 74 P.3d 932 ( June 30, 2003 )
(Ring harmless error REVIEW)

PROCEDURAL POSTURE: Canez was convicted in Superior Court (Pima) of felony murder, first degree burglary, and two counts of armed robbery, and sentenced to death for the murder of a 77-year-old man.  On direct appeal, the Supreme Court affirmed all convictions and sentences.  See 202 Ariz. 133, 42 P.3d 564 (2002).  Because Canez’s certiorari petition to the United States Supreme Court was pending at the time that Ring II was decided, the case was remanded to the Arizona Supreme Court for harmless error analysis of Canez’s death sentence.  This is the opinion that followed.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (PRIOR SERIOUS OFFENSE)  - UPHELD
Canez had four prior felony convictions, which Canez did not contest were “serious offenses.”

(F)(5) (PECUNIARY GAIN) – REVERSED (NOT HARMLESS)
After a day of alternately purchasing and smoking crack cocaine, Canez and an accomplice drove to the 77-year-old-victim’s home, where he lived alone, and Canez knocked on the door and demanded money.   Canez forcibly entered the home and assaulted the victim by strangling, stabbing and repeatedly hitting him over the head with a frying pan.  He emptied the contents of the victim’s wallet and directed the accomplice to grab the t.v. and search for guns.  Together, the two carried out the victim’s stereo and speakers, and Canez returned into the house a last time to retrieve the victim’s electric razor before driving off in the same truck that had been spotted at the victim’s house the previous evening.  Canez hocked the t.v. and stereo in the early hours of the morning for $20 because he “needed the money.”  He soon afterwards drove around with a woman, acquired more cocaine, and smoked it.

But because the trial court’s actual finding that pecuniary gain was the motive was based largely on pre-trial statements and trial testimony of the cooperating accomplice, and that accomplice denied at trial that his pre-trial statements were true, the court could not find this factor beyond a reasonable doubt.

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – REVERSED (NOT HARMLESS)

Cruelty – Reversed (Not harmless)
Physical: Reversed (Not harmless). Because the medical examiner could not testify with certainty as to the order in which Canez inflicted the injuries upon the victim, and he stated that it was possible that the ten blunt force injuries to the head rendered the victim immediately unconscious, even given the accomplice’s testimony that the victim “squirmed” and appeared “semi-conscious” for a while, the court could not conclude that this factor had been proven beyond a reasonable doubt.

(F)(9) (AGE OF THE VICTIM: victim = / > 70 years of age & adult def.) - UPHELD
The victim’s son testified at trial that the victim was born on June 26, 1918 and it was undisputed that the crime took place on February 22, 1996 .  The son’s testimony was also corroborated by a birth certificate, photographs of the victim’s body and testimony by the coroner that the autopsy results were consistent with the body of a 77-year-old man.  This presented overwhelming evidence of the victim’s age.

MITIGATING CIRCUMSTANCES:
There was conflicting evidence presented by parties as to Canez’s IQ, which according to some sources was placed near the borderline for mental retardation, and as to Canez’s personality disorders and other brain dysfunctions.  Moreover, the court found that a reasonable jury might have reached different conclusions as to non-statutory mitigation.

JUDGMENTDeath Sentence Vacated and Remanded for New Jury Sentencing Hearing.


State v. (Wayne) Prince, 206 Ariz. 24, 75 P.3d 114 ( Aug. 26, 2003)
(Ring harmless error REVIEW) (Justice Hurwitz did not participate in this decision)

PROCEDURAL POSTURE: Prince was convicted in Superior Court (Maricopa) of first degree murder and attempted first degree murder, and was sentenced to death for killing his girlfriend’s thirteen-year-old daughter.  The convictions were affirmed on direct appeal, see 204 Ariz. 156, 61 P.3d 450 (2003), and review of the sentence was deferred to a supplemental opinion, given the intervening Ring II decision.  This is the opinion that followed.

AGGRAVATING CIRCUMSTANCES:

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED)  - REVERSED (NOT HARMLESS)

Cruelty – Reversed (Not Harmless)
Mental.  Reversed (Not harmless). After commencing a verbal and physical fight with his wife, Prince grabbed his wife’s thirteen-year-old daughter as she was trying to flee, threw her on the floor, and announced that he would kill the children and his wife, and then kill himself.  When the wife attempted to telephone the police, Prince threatened them and screamed obscenities, causing the wife to step between Prince and her daughter.  Prince punched the wife in the face, placed his gun into a pillow and fired from inches away into the daughter’s head, killing her.  He then shot his wife, who survived, and fled into hiding.  The trial court found this factor based upon the daughter’s contemplation of her fate before being shot.  The court held that “few especially cruel findings . . . are predicated solely on an inference that the victim contemplated his or her fate,” and “no witness could quantify the length of time between the point at which [the daughter] first experienced mental anguish and the moment that Prince shot [her].”  It, therefore, could not conclude beyond a reasonable doubt that no reasonable jury would fail to find this factor.

Depravity – Reversed (Not harmless)
Senselessness/Helplessness - Reversed (Not harmless):  While the court conceded that, with the killing of a child, senselessness and helplessness could be sufficient to support this factor if a parent/child relationship had existed, the scant evidence in the record as to the nature of the one-year relationship between Prince and his wife’s daughter, which could or could not have been a parent-child-type-relationship, provided doubt as to whether any reasonable jury would conclusively find this element.

(F)(9) (AGE OF THE VICTIM  - victim under 15; defendant was adult)  - UPHELD
Because there was uncontraverted testimony given at trial that the victim was born on May 16, 1984 and was thirteen at the time of the murder, and that defendant was twenty-six years old at the time of the crime, this factor was proven beyond a reasonable doubt.

MITIGATING CIRCUMSTANCES:
(G)(1) (SIGNIFICANT IMPAIRMENT) – Failure to find not harmless, given the defense testimony presented that Prince suffered from Adjustment Disorder with mixed disturbance of emotions and conduct and borderline intellectual functioning, that “significantly impaired” Prince’s ability to conform his conduct on the night of the murder.  Reasonable jurors might have found the (G)(1) statutory factor, when the trial court did not.

JUDGMENT:   Death Sentence Vacated and Remanded for New Jury Sentencing Hearing.


State v. (Leroy) Cropper, 206 Ariz. 153, 76 P.3d 424 (Sept. 5, 2003)
(Ring harmless error REVIEW) (Justice Hurwitz did not participate in this decision) 

PROCEDURAL POSTURE:
Cropper pleaded guilty in Superior Court (Maricopa) to first degree murder, conspiracy to commit first degree murder, and three counts of promoting prison contraband, and he was sentenced to death for his role in killing a prison guard.  The convictions were affirmed on direct appeal, see 205 Ariz. 181, 68 P.3d 407 (2003), and review of the death sentence was deferred to this supplemental opinion, given the intervening Ring II decision.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (PRIOR SERIOUS OFFENSE) - UPHELD
Cropper had been previously convicted of aggravated assault, a serious offense.

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – REVERSED (NOT HARMLESS)

Cruelty – Reversed (Not harmless)
Physical: Reversed (Not harmless). Cropper was placed on lock-down after a cell-search revealed contraband, including a knife and a “hit list.”  To retaliate, Cropper obtained a second knife from an inmate in a neighboring cell, and had another inmate pick the lock on his cell door.  Once freed, Cropper left his cell, walked down the hall and entered a prison control room, where Officer Lumley was sitting, unaware.  He snuck up behind Lumley and thrust the knife into his neck, partially pulled it out, then pushed it in a second time from another direction.  By the time Cropper finished, Lumley suffered a total of six stab wounds to the neck and chest, with a critical entry to one of Lumley’s lungs, and the knife was left protruding from his neck.  According to the Chief Medical Examiner, Lumley would have lived for at least five minutes and been conscious for at least three of those minutes.  A group of nerves had been severed, which would have caused suffering, but the Examiner could not quantify the amount of pain that Lumley would have felt.        

The court revisited Soto-Fong, noting that it had previously upheld two types of cases involving cruelty: (1) where the infant-victims were burned to death; and (2) where the victims were successively raped and beaten before being murdered.  The court reiterated Soto-Fong’s admonition that “where shots, stabbings, or blows are inflicted in quick succession, one of the them leading rapidly to unconsciousness, a finding of cruelty, without any additional supporting evidence, is not appropriate.”  The court concluded that this presented such a case, and that because Officer Lumley “remained conscious for a relatively short time . . . the State bore the burden of providing some additional supporting evidence of cruelty.”  Given this, the court could not conclude that no reasonable jury would have failed to find this factor beyond a reasonable doubt.

(F)(7)(a) (IN CUSTODY/ON RELEASE AT TIME OF OFFENSE) – UPHELD
Cropper did not contest the fact that he committed the murder of the prison guard while he was in the custody of the Arizona DOC.

MITIGATING CIRCUMSTANCES:
The trial court rejected all but two mitigators, including the main theory that the prison cell search caused Cropper to “relive childhood trauma, thereby forcing him into a dissociative state.”  Because the defense presented the testimony of three experts, including one neurologist, to support the theory that Cropper went into a dissociative state due to the cell search, which was caused by inherent rage against his non-protective father, the court could not say with certainty that reasonable jurors might not find this mitigating factor, or other proffered factors, and/or weigh them differently than did the trial judge.

JUDGMENT:   Death Sentence Vacated and Remanded for New Jury Sentencing Hearing.


State v. (Kajornsak) Prasertphong, 206 Ariz. 167, 76 P.3d 438 ( Sept. 15, 2003)
(RING HARMLESS ERROR REVIEW) (Justice Hurwitz did not participate in this decision)

PROCEDURAL POSTURE:  For his participation in the 1999 Tucson Pizza Hut triple-homicide, Prasertphong was convicted in Superior Court (Pima) on three counts each of first-degree felony murder and armed robbery, and was sentenced to death.  While on direct appeal, Ring II was decided.  The Supreme Court affirmed all convictions and sentences excepting the death sentence, which it left to this supplemental opinion.   See 206 Ariz. 70, 75 P.3d 675 (2003), reconsideration denied.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (PECUNIARY GAIN) – REVERSED (NOT HARMLESS)
Conflicting evidence could have permitted the jury to conclude either that the robbery occurred as a “separate event for the purpose of an [(F](5)] determination,” or that the murders resulted from a “robbery gone bad.”  This evidence included evidence supporting the defense theory that Prasertphong had been unaware of his accomplice, Huerstel’s, plan to kill the Pizza Hut employees, and that Prasertphong was a “late joiner” to the crime who acted out of “shock or panic” after the murders were committed.  While there was no dispute that Prasertphong tried to “snap” the neck of the female employee, he later told police that he could not go through with it (the employee died of additional, multiple gunshot wounds and not a broken neck).  There was also “some testimony” and ballistics evidence to support the theory that Huerstel was the only shooter.  And while Prasertphong did take the bank bag and debit card machine from the store after the three employees were killed, the cash register was left intact and one of the victim-employees was left with $340 in his pants pocket.

(F)(8) (MULTIPLE HOMICIDES) – UPHELD
“Overwhelming evidence” established that the murders occurred “during a short time, at the same place, and were part of a continuous course of criminal conduct.”  As to motivation, the court noted that Prasertphong had been convicted of felony-murder, with the underlying felony being armed robbery.  The intent to commit armed robbery satisfied the motivation element, which Prasertphong shared with his accomplice, Huerstel.  There is no mental state requirement for (F)(8), so the argument that Prasertphong did not intend to kill anyone was meritless.  No reasonable jury would have failed to find this factor.

MITIGATING CIRCUMSTANCES:  

Found by Trial Court

  • (G)(5) (AGE)  19 years old at time of crime;

  • Lack of a prior criminal record;

  • Emotional abuse suffered as a young boy;

  • Supportive family;

  • Good employment record;

  • Good courtroom demeanor;

  • Behavior in jail; &

  • Assistance in saving the life of an inmate who attempted to commit suicide.

Not Found by Trial Court

  • Minor participant in the crime;

  • Inability to foresee that his conduct would cause death;

  • Residual doubt about his participation;

  • Cooperation with the police; &

  • Remorse for the crimes.

Because a reasonable jury could have viewed Prasertphong’s mitigation evidence differently than the trial judge, the court could not conclude that the death sentence was harmless beyond a reasonable doubt.

JUDGMENTDeath Sentence Vacated and Remanded for New Jury Sentencing Hearing.


State v. (Sherman Lee) Rutledge, 206 Ariz. 172, 76 P.3d 443 (Sept. 16, 2003)
(RING HARMLESS ERROR REVIEW) (Justice Hurwitz did not participate in this decision)

PROCEDURAL POSTURE: Rutledge was convicted in Superior Court (Maricopa) of armed robbery, first-degree murder and attempted second-degree murder and was sentenced to death for killing one of two car-jacking victims in May, 1997.  On direct appeal, the Supreme Court affirmed all convictions but the death sentence.   See 205 Ariz. 7, 66 P.3d 50 (2003).  While on direct appeal, the United States Supreme Court decided Ring II.  This supplemental opinion performs the Ring harmless error analysis on Rutledge’s death sentence.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (PECUNIARY GAIN) – REVERSED (NOT HARMLESS)
A reasonable jury could have concluded that this factor did not apply, since there was no specific evidence that Rutledge’s motive was pecuniary gain when he lured the victims to a park on the pretext of obtaining drugs, then stole their new Ford Explorer.  This was in spite of the fact that one witness testified that Rutledge told her that “something is going down,” and another testified that one of the victims said, “if you want it you can have it,” apparently referring to the vehicle.  The trial judge’s conclusion that this factor was proven rested on his assessment of witness credibility and interpretation of the circumstantial evidence, and a jury could assess these factors differently.

MITIGATING CIRCUMSTANCES:
No review, since the sole aggravating circumstance was deemed not harmless.

JUDGMENT:  Death Sentence Vacated and Remanded for New Jury Sentencing Hearing.


State v. (Scott Douglas) Nordstrom, 206 Ariz. 242, 77 P.3d 40 (Sept. 24, 2003)
(RING HARMLESS ERROR REVIEW)
(Justice Hurwitz did not participate in this decision)

PROCEDURAL POSTURE: Nordstrom was convicted in Superior Court (Pima) of six counts of first-degree murder, along with other charges, for his participation in the shootings at the Moon Smoke Shop and the Firefighters Union Hall in Tucson .   On direct appeal, the Supreme Court affirmed all convictions and the death sentence.   See 200 Ariz. 229, 25 P.3d 717 (2001).  While Nordstrom was awaiting the direct appeal mandate to issue, the United States Supreme Court decided Ring II.  This supplemental opinion performs the Ring harmless error analysis on Nordstrom’s death sentence.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (PRIOR LIFE OR DEATH FELONY) - UPHELD
The murders at the Moon Smoke Shop satisfied this factor as to the Firefighters’ Union Hall murders, and the Firefighters’ Union Hall murders satisfied this factor for the Moon Smoke Shop murders.

(F)(5) (PECUNIARY GAIN) - UPHELD
Because the murders at both the Moon Smoke Shop and the Firefighters’ Union Hall occurred simultaneously with robberies of each establishment and “facilitated Nordstrom’s ability to secure pecuniary gain;” there was no evidence suggesting any motive other than pecuniary gain or a robbery gone bad; and Nordstrom conceded that the State proved the pecuniary gain aggravating factor beyond a reasonable doubt, no reasonable jury would have failed to find that this factor applied.

(F)(8) (MULTIPLE HOMICIDES) – UPHELD
Nordstrom stands “indisputedly” convicted of one or more other homicides that were committed during the commission of the offense, since he killed more than one person on each occasion.  The fact that the jury found some of the murders to be felony-murder and others to be premeditated was a distinction with no legal difference, since first-degree murder is only one crime regardless of whether it occurs as premeditated or felony-murder.

MITIGATING CIRCUMSTANCES:
The trial court found no statutory mitigation, and some non-statutory, including good employment record and caring parents and family.  Nordstrom had offered additional mitigation that was not found, including evidence of his alcohol dependence, marijuana dependence, methamphetamine abuse and two psychiatric diseases (post-traumatic stress disorder and antisocial personality disorder).  Moreover, an expert testified that there “could” be a causal connection to the commission of a violent crime and Nordstrom’s substance abuse and antisocial behavior.   Because some of the findings with respect to the mitigating factors rested on an assessment of the credibility of witnesses, the jury could have found and weighed these factors differently than did the trial court.

JUDGMENT:  Death Sentence Vacated and Remanded for New Jury Sentencing Hearing.


State v. (John Edward) Sansing, 206 Ariz. 232, 77 P.3d 30 (Sept. 24, 2003)
(RING HARMLESS ERROR REVIEW) (Justice Hurwitz did not participate in this decision) (Death sentence upheld)

PROCEDURAL POSTURE:  Sansing was convicted in Superior Court (Maricopa) of first-degree murder, kidnapping, armed robbery and sexual assault, and was sentenced to death for raping and killing a volunteer worker from the Living Springs Church who had come to his home to deliver food.  On direct appeal, the Supreme Court affirmed all convictions and the death sentence, despite the fact that it struck the (F)(5) aggravator - pecuniary gain.  See 200 Ariz. 347, 26 P.3d 1118 (2001).  While Sansing was awaiting the direct appeal mandate to issue, the United States Supreme Court decided Ring II.  This supplemental opinion performs the Ring harmless error analysis on Sansing’s death sentence.

AGGRAVATING CIRCUMSTANCES:

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

Cruelty  – Upheld
Mental:  Upheld.  It took Sansing fifteen minutes to initially attack the victim, bind her and club her into unconsciousness.  While being bound, the victim pleaded, “Lord, please help me” and “I don't want to die, but if this is the way you want me to come home, I am ready.”  He then dragged her into the bedroom and sexually assaulted her while her arms and legs were bound.  Sansing’s wife, who was present all along, heard the victim and Sansing speaking during the rape.  The rape satisfied this element, also.

Physical:  Upheld.  The victim died of three stab wounds to the abdomen, each of which were not immediately fatal.  It would have taken several minutes for the victim to bleed to death.  Moreover, the wound patterns were consistent with twisting the knife inside the victim, and Sansing’s wife testified that she saw Sansing “grind” the knife into the victim.  The medical examiner testified that the stab wounds would have caused pain.  Also, the victim’s head wound from the initial clubbing was “substantial” and resulted in a “tremendous amount of bleeding” and would have caused pain.  The rape satisfied this element, also.

“The evidence of the rape independently establishe[d] both mental and physical suffering.”

Heinous or Depraved  Upheld
Helplessness:  Upheld.  Sansing admitted to grabbing the victim, kneeing her in the back, and binding her wrists and ankles with electrical cords.  He then tied her wrists and ankles together.  No reasonable jury would have failed to find that the victim was helpless to defend herself. 

Gratuitous Violence: Upheld.  Stipulated and uncontroverted facts established that Sansing struck the victim on the head with a club using enough force to break the club into two pieces and lacerate the victim’s scalp.  He later dragged her into his bedroom and raped her while her arms and legs were bound.  At some point he blindfolded her, gagged her with a sock in her mouth, and stabbed her in the abdomen three times.  Sansing’s wife observed Sansing “grind” the knife into the victim’s abdomen. The victim was also found with ligature marks around her neck.  There was swelling and bruising on her forehead and left orbital region.  Her face and lips were swollen and her frenulum was severed, which was attributed by the medical examiner to blunt force trauma to the mouth.  In all, the “rape, facial wounds, neck ligatures, gagging, blind-folding, and grinding of the knife constitute violence beyond that necessary to kill” beyond a reasonable doubt.

MITIGATING CIRCUMSTANCES:

(G)(1) (Significant Impairment) - NOT FOUND.  Sansing presented no expert testimony to support his assertion that his use of cocaine impaired his ability to control his physical behavior during the killing.  Furthermore, Sansing took steps shortly after the murder to hide the body and the victim’s truck so as to avoid detection, and he lied to the victim’s pastor when he called Sansing inquiring after the victim; thereby negating his claim that intoxication overwhelmed his ability to control his physical behavior.

(G)(5) (AGE) – NOT FOUND.  No reasonable jury would have applied this factor.  Sansing was 31 at the time of the offense.  He was a married man with four children.

Drug Use:  While Sansing’s drug impairment qualified as a non-statutory mitigator, because Sansing failed to provide any expert testimony as to how his drug use was connected to his inability to control himself on the day of the murder, no reasonable jury would have given this factor more than minimal weight.

Troubled Childhood: While there was evidence that Sansing’s parents divorced when he was young and that he had “basically no relationship with his biological father,” and that he did not complete high school and achieved poor grades, there was no causal link between these circumstances and the crime.  Therefore, a reasonable jury could have accorded those two factors only minimal weight.

No Future Danger: Given the “shocking circumstances of this crime,” no reasonable jury could have given more than minimal weight to Sansing’s argument that he presents no future threat.

JUDGMENT:  Death Sentence Affirmed.


State v. (Danny) Montano, 206 Ariz. 296, 77 P.3d 1246 (October 21, 2003)
(RING HARMLESS ERROR REVIEW) (Justice Hurwitz did not participate in this decision)

PROCEDURAL POSTURE:  Montano was convicted in Superior Court (Pima) of first-degree murder and conspiracy to commit first-degree murder and sentenced to death for his participation in killing a fellow inmate at the Cimmaron Unit of the DOC in Tucson .  While on direct appeal, the Supreme Court decided Ring II.  The Arizona Supreme Court affirmed both the convictions and his sentence on the conspiracy charge on direct appeal, but issued a separate opinion on the death sentence.  See 204 Ariz. 413, 65 P.3d 61 (2003).   This is the opinion that followed.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (PRIOR LIFE OR DEATH FELONY) – UPHELD
Montano had two prior armed robbery convictions for which he received two concurrent life sentences.

(F)(2) (PRIOR SERIOUS OFFENSE)  - UPHELD
Montano had been previously convicted of conspiracy to commit first-degree murder.

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – REVERSED (NOT HARMLESS)

Cruelty – Reversed (Not Harmless)
Mental/Physical: Reversed (Not harmless). The victim was stabbed 179 times and was alive between one and three minutes or five and ten minutes after the first fatal stab wound, depending upon which wound was inflicted first.   According to the medical examiner, the victim would have suffered shock and then lost consciousness after losing two-to-three pints of blood.  There was testimony elicited on cross-examination that raised the possibility that the victim fell unconscious after receiving blows from either Montano or his accomplice before the stabbings began.  While the state introduced evidence that screams of pain and torture emanated from the victim’s cell after the assailants entered, his screams “also could [have] indicate[d] his reaction to the fighting taking place beforehand.”  Therefore, the court could not conclude that no reasonable jury would have failed to find this factor.

(F)(7) (IN CUSTODY)UPHELD
Montano, who was an inmate at the Cimmaron Unit of the DOC in Tucson at the time of the murder, conceded that he was in-custody at the time of committing the murder.

MITIGATING CIRCUMSTANCES:  

Found By Trial Court

  • Biographical misfortune – condition of birth;

  • Learning disability in mathematics;

  • Polysubstance abuse; &

  • Low to borderline IQ.

Not Found by Trial Court

(G)(1) (Significant Impairment);

(G)(2) (DURESS); Attention deficit hyperactivity disorder; Lack of effective intervention & treatment; Corrupt & coercive prison reality; Victim; Circumstantial evidence; Preliminary hearing testimony; Prison homicide; Potential outcome disparity; & Opinions and feelings of others.

Because some of the findings with respect to mitigation rested on a credibility assessment of the defense psychological expert witness, a reasonable jury could have assessed the mitigation differently.

JUDGMENT:  Death Sentence Vacated and Remanded for New Jury Sentencing Hearing.


State v. (Brian Jeffrey) Dann, 206 Ariz. 371, 79 P.3d 58 (October 29, 2003) 
(RING
HARMLESS ERROR REVIEW) (Justice Hurwitz did not participate in this decision)

PROCEDURAL POSTUREDann was convicted in Superior Court (Maricopa) of first-degree burglary and three counts of first-degree murder and was sentenced to death for the shooting deaths of two acquaintances along with Dann’s girlfriend.  The Arizona Supreme Court affirmed all three felony-murder convictions and one premeditated murder conviction, but reversed two of the premeditated murder convictions on direct appeal.  See 205 Ariz. 557, 74 P.3d 231 (2003).  While on direct appeal, the United States Supreme Court decided Ring II.  This supplemental opinion performs the Ring harmless error analysis on Dann’s death sentence.

AGGRAVATING CIRCUMSTANCES:

(F)(8) (MULTIPLE HOMICIDES) - UPHELD
The trial court failed to analyze the three killings under the required “temporal, spatial and motivational” relationship test.  Nevertheless, the Supreme Court found this harmless on independent review.  Here, all of Dann’s victims were killed in close proximity to one another inside the front room of an apartment where they had been seated near one another.  They were also killed “within moments of one another,” according to testimony from one witness in whom Dann confided.  Finally, the motivational requirement was shown by the “uncontroverted evidence” that Dann went to the apartment intending to kill one of the victims, and then killed the second and third victims because they were “there” and because one was simply a witness to the crime.  The court likened this case to Tucker, where the defendant intended to kill the girlfriend and killed others present to eliminate witnesses. 

MITIGATING CIRCUMSTANCES:

Found by Trial Court

  • Psychiatric issues;

  • Substance abuse; &

  • Family support.

Not Found by Trial Court

  • Abandonment;

  • Dysfunctional family;

  • Lack of stability;

  • Brain damage; &

  • Residual doubt.

Because there was conflicting evidence in the record on the issue of mitigation, the court could not conclude beyond a reasonable doubt that no rational jury would have found the same mitigation and/or given it the same weight.

JUDGMENT:  Death Sentence Vacated and Remanded for New Jury Sentencing Hearing.


State v. (Shad Daniel) Armstrong, 208 Ariz. 360, 93 P.3d 1076 ( July 15, 2004 )
(RING HARMLESS ERROR REVIEW) (Justice Hurwitz did not participate in this decision)

PROCEDURAL POSTUREIn March, 2000, Armstrong was convicted in Superior Court (Pima) on two counts of first-degree premeditated murder and one count of conspiracy to commit murder, and was sentenced to death for the murder of Armstrong’s sister and her fiancé.  On direct appeal, the court affirmed Armstrong’s convictions.  See 208 Ariz. 345, 93 P.3d 1061 (2004) (the delay is accounted for by the court’s decision to hold the case in abeyance pending the Supreme Court’s consideration of a certiorari petition filed in State v. Pandeli, 204 Ariz. 569, 65 P.3d 950 (2003), cert. denied, 540 U.S. 962 (2003)).  The court issued this separate opinion to perform the Ring harmless error analysis on Armstrong’s death sentence.

AGGRAVATING CIRCUMSTANCES:

(F)(5)  (PECUNIARY GAIN)  - REVERSED (NOT HARMLESS)
The fact that Armstrong had engaged in discussions with his co-conspirator before the murders concerning the taking of the victims’ property, and he then took property from both victims after killing them, created a plausible inference that pecuniary gain was a motive for the murder, but it was not the only inference, and reasonable jurors could have concluded differently.  This is particularly so since there was another major motivation for killing his sister: to keep her from telling the authorities about Armstrong’s prior criminal activity.

(F)(8) (MULTIPLE HOMICIDES) – UPHELD
Spatial and temporal: Armstrong killed both victims “within seconds of one another” inside a trailer while the two victims sat near each other in the living room.  Armstrong walked into the room, shot Victim 1 in the chest, then turned and “immediately” shot victim 2 once in the chest and once in the head, and then turned back again to Victim 1 and shot him in the head.   Motivational: It was sufficient that the same motivation for killing Victim 2 – preventing Victim 2 from alerting the authorities as to his whereabouts - was “inextricably intertwined” with an additional motivation for killing Victim 1 - sheer hatred of Victim 1 (Victim 2’s fiancé).  The shared motive – avoiding a return to prison – was sufficient, and it need not have been the sole motivation for killing both victims; it need only have been “related.”

MITIGATING CIRCUMSTANCES:

Found by Trial Court

  • Difficult Childhood;

  • Completion of GED during previous imprisonment;

  • Efforts at rehabilitation during previous imprisonment;

  • No history of violence other than the murders;

  • Death sentence would affect defendant’s children;

  • Good behavior while incarcerated; &

  • Caring parent.

Not Found by Trial Court

(G)(1) (Significant Impairment);

(G)(2) (DURESS);

Diabetes; Duress; Anti-social personality disorder; Mood disorder; Stress; Defendant had a history or substance abuse; Troubled, abusive family; Good employment history; Supported his family; Lack of future dangerousness; Sentence disparity with co-conspirator; & Overall disproportionality of the sentence.

Because there was conflicting evidence in the record regarding mitigation, a reasonable jury might have found different mitigation or weighed it differently.

JUDGMENT:  Death Sentence Vacated and Remanded for New Jury Sentencing Trial.


State v. (Robert Joe) Moody, 208 Ariz. 424, 94 P.3d 1119 ( August 9, 2004 )
(RING HARMLESS ERROR REVIEW) (Justice Hurwitz recused himself; Judge Weisberg of Division One sat by designation).

PROCEDURAL POSTUREIn 2001, Moody was convicted for the second time in Superior Court (Pima) on two counts of first-degree murder and sentenced to death for killing two women on two separate occasions.   This is his direct appeal.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (PRIOR LIFE OR DEATH FELONY) – UPHELD
Moody was tried for killing two women within the span of one month.  The jury’s verdict of guilt on the first-degree murder charge for killing the first victim supported applying this factor as to the second, and the jury verdict of guilt for killing the second victim supported applying this factor to the first.  The court re-affirmed that the “order of the crimes or convictions themselves is not important.”

(F)(5)  (PECUNIARY GAIN)  - REVERSED (NOT HARMLESS)

Victim 1: Moody accosted the victim with a knife, cut her, and forced her into her home office where he emptied her purse and took cash, a checkbook and some credit cards.  He then ordered the victim to write a check for $500 twice, since the first became smeared with blood.  He then bound her, beat her, and shot her repeatedly with a .22 caliber rifle, reloading each time.

Victim 2: Moody bound the victim and took cash and credit cards from her purse, then demanded the victim’s PIN number.  After she gave him a number, he bound her further, covered her with a rug and weighted her down with a chair.  He drove the victim’s car to the bank and unsuccessfully attempted to withdraw money.  When he returned, he again demanded the PIN, went back to the bank, and withdrew $300.  He returned, slit the victim’s throat, stabbed her in the back and bludgeoned her to death with hedge clippers.  Moody then removed the bindings, wrapped them in a towel, and left in the victim’s car.

The court concluded that in spite of these uncontroverted events, because there was “substantial evidence” at trial that Moody had used “massive amounts” of cocaine at some time before the murders and that heavy cocaine use can lead to violent behavior, and there was evidence that a small t.v., a microwave, jewelry, and cocaine were left behind at one of the murder sense, it could not conclude that no reasonable jury would have failed to find this factor beyond a reasonable doubt.  The court noted that it was a “plausible inference” to draw that Moody had a pecuniary motive to murder the victims, but it was not “the only reasonable inference” that could be drawn.

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – (NOT HARMLESS)
Overall, the (F)(6) factor depends on the defendant’s state of mind and the assessment of sometimes conflicting facts.  Because Moody’s mental state was “hotly contested” throughout trial and sentencing, the court could not conclude that no reasonable jury would have failed to find this factor beyond a reasonable doubt.

Cruelty – Reversed (Not Harmless)
Mental/Physical.  Reversed (Not Harmless).  Victim 1:  Victim 1 was Moody’s ex-girlfriend.  She  was cut with a kitchen knife, bludgeoned with a bb gun, and shot several times with a .22 caliber rifle.  She had a defensive wound on her hand, a broken fingernail, and a lost contact lens.  In addition, there was blood through the house and Moody admitted that there was a “violent struggle” before Moody subdued her by tying her into a chair.  Victim 2:  Moody tied her up with such force that marks were left on her arms and wrists.  During Moody’s trips to the bank, the victim suffered physical anguish and mental anguish over her fate.  As to both: Because there was some evidence that Moody was in a disassociated state due to psychosis, drug impairment, or both, the court could not conclude beyond a reasonable doubt that a jury would have found that Moody knew or should have known that the victims were actually suffering.

Heinous or Depraved –  Reversed (Not harmless)
Gratuitous violence: Reversed (Not harmless).  Because no expert could pinpoint exactly which injuries caused the death of each victim and the State never attempted to establish that Moody knew which shots or blows cause each death, the court could not conclude beyond a reasonable doubt that any reasonable jury would find this element.

Senselessness/Helplessness: Upheld, but with gratuitous violence gone, neither senselessness nor helplessness, alone or together, could support a finding of heinousness or depravity.

MITIGATING CIRCUMSTANCES:

Found by Trial Court

  • Lack of criminal record;

  • Good character in professional life;

  • Military service; &

  • Lack of prior violent history.

Not Found by Trial Court

(G)(1) (SUBSTANTIAL IMPAIRMENT);

  • Good character for parenting;

  • Psychosocial stressors;

  • Cocaine use & addiction;

  • Nonviolent character;

  • Correlation between physical abuse as a child & subsequent abuse as an adult;

  • Inability to appreciate the nature & consequences of his actions &

  • Nonviolent, law-abiding character.

Because a jury could have weighed Moody’s evidence of drug use and mental impairment differently against the remaining aggravators, this was remanded.

JUDGMENT:  Death Sentence Vacated and Remanded for New Jury Sentencing Trial.


State v. (Michael Joe) Murdaugh, 209 Ariz. 19, 97 P.3d 844 ( September 15, 2004 )
(RING HARMLESS ERROR REVIEW)
(Justice Hurwitz recused himself; Judge Espinosa of Division Two sat by designation) (Death penalty upheld)

PROCEDURAL POSTUREIn 2000, Murdaugh pleaded guilty in Superior Court (Maricopa) to kidnapping, robbery and first-degree murder and was sentenced to death for killing a man whom Murdaugh learned had propositioned his girlfriend.  This is his direct appeal.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (PRIOR LIFE OR DEATH FELONY) – UPHELD
On the same day that Murdaugh pleaded guilty to the kidnapping and murder in this case, he pleaded guilty to the kidnapping and first-degree murder of another man (who was killed in a similar fashion).  At his plea hearing, Murdaugh acknowledged that his conviction for the second murder could be used as an aggravating factor in the present case.

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

Heinous or DepravedUPHELD
The Court reiterated the use of the Webster’s Third New International Dictionary definitions for heinous and depraved.  “Heinous” means “hatefully or shockingly evil: grossly bad;” “depravity” means “marked by debasement, corruption, perversion or deterioration.” 

Relishing – Reversed (Not Harmless).  Murdaugh’s girlfriend had informed Murdaugh that the victim had propositioned her that day at a gas station.  Murdaugh decided to teach him a “lesson” by inviting him to “party” and then breaking his jaw.  After the victim had been at his house for approximately 15 minutes, Murdaugh and an accomplice burst in with guns, yelled at him, then robbed him.  Later, Murdaugh ordered the victim into a car trunk and went off to do drugs with his friends.  The following morning, Murdaugh bludgeoned the victim to death with a jack-hammer spike, then disposed of the victim’s body, possessions and van.  The court rejected the trial judge’s conclusion that Murdaugh had “reveled in the idea of meting out his own justice and enjoyed the spectacle it created in front of his friends,” because it found no evidence that Murdaugh did or said anything, beyond the commission of the crime itself, that manifested that he “savored the murder.”  For this reason, the court could not conclude that no reasonable jury would have failed to find this factor beyond a reasonable doubt.

Mutilation – Upheld.  After killing the victim, Murdaugh severed the hands and head from the torso, extracted the teeth and cut off all of the finger pads, disposing of all parts separately for the sole purpose of avoiding detection and/or identification of the body by the authorities.  This showed that Murdaugh acted in a depraved manner.  Note: Justice Berch dissented on this point and argued that mutilation of a body for the sole purpose of avoiding detection is not really “needless.”

Senselessness/Helplessness – Upheld.   Senselessness: Murdaugh’s stated purpose at the outset of the crime was to break the victim’s jaw, and this could have been accomplished with one blow to the head.  The murder was not necessary to achieve Murdaugh’s stated goal of teaching the victim a “lesson.”  Helplessness:  When Murdaugh and his accomplice entered the house to find the victim, they were both armed.  The victim was “unarmed and outnumbered.”  The victim made no attempt to resist, but sat on the couch as Murdaugh yelled at him and robbed him.  He was also helpless when he was escorted to the garage by the two armed men who “flanked” either side of him.

MITIGATING CIRCUMSTANCES:

(G)(1) - (SUBSTANTIAL IMPAIRMENT)
The primary factor at issue was (G)(1) – the defendant’s capacity to appreciate the wrongfulness of his actions and conform his conduct based upon Murdaugh’s extensive use of methamphetamines, both prior the date of the murder and on the date of the murder.  The trial court considered defense expert testimony that Murdaugh evinced “various paranoid thoughts” featuring the belief that the government had placed a tracking device in his head.  The expert testified that Murdaugh also suffered from a personality disorder which may have been “amplified” by the methamphetamine use.  Counterbalancing this was significant evidence that Murdaugh took actions to cover up the crime and avoid detection.  He dismembered the body, taking care to remove the identifying teeth and finger pads and scattering them.  He dismembered the body and buried the parts separately.  He had others clean up the bloody garage where the murder was committed, and he attempted to sanitize and dispose of the victim’s van.   When Murdaugh  learned that he was being tracked through the victim’s cell phone, he broke it into pieces and buried it.  Murdaugh also had the presence of mind to seek medical treatment when he received an injury cleaning his horse’s hoof after burying the victim’s body.

From this, the Supreme Court concluded that there was both a “complete lack of evidence of a causal connection between Murdaugh’s drug use and the murder” and there was evidence that Murdaugh made “numerous efforts to avoid detection.”  As a result, no rationale jury would have found that Murdaugh established the (G)(1) mitigating circumstance.

Impairment from the use of crystal methamphetamine at the time of the offense;
Impairment from chronic drug use;
Personality disorder;
Paranoid thoughts;
Potential impact of all four on Murdaugh’s mental abilities.
These were accorded little weight because of the fact that “no mental health professional found a causal nexus between these conditions and the murder.”
Cooperation with law enforcement;
Lack of prior criminal history; &
Murdaugh’s desire to spare his family and victim’s family from the pain
of a trial by pleading guilty. 
These were also accorded very little weight.

JUDGMENT: Convictions and Death Sentence Affirmed.


State v. (Albert Martinez) Carreon, 210 Ariz. 54, 107 P.3d 900, (February 25, 2005)
(Death penalty upheld) Jury Trial/Indep. Review

PROCEDURAL POSTURECarreon was convicted in Superior Court (Maricopa) of first-degree murder, attempted first-degree murder, two counts of endangerment and misconduct involving weapons and sentenced to death for the murder of an acquaintance in his home in January, 2001.  This is Carreon’s direct appeal.

AGGRAVATING CIRCUMSTANCES:

(F)(2)  (PRIOR SERIOUS OFFENSE)  - UPHELD
There was “documentation” that Carreon had been previously convicted and sentenced for kidnapping and aggravated assault.  Because the defense stipulated to this information, the State offered no further evidence.   This documentation sufficed in light of the stipulation, especially because the documents provided “a sufficient basis to identify Carreon as the person referred to in the documents.”

(F)(3) (GRAVE RISK OF DEATH TO ANOTHER) – REVERSED
Carreon killed the unsuspecting victim while he reclined in an easy chair.  He then turned the gun upon the victim’s girlfriend, who fled down the apartment hallway towards the room in which her two young children were sleeping.  The girlfriend sustained three gunshot wounds and was left for dead, but survived.  The trial judge allowed this factor to go to the jury based upon the shots that were fired at the girlfriend and which were directed towards the room where the children were sleeping.  In fact, one of the bullets ultimately lodged in the door jamb to the children’s room.  The Supreme Court reversed on the grounds that there was legally insufficient evidence to send this to the jury.  The court held the “zone of danger” analysis applies only the “murderous act itself” and not to any other non-capital victims.  Because Carreon had shot in the opposite direction from the children’s room when he killed the victim, the children were “present” but not in the “zone of danger.”  Notably, the court did uphold Carreon’s convictions for endangerment based upon the court’s conclusion that Carreon had put the children in “actual substantial risk of imminent death.”  But this finding on endangerment had no bearing on the (F)(3) analysis.

(F)(5) (PECUNIARY GAIN) – REVERSED
Evidence showed that Carreon killed the victim because he was a “snitch” and that two other acquaintances of Carreon wanted the victim dead on this account.  On the day before the murder, Carreon came to the victim’s home and requested a loan of $100 so that he could pay his rent.  The following day - the day after the murder - Carreon was apprehended in front of the home of one of the men who wanted the victim dead, and Carreon had just over $1,000 in his pocket.  The court found that the mere fact that Carreon was “destitute one day and possessed more than $1,000 the next” was insufficient to support application of the (F)(5) factor.  Where a third party allegedly directs the killing, as in this case, there must be “direct evidence” of payment and a “direct connection” between the defendant and his purported employer.

(F)(7) (WHILE ON AUTHORIZED OR NON-AUTHORIZED RELEASE) – UPHELD
There was documentation that Carreon was on authorized release from the DOC at the time that he committed the murder and that Carreon was the person identified in the DOC documents.  No further discussion provided.

MITIGATING CIRCUMSTANCES:

(G)(1) (SUBSTANTIAL IMPAIRMENT) – NOT FOUND
Because Carreon failed to present any “substantial evidence of impairment” on the day of the crime, this factor did not apply.

Drug Impairment:  Not found.  Carreon failed to present any evidence that he was under the influence of drugs or alcohol on the night of the murder.

Troubled ChildhoodDe minimus value.  No discussion.

JUDGMENT:  Convictions and Death Sentence Affirmed.


State v. (Frank Winfield) Anderson, 210 Ariz. 327, 111P.3d 639 ( 2005)
(Death penalty upheld) Jury Trial/Indep. Review


PROCEDURAL POSTURE
: Anderson was convicted in 1998 in Superior Court (Mohave) of armed robbery, conspiracy to commit first-degree murder, and three counts of first-degree murder.  His convictions were overturned on direct appeal due to jury selection error.  See State v. Anderson , 197 Ariz. 314, 4 P.3d 369 (2000).  On remand, he was retried, convicted on the same counts, and sentenced by a jury to three death sentences.  This is Anderson’s direct appeal.

AGGRAVATING CIRCUMSTANCES
:

(F)(5) (PECUNIARY VALUE) – UPHELD

The evidence showed that in 1996, Anderson, his fourteen-year-old girlfriend, and 19-year-old Bobby Poyson, executed a common plan to kill three residents of the Kagen home located in Golden Valley, in order to steal a truck belonging to one of the victims.  Those killed included Mrs. Kagen, her 15-year-old son, Robert, and the truck’s owner, Roland Wear.

The court found that the fact that two of the three victims were left with jewelry on their person after they were killed, and that the objective was only to steal Roland Wear’s truck, did not negate finding (F)(5) as to all of the victims.  The evidence showed that Mrs. Kagen and her son were killed so that Anderson and his accomplices could obtain the truck belonging to Wear and leave no witnesses.  “Unlike robbery, the pecuniary gain aggravator does not require that property be taken from each victim, but rather only that a murder be prompted by the desire for pecuniary gain.”

Moreover, it was not duplicitous to find the pecuniary gain aggravator when the defendant had been convicted of felony-murder based upon the felony of armed robbery.  While armed robbery requires proof of a “taking of property from the victim,” (F)(5) requires proof that the defendant’s “motivation [for the murder] was the expectation of pecuniary gain.”

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – DISCARDED - due to the jury’s general verdict on this factor, where the AZ Supreme Court found insufficient evidence on independent review of the heinousness/depravity sub-factor and could not determine from the general verdict if the jury had been unanimous on either heinousness/depravity or cruelty, or both)

Facts: 14-year-old Kimberly Lane lured Robert into a trailer on the rear of the property and while the two kissed, Anderson grabbed Robert and sliced his throat with a knife.  The two struggled, and Kimberly exited the trailer, allowing Poyson to enter.  Anderson eventually placed the tip of the knife in Robert’s ear and held him while Poyson pounded the knife until the tip emerged through Robert’s nose.  Poyson then beat Robert’s head with a rock until he died.  The three then returned to the Kagen trailer home, where Leta and Roland Wear were already asleep.  At approximately midnight, Poyson took a rifle from the home and accompanied Anderson into the bedroom where the two intended victims lay sleeping.  Poyson shot Kagen, killing her almost instantly.  He fired again, hitting Wear in the jaw.  When Wear jumped from the bed, Poyson hit him over the head with the butt of the rifle and Anderson hit him with a lantern, which shattered.  Wear managed to flee outside, but was overtaken and beaten to death by Poyson with a cinder block provided by Anderson.

Vicarious Liability:  Not Applicable.  Anderson did not actually kill the victims.  But because he was present and “actively participated in the [murders] for which the aggravator was found, by slitting the first victim’s throat and holding him down while his co-conspirator administered the fatal knife wound, and hitting the third victim and handing his accomplice the weapon by which the fatal blows were inflicted, the (F)(6) finding was not based upon the prohibited theory of “vicarious liability.”

Heinous or Depraved – Not Found.

Mutilation - Not Found.

Relishing - Not Found.

Gratuitous Violence – Not Found. The court conceded that in the cases of Robert and Wear, gratuitous violence was a “closer question.”  Both Robert and Wear were subjected to “prolonged and varied attacks before they succumbed. [Robert] had his throat slashed, a knife pounded into his ear, and his head beaten with a rock.  Wear was shot through the jaw, hit over the head with a rifle butt and a lantern, and then killed by blows to the head from a cinder block.  While these multiple attacks were reprehensible, they d[id] not meet the (F)(6) test of gratuitous violence.  Each attack came in an attempt – albeit clumsy – to kill the victim, not to engage in violence beyond that necessary to kill.”

Cruelty FOUND (but discarded due to the jury’s general verdict and the State’s failure to argue that the Court’s independent finding on cruelty could support upholding the (F)(6) factor)

The evidence showed that Robert and Wear “experienced pain and suffering during the prolonged attacks against them.”

(F)(8) (MULTIPLE HOMICIDES) – UPHELD

The three homicides met the (F)(8) requirement that the killings be temporally, spatially and motivationally related, where the murders occurred within five hours of one another, they were all committed on the same residential property (even though in different locations on the property), and the motivation for each killing was the same: a desire to steal the third victim’s truck and to leave no witnesses behind to report the crime.

MITIGATING CIRCUMSTANCES (NOT SUFFICIENTLY SUBSTANTIAL):

(G)(2) (DURESS) – NOT FOUND

The court found no “credible” evidence that Anderson feared 19-year-old Bobby Poyson and was coerced by him into committing the murders.

(G)(3) (MINOR PARTICIPATION) – NOT FOUND

Given Anderson’s “substantial role in each of the murders,” the court rejected the characterization of his participation as “minor.”

TROUBLED CHILDHOOD – LITTLE WEIGHT

Anderson’s childhood troubles did not explain his decision, “decades later at age forty-eight, to kill three innocent people to steal a pickup.”

FOLLOWER-TYPE PERSONALITY/LOW IQ – LITTLE WEIGHT

While there was evidence that Anderson’s I.Q. was below average and that he did not have a leader-type personality, this was accorded very little weight, since Anderson was “not mentally retarded, unable to make his own decisions, or lacking in the capacity to judge right from wrong.”

LENIENT SENTENCE RECEIVED BY 14-YEAR-OLD ACCOMPLICE – NOT FOUND

Kimberly Lane received an eight-year-sentence for her participation in the crimes, pursuant to a plea agreement.  This disparity was not unexplained, however, since her involvement in the murders was “far less substantial than Anderson’s and she was but fourteen years old at the time of the murders.”

COOPERATION WITH POLICE – LITTLE WEIGHT

Anderson’s cooperation with the police was “limited” and could not be viewed as “substantial mitigation.”  He was interviewed three times by the police; at first he denied any involvement and by the third interview, he confessed his participation in the crimes.

GOOD RECORD AS INMATE – LITTLE WEIGHT

There was evidence that Anderson had been a “model inmate.”  Laudable, but insufficient to call for leniency.

CHRISTIAN MINISTRY WHILE INCARCERATED – LITTLE WEIGHT

There was evidence that Anderson had made efforts to assist fellow inmates through his Christian ministry.  Laudable, but insufficient to call for leniency.

JUDGMENT: Convictions Affirmed; Death Sentences Affirmed; Blakely issue regarding aggravated sentences on non-capital felonies left for a supplemental opinion.


State v. (Homer Ray) Roseberry, 210 Ariz. 360, 111 P.3d 402 (2005)
(Death penalty upheld) Jury Trial/Indep. Review

PROCEDURAL POSTURE:  Roseberry was convicted (either in late 2002 or early 2003) in Superior Court (Yavapai) of transportation of marijuana for sale, conspiracy to transport marijuana for sale, and first-degree murder, and the jury sentenced him to death in June, 2003, after a six-month delay between the aggravation and penalty phases.  This is his direct appeal.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (PECUNIARY VALUE) – UPHELD

The court found that pecuniary motive in this case was “well supported.”  The evidence showed that in 1998, Roseberry began transporting marijuana for members of a drug-smuggling ring known as the Pembertons because Roseberry and his wife needed the money.  In early October of 2000, Roseberry agreed to transport more than one thousand pounds of marijuana in his motorhome.  The Pembertons told him that to guarantee the safety of the shipment, a man named Fred Fottler would accompany him on the trip.  The marijuana was loaded into the RV in Phoenix, and the two men set off.  Roseberry, however, had conspired with a friend, Charles Dvoracek, to aid him in stealing the shipment for themselves, and Dvoracek was poised at a Wickenburg restaurant stop, ready to steal the RV when Roseberry and Fottler stopped to eat.  But instead of stopping at the restaurant, Roseberry pulled over onto the shoulder of the road and shot Fottler twice in the head.  Roseberry exited the motorhome and told Dvoracek that he had decided to kill Fottler when he unexpectedly dozed off on the sofa.  Upon hearing “gurgling sounds,” Roseberry returned to the RV and shot Fottler a third time.  The two men then disposed of the body in a gully off of the roadway, discarded the weapon, and transferred some of the marijuana into Dvoracek’s vehicle.  Roseberry returned to his home in Nevada with the stash and confessed to his wife what he had done.  She immediately arranged for two drug dealers from Indiana to fly in and purchase some of the marijuana.  Roseberry and Dvoracek split all of the proceeds.

Aside from this evidence, the Supreme Court noted that that additional pecuniary gain motive could be gleaned from the fact that “Roseberry and his co-conspirators wasted no time in setting up a deal to sell some of the marijuana.  Indeed, they called [the brother of Roseberry’s wife, who connected Roseberry with the Indiana drug-buyers], the very day Fottler was killed.  Moreover, there was no other discernable reason for Roseberry to kill Fottler other than to secure the marijuana.  There was no evidence that the men had even met prior to the drug run, nor was there evidence that Roseberry harbored any animus toward Fottler.

MITIGATING CIRCUMSTANCES:  Not Discussed.

Not Discussed.


JUDGMENT
:  Convictions and Death Sentence Affirmed.


 

State v. (Christopher George Theodore) Lamar, 210 Ariz. 571, 115 P.3d 611 (July 8, 2005)
(RING HARMLESS ERROR REVIEW) (Justice Hurwitz recused himself)

PROCEDURAL POSTURE:Lamar was convicted in December, 1999, in Superior Court (Maricopa) of kidnapping and first degree murder, and the trial judge sentenced him to death. His convictions were affirmed on direct appeal, State v. Lamar, 205 Ariz. 431, 72 P.3d 831 (2003), but review of the sentences was deferred to this supplemental opinion.

Note: The Court expressly relied upon its own more detailed factual findings made in the court’s 2003 opinion, see Lamar, 210 Ariz. at __, ¶4, n.1, 115 P.3d at 613, and the recitation of facts below are largely drawn from that first Lamar opinion.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (PECUNIARY VALUE)- REVERSED (NOT HARMLESS)

Lamar and his accomplices planned to rob and “rough up” the victim, who was an acquaintance of Lamar’s. “The purpose of the plan was twofold: to steal Jones's money and possessions so they could pay rent and to ‘rough him up a little bit’ so he would stop spending time with [Lamar’s girlfriend].” Lamar arranged to have lunch with the victim, and when the two returned to Lamar’s residence, the accomplices awaited them; one with a gun. The victim was punched, bound, gagged, and held hostage for a number of hours until it grew dark. He was robbed of his shoes, jewelry, $50, and some crack cocaine; then driven to a vacant lot, shot twice and dumped inside his car trunk. Lamar and the accomplices took a cellular telephone, a radio, a CD player, a toolbox and a tool belt from the victim’s car; then pushed the car to a nearby gravel pit, dug a hole and buried the victim’s body. The car was then burned.

The Court accepted the State’s concession that a “reasonable fact finder” could reach a conclusion other than that the killing was motivated by the robbery of the victim and the theft of money and/or drugs.

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) - (NOT ADDRESSED)

Presumably, because the Court was reversing on (F)(5) and mitigation, it found it unnecessary to address (F)(6).

(F)(7) (WHILE ON AUTHORIZED OR NON-AUTHORIZED RELEASE)-UPHELD (HARMLESS)

The fact that Lamar was on supervised release status from the Federal Bureau of Prisons for his conviction for possession with intent to distribute cocaine, qualified for application of the (F)(7)(a) factor. “Because the Federal Bureau of Prisons falls within the Department of Justice and because the Department of Justice is a ‘law enforcement agency,’ it follows that the Federal Bureau of Prisons is a ‘law enforcement agency’ under the terms of A.R.S. § 13-751.F.7.”  ¶15. The court deduced that it was not the legislature’s intent to punish more severely individuals on release from state correctional institutions than those on release from the Federal Bureau of Prisons.

(F)(7) is not exempt from the Ring requirement that aggravators be found by a jury. The court reasoned that “[i]n contrast to situations involving the F.1 and F.2 aggravating circumstances, no jury has found the underlying facts necessary to establish the F.7 aggravating circumstance.  A dispute may arise as to whether the individual who committed the offense was in custody at the time of the offense due to questions as to the date(s) of the offense(s) in relationship to the date of custody or release.” ¶18.

In this case it was harmless, since Lamar presented no evidence or argument that contradicted either the testimony of the State’s witness – a supervisor for the U.S. Probation Department – or the documentation submitted by the State corroborating the supervisor’s testimony.

MITIGATING CIRCUMSTANCES:

Found by the Trial Court

Non statutory mental health issues;
Dysfunctional family;
Good character.

Not Found by Trial Court

(G)(1) – Significant Impairment;
Residual doubt;
Acting under the influence of drug &/or alcohol;
Ability to be rehabilitated;
Culpability of others/sentencing disparity.

Because a jury could have given more weight to the defense expert’s testimony and opinion concerning Lamar’s brain function impairment and weighted the mitigation against the aggravators differently, the sentence was vacated and the case remanded.

JUDGMENT:Death Sentence Vacated and Remanded for New Jury Sentencing Trial.


State v. (Richard J.) Glassel, 211 Ariz. 33, 116 P.3d 1193 (August 10, 2005)
(Death penalty upheld) Jury Trial/Indep. Review

PROCEDURAL POSTURE:Glassel was convicted in December, 2002, in Superior Court (Maricopa) of two counts of first degree murder and thirty counts of attempted first degree murder, and the jury sentenced him to death.This is his direct appeal.

AGGRAVATING CIRCUMSTANCES:

(F)(8) (MULTIPLE HOMICIDES) – UPHELD

In April, 2000, 61-year-old Glassel stormed a homeowners association board meeting at Ventana Lakes armed with an AR-15 assault rifle, two 9-millimeter pistols and a .22 caliber pistol.  He fired off 8 pistol shots in rapid succession, then let off two more rounds.  When finally subdued, he had killed two people and wounded three others.   When asked why he had done the shooting, Glassel responded, “I did it to get even, you f—king sons-of-bitches,” or “They f—ked me long enough.  I’m getting even.”  This aggravating factor was uncontested on appeal; therefore, there is no analysis of the spatial, temporal and motivational relationship.

Ed. note: Given the fact that the victims were killed within minutes of each other within the confines of the same room, and they were, by the defendant’s on-the-scene admission, all killed for the same reason, the 3-pronged time/space/motivational requirement was evidently extant.

MITIGATING CIRCUMSTANCES:
On independent review, the court appeared to find evidence of three mitigating factors:

Age (61 at time of crime);
Lack of criminal history; and
Lack of prior violent crimes
.

However, these mitigating circumstances were found to be not sufficiently substantial to call for leniency in light of the one aggravating factor. The court noted that, as it had done in the past, it was focusing on the “quality not the quantity, of the proven aggravating and mitigating factors.” ¶94.

JUDGMENT:Death Sentence Upheld.


State v. (Robert Louis) Cromwell 211 Ariz. 181, 119 P.3d 448 (2005)
(Death penalty upheld) Jury Trial/Indep. Review

PROCEDURAL POSTURE: Cromwell was convicted in February, 2003, in Superior Court (Maricopa), of the sexual assault and murder of an eleven-year-old girl, and the jury sentenced him to death.  He was also convicted of two counts of aggravated assault committed against the girl’s mother and the mother’s friend.  This is his direct appeal.

AGGRAVATING CIRCUMSTANCES:

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

Cruelty – Upheld

Mental:  Upheld.  Cromwell had met the victim’s mother that day as she walked to a store near to her apartment.  The mother invited Cromwell to her apartment, which she shared with three daughters.  The five all went out to eat together, then returned to the apartment, where the mother smoked some methamphetamine.  Cromwell and the mother went out to a number of local bars so that the mother could fill out job applications and play some pool.  They returned to the apartment and played cards until the mother received a call from a friend asking her to come to his house and settle a domestic dispute.  The mother agreed and left her girls with Cromwell because he “seemed so nice.”  Cromwell then raped the eldest daughter, 11-year-old-Stephanie, stabbed her thirteen times in the back and inflicted five blows to her head, including throwing a television set on top of her.  Nine-year-old Amanda heard Stephanie crying at some point during the events, and saw Stephanie standing naked in a bathtub while Cromwell washed her down with wet socks.  When the mother and a female friend returned, Cromwell rushed them, attacked them with a pool cue until the cue broke in two, and fled.  Stephanie was faintly alive when the first officer arrived on the scene, but died by the time paramedics arrived.  The medical examiner testified that Stephanie was alive when she suffered the vaginal trauma and received the stabbing injuries.

The court appeared almost at a loss for words, stating that the record was “replete” with evidence of cruelty.  The court found that Stephanie “unquestionably suffered unspeakable mental anguish” based upon the medical examiner’s testimony that Stephanie was alive at the time of the sexual assault and the stabbings.  The court concluded that “given her tender age, [she] was made to suffer pre-death anguish by conduct indescribable except in the most repulsive terms.”

(F)(9) (AGE OF THE VICTIM – victim was under 15; defendant was an adult) – UPHELD

Uncontested.  The victim was 11 years old.

MITIGATING CIRCUMSTANCES:

The court independently found:

Less than adequate Childhood experiences;” and

Mental state.

These were deemed to be “remarkably weak” and of “inconsequential weight.

JUDGMENT:  

Death Sentence Upheld.


State v. (Steven Ray) Newell, 212 Ariz. 389, 132 P.3d 833 (2006)
(Death penalty upheld) Jury Trial/Indep. Review

PROCEDURAL POSTURE
: Newell was convicted in February 2004, in Superior Court (Maricopa), of the kidnapping, sexual assault and murder of an eight-year-old girl, and the jury sentenced him to death. This is his direct appeal.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (PRIOR SERIOUS OFFENSE)  - UPHELD

This was found to be “undisputed,” as Newell’s prior conviction for attempted kidnapping established that he had a serious prior felony conviction.

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

Cruelty – Upheld

Mental and Physical:  There was “substantial evidence” to support this prong, where the victim had bruising that occurred at or near the time of her death and the bruises were consistent with grasping the victim’s arms and sexually assaulting her; and where it normally takes two minutes to die by asphyxiation and marks indicated that the victim grasped at the ligature around her neck.  “Elizabeth suffered serious physical and mental anguish before she died.  Newell should have known that such suffering would occur.”

(F)(9) (AGE OF THE VICTIM – victim was under 15; defendant was an adult) – UPHELD

This was deemed “undisputed,” as the victim was 8-years-old and Newell was an adult.

MITIGATING CIRCUMSTANCES:

The court independently found:

Unstable Childhood
Sexual & physical abuse as a child
Extensive drug use

Not sufficiently substantial.  “No evidence explains how Newell’s drug addiction and unstable childhood led to the sexual assault and murder of eight-year-old Elizabeth.”

JUDGMENT
:  Death Sentence Upheld.


State v. (Ruben Myran) Johnson, 212 Ariz. 425, 133 P.3d 735 (2006)
(Death penalty upheld) Jury Trial/Indep. Review

PROCEDURAL POSTURE: Johnson, a member of the LPC Gang, murdered a witness to a robbery committed by both Johnson and a fellow gang member, just before the preliminary hearing on the matter was to take place.  Johnson and a second gang member broke into the witness’s home at night, and Johnson shot her in the head as she hid in a bedroom with her four-year-old son.  Johnson was convicted in December, 2003, in Superior Court (Maricopa), of first degree murder, assisting a criminal gang, first degree burglary, and armed robbery.  This is his direct appeal.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (PRIOR SERIOUS OFFENSE)  - UPHELD
Johnson did not dispute his prior conviction for armed robbery.

(F)(3) (GRAVE RISK OF DEATH TO ANOTHER) – UPHELD

“Substantial evidence” supported this factor.  It was “clear” that any potential risk to the 4-year-old child took place during the “murderous act itself,” because the child was in the same room as the victim at the time that she was shot.  It was also evidence that Johnson did not intend to kill the child; his motive as stated when he entered the home was to get “the bitch.”  Finally, the child was clearly in the zone of danger, since the room was 10 feet by 10 feet in size and the child was so close to his mother as to be spattered with her blood when she was shot.

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

Heinous/Depraved – Upheld

Witness Elimination: (New Rule) Because there was evidence that Johnson killed the victim because she was a witness to some other crime (other than the murder), this fact was sufficient, alone, to support a finding that the murder was especially heinous/depraved.

MITIGATING CIRCUMSTANCES:

The court independently found:

Mental/Psychological Impairment
Love of family
Discrepancy in sentencing

The mitigation was “de minimis” and not sufficiently substantial to call for leniency.

JUDGMENT:  Death Sentence Upheld.


State v. (Tracy Allen) Hampton, 213 Ariz. 167, 133 P.3d 735 (2006)
(Death penalty upheld) Jury Trial/Indep. Review

PROCEDURAL POSTURE:  Hampton killed Findley and Findley’s girlfriend, Ramsdell, who was five months pregnant, execution-style with a gunshot to the forehead. He admitted to his cellmate that he had committed the murders because Findley was a rat and Ramsdell a “nigger lover” who was pregnant with a Black man’s child. He was convicted in May 2002 in Superior Court (Maricopa) of two counts of first-degree murder and one count of manslaughter (for the unborn child). Before sentencing occurred, the U.S. Supreme Court issued Ring v. Arizona, 536 U.S. 584 (2002), necessitating a jury trial of the aggravating and penalty phases. The sentencing proceedings were therefore conducted before a new jury. This is Hampton’s direct appeal.

AGGRAVATING CIRCUMSTANCES:

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – UPHELD
Heinous/Depraved – Not considered by court due to faulty jury instructions - The court found that the instructions given to the jury did not appropriately define the facially vague terms “heinous” and “depraved” and therefore it would not consider this aggravator in its independent review of the death sentences.

(F)(8) (MULTIPLE HOMICIDES) – UPHELD
The statutory requirement that the multiple murders be “temporally, spatially and motivationally related” to each other was satisfied. The killing of each victim – Findley, Ramsdell, and the unborn child – qualified as a homicide for purposes of this aggravator. They were clearly closely related in time, space and motivation. This aggravator carries more weight than other aggravators, and a triple homicide triples the loss.

MITIGATING CIRCUMSTANCES:
The court independently found:
    Difficult childhood, including sexual and physical abuse
    Long-time drug abuse
    Mental health problems

The mitigation was accorded less weight because he did not tie it to his murderous behavior. The relevance of his horrendous childhood was also lessened because he was 30 years old when he committed the crimes. The mitigation was not sufficiently substantial to call for leniency due to the extraordinary weight of the multiple homicides aggravator.

JUDGMENT:  Death Sentence Upheld.


State v. (Charles David) Ellison , 213 Ariz. 116, 140 P.3d 899 (2006) - (Death penalty upheld) Jury Trial/Indep. Review

PROCEDURAL POSTURE:  Ellison and Richard Finch entered the Boucher’s home and killed the couple in order to steal money and jewelry. Finch confessed his involvement to a friend, who contacted the police. Finch led the police to Ellison. When questioned by police, Ellison claimed that Finch concocted the plan to burglarize the Bouchers and was responsible for killing them. The police acknowledged at trial that no physical evidence proved who actually killed either victim. Ellison was convicted in January 2002 in Superior Court (Mohave) of two counts of first-degree murder and one count of first-degree burglary. Before sentencing occurred, the U.S. Supreme Court issued Ring v. Arizona, 536 U.S. 584 (2002), necessitating a jury trial of the aggravating and penalty phases. The sentencing proceedings were therefore conducted before a new jury. This is Ellison’s direct appeal.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (PRIOR CONVICTION OF SERIOUS OFFENSE) – UPHELD
Ellison’s prison records showed his prior conviction for armed robbery, a statutorily defined serious felony, A.R.S. § 13-751(H)(1)(h) (1999).

(F)(5) (PECUNIARY GAIN) – UPHELD
Ellison’s motive for the murders was to facilitate the burglary. The Court found that evidence established that Ellison planned the burglary and, in order to escape and avoid detection, killed the Bouchers.

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – UPHELD
Especially Cruel – Mental Anguish

The Court found that the especially cruel aggravator based on extreme mental anguish was proved beyond a reasonable doubt. The evidence established that the Bouchers were conscious when they were bound and were aware of each other’s suffering. They were uncertain as to their ultimate fate after being attacked and bound by two men in their home at night. They also heard one man ordering the other to kill Mr. Boucher.

The Court rejected the state’s argument that the Bouchers’ physical injuries and the inherent nature of being suffocated or strangled also showed physical cruelty. There was no specific evidence that the Bouchers consciously suffered any extreme physical pain. The Court also noted that it has been unwilling to find that all stranglings are per se cruel.

(F)(7) (MURDER COMMITTED WHILE ON PAROLE) – UPHELD
Ellison’s prison records also showed he was on parole when he committed the murders.

(F)(8) (MULTIPLE HOMICIDES) – UPHELD
The statutory requirement that the multiple murders be “temporally, spatially and motivationally related” to each other was satisfied. The Bouchers, a married couple residing together, were both killed in the same room at approximately the same time.

(F)(9) (AGE OF VICTIM) – UPHELD
Ellison’s prison records showed that he was older than 18 when he committed the offenses. The Bouchers’ daughter testified that her parents were each older than 70 when they were murdered.

MITIGATING CIRCUMSTANCES:
The Court independently found:
   

 Absence of love and guidance during childhood: little value because Ellison was 33 years old when he committed the crimes
 Long-time drug abuse: although it is more likely that he suffered some mental or emotional damage due to a combination of his upbringing, physical and sexual abuse, physical deformity, and drug and alcohol use, Ellison failed to provide any specific evidence that his brain chemistry was actually altered by his past alcohol and drug abuse so as to cause or contribute to his participation in the murders.
 Absence of genuine violence in prior convictions: only slight mitigation
 The Court found that Ellison failed to prove diminished capacity to appreciate the wrongfulness of his conduct.
The mitigation was not sufficiently substantial to call for leniency due to the six proven aggravators.

JUDGMENT:  Death sentence affirmed.


State v. (Leroy Dean) McGill, 213 Ariz. 147, 140 P.3d 930 (2006) (Death penalty upheld) Jury Trial/Indep. Review

PROCEDURAL POSTURE: McGill was convicted of premeditated murder, attempted murder, two counts of arson and three counts of endangerment. Direct appeal of death sentence with independent review.

AGGRAVATING CIRCUMSTANCES:

(F)(3) (GRAVE RISK OF DEATH TO ANOTHER) - UPHELD
McGill went into a small apartment where there were four people. He set two of the occupants on fire by throwing gasoline and a lit match on them. The apartment was engulfed in flames and thereby endangered two other occupants. The Court noted that the two other occupants easily fled the apartment and stated: “The law does not require, however, that McGill’s actions be the most risky imaginable.” The F3 finding was upheld because McGill was aware of the risk that setting the structure on fire created a grave risk to the two other occupants.

(F)(3) (GRAVE RISK OF DEATH TO ANOTHER) - DISMISSED
The fire spread to an attached apartment where there was one occupant who escaped. The trial judge properly dismissed F3 as to this person as there was no evidence that McGill knew the adjoining apartment was occupied.

(F)(6) (ESPECIALLY HEINOUS, CRUEL or DEPRAVED) - CRUELTY UPHELD
McGill mixed gasoline with styrofoam creating a napalm-like mixture. He tossed the mixture upon the victim and set him afire. The victim was burned over 80% of his body, screamed in pain, and ultimately died. Setting a conscious person on fire necessarily causes the victim tremendous suffering which was enhanced by the napalm-like mixture which stuck to the victims and made it difficult for rescuers to put out.

MITIGATING CIRCUMSTANCES:
The Court independently found:
    Difficult childhood: Abuse and neglect were “only slight mitigation.”
    Follower: under influence of girlfriend lacked causal connection to crime.
    Impairment: Mental/psychological not proven.
    Model Prisoner: “little support”
    Family ties.  Execution impact on family established family ties.
The Court found that although the mitigation was “not insignificant, it does little to offset the considerable aggravation.”

JUDGMENT:  Death sentence affirmed.


*State v. (Frank Silva) Roque, 213 Ariz. 193, 141 P.3d 368 (2006)
(Death penalty reduced to natural life without possibility of release) Jury Trial/Indep. Review

PROCEDURAL POSTURE: On September 15, 2001, Roque shot and killed a Sikh of Indian descent, believing him to be Arab, in retaliation for the 9/11 terrorist attacks. He also shot at several other Arab-Americans. He was convicted of premeditated murder, attempted murder, reckless endangerment and three counts of drive-by shooting. Direct appeal of death sentence with independent review.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (PRIOR CONVICTION OF SERIOUS OFFENSE) - DISMISSED
The trial court properly dismissed this aggravating factor based on Roque’s 1983 California conviction for attempted robbery.  The attempted robbery offense in California would not have constituted attempted robbery in Arizona and therefore did not qualify as a serious offense under (F)(2).

(F)(3) (GRAVE RISK OF DEATH TO ANOTHER) - UPHELD
Roque shot the victim while the victim was talking to another man. He fired five or six shots toward both men from a distance of 20 feet. Although Roque’s intended target was the victim, the other man was in the zone of danger and could have been hit or killed if Roque had not been an accurate shot. 

MITIGATING CIRCUMSTANCES:
The Court independently found:

Impairment - the evidence showed that Roque’s mother was a schizophrenic, leaving Roque predisposed to mental health problems. All four mental health experts who testified at trial regarding Roque’s mental condition on the days after September 11, 2001, agreed that his mental condition impaired his capacity to conform to the law, but varied in their opinions of how significant that impairment was. The Court gave this mitigating evidence substantial weight.

Low IQ - Roque’s IQ was measured at 80. Although this IQ is not, by itself, low enough for Roque to be considered to have mental retardation, his overall score is below average. The Court considered the likely impact of his low IQ on Roque’s ability to seek help or reason his way out of committing the crimes.

The Court found that the mitigation was sufficiently substantial to outweigh the sole aggravator.

JUDGMENT:  Death sentence vacated and reduced to natural life without possibility of parole.