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Arizona Judicial Branch

2007-2009

State v. (Joe Clarence) Smith, 215 Ariz. 221, 159 P.3d 531 (2007)
(Death penalty upheld) Jury Trial/Indep. Review

PROCEDURAL POSTURE:  Sandy Spencer’s nude body was found in the desert northwest of Phoenix in January 1976. She had multiple stab wounds, and her nose and mouth had been stuffed with dirt and taped shut, causing asphyxiation. Neva Lee’s nude body was found in the desert in February 1976. She also had been asphyxiated and her wounds were similar to Spencer’s. Smith was charged with both murders, tried separately and convicted and sentenced to death in each case in 1977.  The 9th Circuit Court of Appeals reversed the death sentences, and the cases were remanded by the federal district court for resentencing in 2000.  Due to Ring v. Arizona, 536 U.S. 584 (2002), a new sentencing proceeding in each case was tried before separate jury.  The juries resentenced Smith to death for both murders in 2004. This is Smith’s direct appeal of those death sentences.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (PRIOR CONVICTION PUNISHABLE BY DEATH OR LIFE IMPRISONMENT) – UPHELD
Smith’s three prior rape convictions conclusively established that he had been convicted of another offense that carried a possible sentence of life imprisonment or death.

(F)(2) (PRIOR CONVICTION OF SERIOUS OFFENSE) – UPHELD
Smith’s prior conviction of Lee’s murder met the requirements of the F(2) aggravator in the Spencer case and vice versa.

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – UPHELD
Especially Cruel – The court found that overwhelming evidence established that the murders of Spencer and Lee were especially cruel.  They both died of asphyxiation after having their noses and mouths filled with dirt and taped shut.  Such asphyxiation would undoubtedly cause mental anguish and physical pain.  At a minimum, Smith should have known pain and anguish would occur.

The court found that overwhelming evidence established that the murders of Spencer and Lee were especially cruel.  They both died of asphyxiation after having their noses and mouths filled with dirt and taped shut.  Such asphyxiation would undoubtedly cause mental anguish and physical pain.  At a minimum, Smith should have known pain and anguish would occur.

Especially Heinous or Depraved – The court decided that because it independently concluded that the murders were especially cruel, it need not consider the jury’s separate findings of heinousness and depravity. 

 

MITIGATING CIRCUMSTANCES

The court decided that because it independently concluded that the murders were especially cruel, it need not consider the jury’s separate findings of heinousness and depravity.

The court noted that Smith presented evidence of the following mitigators:

  • Mental health problems - he suffered from sexual sadism with a form of anxiety disorder

  • Good conduct while in prison

  • Family life

The role of Smith’s mental health in the commission of the murders was accorded less weight due to testimony that he could have controlled his impulses and that he likely knew what he was doing and that it was wrong.  His good conduct while in prison and family life was also lessened based on conflicting testimony regarding their presence or substantiality.  The court held that even if all of the claimed mitigators were established, the mitigation presented was not sufficiently substantial to warrant leniency given the nature of the crimes committed and the aggravators.

JUDGMENT
:  Death Sentence Upheld.


State v. (Eugene) Tucker (Tucker II), 215 Ariz. 298, 160 P.3d 177 (2007)
(DEATH PENALTY UPHELD) Ring - Indep. 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 following the Supreme Court’s remand for jury sentencing due to Ring v. Arizona, 536 U.S. 584 (2002). See, State v. Tucker (Tucker I), 205 Ariz. 157, 68 P.3d 915 (2003).

AGGRAVATING CIRCUMSTANCES:

(F)(1) (CONVICTION OF ANOTHER OFFENSE ELIGIBLE FOR LIFE IMPRISONMENT OR DEATH)  - UPHELD
Tucker was convicted in 2000 of sexual assault and sentenced to 25 years to life imprisonment. The Court affirmed this conviction and sentence in Tucker I. As long as the prior conviction is entered before sentencing, it may support the (F)(1) aggravator even if it was committed before, contemporaneous with, or after the capital homicide. Thus, the (F)(1) aggravator was proven beyond a reasonable doubt.

(F)(3) (GRAVE RISK OF DEATH TO ANOTHER)  - DISMISSED
Tucker killed all the adults in a home, leaving a baby alone in its crib. One victim was killed in another room, and two were killed in the same room as the baby, but Tucker fired away from the crib when he shot those victims. The Supreme Court found the baby was not in the zone of danger during any of Tucker’s murderous acts.

(F)(6) (ESPECIALLY 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 and were used to control her consciousness.  The various locations of blood spatter patterns and blood pools indicated there was a prolonged struggle.  The Court found that the victim was conscious when she was bound and strangled. The extent of her injuries showed that she suffered extreme physical pain.

Heinous or Depraved  - Not Considered - The Court decided that because the state established beyond a reasonable doubt that the victim’s murder was especially cruel, it did not need to also determine whether her murder was especially heinous or 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 on the same day and in the same apartment. The Court found it “difficult to imagine a motive for the killings [of Victims 2 and 3] unrelated to the murder of [Victim 1].”

MITIGATING CIRCUMSTANCES:

The Court independently found:

  • Age (G)(5): Tucker turned 18 ten days before the murder

  • Lack of Prior Criminal Record 

  • Impairment: Tucker failed to establish a causal connection between his narcissistic personality disorder and the crime, and did not show that his capacity to appreciate the wrongfulness of his conduct or to conform it to the law was significantly impaired at the time of the murders. Personality or character disorders typically do not satisfy the (G)(1) mitigator. The Court gave little weight to Tucker’s disorder as a non-statutory mitigator.

  • Model Prisoner: given minimal weight because all prisoners are expected to behave and adapt to prison life.

  • Family ties: also minimal significance in light of conflicting testimony.

The Court found that the most compelling mitigation was Tucker’s age and lack of a prior criminal record. It concluded, however, that this mitigation was not sufficiently substantial to warrant leniency in light of the three aggravators remaining for Victim 1 and the two aggravators for Victims 2 and 3.

JUDGMENT:  Death sentences affirmed.


State v. (Wendi Elizabeth) Andriano, 215 Ariz. 497, 161 P.3d 540 (July 9, 2007)
(DEATH PENALTY UPHELD) Jury Trial/Indep. Review

PROCEDURAL POSTURE:  A Maricopa County Superior Court jury convicted Andriano of first-degree murder for the death of her terminally ill husband. It found the state had proved the especially cruel aggravator (A.R.S. §13-751(F)(6)) and determined that the defendant should be sentenced to death. This is Andriano’s direct appeal.

AGGRAVATING CIRCUMSTANCES:

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

The evidence showed that Andriano poisoned her husband, who was terminally ill with cancer, and left him to suffer a long time. She knew from her Internet research that poisoning with sodium azide would cause her husband physical pain and mental anguish. He was conscious as he suffered the effects of the poisoning, and remained conscious until Andriano struck him at least 23 times in the back of the head with a bar stool. The Court concluded that cruelty was established based on either, or both, mental anguish or physical pain.

MITIGATING CIRCUMSTANCES:

The court noted that Smith presented evidence of the following mitigators:

  • Stress of husband’s cancer

  • Strong religious convictions

  • Missionary and community work

  • Model prisoner

  • Family life, good mother to two children

  • Sexual abuse and domestic violence victim

The Court found that none of this mitigation warranted substantial weight. The evidence established that Andriano did not kill her husband while defending against a domestic violence attack. The record also did not indicate that the stress of the husband’s cancer was any greater at the time of the offense than it had been two years earlier when it was first diagnosed. The Court held that even if all of the claimed mitigators were established, its quality and strength was not sufficiently substantial to warrant leniency in light of the especially cruel manner in which she murdered her husband.

JUDGMENT:  Conviction and death sentence affirmed.


State v. (Ruben) Garza, 216 Ariz. 56, 163 P.3d 1006 (2007)
(DEATH PENALTY UPHELD) Jury Trial/Indep. Review

PROCEDURAL POSTURE:  Garza was convicted by a Maricopa County Superior Court jury of two counts of first-degree murder. The jury found the state had proved the multiple homicides aggravator (A.R.S. §13-751(F)(8)) as to each murder, and determined that Garza should be sentenced to life imprisonment for one murder and death for the other. Direct appeal of death sentence with independent review.

AGGRAVATING CIRCUMSTANCES:

(F)(8) (MULTIPLE HOMICIDES) – UPHELD
The statutory requirement that the multiple murders be “temporally, spatially and motivationally related” to each other was satisfied. Both victims were shot in the same house, one shortly after the other. The two homicides were also motivationally related. Garza shot the first victim in the living room and then went down the hallway to the bedroom and shot the other victim.

MITIGATING CIRCUMSTANCES:

The Court independently found:

  • Age (G)(5): Garza was 19 years old at the time of the murders:  Of diminished significance when the defendant is a major participant in the crime, especially when he plans it in advance

  • Good character and lack of prior criminal record: Also accorded less weight because crime planned in advance

  • Stress: Lack of causal connection to the crime also diminishes this mitigation

The Court found that the mitigation was not sufficiently substantial to call for leniency.

JUDGMENT:  Convictions and death sentence affirmed.


State v. (Cory Deonn) Morris, 215 Ariz. 324, 160 P.3d 203 (2007)
(DEATH PENALTY UPHELD) Jury Trial/Abuse of Discretion Review

PROCEDURAL POSTURE:  A jury convicted Morris of murdering five women whose badly decomposed bodies were found in and around the camper he lived in. The jury found two aggravators for each murder and imposed five death sentences. Morris committed all five murders after August 1, 2002, and therefore the standard of review set out in A.R.S. § 13-751.05 applies. Pursuant to that statute, the Arizona Supreme Court no longer conducts independent review but instead determines whether the jury abused its discretion in finding aggravating circumstances and imposing a death sentence. This is Morris’s direct appeal.

AGGRAVATING CIRCUMSTANCES:  Under the new standard of review, the Court will uphold a finding of an aggravating circumstance if there is any reasonable evidence in the record to sustain it.

(F)(2) (PRIOR CONVICTION OF SERIOUS OFFENSE) – UPHELD
Morris’s multiple murder convictions from the guilt phase were properly used for this aggravator because they were not committed on the same occasion.

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – UPHELD
Especially Cruel – Physical Pain
The Court found that the especially cruel aggravator based on extreme mental anguish was proved beyond a reasonable doubt. The evidence established that the victims were conscious and experienced pain for at least some period of time while they were being strangled. Three of the victims also struggled with Morris.

Especially Heinous or Depraved
The court decided that because a finding of cruelty alone is sufficient to establish the (F)(6) aggravator, it need not address whether the jury abused its discretion in finding that the murders were also heinous and depraved.

MITIGATING CIRCUMSTANCES:  Under the new standard of review, the Court stated that it will not reverse a death sentence “so long as any reasonable jury could have concluded that the mitigation established by the defendant was not sufficiently substantial to call for leniency.” ¶81.

The Court cursorily noted that Morris “presented mitigation evidence relating to long-standing problems with his appearance and hygiene, the responsibilities placed on him at a young age, his desire to improve himself, and his good work record.” ¶82.

The Court found that given the nature and strength of the two aggravators for each murder, a reasonable jury could have determined that the mitigation was not sufficiently substantial to call for leniency and therefore did not abuse its discretion in imposing a death sentence for each murder.

JUDGMENT:  Convictions and death sentences affirmed.


State v. (Darrel) Pandeli (Pandeli IV), 215 Ariz. 514, 161 P.3d 557 ( 2007)
(INDEPENDENT REVIEW; DEATH PENALTY UPHELD) Ring

PROCEDURAL POSTURE:  Pandeli was convicted in Superior Court (Maricopa) of first-degree murder and sentenced to death. This is his direct appeal following the Supreme Court’s remand for jury sentencing due to Ring v. Arizona, 536 U.S. 584 (2002). See, State v. Pandeli (Pandeli III), 204 Ariz. 569, 65 P.3d 950 (2003).

AGGRAVATING CIRCUMSTANCES:

(F)(2) (PRIOR CONVICTION- SERIOUS OFFENSE) – UPHELD
Pandeli’s 1996 prior conviction for second-degree murder was a "serious offense" supporting the (F)(2) aggravator.

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

Heinous or depraved: Upheld
Pandeli mutilated Iler’s body and relished the murder by taking souvenirs.

MITIGATING CIRCUMSTANCES:  The Court independently found the following mitigating circumstances:

  • Difficult childhood, including physical and sexual abuse

  • Abuse of drugs and alcohol

  • Mental impairment and learning disabilities

  • Model prisoner

  • Develop and maintain positive relationships

The Court found that Pandeli failed to establish a causal nexus between this mitigation and the crime, and therefore accorded it less weight. Although the mitigation evidence was not insubstantial, the aggravating circumstances were also substantial, especially the fact that Pandeli had been convicted of another murder. In light of the prior murder and the brutality of the Iler murder, the Court found the mitigation evidence was not sufficiently substantial to call for leniency.

JUDGMENT:  Death sentence affirmed.


State v. (Juan) Velazquez, 216 Ariz. 300, 166 P.3d 91 (2007)
(INDEPENDENT REVIEW; DEATH PENALTY UPHELD)

PROCEDURAL POSTURE: Velazquez was convicted in Maricopa County Superior Court of three counts of child abuse and one count of first degree murder for the death of a 20-month old child, and four counts of child abuse for injuries inflicted on a three year old child. Both children were daughters of his girlfriend, with whom he had been living. This is Velazquez’s direct appeal of the death sentence.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (PRIOR CONVICTION OF SERIOUS OFFENSE) – UPHELD
Velazquez’s conviction of child abuse of the three year old met the requirements of the version of the F(2) aggravator in effect in 2001 when he committed the murder. This aggravator could not be based on convictions for serious offenses committed contemporaneously with the capital murder. However, it could be based on convictions for serious offenses that were committed separately from the murder, even if the murder serious offense convictions resulted from the same trial. This was the situation here. The child abuse of the other daughter did not arise from the same set of events as the murder.

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

Especially Cruel –
The Court found that the State proved beyond a reasonable doubt that the child experienced intense physical pain as she was suffocated, squeezed, tripped, and left to die.  She was conscious when she sustained the skull fracture that caused her death.

(F)(9) (AGE OF VICTIM) – UPHELD
Velazquez was 23 years old at the time of the crime, and the victim was 20 months old.

MITIGATING CIRCUMSTANCES:  The Court independently found the following mitigating circumstances:

  • Age (G)(5): afforded little weight given Velazquez’s criminal history, average intelligence, maturity level, and the fact that he committed the murder on his own

  • Mental impairment, personality disorder: considered only as a non-statutory mitigator because personality disorders usually are not sufficient to satisfy the (G)(1) mitigator

  • Difficult childhood, including physical and emotional abuse

  • Abuse of drugs and alcohol

  • Remorse

  • Impact of execution on his family

Although the Court found this mitigation considerable, it decided that on balance the evidence was not sufficiently substantial to warrant a sentence less than death given the circumstances of the crime.

JUDGMENT:  Death sentence upheld.



State v. (Frank) McCray, 218 Ariz. 252, 183 P.3d 503 (2008)
(Death penalty upheld) Jury Trial/Indep. Review

PROCEDURAL POSTURE:  McCray was convicted by a Maricopa County Superior Court jury of first-degree felony murder committed in 1987. The jury found the state had proved the prior violent crime aggravator (A.R.S. §13-751(F)(2)(1978 & Supp. 1987)), and the cruel, heinous and depraved aggravator (A.R.S. §13-751(F)(2)), and determined that McCray should be sentenced to death. Direct appeal of death sentence with independent review.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (PRIOR CONVICTION OF VIOLENT CRIME) – UPHELD
McCray’s 1993 conviction for a 1992 sexual assault with a dangerous enhancement qualified as a (F)(2) prior violent crime aggravator. Before July 16, 1993, this aggravator provided “[t]he defendant was previously convicted of a felony in the United States involving the use or threat of violence on another person.” To determine if the prior offense involved the threat or use of violence, the court considers the specific statutory subsection under which the defendant was convicted, even if other subsections of the same statute may not qualify for the aggravator. The court also considers the fact that the prior conviction included an enhancement for dangerousness because it is analogous to focusing on the particular statutory subsection underlying the prior conviction. The court concluded that a sexual assault involving the use or exhibition of a deadly weapon or dangerous instrument is necessarily one that involves the use or threat of violence.

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – UPHELD
Especially Cruel: The court found that this aggravator was proved beyond a reasonable doubt. The evidence showed McCray forced his way into the victim’s apartment, physically assaulted her, raped her, and strangled her with a cord. The medical examiner testified that the victim probably died one to five minutes after the strangulation began, and he concluded from both the nature of her injuries and the condition of the apartment that a struggle probably occurred. The court found that the victim was conscious during a substantial part of the “murder transaction” and that she suffered intense physical pain and mental anguish during that time. McCray should have known that attacking, raping and strangling the victim would cause her severe physical and mental pain.

MITIGATING CIRCUMSTANCES:

Difficult family history: Accorded less weight because McCray was 28 when he murdered the victim and did not show a causal connection with the crime.

Mental health problems: Also accorded little weight because McCray presented evidence only of an undiagnosed mental illness and failed to establish that it caused the crime or inhibited his ability to appreciate the wrongfulness of his conduct or conform his conduct to the law. He did not offer any expert testimony that he suffered from any mental illness, but only testimony from family and other witnesses about his behavior.

Drug use: Also given minimal weight because there was no evidence that McCray was using drugs near the time of the murder.

The Court found that the mitigation was not sufficiently substantial to call for leniency.

JUDGMENT:  Conviction and death sentence affirmed.


State v. James Harrod, 218 Ariz. 268, 183 P.3d. 519 (2008) ("Harrod III")
(Death Penalty Upheld) Jury Trial/Indep. Review

PROCEDURAL POSTURE:  In 1998, the defendant was sentenced to death by a judge and the sentence was affirmed in State v. Harrod, 200 Ariz. 309, 26 P.3d 492 (2001) (“Harrod I.”).  Ultimately, the case was remanded for capital sentencing by a jury. See Harrod v. Arizona, 536 U.S. 584 (2002); State v. Ring, 204 Ariz. 534, 65 P.3d 915 (2003)(“Ring III”); State v.  Harrod, 204 Ariz. 567, 65 P.3d 948 (2003)(“Harrod II”).  On remand, the jury imposed the death sentence and this is the direct appeal from this second death sentence, “Harrod III”.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) – UPHELD
There was “overwhelming evidence” that the defendant was a hired killer and therefore the murder was for pecuniary gain. ¶55-¶56.

MITIGATING CIRCUMSTANCES: The Court considered the following mitigating circumstances in conducting its independent review of the jury’s death sentence:

Sentencing Disparity.  The fact that the person who apparently hired the defendant to commit the murder was not charged was not a mitigating circumstance where “the State apparently has concluded that it does not have sufficient admissible evidence to proceed against him.” ¶58 citing Ethical Rule 3.8.

Family Ties.  The Defendant claimed as mitigation the impact of execution on his family and friends and love for and of family.  “This Court, however, gives minimal weight to family support.” ¶59.

Difficult Childhood/Family History.  Parent’s divorce, father’s alcoholism and father’s mental abuse were given minimal weight because no causal nexus was shown with the crime. ¶60.

Good Character.  The defendant’s lack of criminal history, past good conduct, absence of violent acts, educational accomplishments, the fact that the offense was out-of-character, and good conduct during trial were collectively considered as evidence of good character.  These factors deserved less weight in a case involving a murder planned in advance. ¶61.

Model Prisoner.  Excellent behavior while incarcerated was not a mitigating circumstance because inmates are expected to behave well in prison. ¶62.

JUDGMENT: Death sentence affirmed. In light of the compelling aggravating circumstance of a contract killing, the Court found the mitigating circumstances failed to rise to a level that called for leniency.  ¶64.


State v. Steve Alan Boggs, 218 Ariz. 325, 185 P.3d 111 (2008)
(Death Penalty Upheld) Jury Sentencing/Indep. Review

PROCEDURAL POSTURE:  The defendant was convicted of robbing a fast food restaurant and murdering three employees. The murders were committed on May 19, 2002. The jury imposed three death sentences in 2005. This is the automatic direct appeal from the death sentences. Because the crimes were committed before August 1, 2002, the Supreme Court conducted an independent review of the death sentences. The defendant's accomplice, Christopher Hargrave, also received death sentences in a separate trial.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) – UPHELD
Defendant told a detective that money was his motivation.  Approximately $300 was taken from two cash registers and someone had attempted to pry open a third register. The victims' pockets were emptied and their wallets taken.  The accomplice tried to use a victim's bank card at an ATM. The evidence established the aggravator. ¶74-¶76.

The Court rejected the argument that there were multiple motivations for the murders and therefore the pecuniary gain motive was lacking.  The alleged other motives were a desire to silence witnesses and racist attitudes towards the victims.  Silencing witnesses so that none survive the robbery is an act in furtherance of the robbery and supports the pecuniary gain factor.  Because pecuniary gain need only be "a" motive or cause of the murder, the presence of other motives does not mean the aggravator is not proven.

(F)(6) (Cruelty: Mental Anguish) – UPHELD
Defendant's detailed confession supported finding the murders were especially cruel due to mental anguish. The three victims were forced at gunpoint to lie down, ordered to empty their pockets, ordered to march into a freezer, and then shot in rapid succession.  After the Defendant left the freezer, he heard screaming and returned and shot some more.

(F)(8) (Multiple Homicides) - UPHELD
The Defendant conceded the temporal and spatial relationship, but argued the homicides lacked the motivational relationship because he killed for other motives.  The alleged motives included: one victim caused the accomplice to lose his job, the Defendant flipped out after the accomplice shot, the race of a victim and to eliminate a witness. "Regardless of Boggs' specific motive for committing the murders, all the murders involved a continuous course of criminal conduct." ¶82.  Additionally, a racial motive applied to all victims as did the accomplices animosity toward the restaurant. ¶83-¶84

MITIGATING CIRCUMSTANCES:

The Court considered the following mitigating circumstances in conducting its independent review of the jury’s death sentence:

Difficult Childhood/Family History.  Parent’s divorce, father’s alcoholism and father’s mental abuse were given minimal weight because no causal nexus was shown with the crime. ¶85-¶88,-95.

Impairment: Mental Health.  Defendant's experts established he had post-traumatic stress disorder from a traumatic childhood and was bipolar.  A defense expert opined that the defendant may have been delusional at the time of the crime but was not in a manic state. A state's expert opined that the Defendant was not bipolar but exhibited characteristics of anti-social, narcissistic and borderline personality disorders.  The mental health problems were given less weight for two reasons: 1) there was no causal nexus between the problems and the crimes, and 2) the problems did not affect the ability to conform or appreciate the wrongfulness of his conduct. ¶89-¶91, ¶96.

Cooperation with police.  Cooperating with police to apprehend the accomplice was of minimal weight because Defendant initially blamed all the crimes on the accomplice and may have been acting out of self interest.  ¶92-93.

JUDGMENT
:
  Death sentences affirmed. Without a causal link between the murders and the troubled childhood or mental health issues, the mitigation was entitled to less weight.  Weighed against three aggravating circumstances, including one for multiple homicides, the mitigating evidence was not sufficiently substantial to call for leniency.

Jury
Trial/
Abuse of Discretion
Review


State v. (John Montenegro) Cruz, 218 Ariz. 149, 181 P.3d 196 (2008)
(Death penalty upheld) Jury Trial/Abuse of Discretion Review

PROCEDURAL POSTURE: A jury found Cruz guilty of the first-degree murder of a police officer who was questioning him about a hit-and-run accident, and decided he should be sentenced to death. Cruz committed the murder after August 1, 2002, and therefore the standard of review set out in A.R.S. §13-751.05 applies. This is Cruz’s direct appeal.

AGGRAVATING CIRCUMSTANCE:

(F)(10) (POLICE OFFICER IN LINE OF DUTY) – UPHELD
The defendant was charged with first-degree murder by killing a police officer in the line of duty, A.R.S. §13-1105(A)(3). The only aggravating circumstance was killing a police officer in the line of duty, A.R.S. §13-751(F)(10). Although these require proof of nearly identical facts, the Court found no impermissible double counting. There also is no creation of a presumption of death simply because upon conviction for first-degree murder, the defendant is eligible for the death penalty. Killing a person one knows to be a peace officer who is acting in the line of duty adequately narrows the class of persons subject to the death penalty. ¶¶128-132.

Cruz never contested that he knew the victim was a police officer and that the victim was acting in the line of duty when he was killed. The Court found that the jury did not abuse its discretion in finding the (F)(10) aggravator. ¶136.

MITIGATING CIRCUMSTANCES:
 
Although on appeal Cruz did not argue that the jury abused its discretion in sentencing him to death, the Court stated that A.R.S. §13-751.05 requires it to review all capital sentences for abuse of discretion. ¶135.

During the penalty phase, Cruz alleged 17 mitigating factors: (1) impaired capacity to appreciate the wrongfulness of his conduct, (2) impaired capacity to conform his conduct to the law, (3) unusual and substantial duress, (4) unforseeability that the acts would cause death, (5) dysfunctional family, (6) deprivation of “necessary nurturing and love” from family, (7) family history of mental disorders, (8) post-traumatic stress disorder (“PTSD”), (9) drug addiction, (10) mental state affected by family history of mental disorders, PTSD, and drug addiction, (11) unfavorable impact on Cruz’s family, (12) existence of family support, (13) compliance with prison rules, (14) lack of propensity for future violence, (15) capability to adapt to prison life, (16) lack of plan to commit the murder, and (17) his “upbringing, life-style and subculture all made it far more likely that he would find himself in this position.”

The Court found that although Cruz’s early life was certainly not ideal, there was no evidence of horrible abuse often found in its capital jurisprudence. Cruz was neither suffering from any significant mental illness nor under the influence of drugs at the time of the crime. The evidence presented on most of these mitigating circumstances was weak, and Cruz established little or no causal relationship between the mitigating circumstances and the crime. Moreover, much of the mitigating evidence was effectively rebutted by the State. The jury did not abuse its discretion in finding the mitigation evidence not sufficiently substantial to call for leniency. ¶138.
 
JUDGMENT:  Conviction and death sentence affirmed.


State v. (Cody James) Martinez, 218 Ariz. 421, 189 P.3d 348 (2008)
(DEATH PENALTY UPHELD) Jury Trial/Abuse of Discretion Review

PROCEDURAL POSTURE: A jury found Martinez guilty of first-degree premeditated murder, felony murder and kidnapping involving one victim. The jury found two aggravators, pecuniary gain and cruel, heinous and depraved, and decided Martinez should be sentenced to death. Martinez committed the murder after August 1, 2002, and therefore the standard of review set out in A.R.S. § 13-751.05 applies. This is Martinez’s direct appeal.

AGGRAVATING CIRCUMSTANCES:
Under the new standard of review, the Court will uphold a finding of an aggravating circumstance if there is any reasonable evidence in the record to sustain it. ¶65.

(F)(5) (PECUNIARY GAIN) – UPHELD
The Court found that the jury did not abuse its discretion in finding the (F)(5) aggravator. The jury heard substantial evidence that Martinez agreed to rob the victim, and the victim was beaten and his jewelry taken. The victim was then transported to his family home, where more items were stolen. Pecuniary gain must be a motive for the murder, but it need not be the sole motive. The facts support the jury’s finding that the victim was murdered to allow Martinez to keep the stolen property and avoid capture. ¶¶66-68.

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

Especially Cruel – Physical and Mental Pain
The Court found that substantial evidence supported the jury’s finding that the killing was especially cruel. The State conclusively established that Martinez’s ongoing physical violence against the victim caused the victim mental anguish that Martinez knew or should have known would have occurred. ¶¶69-71.

Especially Heinous or Depraved
The court decided that because the jury heard overwhelming evidence that the slaying was especially cruel, and a finding of cruelty alone is sufficient to establish the (F)(6) aggravator, it need not examine whether the jury abused its discretion in finding that the murders were also heinous and depraved. ¶71.

MITIGATING CIRCUMSTANCES:  Under the new standard of review, the Court stated that it will not reverse a death sentence so long as any reasonable jury could have concluded that the mitigation established by the defendant was not sufficiently substantial to call for leniency.

During the penalty phase, Martinez claimed as mitigation his family problems, including parental inattention and having been sexually abused as a child, his age (21), impairment from the use of drugs and alcohol, his impaired intelligence, family ties and remorse, and the fact that the three codefendants received lesser sentences.  The Court found most of this evidence was unfocused and largely rebutted by the State. It particularly noted that Martinez’s claim of sexual abuse was not supported by the record and was undermined by the absence of any evidence of earlier claims of abuse.  The claim of abuse did not arise until Martinez faced the death penalty. ¶¶73-75.

The Court found that the jury did not abuse its discretion in finding the mitigation evidence not sufficiently substantial to call for leniency. ¶75.
 
JUDGMENT:  Convictions and death sentence affirmed.


State v. (Shad Daniel) Armstrong (Armstrong III), 218 Ariz. 451, 189 P.3d 378 (2008) INDEPENDENT REVIEW; DEATH PENALTY UPHELD, Ring
 
PROCEDURAL POSTURE:  In March, 2000, Armstrong was convicted in Superior Court (Pima) of the first-degree premeditated murders of his sister and her fiancé and was sentenced to death. On direct appeal, the Supreme Court affirmed the convictions, 208 Ariz. 345, 93 P.3d 1061 (2004), but remanded for jury sentencing due to Ring v. Arizona, 536 U.S. 584 (2002). See, State v. Armstrong (Armstrong II), 208 Ariz. 360, 93 P.3d 1076 (2004). This is Armstrong’s direct appeal following that remand.

AGGRAVATING CIRCUMSTANCES:

(F)(8) (MULTIPLE HOMICIDES) – UPHELD
On appeal, Armstrong did not dispute that the murders were temporally and spatially related; he contested only the state’s proof of a motivational relationship. The Court held that the motives for killing each victim need not be identical. It was sufficient that the same motivation for killing his sister – preventing her from alerting the authorities as to his whereabouts - was “inextricably intertwined” with an additional motivation for killing the fiancé – his hatred of the fiancé and the influence the fiancé had over his sister.  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:
Armstrong presented evidence of five non-statutory mitigating circumstances: difficult family history, mental illness, compassionate nature, good behavior in structured environment, and the impact of his death sentence on his family. The Court gave each of these mitigators little weight because they were not causally linked to the murders.

The Court gave the (F)(8) multiple murders aggravator “extraordinary weight” and concluded that the mitigation was not sufficiently substantial to warrant leniency.

JUDGMENT:  Death sentences affirmed.


State v. (Phillip) Bocharski (Bocharski II), 218 Ariz. 476, 189 P.3d 403 (2008) INDEPENDENT REVIEW; SENTENCE REDUCED

PROCEDURAL POSTURE:  In 1996, a jury found the defendant guilty of first-degree felony murder and first-degree burglary, and a judge sentenced him to death. In 2001, the Supreme Court affirmed the convictions but reversed the death sentence, concluding that the defendant received inadequate funding for a mitigation investigation. State v. Bocharski (Bocharski I), 200 Ariz. 50 (2001).  On remand, a new jury found two aggravators: 1) the murder was committed in an especially heinous or depraved manner (A.R.S. §13-751(F)(6)), and (2) the defendant was an adult at the time of the offense and the victim was over 70 years old (A.R.S. §13-751(F)(9)). The jury sentenced the defendant to death.  The Supreme Court reduced the sentence to natural life.

AGGRAVATING CIRCUMSTANCES:

(F)(6) (HEINOUS OR DEPRAVED) – REVERSED
The victim was stabbed on her head and face about 24 times within a minute. The Court found that the evidence did not support a finding of mutilation or gratuitous violence. Mutilation requires an act separate and distinct from the killing itself. The evidence was insufficient that the defendant had this separate intent and none of the wounds occurred post-mortem.

Regarding gratuitous violence, the state first must show that the defendant did, in fact, use violence beyond that necessary to kill. The defendant’s blows involved considerable violence and he certainly did not need to inflict 24 knife injuries to cause the victim’s death. Thus, the Court concluded that this showing had been met. However, the state must also show that the defendant continued to inflict violence after he knew or should have known that a fatal action had occurred. The Court characterized this showing as “essential evidence of the defendant’s intent to inflict gratuitous violence.” ¶87. Because the injuries occurred in quick succession, and the medical examiner was unable to state with certainty when in the sequence of stabbings that the fatal wound occurred, the evidence was insufficient to establish beyond a reasonable doubt that the defendant knew or should have known that he had already struck a fatal blow yet continued to attack the victim.

(F)(9) (AGE OF VICTIM) – UPHELD
The defendant was 33 years old at the time of the offense. The victim’s daughter testified that her mother was 84 years old when she died, and the State admitted a birth certificate and a death certificate indicating the same.

MITIGATING CIRCUMSTANCESThe defendant presented one statutory and six non-statutory mitigating circumstances: (1) A.R.S. §13-751.G.1 (state of mind), (2) physical, mental, and sexual abuse of the defendant, (3) history of substance abuse and alcoholism, (4) dysfunctional family of origin including multigenerational violence, criminality, and substance, sexual, emotional, and physical abuse, (5) abandonment, severe neglect, starvation, and foster care placement, (6) impact of execution on the defendant’s family, and (7) remorse.

The Court found the (G)(1) statutory mitigator was not proven because although the mitigation presented showed that the defendant’s ability to conform his conduct to the requirements of law was impaired, it did not support a conclusion that he was significantly impaired. The Court therefore considered this mitigation as non-statutory mitigating circumstances. After reviewing the mitigation, the Court concluded that it was “unique in its depth and breadth. The evidence in the record demonstrates severe neglect, as well as almost unimaginable mental, physical, sexual, and emotional abuse throughout his childhood. The record also reveals Bocharski’s history of alcohol abuse and intoxication at the time of the crime. Finally, he established the impact of execution on his family and his remorse.” ¶109. The defendant also established a causal connection between the mitigation and the crime. Although it accorded less weight to some of the mitigation, the Court decided that due to the limited aggravation evidence ((F)(9) only) and the strong mitigation evidence, it doubted whether a death sentence was warranted and reduced the sentence to natural life.

JUDGMENT:  Death sentence reduced to natural life.


State v. (James Granvil) Wallace (Wallace III), 219 Ariz. 1, 191 P.3d 164 (2008) INDEPENDENT REVIEW; DEATH SENTENCES VACATED

PROCEDURAL POSTURE:  Wallace murdered his girlfriend and her two children in 1984. He was twice sentenced to death by a judge following remands for resentencing by the Arizona Supreme Court, with commission of each murder in an especially heinous or depraved manner (A.R.S. §13-751(F)(6)) as the only aggravator upheld on appeal. Following affirmance of his death sentences on appeal and state post-conviction relief, Wallace obtained federal habeas corpus relief on the ground that his counsel was ineffective during sentencing. At the third resentencing in 2005, a jury found the (F)(6) aggravator as to each murder and again sentenced Wallace to death. This is Wallace’s direct appeal following that third resentencing.

The Supreme Court found that the trial court erred in instructing the jury on the gratuitous violence factor of the (F)(6) heinous or depraved aggravator. The instruction told the jury that “[i]n deciding whether the defendant inflicted gratuitous violence, you may consider whether the defendant had available less violent alternatives to cause death.” This instruction allowed the jury to find gratuitous violence simply because a less violent means of murder was in some way “available” and thus did not require proof that the defendant intentionally chose one murder weapon over another. The Court found the instruction error to be harmful, requiring remand for resentencing. Based on this consequence, it then reviewed the defendant’s claim that the state failed to prove the (F)(6) aggravator.

AGGRAVATING CIRCUMSTANCES:

(F)(6) (HEINOUS OR DEPRAVED) – EVIDENCE SUFFICIENT as to children; REVERSED as to girlfriend
In order to prove gratuitous violence, the state must show that the defendant inflicted more violence than that necessary to kill and continued to inflict violence after he knew or should have known that a fatal action had occurred. The Court had little difficulty deciding that the evidence was sufficient to submit the issue of gratuitous violence to the jury regarding the murders of the two children. Wallace continued to strike the victims over the head after they had collapsed to the floor. One victim was struck so severely that a substantial amount of brain matter was spattered on the floor and wall. In killing another victim, Wallace shoved a jagged portion of the broken baseball bat through her throat after beating her.

However, regarding the girlfriend’s murder, the Court concluded the state failed to present sufficient evidence to prove that Wallace had the required mental state. The attack on the girlfriend involved four or five blows to the head with a pipe wrench over a relatively brief period. The medical examiner was unable to opine as to which blow was fatal. Although the assault on this victim was brutal and reprehensible, it came in an attempt to kill her, not to engage in violence beyond that necessary to kill.

MITIGATING CIRCUMSTANCESBecause the Court found that the trial court committed reversible error in instructing the jury on the gratuitous violence factor of the (F)(6) aggravator, it did not review the mitigating circumstances.

JUDGMENT:  Death sentences vacated, two remanded for resentencing and one reduced to life imprisonment with parole possible after 25 years.


State v. (Brian Jeffrey) Dann, 220 Ariz. 351, 207 P.3d 604 (2009) (INDEPENDENT REVIEW; DEATH PENALTY UPHELD)(Justice Hurwitz did not participate in this decision)

PROCEDURAL POSTURE:  Dann was convicted in 2001 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 State v. Dann (Dann I), 205 Ariz. 557, 74 P.3d 231 (2003). While on direct appeal, the United States Supreme Court decided Ring v. Arizona, 536 U.S. 584 (2002)(Ring II). In a supplemental opinion, the Arizona Supreme Court remanded for jury sentencing due to Ring II. See, State v. Dann (Dann II), 206 Ariz. 371, 79 P.3d 58 (2003). On remand, a jury sentenced Dann to death. This is his direct appeal following that remand.

NO ENMUND/TISON FINDING NECESSARY:  Although Dann was convicted of felony murder as to all three murders, no evidence at the guilt trial pointed to an accomplice to the murders. The constitution does not bar the death penalty for a defendant who is convicted under a felony murder theory and who, acting alone, actually killed. See State v. Atwood, 171 Ariz. 576, 649, 832 P.2d 593, 666 (1992), disapproved on other grounds by State v. Nordstrom, 200 Ariz. 229, 25 P.3d 717 (2001).

In addition, the first jury’s guilty verdict of the premeditated murder of one victim was upheld by the Supreme Court on appeal. See Dann I, 205 Ariz. at ¶76. Accordingly, given this premeditated murder verdict, no further Enmund/Tison finding was necessary to support the capital sentence imposed for this murder conviction.

AGGRAVATING CIRCUMSTANCES:

(F)(8) (MULTIPLE HOMICIDES) - UPHELD
To satisfy this factor, the State must prove that the homicides were “temporally, spatially, and motivationally related, taking place during one continuous course of criminal conduct.” 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. This satisfies the spatial relationship requirement. They were also killed within moments of one another, according to testimony from one witness in whom Dann confided.  The short, uninterrupted time within which these actions occurred satisfies the temporal relationship requirement. Finally, the State established the motivational requirement through 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.

MITIGATING CIRCUMSTANCES:
Dann presented evidence of five non-statutory mitigating circumstances: residual doubt, difficult childhood, amenability to rehabilitation and lack of future dangerousness, drug and mental health issues impairing his judgment, remorse, and family support and impact of execution on his family. The court rejected residual doubt as mitigation, found Dann did not prove lack of future dangerousness or remorse, and gave the remaining mitigation little weight.

The Court gave the (F)(8) multiple murders aggravator “extraordinary weight” and concluded that the mitigation was not sufficiently substantial to warrant leniency.

JUDGMENT:  Death sentences affirmed.


State v. (Patrick Wade) Bearup, 221 Ariz. 163, 211 P.3d 684 (2009)
(INDEPENDENT REVIEW; DEATH PENALTY UPHELD)

PROCEDURAL POSTURE:  Bearup was convicted of one count of kidnapping and one count of first degree murder for the beating death of an acquaintance, and a jury sentenced him to death.  This is his automatic appeal following his death sentence.  Because the murder occurred before August 1, 2002, the Supreme Court conducted an independent review of his death sentence.

ENMUND/TISON FINDING:  Sufficient evidence supported the jury’s findings that Bearup was a major participant in the crime.  Armed with a knife, Bearup joined two others who encircled the victim as he was savagely beaten.  The facts also supported the jury’s finding that Bearup acted with reckless indifference to human life.  At some point during the assault, Bearup must have realized that the victim’s life was at risk.  After the bearing, Bearup helped confine the victim to a car trunk, cut off his finger while he might have still been alive, and helped throw his body into a ravine. Those acts support a finding that Bearup acted with reckless indifference to human life.

AGGRAVATING CIRCUMSTANCES:

(F)(2) PRIOR CONVICTION OF A SERIOUS OFFENSE – UPHELD
The State produced a certified copy of Bearup’s prior conviction of aggravated assault along with testimony that he was the person convicted. Bearup conceded that aggravated assault qualifies as a serious offense.  Thus, the evidence established the prior serious offense aggravating circumstance.

(F)(6) ESPECIALLY HEINOUS, CRUEL OR DEPRAVED – UPHELD
Especially cruel:  The court found this aggravator proven beyond a reasonable doubt.  The victim suffered both physical pain and mental anguish, and Bearup knew of his suffering.  The victim attempted to stand and shield himself while screaming “No. Leave me alone,” as he was attacked with a baseball bat.  The assault lasted between sixty and ninety seconds, and the victim suffered visible facial fractures and substantial blood loss.

Especially heinous or depraved:  The court found this aggravator proven beyond a reasonable doubt.  Bearup relished the murder and either mutilated the corpse or inflicted gratuitous violence.  Bearup cut off the victim’s finger to retrieve a ring.  Although it was not clear when the victim died, if Bearup cut off his finger when the victim was alive, he inflicted gratuitous violence; if he did so after the victim’s death, he mutilated a corpse.  The evidence showed that Bearup relished his crime when he was overheard laughing while talking about cutting off a person’s finger and was amused when he told his ex-girlfriend about the crime.

MITIGATING CIRCUMSTANCES:
Bearup represented himself in the penalty phase and presented no mitigation evidence.  On appeal, he argued that his decision to waive mitigation in the penalty phase, his comparatively minor participation in the crime, and the disparity between his sentence and the codefendants’ sentences warranted leniency.

The court found that the sentencing disparity merited limited weight in mitigation because there were reasonable explanations for the disparity.  The court rejected Bearup’s contention that he was a minor participant in the crimes, as well as his contention that his decision not to present mitigating evidence was mitigating.

The court found the aggravating circumstances substantial and concluded that the limited mitigation was not sufficiently substantial to call for leniency.

JUDGMENT:  Death sentence affirmed.


State v. (Julius Jarreau) Moore, 222 Ariz. 1, 213 P.3d 150 (2009) (INDEPENDENT REVIEW; DEATH PENALTY UPHELD) (Justice Hurwitz did not Participate in this Decision)

PROCEDURAL POSTURE:  A jury convicted Moore of two counts of premeditated murder and felony murder for the murders of his victims Delia and Guadalupe, one count of premeditated murder for the murder of another victim, Mata, one count of attempted first degree murder, and one count of first degree burglary. After the decision in Ring II, 536 U.S. 584 (2002), a jury was empanelled to determine Moore’s sentences. The jury found the (F)(8) aggravator, that Moore murdered multiple persons, but could not reach a verdict on the (F)(6) aggravator. Due to the health problems of a defense witness, the trial court declared a mistrial before the jury could determine penalty.  A second sentencing jury also failed to reach a verdict on the (F)(6) aggravator.  hat jury sentenced Moore to death for the murder of Delia and Guadalupe, and sentenced him to life for the murder of Mata.  This is his automatic appeal following his death sentences.  Because the murders occurred before August 1, 2002, the Supreme Court conducted an independent review of his death sentence.

AGGRAVATING CIRCUMSTANCES:

(F)(8) MULTIPLE HOMICIDES – UPHELD
The Court found this aggravator proven beyond a reasonable doubt. The record showed a temporal, spatial and motivational relationship between the murders.  The temporal element was satisfied by the surviving victim’s testimony that within seconds she saw Moore shoot her and Mata, and then heard multiple gunshots.  Guadalupe and Delia were shot inside their house, while Mata was shot just outside the front door, satisfying the spatial element.  And because it was difficult to imagine a motive for the murders of Delia and Guadalupe unrelated to Mata’s murder, the motivational element was satisfied.

MITIGATING CIRCUMSTANCES:
Moore argued that his intoxication, age, addiction to crack cocaine, dysfunctional family life, residual doubt, family support and impact on his family, and remorse were mitigating circumstances that warranted leniency.

The court found that Moore did not establish intoxication as a statutory mitigating circumstance, because Moore took steps to avoid prosecution, and his use of crack cocaine did not overwhelm his ability to control his behavior.

The court gave Moore’s age of eighteen years, seven months some weight in mitigation.  Moore lacked maturity, and had stunted emotional development.  Although Moore had extensive experience with the juvenile justice system, he was never adjudicated delinquent and his offenses were all non-violent.  However, Moore was the sole participant in the murders, which tended to reduce the significance of this mitigating factor.

The court gave some weight to Moore’s addiction to crack cocaine as a mitigating factor.  Moore’s use of crack cocaine, combined with his relative youth and early-onset drug use, likely impacted his mental development.

Moore established that he had a dysfunctional family background, including an alcoholic father who suffered mental problems, childhood depression, and difficulties with his mother.  The court did not find this evidence merited significant weight, independent of his youthful drug use.

The court rejected Moore’s argument that residual doubt was a mitigating factor, affirming its prior holding that once a person is found guilty beyond a reasonable doubt, claims of residual doubt or innocence do not constitute mitigation for sentencing purposes.

Moore established the mitigating factor that his family loved him and would be negatively impacted by his execution.  The court gave this factor minimal weight.

The court found that Moore had not proven the mitigating factor of remorse by a preponderance of the evidence.  Moore continues to deny responsibility for the murders, and his expressions of regret have more to do with the impact on his family than remorse about the murders.

After noting that the multiple murders aggravator has extraordinary weight, the court found that Moore’s significant mitigating evidence regarding his age and the impact of his extensive use of crack cocaine was not sufficiently substantial to warrant leniency.

JUDGMENT:  Death sentences affirmed.


State v. (Paul Bradley) Speer, 221 Ariz. 409, 212 P.3d 787 (2009)
(DEATH PENALTY UPHELD)

PROCEDURAL POSTURE: While in custody in the Maricopa County jail on a residential burglary charge, Speer directed his half-brother, Brian Womble, to kill the burglary victims, a husband and wife. Womble broke into the apartment one night and shot them. The wife's wounds were not fatal but the husband's were; he was found lying in bed with his arm around an infant. The jury found four aggravating circumstances – (F)(2) prior serious offense (Armed Robbery); (F)(3) grave risk of death to another; (F)(6) heinous and depraved because murder committed to eliminate a witness; and (F)(7) murder committed while in custody – and sentenced Speer to death. The Supreme Court affirmed the convictions and death sentence. This is Speer’s direct appeal.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (PRIOR CONVICTION OF SERIOUS OFFENSE) – UPHELD
The State proved that Speer was convicted of armed robbery on December 1, 1998.

(F)(3) (GRAVE RISK OF DEATH TO ANOTHER) – NOT PROVEN
The Court independently reviewed this aggravator because Speer committed his offense before August 1, 2002, and found it not proven beyond a reasonable doubt. Although the state proved two components - the murderous act created a grave risk of death to a baby who was in the bed with the victim and there was a real and substantial likelihood that the baby would be killed, the State failed to prove that Speer knowingly created such a risk. Because Speer was not present at the murder, Womble's knowledge that the baby was present could not be imputed to Speer. The Court found that at most, the evidence established that Speer knew that a child would be present somewhere in the apartment and this was insufficient to prove that he personally had the requisite knowledge.

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – UPHELD
Especially Heinous or Depraved – A murder committed for the purpose of witness elimination is especially heinous or depraved. The State proved that Speer had Womble kill the victim so that the victim would be unable to testify in Speer’s burglary trial.

(F)(7) (MURDER COMMITTED WHILE IN CUSTODY) – UPHELD
The murder in this case was committed while Speer was on parole from his armed robbery conviction and in the custody of the Maricopa County Sheriff’s Office on the burglary charge.

MITIGATING CIRCUMSTANCES:  The Court found the following mitigating factors established by a preponderance of the evidence: difficult childhood, alcohol and drug abuse, depression, IQ between 87 and 97 (but not significant cognitive impairment), and his execution would have a very negative effect on his extended family.

JUDGMENT:  Convictions and death sentences affirmed.


State v. Alvie Copeland Kiles, 222 Ariz. 25, 213 P.3d 174 (2009)
(DEATH PENALTY UPHELD)

PROCEDURAL POSTURE:  Kiles was convicted in 1991 in superior court (Yuma) of three counts of first-degree murder of his girlfriend and her five-year-old and nine-month-old daughters, and two counts of child abuse, and was sentenced to death. The convictions and sentences were affirmed on direct appeal. State v. Kiles (Kiles I), 175 Ariz. 358, 857 P.2d 1212 (1993). In post-conviction relief proceedings, the superior court found ineffective assistance of counsel and vacated the convictions and sentences. In 2000, a second jury found Kiles guilty of three counts of first-degree murder and two counts of child abuse. Before sentencing, the United States Supreme Court decided Ring v. Arizona, 536 U.S. 584 (2002)(Ring II). In 2006, a third jury found three aggravating circumstances – (F)(2) prior violent felony; (F)(6) cruelty; and (F)(8) multiple homicides – and sentenced Kiles to death for the murder of his girlfriend. The jury could not reach unanimous verdicts regarding the sentences for the children’s murders. The State dismissed the notice of death penalty regarding those murders and the trial court imposed consecutive life sentences. Kiles did not appeal those convictions or sentences. This is the direct appeal of the conviction and death sentence for the girlfriend.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) (1989 statute)  -  UPHELD
Kiles had previously been convicted of attempted aggravated assault and aggravated assault. Attempted aggravated assault did not qualify under (F)(2) as a prior violent felony because Arizona’s attempt statute permits a crime to be committed with a single nonviolent step. Therefore, the trial court erred by permitting the State to offer this conviction to prove (F)(2). The error was harmless beyond a reasonable doubt, however, because Kiles’ other prior conviction of aggravated assault supported the (F)(2) finding. The record showed that Kiles was convicted under subsection (A)(8) of the aggravated assault statute for committing an assault while the victim was bound, restrained, or the victim's capacity to resist was substantially impaired. The Court held that a conviction under this subsection necessarily involved the use or threat of violence.

(F)(6) (Cruelty) -  UPHELD
Kiles admitted that the girlfriend remained conscious after the attack began, and medical testimony regarding defensive wounds supported that conclusion. The location of the blood indicates that the victim may have attempted to escape and suffered the pain of multiple blows before she lost consciousness and died.

(F)(8) (Multiple Homicides)  -  UPHELD
Kiles was convicted of first degree murder of all three victims. On appeal, he did not dispute that he murdered the two children, and his own testimony confirmed that he bludgeoned the girlfriend to death. He admitted killing the children because they had seen the girlfriend’s murder and were screaming. All the murders were committed at the same time. Given the evidence, it is difficult to imagine a motive for killing the children unrelated to the girlfriend’s murder.

MITIGATING CIRCUMSTANCES:  The Court found that the expert testimony did not show that Kiles established the statutory mitigator of diminished capacity but did prove that he suffered from some form of personality disorder, which is considered as non-statutory mitigation. Kiles also failed to prove the statutory mitigator of impairment due to abuse of alcohol and drugs but did prove chronic intoxication as a non-statutory mitigator. Kiles also established the following non-statutory mitigation: good behavior in custody and less-than-ideal childhood.

JUDGMENT:  Conviction and sentence affirmed.