Capital Sentencing Guide

2010-2012

State v. Ryan Wesley Kuhs, 223 Ariz. 376, 224 P.3d 192 (2010)
(ABUSE OF DISCRETION REVIEW; DEATH PENALTY UPHELD)

PROCEDURAL POSTURE:
Kuhs was convicted of one count of first degree burglary and one count of first degree murder for the stabbing death of a man with whom he had previously argued, and a jury sentenced him to death.  This is his automatic appeal following his death sentence.  Because the murder occurred after August 1, 2002, the Supreme Court conducted an abuse of discretion review of his death sentence.

AGGRAVATING CIRCUMSTANCES

(F)(2) PRIOR CONVICTION OF A SERIOUS OFFENSE – UPHELD
The jury found that Kuhs was convicted of the offense of first degree burglary in this matter, and convicted for second degree burglary in a previous case.  Kuhs did not contest this aggravating circumstance at trial.

(F)(6)ESPECIALLY HEINOUS, CRUEL OR DEPRAVED – UPHELD
Especially cruel:  The court found the jury did not abuse its discretion in finding that the murder was especially cruel.  The victim suffered significant pain before his death.  He was stabbed several times, and ultimately died by bleeding to death while choking on his own blood.  The victim had ample opportunity to feel pain and to contemplate his own impending death.  After a final stab wound to his head, the victim was not immediately unconscious, but lay unable to move in a pool of his own blood.  Kuhs left the victim alive and dying, and took no action to alleviate his suffering.

(F)(7)(a) OFFENSE COMMITED WHILE ON RELEASE – UPHELD
The jury found that Kuhs committed the murder while on release from prison.  Kuhs did not contest this aggravating circumstance at trial.

(F)(7)(b) OFFENSE COMMITTED WHILE ON PROBATION – UPHELD
The jury found that Kuhs committed the murder while on probation for a prior felony.  Kuhs did not contest this aggravating circumstance at trial.

MITIGATING CIRCUMSTANCES:
The Court found the mitigation evidence was not compelling.  Kuhs’ purported mental disorder was linked to the crime only in that it might have made him more impulsive.  Kuhs’ childhood was not so abusive that it mitigates his actions in killing the victim.  Moreover, Kuhs possesses average to above average intelligence.  Thus, the jury did not abuse its discretion in not finding the mitigation sufficiently substantial to call for leniency and rendering a death verdict.

JUDGMENT: Death sentence affirmed.


State v. (Joshua Idlefonso) Villalobos, 225 Ariz. 74, 235 P.3d 227 (2010)
(DEATH PENALTY UPHELD)

PROCEDURAL POSTURE:
Villalobos was convicted of first degree murder and child abuse in the beating death of his girlfriend’s five-year-old daughter. After finding three aggravating circumstances, F6 (especially heinous, cruel or depraved), F7 (offense committed while on release), and F9 (victim under age 15), and concluding that any mitigating circumstances were not sufficiently substantial to call for leniency, the jury returned a death verdict. The Supreme Court affirmed the convictions and death sentence. This is Villalobos’s direct appeal.

AGGRAVATING CIRCUMSTANCES:

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – UPHELD
The State presented substantial evidence that the victim suffered and that Villalobos knew or should have known she was suffering, supporting the cruelty prong of this aggravator. Villalobos admitted that he beat the victim and she remained conscious. The medical examiner also testified that the victim was conscious after she was punched and would have been in pain comparable to that from a ruptured appendix. Ample evidence also supported the jury’s separate finding that the murder was especially heinous or depraved based on its conclusion that the murder was senseless, the victim was helpless, and Villalobos had a caregiver relationship with the victim.

(F)(7) (MURDER COMMITTED WHILE ON RELEASE) – UPHELD
The State introduced uncontroverted evidence that Villalobos was on authorized release from prison for federal and state drug charges at the time of the offense.

(F)(9) (VICTIM UNDER AGE 15)
The State introduced uncontroverted evidence that Villalobos was twenty-one when he murdered the victim, who was five.

MITIGATING CIRCUMSTANCES:
Villalobos presented four general categories of mitigation evidence: prior abuse, mental health, good behavior, and remorse. The Court stated that even assuming that Villalobos met his burden of establishing all claimed mitigation evidence by a preponderance of the evidence, it could not conclude that the jury abused its discretion in determining that the mitigating circumstances, taken as a whole, were not sufficiently substantial to call for leniency.

JUDGMENT: Convictions and death sentences affirmed.


State v. (Derek Don) Chappell, 225 Ariz. 229, 236 P.3d 1176 (2010)
(DEATH PENALTY UPHELD)

PROCEDURAL POSTURE:
Chappell drowned his girlfriend’s two year-old son, Devon Shackleford, in the apartment complex’s swimming pool. The jury convicted him of first degree murder and a prior incident of child abuse, found three aggravators (F2 (the child abuse conviction), F6 (especially cruel), and F9 (victim under age 15)), and determined that he should be sentenced to death. This is Chappell’s automatic appeal following that death sentence. Because the murder occurred after August 1, 2002, the Court reviewed for abuse of discretion the jury’s aggravation findings and death sentence. A.R.S. § 13-756(A).

AGGRAVATING CIRCUMSTANCES:

(F)(2) (PRIOR SERIOUS OFFENSE) - UPHELD
Chappell did not contest that this aggravator was established by the jury’s guilty verdict on the child abuse charge.

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – UPHELD
Cruelty – The medical examiner’s testimony supported a finding that Devon consciously experienced mental anguish before his death and Chappell knew or should have known that Devon would suffer. Chappell told reporters during a post-arrest press conference that Devon had struggled while in the pool and he remembered Devon “looking at [him] straight in the eyes as he was in the water.” The Court noted that “extreme” mental anguish is not required to establish this aggravator, and the mere fact that Devon was two years old, and possibly did not comprehend he was dying, did not prevent the jury from finding that he consciously experienced mental anguish before his death.

(F)(9)) (AGE OF VICTIM) – UPHELD
This aggravator was established by the jury’s explicit finding during the guilt phase that Devon was under the age of fifteen when he died.

MITIGATING CIRCUMSTANCES:
Chappell offered evidence of the following mitigating factors: (1) age; (2) impaired ability to appreciate the wrongfulness of his conduct; (3) lack of previous criminal history; (4) past good conduct and character; (5) commission of the offense was out of character; (6) educational accomplishments; (7) good behavior during pre-trial incarceration; (8) love for and by his family; (9) good conduct during trial; (10) remorse; (11) existence of an uncharged co-perpetrator (Shackleford); (12) cooperation with authorities; (13) good prospect of rehabilitation; (14) religious commitment and belief; (15) alcoholism; (16) impulsivity under stress; (17) mental health symptoms; (18) bipolar disorder; (19) attention deficit hyperactivity disorder; (20) unusual stress at or near the time of the incident; and (21) family history of mental illness. The Court held that although Chappell presented a significant amount of mitigation evidence, in light of the nature and strength of the three aggravators, it could not conclude that the jury abused its discretion in determining that the mitigation was not sufficiently substantial to warrant leniency.

JUDGMENT: Convictions and death sentence affirmed.


State v. (Leroy D.) Cropper, 223 Ariz. 522, 225 P.3d 579 (2010)
(DEATH PENALTY UPHELD)

PROCEDURAL POSTURE:
Cropper pled guilty to first degree murder in 1999 for the 1997 killing of an Arizona Department of Corrections officer, and was sentenced to death by a superior court judge. His conviction was affirmed on automatic appeal, see 205 Ariz. 181, 68 P.3d 407 (2003), but the death sentence was vacated and the matter remanded for resentencing before a jury pursuant to Ring v. Arizona, 536 U.S. 584 (2002). On remand, a jury found two aggravating factors: Cropper had a prior serious conviction and he committed the murder while incarcerated. However, the jury could not reach a verdict as to whether the killing was especially cruel, or whether death was the appropriate sentence. A second jury was impaneled, and found that the murder was committed in an especially cruel manner and that death was the appropriate punishment. This is Cropper’s automatic appeal following that death sentence.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (PRIOR SERIOUS OFFENSE) - UPHELD
Cropper did not contest that he had been previously convicted of aggravated assault, a serious offense.

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – UPHELD
Cruelty – The evidence demonstrated that Cropper sought out a violent confrontation. The struggle lasted up to two minutes, he acknowledged. Further, the medical testimony regarding the victim’s wounds and blood loss demonstrates that the officer suffered physical pain. The medical examiner explained that the wounds inflicted would have been particularly painful because of the “higher concentration of nerves” in the neck; the officer would have felt a “stinging, burning kind of pain.” The officer bled to death as a result of a number of penetrating injuries to his thyroid gland, the jugular vein, and his chest cavity and lung. Thus, it would have taken minutes for him to lose consciousness because the time it would have taken to lose consciousness was the time it took him to bleed out. Thus, the facts established beyond a reasonable doubt that the officer consciously suffered physical pain and Cropper knew or should have known he would experience such pain.

(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:

Abusive childhood - The Court found Cropper had established this mitigator by a preponderance of the evidence because testimony detailed that both his father and stepmother abused him. However, it determined that childhood troubles deserve less weight in mitigation because Cropper was 33 years old when he committed the murder.

Remorse – The Court found Cropper’s expression of remorse in allocution, and testimony by witnesses that he had changed while in prison to be sufficient to establish this mitigator. However, the Court accorded it less weight based on the State’s strong rebuttal evidence that Cropper threatened penal personnel and wrote letters mocking them and bragging about the murder, continued to have disciplinary problems and act violently, and assaulted another inmate after the murder.

JUDGMENT: Conviction and death sentence affirmed.


State v. (Alfredo Lucero) Garcia, 224 Ariz. 1, 226 P.3d 370 (2010)
(DEATH PENALTY UPHELD)

PROCEDURAL POSTURE:
Garcia and Sheffield shot and killed a bar owner during a robbery. They were each charged with first degree murder and armed robbery. Their cases were severed for trial. A jury found Garcia guilty of both counts. Following a mistrial, a new jury found two aggravators, (F)(2) serious offense and (F)(5) pecuniary gain, and decided Garcia should be sentenced to death. The Supreme Court affirmed the convictions and death sentence. This is Garcia’s direct appeal.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (PRIOR CONVICTION OF SERIOUS OFFENSE) – UPHELD
The State proved this aggravator beyond a reasonable doubt by introducing documents reflecting Garcia’s prior convictions for sexual assault and armed robbery.

(F)(5) (PECUNIARY GAIN) – UPHELD
When the killing and robbery happen almost simultaneously, the Court will not attempt to divine the evolution of the defendant’s motive in order to discern when, or if, his reason for harming the victim shifted from pecuniary gain to some other speculative nonpecuniary drive. Considered in its totality, the evidence established beyond a reasonable doubt that Garcia’s participation in the murder was motivated by the expectation of pecuniary gain, even if assuming that Sheffield rather than Garcia shot the victim.

MITIGATING CIRCUMSTANCES:

(G)(3) (MINOR PARTICIPANT)
Garcia failed to establish this statutory mitigator because circumstantial evidence established that he was actively involved in the murder.

NON-STATUTORY MITIGATION
The Court found the following non-statutory mitigating factors established by a preponderance of the evidence: sentencing disparity (Sheffield received a life sentence), drug addiction, dysfunctional childhood, and lack of future dangerousness. All of these were accorded minimal weight. The Court also rejected remorse as mitigation because Garcia has consistently denied involvement in the murder.

JUDGMENT: Convictions and death sentence affirmed.


State v. (Aaron Brian) Gunches, 225 Ariz. 22, 234 P.3d 590 (2010)
(DEATH PENALTY VACATED)

PROCEDURAL POSTURE:
In November 2002, Gunches and a female friend drove the victim to an isolated desert area, where Gunches shot the victim four times. In October 2003, he was indicted for first degree murder and kidnapping. He was found competent to stand trial in November 2005 and competent to waive his right to counsel in November 2007. He subsequently pleaded guilty to both counts and stipulated during the aggravation phase that he had previously been convicted of a serious offense (F2). The jury also found that the murder was committed in an especially heinous or depraved manner (F6). Gunches presented virtually no mitigation evidence during the penalty phase, but requested leniency in allocution. The jury returned a death verdict. This is Gunches’s automatic appeal following that death sentence. Because the murder occurred after August 1, 2002, the Court reviewed for abuse of discretion the jury’s aggravation findings and death sentence. A.R.S. § 13-756(A).

AGGRAVATING CIRCUMSTANCES:

(F)(2) (PRIOR SERIOUS OFFENSE) - UPHELD
Gunches stipulated during the aggravation phase that he had previously been convicted of attempted murder, a serious offense.

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – REVERSED
Heinousness/Depravity - The Court reviewed the evidence supporting the jury’s aggravation finding of heinousness and depravity, which was based on the gratuitous violence factor. The medical examiner testified that each of the four wounds ultimately would have been fatal. Gunches fired the shots from several feet away and in rapid succession. The Court found that although there was substantial evidence that Gunches inflicted more violence than was necessary to kill, the record did not support the finding that he knew or should have known that he had fired the fatal shot and yet continued to inflict violence.

JUDGMENT: Convictions affirmed; death sentence vacated and remanded for resentencing.


State v. (Gary Wayne) Snelling, 225 Ariz. 182, 236 P.3d 409 (2010)
(DEATH PENALTY VACATED)

PROCEDURAL POSTURE:
Adele Curtis was strangled in 1996 in a townhouse she owned but was showing to prospective tenants. The murder remained unsolved until 2003 when DNA obtained from the scene matched Snelling’s profile. In addition, Snelling’s prints matched the prints found at the townhouse, and he had lived in the same complex as Curtis at the time of the murder. The jury found Snelling guilty of first degree murder and that the murder was committed in an especially cruel manner (F6). However, it could not reach unanimous agreement concerning whether the murder was committed for pecuniary gain and also hung on the appropriate penalty. A second jury was impaneled to determine the penalty and sentenced Snelling to death. This is Snelling’s automatic appeal following that death sentence. Because the murder occurred after August 1, 2002, the Court reviewed for abuse of discretion the jury’s aggravation findings and death sentence. A.R.S. § 13-756(A).

AGGRAVATING CIRCUMSTANCE:

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – REVERSED
Cruelty - The Court found that cruelty had not been established beyond a reasonable doubt. The record showed only that the victim was suddenly confronted by an assailant who promptly strangled her to death and therefore, she did not contemplate her fate for very long. The State also presented no evidence of physical suffering because even if the victim was conscious for some time during the strangulation, that alone does not support a finding of physical pain.

Because the Court on independent review found the evidence insufficient evidence to support the sole aggravator, it did not consider Snelling’s mitigation evidence and reduced the death penalty to natural life in prison.

JUDGMENT: Conviction affirmed; death sentence vacated and natural life sentence imposed.


State v. (Mike Peter) Gallardo, 225 Ariz. 560, 242 P.3d 159 (2010)
(DEATH PENALTY UPHELD)

PROCEDURAL POSTURE: Gallardo killed a 20-year old student he unexpectedly encountered while burglarizing the parents’ house.  The father returned home from work and found his son in the master bedroom, bound at the wrists and ankles, a pillowcase tied over his head and shot once in the back of the head. The jury convicted him of first degree murder, burglary, and kidnapping, found two aggravators (F2 (prior serious offense) and F6 (especially cruel), and determined that he should be sentenced to death. This is Gallardo’s automatic appeal following that death sentence. Because the murder occurred after August 1, 2002, the Court reviewed for abuse of discretion the jury’s aggravation findings and death sentence. A.R.S. § 13-756(A).

AGGRAVATING CIRCUMSTANCES:

(F)(2) (PRIOR SERIOUS OFFENSE) - UPHELD
The jury properly found that Gallardo had been previously convicted of a serious offense based on evidence of his prior convictions for armed robbery and burglary.

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – UPHELD
Cruelty
– The record contained substantial evidence that the victim experienced mental anguish before death and that Gallardo knew or should have known that such suffering would occur. The victim almost certainly was conscious when bound, as there is no reason to bind an unconscious person. There also was evidence that the victim struggled against the ligatures attempting to free himself. That he was bound hand and foot, a pillowcase was tied over his head, and he struggled to free himself also indicates he had time to suffer significant uncertainty as to his fate.

MITIGATING CIRCUMSTANCES:
Gallardo presented evidence about the impact of execution on his family and the general conditions of confinement in Arizona’s maximum security facilities. The Court found that a reasonable juror could conclude that the mitigation presented was not sufficiently substantial to call for leniency.

JUDGMENT:  Convictions and death sentence affirmed.


State v. (Donald David) Delahanty, 226 Ariz. 502, 250 P.3d 1131 (2011)
(DEATH PENALTY UPHELD)

PROCEDURAL POSTURE:
A jury convicted Delahanty of first degree murder, attempted arson, conspiracy to commit first degree murder, and solicitation to commit first degree murder. After Delahanty and the State waived a jury trial on aggravation, the trial court found that Delahanty had been convicted of serious offenses committed on the same occasion as the homicide (13-751(F)(2)) and that the victim was a peace officer killed while performing his official duties (13-751(F)(10)). Delahanty waived the presentation of mitigation at the penalty phase and the jury then determined that he should be sentenced to death. This is Delahanty’s automatic appeal following that death sentence. Because the murder occurred after August 1, 2002, the Court reviewed for abuse of discretion the jury’s aggravation findings and death sentence. A.R.S. § 13-756(A).

AGGRAVATING CIRCUMSTANCES:

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

The jury’s guilty verdict supported the trial court’s finding that Delahanty had been convicted of serious offenses committed on the same occasion as the homicide.

(F)(10) (VICTIM ON-DUTY PEACE OFFICER) – UPHELD

There was ample evidence to support the finding that the victim was a peace officer killed while performing his official duties. The officer, driving a marked patrol car, had stopped a car in which Delahanty was a passenger. Delahanty shot the officer three times in the head and neck, killing him.

MITIGATING CIRCUMSTANCES:

 

Shortly after the beginning of the penalty phase of trial, Delahanty sought to waive mitigation. The trial court determined that Delahanty knowingly, intelligently and voluntarily waived his right to present mitigation. The Court found that given Delahanty’s decision not to present mitigation evidence in the penalty phase, a reasonable jury could conclude that the mitigation was not sufficiently substantial to call for leniency.

JUDGMENT
:  Convictions and death sentence affirmed.



State v. (Clarence) Dixon, 226 Ariz. 545, 250 P.3d 1174 (2011)
(DEATH PENALTY UPHELD)

PROCEDURAL POSTURE:
Dixon was charged in 2001 with the 1978 murder of Deana Bowdoin, an ASU student who had been found dead in her bed. A jury convicted him of felony and premeditated murder, and found that Dixon had previously been convicted of a crime punishable by life imprisonment, F1, and that the murder was especially cruel and heinous, F6.  In the penalty phase, the jury determined that Dixon should be sentenced to death. This is Dixon’s automatic appeal following that death sentence. Because the murder occurred before August 1, 2002, the Court independently reviewed the jury’s aggravation findings and death sentence. A.R.S. § 13-755.

AGGRAVATING CIRCUMSTANCES:

(F)(1)
-PRIOR CONVICTION-LIFE IMPRISONMENT OR DEATH - UPHELD

Dixon was convicted of seven crimes stemming from the 1985 rape of an NAU student and seven life sentences were imposed. Dixon conceded on appeal that the aggravator was proved.

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

            Cruelty – The Court found especial mental cruelty had been proven.  Deana had to have suffered mental anguish while she was hit, raped, and strangled, and Dixon should have known that she would suffer.

MITIGATING CIRCUMSTANCES:

 

The Court gave little weight to Dixon’s mitigation evidence, which dealt with his ability to behave in prison, because prisoners are expected to behave properly. The Court found no other mitigation sufficiently substantial to call for leniency, and affirmed the death sentence.

JUDGMENT:  Conviction and death sentence affirmed.



State v. (Scott Alan) Lehr (Lehr II), 227 Ariz. 140, 254 P.3d 379 (2011)
(DEATH PENALTY UPHELD)

PROCEDURAL POSTURE:
Lehr, in connection with attacks on ten different women in 1991-92, was convicted of three counts of first degree murder, and numerous other offenses, and sentenced to death. Two of the murder convictions and all three death sentences were vacated on direct appeal in 2003.  See State v. Lehr (“Lehr I”), 201 Ariz. 509, 38 P.3d 1172, 1175 (2002). Following retrial in 2009, the jury found Lehr guilty and sentenced him to death for the two murders, but could not agree about the appropriate sentence for the third murder.  In lieu of a jury resentencing on that third murder, the State withdrew its request for the death penalty, and the trial court sentenced Lehr to life imprisonment to be served consecutively to his other sentences. This is Lehr’s automatic appeal following the death sentences. Because the murders occurred before August 1, 2002, the Court independently reviewed the jury’s aggravation findings and death sentences. A.R.S. § 13-755.

AGGRAVATING CIRCUMSTANCES:

(F)(1)
-PRIOR CONVICTION-LIFE IMPRISONMENT OR DEATH - UPHELD

For each of the murder victims, Lehr's convictions for murdering the other two victims established the (F)(1) aggravator. His prior convictions for kidnappings and sexual assaults of other victims also established this aggravator.

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

The (F)(2) aggravator was established based on Lehr’s two contemporaneous aggravated assault convictions regarding another victim.

MITIGATING CIRCUMSTANCES:

 

Lehr presented evidence to show that a natural life sentence would be a viable alternative to the death penalty because he has been sentenced to at least 716 years imprisonment for his non-capital convictions, he has been a well-behaved inmate with few disciplinary problems, and he poses little risk of violent conduct in prison. The Court gave all this mitigation little weight.

JUDGMENT:  Convictions and death sentence affirmed.



State v. (Wayne Benoit) Prince (Prince II), 226 Ariz. 516, 250 P.3d 1145 (2011)
(DEATH PENALTY UPHELD)

PROCEDURAL POSTURE
:
Prince killed his 13-year old stepdaughter during a domestic dispute.  His convictions and non-capital sentences were affirmed on direct appeal in 2003 but the death sentence was vacated and remanded for resentencing pursuant to Ring v. Arizona, 536 U.S. 584 (2002). See, State v. Prince (Prince I), 204 Ariz. 156, 61 P.3d 450 (2003). At the subsequent aggravation phase, the jury found two aggravators, F6 (especially cruel), and F9 (victim under age 15), but could not reach a unanimous verdict on the appropriate sentence. A second penalty-phase jury was impaneled and determined that Prince be sentenced to death. This is Prince’s automatic appeal following that death sentence. Because the murder occurred before August 1, 2002, the Court independently reviewed the jury’s aggravation findings and death sentence. A.R.S. § 13-755.

AGGRAVATING CIRCUMSTANCES
:

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

Cruelty – The victim experienced uncertainty about her fate, feared for her life, and consciously suffered mental anguish before being shot. On the night of the murder, she saw and heard Prince attack and savagely beat her mother in the family’s apartment.  She stood beside her mother in the living room as Prince, gun in hand, screamed and threatened to kill the entire family. He prevented anyone from leaving and threw the victim violently to the floor when she tried to run for help. Following more argument and violence against the mother, Prince shot the victim in the head. At least twenty minutes passed between the time Prince and the mother arrived home and the shooting occurred.

(F)(9) (AGE OF VICTIM) - UPHELD

The State introduced uncontroverted evidence that Prince was twenty-six when he murdered the victim, who was thirteen.

MITIGATING CIRCUMSTANCES
:

 

The Court found Prince had failed to prove by a preponderance of the evidence the statutory mitigator of significant impairment (A.R.S. § 13-751(G)(1)) but had established his mental health as a non-statutory mitigator. The Court also found Prince had established that he had a difficult childhood. However, it gave these mitigators little weight due to a lack of causal connection to the murder. The Court also found Prince’s remorse was entitled to some weight. It then concluded that in light of the relatively weak mitigation and the two aggravating factors, Prince’s mitigation was not sufficiently substantial to warrant leniency.

JUDGMENT:  Convictions and death sentence affirmed.


State v. (Jahmari Ali) Manuel, 229 Ariz. 1, 270 P.3d 828 (2011)
(DEATH SENTENCE UPHELD)

PROCEDURAL POSTURE: 
Manuel walked into a Phoenix pawn shop carrying a pistol covered with a blue plastic bag and immediately began firing at the shop owner, who fell to the floor behind a counter.  Manuel walked around the counter and continued firing, ultimately shooting the victim ten times.  He then took two guns from the shop. The jury convicted him of first degree murder, first degree burglary, armed robbery and misconduct involving weapons. After finding one aggravator ((F)(5) (pecuniary gain)), the jury determined that he should be sentenced to death. This is Manuel’s automatic appeal following that death sentence. Because the murder occurred after August 1, 2002, the Court reviewed for abuse of discretion the jury’s aggravation finding and death sentence. A.R.S. § 13-756(A).

AGGRAVATING CIRCUMSTANCE:

(F)(5) (PECUNIARY GAIN) – UPHELD

The Court found sufficient evidence to support the jury’s finding of the (F)(5) pecuniary gain aggravator.  Before the murder, Manuel had asked his girlfriend (D.J.) to go into the pawn shop and attempt to pawn a chain he had given her.  D.J. testified that Manuel was “broke” and might have needed money for gas. The jury also could infer that he had sent D.J. inside to determine who was present. Manuel entered the shop firing his weapon, suggesting that he committed the murder to facilitate the robbery. Manuel then took two pistols from the pawn shop. The jury could reasonably conclude that pecuniary gain was a motive, cause, or impetus for the murder.

MITIGATING CIRCUMSTANCES:
Manuel presented evidence about his troubled childhood and family history, his behavior during past incarcerations, and how his execution would impact his extended family. The Court found that although this evidence was extensive, a reasonable juror could conclude that the mitigation was not sufficiently substantial to call for leniency. Manuel was thirty-two years old at the time of the crime, he had been incarcerated several times previously, and he did not establish a strong causal relationship between the mitigating circumstances and the murder.

JUDGMENT:
  Convictions and death sentence affirmed.


State v. (Benjamin Bernal) Cota, 229 Ariz. 136, 272 P.3d 1027 (2012), (DEATH PENALTY UPHELD – REMANDED FOR RESENTENCING ON THE NON-CAPITAL COUNTS)

PROCEDURAL POSTURE: 
A jury convicted Cota of two counts of first degree murder, two counts of armed robbery, one count of possession of narcotics, and one count of unlawful flight.  He was sentenced to death on one first degree murder count and to prison terms for the other counts.  In the aggravation phase of the murder cases, the jury found that Cota had been convicted of a serious offense committed on the same occasion, A.R.S. § 13-751(F)(2), that Cota committed the crime while on authorized release, § 13-751(F)(7), and that one murder victim was over the age of seventy, § 13-751(F)(9).  In the penalty phase, the jury returned a death sentence for the murder of one victim, but was unable to reach a verdict as to the murder of the other victim. The trial court sentenced Cota to natural life on that count and to prison terms for the non-homicide counts, all but one consecutive to the others.  This is Cota’s automatic appeal following that death sentence. Because the murder occurred after August 1, 2002, the Court reviewed for abuse of discretion the jury’s aggravation findings and death sentence. A.R.S. § 13-756(A).

AGGRAVATING CIRCUMSTANCES:

(F)(2) (PRIOR SERIOUS OFFENSE) - UPHELD
There was ample evidence to support the finding that Cota had been convicted of serious offenses committed on the same occasion as the homicide.

(F)(7) (CRIME COMMITTED WHILE ON AUTHORIZED RELEASE) – UPHELD
There was ample evidence to support the finding that the crime was committed while Cota was on parole.

MITIGATING CIRCUMSTANCES:
Cota presented evidence on a variety of mitigating factors, including intoxication at the time of the murders, troubled family history, history of substance abuse, lack of previous violence, and low risk of future violence in prison. The jury did not abuse its discretion by finding insufficient mitigation to warrant leniency.

JUDGMENT:  Convictions and death sentence affirmed; non-capital sentences remanded to the trial court for re-sentencing.


State v. (James Granvil) Wallace (Wallace IV), 229 Ariz. 155, 272 P.3d 1046, (2012) (INDEPENDENT REVIEW; DEATH SENTENCES VACATED)

PROCEDURAL POSTURE: 
Wallace murdered his girlfriend Susan and her two children Anna and Gabriel 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. §13-703(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.  On appeal, the Supreme Court vacated all three death sentences, remanded two (Anna and Gabriel) for resentencing and reduced one (Susan) to life imprisonment with parole possible after 25 years, the only other option available in 1984.  State v. Wallace, 219 Ariz. 1, 191 P.3d 164 (2008).  At the fourth resentencing in 2009, a jury found the (F)(6) aggravator as to each child’s murder and again sentenced Wallace to death.  This is Wallace’s automatic appeal following that death sentence. Because the murder occurred before August 1, 2002, the Court independently reviewed the jury’s aggravation finding and death sentence. A.R.S. § 13-755(A).

AGGRAVATING CIRCUMSTANCE:

(F)(6) (HEINOUS OR DEPRAVED) – NOT PROVEN
In order to prove gratuitous violence, the State must show that Wallace 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 evidence adduced at the 2009 resentencing showed that as to Anna, Wallace struck her in the head at least ten times with a small wooden baseball bat, eventually breaking the bat, and dragged her into the bathroom and drove the broken bat into her throat.  The medical examiner was unable to determine the order of the blows or which blow caused death, except that the neck wound alone was not fatal.  He also was unable to determine whether Anna was alive when Wallace inserted the bat into her neck.  Describing it as a “close question,” the Court found that the evidence proved beyond a reasonable doubt that Wallace inflicted more injury on Anna than necessary to kill.  However, the State failed to prove beyond a reasonable doubt that Wallace continued to inflict injury after he knew or should have known that he had inflicted a fatal wound. The Court based its finding in part on Wallace’s statements made to the police the day after the murders that he had not known how hard it was to kill a human being and had wanted Anna to die quick but she had not.  It found that Anna’s murder was more akin to the clumsy and escalating attacks in other cases where gratuitous violence was not found.  Wallace’s act of jamming the bat into her throat appeared more an attempt to kill the victim than inflicting unnecessary violence.

Wallace struck Gabriel on the head with a pipe wrench at least eleven times.  The medical examiner again could not determine the order of the blows, but did opine that two separate wounds alone most likely would have been fatal.  He testified that if these two blows were delivered in rapid succession, there would be “no time for the person to register the effect of Blow A versus Blow B.”  These two blows also could have been the final blows to Gabriel’s skull.  Based on this evidence and Wallace’s statements, the Court again found the State had proved that Wallace inflicted more injury on Gabriel than necessary to kill but failed to prove that Wallace continued to inflict injury after he knew or should have known that he had inflicted a fatal wound.

MITIGATING CIRCUMSTANCES:

Because the Court found the sole aggravator not proven, it did not review the mitigating circumstances.

JUDGMENT:  Death sentences vacated and reduced to two sentences of life imprisonment with parole possible after 25 years, to be served consecutively to the life sentence previously imposed for Susan’s murder.


State v. (Brad Lee) Nelson, 229 Ariz. 180, 273 P.3d 632 (2012)
(DEATH PENALTY UPHELD)

PROCEDURAL POSTURE:  
Nelson was convicted of the premeditated murder of his 14-year old niece, and the jury found the aggravating factor that the victim was less than 15 years of age at the time of her death.  ARS 13-751(F)(9).  The trial court had granted a judgment of acquittal on the alternative theory of child molestation and felony murder, although there was evidence that the victim had been killed because she had been sexually assaulted.  This is Nelson’s automatic appeal following that death sentence. Because the murder occurred after August 1, 2002, the Court reviewed for abuse of discretion the jury’s aggravation findings and death sentence. A.R.S. § 13-756(A).  The Supreme Court affirmed the conviction and sentence of death.

AGGRAVATING CIRCUMSTANCE:

(F)(9) (AGE OF VICTIM) - UPHELD

The victim was 14 years and 10 months old.  Nelson did not challenge the sufficiency of the evidence to support the F(9) aggravator; he did, however, challenge its constitutionality under the Eighth and Fourteenth Amendments to the U.S. Constitution.  This aggravator is not unconstitutionally vague, because it does not apply to all murders and is easily understood.  It does not violate the equal protection and due process clauses because the legislature has the discretion to determine that murder of the very young and the very old is especially abhorrent.  And it is not cruel and unusual or disproportionate to the crime because there is a consensus in jurisdictions that impose the death penalty that age is a factor that should be considered when assessing the death penalty.

MITIGATING CIRCUMSTANCES:

Nelson presented evidence of a dysfunctional childhood; and an expert opined that but for that childhood, he would not have committed this murder.  But he failed to present any evidence about his life between 1986 – 2006.  Defendant was 35 years old at the time he murdered his 14 year old niece.  So the evidence of a dysfunctional childhood carried diminished weight.  Defendant also expressed remorse, apologizing to his sister in writing and in open court.  However, the jury had discretion to consider how much weight to give that evidence.  The jury did not abuse its discretion in determining that Defendant’s mitigating evidence was not “sufficiently substantial to call for leniency.” A.R.S. § 13-751(E).  The Court also declined to follow its previous precedent in State v. Bocharski, 218 Ariz. 476, 189 P.3d 403 (2008), because that was an independent review case involving the F(9) factor.

JUDGMENT:
  Convictions and death sentence affirmed; non-capital sentences remanded to the trial court for re-sentencing.


State v. (Dale Shawn) Hausner, 230 Ariz. 60, 280 P.3d 604, 2012 WL 2742174 (2012) (DEATH SENTENCE UPHELD)

PROCEDURAL POSTURE:
Hausner was convicted and sentenced to death for six murders. He and his co-defendant Samuel Dieteman engaged in a series of random shootings in the Phoenix area in 2005 and 2006. In addition to the murders, Hausner was convicted of 74 non-capital offenses. The Supreme Court determined the jury did not abuse its discretion in sentencing Hausner to death for each murder.  It affirmed all convictions and sentences, with the exception of one conviction of animal cruelty.

AGGRAVATING CIRCUMSTANCES:

(F)(6) (HEINOUS, CRUEL OR DEPRAVED) – UPHELD
 The Court found that the record contained substantial evidence that Hausner relished the four murders to which this aggravator applied at the time he committed them.  In recorded conversations in his apartment, Hausner joked with Dieteman about killing his most recent victim and other victims and declared, “I love shooting people in the back, it’s so much fun.”  He also kept news stories and bragged about the murders.

(F)(13) (COLD, CALCULATED MANNER) – UPHELDWith respect to four murders, the jury also found that they were committed in a cold, calculated manner.  The Court first found this aggravator to be unconstitutionally vague on its face, but capable of passing constitutional muster with appropriate narrowing instructions.  The trial court instructed the jury using similar instructions from Florida, upon which this aggravator was copied.  The Court found these instructions properly narrowed the aggravator and the terms “cold,” “calculated,” and “without pretense of moral or legal justification” were correctly defined.  The Court then found ample evidence to support this aggravator.

MITIGATING CIRCUMSTANCE:

The trial court ordered Hausner to undergo a competency examination when he stated that he wished to waive the presentation of mitigating evidence at the penalty phase.  After the examiner concluded that Hausner was competent, the trial court confirmed with Hausner that he had discussed his decision and its consequences with his counsel.  The trial court then found that he had knowingly, intelligently, and voluntarily waived mitigation.  The Supreme Court rejected Hausner’s argument on appeal that the trial court nonetheless should have required the presentation of mitigation even over his objection.  The Court commended the steps the trial judge took to ensure that Hausner was competent and that he knowingly, intelligently, and voluntarily waived mitigation.  It further directed “that similar procedures be prospectively applied when a capital defendant elects to waive the presentation of all mitigation.”

The trial court should engage the defendant in a colloquy to ensure that the defendant understands the penalty phase process, the right to present mitigation, and the consequences of waiving this right. Defense counsel should confirm on the record that he or she has discussed with the defendant the nature of the mitigation that could be presented and the consequences of waiver. The court should confirm on the record that the defendant is waiving the presentation of mitigation knowingly, intelligently, and voluntarily. If the circumstances present questions about the defendant’s competence, the court should order an appropriate mental examination before accepting the waiver. These procedures will help ensure that waivers are made on an informed and voluntary basis and, by avoiding subsequent questions on these issues, also facilitate the review of any related capital sentences.
 
JUDGMENT:  Convictions and death sentence affirmed.


State v. (Scott Douglas) Nordstrom, 230 Ariz. 110, 280 P.3d 1244, (2012)
(DEATH SENTENCE UPHELD)

PROCEDURAL POSTURE:
Nordstrom was convicted of two first degree premeditated murders, four felony murders for other homicides, attempted murder, armed robbery, and first degree burglary.   At sentencing, the trial judge found three aggravating factors.  On appeal the Arizona Supreme Court affirmed.

Before the court issued its mandate, the U.S. Supreme Court decided Ring v. Arizona, 536 U.S. 584 (2002). The Arizona Supreme Court vacated Nordstrom’s death sentence and remanded for resentencing by a jury.  (State v. Nordstrom (Nordstrom II), 206 Ariz. 242, 248 ¶¶ 26-28, 77 P.3d 40, 46 (2003)). The State withdrew its death penalty allegation for the four felony murders, and its (F)(5) and (F)(8) aggravators for the two premeditated murders.

At the new aggravation phase, the State argued that each premeditated murder served as the (F)(1) aggravating factor for the other.  The jury found the aggravator.  Nordstrom waived the presentation of mitigation evidence and declined to allocute.  At the penalty phase the State introduced evidence and the jury determined Nordstrom should receive the death sentence for each murder.

AGGRAVATING CIRCUMSTANCE:

(F)(1) (PRIOR CONVICTION) – UPHELD
 
Nordstrom argued that omission from the (F)(1) aggravator of specific language permitting the use of “same occasion homicides,” used in 13-751(F)(2), precluded the use of contemporaneous convictions in connection with (F)(1) aggravators.  The court held that concurrent convictions that were entered before sentencing can be used to establish the (F)(1) aggravator.   (Additionally, the court noted that the identified (F)(2) language was added by the legislature to displace an earlier ruling by the court, while the court’s previous (F)(1) ruling supported the use of concurrent convictions and required no similar legislative action.)

MITIGATING CIRCUMSTANCES:

Nordstrom elected to present no evidence in mitigation.  The trial court did not commit reversible error in permitting the State to present evidence (four felony murders; status as parolee when murders committed; facts surrounding the two murders; photographs of the victims and the crime scene), where Nordstrom had waived presentation of mitigation evidence at the Penalty Phase.

Applying rules of statutory construction and taking two statutory provisions together evinced a legislative intent to permit the state to introduce relevant evidence during the penalty phase, whether or not the defendant chooses to introduce mitigation evidence.   Further, the evidence presented was neither prejudicial nor did its presentation constitute a due process violation.  (Legislation enacted in 2012 confirms the court’s determination of legislative intent.)

The trial court did not permit the defendant to introduce portions of the 1998 trial transcripts, characterized by Nordstrom as “innocence related evidence.”  The Arizona Supreme Court interpreted this proffered evidence to be impermissible “evidence of residual doubt” and observed that “there is no constitutional requirement that the sentencing proceeding jury revisit the prior guilty verdict by considering evidence of ‘residual doubt’.” This observation applies equally to guilt phase evidence offered solely to show the defendant’s innocence of the crimes for which the death penalty is sought and related crimes for which the defendant was concurrently convicted.
 
JUDGMENT:  Death sentence affirmed.


State v. (Isiah) Patterson, 230 Ariz. 270, 283 P.3d 1, (2012)
(DEATH SENTENCE UPHELD)


PROCEDURAL POSTURE:
Patterson was convicted of the first degree premeditated murder of Consquelo Barker.  The State alleged and the jury found one aggravating factor, (F)(6): (especially heinous and depraved; the defendant was sentenced to death.  The defendant took an automatic appeal to the Arizona Supreme Court, which upheld the conviction and sentence.

AGGRAVATING CIRCUMSTANCE:

(F)(6) (HEINOUS, CRUEL OR DEPRAVED) – UPHELD
(Murders committed after August 1, 2002 require the Supreme Court to review the jury’s aggravation finding and death sentence.)

The victim was conscious while the defendant repeatedly stabbed her.  Although mortally wounded, she attempted to escape and seek help.  The defendant chased her down, sat over her and stabbed her – a total of thirteen times.  The jury did not abuse its discretion in finding the (F)(6) aggravator (“especially cruel”) based on the“..victim consciously suffer[ing] physical pain or mental anguish during at least some portion of the crime and the defendant knew or should have known that the victim would suffer.” State v. Dixon, 226 Ariz. 545, 556, 250 P.3d 1174, 1185 (2011).

MITIGATING CIRCUMSTANCES:

The defendant presented thirteen mitigating circumstances related to his upbringing: (1) his mother’s lack of mental stability; (2) mental illness; (3) abandonment by his father at a young age; (4) strong family support from his children and grandchildren; (5) consistent employment despite poor education; (6) ongoing separation from his siblings; (7) a family history of severe mental illness; (8) childhood bed wetting; (9) his father forcing him to leave the family home at age fourteen; (10) lack of education; (11) that he loves and is loved by his family; (12) that he is the father of many children; and (13) remorse.   The State rebutted much of the evidence, and argued that it was not substantial.
Even assuming the existence of mitigating circumstances by a preponderance of the evidence, the Court concludes there is no basis for concluding that the jury abused its discretion in failing to support leniency, given the circumstances of the murder, and the “especially cruel” (F)(6) aggravator.
 
JUDGMENT:  Death sentence affirmed.


State v. (Pete) VanWinkle, 230 Ariz. 387, 285 P.3d 308, (2012)
(DEATH SENTENCE UPHELD)

PROCEDURAL POSTURE:
VanWinkle was convicted and sentenced to death for the murder of another inmate while they were both incarcerated in the Maricopa County Jail.  The State alleged and the jury found three aggravators: (F)(2)(prior conviction of serious offense); (F)(6)(especially heinous and depraved); and (F)(7)(a)(in custody in county jail when murder committed). The Supreme Court acknowledged jurisdiction of the automatic appeal, and determined the jury did not abuse its discretion in sentencing VanWinkle to death, and affirmed his first degree murder conviction and death sentence.

AGGRAVATING CIRCUMSTANCE:
(Because the murder was committed after August 1, 2002, the Supreme Court reviewed the jury’s aggravation findings and imposition of the death sentence for an abuse of discretion under A.R.S. § 13-756(A).

(F)(2) (PRIOR CONVICTION OF SERIOUS OFFENSE) – UPHELD
Defendant did not challenge the State’s proof of the aggravating factor, (F)(2)(prior conviction of serious offense).  The State proved the aggravator by presenting certified copies of his conviction.

(F)(7)(A) (IN CUSTODY IN COUNTY JAIL) – UPHELD
Defendant did not challenge the State’s proof of the aggravating factor, (F)(7)(a)(in custody in county jail when murder committed).  The State proved the aggravator by presenting evidence that he was in custody at the time of the murder.

(F)(6) (HEINOUS, CRUEL OR DEPRAVED) – UPHELD
Although the trial court incorrectly instructed the jury regarding “gratuitous violence” (by failing to instruct that the state must show that the defendant continued to inflict violence after he knew or should have known that a fatal action had occurred), the error was harmless.  Proof that a defendant either employed gratuitous violence or relished the killing suffices to establish that a murder was especially heinous or depraved.  See State v. Rienhardt, 190 Ariz. 579, 590, 951 P.2D 454, 465 (1997).  Defendant beat the victim for nearly twenty minutes, punched him beat his head against the floor, and jumped up and down on his motionless body.  Because the attack began with a chokehold and testimony indicated that asphyxiation would have occurred within minutes; because the surveillance camera confirmed that less than two minutes into the attack the victim’s body was motionless, suggesting he had lost consciousness and died thereafter; and because the defendant continued the attack for several minutes, eventually trying to throw him from the second floor railing; and because the defendant admitted that he continued the attack after he knew the victim had died, the jury could conclude that defendant continued to inflict violence after he knew he had killed the victim.  This constitutes gratuitous violence.

MITIGATING CIRCUMSTANCES:

Defendant’s mitigation focused on the physical and social realities of prison life: (1) the murder was a reaction to the stress of the dangerous high security environment; (2) the jail provided inadequate security procedures to prevent and respond to violence between inmates; and (3) immersion in “prison culture” leaves inmates with few appropriate ways to respond to personal violence or threats.  In addition, he claimed the victim was a “danger,” so the defendant had less moral culpability.

The Court permitted the introduction of rebuttal evidence in the penalty phase: the State was allowed to present rebuttal evidence that VanWinkle had attacked and seriously injured another, weaker inmate after he killed the victim. Following the attack, VanWinkle responded that he would not have passed up the opportunity to attack the other inmate because he was a sex offender. This evidence properly rebutted VanWinkle’s claims in mitigation that he was forced by inmate rules or the stress of prison life to kill the victim in this case.

JUDGMENT:  Death sentence affirmed.


State v. (Rodney Eugene) Hardy, 230 Ariz. 281, 283 P.3d 12, (2012)
(DEATH SENTENCE UPHELD)

PROCEDURAL POSTURE:
Hardy was convicted and sentenced to death for the murders of his wife Tiffany and her boyfriend Don. Hardy admitted shooting the couple but claimed he committed manslaughter in the heat of passion, not first degree murder. The jury found him guilty of first degree murder for both homicides and found two aggravators: (F)(2)(prior serious offense); and (F)(8)(multiple homicides). On appeal, the Supreme Court determined the jury did not abuse its discretion in sentencing Hardy to death, and affirmed his convictions and death sentences.

AGGRAVATING CIRCUMSTANCE:
(Because the murders were committed after August 1, 2002, the Supreme Court reviewed the jury’s aggravation findings and imposition of the death sentence for an abuse of discretion under A.R.S. § 13-756(A).

(F)(2) (PRIOR CONVICTION) – UPHELD

The jury found that Hardy was previously convicted of a serious offense, and Hardy did not contest the finding.

(F)(8) (MULTIPLE HOMICIDES) – UPHELD

The jury found that Hardy was convicted of one or more homicides during the commission of the offense, and Hardy did not contest the finding.

MITIGATING CIRCUMSTANCES:

During the penalty phase, Hardy presented evidence, which included the climate of poverty and violence in which he grew up, alleging that it resulted in cognitive impairment; a troubled childhood; a lack of positive male role models; devotion to his family; his physical disability; and a lack of propensity for future violence.  The Court upheld the jury’s discretion in finding the mitigation evidence insufficient to warrant leniency.
 
JUDGMENT:  Death sentence affirmed.


State v. (Ronnie Lovelle) Joseph, 230 Ariz. 296, 283 P.3d 27, (2012)
(DEATH SENTENCE UPHELD)

PROCEDURAL POSTURE:
Joseph was convicted of First Degree(Felony)Murder in connection with the murder of his 14 year old nephew, which occurred during a violent argument with his wife, during the course of which he pulled a gun, shot her and shot and killed a third person. The jury also convicted him of attempted first degree murder, attempted second degree murder, first degree burglary and misconduct involving weapons.

On automatic appeal, the Supreme Court upheld the trial court’s (1) admission of evidence of the basis of the expert’s opinion; (2) determination that an Enmund/Tison instruction was not required; and (3) finding that the defendant’s waiver of his right to present mitigation was knowing, voluntary and informed, noting its recent decision in State v.  Hausner, __ Ariz. __, _ P.3d __, 2012 WL 2742174 (July 10, 2012).

After the jury found the presence of two aggravating factors (A.R.S. § 13-751(F)(2) – previous conviction of a serious offense and A.R.S. § 13-751(F)(9) – victim was less than fifteen years of age), it considered whether, in light of any mitigating factors presented during the trial, whether death was appropriate; the jury imposed the death penalty.

AGGRAVATING CIRCUMSTANCE:
(Because the murder occurred after August 1, 2002, the court reviewed the death sentence to “determine whether the trier of fact abused its discretion in finding aggravating circumstances and imposing a sentence of death.” A.R.S. § 13–756(A) (2010).)

(F)(2) (PRIOR CONVICTION / SERIOUS OFFENSE) – UPHELD
The jury found this aggravating factor proven: Joseph previously had been convicted of a serious offense, A.R.S. § 13–751(F)(2), Joseph did not contest this finding; the record supports the jury's finding.

(F)(9) (AGE OF VICTIM) – UPHELD
The jury found this aggravating factor proven: Joseph’s victim was less than fifteen years of age, § 13–751(F)(9). Joseph did not contest the finding; the record supports the jury's finding.

MITIGATING CIRCUMSTANCES:

Joseph did not present any mitigating evidence.   Although Joseph elected not to present any mitigating evidence, the Court held that the jury was permitted to consider in mitigation “any evidence that was presented at any prior phase of the trial.” A.R.S. § 13–752(I). In light of the record, the jury did not abuse its discretion in concluding that the mitigating circumstances were not sufficiently substantial to call for leniency.

Joseph further argued that his waiver of the right to present mitigating evidence was “constitutionally invalid” because he did not make his waiver knowingly, voluntarily, and intelligently.  The Court cited its recent decision in Hausner, ___ Ariz. at ___ ¶ 122, ___ P.3d at ___, where it set forth the inquiries that the trial court should make to determine that the defendant (1) understands what mitigation is, the right to present mitigation evidence, and the consequences of waiving that right, and (2) makes the decision voluntarily.
The Court found that the trial judge took many of the steps recommended in Hausner and repeatedly had Joseph confirm that he understood his rights and yet chose not to present any mitigating evidence.

JUDGMENT:  Death sentence affirmed.


State v. (Gilbert) Martinez, Sr., 230 Ariz. 208, 282 P.3d 409, (2012)
(DEATH SENTENCE UPHELD)

PROCEDURAL POSTURE:
A jury found Martinez guilty of one count of first degree murder, in addition to first degree burglary, four counts of aggravated assault, four counts of kidnapping, and one count of theft.  After a mistrial in the penalty phase, a second jury imposed the death sentence. 

Martinez and an accomplice burglarized the home of an elderly Sun City couple. They shot and killed one of six people present, and then fled, taking some of the couple’s possessions. Martinez was later linked to this burglary, and to six other burglaries/robberies in the area. Twenty-three criminal counts were charged, and six separate trials were held (the trial court severed the charges by occurrence); Martinez was convicted on ten charges,  acquitted on one charge, another was dismissed, and a ninety-nine year prison term was imposed. This is the sixth and final trial, on the last eleven counts, from which this appeal was taken. The first jury found him guilty; found aggravators (A.R.S. § 13-751(F)(2) – previous conviction of a serious offense and A.R.S. § 13-751(F)(5) – murder for pecuniary gain); found that Martinez actually killed the victim; but could not agree on a sentence. A second sentencing phase trial ensued, with a newly-impaneled jury, found no mitigating factors sufficient to invoke leniency, and imposed a death sentence.

On automatic appeal, the Supreme Court upheld the conviction and sentence.

AGGRAVATING CIRCUMSTANCE:
(Because the murder occurred after August 1, 2002, the Court reviewed the death sentence to “determine whether the trier of fact abused its discretion in finding aggravating circumstances and imposing a sentence of death.” A.R.S. § 13–756(A)).

(F)(2) (PRIOR CONVICTION / SERIOUS OFFENSE) – UPHELD
The Court addressed for the first time whether to limit the number of prior convictions the state can use as (F)(2) aggravators, and held that the jury did not abuse its discretion in finding this aggravating circumstance. The State proved the (F)(2) aggravator by showing Martinez had nineteen serious offense convictions.

(F)(5) (COMMISSION OF MURDER FOR PECUNIARY VALUE) – UPHELD
Martinez and an accomplice “scoped out” the home, left to retrieve a gun, and then returned wearing gloves and masks to commit the burglary and theft.  They took items from the home, Martinez shot one person, and then fled with the stolen property. Martinez went to the victims' home expecting pecuniary gain, and the murder allowed him “to keep the stolen property and avoid capture.” The record also contains sufficient evidence supporting the jury's finding that Martinez committed the murder for pecuniary gain. The jury did not abuse its discretion in finding the aggravating circumstance. [Citing Martinez, 218 Ariz. at 435, 189P.3d at 362; see also State v. Ellison, 213 Ariz. 116, 143, 140 P.3d 899, 926 (2006)(finding pecuniary gain aggravating circumstance proven when defendant went to victims’ house to commit burglary and committed the murders to “escape and avoid detection”)].

MITIGATING CIRCUMSTANCES:

Although Martinez argued that  allowing the State to introduce his accomplice’s statements through a detective’s testimony violated his Sixth Amendment right to confrontation, the Court held it inapplicable to rebuttal testimony at a sentencing hearing, noting that Martinez had an opportunity to cross-examine the accomplice during the guilt phase. Martinez presented evidence of his low IQ and brain damage, which the State effectively rebutted it with evidence that he malingered, lowering his performance on the tests. Because Martinez was forty-one years old when he committed the murder, the jury was entitled to give less weight to mitigating evidence stemming from his childhood.  The Court declined to “… reverse the jury's decision [to impose the death penalty] so long as any reasonable jury could have concluded that the mitigation established by the defendant was not sufficiently substantial to call for leniency.”

JUDGMENT:  Death sentence affirmed.


State v. (Fabio Evelio)Gomez, 2012 WL 6061679, 293 P.3d 495 (Ariz., 2012)
(DEATH SENTENCE UPHELD)

PROCEDURAL POSTURE:
Gomez was charged in 1999 with the murder, kidnapping and sexual assault of Joan Morane, who lived in the same apartment complex. A jury found him guilty of the charges in 2001, but before a judge sentenced him, the U.S. Supreme Court decided Ring v. Arizona, 536 U.S. 584 (2002). Following sentencing proceedings in 2003, a jury found the murder was committed in an especially cruel and depraved manner (A.R.S. § 13-751(F)(6)) and sentenced Gomez to death. On automatic appeal, the Arizona Supreme Court vacated the death sentence because Gomez had been visibly shackled before the jury. State v. Gomez, 211 Ariz. 494, 123 P.3d 1131 (2005). On remand, a third (2010) jury found the (F)(6) “especially cruel” aggravator and determined Gomez should be sentenced to death. This is Gomez’s automatic appeal following the 2010 conviction. Because this murder occurred before August 1, 2002), the Court conducted an independent review of the death sentence.

AGGRAVATING CIRCUMSTANCE:

(F)(6) (“Especially Cruel”) – UPHELD
The record established beyond a reasonable doubt that Joan's murder was especially cruel (i.e., “..that‘the victim consciously experienced physical or mental pain prior to death, and the defendant knew or should have known that suffering would occur.’ (quoting State v. Snelling, 225 Ariz. 182, 188 ¶ 25, 236 P.3d 409, 415 (2010)”).

Gomez argued that especial cruelty was not proven because the medical examiner could not determine the “sequence of blows, the consciousness of the victim, and the nature of the bruising” that Gomez inflicted. The argument failed.

Joan's injuries, her screams, evidence of a struggle in Joan's apartment, and the fact that she had been gagged all indicated Joan was conscious during part of the attack. Cf. State v. Andriano, 215 Ariz. 497, 511 ¶ 66, 161 P.3d 540, 554 (2007) (finding cruelty where “[d]efensive wounds on [the victim's] hands and wrists indicate that he was conscious for at least some of the attack and thus knew his wife was attacking him”), abrogated on other grounds by State v. Ferrero, 229 Ariz. 239, 274 P.3d 509 (2012).

The Court held that regardless of when Joan lost consciousness as result of the eighteen blows to her head, the State proved beyond a reasonable doubt that she was conscious for part of the attack and suffered physically and mentally. The State also proved beyond a reasonable doubt that Gomez knew or should have known that Joan was suffering physically and mentally. See, e.g., id. (defendant “knew or should have known that beating her husband with a bar stool would cause him physical pain and mental anguish”).

MITIGATING CIRCUMSTANCES:

After reviewing the mitigation presented, the Court found the mitigating circumstances were not substantial, and affirmed the death penalty.

At the mitigation phase, Gomez presented testimony from family members and others who knew him in the Dominican Republic and established that he had a good upbringing and was treated well by his parents while growing up. During allocution, Gomez asked for an opportunity to obtain an education and to be rehabilitated.

The State disputed Gomez's alleged mitigating factors, contending that his family members and friends from the Dominican Republic had no significant contact with Gomez in the more than ten years between his move to the United States and Joan's murder. At the penalty phase, to contradict Gomez's claims that he was a productive member of society and caring father, the State introduced testimony from the guilt phase in which Gomez admitted using drugs and said that, on the day of the murder, he had smoked marijuana before driving with his infant son in a car and had later left the baby unattended while he engaged in consensual sexual intercourse in another car.

 “A defendant's relationship with his or her family and friends may be a mitigating circumstance, yet the Court has often found that this circumstance should be given little weight.” State v. Tucker, 215 Ariz. 298, 322 ¶ 116, 160 P.3d 177, 201 (2007). Similarly, a defendant's lack of a prior felony conviction “is a mitigating circumstance, but entitled to little weight.” State v. Greene, 192 Ariz. 431, 442 ¶ 52, 967 P.2d 106, 117 (1998).

 
JUDGMENT:  Convictions and death sentence affirmed.

Gomez kidnapped and sexually assaulted Joan and brutally bludgeoned her to death. The record does not reflect significant mitigating circumstances. We conclude that “the mitigation is not sufficiently substantial to warrant leniency.” A .R.S. § 13–755(B).