State v. (Manuel) Ovante, Jr., --- P.3d ---, 2013 WL 132542 (January 11, 2013)
(DEATH SENTENCE UPHELD)
PROCEDURAL POSTURE: Ovante was charged with two counts of first degree murder (V1; V2) and one count of aggravated assault (as to the surviving victim, V3). Two aggravating circumstances were alleged in support of imposition of the death penalty: previous conviction of a serious offense (the aggravated assault of V3, (F)(2); and one or more other homicides committed during the commission of the offense, (F)(8).
Ovante plead guilty as charged; he admitted the aggravating circumstances, making him eligible for the death penalty.
A jury sentenced him to death for the murder of one victim (V2) and to life with the possibility of parole after 25 years for the murder of the second victim (V1).As determined by the penalty phase jury, the judge imposed a sentence of life with the possibility of parole after 25 years as to V1, death as to V2; further, the judge imposed a mitigated 6 year term as to V3.
This is Ovante’s automatic appeal following the 2010 conviction. Because this murder occurred after August 1, 2002), the Court reviewed the death sentence for abuse of discretion.
(F)(2) (“Previous Conviction of Serious Offense”) – UPHELD
Ovante admitted the (F)(2) aggravator based on his conviction of aggravated assault with a handgun against V3.
(F)(8) (“One or More Homicides during Commission of Offense”) – UPHELD
Ovante admitted the (F)(8) aggravator based on his premeditated murder of V2.
After defendant admitted the aggravating factors, the court conducted a second colloquy to confirm that Ovante was knowingly, voluntarily, and intelligently admitting the aggravators and that he understood that death was a possible sentence. The record supported defendant’s admission.
Nothing prevents a defendant from waiving his Sixth Amendment right to have a jury determine aggravating circumstances. State v. Brown, 212 Ariz. 225, 231 ¶ 26, 129 P.3d 947, 953 (2006) (citing Blakely v. Washington, 542 U.S. 296, 310, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)).
Ovante presented several mitigation witnesses, who testified as to Ovante's childhood of poverty, violence, crime, molestation, and drug use. Defendant provided evidence of his longstanding substance abuse, and expressed remorse during allocution. The Court held that there was little evidence showing a strong connection between the mitigation and the murders; thus, the mitigation evidence was afforded little weight.
The Court held that a reasonable juror could conclude that the mitigating circumstances were not “sufficiently substantial to call for leniency.”
JUDGMENT: Convictions and death sentence affirmed.
State v. (Shawn Ryan) Grell (Grell III) , --- P.3d ---, 2013 WL 85349(January 9, 2013)
(DEATH SENTENCEVACATED –(MR); LIFE SENTENCE IMPOSED)
PROCEDURAL POSTURE: Grell was charged with the December 1999 death of his two-year-old daughter, whom he doused with gasoline and lit on fire. He turned himself in, and confessed to the crime, the next day. He was tried and convicted of first degree murder. At sentencing in 2001 he presented evidence of mental retardation, arguing that this and other factors supported leniency. The trial court found otherwise and imposed a sentence of death.
While the Grell automatic appeal was pending, the United States Supreme Court decided Atkins v. Virginia, holding that defendants with mental retardation cannot be executed. Arizona’s Supreme Court returned Grellto the trial court to decide whether Grell had mental retardation. (Grell I, 205 Ariz. 57 (2003)). The trial court determined that mental retardation was not proven by clear and convincing evidence (CCE), and that decision was appealed to Arizona’s Supreme Court.
Following its review, the finding that he had not met the statutory burden (CCE) to prove mental retardation was upheld; nonetheless, the case was again returned to the trial court, this time based on the determination that Grell had preserved his right to have a jury determine his sentence under Ring (536 U.S. 584). (Grell II, 212 Ariz. 516(2006)). Although Grell provided substantial evidence that he had mental retardation, the jury found that the State had proven three aggravating factors: conviction of a prior serious offense, (F)(2); especially heinous, cruel or depraved, (F)(6)); and young age of the victim, (F)(9); and that there was insufficient evidence to call for leniency. The jury sentenced him to death.
An automatic appeal followed.
On independent review, the Court found that the State proved all three aggravating factors beyond a reasonable doubt, but did not address them in detail in light of its conclusion that Grell’s mental retardation precludes imposition of the death penalty.
The Court next considered “Mental Retardation” [intellectual disability] and did not reach the issue of --MITIGATING CIRCUMSTANCES—
MENTAL RETARDATION (Current statutory language: Intellectual Disability)
Although the automatic appeal from that sentence identified numerous issues concerning the claim of mental retardation, the Supreme Court reached none of them. The Court conducted its Independent Review (as was mandated for pre-8/1/2002 cases) to determine the propriety of the death sentence.
The Court focused on the issue of mental retardation, applying the Arizona statutory definition, and most particularly scrutinized the second prong, “significant impairment in adaptive behavior.”
The Court noted that although it had affirmed the trial court’s finding in 2006 (Grell II)(mental retardation not proven by clear and convincing evidence), the Court had done so in deference to the trial court’s consideration of the evidence presented. Noting that the Court’s current review is an independent review, which does not require such deference, the Court observed that today’s independent review is governed by A.R.S. §§ 13-755; 13-751(C).
The Arizona statute requires, for a finding of mental retardation[See NOTE.]:
|“(1) significantly subaverage general intellectual functioning, existing concurrently with
(2) significant impairment in adaptive behavior,
(3) where the onset of the foregoing conditions occurred before the defendant reached the age of eighteen.”
A.R.S. § 13-753(K)(3).
[NOTE: An amendment changed the language from “mental retardation” to “intellectual disability.”]
The Court initially found the first prong, “Subaverage intellectual functioning,” to which the State had stipulated and which the Court briefly discussed (1 page, at 4).
The Court addressed at length the second prong, “Significantly impaired adaptive behavior” (14 pages, at 5-18). The Court turned to A.R.S. §§ 13-755; 13-751(C), setting forth the defendant’s burden of proof at the penalty phase, preponderance of the evidence, to establish the standard to be applied in its Independent Review. Utilizing the lower standard of proof (The prior Atkins hearing had been governed by the “clear and convincing evidence” burden of proof.) coupled with the “…substantially more – and more convincing – evidence of adaptive skills deficits [presented] in his 2009 resentencing hearing than he presented in 2005….,” and the fact that “..Grell convincingly rebutted the State’s case in a way that he did not do in 2005,” the Court held that Grell had significant adaptive skill deficits.
The Court finally addressed the third prong, finding there was “..nothing in the school records or the testimony of school employees that casts doubt on their conclusions that Grell had mental retardation when the administrators and teachers dealt with him as a child.” This satisfied the third prong (“Onset before age 18) and was also brief (2 pages, at 18-19).
The Court held that Grell has mental retardation and that, under Atkins, he is not eligible for the death penalty, as such would constitute cruel and unusual punishment in violation of the Eighth Amendment. The Court, while acknowledging the “..horrific nature of this crime and the devastation it has brought to [the victim’s] family,” imposed a sentence of natural life.
JUDGMENT: Death sentence vacated and sentence of natural life imposed.
State v. (Steven John) Parker, ---Ariz.---, --- P.3d ---, 2013 WL 950032 (March 13, 2013)
(DEATH SENTENCE UPHELD)
PROCEDURAL POSTURE:The victims, a husband and wife who lived next door to defendant, were last seen alive on September 24, 2005; their bodies were found on Monday, September 26th. In the early evening of the 24th their bank and credit cards were used at various locations near their home.
A 2010 jury found Parker guilty of two counts of first degree murder, one count of first degree burglary and one count of kidnapping, and also found three aggravating factors: pecuniary gain (F)(5), especial cruelty (F)(6), and multiple homicides (F)(8). After considering whether mitigation was sufficiently substantial to call for leniency, the jury sentenced defendant to death.
The Supreme Court determined the jury did not abuse its discretion in sentencing Parker to death for each murder. It affirmed all convictions and sentences
(F)(5) (PECUNIARY GAIN) – UPHELD
To prove the pecuniary gain aggravator, the state must show that “the expectation of pecuniary gain is a motive, cause, or impetus for the murder and not merely a result of the murder.” The State introduced evidence that V1's wallet and V2's purse were missing after the murders. Their credit and bank cards were used several times in the following days, including once at a bar that defendant had visited for a poker tournament and possibly again during the week of the murders, and on a route to Mexico at the time defendant was driving there. In addition, the State introduced evidence that defendant had financial problems when the murders occurred. The evidence of defendant's financial troubles, the use of the Smiths' credit and bank cards, and the inferences that can be drawn from that evidence support the jury's finding. [Citations omitted].
(F)(6) (ESPECIAL CRUELTY) – UPHELD
To prove the especial cruelty aggravator, the state must establish “that a victim was conscious and suffered physical pain or mental anguish before death and that the defendant knew or should have known that the victim would suffer.” There was evidence that both V1 and V2 were conscious during the attack and that they suffered. V1 had several stab wounds, and the location of the wounds and the blood spatter indicate that he was stabbed before receiving the blunt force injury that killed him. Further, the blood spatter expert testified that V1 likely tried to come to V2's aid after he was initially attacked, suggesting that V1remained conscious and suffered physical pain and mental anguish.
As for V2, her ankles were bound with speaker wire and she had ligature marks and bruises, caused by blunt force trauma likely inflicted before her death, on her leg and foot. She also suffered knife wounds to her left hand and face. Although she would have remained conscious only a short while after her fatal injury — a stab wound to her chest that cut her aorta — even this small period of suffering can establish especial cruelty. Further, that V1 was bound supports a finding that she was conscious, and so would have suffered mental anguish. [Citations omitted].
(F)(8) (MULTIPLE HOMICIDES) – UPHELD
To prove the multiple homicides aggravator, the state must show that the murders were “temporally, spatially, and motivationally related, taking place during one continuous course of criminal conduct.” Defendant argued that the evidence suggesting that V1 came to V2's aid indicates that, even if defendant was the initial assailant, he killed V1 in self-defense and, thus, did not have the same motivation for V1's killing as for V2's. The jury, however, could have inferred that both homicides were committed during the same course of conduct and with the same motive, whether pecuniary gain or another motive. [Citation omitted].
Defendant presented mitigating evidence that “he is a highly intelligent, nonviolent young man who loves his children and family and these acts are diametrically opposed to his character, intellect and psychology.” This evidence included IQ scores of 129 and 135, grades in the top five percent of his class, participation in high school sports, and attendance at the University of Arizona where he worked in the library and residence halls. Friends and family testified to defendant's good character. The mitigation specialist found no evidence of a troubled childhood, and a forensic neuropsychologist testified that he found “no indication of any psychiatric disturbance,” mental illness, brain damage, or antisocial personality disorder in defendant.
Even assuming that defendant proved all of his mitigating factors, the Supreme Court held that the jury did not abuse its discretion in concluding that leniency was not warranted.
JUDGMENT: Convictions and death sentence affirmed.
State v. (Edward James) Rose, ---Ariz.---, --- P.3d ---, 2013 WL 1338124 (April 5, 2013) (DEATH SENTENCE UPHELD)
PROCEDURAL POSTURE: Rose was convicted and sentenced to death for the July 2007 murder of Phoenix Police Officer George Cortez, Jr. The officer was responding to the report of a crime in progress (defendant attempting to cash a forged check) at a check cashing store. With one hand in handcuffs, the defendant grabbed a gun, shot the officer and ran; the officer died at the scene. Defendant was arrested the next morning.
Defendant was charged with first degree murder of a law enforcement officer, first degree felony murder, and eight other non-capital counts. On the first day of trial, he plead guilty to all charges. The jury found four aggravating factors: prior conviction of a serious offense (F)(2); pecuniary gain ((F)(5); murder while on probation (F)(7); and victim’s statusas a police officer (F)(10). Finding insufficient mitigation to support leniency, the jury sentenced defendant to death.
On automatic appeal, the Supreme Court determined the jury did not abuse its discretion in sentencing defendant to death for first degree murder. On abuse of discretion review, the Supreme Court affirmed all convictions and sentences.
Other than the (F)(5) aggravator, defendant did not contest the remaining (3) aggravating factors: (F)(2), (F)(7) or (F)(10), although he challenged the constitutionality of the (F)(10) aggravator: victim was a police officer. The Court found that sufficient evidence supported each of the aggravating factors.
(F)(5) (PECUNIARY GAIN) – UPHELD
To prove the “expectation of pecuniary gain” aggravator, the state must show that “the expectation of pecuniary gain is a motive, cause, or impetus for the murder and not merely a result of the murder.” The pecuniary gain aggravating factor requires a “causal connection between the pecuniary gain objective and the killing,” and may include “facilitat[ing] escape or hinder[ing] detection.” That the attempted theft by cashing a forged check had failed and defendant had not received any money before the officer arrived did not negate the “expectation of pecuniary gain” finding. Facts supporting this finding include (1) defendant’s statement that he would shoot anyone who tried to stop him from cashing the forged check; (2) the murder occurred close in time and location to the burglary; (3) the murder facilitated his escape and ability to hide temporarily; and – most persuasive under Cañez, 202 Ariz. 133, 159, 42 P.3d 564, 590(2002)– (4) defendant did not try to conceal his identity.
The “expectation of pecuniary gain” (F)(5) aggravator was not automatically proven by the conviction for felony murder predicated on burglary. Burglary requires proof of entry with intent to “commit any theft or felony, ” while the (F)(5) aggravator requires proof that defendant’s motive was the expectation of pecuniary gain.
(F)(10) (VICTIM WAS A POLICE OFFICER) – CONSTITUTIONALITY UPHELD
A.R.S. § 13-751(F)(10), which makes the killing of a police officer in the line of duty an aggravating circumstance, is constitutional. The (F)(10) factor neither arbitrarily nor irrationally distinguishes between a peace officer and a non-peace officer in violation of equal protection and due process principles. The Court cited Cruz, noting a similar lack of authority for the proposition that the legislature cannot identify the killing of an on-duty peace officer as an aggravating factor. Since punishment for criminal activity is within the purview of the legislature, the Court presumed the constitutionality of the statute “when there is a reasonable, even though debatable, basis for the enactment of a statute.” State v. Arnett, 119 Ariz. 88, 47-48, 579 P.2d 542, 551-52 (1978).
Application of the (F)(10) factor does not constitute cruel and unusual punishment in violation of the Eighth Amendment. The Court applied the “evolving standards of decency that mark the progress of a maturing society” to determine whether the punishment was cruel and unusual. Defendant conceded that other states recognize a peace officer’s murder as an aggravating factor.
Mitigation included evidence of alleged mental health problems, multiple head injuries, drug and alcohol addiction, low IQ, methamphetamine use in the days before the murder, and emotional neglect. Although defendant characterized mitigation as “overwhelming [such that] a death sentence is not justified by the evidence, ” the State rebutted much of the mitigation. The Court upheld the jury’s finding that leniency was not warranted.
JUDGMENT: Conviction and death sentence affirmed.
State v. (Eric Deon) Boyston,---Ariz.---, --- P.3d ---, 2013 WL 1501020 (April 15, 2013) (DEATH SENTENCE UPHELD)
PROCEDURAL POSTURE: Defendant killed three people, including two family members, and seriously wounded several others. The jury found him guilty of three counts of first degree murder, one count of attempted first degree murder, and one count of attempted second degree murder. The jury found three aggravating factors: prior conviction of a serious offense (F)(2), especially cruel (F)(6) (only for the murder of his uncle and his uncle’s friend, (V2 and V5), and multiple homicides (F)(8).
Following automatic appeal/abuse of discretion review, the Supreme Court affirmed the three first degree murder convictions, the aggravating factors, and death sentence, as well as the non-capital convictions.
Defendant did not challenge the (F)(2) (conviction of a serious offense) aggravator, but contested the remaining two aggravating factors: (F)(6) and (F)(8). The Court found that sufficient evidence supported each aggravating factor.
(F)(6)(“ESPECIALLY CRUEL”) – UPHELD
The “especial cruelty” aggravating factor requires that “the victim consciously experienced physical or mental pain prior to death, and the defendant knew or should have known that suffering would occur. Consideration is given to not only the final act but the entire series of events.
Although defendant’s alleged PCP intoxication was referenced in the guilt phase, additional evidence was not introduced during the aggravation phase to rebut defendant’s ability to “know or should know” but was held until the penalty phase. Several witnesses indicated that defendant seemed normal. The jury did not abuse its discretion.
The defendant shot V2 twice in the back and once through his arm. V2 walked ten feet and said, “..it hurts.” The statement of pain was supported by ME testimony about blood-drop patterns, the location of pain receptors and the source of the blood. The jury could reasonably find that V2 was shot at close range inside the apartment and that significant physical pain ensued. The jury could as reasonably conclude that defendant knew or should have known that he had caused pain, as the defendant followed the wounded, barely walking V2 outside where he shot him two more times.
Defendant stabbed V5 nine times. Three to the facial area and two to his back were non-fatal wounds; of the four to the chest, one was fatal. The fatal wound would have resulted in death within a few seconds or minutes, up to twenty minutes. Because the victim’s hands were covered in blood, the ME testified that V5 likely attempted to stop the bleeding. The victim’s cries for help and attempts to stop the blood flow demonstrate not only physical pain but also mental anguish. The (F)(6) aggravator was established for this murder.
(F)(8) (MULTIPLE HOMICIDES) – UPHELD
The evidence demonstrated that the homicides took place during a “continuous course of criminal conduct” and were “temporally, spatially, and motivationally related.” The murders occurred within minutes of each other, both within and in the immediate vicinity of the grandmother’s apartment, tying them together in time and space. The statement, “It’s time to take care of everyone who did me wrong…” could be seen to tie the murders motivationally, as did his later statement: “Oh, I better get you, too;” “You m**f***ers crossed me too many times.”
And, as to V2, who was stabbed after a fistfight at the scene, the jury could have determined that the same statement (“…to take care of everyone…”) included V2 amongst those who “did him wrong. The jury rejected “heat of passion” or self-defense when it convicted defendant of premeditated murder.
Boyston alleged thirty-four mitigating circumstances, including diminished mental capacity, troubled family background, PCP intoxication, love and support of his family, impact of execution on his family, and remorse. The State presented evidence to rebut many of those mitigating factors. The jury did not find the proffered mitigation sufficiently substantial to call for leniency.
JUDGMENT: Convictions and death sentences affirmed.