Capital Sentencing Guide

2013-2015

State v. (Manuel) Ovante, Jr., 231 P.3d 180, 291 P.3d 974, 2013 WL 132542 (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.

AGGRAVATING CIRCUMSTANCE:

(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)).

MITIGATING CIRCUMSTANCES:

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) , 231 Ariz. 153, 291 P.3d 350 (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.

AGGRAVATING CIRCUMSTANCE:

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, 231 Ariz. 391, 296 P.3d 54 (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

AGGRAVATING CIRCUMSTANCE:

(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].

MITIGATING CIRCUMSTANCES:

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, 231 Ariz. 500, 297 P.3d 906 2013 (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.

AGGRAVATING CIRCUMSTANCE:

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.

MITIGATING CIRCUMSTANCES:

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, 231 Ariz. 539, 298 P.3d 887 (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.

AGGRAVATING CIRCUMSTANCES:

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.

MITIGATING CIRCUMSTANCES:

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.


 State v. (John Vincent) Fitzgerald, 232 Ariz. 208, 303 P.3d 519 (2013)
(DEATH SENTENCE UPHELD)

PROCEDURAL POSTURE:
Defendant killed his mother in Sun City West, striking her with a samurai sword and then shooting her twice.  A jury rejected the guilty except insane defense, and found him guilty of first degree murder and first degree burglary, and found the crimes were dangerous offenses; the jury found three aggravating factors:  (F)(2) – prior serious offense; (F)(6) – especial cruelty; and (F)(9) – age of victim.  After a mistrial in the penalty phase, a different jury sentenced defendant to death; he was sentenced to a prison term for the burglary.

On automatic appeal, the Supreme Court reviewed the jury’s aggravation and penalty verdicts for abuse of discretion.   Defendant did not contest the three aggravators, which were supported on the record; presented three mitigating circumstances (honorable military service, good character, mental impairment), which was not sufficiently substantial to call for leniency; and the Court upheld the death sentence.

AGGRAVATING CIRCUMSTANCES:

Defendant did not challenge that the three aggravators – (F)(2) (prior serious offense), (F)(6) (especial cruelty), and (F)(9) (age of victim) – were proven beyond a reasonable doubt.  The record supported the findings.

MITIGATING CIRCUMSTANCES:

Defendant alleged three mitigating circumstances – honorable military service, good character, and mental impairment. The State presented evidence to rebut each of those mitigating factors. The jury did not find the proffered mitigation sufficiently substantial to call for leniency

JUDGMENT:  Convictions and death sentence affirmed.


State v. Robert Hernandez, 232 Ariz. 313, 305 P.3d 378 (2013)
(DEATH  SENTENCE UPHELD)

PROCEDURAL POSTURE:
Hernandez and a co-defendant broke into a house and lay in wait for the occupants to arrive.  The couple living in the house had a relationship with Hernandez’s ex-girlfriend.  When they arrived with two cousins who were visiting them, Hernandez and the co-defendant terrorized them and eventually shot all four, killing three.  The survivor was able to identify Hernandez from a photographic line-up. 

Hernandez was convicted of three counts of first degree murder (both premeditated and felony); in addition, defendant was convicted of one count of attempted murder, one count of first-degree burglary, and four counts of kidnapping. At the aggravation phase, the jury found four aggravators: F2 prior serious offense; F6 especially cruel; F7 committed while on release from DOC; and F8 multiple homicides. The jury found no mitigation sufficient to support leniency and imposed a sentence of death.

The Supreme Court reviewed the finding of the aggravators and verdict of death for abuse of the jury’s discretion.

AGGRAVATING CIRCUMSTANCE:

(F)(2)(Post-1993: PRIOR SERIOUS OFFENSE)– UPHELD
After 1993 the legislature substituted “serious offense” for “violence,” broadening the scope of the (F)(2) aggravator to encompass prior serious offenses rather than limiting the factor to offenses involving violence.  Armed robbery/burglary is a serious offense and supports the (F)(2) aggravator.

(F)(6)(ESPECIAL CRUELTY) – UPHELD
Substantial evidence supported the “especial cruelty” finding.  “Especial cruelty” was established by the one victim’s awareness of her fate (herded into house; bound; hearing anguished cries of the men), and of a loved one’s suffering (heard pleas and screams coming from husband and brother in law in the other room). The finding was supported by substantial evidence as to the other two victims.

(F)(7)(MURDER COMMITTED WHILE ON RELEASE FROM DOC)– UPHELD
Defendant’s status, being on release from prison at the time of the crime, supports the (F)(7) aggravator.

(F)(8)(MULTIPLE HOMICIDES)– UPHELD
Hernandez did not contest the (F)(8) finding and the record supported the finding.  He and a co-defendant broke into a house and lay in wait for the occupants to arrive.  When they arrived with two cousins who were visiting them, Hernandez and the co-defendant terrorized them and eventually shot all four, killing three. 

MITIGATING CIRCUMSTANCES:

Defendant’s mitigation evidence consisted of: expert testimony of “traumatic brain injury” rendering him less able to control impulses, which was rebutted by the State’s expert.  His allocution addressed his difficult childhood, the family’s limited financial resources, alcohol, and childhood abuse; this evidence could have been somewhat offset by his age (32) at the time of the murders.

Perhaps considered as non-statutory mitigating factors, defendant also explained his motive, his criminal history, and his religious conversion. 

JUDGMENT:  Death sentence affirmed.


State v. Trent Christopher Benson, 232 Ariz. 452, 307 P.3d 19 (2013)
(DEATH  SENTENCE UPHELD)

PROCEDURAL POSTURE:
Between 2004 and 2007 Benson committed crimes against four women.   Each of the four women either voluntarily (in the case of one) or forcibly went with defendant, was beaten, sexually assaulted; two of the women died.

Benson was convicted of two counts of first degree murder; the jury found three aggravating factors: F1 prior death-eligible offense; F2 prior serious offense; and F6 especially heinous, cruel or depraved.  The jury found no mitigation sufficient to support leniency and imposed a sentence of death. (In addition, defendant was convicted four counts of kidnapping, three counts of sexual assault and one count of attempted sexual assault; he was sentenced to a total of 135.5 years in prison.)

The Supreme Court reviewed the finding of the aggravators and verdict of death for abuse of the jury’s discretion.

AGGRAVATING CIRCUMSTANCE:

(F)(1)(PRIOR DEATH-ELIGIBLE OFFENSE)– UPHELD
Defendant did not contest the finding of the (F)(1), and the finding is supported by the evidence. The conviction for each of the two murders was established by the conviction for the other murder.

(F)(2)(PRIOR SERIOUS OFFENSE)– UPHELD
Defendant did not contest the finding of the (F)(2) aggravating factor. Convictions for kidnapping and sexual assault as to three of the victims, and the kidnapping and attempted sexual assault of the fourth victim, established the aggravating factor.

(F)(6) (ESPECIALLY CRUEL)– UPHELD
In special verdict forms the jury found both “especially cruel” and “especially heinous or depraved” as to each murder, the (F)(6) aggravator.

The finding of “especial cruelty” was supported by injuries to one victim that evidenced a struggle during strangulation (marks suggesting the ligature had to be readjusted; abrasions on her chin), suggesting the passage of time, pain and emotional trauma. Because “especial cruelty” was established, the “especially heinous or depraved” finding was not reviewed.

The aggravating factor, “especially heinous or depraved by inflicting gratuitous violence,” was established by evidence that defendant continued to inflict violence on the second victim after he “knew or should have known” she was dead. Because the“especially heinous or depraved” aggravating factor was established, the “especial cruelty” finding was not reviewed.

MITIGATING CIRCUMSTANCES:

Defendant’s mitigation evidence included one statutory factor,(G)(1), “defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the law was significantly impaired, but not so as to constitute a defense to prosecution.”

Non-statutory mitigating factors included “his difficult early childhood in South Korea, where he was found wandering on the streets before being placed in an orphanage, and evidence of [PTSD].”

Absent evidence as to how the PTSD related to his mental state at the time of the murders and the concession by defense experts that he knew right from wrong, the jury may have gien the mitigation little weight.

JUDGMENT:  Death sentence affirmed.


State v. Christopher Mathew Payne, 2013 WL 6252412 (November 21, 2013)
(DEATH  SENTENCE UPHELD)

PROCEDURAL POSTURE:
Defendant and his girlfriend starved and abused his daughter and son, ages 3 and 4 respectively, until they died. His daughter’s body was discovered in a tote in a dumpster after being removed by the staff of a storage unit in mid-September 2006; his son’s body was never found.

After finding defendant guilty of two counts of first degree murder, the jury found three aggravating factors: especially heinous, cruel or depraved, (F)(6); multiple homicides, (F)(8); and young age of the victims, (F)(9). The jury found no mitigation sufficient to support leniency and imposed a sentence of death. Defendant was also convicted of three counts of child abuse and two counts of concealing a dead body.

The Supreme Court reviewed the finding of the aggravators and verdict of death for abuse of the jury’s discretion.

AGGRAVATING CIRCUMSTANCE:

(F)(6) (ESPECIALLY CRUEL)– UPHELD
In special verdict forms the jury found both “especially cruel” and “especially heinous or depraved” as to each murder, the (F)(6) aggravator.

Although the jury instruction was erroneous (“the defendant intended, knew, or should have foreseen” the victims would suffer or experience mental anguish under Carlson, in this case the defendant knew or should have known that the conduct would cause the result, and no jury could find otherwise. The evidence indicated that the children were locked in a closet where they lived in darkness and filth, suffering injuries and slow starvation, and is distinguishable from the Carlson accomplice.

(F)(6) (ESPECIALLY HEINOUS OR DEPRAVED)– UPHELD
In special verdict forms the jury found both “especially cruel” and “especially heinous or depraved” as to each murder, the (F)(6) aggravator.

Although the jury instruction was erroneous (“the defendant intended, knew, or should have foreseen” the victims would suffer or experience mental anguish under Carlson, in this case the defendant knew or should have known that the conduct would cause the result, and no jury could find otherwise. The evidence indicated that the children were locked in a closet where they lived in darkness and filth, suffering injuries and slow starvation, and is distinguishable from the Carlson accomplice.

The age of the victim may be considered for both “especial heinousness and depravity,”(F)(6), and the “young age of the victims,” (F)(9). A single fact may be used to support multiple aggravating factors as long as the fact is not weighed twice when assessing mitigation/aggravation.

Voluntary intoxication consideration – Failure to consider drug use to rebut (F)(6) aggravator was not fundamental error; defendant was permitted to argue intoxication as mitigation.

(F)(8) (MULTIPLE HOMICIDES)– UPHELD
Although the jury instruction was deficient, as it failed to instruct jurors of the requirement there be a “temporal, spatial and motivational relationship between the homicides,” fundamental error was not demonstrated and any error was harmless in this case. 
Temporal proximity focuses not on the timing of the deaths [Defendant claimed the deaths occurred a week apart.]but rather on the conduct that caused the deaths (locking the children in a closet and starving them over several months).

The motivational element was demonstrated by evidence that the children were a “bother,” misbehaved and were a nuisance; there was no evidence that the reason behind the conduct differed as to each child.

(F)(9) (AGE OF VICTIM)– UPHELD
Defendant did not contest the finding of the (F)(9) aggravating factor; the children were 2 and 4.

A single fact may be used to support multiple aggravating factors as long as the fact is not weighed twice when assessing mitigation/aggravation. Thus, the age of the victim may be considered for both “especial heinousness and depravity,”(F)(6), and the “young age of the victims,” (F)(9).

MITIGATING CIRCUMSTANCES:

Defendant’s mitigation evidence included several risk factors for becoming an abuser; “insufficient protective factors” to help him parent appropriately; a difficult childhood, lack of family support, substance abuse, lack of felony criminal history, and the inability to appreciate the wrongfulness of his conduct.  The State rebutted some mitigators and questioned the weight to be given others.

The trial court properly precluded expert testimony relating to defendant’s inability to conform his conduct to the law due to “executive functioning deficiencies,” from a witness whose identity was disclosed to the State two days before the penalty phase began; the State had learned of her report two weeks earlier. Defendant made no offer of proof as to the import of the expert’s testimony, but the Court determined that the report identified a relatively-normal functioning defendant while the disclosure constituted a substantial surprise to the State, which had no opportunity to interview the expert. The sanction was proportional to the violation and had minimal impact on the evidence, considering the importance of the witness and evidence, the surprise, and bad faith.

Defendant did not object to the trial court’s erroneous finding that good inmate behavior is irrelevant.  Although “good inmate” behavior is relevant, given the strength of the proven aggravators any error in precluding the evidence was not fundamental.

JUDGMENT:  Death sentence affirmed.


State v. Efren Medina, 232 Ariz. 391, 306 P.3d 48 (2013)
(DEATH  SENTENCE UPHELD)

PROCEDURAL POSTURE:
Around midnight in September, 2003 defendant and two friends were driving in defendant’s car and decided to steal another car, located in a parking lot.  The men forcibly removed the car’s elderly occupant, stomped and hit him, and eventually dragged his body to the street.  Efforts to hot-wire the car or remove the radio were not successful.  One of the men drove off in defendant’s car; discovering the stolen car had not followed, he returned. Defendant took over as driver and ran over the victim multiple times.

In 1995 defendant was convicted of first degree murder, third degree burglary, and aggravated robbery; he was sentenced to death for the murder and to prison for the other crimes by the trial judge.  The conviction and sentences were affirmed on appeal.  The trial court granted his PCR IAC claim in connection with sentencing, and vacated the death sentence. Defendant filed a successive petition, claiming newly-discovered evidence about a witness’s testimony and an unsigned search warrant, which the court summarily denied.

At the 2008 resentencing found four aggravating factors (F)(2), (F)(6), (F)(7),  and (F)(9) but could not agree on a sentence; the judge declared a mistrial.  In 2009 the penalty phase jury determined defendant should be sentenced to death.

The Supreme Court conducted an independent review of the finding of the aggravating factors and affirmed the conviction and verdict of death.

AGGRAVATING CIRCUMSTANCE:

(F)(2) (PRIOR SERIOUS OFFENSE)– UPHELD
Defendant acknowledge the aggravator. Court declined to afford less weight because he had been charged with the underlying offenses, aggravated assault and robbery, and on release of or six months before the murder.
Because this aggravator and (F)(2) implicate different public policy concerns, the Court weighed both aggravators.

(F)(6) (ESPECIALLY HEINOUS OR DEPRAVED)– UPHELD
Defendant should have known that running over an elderly man who had already been beaten would kill him; running over him multiple times evidenced gratuitous violence.

Because both relishing and gratuitous violence were found, a special verdict form was not necessary.

(F)(6) (RELISHING)– UPHELD
Defendant’s laughter, descriptive noises (“varoom, bump, bump”) and jokes demonstrated relishing, as did his comment to “watch the news,” which suggested his desire for publicity.

Because both relishing and gratuitous violence were found, a special verdict form was not necessary.

(F)(7) (COMMITTED WHILE ON RELEASE FROM PRISON)– UPHELD
Defendant acknowledged sufficient evidence supported the aggravator. Because this aggravator and (F)(2) implicate different public policy concerns, the Court weighed both aggravators.

(F)(9) (AGE OF VICTIM)– UPHELD
Defendant acknowledged sufficient evidence supported the aggravator. Court declined to afford less weight because he did not know the victim’s age does not, as the statute does not require knowledge.

MITIGATING CIRCUMSTANCES:

A.R.S. § 13-751(G)(1) - Significant Impairment
Defendant’s substance dependency, which included dependency on inhalants, alcohol and marijuana at the time of the murders was undisputed, and impaired his ability to control his conduct or appreciate its wrongfulness.

Mental illness evidence was presented:  that defendant suffered from ASPD and delusional disorder, persecutory type.  Neither was afforded no weight as statutory mitigation absent evidence that he was unable to conform his conduct to the law or did not appreciate the wrongfulness of his conduct.  As non-statutory mitigators, both the personality and delusional disorders were considered, and afforded some weight.

A.R.S. § 13-751(G)(5) - Defendant’s Age
Minimal weight was given, after considering his intelligence (average/low-average); the fact he never lived on his own; his prior convictions (aggravated robbery; aggravated assault); and his major participation in the murder.

Non-Statutory Mitigation
Gang affiliation was not a mitigating factor.
His rehabilitation as an artist; posing no future threat; disparity in sentence compared to (less-culpable) co-defendant; family support received minimal weight; and remorse were given little weight.

JUDGMENT:  Death sentence affirmed.


State v. Stephen Douglas Reeves, 233 Ariz. 182, 310 P.3d 970 (2013)
(DEATH SENTENCE UPHELD)

PROCEDURAL POSTURE:
Defendant entered an office where the 18-year-old victim was working alone.  The two struggled for eight minutes until defendant killed her, taking her car keys, wallet and telephone.  Overhearing victim’s screams, nearby office workers called the police, who arrested the defendant within a few minutes. [NOTE: The crime was captured on video surveillance equipment; the video was shown at trial.]

A jury convicted Defendant of first-degree murder, kidnapping, armed robbery, first degree burglary and theft of a means of transportation. At the aggravation phase, the jury found three aggravating factors as to the first-degree murder conviction but could not reach a verdict on the death penalty; the aggravating factors were (F)(2) (“previously convicted of a serious offense”), (F)(6) (“”especially cruel, heinous or depraved”), and (F)(7)(a) (“on release at the time of the offense”).  The trial court declared a mistrial.

 On retrial, a second jury found a fourth aggravating factor ((F)(5) (“pecuniary gain”), and determined that a sentence of death should be imposed for the murder. The court imposed an additional forty-two years for the remaining convictions.

On automatic appeal, the Supreme Court upheld (1) the trial court’s denial of defendant’s motion to dismiss the death penalty following the mistrial, and instead ordering retrial in accordance with A.R.S. § 13-752(K), (L), citing State v. Medina; (2) the constitutionality of a retrial following a mistrial and declining to hold the provision to be vague, citing State v. Prince;  (3) the trial court’s declining to preclude “future dangerousness” evidence by the state [which the state did not present] and preclusion of “unlikelihood of release evidence” by defendant; and (4) the constitutionality of A.R.S. § 13-752(C) and (F) (preponderance of evidence standard does not improperly limit consideration of mitigating evidence; no “presumption of death”).

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)(6) (ESPECIAL CRUELTY) – UPHELD

Reeves did not contest the sufficiency of the evidence to support three of the aggravators found by the jury—(F)(2), (F)(5), and (F)(7)(a); the record supports the findings.
The (F)(6) aggravating circumstance may be based on a finding that murder was especially cruel or that murder was especially heinous or depraved.  “Especially cruel” requires proof that the victim experienced physical or mental pain and that the defendant knew or should have known that she would suffer:
[Defendant entered the office and] asked if the office was hiring; [the victim] said no, and he left. About five minutes later, defendant returned carrying a piece of concrete and demanded her car keys and cell phone. [The victim] attempted to push an alarm button. Defendant, who was much larger …, forced her to the floor and straddled her. For about eight minutes, while [she] screamed and struggled, defendant beat her, hit her with the concrete, wrenched her neck, and attempted to strangle her with his hands and a piece of wood. Finally, he retrieved a box cutter from another room and slit her throat. He turned off the lights and dragged her body into a back room.”
The record supports the “especially cruel” finding.
Because the jury in its special verdict found “especial cruelty,” the Court declined to reach defendant’s oral argument challenge to the sufficiency of evidence supporting the alternative (F)(6), “murder was especially heinous or depraved,” finding.

MITIGATING CIRCUMSTANCES:

“During the penalty phase, Reeves allocuted and apologized for the pain he had caused the victim and her family. As both a statutory and non-statutory mitigating circumstance, he presented evidence in support of his claim that he was intoxicated from drugs and alcohol at the time of the murder. As additional mitigating factors, Reeves offered evidence to support allegations that (1) he suffers from a longstanding substance abuse disorder, (2) he has a co-occurring mental disorder, (3) his conditions are treatable, (4) his parents abused alcohol, (5) he was emotionally abused and neglected as a child, (6) he had made positive contributions to the community through his previous military service and work as an electrician, (7) he behaved well while incarcerated, (8) he was remorseful, and (9) he loves and is loved by his family. In rebuttal, the State offered evidence to dispute many of the claimed mitigating circumstances, including Reeves's alleged intoxication, mental condition, and remorse, and it urged the jurors to give little weight to any mitigation.”

JUDGMENT:  Death sentence affirmed.


 State v. (William Craig) Miller,--- P.3d ---, 2013 WL 6842566 (December 27, 2013)
(DEATH SENTENCE UPHELD)

PROCEDURAL POSTURE: A jury found Defendant guilty of five counts of first degree murder, one count of first degree burglary, and four counts of solicitation of first degree murder. The jury found four aggravating circumstances under A.R.S. §13-751: (F)(2) prior conviction of a serious offense; (F)(8) multiple homicides; (F)(9) young age of the victim (son, age 10); and (F)(12) witness elimination. The jury further found that mitigation evidence was insufficient to support leniency and returned verdicts for death.

This is Miller’s automatic appeal following the 2011 convictions. Because this murder occurred after August 1, 2002), the Court reviewed the death sentence for abuse of discretion.

The Court affirmed the convictions and sentences.

AGGRAVATING CIRCUMSTANCE:

(F)(2) (“Previous Conviction of Serious Offense”-new law post-1993) – UPHELD
Miller did not contest this finding.

(F)(8) (“One or More Homicides during Commission of Offense”) – UPHELD
The murders were temporally, spatially and motivationally related. The victims were all killed in their home on one night. All five victims were killed because Defendant wanted to silence two of the victims in order to keep them from cooperating with the police. Motivational relationship can be established when others in the vicinity were killed to eliminate witnesses. The fact that one of the murders may not have been planned (i.e., resulted from an “imperfect self defense”) does not defeat the “motivationally related” requirement, as Defendant’s purpose – his reason for being at the home – was to kill the family.

(F)(9) (“Age of Victim”) – UPHELD
One of the victims was the girlfriend’s 10-year old son.

(F)(12) (“Witness Elimination”) – UPHELD
The “witness elimination” factor was proven beyond a reasonable doubt. Testimony established that Defendant stated several times that he wanted to kill two of the victims because they had cooperated with the police. Further, evidence established that he started planning the murders soon after the arson indictment, which relied heavily upon the cooperation of the two victims. “[Defendant’s] statements and the timing of his plans provided sufficient evidence to support the jury’s finding that [Defendant] killed [two of the victims] to prevent them from cooperating with the police or testifying against him, or to retaliate for their cooperation with the police.”

        Double counting: (F)8) and (F)(12)
Defendant claimed that the jury used the victim’s cooperation with the police to establish both the (F)(12) and the (F)(8) aggravating factors.
The “crux of the [(F)(8)] aggravator is that multiple murders occurred”; the motivation for the murders must be related but the nature of the motivation is not important.
The (F)(12) factor is established only when the motive is to eliminate witnesses; the fact that more than one murder was committed is irrelevant.
The trial court did not err in failing to suasponte instruct against double-counting.

MITIGATING CIRCUMSTANCES:

“Miller presented a good deal of mitigation, including evidence that he suffered from Bipolar Disorder I; exhibited troubling behaviors as a child; had a family history of emotional difficulties, drug abuse, and alcohol problems; and had experienced difficulty controlling his impulses throughout his life. Even if we accept all of [Defendant’s] mitigation evidence as true, we cannot conclude that this evidence did not warrant leniency.”

 
JUDGMENT:  Convictions and death sentence affirmed.


State v. (Shawna) Forde, 233 Ariz. 543, 315 P.3d 1200 (2014) 
(DEATH SENTENCE UPHELD)


PROCEDURAL POSTURE: Forde was convicted of two counts of felony murder, two counts of aggravated assault, and one count each of first-degree burglary, attempted first-degree murder, armed robbery, and aggravated robbery. The jury found three aggravating factors for each murder – (F)(2) (prior serious offense), (F)(5) (pecuniary gain), and (F)(8) (multiple homicides) – and also (F)(9) (victim under age 15) for the child’s murder; the jury sentenced Forde to death.

Forde was the leader of an anti-immigrant group, the Minutemen American Defense.  She and two accomplices gained entry to the Flores home in Arivaca, Arizona, by claiming they were officials looking for fugitives, expecting to find money and drugs that could be sold to finance the group.  When they found no drugs, one of Forde’s companions shot and killed Raul Flores and his 9 year-old daughter; his wife survived.  When Forde was arrested, she was found in possession of one of the victims’ jewelry. 

On automatic appeal, the Supreme Court upheld the convictions and sentences, but held that the armed robbery and aggravated robbery sentences should be concurrent.

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
Defendant did not contest that the convictions for first degree burglary, aggravated assault and robbery established this aggravating factor.  

(F)(5) (COMMISSION OF MURDER FOR PECUNIARY VALUE) – UPHELD
Substantial evidence demonstrated that defendant planned and participated in the robbery to fund the minuteman operation.  She was aware that a cohort wanted to kill his competitor. She directed that the surviving victim be “finished off.” She then texted “competition gone,” after the murders.  All demonstrate her willingness to facilitate the murders to accomplish the burglary to fund her organization.

(F)(8) (MULTIPLE HOMICIDES) – UPHELD
This factor, “one or more homicides committed during the commission of the offense” requires that the murders be “temporally, spatially, and motivationally related, during one continuous course of criminal conduct.” Defendant argues that she did not share her colleagues motivation to kill the child.  But – her motivation was to secure funding for her organization; the evidence suggested that her colleague, who was a subordinate, shared this motivation.

(F)(9) (VICTIM UNDER AGE OF 15) – UPHELD
Defendant does not contest that she was an adult at the time of the murders or that the child was under the age of fifteen.

MITIGATING CIRCUMSTANCES: 

Defendant was neither a minor participant nor was she manipulated to participate in murders that she did not foresee, as determined by the Enmund/Tison finding. Even had the jury found that she experienced a troubled childhood and suffered neuropsychological impairments (from her traumatic childhood and a stroke in 1996), the jury did not abuse its discretion in determining that there was not substantial mitigation sufficient to call for leniency.

JUDGMENT:  Death sentence affirmed.


State v. Israel Joseph Naranjo, -- Ariz. --, -- P.3d --, 2014 WL 1016272 (March 18, 2014)
(DEATH SENTENCE UPHELD)

PROCEDURAL POSTURE:
On March 25, 2007 Naranjo stabbed his pregnant girlfriend twelve times, killing her; as a result of her death, the fetus she was carrying also died. Later that day the defendant confessed to the murders during a police interview.

Naranjo was convicted of two counts of first degree murder; the jury rejected his insanity defense.  The jury found two aggravating factors for each murder – as to the mother:  (F)(2) (previous conviction for serious offense) and (F)(6) (murder was especially cruel);  and as to the unborn child:   (F)(2) (previous conviction for serious offense) and (F)(9) (defendant was an adult when he killed an unborn child). The jury did not find mitigation sufficiently substantial to call for leniency and sentenced defendant to death.

On automatic appeal, the Supreme Court affirmed all convictions and sentences.

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).)

The jury found two aggravating factors for each murder –
as to the mother:  (F)(2) (previous conviction for serious offense) and (F)(6) (murder was especially cruel);  and
as to the unborn child:   (F)(2) (previous conviction for serious offense) and (F)(9) (defendant was an adult when he killed an unborn child).

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

(F)(6) (“Especially cruel”) – UPHELD

“Especial cruelty” exists where “the victim consciously experiences physical or mental pain prior to death, and the defendant knew or should have known that suffering would occur.”

Mental anguish and physical pain are demonstrated by defensive wounds (broken nail and wounds on victim’s arms), testimony by an eyewitness about her mother’s screams and attempts to push the defendant away, and the victim talking to her daughter after the defendant left. The jury could find both consciousness during the attack and suffering.

Defendant’s ability to “know or should have known” of the victim’s suffering was not inconsistent with what the State termed his “lifetime drug abuse.” Rejection of the insanity defense meant the jury necessarily found that he was capable of understanding the nature of his actions.  Further, stabbing the victim twelve times coupled with her screaming suggests he should have been aware that she was suffering. The record supports this finding.

(F)(9) (AGE OF VICTIM) – UPHELD
 
The jury found this aggravating factor proven, and Naranjo did not contest the finding. Defendant was an adult and the victim was an unborn child

MITIGATING CIRCUMSTANCES:

In mitigation, defendant offered evidence of intellectual disability, mental illness, and difficult upbringing and argued that a life sentence would protect the public. The State cross-examined and rebutted each. The jury’s conclusion that mitigation was not sufficiently substantial to call for leniency was not an abuse of discretion.

 
JUDGMENT:  Death sentence affirmed.