A.R.S. § 13-751(F)(13)


A.R.S. § 13-751(F)(13) provides that it shall be an aggravating circumstance where “the offense was committed in a cold, calculated manner without pretense of moral or legal justification.”


History:  The Arizona Legislature amended the capital sentencing statute in 2005 to include this aggravating circumstance.  The effective date was August 12, 2005.

Vagueness Challenge:   State v. Hausner (230 Ariz. 60, 280 P.3d 604 (2012)) is the first case to review the (F)(13) aggravator. The Arizona Supreme Court found instructive the reasoning of the Florida Supreme Court in connection with its review of statutory language (cold, calculated, and premeditated (CCP)) similar to that of Arizona’s aggravator (omits “premeditated”).   Specifically, murders are death-eligible if committed in a “cold, calculated and premeditated manner without any pretense of moral or legal justification.”  Fl.Stat.Ann. § 921.141(5)(i). The Florida court concluded that “[w]ithout the benefit of an explanation that some ‘heightened’ form of premeditation is required to find CCP, a jury may automatically characterize every premeditated murder as involving the CCP aggravator.” (Jackson v. State, 648 So.2d 85, 89 (Fla. 1994). 


Further, in Jackson, the Florida court found the jury received “no instruction to illumine the meaning of the terms ‘cold,’ ‘calculated,’ or ‘premeditated.’”  648 So2d at 89-90. Without further instruction, the Jackson court noted, “[i]t would also be reasonable for the general public to consider premeditated first degree murder as ‘cold-blooded murder.’” Id. at 89.  On its face, Arizona’s (F)(13) aggravator suffered from the same vagueness infirmity.

Facial Vagueness Correctible with Narrowing Instruction 
An aggravator that is vague on its face can be properly narrowed by a court to bring it within constitutional bounds.  State v. Chappell, 225 Ariz. 229, 237 ¶ 26, 236 P.3d 1176, 1184 (2010), cert. denied, 131 S.Ct. 1485 (2011) (“vagueness…. may be remedied with appropriate narrowing instructions.”) (internal quotation omitted); see also State v. Tucker, 215 Ariz. 298, 310 ¶ 28, 160 P. 3d 177, 189 (2008); Walton v. Arizona, 497 U.S. 639, 655 (1990), overruled on other grounds by Ring, 536 U.S. 584.  In Jackson, upon remand, Florida’s CCP aggravator was narrowed through jury instructions defining  its terms, 648 So.2d at 89-90, and subsequent death sentences in Florida, under these narrowing instructions, have been upheld.  See, e.g., McWatters v. State, 36 So.3d 613, 643 (Fla. 2010), cert denied, 131 S.Ct. 510 (2010).

The Court observed that the Hausner trial court’s narrowing instructions, substantially the same as those approved in Jackson, clarified to the jury that “all first degree premeditated murders are, to some extent, committed in a cold, calculated manner,” but distinguished this aggravator as one that “cannot be found to exist unless ... the defendant exhibited a cold intent to kill and is more contemplative, more methodical, more controlled than that necessary to commit premeditated first degree murder.” The instruction further defined the term “cold” as “a product of a calm and cool reflection” and “calculated” as “having a careful plan or prearranged design to commit murder.” The court emphasized that the jury must look to the defendant's state of mind at the time of the offense to determine whether there exists any pretense of moral or legal justification that rebuts cold and calculated, and that it must find beyond a reasonable doubt that there is 
            (1) a careful plan or prearranged design before the murder, and 
            (2) a cool and calm reflection for a substantial period of time before the murder.

This instruction adequately narrowed the aggravator, making it clear that it is not the cold and calculated nature of every murder that will satisfy it, but that the jury must find some degree of reflection and planning that goes beyond the premeditation required to find first degree murder, channeling the jury's discretion by “clear and objective standards” that provide “specific and detailed guidance.” Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).

Definitions of “Cold,” “Calculated,”and “Without Pretense of Moral or Legal Justification”  
The Court “…review[ed] de novo whether jury instructions adequately state the law.” State v. Gallardo, 225 Ariz. 560, 567 ¶ 30, 242 P.3d 159, 166 (2010) (internal quotation omitted)1.   The Court held that the trial court did not incorrectly define the terms of the (F)(13) aggravator.

“Cold,” “Calculated”
The trial court instructed the jury that “[c]old means the murder was a product of a calm and cool reflection. Calculated means having a careful plan or prearranged design to commit murder.” Arizona cases have previously used the terms cold or cold-blooded to describe murders or crimes marked by a lack of emotion in the act of killing. See, e.g., King, 180 Ariz. at 286, 883 P.2d at 1042 (describing the thought out, deliberate killing to eliminate a witness as “cold-blooded”); State v. Schurz, 176 Ariz. 46, 56, 859 P.2d 156, 166 (1993) (describing the deliberate, careful burning to death of a person who attempted to flee as “cold-blooded”); Gretzler, 135 Ariz. at 58, 659 P.2d at 17 (describing the cold blooded murder of nine persons, including shooting sleeping children as they lay in their beds). Nor did the trial court's definition make superfluous the term “calculated,” which the instructions defined to mean “having a careful plan or prearranged design to commit murder.”

“Without Pretense of Moral or Legal Justification”  
The trial court instructed the jury that the phrase, “without pretense of moral or legal justification,” means without “anything of justification or excuse that, though insufficient to reduce the degree of murder, nonetheless rebuts the otherwise cold, calculated nature of the murder.” The statute refers not only to legally recognized justifications but applies more broadly to a “pretense” of legal or moral justification, and the trial court reasonably defined this as “anything of justification or excuse.” See also State v. Thompson, --Ariz.--, 502 P.3d 437, 459 ¶89 (2022).

The Court held that the trial court properly narrowed the (F)(13) aggravator so that it was constitutional, despite its facial vagueness, and the trial court defined the terms to the jury in a permissible manner that did not constitute fundamental error.

“Randomness” Does Not Obviate “Cold and Calculated” 
The fact that victims were randomly targeted did not preclude a finding of the elements of the (F)(13) aggravator. There was ample evidence that Hausner had a careful plan or prearranged design for each of the four murders even if he randomly identified the particular victim. The jury could also find that he exhibited a cool and calm reflection for a substantial period of time before killing and that he had no pretense of moral or legal justification or excuse.2

Standard of Review
The standard used by the Court in reviewing for error by the trial court in applying the (F)(13) aggravator—and the Court did not identify any for reasons explained—was harmless beyond a reasonable doubt. The Court may apply “harmless-error analysis when errors [regarding sentencing factors] have occurred in a capital sentencing proceeding,” Clemons v. Mississippi, 494 U.S. 738, 754, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), so long as the errors do not permit the sentencer to consider otherwise inadmissible evidence. Id. n. 5; see Brown v. Sanders, 546 U.S. 212, 220–21, 126 S.Ct. 884, 163 L.Ed.2d 723 (2006) (stating that due process requires reversal of death sentence if invalid sentencing factor allowed sentencer to consider evidence that otherwise would not have been before it); cf. Jennings v. McDonough, 490 F.3d 1230, 1249–50 (11th Cir.2007) (approving Florida Supreme Court's harmless error analysis with regard to vaguely defined aggravator).

The Court concluded that the use of the (F)(13) aggravator did not allow the jury to consider any evidence that otherwise would not have been before it. The jury properly found three other aggravators—the (F)(1), (2), and (6)—with respect to each of the four victims for which it also found the (F)(13). Hausner presented no mitigation evidence. In these circumstances, we conclude that any error regarding the (F)(13) aggravator did not influence the jury's decision to impose death sentences. Cf. State v. Sansing, 206 Ariz. 232, 241 ¶ 38, 77 P.3d 30, 39 (2003) (affirming court-imposed death sentence upon concluding that any reasonable jury would have found the mitigation was not sufficiently substantial to call for leniency). State v. Thompson, --Ariz.--, 502 P.3d 437 (2022) (finding any error was harmless given the weight and number of other aggravators found by the jury including the cruelty and multiple homicides aggravators).

1 Because Hausner did not object to the (F)(13) instructions on these grounds below, however, the Court review was limited to a showing of fundamental error.
2The Court noted that Hausner did not argue that there was any constitutional error based on the trial court adopting narrowing instructions for (F)(13) that had not been approved by this Court before he committed the relevant murders. Cf. State v. Schmidt, 220 Ariz. 563, 566 ¶ 10, 208 P.3d 214, 217 (2009) (holding that use of vaguely defined statutory aggravator as sole factor to enhance sentence violated due process), and did not address whether the trial court erred in this respect.


State v. (Dale Shawn) Hausner, 230 Ariz. 30, 280 P.3d 604 (2012)
(F)(13) finding upheld. With respect to four murders, the jury also found that they were committed in a cold, calculated manner. 

State v. (Thomas Michael) Riley, 248 Ariz. 154, 459 P.3d 66 (2020)
(F)(13) finding upheld. With respect to four murders, the jury also found that they were committed in a cold, calculated manner.

State v. (Kenneth Wayne) Thompson, --Ariz.--, 502 P.3d 437 (2022)
(F)(13) finding upheld. With respect to the two murders, the jury found that they were “committed in a cold, calculated matter manner without pretense of moral or legal justification.”



Continue to A.R.S. § 13-751(F)(14)