A.R.S. § 13-751(F)(11) - INTENT TO FURTHER OBJECTIVES OF A CRIMINAL GANG OR SYNDICATE
A.R.S. § 13-751(F)(11) provides that it shall be an aggravating circumstance where "the defendant committed the offense with the intent to promote, further or assist the objectives of a criminal street gang or criminal syndicate or to join a criminal street gang or criminal syndicate."
History: The Arizona Legislature amended the capital sentencing statute in 2005 to include this aggravating circumstance. The effective date was August 12, 2005.
State v. (Thomas Michael) Riley, 248 Ariz. 154, 459 P.3d 66 (2020)
The Court found for the (F)(11) aggravator, the prosecution provided evidence of Riley's affiliation with the Aryan Brotherhood (“AB”) with pictures of his gang tattoos, his own written account of why he committed the murder, and testimony from Boggs—the special investigator—who identified the AB as a criminal street gang and testified that Riley met certain criteria as a member.
A.R.S. § 13-751(F)(12) - INTENT TO INTERFERE OR RETALIATE FOR COOPERATION WITH A CRIMINAL INVESTIGATION OR JUDICIAL PROCEEDING
A.R.S. § 13-751(F)(12) provides that it shall be an aggravating circumstance where "the defendant committed the offense to prevent a person’s cooperation with an official law enforcement investigation, to prevent a person’s testimony in a court proceeding, in retaliation for a person’s cooperation with an official law enforcement investigation or in retaliation for a person’s testimony in a court proceeding."
History: The Arizona Legislature amended the capital sentencing statute in 2005 to include this aggravating circumstance. The effective date was August 12, 2005
State v. (William Craig) Miller, 234 Ariz. 31, 316 P.3d 1219 (2013)
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 Supreme Court held that double-counting did not occur. 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.
State v. (Jose Alejandro) Acuna Valenzuela, 245 Ariz. 197, 426 P.3d 1176 (2018)
The (F)(12) aggravator, § 13-751(F)(12), provides: “The defendant committed the offense to prevent a person’s cooperation with an official law enforcement investigation, to prevent a person’s testimony in a court proceeding, in retaliation for a person’s cooperation with an official law enforcement investigation or in retaliation for a person’s testimony in a court proceeding.”
The (F)(12) aggravator and the truncated instruction given by the court are constitutional based on, “[t]he instruction provided to the jury here, as an excerpt of the full statutory provision, narrows the subclass even further, to only those defendants convicted of first degree murder of persons who testified against them in a previous court proceeding. Both the statutory provision [in its entirety] and the provided jury instruction sufficiently narrow the aggravator to apply only to a subclass of defendants” as required by the first of the two criteria outlined in State v. Hausner, 230 Ariz. 60, 82 ¶ 99, 280 P.3d 604 (2012) (citing Tuilaepa v. California, 512 U.S. 967, 972, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994).
“The (F)(12) aggravator also contains a common-sense core of meaning” that an ordinary person is capable of understanding… [and] [t]he language of the (F)(12) aggravator sufficiently channels the sentencer’s discretion and neither it, nor the provided jury instruction, was unconstitutionally vague or overbroad.”
In reviewing whether the (F)(12) aggravator meets the statutorily required causal relationship between the aggravator and the subsequent murder the Court looked to its (F)(5) cases as instructive, in that “both refer to a defendant’s potential motivation, rather than to some set of circumstances surrounding the defendant, victim, or crime… and the language of both statutory provisions requires a clear causal connection… [which exists here] [and] nothing in the language of (F)(12) requires the state to establish that the defendant’s sole motivation was retaliation.”
The Court concluded its analysis of the (F)(12) aggravator and comparison to its (F)(5) cases, stating, “[t]he statute does not require retaliation to be the sole motive, and, while the State must establish a clear causal connection between the motive and the murder, it did so here. Supra ¶ 41. See also Miller, 234 Ariz. at 45 ¶¶ 55–56, 316 P.3d 1219.” and held that “[t]he trial court did not err in declining to provide further jury instructions” regarding the (F)(12) aggravator.
Continue to: A.R.S. § 13-751(F)(13) - COLD, CALCULATED MANNER