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State v. Raymond Tison (Raymond Tison I), 129 Ariz. 546, 633 P.2d 355 (1981)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Yuma) of four counts of first-degree murder, three counts of kidnapping, two counts of armed robbery and theft of a motor vehicle. He was sentenced to death on the murder counts. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - DISCUSSED
See discussion in Ricky Tison I, 129 Ariz. 526, 633 P.2d 335 (1981).

(F)(2) (Prior Violent Felony) - DISCUSSED
See discussion in Ricky Tison I, 129 Ariz. 526, 633 P.2d 335 (1981).

(F)(3) (Grave Risk of Death to Others) - REVERSED
Because the four victims who were in the car the defendants wanted to steal to continue their escape from prison were "ruthlessly and intentionally murdered," this aggravating circumstance did not exist, even though some of the victims had been close enough physically so that each murder put others in a grave risk of danger.

(F)(5) (Pecuniary Gain) - UPHELD
The victims were found in and around the car that the defendant and his companions used to assist in the escape of the defendant's father and Randy Greenawalt from the Arizona State Prison. After they abandoned that car, the defendant and his companions left the scene of the murders in the victims' automobiles. "Considering all the facts, the conclusion is justified that the homicides were committed to secure a vehicle with which to continue their flight." The Court concluded that this aggravating circumstance was "clearly established."

(F)(6) (Heinous, Cruel or Depraved) - UPHELD

Cruel: Not addressed

Heinous and Depraved: Upheld.
Senselessness: Found. The Court found these murders to be heinous and depraved because of the senselessness of the murders, the inability of the victims to stop the escape in such an isolated area, and the fact that a 22-month-old child who posed no threat to the captors was shot in the arms of his mother. There were less violent alternatives available to prevent the captors' detection by the authorities than to slaughter the entire family. These actions compel the conclusion that the slayers had a shockingly evil state of mind.

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstances existed, but were not sufficiently substantial to call for leniency:

Age
Felony Murder conviction
Lack of Criminal History

The Court found that the defendant failed to prove the existence of the following as mitigating circumstances:

(G)(2) Duress
(G)(3) Minor Participation

JUDGMENT: Convictions and sentences affirmed.

State v. Schad (Schad I), 129 Ariz. 557, 633 P.2d 366 (1981)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Yavapai) of first-degree murder and sentenced to death. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
The defendant was previously convicted of second-degree murder, which was sufficient to support the (F)(1) finding.

(F)(2) (Prior Violent Felony) - UPHELD
The defendant was previously convicted of second-degree murder where the victim was strangled. This conviction was sufficient to support the (F)(2) finding.

MITIGATING CIRCUMSTANCES:

The trial court found the fact that the defendant was a model prisoner was a mitigating circumstance, but the Court agreed that it was not sufficiently substantial to call for leniency.

The Court found that the defendant failed to prove the existence of the following as mitigating circumstances:

Residual doubt
Lack of intent to kill

JUDGMENT: Conviction and sentence affirmed.

State v. Britson, 130 Ariz. 380, 636 P.2d 628 (1981)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of first-degree murder, armed robbery, and armed kidnapping. He was sentenced to death for the murder. After a hearing on a petition for post-conviction relief, the defendant was again sentenced to death. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - UPHELD
Prior out of state convictions for aggravated assault with a dangerous weapon, attempted murder, and aggravated battery were sufficient to support trial court's (F)(2) finding.

MITIGATING CIRCUMSTANCES:

None sufficiently substantial to call for leniency. The Court found that the defendant failed to prove the existence of the following as mitigating circumstances:

(G)(1) Significant impairment - Alcohol or drugs [intoxication]
Victim's actions [classic lover's triangle and victim had knife]
Sufficiency of evidence [conviction based on testimony of wife who hated him]

JUDGMENT: Conviction and death sentence affirmed.

State v. Rumsey (Rumsey I), 130 Ariz. 427, 636 P.2d 1209 (1981)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first- degree murder and armed robbery. He was sentenced to life imprisonment without the possibility of parole for twenty-five years on the murder conviction and to twenty-one years on the armed robbery conviction to be served consecutively. This is his appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - DISCUSSED
The trial court did not believe the (F)(5) pecuniary gain finding applied to situations other than contract killings based on State v. Madsen, 125 Ariz. 346, 609 P.2d 1046 (1980). When the defendant appealed his convictions and sentences, the State cross-appealed on this issue. Madsen was the law when this defendant was sentenced. However, only three months later, the Arizona Supreme Court clarified the issue in State v. Clark, 126 Ariz. 428, 616 P.2d 888 (1980), and expanded the interpretation of the pecuniary gain aggravator to situations other than contract killing cases. Because the trial court erred in concluding that it could not find that the murder here was committed for monetary gain as a matter of law, the case was sent back to the trial court for resentencing. The facts here were that the victim picked up the defendant and witness who were hitchhiking somewhere in New Mexico or Texas. In Phoenix, the victim bought beer and food for the defendant and witness. The witness testified that the defendant noticed that the victim had over $300 in his wallet, and he was going to rob the victim. The defendant ordered the victim into the trunk of the victim's car, and when the victim refused, shot the victim. Then the defendant dragged the victim off the road and threw some money at the witness.

MITIGATING CIRCUMSTANCES:

No discussion of mitigating circumstances in this opinion.

JUDGMENT: Convictions affirmed and armed robbery sentence affirmed. Life sentence for the murder conviction vacated, and remanded for resentencing. [Chief Justice Struckmeyer dissented from this opinion arguing that the life sentence should be affirmed where, as here, a resentencing opens the possibility that the death penalty could be imposed. He maintained that permitting a possible resentence of death where the State cross-appeals will have a chilling effect on a defendant with a life sentence and a meritorious appeal.]. On resentencing, the defendant was given the death sentence. On appeal from that resentencing, the Arizona Supreme Court held that because the defendant was originally given a sentence of life imprisonment, he could not constitutionally be given the death penalty at resentencing. The original sentence of life imprisonment operated as an acquittal of the death penalty. State v. Rumsey (Rumsey II), 136 Ariz. 166, 665 P.2d 48 (1983).

State v. Joseph Smith (Joseph Smith II), 131 Ariz. 29, 638 P.2d 696 (1982)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of two counts of first-degree murder and was sentenced to death on each of the murder counts. The Arizona Supreme Court remanded for resentencing pursuant to State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978), and the trial court again imposed the death penalty. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
Prior convictions for rape, rape in the first degree, and murder in the first degree were sufficient to support the (F)(1) finding. The defendant was sentenced to death on each of the murder counts in this case, and the finding of a prior conviction of murder was based, as to each victim, on the murder of the other victim.

(F)(2) (Prior Violent Felony) - UPHELD
Prior convictions for rape, rape in the first degree, and murder in the first degree were sufficient to support the (F)(2) finding. The defendant was sentenced to death on each of the murder counts in this case, and the finding of a prior conviction of murder was based, as to each victim, on the murder of the other victim.

(F)(6) (Heinous, Cruel or Depraved) - UPHELD

Cruel: Upheld. As to one of the victims, Neva Lee, the trial court found that she had been murdered by forcing dirt into her mouth and upper respiratory system and died of suffocation. She also suffered a stab wound near her vagina and tears to her vaginal area. For victim Sandy Spencer, the trial court determined that she died of suffocation just like Ms. Lee, and suffered 19 to 20 stab wounds to her groin and pelvic area. There was also a sewing needle embedded in her left breast.

Heinous and Depraved: Not addressed.

MITIGATING CIRCUMSTANCES:

None. The Court found that the defendant failed to prove by a preponderance of the evidence the existence of the (G)(1) mitigating circumstance, or any mental impairment at all.

JUDGMENT: Convictions and sentences affirmed.

State v. Ortiz, 131 Ariz. 195, 639 P.2d 1020 (1982)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of first-degree murder, three counts of attempted first-degree murder, two counts of aggravated assault, arson of an occupied structure, first-degree burglary, and conspiracy to commit first-degree murder. The defendant was sentenced to death on the murder count. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - REVERSED
The basis for finding this aggravating circumstance was a conspiracy conviction entered at the same time as the murder conviction. The Court reversed the (F)(1) finding, stating that "a prior conviction must be entered prior to the time for which jeopardy attaches on the first-degree murder charge." Note: Subsequently, in State v. Gretzler, 135 Ariz. 42, 57 n.2 (1983), the Court explained this decision. The Court stated that convictions entered prior to a sentencing hearing may be considered regardless of the order in which the underlying crimes occurred, or the order in which the convictions were entered. To the extent any language in Ortiz suggests the contrary, it is disapproved. In Ortiz, "the trial court erred in considering a contemporaneous conviction for conspiracy to commit murder as aggravation for the murder. This exclusion from consideration is best understood as having been required because both convictions arose out of the same set of events."

(F)(3) (Grave Risk of Death to Others) - UPHELD
The defendant knowingly created a grave risk of death to three children when he tried to dispose of their mother's body by burning down the house with all four people inside. He stabbed two of the children and told all three to remain in the house until the fire department arrived. The Court rejected the defendant's argument that, as a matter of law, once the murder victim is dead, nothing the murderer does thereafter can be considered part of the "commission of the offense" within the meaning of (F)(3).

(F)(6) (Heinous, Cruel or Depraved) - UPHELD

Cruel: Reversed. The Court disagreed with the trial court that this crime was especially cruel because the state could not prove beyond a reasonable doubt that the victim suffered during the commission of the murder. The victim was stabbed many times, may have been strangled, and was set on fire by the defendant.

Heinous and Depraved: Upheld. The Court upheld this finding without discussion, but it appears that gratuitous violence may have been the basis for the finding. The victim was stabbed, may have been strangled, and was set on fire by the defendant. He then stabbed the victim's two young daughters and tried to set the house on fire. The two girls and the baby were able to escape. The Court found this murder to be "far more heinous and depraved than the norm of first-degree murders."

MITIGATING CIRCUMSTANCES:

None sufficiently substantial to call for leniency. The Court noted that the trial court found the following were not mitigating circumstances under the facts of this case:

Mental impairment - [ability to distinguish right from wrong]; Duress; Lack of intent to kill; Length of jury deliberations; Lack of criminal history; Intelligence; Good character; Good behavior in jail; and Likelihood of recidivism

JUDGMENT: Convictions and sentences affirmed.

State v. Blazak (Blazak II), 131 Ariz. 598, 643 P.2d 694 (1982)

PROCEDURAL POSTURE: The defendant was convicted of two counts of first-degree murder, one count of assault with intent to commit murder, and one count of attempted armed robbery, and was sentenced to death on the murder counts. His convictions and sentences were affirmed by the Arizona Supreme Court in Blazak I, 114 Ariz. 199, 560 P.2d 54 (1977). The Court ordered a resentencing, pursuant to State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978), and the defendant was again sentenced to death. The defendant unsuccessfully sought post-conviction relief. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
This aggravating circumstance was upheld without discussion. The trial court based its (F)(1) finding on prior convictions for robbery and assault with intent to commit murder.

(F)(2) (Prior Violent Felony) - UPHELD
This aggravating circumstance was upheld without discussion. The finding was based on the prior convictions for robbery and assault with intent to commit murder.

(F)(3) (Grave Risk of Death to Others) - UPHELD
The (F)(3) finding was upheld without any analysis. The defendant, while armed and wearing a ski mask, attempted to rob the bartender of the Brown Fox Tavern in Tucson. When the bartender refused to give him money, the defendant shot both him and a patron seated nearby. A third person was also wounded. The Court concluded that based on these facts, this murder constituted a grave risk to others in the bar at the time of the shooting.

(F)(5) (Pecuniary Gain) - UPHELD
The (F)(5) finding was upheld without extensive discussion. The facts supporting the finding are that Blazak attempted to rob the Brown Fox Tavern in Tucson. When the bartender refused to surrender his money, Blazak shot and killed him and a patron sitting nearby, then fled with an accomplice.

MITIGATING CIRCUMSTANCES:

There is no discussion of mitigating circumstances in this opinion. It is unclear what mitigation evidence, if any, was presented by the defendant. But the Court rejected the arguments made by the defendant in the context of a speedy trial type right in capital sentencing - the prejudices inherent in presenting mitigation evidence years after the crime, and oppression from receiving a second death sentence.

JUDGMENT: Death sentence affirmed.

State v. Valencia (Valencia III), 132 Ariz. 248, 645 P.2d 239 (1982)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of first-degree murder and sentenced to death. The Arizona Supreme Court remanded for resentencing, in Valencia I, 121 Ariz. 191, 589 P.2d 434 (1979), pursuant to State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978). The trial court again imposed the death penalty and the defendant appealed. The Arizona Supreme Court again remanded for resentencing before a different judge because the trial judge had spoken with the victim's family regarding the family's wishes regarding the death penalty. Valencia II, 124 Ariz. 139, 602 P.2d 807 (1979). On remand, the defendant was again sentenced to death. This is his automatic, direct appeal from that second resentencing.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
Prior convictions in Arizona of rape, kidnapping, and robbery were sufficient to support the (F)(1) finding.

(F)(2) (Prior Violent Felony) - UPHELD
Prior convictions in Arizona of rape, kidnapping, and robbery were sufficient to support the (F)(2) finding.

MITIGATING CIRCUMSTANCES:

The Court found the defendant's young age (16 years old at the time of the murder) a substantial and relevant factor that must be given "great weight."

JUDGMENT: The defendant's sentence was reduced to life imprisonment without the possibility of parole for twenty-five years, to be served consecutively to the forty to sixty year sentence on his rape conviction. This reduction was based on the defendant's young age, sixteen, at the time of the murder.

State v. Michael and Patrick Poland (Poland I), 132 Ariz. 269, 645 P.2d 784 (1982)

PROCEDURAL POSTURE: The defendants were convicted in Superior Court (Yavapai) of first-degree murder and were sentenced to death. This is the defendants' automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - DISCUSSED
The trial court thought that the (F)(5) aggravating factor applied only to murder for hire situations, and therefore, did not find this factor proven beyond a reasonable doubt. After the trial in this case, the Arizona Supreme Court decided State v. Clark, holding that the (F)(5) pecuniary gain factor was not limited to murder for hire situations. Since the defendants received $281,000 in cash from the Purolator van after drowning the two guards, the Court here stated that the trial court could find the existence of the (F)(5) aggravating circumstance on retrial of the case.

(F)(6) (Heinous, Cruel or Depraved) - REVERSED
The Court restated the definitions of the terms "especially heinous, cruel, or depraved," as set forth in State v. Knapp, 114 Ariz. 531, 562 P.2d 704 (1977). The Court reaffirmed that cruelty consists of mental and physical pain inflicted on the victim, whereas heinousness and depravity focus on the mental state and attitude of the defendant as shown by his actions or words. 132 Ariz. at 285.

Cruel: Reversed.
Mental Anguish: Not addressed.
Physical Pain: Not found. No evidence of suffering by the security guard victims. No evidence that the guards had been "bound or injured prior to being placed in the water and there were no signs of a struggle."

Heinous or Depraved: Reversed. The Court noted that this finding focuses on the state of mind of the defendants and, although their state of mind may be inferred from their behavior, "we know nothing of the circumstances under which the guards were held hostage." The state failed to prove "beyond a reasonable doubt that the murders were committed in an `especially heinous, cruel or depraved manner.'" 132 Ariz. at 285.

MITIGATING CIRCUMSTANCES:

There is no discussion of mitigating circumstances in this opinion.

JUDGMENT: Convictions reversed and remanded for a new trial.

State v. Woratzeck, 134 Ariz. 452, 657 P.2d 865 (1983)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pinal) of first-degree murder, armed robbery and burglary of residential structure and was sentenced to death for the murder. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
The defendant killed Linda Louise Leslie, a 36-year old with the mental capacity of a 15-year old, who lived in a shed rented from the defendant and attached to his trailer. The defendant also robbed Leslie of approximately $107.00. In addition to the fact that the jury found defendant guilty of the robbery of Leslie, there was evidence that the defendant had been without money shortly before the murder. Witnesses testified that he had to borrow money to buy beer at a bar earlier on the evening of the murder. After the murder, the defendant had a sum of money almost identical to that taken from Leslie. The defendant's story that he won the money playing pool at the bar the previous evening was disputed by witnesses who said it would have been impossible to win that much money playing pool at that bar because any betting was always for small change.

(F)(6) (Heinous, Cruel or Depraved) - UPHELD

Cruel: Reversed. The Court found the evidence inconclusive as to whether the victim suffered in such a way as to support a cruelty finding. However, the Court reiterated the pathologist's testimony that the blows to the head were inflicted last and were the cause of death. The victim was also strangled and stabbed three times in the chest before she suffered the two blows to the head. The victim suffered from Huntington's disease and had the mental capacity of a fifteen-year-old.

Heinous or Depraved: Upheld
Gratuitous Violence: Found. The violence committed against the victim was well beyond the point necessary to fulfill a plan to steal or even to kill. The victim suffered from Huntington's disease, lacked coordination, and had the mental capacity of a fifteen-year-old. She had been strangled, stabbed three time, struck on the head twice, and her house and body burned.
Helplessness: Found. The murder was heinous or depraved in part because the victim was physically helpless. The victim had Huntington's disease, lacked coordination, and had the mental capacity of a fifteen-year-old. The Court found that during the attack she would have most likely not understood what was happening and would have been physically helpless.

MITIGATING CIRCUMSTANCES:

The Court found that the defendant failed to prove by a preponderance of the evidence the following mitigating circumstance:

(G)(1) - Significant impairment - [by intoxication]

JUDGMENT: Conviction and death sentence affirmed.

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