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State v. Adamson (Adamson II), 136 Ariz. 250, 665 P.2d 972 (1983)

PROCEDURAL POSTURE: The defendant pleaded guilty to second-degree murder and testified against James Robison and Max Dunlap. The convictions of Robison and Dunlap were reversed and remanded. Adamson refused to testify at the new trials without further consideration. Defendant was held in breach of his plea bargain and first-degree murder charges were reinstated. The defendant was convicted in Superior Court (Maricopa) of first-degree murder and was sentenced to death. This is the defendant's direct appeal of his death sentence to the Arizona Supreme Court, along with an appeal of the denial of his petition for post-conviction relief.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
There has never been any question that this aggravating circumstance applies to hired killers. Here, Adamson told a witness that he would be receiving $10,000.00 for the murder. He also told this same witness that he was not worried about his defense because he had some money coming in and "his people" would be taking care of court costs. Adamson also appeared at an office in Phoenix three times to pick up his payment after the murder.

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

Cruel: Upheld.
Mental Anguish: Found. Victim was conscious during bombing as evidenced by his screams.
Physical Pain: Found. "The victim clearly suffered in the instant case." 136 Ariz. at 266. Witnesses heard the victim screaming for help. Bomb fragments were imbedded in the victim's body. One leg was shattered from his upper hip to his ankle and had the "appearance of hamburger." 136 Ariz. at 266. Victim's other leg and arm were "severely mutilated." "The force of the explosion sent a piece of flesh the size of a softball across the parking lot."
Knew or Reason to Know that Victim Would Suffer: Found. "The defendant must also intend that the victim suffer or reasonably foresee that there is a substantial likelihood that the victim will suffer as a consequence of the defendant's acts. . . . The means used to kill Bolles made it reasonably foreseeable to Adamson that if Bolles did not die instantaneously there was a substantial likelihood that he would suffer a great deal from his injuries."

Heinous or Depraved: Not addressed.

MITIGATING CIRCUMSTANCES:

The Court considered the following in mitigation, but found they were not sufficiently substantial to call for leniency:

Cooperation with federal and state authorities
Length of legal proceedings

JUDGMENT: Conviction and sentence affirmed.

State v. Richmond (Richmond II), 136 Ariz. 312, 666 P.2d 57 (1983)

PROCEDURAL POSTURE: The defendant was convicted of first-degree murder in 1974 and he received a death sentence. On direct appeal, the Arizona Supreme Court affirmed the conviction and sentence, but later vacated the death sentence pursuant to State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978), and remanded for resentencing. The defendant was resentenced to death after a new sentencing hearing. This is the defendant's direct appeal to the Arizona Supreme Court, along with an appeal of the denial of his petition for post-conviction relief.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
Prior conviction for murder was sufficient to support the trial court's finding of this aggravating circumstance, even though the conviction was obtained after the conviction in this case, but before resentencing.

(F)(2) (Prior Violent Felony) - UPHELD
Prior conviction for murder and kidnapping were sufficient to support a finding of this aggravating circumstance, even though the convictions were obtained after the conviction in this case, but before resentencing.

(F)(5) (Pecuniary Gain) - NOT ADDRESSED
The (F)(5) aggravating circumstance was not addressed because it was not found by trial judge in the initial sentencing. The trial judge believed that this aggravating circumstance only applied in contract killings. The defendant's initial sentencing occurred prior to the decision in State v. Clark, 126 Ariz. 428, 616 P.2d 888 (1980), where the Arizona Supreme Court specifically held that the pecuniary gain factor was not limited to contract killings.

(F)(6) (Heinous, Cruel or Depraved) - REVERSED
The death sentence was upheld by a majority of the justices (4-1), however, the aggravating circumstance of "especially cruel, heinous, or depraved" was only found by two justices Holohan and Hays. Justices Cameron, Gordon and Feldman did not find that this aggravating circumstance existed.

Cruel: Reversed.
Mental Anguish: Not addressed.
Physical Pain: Not found. None of the justices found the murder "especially cruel," because "there is no evidence in the record to indicate the victim suffered more pain than that of the initial blow which rendered him unconscious." 136 Ariz. at 319.
Knew or Reason to Know that Victim Would Suffer: Not addressed.

Heinous or Depraved: Reversed (3 justices).
Gratuitous Violence: Not found.
Holohan & Hays: Found. The opinion refers to "gratuitous violence," but does not distinguish facts that support gratuitous violence from the facts supporting mutilation. See Mutilation.
Cameron & Gordon: Not found. Victim was killed by being run over by an automobile. "There is no evidence to suggest that the defendant knew or should have known that the victim was dead after the first pass of the car." 136 Ariz. at 323. "There has been no showing that this defendant inflicted any violence on the victim which he must have known was `beyond the point necessary to kill.'" 136 Ariz. at 323.
Feldman: Not found. In his dissenting opinion, Justice Feldman agrees with Justices Cameron and Gordon that this murder is not heinous and depraved, but does not make any specific findings as to gratuitous violence.
Mutilation: Not found.
Holohan & Hays: Found. Victim was unconscious and bleeding when the defendant ran over the victim twice from different directions. The defendant ran over the victim's head, crushing his skull and killing the victim, then defendant ran over the victim's body. Two large pools of blood, approximately 30 feet apart, at the crime scene were consistent with the body being run over and dragged to the location where it was found. The facts demonstrate "ghastly mutilation" of the victim. The two justices found the crime to be "especially heinous," but stated that it could also be found "especially depraved." 136 Ariz. at 323.
Cameron & Gordon: Not found. "Here there is no suggestion of distinct acts, apart from the killing specifically performed to mutilate the victim's body. Any disfigurement of the victim in this case was the direct result of the killing itself. I do not believe we should stretch the definition of `mutilation' to cover all murders in which the victim's body is disfigured, where there is not indication of a separate purpose to mutilate the corpse." 136 Ariz. at 323. Heinousness and depravity focus on the killer's state of mind, not on the appearance of the corpse.
Feldman: Not found. In his dissenting opinion, Justice Feldman agrees with Justices Cameron and Gordon that this murder is not heinous and depraved, but does not make any specific findings as to mutilation.

MITIGATING CIRCUMSTANCES:

The Court noted that the following were proffered in mitigation, but did not make any specific findings with regard to the proffered evidence:

Sentencing disparity
Victim's actions
Felony murder instruction
Family support
Changed character

JUDGMENT: Conviction and death sentence affirmed.

State v. Harding (Wise, Concannon murders), 137 Ariz. 278, 670 P.2d 383 (1983)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of two counts of first-degree murder, two counts of robbery, two counts of kidnapping and theft. The defendant was sentenced to death for each of the murders. 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 in Arizona of dangerous or deadly assault by prisoner, and two counts of first-degree murder were sufficient to support trial court's finding of the (F)(1) aggravating circumstance.

(F)(2) (Prior Violent Felony) - UPHELD
Prior conviction and sentence to life imprisonment for dangerous or deadly assault by prisoner were sufficient to support trial court's finding of this aggravating circumstance. This felony involves commission of an assault "using or exhibiting a deadly weapon or dangerous instrument," or the knowing or intentional infliction of "serious physical injury" on the assaulted party. The Court also considered the facts of the conviction, that the defendant had struck a fellow inmate several times with a dart discharged through a blowgun, in upholding this aggravating circumstance.

(F)(5) (Pecuniary Gain) - UPHELD
Sufficient evidence supported a finding that Harding committed the murders in the course of obtaining valuable personal property from his victims. Harding killed two businessmen in a Tucson motel room, after first binding them and then removing clothing, a briefcase and credit cards from one of the victims. Harding left the scene of the murders in a car that had been in the possession of one of the victims. This "sequence of binding, robbing and leaving helpless the victims while stealing their auto," supported the (F)(5) finding.

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

Cruel: Reversed.
Mental Anguish: Not found. "Because there is no evidence beyond a reasonable doubt that the victims were conscious, the state's evidence fails to establish that this sadistic treatment was especially cruel to the victims." Physical Pain: Not found. See Mental Anguish.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The right side of one victim's face was severely bruised and abraded. His right ear lobe was nearly severed. His jaw was broken, with bone fragments, and it was displaced from its normal position. "The nature and location of the damage sustained required a number of blows to the victim's face while the victim was stationary." "The savage beating of [victim], regardless of its timing, reflects a depraved mental state. The same is true of the treatment given [the other victim], who was perversely gagged."
Mutilation: Found. "Even if the beating with the lamp base occurred after the victim's decease, we still find this to be an act of gratuitous violence and a debasement of a corpse bordering on `mutilation of the victim.'"
Helplessness: Found. "The helplessness of the victim plus the gratuitous nature of the bludgeoning, beyond the point necessary to rob or to dispatch the victims by shooting, renders the beating apart from the usual or the norm, and it is therefore depraved."

MITIGATING CIRCUMSTANCES:

The defendant chose not to present any evidence in mitigation, despite the trial court's urging him to do so. The trial court found no mitigating circumstances, and upon a review of the entire record, the Court found no "conclusive evidence tending to show mitigation" of the death sentences.

JUDGMENT: Convictions and consecutive death sentences affirmed.

State v. Jordan (Jordan III), 137 Ariz. 504, 672 P.2d 169 (1983)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder and sentenced to death in 1975. After the judgment was affirmed on appeal, State v. Jordan, 114 Ariz. 452, 561 P.2d 1224 (1976), vacated, 438 U.S. 911, 98 S.Ct. 3138, 57 L.Ed.2d 1157 (1978)(Jordan I), the case was remanded pursuant to the Arizona Supreme Court's decision in State v. Watson, and the defendant was again sentenced to death. That second death sentence was again affirmed on appeal by the Arizona Supreme Court. Jordan II, 126 Ariz. 283, 614 P.2d 825 P.2d 825 (1980) (pecuniary gain aggravator found by the trial court, but not considered by the Arizona Supreme Court on appeal). The Arizona Supreme Court set the date for execution at March 23, 1983, and on February 16, 1983, the defendant filed a Rule 32 petition. The Superior Court denied the petition and the Arizona Supreme Court stayed the execution on appeal to hear the Rule 32 petition. This is the ruling from that appeal.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
The Court reiterated that the defendant's arguments against the use of his four prior felony convictions had already been heard and rejected in Jordan I, and that these prior convictions had been proven beyond a reasonable doubt at trial.

(F)(2) (Prior Violent Felony) - UPHELD
The defendant argued that his prior felony convictions were not proven beyond a reasonable doubt. The Court found that there was sufficient evidence in the record to prove the existence of the prior convictions and affirmed that these convictions were sufficient to support the (F)(2) finding. See Jordan I and Jordan II.

(F)(5) (Pecuniary Gain) - UPHELD
The trial court's (F)(5) finding at resentencing was lawful, but the Court did not consider it here .

MITIGATING CIRCUMSTANCES:

There is no discussion of mitigation in this opinion. See review of mitigation in Jordan II.

JUDGMENT: Case remanded to the trial court to hold an evidentiary hearing on the defendant's Rule 32 petition. After remand for resentencing in accordance with this opinion, the trial court sentenced the defendant to life imprisonment without the possibility of parole for twenty-five years.

State v. Lambright, 138 Ariz. 63, 673 P.2d 1 (1983)

PROCEDURAL POSTURE: The defendant was convicted in the Superior Court (Pima) of first-degree murder, kidnapping, and sexual assault. This is the defendant's automatic, direct appeal to the Arizona Supreme Court. State v. Smith, 138 Ariz. 79, 673 P.2d 17 (1983), is a companion case.

AGGRAVATING CIRCUMSTANCES:

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

Cruel: Upheld.
Mental Anguish: Found. The victim was abducted and driven away from the city. She was scared and trembling. The victim was sexually assaulted, taken to an isolated location and put in fear for her life "as evidenced by her asking her captors if they intended to let her go." 138 Ariz. at 75. The victim was sexually assaulted a second time and then killed.
Physical Pain: Found. "[T]he manner of killing was one which was physically painful to the victim." 138 Ariz. at 75. The victim was choked, stabbed in the chest and abdomen with the knife being twisted and turned inside the body, and her throat was cut deeply. "After these attacks she remained alive and was still conscious, as she raised herself up on one elbow when her assailants turned to leave. The defendant then threw a large boulder down on her head." 138 Ariz. at 75.

Heinous or Depraved: Upheld.
Relishing: Found. "[W]hen the defendant was arrested one year after the murder he was wearing a necklace with a charm that had belonged to Ms. Owen." 138 Ariz. at 75. Defendant had kept the necklace as a souvenir of the trip. "A heinous and depraved state of mind is also demonstrated by Lambright's participation in the macabre celebration of the killing during which the group played the song `We are the Champions.'" 138 Ariz. at 75.

MITIGATING CIRCUMSTANCES:

None sufficiently substantial to call for leniency. The Court noted the following mitigating circumstances proffered by the defendant, but it is unclear whether the Court found them to be mitigating circumstances here:

Lack of criminal history - [for violent crime]
Military service
Difficult childhood/Family history
Sentencing disparity - [Court agreed that grant of immunity was "appalling"]

JUDGMENT: Convictions and sentences affirmed.

State v. Robert Smith, 138 Ariz. 79, 673 P.2d 17 (1983)

PROCEDURAL POSTURE: The defendant was convicted in the Superior Court (Pima) of first-degree murder, kidnapping, and sexual assault. This is defendant's automatic, direct appeal to the Arizona Supreme Court. State v. Lambright, 138 Ariz. 63, 673 P.2d 1 (1983), is a companion case.

AGGRAVATING CIRCUMSTANCES:

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

Cruel: Upheld.
Mental Anguish: Found. "The victim was made to suffer great mental anguish . . . prior to her death." See the facts supporting mental anguish in Lambright, 138 Ariz. at 75.
Physical Pain: Found. "The victim was made to suffer great . . . physical pain prior to her death. Defendant Smith shares full responsibility for the cruelty toward Ms. Owen. In fact, he was the one who repeatedly raped the victim prior to murdering her. Cruelty was clearly established." 138 Ariz. at 85. See also the facts supporting Physical Pain in Lambright, 138 Ariz. at 75.

Heinous or Depraved: Reversed. "The evidence suggesting Smith also had a heinous and depraved attitude toward the crime is equivocal." 138 Ariz. at 85.
Relishing: Not found. Although the Court did not specifically refer to "relishing," it stated that the only evidence of heinousness or depravity was the uncorroborated testimony of one witness that the defendant was the one who requested the playing of the song "We are the Champions." That evidence does not establish beyond a reasonable doubt that defendant "had a heinous and depraved attitude toward the crime." 138 Ariz. at 85.

MITIGATING CIRCUMSTANCES:

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

Difficult childhood/Family history
Lack of criminal history
Remorse
Family Ties
Sentencing disparity
Low intelligence

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

(G)(1) - Significant Impairment
(G)(3) - Minor Participation
Felony Murder/Lack of intent to kill

JUDGMENT: Convictions and sentences affirmed.

State v. Summerlin, 138 Ariz. 426, 675 P.2d 686 (1983)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder and sexual assault. The death penalty was imposed for the murder conviction. This is defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - UPHELD
The trial court's finding of this aggravating circumstance was upheld without discussion.

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

Cruel: Upheld.
Mental Anguish: Found. See Physical Pain.
Physical Pain: Found. "Evidence of the victim's bruised hand indicates that she attempted to ward off blows. This evidence and the evidence of rape are indications of physical and mental pain. These acts constitute cruelty." 138 Ariz. at 436.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. "[T]he several blows to the victim's head were far more in number than those needed to kill her. It is obvious from the battered condition of the victim's body that she was incapable of defending herself." 138 Ariz. at 436.
Mutilation: Found. The Court provided no explanation of the facts supporting the finding.
Relishing: Found. "As for defendant's state of mind, we must consider such things as defendant's `apparent relishing of the murder,' `inflicting of gratuitous violence on the victim,' `mutilation of the victim,' and `senselessness of the crime, and helplessness of the victim.' We find that all of the above-listed circumstances were present." 138 Ariz. at 436. The Court provided no further explanation of the facts supporting the finding.
Senselessness: Found. No explanation of the facts supporting the finding. See Relishing.
Helplessness: Found. No explanation of the facts supporting the finding. See Relishing.

MITIGATING CIRCUMSTANCES:

There is no discussion of mitigating circumstances in this opinion.

JUDGMENT: Convictions and sentences affirmed.

State v. McCall (McCall I), 139 Ariz. 147, 677 P.2d 920 (1983)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of two counts of first-degree murder, one count of conspiracy to commit first-degree murder, one count attempted murder, three counts of kidnapping, three counts of armed robbery, and one count of first-degree burglary. The death penalty was imposed for each of the murder convictions. This is defendant's automatic, direct appeal to the Arizona Supreme Court. State v. Cruz, 137 Ariz. 541, 672 P.2d 470 (1983) is a companion case.

AGGRAVATING CIRCUMSTANCES:

(F)(3) (Grave Risk of Death to Others) - REVERSED
The defendant placed three victims on the bed and shot all of them; two died and one lived. This aggravating circumstance does not exist when the defendant intends to murder all the victims, even though one may survive.

(F)(5) (Pecuniary Gain) - UPHELD
A witness testified that McCall told him of McCall's participation in the murders and the expectation of receiving $10,000 as payment for the murders. The Court concluded that there is no doubt that (F)(5) applies to this type of "hired gun" situation.

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

Cruel: Upheld.
Mental Anguish: Found. The three victims were led around the home at gunpoint by three men. The victims surrendered their valuables, were forced to lie on a bed with hands taped and mouths gagged with socks. The victims knew that their assailants were armed. The Court inferred that the victims were uncertain of their ultimate fate and found that they endured the "unimaginable terror" of listening to loved ones being shot and waiting for their own turn. 139 Ariz. at 161.
Physical Pain: Found. One victim, Mrs. Phelps, was shot in the head the first time, but did not lose consciousness or die from that shot. The Court found that the wound certainly caused physical pain.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. But see, Mutilation below.
Mutilation: Found. One victim, Pat Redmond, was shot twice in the head, followed by his throat being cut open. Medical experts testified that his throat was cut at the time of death or shortly thereafter. Evidence existed to support the finding that the mutilation was intended as a warning to others. It is not entirely clear whether the Court found mutilation or gratuitous violence, however, the Court used mutilation language in connection with the facts. In another codefendant's case, based on the same facts, the Court said that the victim, Pat Redmond, was shot twice through the head and also had his throat slashed "at the time of his death or shortly thereafter" and that "the infliction of gratuitous violence or mutilation of the victim indicates depravity or heinousness." State v. Bracy, 145 Ariz. 520, 538, 751 P.2d 464 (1985).
Senselessness: Found. The murder of Helen Phelps was "particularly senseless" in that "[s]he was an elderly houseguest of the Redmonds with no possible interest in their business affairs. Her murder in no way furthered the plan of the killers." 139 Ariz. at 161.

MITIGATING CIRCUMSTANCES:

None sufficiently substantial to call for leniency. The Court found that the defendant failed to prove the following as a mitigating circumstance: Quality of evidence at trial - and contradictions in testimony of a particular witness concerning aggravating circumstances.

JUDGMENT: Convictions and sentences affirmed.

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