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State v. Libberton, 141 Ariz. 132, 685 P.2d 1284 (1984)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder, aggravated robbery, kidnapping and theft. The defendant was sentenced to death for the murder. This is the defendant's automatic, direct appeal to the Arizona Supreme Court. State v. James, 141 Ariz. 141, 685 P.2d 1293 (1984), is a companion case.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
The defendant wanted the victim's car and money so that he could leave Arizona and escape his work furlough program. Pecuniary gain was a cause of this murder.

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

Cruel: Upheld.
Mental Anguish: Found. The victim experienced "great mental anguish" before his death. The victim listened to his captors discuss killing him and where they would hide his body. He was forced into his own car, driven two hours at gunpoint to the place the defendant had discussed killing him. The first attack occurred a couple of hours after midnight and the victim was not killed until daybreak. The victim spent several hours uncertain as to his ultimate fate. After being taken to the edge of the mineshaft, the victim requested and was given one last cigarette. "Therefore, even after arriving at the place chosen for the murder, Maya was subjected to the additional torment of being allowed to delay the inevitable by smoking his final cigarette while his assailants stood by, delaying their final assault until he finished. Finally, Maya pleaded for his life. We find that these facts beyond any reasonable doubt establish mental cruelty."
Physical Pain: Found. The Court found that the victim also suffered physical abuse by being beaten three separate times, and then finally was beaten, while conscious, with rocks and a board. The Court held that the defendant "inflicted physical pain" on the victim. 141 Ariz. at 140.

Heinous or Depraved: Not addressed.

(F)(7) Finding (Murder Committed while in Custody) - NOT FOUND
The trial court did not find this aggravating circumstance. The state, however, urged by cross-appeal that the factor did apply to the defendant. The state recognized the Arizona Supreme Court had held in State v. Gillies (Gillies I), 135 Ariz. 500, 512, 662 P.2d 1007, 1019 (1983), that this aggravating circumstance does not apply to persons on unsecured work furlough. The state distinguished Gillies I by saying that in this case defendant was on secured work furlough (he was required to return to the Durango facility each day at 6:00 p.m.) whereas the defendant in Gillies I was on unsecured work furlough. In Gillies I, the Court stated that the legislature's purpose for enacting section 13-751(F)(7) is "to protect the guards and other inmates at such institutions where a defendant is confined and to discourage violence by incarcerated persons." Gillies I, 135 Ariz. at 512, 662 P.2d at 1019. The defendant was not confined when he committed the offense, nor was he incarcerated, therefore the circumstance did not exist in this case.

MITIGATING CIRCUMSTANCES:

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

Age - [20 years old at the time of the murder]

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

(G)(1) - Significant Impairment - [never given psychological care]
(G)(3) - Minor Participation
Follower

JUDGMENT: Convictions and sentences affirmed.

State v. James, 141 Ariz. 141, 685 P.2d 1293 (1984)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder and kidnapping, but was acquitted of aggravated robbery and theft. Defendant was sentenced to death for the murder. This is the defendant's automatic, direct appeal to the Arizona Supreme Court. State v. Libberton, 141 Ariz. 132, 685 P.2d 1284 (1984), is a companion case.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - REVERSED
The (F)(5) finding was reversed based on the jury's acquittal on the aggravated robbery and theft charges. Although the Court found merit in the trial judge's argument, the Court thought that "mental gymnastics" would be required to uphold the finding in light of the jury's conclusion. The Court was left with reasonable doubt as to whether the defendant's motive was pecuniary gain, and so could not uphold this aggravating circumstance.

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

Cruel: Upheld.
Mental Anguish: Found. From the time that the defendant expressed intent to kill the victim, it was several hours before the killing actually took place, leaving the victim to contemplate his ultimate fate. During the victim's captivity, the defendant beat and taunted the victim, as well as held him at gunpoint while driving for two hours to the place where the victim was murdered. The victim tried to escape during one beating, but was caught. The victim begged for his life in exchange for his valuables.
Physical Pain: Found. The victim was beaten beyond recognition before his death with fists, rocks, and a board. The gun intended to kill the victim misfired and lit the victim's clothes on fire.
Knew or Reason to Know that Victim Would Suffer: Not addressed, though the Court stated that pain and distress were inflicted deliberately and sadistically.

Heinous or Depraved: Upheld.
Relishing: Found. Defendant bragged about his role and the difficulties encountered in killing the victim. The Court found that the defendant felt no remorse. Further, disposing of the victim's body in an isolated desert area after he was mercilessly beaten demonstrated callousness and disregard for the victim's family who would never have learned of the victim's fate but for defendant's and co-defendants' "later brazenness." 141 Ariz. at 147.
Senselessness: Found. There was no reason to kill the victim other than greed and prejudice against one different from oneself.

MITIGATING CIRCUMSTANCES:

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

Impaired capacity - [use of LSD on day of murder]
Remorse
Duress

JUDGMENT: Convictions and sentences affirmed.

State v. Fisher (Fisher I), 141 Ariz. 227, 686 P.2d 750 (1984)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder and was sentenced to death based on a finding of two aggravating circumstances. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
The trial court's (F)(5) finding was proper because Fisher's motive in killing the victim was financial. Fisher and his wife managed an apartment building owned by the victim. In their post-arrest statements, both Fisher and his wife state that Fisher killed the victim for the $500.00 rent money he had collected for her. The absence of the victim's initials on stubs in the rent receipt book supported the statements of Fisher and his wife.

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

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The victim was hit three separate times with a claw hammer. Any one of the blows would have been fatal by itself. The blows "shattered her skull and at least one had driven bone into her brain." 141 Ariz. at 252. The violence exceeded that which was necessary to rob and kill the victim, a seventy-three-year-old woman.
Senselessness: Found. Although the Court did not specifically refer to "senselessness," the Court stated that the defendant's decision to murder the victim, notwithstanding the generosity and concern she expressed for the defendant and his wife, demonstrated heinousness and depravity.

MITIGATING CIRCUMSTANCES:

The Court found that there was no evidence the trial court did not consider the following mitigating circumstances, but they were not sufficiently substantial to call for leniency:

Sentencing Disparity
Lack of criminal history
Impact of death penalty on the defendant's family

JUDGMENT: Conviction and death sentence affirmed.

State v. Chaney, 141 Ariz. 295, 686 P.2d 1265 (1984)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Coconino) of first-degree murder, kidnapping, aggravated assault, two counts of aggravated robbery, one count burglary, and one count theft. Defendant was sentenced to death for the murder. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

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

Cruel: Upheld.
Mental Anguish: Found. Victim said "goddamn someone please help," into the sheriff's car microphone. 141 Ariz. at 312. As defendant fired his high-powered rifle, the victim crouched in his vehicle to avoid the bullets. Shattered glass and other projectiles struck the victim. While the victim was in the crouched position, he could not reach any of his weapons. The victim was shot several times. After the attack, the victim, a doctor and part-time deputy, remained conscious for approximately thirty minutes. He knew he was slowly bleeding to death and told the medics "I'm dying, I'm dying." He saw his left arm hanging from his body by a muscle. "Before help arrived, he could hear the radio transmissions and the fact that no one was sure where he was for several minutes. It is not necessary to speculate about the victim's mental anguish; he helplessly and uselessly begged and waited for help." 141 Ariz. at 312.
Physical Pain: Found. See Mental Anguish.
Knew or Reason to Know that Victim Would Suffer: Found. "Chaney stood close enough to the victim to see that the victim was in great pain; Chaney then fired again. When Chaney left he knew the victim was not dead and Chaney knew the victim was suffering."

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. Although the Court did not specifically refer to "gratuitous violence," it did state that "repeatedly firing a high powered destructive weapon at the victim tends to show the crime was heinous and depraved."
Senselessness: Found. Once the victim was down, Chaney could have taken the victim's guns and disabled the two-way radio as he had just done with the other deputy. Thus, the crime was senseless."
Helplessness: Found. Once the victim was injured, he was helpless. The defendant saw this before he fired the last shot. "Shooting a helpless victim from behind at close range is evidence of this aggravating circumstance."

MITIGATING CIRCUMSTANCES:

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

Mental Impairment
Family Background
Sentencing Disparity
Not harming Other Victims

JUDGMENT: Convictions and sentences affirmed.

State v. Harding (Gage murder), 141 Ariz. 492, 687 P.2d 1247 (1984)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder, robbery, and theft and was sentenced to death for the murder. This is 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 this aggravating circumstance.

(F)(2) (Prior Violent Felony) - UPHELD
Prior convictions in Arizona of dangerous or deadly assault by prisoner and two counts of first degree murder sufficient to support trial court's finding of this aggravating circumstance.

(F)(5) (Pecuniary Gain ) - UPHELD
The victim was found in a motel room, bound and gagged. He died from asphyxiation because of the gagging. His wallet and car were missing. At the time of Harding's arrest, Harding had the victim's wallet and identification in a suitcase in the car Harding was driving. The Court reiterated that pecuniary gain must be the cause of the murder, not just a result. Here, the Court agreed with the trial court's finding that the purpose for binding and gagging the victim was to facilitate the robbery and hinder detection. "[T]he victim died as a direct result of the binding and gagging during the commission of the offense."

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

Cruel: Upheld.
Physical Pain: Found. The victim's hands and feet were bound with tape and were then tied tightly together behind his back. A wash cloth was stuffed in his mouth and throat. He was face down with his head on a pillow. The medical testimony established that the washcloth was far enough down the victim's throat that he could not breathe even through his nose, and that he died slowly by asphyxiation because of the gagging.

Heinous or Depraved: Not addressed.

MITIGATING CIRCUMSTANCES:

The Court found no mitigating circumstances sufficient to call for leniency. The defendant failed to prove by a preponderance of the evidence the existence of the following mitigating circumstance:

Lack of intent to kill

JUDGMENT: Convictions and sentences affirmed.

State v. Roger Smith (Roger Smith II), 141 Ariz. 510, 687 P.2d 1265 (1984)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder and armed robbery. Defendant was sentenced to death for the murder. On direct appeal, the Arizona Supreme Court affirmed the convictions and armed robbery sentence, but vacated the death sentence and remanded the case for resentencing. State v. Smith, 136 Ariz. 273, 665 P.2d 995 (1983). The trial court resentenced the defendant to death and this is defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - UPHELD
The trial court erroneously relied on a transcript from the previous sentencing hearing concerning the victim's testimony regarding a prior kidnapping conviction obtained in Tennessee as support for this aggravating circumstance. The Court found this to be harmless error because the defendant admitted the conviction, and based on Tennessee's definition of kidnapping, the prior conviction supported a finding that his aggravating circumstance exists.

(F)(5) (Pecuniary Gain) - UPHELD
The (F)(5) finding was upheld without discussion because the defendant did not contest the finding on appeal. The defendant had decided to rob a store, took a loaded sawed-off shotgun inside, pointed it at the clerk, and shot the clerk in the head.

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

Cruel: Not addressed.

Heinous or Depraved: Reversed.
Senselessness: Not found. The trial court found the crime was committed in an especially depraved manner because it was senseless, in that the defendant could have committed the robbery and escaped without harming or killing the victim. 141 Ariz. at 511. The Court disagreed with the trial court's reasoning, noting that "[t]he facts of this killing are similar to State v. Jordan, 137 Ariz. 504, 672 P.2d 169 (1983), in which we found the murder not to be especially heinous, cruel, or depraved." 141 Ariz. at 511. Although the Court stated that there were other facts in the record to support depravity in this case, the Court did not consider those facts because the trial court ignored them in its special verdict. The Court concluded that the trial court must not have found those facts to be true beyond a reasonable doubt.

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstance existed, but it was not sufficiently substantial to call for leniency:

Remorse

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

Age - [21 years old at time of murder]
Family Ties
Lack of Intent to Kill
Claim of Innocence - [the gun accidentally discharged]
Impairment - [from drug and alcohol use on day of crime]

JUDGMENT: Death sentence affirmed.

State v. Villafuerte, 142 Ariz. 323, 690 P.2d 42 (1984)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder, kidnapping, and theft of property valued in excess of $1000. Defendant was sentenced to death for the murder. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

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

Cruel: Reversed. "To find cruelty the State must show beyond a reasonable doubt that the victim was conscious when the acts of violence causing death were committed." 142 Ariz. at 331 (citation omitted). In this case, the medical expert could not determine whether the victim was conscious after she received the blow to her head that caused a hairline fracture. Therefore, the State failed to prove cruelty beyond a reasonable doubt.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The Court mentioned gratuitous violence, but did not specify facts that support the finding. The Court did note that the victim was gagged with a ball of cloth in her nasal pharynx and that this kind of "perverse gagging" indicates a depraved state of mind.
Senselessness: Found. In order for the defendant to fulfill his stated purpose of preventing the victim from calling the police immediately after the defendant departed the scene, it was not necessary for the defendant to bind and gag the victim in such an extreme manner as to assure her death by suffocation.
Helplessness: Found. The defendant left the victim alive, but bound and gagged in such a manner that she could not get assistance. Further, the defendant waited to tell police about the victim until twenty-four hours after he was apprehended and forty-eight hours after he had left the victim bound and gagged.

MITIGATING CIRCUMSTANCES:

No mitigating circumstances were found by the trial court. The Court found no mitigating circumstances sufficient to outweigh the aggravating circumstance.

JUDGMENT: Convictions and sentences affirmed.

State v. Clabourne (Clabourne I), 142 Ariz. 335, 690 P.2d 54 (1984)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of first-degree murder, kidnapping, and three counts of sexual assault. He was sentenced to death for the murder. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

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

Cruel: Upheld.
Mental Anguish: Found. The victim was forced to undress and serve drinks to the defendant and his friends. She was raped repeatedly over a six-hour period and evidence showed she begged the defendant to protect her, indicating she was in great fear for her life.
Physical Pain: Found. The victim was beat and raped repeatedly over a six-hour period. Evidence supported the finding that the victim struggled while she was strangled, which indicates a good deal of suffering. 142 Ariz. at 348.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. "The victim was near death after the strangulation and the stabbing was unnecessary to accomplish the murder. Still defendant stabbed her twice, once through the heart."

MITIGATING CIRCUMSTANCES:

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

Age - [20 years old at time of murder]
Difficult childhood/Family history

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

(G)(1) - Significant Impairment
Remorse

JUDGMENT: Conviction and sentence affirmed.

State v. Gillies (Gillies II), 142 Ariz. 564, 691 P.2d 655 (1984)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder, sexual assault, aggravated robbery, kidnapping and computer fraud. On direct appeal, the convictions were upheld, but the case was remanded for resentencing, due to improper admission of a prior conviction and error in sentencing. State v. Gillies, 135 Ariz. 500, 662 P.2d 1007 (1983). The defendant was resentenced to death and this is defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

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

Cruel: Upheld.
Mental Anguish: Found. The victim was held for eight hours before she was killed. The victim was forced to drive to a secluded area and was then raped by defendant and Logan. She was then tied up, put in the back of her car, and forced to guide them to her Scottsdale apartment. Both men raped the victim again. The victim was then placed in her car and driven to the Superstition Mountains. Once in a secluded area, the men took her from the car, brought her to the edge of an embankment and told her to climb down. The defendant hit her when she refused. The victim was kicked off the edge by Logan, but the fall didn't kill her. She begged to be left alone to die. Each man blames the other for actually hitting her in the head with a rock to kill her. Evidence shows that it took several blows to kill her. The victim died from loss of blood and a crushed skull. The victim spent up to eight hours uncertain of her ultimate fate, which constitutes cruelty.
Physical Pain: Found. See Mental Anguish.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The "savage manner of death" was found as a factor to support heinousness and depravity. 142 Ariz. at 570.
Relishing: Found. Although the Court did not specifically refer to "relishing," the Court found that defendant's comments to co-defendant Logan ("Wasn't the Superstitions fun"), made in the presence of defendant's girlfriend, supported a heinous and depraved finding. Additionally, defendant's comments to police with regard to the possibility of a death penalty in this case ("All that, for killing that bitch?") supported a heinous and depraved finding.
Senselessness: Found. The murder was found to be senseless, but the Court did not elaborate on the facts supporting this finding.
Witness Elimination: Found. The defendant told an acquaintance that he and Logan killed the victim so she could not testify against them for raping her. In his pro se brief, the defendant stated that the murder made sense or had meaning because it served to eliminate the only possible witness to the crimes of kidnapping, aggravated robbery, and sexual assault. "We believe elimination of witnesses, as a motive for murder, also illustrates heinousness and depravity."

MITIGATING CIRCUMSTANCES:

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

Age - [20 years old at time of murder]
Model Prisoner - [becoming religious and showing remorse]

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

(G)(1) - Significant Impairment - [intoxication]
Felony Murder/Lack of intent to kill
Sentencing Disparity

JUDGMENT: Convictions and sentences affirmed.

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