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State v. Hensley (Hensley II), 142 Ariz. 598, 691 P.2d 689 (1984)

PROCEDURAL POSTURE: Defendant was convicted in Superior Court (Maricopa) of two counts of first-degree murder, attempted murder and armed robbery. He was sentenced to death and appealed to the Arizona Supreme Court. The Court affirmed the conviction and remanded the case back to the trial judge for resentencing in State v. Hensley (Hensley I), 137 Ariz. 80, 669 P.2d 58 (1983). After remand, the death sentence was reimposed and this is his automatic appeal from that second sentence to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
Citing State v. Harding, 137 Ariz. 278, 670 P.2d 383 (1983), the Court here reiterates that the defendant's overall goal must be one of pecuniary gain before the (F)(5) aggravating circumstance can be found. If the death is unexpected or accidental and not in furtherance of the pecuniary gain goal, then the factor does not apply. Looking to the facts of this case, the murders were part of the overall robbery scheme. The specific purpose was to facilitate the escape of the robbers. The defendant had the three victims lie on the floor of the bar where he shot each of them in the head so that no witnesses would be left to identify the robbers. These murders were not accidental or unexpected.

MITIGATING CIRCUMSTANCES:

The Court found the mitigation offered by the defendant - that he had obtained a GED degree - was not sufficiently substantial to call for leniency.

JUDGMENT: Conviction and sentence affirmed. After affirming the death sentence the second time, the defendant petitioned for post-conviction relief in the trial court. The trial court granted relief, vacating the death sentence because his counsel was ineffective at sentencing for not introducing evidence of his intoxication at the time of the crime. On resentencing, the defendant received two consecutive life sentences without the possibility of parole for 25 years on the murder convictions.

State v. Carriger (Carriger III), 143 Ariz. 142, 692 P.2d 991 (1984)

PROCEDURAL POSTURE: Defendant was convicted in Superior Court (Maricopa) of first-degree murder and robbery. Defendant was sentenced to death for the murder. On direct appeal, the Arizona Supreme Court affirmed the convictions and sentences. State v. Carriger, 123 Ariz. 335 (1979). In 1982, the defendant filed a Rule 32 petition in the Arizona Supreme Court. The Court found that trial counsel was ineffective at sentencing, reversed the sentence and remanded the case for resentencing and consideration of any other matters properly raised. The trial court rejected all Rule 32 claims and resentenced the defendant to death for the murder. This is defendant's automatic, direct appeal to the Arizona Supreme Court. The appealable issues from the Rule 32 petition are also addressed by the Court.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - UPHELD
This finding was upheld without discussion.

(F)(5) (Pecuniary gain) - UPHELD
Carriger was convicted of killing a jewelry shop owner during the course of a robbery of the shop. Carriger argued that the pecuniary gain finding was unlawful for two reasons; first, it was specifically not found at his first sentencing and the state was barred from proving this aggravating circumstance, and second, the facts proving this circumstance are the same facts needed to prove the underlying felony of robbery. The Court found both arguments without merit. The state was not barred from proving this circumstance because the law had been clarified between the original sentencing and resentencing. At the time of his first sentencing, the Court had not yet held that pecuniary gain was defined to include a robbery. The facts did not change and they would have supported this finding at the original sentencing; the only change was the judicial construction of the statute. Further, the state must prove additional facts to prove this aggravating circumstance, once it has proved the robbery. Proving a taking in a robbery does not necessarily prove the motivation for a murder and the state cannot be said to be using one fact to prove two different items.

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

Cruel: Upheld.
Mental Anguish: Found. The victim pleaded for his life to no avail. The defendant bound the victim, who was unable to avoid the blows that killed him. "The inference is that the victim suffered the terror of being uncertain as to his fate and being helpless to avoid the assailant."

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The defendant used three forms of attack to kill the victim. "Carriger inflicted gratuitous pain on the victim. . . . He struck the victim with a skillet so hard that pieces of the skillet flew off and the victim's brain was `jelled loose'; he then struck the victim in the head with a pointed object; finally, he used the victim's tie to strangle the victim. The bloody scene and the mutilation of the victim's head tend to prove the crime was heinous and depraved."
Senselessness: Found. Because the victim was bound, he was unable to hinder the defendant's flight from the jewelry store robbery, "making the crime senseless."
Helplessness: Found. "[T]he victim was bound and helpless and the blows came from behind the victim."

MITIGATING CIRCUMSTANCES:

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

Model Prisoner -[polite, few disciplinary problems]
Saved life of fellow inmate
Risked retaliation to ensure safety of prison counselor
Writes poetry, fiction and paints
Family Ties

The Court found the defendant failed to prove the following were mitigating circumstances:

Residual doubt
Claim of innocence
Quality of evidence at trial -[untrustworthiness of state's main witness]
Conducted survey of death row inmates to determine why people kill]

JUDGMENT: Convictions and sentences affirmed.

State v. Nash, 143 Ariz. 392, 694 P.2d 222 (1985)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first- degree murder, armed robbery, aggravated assault, and theft. He received prison sentences on all counts, except the murder conviction for which he received the death penalty. This is his direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - UPHELD
The state presented sufficient evidence that the defendant was convicted of robbery, assault with intent to murder, aggravated robbery, and second degree murder. The defendant argued that without testimony regarding the specific facts of each crime, the Court cannot judicially notice that those crimes were violent felonies upon other persons. The Court disagreed and took judicial notice that all of the defendant's prior convictions, which, by definition, were violent felonies committed against other persons.

(F)(3) (Grave Risk of Death to Others - UPHELD
The factor is satisfied if the defendant puts a third party in the Azone of danger@ during the commission of the murder. Firing a gun while a third party was within close proximity of the victim and then pointing the murder weapon at the third party are two factors that put the third party in a zone of danger, and therefore, in grave risk of death. The murder of the victim took place during an armed robbery of a coin shop. After the defendant shot the victim, he pointed his gun at Susan McCullough but did not fire at her. She was five feet away from the defendant when he pointed the gun at her. She was in close proximity to the victim when he was shot three times by the defendant.

(F)(5) (Pecuniary Gain) - UPHELD
The Court reiterated that this aggravating circumstance is not unconstitutionally vague and arbitrary. The defense argued that (F)(5) should only apply to murder for hire situations, but the Court stated that this argument had already been rejected in State v. Clark, 126 Ariz. 428, 616 P.2d 888 (1980). Receiving something of pecuniary value must be the impetus for the murder, not just the result. Here, the murder was part of the overall scheme of robbery with the specific purpose to obtain items of pecuniary value. The defendant entered the coin shop with a gun and duffel bag and demanded money. He shot the defenseless victim, and after the victim tried unsuccessfully to defend himself, the defendant shot him again two more times and took money. The defendant had a plan to rob and the murder furthered that plan. The murder was not unexpected or accidental. This murder was not motivated by self-defense.

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

The Court found that the following was not mitigating in this case:

Age -[67 years old at time of crime]

JUDGMENT: Convictions and sentences affirmed.

State v. Patrick Poland (Patrick Poland II), 144 Ariz. 388, 698 P.2d 183 (1985)

PROCEDURAL POSTURE: On retrial defendant was convicted in Superior Court (Yavapai) of two counts of first-degree murder. The trial court imposed the death penalty based on three aggravating factors. This is defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - UPHELD
The defendant had previously been convicted of a bank robbery. The Arizona Supreme Court noted that a court may take judicial notice that certain felonies, by definition, involve violence against others. Fear of force is an element of robbery and the conviction is sufficient to support the (F)(2) finding.

(F)(5) (Pecuniary Gain) - UPHELD
The state proved beyond a reasonable doubt that Poland had a financial motivation in committing these murders. Poland and his brother, Michael, robbed a Purolator van containing approximately $328,180.00 in cash, and killed the two Purolator guards. The Court concluded that the murders were part of an overall scheme to obtain items of pecuniary value and the finding was "clearly warranted."

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

Cruel: Reversed.
Mental Anguish: Not found. See physical pain.
Physical Pain: Not found. The state did not show that the victims were conscious at the time of their death. Both victims (armored car guards) were believed to have drowned, although one might have died of a heart attack. There was no conclusive evidence whether the guards were drugged. Further, there was no evidence concerning the conditions of their confinement. Autopsies revealed no evidence that the guards were bound or injured prior to being placed in the water, and there was no sign of a struggle.

Heinous or Depraved: Reversed.
The Court found insufficient evidence on the record of the exact circumstances of the guards' deaths. Especially lacking was any information of the circumstances under which the guards were held hostage.

MITIGATING CIRCUMSTANCES:

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

Age -[27 years old at time of crime]
Model Prisoner

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

Good Character

JUDGMENT: Conviction and sentences affirmed.

State v. Michael Poland (Michael Poland II), 144 Ariz. 412, 698 P.2d 207 (1985)

PROCEDURAL POSTURE: On retrial the defendant was convicted in Superior Court (Yavapai) of two counts of first-degree murder. The trial court imposed the death penalty based on two aggravating factors. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
These murders had a financial motivation. The defendant obtained items used in the robbery of the Purolator van and in disposing of the guards' bodies. The purchase of canvas bags in which the bodies were found indicates that the murders were contemplated during the planning of the robbery. These murders, therefore, were part of an overall scheme to obtain items of pecuniary value.

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

Cruel: Reversed.
Mental Anguish: Not found. See physical pain.
Physical Pain: Not found. The state did not show that the victims were conscious at the time of their death. Both victims (armored car guards) were believed to have drowned, although one might have died of a heart attack. There was no conclusive evidence whether the guards were drugged. Further, there was no evidence concerning the conditions of their confinement. Autopsies revealed no evidence that the guards were bound or injured prior to being placed in the water, and there was no sign of a struggle.

Heinous or Depraved: Reversed.
The Court found insufficient evidence on the record of the exact circumstances of the guards' deaths. Especially lacking was any information of the circumstances under which the guards were held hostage.

MITIGATING CIRCUMSTANCES:

The Court found the existence of the following mitigating circumstances, but they were not sufficiently substantial to call for leniency:

Age -[36 years old at the time of the murder]
Family Ties
Model Prisoner

The Court found that the defendant failed to prove the following mitigating circumstance:

Good Character

JUDGMENT: Conviction affirmed. Although the (F)(6) finding was reversed, the Court upheld the death sentence based on A.R.S. 13-751(F)(5).

State v. Gerlaugh (Gerlaugh II), 144 Ariz. 449, 698 P.2d 694 (1985)

PROCEDURAL POSTURE: Defendant was convicted, at a joint trial, in Superior Court (Maricopa) of first-degree murder, armed robbery, and kidnapping. Defendant was sentenced to death for the murder. His convictions and sentences were affirmed on appeal. Defendant then brought a petition for post-conviction relief pursuant to Rule 32. After an evidentiary hearing, the trial court denied his Rule 32 petition. This is the defendant's appeal from the denial of his Rule 32 petition.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
The Arizona Supreme Court found no error in the trial court's finding that this aggravating circumstance existed. The defendant had previously been convicted of robbery. He did not contest the (F)(1) finding on appeal. He did not contest the existence of the prior conviction, nor the fact that a life sentence was imposable for that crime.

(F)(5) (Pecuniary Gain) - UPHELD

(F)(6) (Heinous, Cruel or Depraved) - UPHELD
The trial court's finding of "especially heinous, cruel or depraved manner" was not erroneous. The finding was not discussed further by the Court. 144 Ariz. at 458.

Cruel: Not Addressed

Heinous or Depraved: Not addressed

MITIGATING CIRCUMSTANCES:

In reviewing the denial of the defendant's Rule 32 petition, which claimed ineffective assistance of counsel at sentencing, the court considered whether certain mitigating evidence would have changed the result. The Court found no probability that the evidence would have established the following mitigating circumstances:

(G)(1) Significant Impairment
Difficult childhood
Age
Sentencing Disparity
Follower
Cooperation
Impairment - [intoxication]
Good Character

JUDGMENT: Order denying post-conviction relief was affirmed.

State v. Roscoe (Roscoe I), 145 Ariz. 212, 700 P.2d 1312 (1984)

PROCEDURAL POSTURE: Defendant was convicted in Superior Court (Maricopa) of first-degree murder, kidnapping, and two counts of child molesting. The trial court imposed the death penalty. 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. See Physical Pain.
Physical Pain: Found. The Court found that the seven-year-old victim experienced both mental and physical suffering but does not further elaborate on the facts.

Heinous or Depraved: Upheld.
Senselessness: Found. The Court found generally that the crime reflected a heinous and depraved state of mind. The Court specifically said that the killing was senseless, given the abduction, violent sexual penetration and strangulation of a helpless seven-year-old child.
Helplessness: Found. See "senselessness."

MITIGATING CIRCUMSTANCES:

The Court found the existence of the following mitigating circumstances, but they were not sufficiently substantial to call for leniency:

Age
Family Ties

The Court found that the defendant failed to prove the following mitigating circumstance:

Felony murder instruction -[no evidence of lack of intent]

JUDGMENT: Conviction and death sentence affirmed. Defendant was granted a new trial in state post-conviction proceedings after showing that the state had offered fabricated evidence at trial. Defendant was again convicted and sentenced to death. State v. Roscoe, 910 P.2d 635, 184 Ariz. 484 (1996).

State v. Martinez-Villareal, 145 Ariz. 441, 702 P.2d 670 (1985)

PROCEDURAL POSTURE: Defendant was convicted in Superior Court (Santa Cruz) of two counts of first-degree murder and one count of first-degree burglary. The trial court imposed the death penalty. This is defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
This finding was not contested by the defendant on appeal. There was substantial evidence at trial to show that the defendant was at the ranch to rob the victims and steal a truck before he or another participant shot the two victims on the ranch.

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

Cruel: Not addressed.

Heinous or Depraved: Upheld.
Relishing: Found. The defendant relished the killing by bragging that he murdered to show "machismo." "This horrific form of ego gratification constitutes a manifest disregard for the fundamental principles upon which our society is based." 145 Ariz. at 451.
Senselessness: Found. The murders were senseless, but the Court did not elaborate on the facts beyond mention that the victims were unarmed.
Helplessness: Found. The Court explicitly states that the victims were "helpless," noting that they were unarmed and offered no apparent resistance to the burglary.

MITIGATING CIRCUMSTANCES:

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

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

JUDGMENT: Convictions and sentences affirmed.

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