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State v. Johnson, 147 Ariz. 395, 710 P.2d 1050 (1985)

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

AGGRAVATING CIRCUMSTANCES:

(F)(3) (Grave Risk of Death) - REVERSED
This aggravating circumstance did not exist because the defendant intended to kill both victims. The other person endangered by the shooting was an intended victim. Although each victim was close enough to the other that shooting one created a grave risk of death to the other, (F)(3) does not apply when the defendant intends to kill both victims and he does not care which one he kills first. The fact that one victim survives does not satisfy an (F)(3) finding.

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

Cruel: Not addressed.

Heinous or Depraved: Reversed.
Senselessness: Found. While the Court admits that the killing was senseless, this alone does not constitute a finding of heinous or depraved conduct. The Court said: "The record does not support the finding of heinous or depraved conduct in the case before us. Defendant killed senselessly, without apparent purpose or motive, possibly while inebriated or to some extent mentally deranged. As reprehensible as this may be, it is not outside the `norm' of first-degree murders. It certainly is not the type of conduct previously recognized as `heinous or depraved' in our cases." 147 Ariz. at 401.

MITIGATING CIRCUMSTANCES:

No discussion of mitigating circumstances.

JUDGMENT: Both aggravators were overturned, and therefore the death sentence was vacated. The Court remanded for resentencing with instructions that defendant be sentenced to imprisonment for life without possibility of parole for twenty-five years.

State v. Correll, 148 Ariz. 468, 715 P.2d 721 (1986)

PROCEDURAL POSTURE: Defendant was convicted in Superior Court (Maricopa) of three counts of first-degree murder and was sentenced to death 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 was previously convicted in California on three counts of robbery. He received an enhanced sentence on one of those counts because he used a firearm in the commission of a felony. The Arizona Supreme Court reviewed the statute under which the defendant was convicted and rejected the argument that a person could commit robbery with the threat of violence against the property, and not the person, of another. The Court held that armed robbery against the property of a victim does not occur without the threat of violence against the person as well.

(F)(5) (Pecuniary Gain) - UPHELD
The Court rejected Correll's claim that the expectation of pecuniary gain was not the cause of the murders. Correll and an accomplice, Nabors, went to the mobile home of Nabors' co-worker. Once inside, Nabors pulled out a gun and demanded money. Correll and Nabors led one victim through the house searching for money and valuables. After completing the search, Correll and Nabors drove three victims to the desert, made them lie face down on the ground, and shot them. Noting that the facts here are similar to State v. Hensley, 142 Ariz. 598, 691 P.2d 689 (1984), the Court found the murders were part of the overall scheme of robbery, rather than unexpected or accidental. Correll and Nabors carefully executed the armed robbery and the murders were part of the scheme. "The only motivation for the killings was to leave no witnesses to the robbery." 148 Ariz. at 479.

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

Cruel: Upheld.
Mental Anguish: Found. All three victims experienced great distress. The victims were bound with duct tape and driven into the desert, and forced on the ground. After the first victim was shot, the other two victims knew they would come next. The Court held the victim, Cady, must have suffered even more distress after the gun misfired multiple times before she was finally killed.

Heinous or Depraved: Upheld.
Senselessness: Found. The murders were unnecessary to accomplish the robbery.
Helplessness: Found. The victims were helpless as they were bound and gagged. The victims could not resist and were killed one by one.
Witness Elimination: Found. The only ascertainable motive for the murders was to eliminate any witnesses from the robbery. Defendant demonstrated a "total disregard for human life." 148 Ariz. at 481.

Note: In State v. Barreras, 181 Ariz. 516, 892 P.2d 852 (1995), the Court questioned the soundness in Correll of using the same aspect, not leaving a witness to the crime behind, to support both a finding of "senselessness" and of "witness elimination." State v. Barreras, 181 Ariz. at 523 n.6, 892 P.2d at 859 n..6.

(F)(8) (Multiple Homicides) - REVERSED
The defendant was convicted of the strangling death of one victim and the shooting deaths of two other victims. All the victims were killed the same night after the defendant and codefendant searched the trailer for valuables. The defendant argued that this aggravating circumstance was inapplicable in this case because the crime occurred before the enactment of the amendment adding (F)(8) to the list of aggravating circumstances. The Court agreed and found that application of (F)(8) to this defendant would constitute an ex post facto law and is constitutionally prohibited.

MITIGATING CIRCUMSTANCES:

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

Age - [24 years old at time of murder]
Cooperation in preparation of presentence report

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 [psychological problems]
(G)(3) Minor Participation [as to two of the victims]

But regarding the third victim, the Court found insufficient evidence that the defendant intended to kill or actually killed, in order to satisfy the Enmund standard. The court reduced that sentence to life.

JUDGMENT: Convictions and judgments are affirmed. All sentences are affirmed, except the sentence on one of the murder counts, as the Court could not find support for a finding that defendant intended to kill that victim beyond a reasonable doubt.

State v. Castaneda, 150 Ariz. 382, 724 P.2d 1 (1986)

PROCEDURAL POSTURE: Defendant was convicted in Superior Court (Pima) of one count of first-degree murder, six counts of sexual conduct with a minor under 15, and two counts of kidnapping. Defendant was sentenced to death. This is defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
The defendant had previously been convicted of aggravated assault, assault with intent to commit rape, assault with a deadly weapon, armed burglary, and lewd and lascivious acts. Some of these priors were discussed in an earlier appeal of this case in State v. Castaneda, 111 Ariz. 264, 528 P.2d 608 (1974). Here, the defendant claimed that there was no factual basis for his competency to plead guilty to those earlier offenses. The record indicates, however, that two mental health experts testified to the fact that the defendant was competent to plead guilty. The defense then argued that the court never notified the defendant that by pleading guilty, these convictions could be used to support the imposition of the death penalty. Again, the record indicates that the judge did discuss the fact that the prior convictions could be considered in sentencing on the capital case.

(F)(2) (Prior Violent Felony) - UPHELD
See discussion under (F)(1). The Court found testimony in the record sufficient to show that the defendant was competent to plead guilty to other offenses, and that the trial judge told the defendant that these prior convictions could be considered in sentencing on the capital case.

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

Cruel: Upheld.
Mental Anguish: Found. The victim was sexually abused at defendant's shop, taken to a desert area and forced to walk naked approximately 100 yards across the desert in bare feet. Witness testimony indicated that the victim realized that defendant intended to kill him. The victim begged for his life.
Physical Pain: Found. Defendant stabbed the victim in the chest four times. It may have taken the victim as long as five minutes to die. Evidence also indicated that the victim died in great pain from lying on a red anthill.

Heinous or Depraved: Not addressed.

MITIGATING CIRCUMSTANCES:

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

Difficult childhood/Family history
Model Prisoner
Remorse

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 [psychological problems]
(G)(2) Duress [personality disorder and impulse control do not amount to duress]

JUDGMENT: Convictions and sentences affirmed.

State v. McMurtrey (McMurtrey III), 151 Ariz. 105, 726 P.2d 202 (1986)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of two counts of first-degree murder and attempted first-degree murder and was sentenced to death on each of the murder counts. The Arizona Supreme Court remanded for resentencing. State v. McMurtrey (McMurtrey I), 136 Ariz. 93, 664 P.2d 637 (1983). The defendant again received the death sentence, and that sentence was also set aside and remanded for resentencing. State v. McMurtrey (McMurtrey II), 143 Ariz. 71, 691 P.2d 1099 (1984). The defendant was sentenced to death for the third time and this is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(3) (Grave Risk of Death to Others) - UPHELD
When the defendant shot the victims in a crowded bar, there were five to nine others "in the immediate area of the victims when they were shot."

MITIGATING CIRCUMSTANCES:

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 [mental state and intoxication]

JUDGMENT: Death sentence affirmed.

State v. Wallace (Wallace I), 151 Ariz. 362, 728 P.2d 232 (1986)

PROCEDURAL POSTURE: Defendant pled guilty and was convicted in Superior Court (Pima) of three counts of first-degree murder and two counts of armed robbery and was sentenced to death for each murder. This is defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - REVERSED
The trial court found this aggravating circumstance only as to the murder of Susan Insalaco, the mother of the two other murder victims. After killing all three victims, the defendant stole money and Susan's truck to go get drunk. The Court found that while the defendant took these items, it was not clear that the theft of those items was the reason for the murder. The motive for the murders appears to have been based on the difficulties of the defendant's relationship with Susan. The taking of her property was therefore, only incidental to the murder.

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

Cruel: Reversed.
Mental Anguish: Not found. No evidence of mental anguish can be established where each of the three victims was attacked quickly and by surprise, and there is no evidence that they were conscious after the initial blow.
Physical Pain: Not found. Physical pain is not established beyond a reasonable doubt because the record is inconclusive as to whether any of the victims were even conscious following the initial blow to the head.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The Court found gratuitous violence because defendant continued to strike the victims over the head after they had collapsed to the floor. One victim was struck so severely that a substantial amount of brain matter was spattered on the floor and wall. In killing another victim, defendant shoved a jagged portion of the broken baseball bat through her throat after beating her. The Court noted that a less violent alternative was clearly available, since defendant admitted to having a loaded gun with him the afternoon of the killings. Defendant chose not to use it because the noise would alert neighbors of the crime.
Senselessness: Found. The Court found senselessness because defendant waited for several hours, then brutally murdered a mother and her two children. Defendant had no quarrel with the two children. He lived with them as a family for more than two years.

MITIGATING CIRCUMSTANCES:

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

Remorse

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 [by intoxication or drugs]
(G)(2) Duress [including claim that crimes were result of passion]

JUDGMENT: Conviction affirmed. Finding of F(6) aggravation upheld for all three counts. Death sentence on two counts (not dealing with F(5) aggravation) affirmed. Remand for resentencing on count III, the murder of the mother, with F(6) aggravation upheld, but F(5) aggravation reversed.

State v. Karl LaGrand, 152 Ariz. 483, 733 P.2d 1066 (1987)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of first-degree murder, attempted murder, attempted armed robbery in the first-degree, attempted armed robbery, and two counts of kidnapping. Along with his half-brother, Walter LaGrand, the defendant was sentenced to death on the murder conviction and to concurrent terms of imprisonment for the other convictions. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
The pecuniary gain finding under (F)(5) was not discussed in this opinion. The Court refers the reader to the decision in State v. Walter LaGrand, 153 Ariz. 21, 734 P.2d 563 (1987).

MITIGATING CIRCUMSTANCES:

There is no discussion of mitigating circumstances in this opinion. The Court stated that the analysis of the specific findings of aggravating and mitigating circumstances in State v. Walter LaGrand, 153 Ariz. 21, 734 P.2d 563 (1987), applies here.

JUDGMENT: Convictions and sentences affirmed. Vice Chief Justice Feldman concurred in the decision but disagreed with the portion of the opinion dealing with pecuniary gain. He joined Chief Justice Gordon in his footnote indicating that he would have stricken the pecuniary gain finding and remanded to the trial court for resentencing.

State v. Walter LaGrand, 153 Ariz. 21, 734 P.2d 563 (1987)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of first-degree murder, attempted murder, attempted armed robbery [of a bank], and two counts of kidnapping. He was sentenced to death for the murder. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - UPHELD
The defendant was previously convicted of armed robbery and kidnapping. The Court found that those convictions had been proven beyond a reasonable doubt, and that they involved the use or threat of violence sufficient to support this aggravating circumstance.

(F)(5) (Pecuniary Gain) - UPHELD
The Court noted that an unexpected or accidental death that occurs during the course of or flight from a robbery does not in itself provide a sufficient basis for finding the (F)(5) aggravating circumstance. But, the reason for the defendant's presence at the crime scene should not be ignored. "When the defendant comes to rob, the defendant expects pecuniary gain and this desire infects all other conduct of the defendant." Here, the attempted bank robbery "permeated the entire conduct of the defendant." Although he may have acted irrationally to the inability of the victim to open the safe, the murder was not accidental or unexpected. Justices Gordon and Feldman dissented from the portion of the opinion upholding the pecuniary gain finding. They disagreed that a pecuniary motive necessarily caused the murder merely because the LaGrands intended to rob the bank. They further disagreed that the murder was in furtherance of the goal of pecuniary gain because "it provided the LaGrands with neither access to nor escape with money or other valuables." And finally, they concluded that it was equally , if not more likely that the panic caused by the victim's kick to Karl LaGrand's leg motivated the LaGrands to kill the victim.

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

Cruel: Upheld.
Mental Anguish: Found. The Court found mental anguish as the victim, the bank manager, was bound and gagged, called a liar (about his inability to open the bank's safe), and threatened with death more than once. The victim had a letter opener placed against his throat.
Physical Pain: Found. The victim received twenty-four stab wounds, only five of which would have immediately killed the victim. Therefore, the Court found it reasonable to assume that the victim suffered "some physical torment" prior to dying.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The Court found gratuitous violence and mutilation in stabbing a bound and gagged man twenty-four times. The defendant had a "callous disregard for human worth."
Mutilation: See "gratuitous violence."
Helplessness: Found. The victim was bound and gagged.

MITIGATING CIRCUMSTANCES:

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

Age [19 years old at time of the murder]
Difficult Childhood/Family History
Lack of Intent to Kill [may have killed victim out of fear and surprise - not calculated]
Remorse

JUDGMENT: Convictions and sentences are affirmed.

State v. Rossi (Rossi II), 154 Ariz. 245, 741 P.2d 245 (1987)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree burglary, attempted first-degree murder and first-degree murder, and was sentenced to death for the murder. On appeal, the Arizona Supreme Court affirmed the convictions, but vacated the death sentence and remanded for resentencing. Rossi I, 146 Ariz. 359, 706 P.2d 371. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

There is no discussion of aggravating circumstances in this opinion.

MITIGATING CIRCUMSTANCES:

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

(G)(1) Significant Impairment [cocaine addiction]
Potential for Rehabilitation

The Court remanded to the trial court for resentencing, directing the trial court to consider these mitigating circumstances when imposing a new sentence.

JUDGMENT: Affirmed in part, but remanded for resentencing.

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