| State v. Brewer, 170
Ariz. 486, 826 P.2d 783 (1992) PROCEDURAL
POSTURE: The defendant was convicted in Superior Court (Coconino) of
first-degree murder and 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 to Others) -
REVERSED
The defendant murdered his pregnant girlfriend. The trial court found this
aggravating circumstance based on the grave risk of death to the fetus. The Court found
that this aggravator did not exist because the defendant acted with intent to kill the
fetus.
(F)(6) (Heinous, Cruel or Depraved) - UPHELD
Cruel: Upheld.
Mental Anguish: Found. "Cruelty is defined as the infliction of pain
and suffering in a wanton, insensitive, or vindictive manner." 170 Ariz. at 501. The
Court found that the victim was told she was going to be killed and a forty-five minute
struggle ensued, throughout which the victim was conscious. Consciousness was demonstrated
by the victim's resistance to the attack. The Court found that the victim must have
experienced "anguish and terror" during the struggle, knowing that defendant
planned to kill her. 170 Ariz. at 501.
Physical Pain: Found. During the attack, which the victim resisted in every
possible way, defendant beat, strangled, pounded on, and threw the victim. Defendant
bashed her head against a wall, attempted to break the victim's arms by smashing them
against a dresser, tried to gouge out her eyes, causing severe eye damage in the assault.
Defendant bit the victim multiple times, bruised most of her body, and prevented her
attempted escape. Defendant finally choked the victim three times until he believed she
was dead. "The victim's ordeal, moreover, was sufficiently prolonged and painful to
warrant a finding of cruelty." 170 Ariz. at 501-502. The medical examiner testified
that the injuries suffered by the victim would have inflicted enormous pain, particularly
the eye injury.
Knew or Reason to Know that Victim Would Suffer: Found. "We believe
the defendant was fully aware that his attack would inflict great physical and emotional
pain." 170 Ariz. at 501. The Court further held that defendant had time to consider
his actions, the cruelty being inflicted, and the victim's pain, but continued in the
attack unabated.
Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The Court held that defendant's admission of
necrophilia, specifically, engaging in sexual intercourse with the victim's corpse,
constituted gratuitous violence.
Senselessness: Found. The victim was defendant's girlfriend and expectant mother
of defendant's child. The Court found no reason for the killing, except that the victim
had threatened to leave defendant.
Helplessness: Found. The victim was more than five months pregnant and not a
significant threat to defendant. The victim was initially able to resist the attack, but
as the struggle progressed, she became increasingly impaired. The Court held that the
victim was entirely helpless toward the end of the assault, particularly during the
multiple strangulations which rendered her unconscious.
MITIGATING CIRCUMSTANCES:
The Court found that the following mitigating circumstances
existed, but were insufficiently substantial to call for leniency:
Impairment [personality disorder]
Difficult Childhood/Family History
Lack of Criminal History
The Court found the defendant failed to prove by a
preponderance of the evidence the existence of the following as mitigating circumstances:
Duress [personality disorder does not prove duress]
Age [22 years old at time of crime]
Remorse
JUDGMENT: Conviction for
first-degree murder, based on a guilty plea, and sentence of death affirmed.
State v. Rossi (Rossi III),
171 Ariz. 276, 830 P.2d 797 (1992)
PROCEDURAL POSTURE: The defendant
was convicted in Superior Court (Maricopa) of first-degree murder, attempted first-degree
murder, and first-degree burglary. Defendant was sentenced to death for the murder.
Defendant appealed and the Arizona Supreme Court, 146 Ariz. 359, 706 P.2d 371 (1985),
vacated the original death sentence and remanded to the trial court for resentencing. In
that first appeal, defendant's convictions and other sentences, save the death penalty,
were affirmed. Defendant was again sentenced to death at the trial court, and the Supreme
Court, 154 Ariz. 245, 741 P.2d 1223 (1987), affirmed the decision in part and remanded for
resentencing. The trial court sentenced defendant to death for a third time. From that
resentencing, defendant now has his automatic, direct appeal to the Arizona Supreme Court.
AGGRAVATING CIRCUMSTANCES:
(F)(6) (Heinous, Cruel or Depraved) - UPHELD
Cruel: Upheld.
Mental Anguish: Found. The Court held that the victim was in pain, was
conscious for a short duration after being shot the second time, and had time to ponder
the uncertainty of his ultimate fate. This was demonstrated by the victim telling
defendant "you have my money, you shot me, what more do you want." 171 Ariz. at
279.
Physical Pain: Found. See Mental Anguish.
Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The Court found gratuitous violence, though
that finding is not explicitly stated, by holding that "defendant used bullets
designed to inflict greater tissue damage on a human body." 171 Ariz. at 280.
Relishing: Found. The Court expressly finds defendant relished the murder when he
bragged to friends about the killing, gave three bullets to Bill Nelson as a souvenir, and
complained that the bullets should have made a larger hole in the victim. 171 Ariz. at
280.
Senselessness: Found. Defendant could have committed the burglary and escaped
without committing the murder. The defendant was "totally without regard for human
life." 171 Ariz. at 280.
Helplessness: Found. The victim was sixty-six years old, in poor health, and
unable to prevent the burglary.
MITIGATING CIRCUMSTANCES:
There is no discussion of mitigation in this opinion. See
prior Rossi I and Rossi II opinions cited above.
JUDGMENT: Sentence affirmed.
State v. Atwood, 171 Ariz.
576, 832 P.2d 593 (1992)
PROCEDURAL POSTURE: The defendant
was convicted in Superior Court (Pima) of first-degree felony murder and kidnapping. He
was sentenced to death on the murder conviction. This is his automatic, direct appeal to
the Arizona Supreme Court.
AGGRAVATING CIRCUMSTANCES:
(F)(1) (Prior Life or Death Felony) - UPHELD
In 1974, the defendant was convicted in California of lewd and lascivious conduct
for a crime that occurred on June 18, 1974. Arizona's 1974 equivalent, A.R.S. §13-652,
provided for a sentence of five years to life for the offense. The defendant argued that
the statute that succeeded §13-652, which modified the sentence to less than life
imprisonment, should control because it was in effect at the time the defendant was
sentenced for his California crime. The Court clarified that the relevant date for
(F)(1)
purposes is the date the prior offense occurred, not the date of sentencing for that
offense, or the date of sentencing for the capital murder conviction.
MITIGATING CIRCUMSTANCES:
The Court found that the following mitigating circumstances
existed, but were insufficiently substantial to call for leniency:
Family Ties [love and support of parents]
Cooperation [with law enforcement]
Rehabilitation
Model Prisoner [changed character]
The Court found the defendant failed to prove by a
preponderance of the evidence the existence of the following as mitigating circumstances:
Impairment [drug use]
Age [28 years old at time of crime]
Remorse
Good Conduct during trial
Residual Doubt
JUDGMENT: Convictions and sentences
affirmed.
State v. Medrano (Medrano
I), 173 Ariz. 393, 844 P.2d 560 (1992)
PROCEDURAL POSTURE: The defendant
was convicted in the Superior Court (Pima) for first-degree murder, kidnapping, sexual
assault, and burglary. Defendant was sentenced to death for the murder. This is
defendant's automatic, direct appeal to the Arizona Supreme Court. Denial of defendant's
petition for post-conviction relief has been consolidated with this appeal.
AGGRAVATING CIRCUMSTANCES:
(F)(6) (Heinous, Cruel or Depraved) - UPHELD
Cruel: Upheld.
Mental Anguish: Found. The state proved beyond a reasonable doubt that
the victim was conscious during the attack, demonstrated by numerous defensive wounds. 173
Ariz. at 397. Evidence shows that the victim could have survived for fifteen to thirty
minutes after she was wounded. The victim knew her two children and a friend's daughter
were in the house during the attack, as well as being aware she was eight weeks pregnant,
which contributed to her significant mental anguish.
Physical Pain: Found. The state proved the victim suffered pain during
consciousness. 173 Ariz. at 397. Evidence demonstrates that twenty stabbing and slashing
injuries, four of which were serious enough to cause death without medical attention,
caused physical pain.
Heinous or Depraved: Court stated that it
didn't need to find heinousness or depravity because it found cruelty and the terms are in
the disjunctive.
Gratuitous Violence: Found. The numerous stab wounds demonstrate gratuitous
violence. 173 Ariz. at 398.
Helplessness: Found. The victim was helpless against the attack.
(F)(7) (Commission of Murder While in Custody) -
REVERSED
The trial court erred by finding, under (F)(7), that the defendant committed the
murder while in the custody of the United States Bureau of Prisons. At the time of the
murder, the defendant was serving a federal sentence at a halfway house, and had reached
the fourth of five levels of increasing liberties and privileges. To fall within the terms
of (F)(7), the defendant must have "committed the offense while in the custody of the
state department of corrections, a law enforcement agency or county or city jail."
According to the Arizona Supreme Court, "[t]he legislative intent of this section is
to protect the guards and other inmates at such institutions where a defendant is confined
and to discourage violence by incarcerated persons." State v. Gillies (Gillies I),
135 Ariz. 500, 512, 662 P.2d 1007, 1019 (1983).
MITIGATING CIRCUMSTANCES:
There is no discussion of mitigating circumstances in this
case because the Court set aside one of the aggravating circumstances and remanded to the
trial court for resentencing.
JUDGMENT: Convictions affirmed;
remanded for sentencing after (F)(7) finding was reversed.
State v. Salazar, 173
Ariz. 399, 844 P.2d 566 (1992)
PROCEDURAL POSTURE: The defendant
was convicted in the Superior Court (Pima) of first-degree murder, kidnapping, and
first-degree burglary. Defendant was sentenced to death for the murder. Defendant's
petition for post-conviction relief was denied. The petition for review is consolidated
with 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's defensive wounds were found to
signify her consciousness through "some considerable portion of her agony." 173
Ariz. at 412.
Physical Pain: Found. "[T]he victim had defensive wounds on her arms and
hands, was beaten so severely that she suffered a cranial hemorrhage and broken nose, and
was strangled with a phone cord so fiercely that it fractured her thyroid cartilage
(Adam's apple)." 173 Ariz. at 412.
Heinous or Depraved: Upheld. The Court
upheld the finding of helplessness, but stated that cruelty alone was "sufficient to
constitute an aggravating circumstance under A.R.S. § 13-751 (F)(6)." 173 Ariz. at
412. See "Comment," below.
Helplessness: Found. "The victim was a fragile, partially blind
eighty-three-year-old woman who weighed less than ninety pounds. She was totally helpless
and at the complete mercy of her younger and stronger assailants. She was brutally beaten
and then strangled with a force that not only killed her but crushed her Adam's apple . .
. ."
MITIGATING CIRCUMSTANCES:
The Court found that there were no mitigating circumstances
in this case sufficient to call for leniency. The Court found the defendant failed to
prove by a preponderance of the evidence the existence of the following as mitigating
circumstances:
Impairment [intoxication]
(G)(3) Minor Participation
(G)(4) Death not Reasonably Foreseeable
Age [22 years old at time of crime]
JUDGMENT: Conviction and sentences
affirmed.
Comment: The Arizona Supreme Court
attached an appendix regarding the F(6) factor where the trial court also found gratuitous
violence. The Court may have relied on the trial court's findings as listed in the
appendix to uphold the finding that the killing was heinous and depraved, since, usually,
a finding of helplessness alone is insufficient to support such a finding.
State v. George Lopez,
174 Ariz. 131, 847 P.2d 1078 (1992)
PROCEDURAL POSTURE: The defendant
was convicted in Superior Court (Pima) of felony murder and child abuse. 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, a one-year-old boy, was conscious and
felt pain for at least forty-five minutes before lapsing into a coma. "Anthony must
also have suffered some mental anguish while he remained conscious, knowing that one of
the two people he depended on and trusted to care for and love him had beaten him
repeatedly about the head and body and did nothing to stop the pain and comfort him."
174 Ariz. at 144.
Physical Pain: Found. A doctor "testified that the skull fractures,
especially the one where a piece of the child's skull was driven into his brain, would
have caused Anthony `an excessive amount of pain.' He stated that the abdominal injuries,
the torn pancreas and bowel would have been very painful, `like somebody performing
surgery without anesthesia.'" 174 Ariz. at 143.
Heinous or Depraved: Upheld.
Senselessness: Found. "Although the factors of senselessness and
helplessness of the victim need not always, by themselves, justify a finding that the
murder was heinous or depraved, they do inform the trial court of the defendant's mental
state." 174 Ariz. at 144. The Court found the murder was senseless. After bathing his
child, defendant was putting lotion on Anthony when the infant urinated. In response, the
defendant hit the child. "While such a reaction might be excused as a momentary flash
of anger, the continued beating Anthony received, as evidenced by the extent of his
injuries, bespeaks a `shockingly evil' mind and constitutes heinous conduct. We can
conceive of no act more senseless than beating a one-year-old child to death."
Helplessness: Found. "Anthony was clearly helpless and unable to defend
himself from the blows inflicted by Lopez and unable to seek aid for his injuries. The one
person who could have sought medical help for Anthony, Lopez, took pains to make it appear
that an accident had occurred. . . . Lopez' decision to protect himself at the expense of
the life of his one-year-old son is the essence of depravity." 174 Ariz. at 144.
(F)(9) (Victim under Fifteen Years of Age) - UPHELD
The (F)(9) finding was upheld without discussion. The defendant beat his
one-year-old son severely and then kept the mother from taking the child to the hospital
for treatment.
MITIGATING CIRCUMSTANCES:
The Court found that there were no mitigating circumstances
in this case sufficient to call for leniency. The Court found the defendant failed to
prove by a preponderance of the evidence the existence of the following mitigating
circumstance:
Good Character
JUDGMENT: Convictions and sentences
affirmed.
State v. Hill, 174 Ariz.
313, 848 P.2d 1375 (1993)
PROCEDURAL POSTURE: The defendant
was convicted in Superior Court (Mohave) of first-degree murder and he was sentenced to
death. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.
AGGRAVATING CIRCUMSTANCES:
(F)(2) (Prior Violent Felony) - UPHELD
The defendant was convicted in Colorado of assault with a deadly weapon. The
Court looked to the statutory definition of that offense in Colorado to determine if the
crime involved violence or the threat of violence. The state introduced evidence of the
information, judgment and sentence for that crime. The statute required intent to commit
bodily injury on another person. This was sufficient to prove the existence of the
aggravating circumstance.
(F)(5) (Pecuniary Gain) - UPHELD
The evidence showed that the victim's wallet discovered on the burned body
contained no money and that the defendant was arrested with over $200 and the victim's
grocery receipt in his possession. Also, close to the time of the murder, the defendant
and victim had a heated argument over money that the victim allegedly owed the defendant.
The defendant had no steady source of income and an expensive drinking habit. The Court
found that all of these facts supported the inference that the defendant killed the victim
for money that he needed and that he believed the victim owed him.
(F)(6) (Heinous, Cruel or Depraved) - UPHELD
Cruel: Upheld.
Physical Pain: Found. The evidence showed that defendant set the victim
on fire. The victim's trachea contained smoke, which demonstrates that the victim was
alive during the fire. "Evidence also showed that the victim thrashed about, possibly
attempting to get up to escape the fire. We agree with the trial court that this is
sufficient to establish that the victim was conscious and quite obviously suffered
tremendous pain from defendant setting him on fire." 174 Ariz. at 328.
Heinous or Depraved: Not addressed.
MITIGATING CIRCUMSTANCES:
Without any discussion, the Court agreed with the trial
court's conclusion that the (G)(1) mitigating circumstance existed, based on impairment
from years of alcohol abuse, but was insufficient to call for leniency. The Court found no
additional mitigating factors that would warrant leniency.
JUDGMENT: Conviction and sentence
affirmed.
State v. Mickel
Herrera, 174 Ariz. 387, 850 P.2d 100 (1993)
PROCEDURAL POSTURE: Defendant was
convicted in Superior Court (Maricopa) of first-degree felony murder, aggravated robbery,
and kidnapping. Defendant was sentenced to death. 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. "[W]e believe that the record supports the
trial court's conclusion that the deputy suffered both physical abuse and mental anguish
before his death, and we agree with the trial court that this murder was committed in an
especially cruel manner. See our discussion of this issue in our opinion, in State v.
Herrera, Jr. I, 174 Ariz. 372, 378, 850 P.2d 85, 91 (1993)." 174 Ariz. at 397.
Physical Pain: Found. See mental anguish.
Heinous or Depraved: Not addressed.
MITIGATING CIRCUMSTANCES:
The Court found that the defendant failed to prove by a
preponderance of the evidence the existence of the (G)(1) significant impairment
mitigating circumstance. The Court found that the following mitigating circumstances
existed, and that cumulatively the mitigating circumstances were sufficiently substantial
to call for leniency:
(G)(2) - Duress
Impairment [intoxication ]
Difficult Childhood/Family History
Age [18 years old at time of crime]
Intelligence [borderline I.Q.]
JUDGMENT: Convictions affirmed;
death sentence reduced to life imprisonment without possibility of parole for twenty-five
years. "The mitigating circumstances of defendant's duress, young age, and
dysfunctional family background, coupled with additional evidence of his borderline IQ and
drinking at the time of the incident, require leniency." 174 Ariz. at 400.
Comment: The reader may also refer to the
companion cases involving defendant's codefendants (father and brother). State v. Herrera,
176 Ariz. 9, 859 P.2d 119 (1993), cert. denied, 510 U.S. 966, 114 S. Ct. 446, 126 L.Ed. 2d
379 (1993); State v. Herrera, 176 Ariz. 21, 859 P.2d 131 (1993), cert. denied, 510 U.S.
951, 114 S. Ct. 398, 126 L.Ed. 2d 346 (1993).
State v. Kiles, 175 Ariz.
358, 857 P.2d 1212 (1993)
PROCEDURAL POSTURE: The defendant
was convicted in Superior Court (Yuma) of three counts of first-degree murder, two counts
of child abuse, and was sentenced to death. This is defendant's automatic, direct appeal
to the Arizona Supreme Court.
AGGRAVATING CIRCUMSTANCES:
(F)(2) (Prior Violent Felony) - UPHELD
(F)(2) finding upheld for each of three murders. The defendant had previously
been convicted of attempted aggravated assault, and aggravated assault. The defendant
argued that these prior convictions are insufficient to support an (F)(2) finding based on
State v. Fierro, 166 Ariz. 539, 804 P.2d 72 (1990). The Arizona Supreme Court disagreed
and noted that in Fierro there was no evidence of the specific subsection under which the
defendant was convicted. Here, on the other hand, the record shows that the defendant was
convicted under subsection (A)(8) of the aggravated assault statute for committing an
assault while the victim was bound, restrained, or the victim's capacity to resist was
substantially impaired. The Court held that a conviction under this subsection necessarily
involved the use or threat of violence. Similarly, the attempted aggravated assault
conviction is also sufficient to support the (F)(2) aggravating factor because attempt is
a specific intent crime involving intentional conduct. It would not be possible to commit
an attempted aggravated assault in a reckless manner.
(F)(6) (Heinous, Cruel or Depraved) - UPHELD
Cruel: Upheld.
Mental Anguish: Found as to the five-year-old child. "[W]e agree with the
trial court that her murder was especially cruel because of the mental anguish she
suffered before she was bludgeoned to death. The record indicates that the child saw
defendant assault her mother, that she screamed and hollered, and that defendant murdered
her because she saw him murder her mother." Terror was inflicted on the five-year-old
child by witnessing her mother's death at the defendant's hands, which "clearly must
have conveyed to her the prospect of her own impending death." 175 Ariz. at 372.
Physical Pain: Found as to the girlfriend.
This murder was found to be especially cruel because "she suffered a `prolonged,
vicious beating . . . during a portion of which she was clearly conscious.'" 175
Ariz. at 371. The girlfriend regained consciousness before the final attack and had
defensive wounds of a broken arm and elbow punctures. "Moreover, the location of the
victim's blood on the front door threshold indicates that she may have attempted to
escape. We believe that this cumulative evidence provides sufficient evidence that the
girlfriend suffered the pain of multiple blows before she lost consciousness and
died." 175 Ariz. at 371-72.
Knew or Reason to Know that Victim Would Suffer: Found. "[T]o find the
aggravating circumstance of cruelty, a trial court need not find that a defendant intended
to kill; it must determine that a defendant either intended to inflict mental anguish or
physical pain upon a victim or `reasonably fore[saw] ... a substantial likelihood' that
his actions would have that effect." 175 Ariz. at 367 (quoting State v. Adamson, 136
Ariz. 250, 266, 665 P.2d 972, 988 (1983) (citing State v. Gretzler, 135 Ariz. 42, 51, 659
P.2d 1, 10 (1983))).
Heinous or Depraved: Upheld.
Gratuitous Violence: Found as to two victims.
(i) Girlfriend: She was initially knocked unconscious with one blow. After she regained
consciousness, defendant "continued bludgeoning her with the jack stem, fracturing
her skull, shattering her teeth, and breaking her arm." 175 Ariz. at 373.
(ii) Nine-month-old baby: Defendant struck the baby with a jack stem approximately
fourteen times. The baby's skull was completely shattered and her blood was spread on the
four walls and ceiling of her bedroom.
Senselessness: Found as to two victims.
(i) Five-year-old-child and (ii) Nine-month-old baby: "Neither child was old enough
to defend herself against defendant's attack or even to support her mother in the argument
between her mother and defendant. The killing of two helpless children is senseless and
demonstrates a total disregard for human life and is also evidence of a `shockingly evil
state of mind.'" 175 Ariz. at 373 (citation omitted).
Helplessness: Found as to two victims. See senselessness.
(F)(8) (Multiple Homicides) - UPHELD
The (F)(8) finding was upheld, but not addressed. The
defendant did not challenge the trial court's finding of the (F)(8) aggravating
circumstance where the defendant was convicted of killing his girlfriend, her
five-year-old daughter, and her nine-month-old daughter by beating them with a jack stem.
(F)(9) (Victim under Fifteen Years of Age) - UPHELD
The (F)(9) finding was upheld without discussion. The
defendant was an adult and the two victims were five years old and nine months old,
respectively, at the time they were killed.
MITIGATING CIRCUMSTANCES:
The Court found that the following mitigating circumstances
existed, but were insufficiently substantial to call for leniency:
Impairment [drug use and intoxication]
The Court found the defendant failed to prove by a
preponderance of the evidence the existence of the following as a mitigating circumstance:
Domestic nature of the murder
JUDGMENT: Convictions and sentences
affirmed.
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