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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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