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State v. Rudi Apelt, 176 Ariz. 369, 861 P.2d 654 (1993)

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

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
The defendant's brother, Michael, proposed to the victim a few days after meeting her. After marrying her, Michael pressured her to obtain life insurance because he wanted to kill her and collect the proceeds. Michael discussed the murder with the defendant, Rudi, several hours before it occurred. Rudi agreed to participate and followed Michael to the desert to participate in the murder. Rudi claimed that he did not agree to participate for pecuniary gain, but to go along with Michael. The Court found that even if Rudi participated only after Michael persuaded him, at least one of Rudi's motivations was pecuniary. Testimony supported the conclusion that the "bait" for Rudi's participation in the murder was Michael's promise that Rudi and he would have a lot of money to buy anything they wanted, and that they wouldn't have to work any more.

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

Cruel: Upheld.
Mental Anguish: Found. "We also find, for the reasons stated in the companion case, State v. Michael Apelt, 176 Ariz. 349, that the murder was committed in an especially cruel manner." 176 Ariz. at 376.
Physical Pain: Found. See Mental Anguish.
Knew or Reason to Know that Victim Would Suffer: Found. "Defendant argues, however, that the cruelty of the killing cannot be attributed to him because the Court cannot find, beyond a reasonable doubt, that he participated in the actual killing. In contrast to heinousness and depravity, cruelty focuses on the suffering of the victim rather than on the actions or mental state of the defendant. The cruelty of the killing is attributable to the defendant if he knew or should have known that the victim would suffer. The evidence in this case established that Rudi knew Michael was to transport Cindy to the desert where they would kill her, and that Michael would ensure that Cindy could not see where she was going. Therefore, Rudi knew, or should have known, that Cindy would suffer great physical or mental anguish in the course of her kidnapping and murder."

Heinous or Depraved: Not addressed.

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:

(G)(1) Significant Impairment
(G)(3) Minor Participation

JUDGMENT: Conviction and sentence affirmed.

Comment: The reader should also see the companion case involving this defendant's brother, State v. Michael Apelt, 176 Ariz. 349, 861 P.2d 634 (1993), cert. denied, 513 U.S. 834, 115 S. Ct. 113, 130 L. Ed. 2d 59 (1994).

State v. West, 176 Ariz. 432, 862 P.2d 192 (1993)

PROCEDURAL POSTURE: Defendant was convicted in Superior Court (Pima) of first-degree felony murder, second-degree burglary, and theft. Defendant was sentenced to death for the murder. 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 manslaughter in Illinois. The defendant argued that there was insufficient evidence admitted to prove this prior conviction. The Court agreed that insufficient evidence had been admitted at the trial court, but found that the defendant had agreed to a stipulation regarding this prior conviction. The defendant complained that he did not personally participate in that stipulation. However, the Court noted that this was not an exceptional circumstance requiring the defendant's consent. If any error occurred in the trial judge basing the (F)(2) finding on the stipulation, it was invited by the defendant.

(F)(5) (Pecuniary Gain) - UPHELD
The defendant was motivated by the desire to steal the victim's property. When the defendant was arrested in Illinois, his car contained some of the victim's property. Before he left Arizona, he moved electronic equipment from a hiding place in the desert to a car that he ultimately burned. The defendant stated that the car belonged to the victim whom he had robbed. The defendant argued that the pecuniary gain finding violated the Eighth Amendment because it repeats an element of the crime of burglary and does not sufficiently narrow the class of death-eligible defendants. The Court cited State v. Carriger, 143 Ariz. 142, 692 P.2d 991 (1984), in the robbery context for the distinction between proving the taking in a robbery and proving the motivation for a murder. In a burglary, the defendant need not intend to kill or even take property to be guilty. Similarly, a felony murder in the course of a burglary could be based on the defendant's intent to commit any felony, not just burglary, so it does not necessarily follow that pecuniary gain will be found in this situation. Federal cases have held that Arizona's sentencing scheme does narrow the class of death-eligible defendants sufficiently to comply with the Eighth Amendment. Defendant argued that within the pecuniary gain category, there must be further narrowing between death-eligible and non-death-eligible murderers. This is not required. What is required is that the class of murderers in general be narrowed.

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

Cruel: Not Addressed. "Because the words in the statute `especially cruel, heinous, or depraved,' are stated in the disjunctive, a finding of any one of the three factors will suffice for finding that this aggravating factor exists. We, therefore, do not separately analyze defendant's attack on the trial court's finding that the murder was also especially cruel." 176 Ariz. at 448 (citation omitted).

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The victim was tied up and had been hit in the face so many times that many bones were broken and the victim's hard palate detached. The Court found that this level of violence far surpassed anything necessary to commit burglary.
Relishing: Found. Defendant bragged to people that he "beat the fuck out of some old man." 176 Ariz. at 448. Also, defendant had proudly displayed cuts and bruises on his hands that he said came from the crime. 176 Ariz. at 448.
Senselessness: Found. The Court simply stated that the murder was unnecessary to complete the underlying crime. The Court further stated that defendant did nothing to render assistance, even after urged to do so.
Helplessness: Found. The Court simply stated that the victim was helpless. No further elaboration is given. However, the finding of this factor may be due to the advanced age of the victim and the severe beating received, which may demonstrate a lack of ability to ward off the attack.

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstances existed, but were insufficiently substantial to call for leniency:

Substance Abuse history [not given "much weight"]

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

(G)(1) Significant Impairment
Age [28 years old at time of crime]
Remorse
Good Character
Felony Murder/Lack of Intent
Limited Education
Difficult Childhood/Family Background
Cooperation with authorities
Family Ties
Failure to complete drug rehabilitation

JUDGMENT: Convictions and sentence affirmed.

State v. Henry (Henry I), 176 Ariz. 569, 863 P.2d 861 (1993)

PROCEDURAL POSTURE: The defendant was convicted in superior Court (Mohave) of first-degree murder, kidnapping, theft and robbery. He was sentenced to death for the murder and terms of imprisonment for the other convictions. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - REVERSED in part
Prior conviction in California of involuntary manslaughter reversed. The Court held that the statutory definition of the crime controls, and, under California law, involuntary manslaughter can be committed without the exertion of physical force so as to injure or abuse, therefore, the factor does not apply. (F)(2) requires more than simply a volitional act that results in death. The Court found that the prior armed robbery conviction could not be committed "recklessly" and by statutory definition must be accomplished against a person's will by "means of force or fear" and therefore satisfies the (F)(2) factor. However, this conviction could not be used as both an (F)(1) factor and an (F)(2) factor. Remanded for clarification that the trial judge weighed this aggravating circumstance only once.

(F)(5) (Pecuniary Gain) - UPHELD
Henry's claim that he was not responsible for a codefendant's expectation of pecuniary gain missed the point that the record supported a finding of Henry's own expectation of pecuniary gain. Henry had an outstanding California warrant, and when his car broke down on the way out of California, he had a motive to take the victim's truck and eliminate him. Henry was convicted of both robbery and theft, and the Court found that those convictions were based on sufficient evidence.

MITIGATING CIRCUMSTANCES:

The Court found that there were no mitigating circumstances in this case sufficient to call for leniency. The Court noted that the defendant proffered the following mitigating circumstances and the trial court properly concluded they were entitled to little or no weight in this case.

Difficult Childhood/Family History
Good Character [had saved lives in the past]

JUDGMENT: Convictions and non-capital sentences affirmed. Remanded for resentencing on the first-degree murder conviction.

State v. Stuard, 176 Ariz. 589, 863 P.2d 881 (1993)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of three counts of first-degree murder, one count of attempted first-degree murder, and counts of first- and second-degree burglary, attempted sexual assault, and armed robbery. Defendant was sentenced to death for each of the murders. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
This finding was not contested on appeal. The defendant was convicted of three counts of first-degree murder and a previous robbery.

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

Cruel: Upheld.
Physical Pain: Found. The Court does not address the F(6) aggravating factor at length because it had decided to reduce the three death sentences to life due to error in the mitigation phase of sentencing. "In light of our holding that the trial judge improperly interpreted or misapprehended significant mitigating evidence sufficiently substantial to call for leniency in the weighing process, it is unnecessary to prolong this review by repeating the evidentiary facts set forth ante in `Facts and Procedural History.' Suffice it to say that the victims must have suffered terrible pain during the beatings and stabbings. We therefore conclude that the evidence established beyond a reasonable doubt that the 13-751(F)(6) aggravating circumstance was present." 176 Ariz. at 605 (citation omitted).

Heinous or Depraved: Not addressed.

MITIGATING CIRCUMSTANCES:

The trial court found that the defendant had proven the existence of the (G)(1) Significant Impairment mitigating circumstance, but concluded that this mitigating circumstance was not sufficiently substantial to call for leniency. The Court disagreed, finding that this mitigating circumstance was sufficiently substantial to call for leniency in this case. All three experts agreed that the defendant was mentally impaired at the time of the murders and that this impairment contributed to the homicides. The Court weighed this evidence and concluded that it would be improper to impose the death penalty when the murders were so significantly based on mental illness. In a dissenting opinion, Justice Martone evaluated the mental health evidence differently and concluded that the trial court correctly found the existence of (G)(1) significant impairment, but that it did not outweigh the aggravating circumstance.

JUDGMENT: Convictions affirmed; death sentences reduced to life without the possibility of parole for twenty-five years, to be served consecutively.

State v. Styers, 177 Ariz. 104, 865 P.2d 765 (1993)

PROCEDURAL POSTURE: Defendant was convicted in the Superior Court (Maricopa) of first-degree murder, conspiracy to commit first-degree murder, child abuse, and kidnapping. Defendant was sentenced to death on the murder count. This is defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - REVERSED
Evidence that Styers was having serious financial problems and that he knew about a five thousand dollar insurance policy on the 5-year old victim's life was insufficient to establish the (F)(5) aggravating circumstance beyond a reasonable doubt. Ample evidence showed that co-defendant Milke, the victim's mother, had a desire and motive to want her son dead. She had tried to transfer custody of him to others in the past and she cared very much for a man who did not want to continue a relationship with a woman who had a small child. The evidence did not establish, however, that Milke had a financial motive for having her son killed, much less that she had a financial agreement to share the life insurance proceeds with the defendant.

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

Cruel: Not addressed.

Heinous or Depraved: Upheld on findings of senselessness and helplessness alone. "The circumstances of this crime are indeed shocking, and they separate this crime from the `norm' of first degree murders. The evidence supports the especially heinous and depraved aggravating circumstance." 177 Ariz. at 116.
Gratuitous Violence: Not found. The Court refused to find gratuitous violence simply because defendant used a hypervelocity bullet. The Court found no evidence "that defendant used these particular bullets because he wanted to inflict greater damage to the victim."
Relishing: Not found. The trial court found that "defendant's depraved attitude was revealed by witnesses who testified that they heard him say, prior to the killing, that he wished Christopher dead." However, the Arizona Supreme Court held this statement did not support a finding that defendant relished the murder.
Senselessness: Found. "Although there was no legal `parent/child' relationship, defendant and victim did share a special relationship in that defendant was the child's full-time caregiver for several months before he killed him. This fact illustrates the depravity of defendant and makes the crime even more senseless and the victim especially helpless as to this defendant."
Helplessness: Found. The victim was four years old. The defendant betrayed the trust of the victim and used knowledge of the victim his love of Santa Claus and hunting snakes to lure him to the desolate desert wash for the purpose of killing him. The nature of the defendant's relationship with the victim made the victim especially helpless to this defendant.

(F)(9) (Victim under Fifteen Years of Age) - UPHELD
The defendant was an adult and the victim was four years old at the time of the murder. The defendant argued that the trial court "double counted" the victim's age to find both the (F)(9) and the (F)(6) aggravating circumstances. The trial court relied on the victim's age to find that the victim was helpless under the (F)(6) analysis. The Court held that one fact could be used to establish two aggravating circumstances, provided that it is weighed only once. Trial judges are presumed to know the law and to apply it in making sentencing decisions. The Court presumed, without evidence to the contrary, that the trial court committed no error. The Court itself weighed the victim's age only once in its independent review of the sentence.

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstances existed, but were insufficiently substantial to call for leniency:

Lack of Criminal History
Military Service

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

Impairment [post-traumatic stress disorder]
Felony Murder instruction

JUDGMENT: Child abuse conviction and sentence vacated. Convictions and sentences for first-degree murder, conspiracy to commit first-degree murder, and kidnapping affirmed.

Comment: Reader should also refer to the opinions in the cases of Styers' co-defendants: State v. Milke, 177 Ariz. 118, 865 P.2d 779 (1993); State v. Scott, 177 Ariz. 131, 865 P.2d 792 (1993).

State v. Milke, 177 Ariz. 118, 865 P.2d 779 (1993)

PROCEDURAL POSTURE: Defendant was convicted in Superior Court (Maricopa) of first-degree murder, conspiracy to commit first-degree murder, kidnapping, and child abuse. This is defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - REVERSED
The victim in this case was the defendant's four-year-old son. In her statement to the police, the defendant gave conflicting reasons why she wanted her son killed: so he would not grow up like his father; or so she would be free from parental responsibilities. She had a $5,000 life insurance policy on the boy and lied to the police about the existence of the policy. The trial court found that the defendant's inconsistent statements regarding the life insurance policy evidenced a motive for the murder and that she was attempting to conceal this motive by her statements. The Court found it equally as plausible that she was just trying to divert suspicion away from herself by the statements. Given that either inference was as believable as the other was, the Court concluded that the pecuniary gain factor was not proven beyond a reasonable doubt.

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

Cruel: Not addressed.

Heinous or Depraved: Found. The evidence at trial showed that defendant had arranged with co-defendant Styers to kill her four-year-old son, Christopher. The Court indicated that the Gretzler factors are not exclusive and that the trial court properly found that this parent/child relationship contributes to a finding of heinousness and depravity, citing as precedent, State v. Stanley, 167 Ariz. 519 (1991) and State v. Fulminante, 161 Ariz. 237 (1989). "The crime in this case can be described without reservation as `hatefully or shockingly evil' and `marked by debasement, corruption, perversion or deterioration.' The parent/child relationship is a circumstance that separates this crime from the `norm' of first degree murders."
Senselessness: Found. "Killing her own son so that he would not grow up to be like his father, or killing him so she could be free from parental burdens is, indeed, senseless." 177 Ariz. at 125.
Helplessness: Found. "Most assuredly, four-year-old Christopher was a helpless victim. He was delivered into the hands of his killers by the person upon who he should have been able to rely for protection and compassion his mother." 177 Ariz. at 125. The defendant/mother knew that the victim trusted the other defendant, Styers, who was the child's daytime caretaker.

(F)(9) (Victim under Fifteen Years of Age) - UPHELD
The (F)(9) finding was upheld without discussion. The defendant was an adult and the victim was four years old at the time of the murder.

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstances existed, but were insufficiently substantial to call for leniency:

Lack of Criminal History
Employment Record
Model Prisoner [good behavior]

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

Residual Doubt
Difficult Childhood/Family History]
Potential for Rehabilitation
Grief
Gender

JUDGMENT: The conviction and sentence for child abuse was vacated. All other convictions and sentences affirmed.

Comment: The reader should also refer to the opinions in the companion cases of Milke's co-defendants: State v. Styers, 177 Ariz. 104, 865 P.2d 779 (1993); State v. Scott, 177 Ariz. 131, 865 P.2d 792 (1993).

State v. Scott, 177 Ariz. 131, 865 P.2d 792 (1993)

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

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
The defendant argued that the only evidence supporting this factor was his own statement that he was offered $250 to drive the car when codefendant Styers took the four-year-old victim, Christopher, out into the desert to kill him. The defense argument was that there was no corroboration by any independent evidence and that the corpus delicti doctrine prevented his statement from being used to establish pecuniary gain. The Court noted that the defendant cited no authority to support his position. The Court held that the corpus delicti doctrine does not apply at sentencing and therefore, no additional evidence was needed to support the defendant's statement. The statement alone was sufficient to prove this pecuniary gain factor.

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

Cruel: Not addressed.

Heinous or Depraved: Upheld.
The defendant agreed to help co-defendant James Lynne Styers kill co-defendant Debra Jean Milke's four-year-old son, Christopher. Defendant admitted during a police interview that he accompanied Styers to a desert wash where Styers shot and killed Christopher. Styers expected to receive some of Christopher's $5,000 life insurance policy payout.
Gratuitous Violence: Not found. "While the medical evidence suggests that at least two of the three wounds suffered by the victim were fatal, the firing of one, or even two, unnecessary shots does not lead to the conclusion that gratuitous violence was inflicted." 177 Ariz. at 143.
Relishing: Not found. "Styers' alleged post-homicide reference to the victim as `that little bastard' would not suggest that Defendant `relished' the murder even if the Court were inclined to impute the statement to Defendant. A review of the cases leaves the clear impression that more is required in order to establish that the killer relished the murder." 177 Ariz. at 143.
Senselessness: Found. The Court found that senselessness and helplessness, together, but without any other factors, were sufficient to establish heinousness and depravity. Neither one alone would suffice, but together, they were enough to support the finding of heinous or depraved, as indicated in State v. Stanley, 167 Ariz. 519 (1991), and State v. Wallace, 151 Ariz. 362 (1986). The Court explained that the import of the Gretzler factors is to determine if the murder is above the norm. This inquiry (whether the murder is above the norm) is an "overarching standard, having no connection to any specific aggravating circumstance. Numerous subsequent decisions, however, suggest that this element is part and parcel of the inquiry necessitated by 13-751. The Court finds that this murder was both shocking and repugnant and does, indeed, stand out above the norm." 177 Ariz. at 143-44. The Court also noted it had discussed this issue separately in the companion case of State v. Milke, 177 Ariz. 118, 865 P.2d 779 (1993).
Helplessness: Found. See discussion under Senselessness.

(F)(9) (Victim under Fifteen Years of Age) - UPHELD
The defendant was an adult and the victim was four years old at the time he was taken from his home and killed in the desert. The Court rejected the defendant's argument that the trial court gave the victims age double weight by using the victim's age to support both the (F)(9) and the (F)(6) aggravating circumstances (helplessness factor). Age can satisfy two separate aggravating circumstances, but can only be counted once in the weighing process.

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstances existed, but were insufficiently substantial to call for leniency:

Lack of Criminal History
Cooperation [with police]
Model Prisoner [good behavior while incarcerated and at trial]
Family Ties [loving relationship with mother]
Psychological history
Felony Murder instruction

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

Residual Doubt
Difficult Childhood/Family History]
Potential for Rehabilitation
Employment history
Remorse
Alcohol abuse history

JUDGMENT: Convictions and sentences affirmed.

Comment: The reader should also refer to the opinions in the companion cases of Milke's co-defendants: State v. Styers, 177 Ariz. 104, 865 P.2d 779 (1993); State v. Milke, 177 Ariz. 118, 865 P.2d 792 (1993).

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