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State v. Gallegos (Gallegos I), 178 Ariz. 1, 870 P.2d 1097 (1994)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder and sexual conduct with a minor under the age of fifteen. Defendant 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: Not addressed - because the Court upheld heinousness and depravity.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The medical examiner testified that injuries to the eight-year-old female victim's rectum were inflicted either premortem or perimortem. Defendant admitted to anal intercourse with the victim for between fifteen and twenty minutes after her body went limp and after he believed she was dead. The Court found that defendant believed he committed necrophilia. Defendant stated that "it wasn't like she was going to tell anybody," so "why not" do it because he knew he would be caught the next day. 178 Ariz. at 15. After sodomizing the victim, defendant discarded her naked, bruised and battered body under a tree, where she was found the following day.
Senselessness: Found. See Helplessness. "We believe that the record in this case supports a finding of senselessness, helplessness, and gratuitous violence." 178 Ariz. at 15. Senselessness and helplessness, "in isolation," do not always lead to a finding of heinousness and depravity. 178 Ariz. at 14. However, if either or both is considered with other factors, that can lead to a finding of heinousness and depravity.
Helplessness: Found. The victim was an eight-year-old girl, weighing fifty-seven pounds and standing four feet, five inches tall. The defendant is an eighteen-year-old male who had a trust relationship with the victim. The defendant went into the victim's room while she slept and suffocated her. The victim "never had a chance." 178 Ariz. at 15.

(F)(9) (Victim under Fifteen Years of Age) - UPHELD
The defendant was an adult and the murder victim was eight years old at the time of the sexual assault and murder. On appeal, the defendant did not contest the (F)(9) finding, but argued he had been "double punished@ because the trial court considered victim's age to establish the (F)(6) factor. Specifically, the defendant argued that the finding of helplessness was a repetition of fact that the victim was a child. The Court held that this argument was without merit. The same evidence may "support the finding of more than one aggravating factor, as long as it is only weighed once in determining whether to impose the death penalty." Moreover, the Court disagreed that the helplessness finding was based solely on the victim's age. The defendant's status as a kind of "uncle" to the child victim, his access to the victims bedroom, and the fact the victim was asleep at the time of the attack, all supported a finding of helplessness, apart from the victim's young age.

MITIGATING CIRCUMSTANCES:

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

Impairment ["to some degree" by alcohol use on night of murder]
History of alcohol and drug abuse
Age [18 years old at the time of the murder]
Remorse
Cooperation with police
Recommendation for leniency [from police officers on case]

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

(G)(1) Significant Impairment [alcohol and drug use]
Lack of Intent to Kill
Sentencing Disparity [not applicable where insufficient evidence to charge the other party]

The Court agreed with the trial court that the defendant's impairment from alcohol and drug use on the night of the murder did not rise to the level of "significant" impairment contemplated by the (G)(1) mitigating circumstance. But the trial court should have considered whether the evidence that the defendant was impaired to some degree, along with his history of alcohol and drug abuse, constituted a nonstatutory mitigating circumstance. After considering the evidence, the Court found that the defendant's impairment constituted a nonstatutory mitigating circumstance and remanded for resentencing because it could not clearly ascertain whether the trial court would have sentenced Gallegos to death if it had considered his impairment as a nonstatutory mitigating circumstance.

JUDGMENT: Convictions and sentence for sexual conduct with a minor under the age of fifteen affirmed. Remand for resentencing on the first-degree murder conviction due to a finding of impairment as an additional mitigating circumstance not considered by the trial court.

State v. Ramirez, 178 Ariz. 116, 871 P.2d 237 (1994)

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

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - UPHELD
The defendant's prior convictions were for aggravated assault and robbery. The Court examined the statutes under which the defendant was convicted and found that the specific subsections of the statutes necessarily involved violence or the threat of violence to another. In State v. Fierro, 166 Ariz. 539, 804 P.2d 72 (1990), the Court held that a conviction for aggravated assault under A.R.S. 13-1203 and 13-1204 did not qualify as an aggravating factor because it was possible to commit the crime without the use or threat of violence. Here, the state avoided that problem by proving the specific subsections that applied, and those subsections necessarily involved violence. The robbery statute also necessarily involved the use or threat of violence.

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

Cruel: Upheld.
Mental Anguish: Found. The Court found that the victims experienced great pain and suffering over a prolonged period of time. Neighbors heard "banging, screaming, cries for help, and running noises" for twenty to thirty minutes. 178 Ariz. at 129. Blood and murder weapons were scattered throughout the apartment. The victims were conscious during repeated stabbings. Each victim was stabbed fifteen to twenty times. Each victim was aware of the other victim's suffering. Victim, Mrs. G., had defensive wounds from the struggle. Under these facts, the Court found that F(6), "especially cruel," applied to both murder counts.
Physical Pain: Found. See Mental Anguish.
Knew or Reason to Know that Victim Would Suffer: The Court found the victim's suffering to be inescapably foreseeable to defendant.

Heinous or Depraved: Not addressed.

(F)(8) (Multiple Homicides) - UPHELD
The defendant was convicted of stabbing a female acquaintance and her fifteen-year-old daughter to death. Citing State v. Lavers, 168 Ariz. 376, 814 P.2d 333 (1991), the Court said that it analyzes the temporal, spatial, and motivational relationships between the capital homicide and the collateral [homicide], as well as the nature of that [homicide] and the identify of its victim to determine if one murder was committed during the course of another. In this case, the Court said the murders occurred in same place, resulted from the same disturbance, and were committed in a relatively short period of time in what can be fairly viewed as one continuous course of criminal conduct. The trial court misstated the law by saying that the factor supports the death sentence on either conviction. The Court noted that the factor, once proven, applies to each conviction.

MITIGATING CIRCUMSTANCES:

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

(G)(1) Significant Impairment
Difficult Childhood/Family History [including gang affiliation]
Lack of Education
Psychological history
Chronic substance abuse
Family Ties

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

Remorse
Model Prisoner
Residual Doubt

JUDGMENT: Convictions and sentences affirmed.

State v. Cornell, 179 Ariz. 314, 878 P.2d 1352 (1994)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder, attempted first degree murder, aggravated assault, and first degree burglary. 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) - REVERSED
The trial court's (F)(1) finding was based on an aggravated assault conviction for which the defendant received a life sentence. That conviction was subsequently reversed on appeal. The defendant was retried on that charge and found guilty of a misdemeanor. The Court agreed with the defendant that the conviction could no longer support the (F)(1) aggravating circumstance. However, instead of remanding the case to be reweighed by the trial judge, the Court reduced the sentence to life imprisonment without the possibility of parole for twenty-five years to be served consecutive to all other sentences imposed.

(F)(3) (Grave Risk of Death to Others) - UPHELD
The (F)(3) finding was upheld without discussion. Because the Court reversed the trial court's (F)(1) finding, and reduced the sentence to life, the Court never addressed the merits of the (F)(3) finding. The facts apparently supporting the (F)(3) finding are that Cornell shot and killed his estranged girlfriend, Daphne, and wounded her father, Victor, at the Arizona Department of Transportation (ADOT) building. Victor drove his truck to the entrance of the building, let Daphne out of the truck, and then confronted Cornell, who had been following them. Cornell pulled out his gun, assumed a shooter's stance and opened fire. One shot hit Victor as he tried to take cover behind his truck, in which his granddaughter was still sitting. Cornell then followed Daphne into an office area in the building, and in the presence of her co-workers, fired at least three shots at her while she lay on the floor. Cornell then fled the building, threatening several people with his gun so that they would not interfere with his escape.

MITIGATING CIRCUMSTANCES:

There is no discussion of mitigating circumstances in this opinion because the Court set aside one of the aggravating circumstances and reduced the sentence to life.

JUDGMENT: Convictions and sentences affirmed except the death sentence, which was reduced to life imprisonment without the possibility of parole for twenty-five years to be served consecutively to the defendant's other sentences.

State v. Wood, 180 Ariz. 53, 881 P.2d 1158 (1994)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of two counts of first-degree murder and two counts of aggravated assault. He was sentenced to death on each murder conviction. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(3) (Grave Risk of Death to Others) - UPHELD
This aggravating circumstance exists only if the defendant's murderous act itself puts other people in the "zone of danger." The inquiry is whether, during the course of the murder, the defendant knowingly engaged in conduct that created a real and substantial likelihood that a specific third person might suffer a fatal injury. No single factor is dispositive of this aggravating circumstance. Here, three employees were present in the confined garage space where the defendant shot one of them. One of the employees was only six to eight feet away from the victim when he was shot. The defendant then turned toward another employee, as if to shoot him, but the employee fled. There was evidence that the defendant cocked and uncocked the gun twice between shooting the first victim and shooting the second. The other employees were found to be in the zone of danger based on the defendant's actions.

(F)(8) (Multiple Homicides) - UPHELD
The (F)(8) finding was upheld without extensive discussion. Wood did not challenge the finding on appeal. Wood shot and killed his estranged girlfriend and her father at a Tucson body shop. The Court noted that this was a double murder and the trial court properly found the existence of the (F)(8) aggravating circumstance.

MITIGATING CIRCUMSTANCES:

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

Impulsive personality exacerbated by drug and alcohol abuse ["little, if any" weight]
History of substance abuse ["little, if any" weight]
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:

(G)(1) Significant Impairment [mental or alcohol/drugs]
(G)(2) Duress
(G)(4) Death not Reasonably Foreseeable
Difficult Childhood/Family History

JUDGMENT: Convictions and sentences affirmed.

State v. Maturana, 180 Ariz. 126, 882 P.2d 933 (1994)

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

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - UPHELD
The trial court's (F)(2) finding was based on Maturana's prior conviction for aggravated assault in Texas. Maturana argued that the state did not prove the existence of the previous conviction beyond a reasonable doubt because the state failed to introduce a certified copy of the conviction. Rejecting this argument, the Court noted that the state introduced, at the sentencing hearing, certified copies of the indictment, plea agreement, and judgment on plea of guilt, as proof that Maturana was previously convicted of stabbing another person with a homemade spear.

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

Cruel: Upheld.
Mental Anguish: Found. The Court found that the victim was conscious through much of the attack due to possible defensive wounds on the victim's forearm and hand. Additionally, the defendant had bragged to another inmate that the victim was shaking and screaming after each gunshot.
Physical Pain: Found. The Court did not differentiate between mental anguish and physical pain, but concluded that the victim both "suffered physical pain and endured mental anguish during this attack."

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The Court concluded that both gratuitous violence and mutilation existed and commingled the factors. The victim was shot at least twelve times in the head and chest. Some bullets caused multiple entrance wounds. Further, the defendant watched as co-defendant Ballard repeatedly hacked the body with a machete. One machete wound nearly severed the victim's jugular vein and defendant apparently attempted to sever the victim's head before dumping the body in a rancher's well.
Mutilation: Found. The Court addressed gratuitous violence and mutilation together.
Relishing: Found. Defendant demonstrated no remorse and bragged to another inmate about "how great it was." 180 Ariz. at 132. Defendant further stated that he tricked the victim into going to the desert to make him pay for being a snitch and a thief.
Senselessness: Not addressed. The Court declined to address senselessness because heinousness and depravity were already found based on other factors.

MITIGATING CIRCUMSTANCES:

The Court found no mitigating circumstances in this case that would call for leniency. The defendant failed to prove by a preponderance of the evidence the existence of the following as mitigating circumstances:

(G)(1) Significant Impairment [drug usage]; (G)(2) Duress; (G)(3) Minor Participation;
(G)(4) Death not Reasonably Foreseeable; Age [32 years old at time of crime];
Difficult Childhood/Family History; Substance Abuse; Military Service; Remorse;
Family Ties; Model Prisoner; Low Intelligence; Sentencing Disparity

JUDGMENT: Convictions and sentences affirmed.

State v. King, 180 Ariz. 268, 883 P.2d 1024 (1994)

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

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
The (F)(5) finding was upheld without discussion. The defendant went into a convenience market, and while robbing the market, shot the store clerk and the security guard with the guard's gun.

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

Cruel: Not addressed.

Heinous or Depraved: Reversed.
Witness Elimination: Found. The Court found witness elimination did exist, but alone, it was not sufficient to uphold a finding of heinousness and depravity. In Greenway, 170 Ariz. 155, 823 P.2d 22 (1991), "Chief Justice Feldman specially concurred, emphasizing that although `killing to eliminate witnesses may be a factor in finding depravity,' the Court has never held that a finding of heinousness and depravity could be based solely on a finding that a murder was motivated by a desire to eliminate a witness." 180 Ariz. at 284. The Court held that A.R.S. 13-751(F)(6) does not permit it to find that a killing is especially heinous or depraved based solely on a finding that the motive for the killing was to eliminate witnesses. 180 Ariz. at 285. Witness elimination has an important evidentiary value in refuting a defense claim that a murder is not senseless if it is done to avoid prosecution. 180 Ariz. at 286. The circumstances of the murder must "raise it above the norm of first degree murders." In this case, it was a cold-blooded murder demonstrating a vile state of mind and qualified as witness elimination. However, witness elimination alone, without other factors, is not enough to raise this murder "above the norm."

(F)(8) (Multiple Homicides) - UPHELD
The defendant was convicted of killing a store clerk and a security guard during the robbery of a convenience store. The trial court stated incorrectly in its special verdict that the factor "supports the imposition of a death sentence on either" murder count. Once this factor is proven, it applies to each first-degree murder conviction.

MITIGATING CIRCUMSTANCES:

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

Difficult Childhood/Family History
Substance Abuse
Antisocial Personality Disorder
Post-Traumatic Stress Disorder
Family Ties

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 [mental or alcohol/drugs]
Age [26 years old at time of crime]
Remorse

JUDGMENT: Death sentence affirmed, even without F(6) because of pecuniary gain and other felony convictions.

State v. Richmond (Richmond III), 180 Ariz. 573, 886 P.2d 1329 (1994)

PROCEDURAL POSTURE: On remand from the U.S. Supreme Court, this is the third review by the Arizona Supreme Court. Defendant was convicted, again, in Superior Court (Pima) of robbery and first-degree murder and sentenced to death for first-degree murder. This is defendant's automatic direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
Prior conviction for murder sufficient to support trial court's finding, even though the prior conviction was obtained after the conviction in this case, but before resentencing.

(F)(2) (Prior Violent Felony) - REVERSED
The defendant was previously convicted of kidnapping. At the time of the defendant's murder trial, (F)(2) required that the prior conviction be predicated upon a statute wherein the use or threat of violence is a necessary element of the crime. The statutory definition, not the facts of the underlying conviction, dictate whether the crime fits within the (F)(2) aggravator. The Court held that (F)(2) did not apply in this case for several reasons. Initially, the trial court improperly received testimony concerning the facts of the previous conviction. The state never introduced a formal record of the conviction, but introduced only a copy of the information charging the defendant and a copy of the sentencing minute entry, both of which indicated that the defendant kidnapped the victim while armed with a deadly weapon. The Court could not determine which section of the kidnapping statute applied to this particular case. The statute itself includes subsections that allow for a kidnapping conviction without the use or threat of violence. From this record, it was not possible to determine the specific subsection of the kidnapping statute in question. Therefore, the (F)(2) finding was reversed.

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

Cruel: Not addressed because it was rejected in the 1983 review of this case. The record did not indicate the victim suffered more than the initial blow which rendered him unconscious. 180 Ariz. at 579.

Heinous or Depraved: Reversed.
Gratuitous Violence: Not found. The victim was run over by a car twice after having been beaten with rocks and fists. The Court found the record was unclear on the issue of whether defendant was the driver. A witness, Faith, testified that defendant was driving, but she was high on heroin at the time, had been vomiting during the incident and was lying in the back seat with her eyes closed when the other two people (including defendant) got into the car and drove away. Another witness stated that Faith had told her previously that defendant was not driving. Defendant stated that a third party was the driver. The Court next addressed, if defendant were the driver, whether driving over someone twice constitutes gratuitous violence. There was no evidence as to whether defendant intended to mutilate the victim or whether, thinking he was not yet dead from the beating, he simply intended to kill him. The Court found it possible that if a person intentionally drives over a person twice, whether or not he knows the victim is dead after the first pass, it could be gratuitous violence. However, the Court, in this case, did not find gratuitous violence.
Mutilation: Not found. The Court addressed mutilation in conjunction with gratuitous violence.

MITIGATING CIRCUMSTANCES:

The Court reduced the defendant's death sentence to life, based largely on the evidence of his changed character during the twenty years since he was originally sentenced to death. The Court found the evidence quite "persuasive and unusual for a capital case." See case annotation in Model Prisoner section.

JUDGMENT: Convictions affirmed, sentence of death reduced to life in prison without the possibility of parole for twenty-five years, to be served consecutively to a life sentence for a "prior" murder conviction.

Note: For extensive prior history, see case summary for State v. Richmond, 136 Ariz. 312, 666 P.2d 57 (1983).

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