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State v. Ross, 180 Ariz. 598, 886 P.2d 1354 (1994)

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

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
The defendant's admitted objective was to steal money and identification. It is not relevant whether he intended to kill before the robbery. A person furthers his pecuniary gain motive when he kills to facilitate escape and to ensure keeping the stolen items. Here, the defendant killed to steal credit cards and bankcards. The defendant lured the victim real estate agent to a vacant store under the pretext of an interest in leasing the property. Once inside, the defendant demanded the victim's wallet and during the ensuing struggle, shot the victim in the head. The defendant dragged the victim's body behind the counter and again shot him in the head. After stealing the victim's wallet, the defendant immediately began using the victim's bank and credit cards. He withdrew money from a bank, obtained a temporary driver's license, and bought a car with the victim's identification. The defendant had the victim's wallet in his possession when he was arrested by the police.

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

Cruel: Not addressed.

Heinous or Depraved: Reversed. Senselessness and helplessness alone "will ordinarily not be sufficient to prove heinousness or depravity." 180 Ariz. at 607.
Senselessness: Found. Defendant argued that the victim fought back during the robbery so he had to shoot him to complete the robbery. The Court disagreed. Defendant had the victim's wallet before the second shot was fired, so there was no need to shoot again. Defendant could have taken victim's wallet without killing him.
Helplessness: Found. The victim was shot twice. He was rendered helpless by the first shot and hence, the second shot was delivered when the victim was helpless. 180 Ariz. at 606.
Witness Elimination: Not found. The Court articulated three fact patterns where witness elimination may be found, pursuant to previously existing case law. First, "where the murder victim is a witness to some other crime, and is killed to prevent that person from testifying about the other crime"; second, when "a statement by the defendant that witness elimination is a motive for the murder" is made; third, "where extraordinary circumstances of the crime show, beyond a reasonable doubt, that witness elimination is a motive. This will only occur in the most extreme cases." 180 Ariz. at 606. The Court held that the facts of this case did not fit into any of the three categories.

MITIGATING CIRCUMSTANCES:

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

Lack of Criminal History
Family Ties

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

Difficult Childhood/Family History; Model Prisoner; and Cooperation with police

JUDGMENT: Convictions and death sentence affirmed. The Arizona Supreme Court reversed the (F)(6) finding and then reweighed the aggravating and mitigating circumstances before affirming the sentence.

State v. Hinchey (Hinchey II), 181 Ariz. 307, 890 P.2d 602 (1995)

PROCEDURAL POSTURE: The defendant was convicted after his second trial in Superior Court (Maricopa) of first-degree murder and attempted first-degree murder and he was sentenced to death. On direct appeal, the Arizona Supreme Court affirmed the convictions but vacated the death sentence and remanded for resentencing. At resentencing, the defendant was again sentenced to death. This is his automatic, direct appeal from that resentencing.

AGGRAVATING CIRCUMSTANCES:

There is no discussion of aggravating circumstances in this opinion.

MITIGATING CIRCUMSTANCES:

The Court found that there were no mitigating circumstances sufficiently substantial to call for leniency in this case. More specifically, 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 [personality disorder]
Stress
Jury foreman's affidavit stating death penalty not deserved
Adjustment to incarceration
Originally given life sentence pursuant to plea agreement

JUDGMENT: Death sentence affirmed.

State v. Gonzales, 181 Ariz. 502, 892 P.2d 838 (1995)

PROCEDURAL POSTURE: The defendant was convicted after his second trial in Superior Court (Maricopa) of felony murder, aggravated assault, theft, armed robbery, and two counts of burglary. The first trial ended in a hung jury. He was sentenced to death on the murder conviction, and prison sentences on the noncapital convictions. This is his automatic appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(3) (Grave Risk of Death) - UPHELD
The wife was confined a 10-foot by 10-foot courtyard with the defendant as he stabbed her husband to death. She attempted to rescue her husband by jumping on the defendant's back as he was stabbing. According to the Court, "[o]ne who murders knowing that others are present can expect that someone may attempt to interfere, particularly when the person is the victims spouse."

(F)(5) (Pecuniary Gain) - UPHELD
The defense argued that the murder was accidental and unexpected in that the robbery was already completed when he was confronted by the victim. The Court disagreed with this analysis. The Court stated that the (F)(5) factor is found where a motivation for the murder was the expectation of pecuniary gain, and that where a defendant kills to facilitate escape and to keep stolen items, he is furthering his pecuniary gain motive. Here, the victims interrupted the defendant during his burglary of their home. The defendant was there to steal and this intent "tainted all of his other conduct." This murder was not accidental given the sheer number of stab wounds. The defendant's primary motivation was to steal, and the murder was directly related to that goal.

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:

Felony Murder conviction
Good Character

JUDGMENT: Convictions and sentences affirmed.

State v. Barreras, 181 Ariz. 516, 892 P.2d 852 (1995)

PROCEDURAL POSTURE: Defendant pleaded no contest in Superior Court (Maricopa) to first-degree murder and sexual assault, and was sentenced to death for the murder. This is defendant's automatic direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

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

Cruel: Not addressed.

Heinous or Depraved: Reversed. After reversing the witness elimination finding, only senselessness and helplessness remained. The Court has repeatedly held that "in most cases the senselessness and helplessness factors alone will not support a finding of heinousness or depravity." 181 Ariz. at 523. In the present case, the Court found senselessness and helplessness were not sufficient to find heinousness and depravity.
Senselessness: Found. The Court found senselessness was established beyond a reasonable doubt in that defendant easily could have completed the sexual assault without killing the victim. 181 Ariz. at 522.
Helplessness: Found. The Court held that the victim's "diminished mental capacity and functional age clearly rendered her helpless at defendant's hands." 181 Ariz. at 522. The victim was nineteen years of age, because of tuberous sclerosis, she had the mental age of a three- to four-year-old child. Further, the Court compared the victim's size to defendant's, but still found that the victim's diminished mental capacity rendered her helpless.
Witness Elimination: Not found. Citing the three witness elimination factors articulated in State v. Ross, 180 Ariz. 598, 886 P.2d 1354 (1994), the Court held that, in this case, the record did not support a finding beyond a reasonable doubt that witness elimination motivated defendant. The victim had not witnessed any unrelated crime, defendant had not said anything to demonstrate that witness elimination was his motive, and no sufficient other circumstances existed to make an extreme case. 181 Ariz. at 523.

MITIGATING CIRCUMSTANCES:

Because the Court reversed the (F)(6) finding and reduced the sentence to life, it was unnecessary to weigh the "significant mitigating evidence involving the defendant's organic brain damage and low I.Q." The Court did not discuss the specific evidence that was considered "significant."

JUDGMENT: Convictions for sexual assault and murder affirmed. Sentence for sexual assault affirmed. Sentence of death reduced to life imprisonment without possibility of release for twenty-five years to be served consecutively to all other sentences.

State v. Willoughby, 181 Ariz. 530, 892 P.2d 1319 (1995)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first degree premeditated murder, conspiracy to commit murder, fraudulent schemes and artifices, armed robbery, obstructing criminal investigation and filing fraudulent insurance claim, and he was sentenced to death for the murder. This is defendant's automatic, direct appeal to the Arizona Supreme Court.

(F)(5) (Pecuniary Gain) - UPHELD
Evidence showed that defendant did not merely receive insurance proceeds from an existing policy after his wife's death, but rather, he killed his wife for the purpose of making a financial gain. Prior to killing his wife, Willoughby pressed for a buyout agreement between his wife and her mother so that his wife's share of their business would be liquidated upon her death and distributed under her will. An integral part of the agreement was the purchase of additional life insurance on his wife's life. After the murder, Willoughby received proceeds from one policy and sought proceeds from another. Evidence also established that Willoughby said that his wife would have taken him "to the cleaners" if he had divorced her rather than killing her.

MITIGATING CIRCUMSTANCES:

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

Good Character.

The Court noted that the proof in this case of a great many past good deeds, even if prompted by impure psychological motives, had considerable mitigating value and was entitled to substantial weight.

JUDGMENT: Convictions and sentences affirmed.

State v. Bolton, 182 Ariz. 290, 896 P.2d 830 (1995)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of kidnapping, burglary, and first-degree felony murder. 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 was abducted from her bed by a stranger, carried several blocks, placed in a dirty car, disrobed and stabbed to death. The Court concluded that the victim was conscious for a substantial duration between the beginning of the crimes and her death. This conclusion was supported by the victim's fingerprints on the left rear window and door handle of the taxicab, blood stains which indicated the victim was upright after being stabbed, and the absence of any other injury that would have impaired the victim's consciousness prior to being stabbed. "Obviously, the three-year-old victim was terrified beyond imagination." 182 Ariz. at 311.
Physical Pain: Found. The Court was persuaded by medical evidence that a person with similar injuries to the victim would have suffered "excruciating pain" while she died over a fifteen to thirty minute period. The victim may not have been conscious for the entire fifteen to thirty minutes, but the Court held that with these circumstances, a brief period of consciousness would be enough to establish cruelty. 182 Ariz. at 311. Knew or Reason to Know that Victim Would Suffer: Found. "To support a finding of cruelty, only post wound suffering must be foreseeable. A defendant's subjective intent to cause suffering and the singularity of the wound are irrelevant altogether." 182 Ariz. at 311-12 (citation omitted). The Court found the victim's post wound suffering to be foreseeable because it was not the type of wound that kills or disables instantly like a gunshot to the head. "It makes no difference that the trial court did not expressly refer to foreseeability in its special verdict."

Heinous or Depraved: Not addressed. The Court refused to address heinousness or depravity because it found the F(6) factor established by cruelty.

(F)(9) (Victim under Fifteen Years of Age) - UPHELD
The defendant was an adult and the victim was three years of age at the time she was abducted from her parents' home. She was stabbed and her body abandoned. On appeal the defendant attacked the constitutionality of the death penalty statute, in particular the (F)(9) factor, because its finding resulted in an automatic death sentence. The Court rejected the argument without much discussion and noted that the statute is constitutional because it requires the trial court to consider the mitigating circumstances and weigh them against the aggravating factors. The defendant also contended the victim's age was counted twice, once to find the (F)(9) factor and again to find the (F)(6) factor. The Court found no basis for that argument in the record.

MITIGATING CIRCUMSTANCES:

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

Age [19 years old at time of crime] [given little weight because crime not impulsive]

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

Impairment
Difficult Childhood/Family History
Repeated past institutionalization
Felony Murder [instruction and conviction]
(G)(4) Death not Reasonably Foreseeable

JUDGMENT: Convictions and sentences affirmed.

State v. Stokley, 182 Ariz. 505, 898 P.2d 454 (1995)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Cochise) of two counts of first-degree murder, two counts of kidnapping, and one count of sexual conduct with a minor under the age of fifteen. 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. A medical expert testified that strangulation, the cause of death, usually takes twelve to fifteen minutes with at least a few minutes of consciousness, and death is not instantaneous. This is partially true in this case where defendant constantly repositioned his hands during the manual strangulation. 182 Ariz. at 517. There was evidence that the victims struggled during this time. Thus, the victims were conscious during at least part of the attack.
Physical Pain: Found. The victims had been stabbed in or near the eye, had many bruises and abrasions, and one victim had been stepped on with defendant's shoe, before death or shortly thereafter. The Court found that at least some of these injuries occurred before death and that this constituted cruelty. Further, evidence of hemorrhaging in the vaginal area was present for both victims, indicating sexual activity before death. One victim endured a fractured cranium and laceration of the skull. The Court found that both victims had struggled and were conscious when at least some of the injuries were inflicted, which is sufficient to establish cruelty. 182 Ariz. at 517.
Knew or Reason to Know that Victim Would Suffer: Found. The Court stated that defendant knew or should have known the victims would suffer, but did not provide any factual analysis.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The Court affirmed the findings that stabbing the eyes of the victims, as well as stomping on their bodies, could not have been thought to cause death and, therefore, constituted gratuitous violence and mutilation. 182 Ariz. at 518.
Mutilation: Found. See Gratuitous Violence.
Senselessness: Found. The Court stated that the killing of "a helpless child" is senseless.
Helplessness: Found. The Court found that the victims were defenseless against the attacks when they were "driven to a remote rural area in the middle of the night, sexually assaulted, stabbed, stomped, stripped, strangled, and thrown down a mine shaft." 182 Ariz. at 518.
Witness Elimination: Found. A dialogue between defendant and a detective revealed that defendant's motive to kill the victims after the sexual assault was due to his fear they would tell. This fulfills the second Ross witness elimination category.

(F)(8) (Multiple Homicides) - UPHELD
The (F)(8) finding was upheld without discussion. The defendant did not contest the finding on appeal. Two thirteen-year old girls were sexually assaulted, strangled, stabbed in the eye, and dumped down a mineshaft.

(F)(9) (Victim under Fifteen Years of Age) - UPHELD
The (F)(9) finding was upheld without discussion. The defendant was an adult at the time the crimes were committed, and the two victims were both under the age of fifteen.

MITIGATING CIRCUMSTANCES:

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

Mental disorders
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 and alcohol/drugs]
Intoxication
History of substance abuse
(G)(3) Minor Participation
(G)(4) Death not Reasonably Foreseeable
Cooperation [with police]
Sentencing Disparity
Potential for Rehabilitation/Lack of Future Dangerousness
Difficult Childhood/Family History
Good Character
Model Prisoner [pretrial and presentence]
Felony Murder /Lack of Intent to Kill
Remorse

JUDGMENT: Convictions and sentences affirmed.

State v. Aryon Williams, 183 Ariz. 368, 904 P.2d 437 (1995)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pinal) of first-degree murder, attempted first-degree murder, and armed robbery, and 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 in part, REVERSED in part
The trial court used the defendant's convictions of armed robbery and attempted murder, in connection with the current case, as (F)(2) factors. The Court affirmed the use of the armed robbery conviction because armed robbery, by its terms, is a felony that involves the use or threat of violence on another person. The Court concluded that the attempted murder conviction cannot support an (F)(2) finding because, under the terms of the statute, the crime of attempted first degree murder does not necessarily involve the use or threat of violence on another person. The Court stated, however, that the attempted murder charge is irrelevant because the armed robbery conviction supports the (F)(2) finding. The Court also cited several cases which state that convictions entered prior to a sentencing hearing may be considered regardless of the order in which the underlying crimes occurred or the order in which the convictions were entered. (F)(2) was properly applied for the armed robbery conviction.

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

Cruel: Not addressed.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. "Unquestionably, this murder involved gratuitous violence. Rita's body was broken, crushed, torn, scraped, shot, dragged, beaten, and bruised. In addition to being shot three times, Rita suffered a savage beating with a hard object, resulting in blunt force injuries covering virtually her entire upper body. Her internal injuries, consisting of pierced and torn organs, were numerous and severe. One of the gunshots completely fractured Rita's right femur, her ribs were fractured in at least thirty-one places and she suffered a broken nose, a fractured breast bone, fractured collar bones, and massive fractures of the pelvic bone. She was run over by an automobile at least twice. The number and nature of Rita's injuries belie any claim that defendant did not inflict violence in excess of that necessary to kill."
Helplessness: Found. The Court found that after the victim was shot and beaten, she was helpless unable to defend herself against further attack.

MITIGATING CIRCUMSTANCES:

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

Family Ties
Lack of Criminal History
Good Character

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)(2) Duress; Age [23 years old at time of murder]
Victim's Actions
Recommendation for leniency from victim's sister [not related to the defendant, his character, or the circumstances of the murder]
Race

JUDGMENT: Convictions and sentences affirmed.

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