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State v. Walden, 183 Ariz. 595, 905 P.2d 974 (1995)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of first-degree murder, four counts of sexual assault, two counts of sexual abuse, aggravated assault, two counts of dangerous kidnapping, kidnapping, dangerous burglary, burglary, and robbery. He was sentenced to death for the murder. This is defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
The defendant was convicted of dangerous kidnapping and dangerous aggravated assault at the same time as his first-degree murder conviction. The kidnapping and aggravated assault offenses occurred prior to the murder, while all charges were tried together. The defendant argued that these "Hannah" priors were insufficient to support an (F)(1) finding because a conviction is not entered before the court renders judgment, and judgment occurs at the time of sentencing. This argument was rejected because "conviction" means a determination of guilt, not judgment. The Court analyzed the meaning of conviction under both the Rules of Criminal Procedure and in its ordinary usage. A determination of guilt occurs by a plea in open court, or by the return of a guilty verdict. To require the formal entry of judgment would lead to irrational and arbitrary results.

(F)(2) (Prior Violent Felony) - UPHELD
The defendant had previously been convicted of aggravated assault in 1990. He was also convicted in the present case for kidnapping, aggravated assault and sexual assault. For the 1990 aggravated assault conviction, the specific subsection, A.R.S. 13-751(A)(2), necessarily involves the use or threat of violence. The defendant was also convicted of aggravated assault in the present case under A.R.S. 13-1204(A)(2). The Court determined this by looking at the jury instructions. The Court also held that the sexual assault conviction satisfied (F)(2) because it necessarily involved the use or threat of violence. The Court previously held that the use or threat of violence was not necessarily an element of sexual assault because the lack of consent could be satisfied where the victim was deceived or incapable of valid consent. See State v. Bible, 175 Ariz. 549, 858 P.2d 152 (1993). Here, the Court looked to the jury instruction defining "without consent" only to mean that the victim was coerced by the immediate or threatened use of force. Similarly, the jury instruction about the kidnapping charge required a finding that the victim's movements were restricted by physical force or intimidation.

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

Cruel: Upheld.
Mental Anguish: Found. The Court found the victim was conscious during at least a portion of the attack. Evidence supporting this finding includes: tangling of the victim's hand in the electrical cord used to strangle her, indicating she was conscious and struggling to free the cord; splattering of blood all around the room, indicating the victim was moving around the room during the attack; a large splatter of blood from the victim's carotid artery demonstrated that the victim's throat was cut in a different location than where the body was found.
Physical Pain: Found. The victim received several blunt force injuries to her arms, legs, face, and mouth, and cuts on her chest. The Court did not distinguish between mental anguish and physical pain.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The "nature" of the victim's wounds demonstrated defendant's intent to inflict unnecessary and gratuitous violence beyond that which was needed to kill the victim. Her injuries included bruises on her arms and legs; scraping or cutting injuries to her neck, chest, and breast; a gash wound on her head; strangulation; and at least two deep cuts to her throat. 183 Ariz. at 619.
Senselessness: Found. The Court found the murder senseless because it was unnecessary to complete the sexual assault.
Helplessness: Found. Defendant beat the victim and repeatedly injured her in an effort to overcome her resistance to his attack. The victim was five feet tall, weighing 100 pounds, whereas defendant stood six feet two inches tall and weighed 195 pounds.
Witness Elimination: Not found. The Court overturned the trial court's finding because this killing did not fit any of the three Ross categories: the victim was not killed to prevent her testimony regarding another crime; defendant made no statements linking this crime to witness elimination; no extraordinary circumstances exist.

MITIGATING CIRCUMSTANCES:

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

Good Character
Model Prisoner

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

JUDGMENT: Convictions and sentences affirmed.

State v. Roger and Robert Murray, 184 Ariz. 9, 906 P.2d 542 (1995)

PROCEDURAL POSTURE: This case addresses two defendants: Robert Murray and Roger Murray. The F(6) findings for both defendants were discussed simultaneously by the Court. Defendants were each convicted in Superior Court (Mohave) of two counts of first-degree murder and one count of armed robbery. Each was sentenced to death for the murders. This is defendants' joint automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
Defendants invaded the cafe and home of two victims, robbed them of money and other items, stole their tow truck, shot them and fled the scene. The Court found no factual support for defendants' claim that the deaths were unexpected or accidental. The victims were shot execution style, while lying on their stomachs. The evidence showed that the murders were committed in the course of, or flight from the robbery, and to further the goal of pecuniary gain.

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

Cruel: Upheld.
Mental Anguish: Found. "[T]he victims were kidnapped at gunpoint; they were forced to lie down; the crime occurred in the middle of the night and by surprise; the victims had no opportunity to defend themselves or summon aid; and they had time to consider their fate." 184 Ariz. at 37. "Due to the execution style of the murders, Applehans clutching Morrison's arm, in addition to the lacerations on Morrison and signs of struggle, the state proved beyond a reasonable doubt that the victims suffered from mental as well as physical pain and suffering before death." 184 Ariz. at 37.
Physical Pain: Found. See Mental Anguish. The Court did not distinguish between mental anguish and physical pain.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The Court found that "[g]ratuitous violence is supported by the numerous gunshot wounds to the victims' heads with different weapons, displaying violence far beyond that necessary to kill." 184 Ariz. at 38.
Senselessness: Found. The Court found the murders were senseless because they were unnecessary for defendants to complete the robberies.
Helplessness: Found. "The victims were relatively elderly and helpless against the younger assailants. The trial court also noted that the victims could not have summoned aid easily, thus buttressing the finding of helplessness." 184 Ariz. at 38 (citations omitted).
Witness Elimination: Not addressed. Though found by the trial court prior to publication of State v. Ross, the Supreme Court refused to review this finding under the newly articulated standard since F(6) heinousness and depravity were already supported by a finding of gratuitous violence, senselessness, and helplessness.

(F)(8) (Multiple Homicides) - UPHELD
The two older victims were shot and killed at the store and restaurant where they lived outside Kingman, Arizona. Robert did not challenge the finding on appeal. Roger argued that it was double jeopardy to apply the multiple homicide aggravating factor in sentencing where the murders were part of the same offense. The Court rejected the argument, noting it had dismissed the same argument in State v. Greenway, 170 Ariz. 155, 823 P.2d 22 (1991).

MITIGATING CIRCUMSTANCES:

Roger:

The Court found that the following mitigating circumstances existed, but were not sufficiently substantial to call for leniency:

Mental Health history [hyperactivity and "mental disorders"]

The Court found that Roger 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]
Alcohol and Drug Abuse
(G)(2) Duress
(G)(4) Death not Reasonably Foreseeable
Age [20 years old at time of crime]
Difficult Childhood/Family History [failed to show impact at time of crime]
Remorse
Felony Murder Instruction [not relevant where there is a finding of guilt for premeditated murder]
Cooperation with police
Residual Doubt

Robert:

The Court found that the following mitigating circumstances existed, but were not sufficiently substantial to call for leniency:

Potential for Rehabilitation

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

(G)(1) Significant Impairment [alcohol/drugs]
Impairment [intoxication]
Lack of Criminal History
Difficult Childhood/Family History [failed to show impact at time of crime]
Life Sentence would adequately protect society [did not "qualify as mitigation"]

JUDGMENT: Convictions and sentences affirmed for both defendants.

State v. Gulbrandson, 184 Ariz. 46, 906 P.2d 579 (1995)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of premeditated first-degree murder 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)(6) (Heinous, Cruel or Depraved) - UPHELD

Cruel: Not addressed.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The Court defined gratuitous violence as "violence in excess of that necessary to commit the crime." 184 Ariz. at 68. "In the special verdict, the trial court characterized the murder `as a brutally savage attack of shocking proportions.' Defendant apparently used numerous instruments to inflict injury to Irene: namely, several knives, scissors, and a wooden salad fork." The victim was stabbed thirty-four times, along with blunt force injuries and a broken nose. The evidence suggested that defendant had also kicked or stomped on the victim. She died of asphyxiation, due to probable strangulation, and of multiple stab wounds. Upon these facts, the Court found that gratuitous violence exhibiting a heinous or depraved mind was established. 184 Ariz. at 68.
Relishing: Not found. The Court found that although gambling the day after the murder "reflects a certain amount of callousness," without more, it did not establish beyond a reasonable doubt that defendant relished the murder. 184 Ariz. at 68. The Court also noted that defendant called his mother expressing that "he had done a terrible thing. He thought he had killed Irene." He also stated that he was contemplating suicide. On these facts, the Court held that relishing was not established beyond a reasonable doubt.
Helplessness: Found. The Court held that evidence of a "protracted struggle does not negate the finding of helplessness." 184 Ariz. at 69. Defendant ultimately rendered the victim helpless by binding her.

MITIGATING CIRCUMSTANCES:

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

Behavioral or Character Disorders
Stress
Model Prisoner

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
Rehabilitation/Lack of Future Dangerousness
Remorse
Family Ties

JUDGMENT: Convictions and sentences affirmed.

State v. Spears, 184 Ariz. 277, 908 P.2d 1062 (1996)

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

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
The victim considered Spears to be her boyfriend and purchased a ticket for him to fly to Phoenix. Prior to killing the victim, Spears accompanied the victim while she withdrew large amounts of cash and while she had the title to her truck notarized so that she could transfer it to him. Although there was no evidence that Spears forced the victim to take these actions, the evidence suggested that he lured her under the guise that they would be going away together. Rejecting the claim that the state failed to prove that Spears formed the intent to steal the victim's money and truck before he killed her, the Court found that Spears committed the murder as part of a preconceived plan to obtain her money and truck.

MITIGATING CIRCUMSTANCES:

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

Lack of Criminal History
Difficult Childhood/Family History
Model Prisoner [good conduct in jail and at trial only - not adoption of new goals]

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

Age [33 years old at time of crime]
Remorse
Family Ties
Residual Doubt
Rehabilitation/Lack of Future Dangerousness
Employment History/Military Service
Cooperation [with police]

JUDGMENT: Convictions and sentences affirmed.

State v. Roscoe (Roscoe II), 184 Ariz. 484, 910 P.2d 635 (1996)

PROCEDURAL POSTURE: The defendant's convictions were affirmed on appeal, 145 Ariz. 212, 700 P.2d 1312, but he was granted a new trial in state post-conviction relief proceedings. He was again convicted in Superior Court (Maricopa) of child molestation, kidnapping, and first-degree murder, and 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 Court found that the victim experienced both mental anguish and physical pain. "The victim was conscious when she was abducted, stripped, and bound. Roscoe forced the victim to fellate him before gagging her with her panties. The mental anguish she must have felt is unimaginable." 184 Ariz. at 500.
Physical Pain: Found. The Court found that medical testimony established that "the vaginal assault was excruciatingly painful and that the victim struggled to survive, for perhaps four to five minutes, after being strangled. Beyond any doubt, this murder was especially cruel." 184 Ariz. at 500.

Heinous or Depraved: Reversed. However, F(6) was upheld on the basis of cruelty alone.
Relishing: Reversed. "Intuitively, the nature of Laura's murder is clearly debased and perverse. But in most cases in which relishing is established, we require that the defendant say or do something, other than commission of the crime itself, to show he savored the murder." 184 Ariz. at 500. "The relishing factor is also conspicuously absent from recent child sex cases. Given the precedent and lack of evidence in the record to indicate to the contrary, we do not believe the record and our previous cases support the trial court's finding of relishing." 184 Ariz. at 500. The Court held that relishing was not established beyond a reasonable doubt.
Senselessness: Found. The Court found senselessness without elaboration, repeating its well-established rule that senselessness and helplessness alone "are usually insufficient" to establish heinousness or depravity. 184 Ariz. at 500.
Helplessness: Found without discussion. See senselessness.

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 family]
Employment History
Model Prisoner [good conduct and adoption of new goals]

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

Mental Impairment
Lack of Criminal History

JUDGMENT: Conviction and death sentence affirmed.

State v. Kemp, 185 Ariz. 52, 912 P.2d 1281 (1996)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of first-degree felony murder, armed robbery, and kidnapping. He 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 was convicted of robbery in California. The trial court found this sufficient evidence to support the (F)(2) aggravator. The defendant argued that the state failed to prove his conviction beyond a reasonable doubt. The Court rejected this argument as without merit as the defendant stipulated to his previous conviction. The defendant also argued that his prior robbery was not a crime of violence against another person. A prior conviction satisfies (F)(2) only if it involves the use or threat of violence against a person. Extrinsic evidence explaining the prior conviction is not admissible to prove that the prior conviction involved violence against a person. State v. Romanosky (Romanosky I), 162 Ariz. 217, 227, 782 P.2d 693 (1989). The Court then examined the California robbery statute and concluded that robbery includes a threat of violence against the victim. Since robbery involves the use or threat of violence, it is sufficient to support the (F)(2) aggravating circumstance.

(F)(5) (Pecuniary Gain) - UPHELD
This killing occurred during a kidnapping and the defendant was convicted of felony murder. The defendant purchased the murder weapon the day before the murder. As soon as the victim was abducted, the defendant took him to an ATM machine to withdraw cash. The Court stated that on these facts, it was clear that the murder was committed for pecuniary gain.

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

Cruel: Upheld.
Mental Anguish: Found. The victim was abducted from his apartment complex's parking lot and driven to the desert. Consciousness during the abduction, at least, is established because, at some point after his abduction, the victim provided defendant with his ATM pin number. He was killed in the desert after being removed from the truck and forced to disrobe. He died of two gunshot wounds to the back of his head, approximately 100 feet off a dirt road in the desert. Two spent bullet casings were found around the victim's body. "The only reasonable inference from these facts is that Juarez suffered incredible terror from the moment of his abduction until his murder." 185 Ariz. at 65. The Court found that the victim must have pondered his ultimate fate during these events.

Heinous or Depraved: Not addressed.

MITIGATING CIRCUMSTANCES:

The Court agreed with the trial court that the defendant failed to prove the existence of any mitigating circumstances because he did not offer any evidence or present any witnesses. The defendant sought to prove the following mitigating circumstances by a sentencing memorandum: Personality Disorder; Model Prisoner; Residual Doubt; Family Ties; Follower; and Failure to receive psychological counseling.

JUDGMENT: Convictions and sentences affirmed.

State v. Medrano (Medrano II), 185 Ariz. 192, 914 P.2d 225 (1996)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of first-degree murder, kidnapping, sexual assault, and burglary, and was sentenced to death for the murder. On direct appeal, the Arizona Supreme Court affirmed in part, reversed in part, and remanded for resentencing. Medrano I, 173 Ariz. 393, 844 P.2d 560 (1992). The trial court reimposed the death penalty and this is the defendant's automatic, direct appeal to the Arizona Supreme Court from that resentencing.

AGGRAVATING CIRCUMSTANCES:

There is no discussion of aggravating circumstances in this opinion. See Medrano I.

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
Cocaine use and history of drug abuse

JUDGMENT: Death sentence affirmed.

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