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State v. Hurles, 185 Ariz. 199, 914 P.2d 1291 (1996)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder and 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. The Court found the victim was conscious based on evidence that she tried to reach a phone, later responded to paramedics who treated her at the scene, and a witness who saw her directly after the attack spoke to her before calling 911. The Court found that the victim must have suffered "great terror." 185 Ariz. at 207.
Physical Pain: Found. The Court found that the victim suffered "great pain" during the attack. The victim endured fifteen defensive stab wounds to her hands, eight stab wounds to her head, twelve stab wounds to her torso, and two stab wounds to her lower extremities. The victim further suffered blunt force trauma, which tore her liver. The Court found this "barrage of violence" to be "above the norm of even first-degree murder, leaving no room to doubt that this murder was especially cruel." 185 Ariz. at 207.

Heinous or Depraved: Not addressed.

MITIGATING CIRCUMSTANCES:

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

Difficult Childhood/Family History
Model Prisoner [good behavior]

JUDGMENT: Conviction and sentence affirmed.

State v. Gallegos (Gallegos II), 185 Ariz. 340, 916 P.2d 1056 (1996)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first degree murder and sexual conduct with a minor. He was sentenced to death on the murder conviction. In State v. Gallegos (Gallegos I), 178 Ariz. 1, 870 P.2d 1097 (1994), the Arizona Supreme Court remanded to the trial court for resentencing. At resentencing, the trial court again imposed the death penalty. This is the defendant's automatic, direct appeal from that resentencing to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(6) (Heinous, Cruel or Depraved) - UPHELD
The Court upholds this finding without discussion. For a complete discussion, see Gallegos I, 178 Ariz. 1, 870 P.2d 1097 (1994).

(F)(9) (Victim under Fifteen Years of Age) - UPHELD
The (F)(9) finding was upheld without discussion. See facts of the case noted in the earlier appeal of this case in Gallegos I, 178 Ariz. 1, 870 P.2d 1097 (1994).

MITIGATING CIRCUMSTANCES:

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

Age [18 years old at time of crime]
Impairment [intoxication]
Substance Abuse History
Remorse
Recommendations 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
Lack of Criminal History
Lack of Intent to Kill

JUDGMENT: Death sentence affirmed.

State v. Danny Jones, 185 Ariz. 471, 917 P.2d 200 (1996)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Mohave) of two counts of premeditated first-degree murder and one count of attempted premeditated first-degree murder. The defendant was sentenced to death for each murder. This is defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
After reiterating its position that a trial court may not find pecuniary gain in every case in which a person has been killed and the defendant has made a financial gain, the Court rejected Jones' claim that insufficient evidence supported the finding that his motive for the murders was pecuniary gain. Ample evidence showed that Jones killed the victims, Robert Weaver and his daughter, Tisha, as part of a plan to steal Robert's gun collection and leave Bullhead City. Jones was a friend of Robert's and knew about his gun collection. Jones was not working, had very little money and, on the day before the murders, was told that he must move out of a friend's residence. Jones wanted to leave Bullhead City because he knew that warrants were pending for his arrest. While Jones and Robert were talking in Robert's garage, Jones attacked him and beat him with a baseball bat. Jones entered the house where the gun collection was kept, attacked Robert's grandmother and daughter with the baseball bat, emptied the gun cabinet and departed in the grandmother's car. He left the car at a Bullhead City hotel, took a taxi to Las Vegas and paid the taxi driver with one of Robert's guns. He later sold most of the remaining guns from Robert's collection.

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

Cruel: Upheld.
Mental Anguish: Found. The Court held this factor applied to both murders.
ROBERT WEAVER: The Court found that "after the initial blows, Robert fell to the ground, where he remained unconscious and bleeding for at least 10 to 15 minutes. Robert then moved between the garage door and Katherine Gumina's car, leaving a bloody handprint smeared across the length of the garage door and blood on the side of the car, and climbed on top of a work bench, leaving blood along the east wall. This evidence is sufficient to establish that Robert regained consciousness and experienced pain and uncertainty about his fate and thus is sufficient to uphold the trial court's finding of cruelty." 185 Ariz. at 487.
TISHA WEAVER: The Court found that Tisha had time to contemplate her ultimate fate because she was aware that her great-grandmother had been attacked, and she struggled with defendant. The Court relied on the following evidence: "(1) although Tisha was wearing pajamas when the police discovered her body, the beds were still made and she had not yet gone to bed when the murders occurred; (2) a child's workbook and colored pencils were in the living room; (3) Tisha's body was under the master bedroom bed with her legs spread and marks on the carpet indicating that she had been pulled out from under the bed; and (4) the police found a black bracelet, similar to one that defendant had been seen wearing, next to Tisha's head." 185 Ariz. at 487. The Court found this evidence supported the finding that Tisha was conscious when the murders occurred, she hid out of fear, and she struggled with defendant and pulled the bracelet off of him. The Court held that she experienced uncertainty about her ultimate fate, supporting cruelty.
Physical Pain: Found as to Robert Weaver. See mental anguish.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found as to both murders.
ROBERT WEAVER: Expert testimony indicated that "after the initial blows, Robert regained consciousness, attempted to flee, and climbed on top of a work bench. . . .[W]hile Robert was on the work bench, defendant struck him at least two additional times in the head with the baseball bat, and as he fell to the ground, defendant struck him in the head at least once more." 185 Ariz. at 488. Since each blow was capable of causing death, the Court found gratuitous violence beyond a reasonable doubt.
TISHA WEAVER: The Court found that Tisha was hit twice in the head with a baseball bat, a pillow was placed over her head, and she was suffocated, strangled, or both. 185 Ariz. at 488-89. The evidence supported a finding of gratuitous violence because the head injuries were sufficient to kill Tisha. "[D]efendant had struck Tisha with the baseball bat with sufficient force to create a wound several inches wide, extending from her left ear to her left cheek. He then struck her a second time on the back of her head. After delivering these two fatal blows, defendant then asphyxiated her, far exceeding the amount of violence necessary to cause death." 185 Ariz. at 489.
Senselessness: Found as to both murders.
ROBERT WEAVER: The Court found that initial blows knocked Robert unconscious. Defendant could have taken the guns without killing Robert.
TISHA WEAVER: The Court found senselessness because Tisha was a seven-year-old child and in no way an obstacle to defendant's goal of taking guns.
Helplessness: Found as to both murders.
ROBERT WEAVER: The Court found that after the initial blows rendered Robert unconscious, he was helpless against defendant. Even after recovering consciousness and attempting to flee, the Court found that he would have been physically unable to stop defendant from taking the guns and the victim was, therefore, helpless.
TISHA WEAVER: The Court found her to be a seven-year-old, helpless victim, but did not elaborate further.
Witness Elimination: Reversed. The trial court found defendant murdered Tisha Weaver to eliminate her as a witness. The Arizona Supreme Court reversed, finding "there is no clear evidence of the sequence of the homicides, and we cannot determine conclusively whether Tisha directly witnessed the attack on Ms. Gumina." Therefore, the first Ross category was not satisfied. The second and third Ross categories were not satisfied because defendant made no statements that the murder of Tisha was for the purpose of witness elimination, and there were no extreme circumstances pointing to witness elimination as a motive.

(F)(8) (Multiple Homicides) - UPHELD
The (F)(8) finding was upheld without discussion. The defendant was convicted of killing two people in the same house and at the same time. The defendant did not contest the finding on appeal.

(F)(9) (Victim under Fifteen Years of Age) - UPHELD
The defendant was an adult and one of the murder victims was under fifteen years of age.

MITIGATING CIRCUMSTANCES:

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

Impairment [alcohol use at time of crime]
History of Substance Abuse
Head Injuries [may have caused behavioral disorders]

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
Difficult Childhood/Family History
Rehabilitation/Lack of Future Dangerousness
Recommendations for leniency
Remorse

JUDGMENT: Convictions and sentences affirmed.

State v. Darrel Lee, 185 Ariz. 549, 917 P.2d 692 (1996)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (La Paz) of first-degree murder, kidnapping, theft, armed robbery, and credit card theft, and was sentenced to death for the murder. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - UPHELD
The defendant was previously convicted or robbery in Arizona. The Court found that the robbery statute requires the use or threat of violence on another person. The Court rejected the defendant's reliance on State v. Fierro, 166 Ariz. 539, 804 P.2d 72 (1990), and the claim that the (F)(2) aggravating circumstance was unconstitutionally vague.

(F)(5) (Pecuniary Gain) - UPHELD
Ample evidence supported the trial court's finding that this murder was committed to hinder detection so that Lee and his female accomplice could continue using the victim's car and credit cards. Lee and his accomplice asked the victim for a ride, got into his car and demanded his wallet, which contained cash, credit cards and an ATM card. The victim was tied up, placed in the trunk of the car and, during the next several days, was driven back and forth between Phoenix and California, while Lee and his accomplice repeatedly used the ATM and credit cards. After the victim twice escaped and attempted to flee, Lee and his accomplice killed the victim, placed the body in the trunk of the car, and eventually buried the body. The Court reiterated that to establish the (F)(5) aggravating circumstance, the state must prove that the receipt of pecuniary gain was a cause of and a motivation for the murder, not just a result of it. However, as the Court previously noted in State v. Rockwell, 161 Ariz. 5, 14, 775 P.2d 1069, 1078 (1989), "[e]ven if [defendant] shot the victim after the money was taken . . ., the murder was part and parcel of the robbery because it resulted in eliminating the only witness to the crime."

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

Cruel: Upheld. Without comment, the Court held that A.R.S. 13-751(F)(6) is not unconstitutionally vague as applied in this case.

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
(G)(4) Death not Reasonably Foreseeable
Felony Murder/Lack of Intent to Kill
Rehabilitation/Lack of Future Dangerousness

JUDGMENT: Murder conviction and death sentence affirmed.

State v. McKinney (and State v. Hedlund), 185 Ariz. 567, 917 P.2d 1214 (1996)

PROCEDURAL POSTURE: The defendants were convicted in the Superior Court (Maricopa) of first-degree murder and sentenced to death. This is their automatic, direct appeal to the Arizona Supreme Court. McKinney was convicted of two counts of first-degree murder. Hedlund was convicted of one count of first-degree murder and one count of second-degree murder. The murders took place during a series of residential burglaries. Dual juries were ordered by the trial judge in this case. That order was the subject of a special action in the Court of Appeals, 171 Ariz. 566, 832 P.2d 219 (1992), which vacated the order of the trial judge and remanded. A petition for special action to the Arizona Supreme Court was filed, 173 Ariz. 143, 840 P.2d 1008 (1992), and that Court found the decision to impanel a dual jury was not a local rule and did not exceed the trial judge's authority. The opinion of the Court of Appeals was vacated and the order of the trial court affirmed.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - REVERSED
Hedlund was convicted of second-degree murder at the same time he was convicted of first-degree murder. The two crimes occurred several weeks apart, but the counts were consolidated for trial. He challenged the trial court's finding of the second-degree murder conviction as sufficient to support the (F)(2) aggravator. A conviction occurs when the jury renders its verdict. Convictions entered prior to the sentencing hearing may be considered regardless of the order in which the convictions were entered. State v. Richmond (Richmond II), 136 Ariz. 312, 318-19, 666 P.2d 57, 63-64 (1983). This defendant's second-degree murder conviction occurred when the jury returned its verdict and prior to his capital sentencing hearing. Therefore, it could be used as an (F)(2) aggravating circumstance. The Court then examined whether the prior conviction was for a crime of violence. Looking to the statute and not to the facts of the prior case, the statute in question contains a subsection that makes a conviction for second-degree murder possible based on reckless behavior. Thus, the prior conviction does not qualify as a crime of violence. The Court noted that this problem is now moot, as the amendment to (F)(2) now delineates all degrees of second-degree murder as a "serious offense" and thus would qualify as an aggravator under (F)(2).

(F)(5) (Pecuniary Gain) - UPHELD
Simply receiving profit from a murder is insufficient to satisfy this aggravating factor, but killing for the purpose of financial gain is enough. Here, the murders took place during a burglary spree where the purpose of the burglaries was to find money or items to sell. Items stolen from the residence of one of the victims were in fact sold. Here, pecuniary gain was the primary, if not the sole, purpose of the murders.

MITIGATING CIRCUMSTANCES:

The Court found that McKinney proved the existence of the following mitigating circumstance, but it was not sufficiently substantial to call for leniency: Difficult Childhood/Family History

The Court found that Hedlund proved the existence of the following mitigating circumstance, but it was not sufficiently substantial to call for leniency: Difficult Childhood/Family History

The Court found that Hedlund failed to prove the existence of the following as mitigating circumstances:

Impairment [mental or alcohol use]
(G)(3) Minor Participation

JUDGMENT: Convictions and sentences affirmed.

State v. Miles, 186 Ariz. 10, 918 P.2d 1028 (1996)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of first-degree murder, dangerous kidnapping, and dangerous armed robbery. 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 stipulated at trial that he had previously been convicted of three dangerous felonies (armed robbery) and did not challenge the (F)(2) finding on appeal.

(F)(5) (Pecuniary Gain) - UPHELD
A codefendant told the defendant that they were getting the murder weapon to obtain money. Directly before the carjacking and abduction of the victim, codefendant Jackson told the defendant that he was "gonna get somebody's car, take'em off in the middle of the desert and shoot them." In addition, hours after the murder the defendant was driving the victim's car and using her ATM card. He took the car to Phoenix and told a friend that the car belonged to him. He also used her credit card and withdrew money from the victim's bank account. After crashing the victim's car, the defendant was apprehended and had in his possession the victim's jewelry, bank and credit cards.

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

Cruel: Upheld.
Mental Anguish: Found. "Miles participated extensively in the kidnapping and abduction. He went to get the gun, drove in the car, held the gun during the drive to the desert, and stood nearby while Jackson shot [the victim]. During the 25-30 minute drive, Miles described the victim as `scared to death.' At the scene of the murder, Miles said he heard her cry and plead for her life." 186 Ariz. at 17 (citation omitted). Defendant watched the victim drop to her knees as Jackson shot her.
Knew or Reason to Know that Victim Would Suffer: Found. The Court found that the victim's suffering was foreseeable and the murder was especially cruel.

Heinous or Depraved: Reversed. After reversing the witness elimination factor, only senselessness and helplessness remained. The Court determined that in this case, senselessness and helplessness were not sufficient to substantiate heinousness and depravity as to defendant Miles.
Senselessness: Found. The murder was not necessary to take the victim's money and car.
Helplessness: Found. "The victim was unarmed and shoeless. She was outnumbered 3 to 1 and did not resist. The evidence showed that the bullet first passed through her forearm before it pierced her heart. This is consistent with the finding that she had her hands up in a defensive position before she was shot."
Witness Elimination: Not found. No evidence exists to satisfy the Ross categories.

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstances existed, but were insufficiently substantial to call for leniency. The Court did not provide any discussion of these circumstances, but listed them as nonstatutory mitigating circumstances and noted that the state did not contest these findings:

Felony Murder conviction
Good Character [reputation for nonviolence]
Remorse
Family and personal situation [mother died, separated from wife and child, lost his job]

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 [drug use]

JUDGMENT: Convictions and sentences affirmed.

State v. Jackson, 186 Ariz. 20, 918 P.2d 1038 (1996)

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

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
Jackson did not challenge the (F)(5) finding on appeal and conceded at oral argument that his motivation for committing the murder was to steal the victim's car and valuables. The Court agreed, without an extensive discussion of the facts supporting the finding. Jackson and two accomplices carjacked the victim, drove her to the desert, ordered her out of the car, shot and killed her, and then drove away with her car and purse. See also, State v. Miles, 186 Ariz. 10, 918 P.2d 1028 (1996) (the codefendant's appeal).

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

Cruel: Upheld.
Mental Anguish: Found. The victim was scared during a twenty-five to thirty minute drive into the desert and "repeatedly begged her captors not to hurt her." 186 Ariz. at 29. "At the scene of the murder, the victim got on her knees and continued to plead for her life. Jackson drew the gun down on her 3 times, walked back to the vehicle several feet away and then returned to the victim. Each time, within the hearing of the victim, Jackson spoke to Miles and Hernandez about her fate. On his third trip back to the victim, she stood and had her hands in the air in a defensive posture. The victim begged for her life. Jackson then shot her in the chest." 186 Ariz. at 29.

Heinous or Depraved: Upheld.
Relishing: Found. According to co-defendant's testimony, immediately following the murder, defendant sang a song. On the drive back to Tucson, defendant twice told his co-defendants that he wanted to do it again. Upon encountering a bicyclist, defendant said, "Lets jack this guy right here." Later, while passing a woman jogging, defendant said, "Lets jack her, too." 186 Ariz. at 30.
Senselessness: Found. The victim was driven into the desert, forced to remove her shoes, jacket, and briefly, her pants. Defendant could have gotten away with the victim's car without immediate detection, and the theft of the victim's vehicle could have been accomplished without the murder.
Helplessness: Found. The victim was unarmed, with no shoes or jacket, did not resist, and was outnumbered three to one. The bullet passed through her forearm before entering her chest, showing that her arms were in a defensive posture.
Witness Elimination: Not found. The Court held that there was no evidence to support a finding of witness elimination under the Ross categories.

MITIGATING CIRCUMSTANCES:

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

Age [16 years old at time of murder - but diminished 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:

Sentencing Disparity [disparity was justified by relative culpability of parties]

JUDGMENT: Convictions and sentences affirmed.

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