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State v. Towery, 186 Ariz. 168, 920 P.2d 290 (1996)

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

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
It was undisputed that Towery was convicted of four counts of armed robbery, committed while on parole, making him eligible for a life sentence. The Court stated that these facts support a finding under both (F)(1) and (F)(2). Although the facts support a finding that both circumstances exist, a court may not give weight to both circumstances when each is supported by the same facts. See, e.g., State v. Spencer, 176 Ariz. 36, 859 P.2d 146 (1993).

(F)(2) (Prior Violent Felony) - UPHELD
The defendant was convicted or armed robbery involving the threat of violence while on parole. The Court did not discuss this other than to say that the prior conviction makes the defendant eligible for the death penalty under both (F)(1) and (F)(2).

(F)(5) (Pecuniary Gain) - UPHELD
The defendant did not dispute this conclusion by the trial court. The Court found a clear pecuniary gain motive by the defendant in his going to the victim's house, and that financial gain was the impetus for his conduct during the ensuing robbery and killing. A codefendant stated that they went to this particular house to rob, and once inside, bound the victim while they loaded up the victim's car with a television, photocopy machine, cameras, jewelry, and other items. They also took money and credit cards. The defendant injected the victim with battery acid, and then strangled him. Both codefendants then left in the victim's car and, before abandoning it, removed the compact disc player.

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

Cruel: Upheld.
Mental Anguish: Found. The victim was "conscious when the two men with a gun confronted him in his home, bound his hands behind his back, took him upstairs, asked him whether he wanted to be left tied up or put to sleep, placed him face down on his bed, and pushed his head down while pulling on the [plastic garbage container tie] to strangle him. He was conscious while defendant stabbed his arms several times to inject a mystery substance. Defendant believed [the victim] was conscious after the injections because he heard Jones snoring, pretending to be asleep, even though defendant had injected no sleeping medication. [The victim] was therefore conscious when he was strangled the first time. These events certainly caused [the victim] mental anguish about his fate . . . ." 186 Ariz. at 188.
Physical Pain: Found. Based on the above listed facts, the Court found that "the needle punctures and first strangulation caused [the victim] physical suffering." 186 Ariz. at 188.

Heinous or Depraved: Not addressed.

MITIGATING CIRCUMSTANCES:

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

Impairment [drug use]
Sentencing Disparity
Difficult Childhood/Family History

JUDGMENT: First-degree murder conviction and death sentence affirmed.

State v. Laird, 186 Ariz. 203, 920 P.2d 769 (1996)

PROCEDURAL POSTURE: Defendant was convicted in Superior Court (Maricopa) of first-degree murder, dangerous kidnapping, dangerous burglary, theft, forgery, and robbery. Defendant 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 finding was upheld without discussion of the facts supporting the finding. Laird did not challenge the finding on appeal and the Court agreed with the trial court that this aggravating circumstance exists beyond a reasonable doubt. The facts described elsewhere in the opinion are that Laird told his friends, at least two weeks before the murder, that he would be getting a blue Toyota 4x4 truck. The day before the murder, Laird ran away from his mother's home and rode his bicycle to the victim's home. He was familiar with the house because he had helped to grade the yard the month before. After the victim left to work a 12-hour night shift, Laird broke into the home and stayed until the victim arrived home the next morning. After the victim parked her truck in the garage, Laird attacked her, tied her up and ultimately strangled her, then dumped her body in the desert. Laird was arrested the next day while driving the victim's truck.

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

Cruel: Upheld.
Mental Anguish: Found. The Court found both mental anguish and physical pain, but did not distinguish among the facts supporting each. See Physical Pain.
Physical Pain: Found. Prior to the attack, defendant did not have any scratches on his hands or face. Following the attack, defendant's face and hands were scratched and showed bite marks, and his lips and knuckles were swollen. There was evidence of a struggle at the scene of the murder. A potted plant was overturned, with dirt everywhere. Yellow fibers and debris covered the floor. There were knife holes and gouges in the walls. Evidence showed that defendant "overpowered the victim and locked her in the bathroom. He hog-tied her with a yellow cord and gagged her with a sock. He reversed the lock on the bathroom door and put towels under it. Laird's blood was on the victim's bed. Laird murdered her by tightening a noose around her neck like a tourniquet. He twisted the noose with a screwdriver. She was alive when he strangled her." 186 Ariz. at 208.

Heinous or Depraved: Not addressed.

MITIGATING CIRCUMSTANCES:

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

Age [17 years old at time of murder - diminished weight because crime not impulsive]
Difficult Childhood/Family History [not substantial weight because no connection to crime]

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
Intoxication

JUDGMENT: Convictions and sentences affirmed.

State v. Hyde, 186 Ariz. 252, 921 P.2d 655 (1996)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree premeditated murder and burglary. He 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
The Court has stated that if the expectation of pecuniary gain is a motive, cause or impetus for the murder, and not merely a result, the factor may be found. It can be based on tangible evidence or strong circumstantial evidence, and need not be the exclusive cause for a murder. But it is not found where a murder has been committed and the defendant has made a financial gain merely at the same time. The murders occurred in a place of business near the end of the business day. Both victims habitually carried large amounts of cash. Money was taken from the register and probably from the victims. The defendant owed child support and told a fellow prisoner that he and the codefendant discussed their need for money before entering the market. The attempt to take the purse of one of the victims occurred before the murders. The defendant also stated that he "wouldn't deny" committing a theft in the store. Based on these facts, the pecuniary gain factor was found.

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

Cruel: Not addressed.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. Defendant confessed to beating one victim, John Lee, on the head with his Bowie knife until the victim's skull was visible and he was bleeding profusely. A second victim, Ginger Lee, was beaten to the floor by a co-defendant while defendant beat John Lee. Both victims were beaten even after they were dead and their skulls were shattered by the repeated blows. "Ginger suffered 8 such blows, and she lived long enough to inhale some blood. John Lee also sustained multiple blows to the head. The medical examiner testified that Lee probably died shortly after the attack began. In both cases, the blows were delivered with sufficient force not only to shatter the bone but to cut and tear the brain tissue by forcing the bone fragments into it." 186 Ariz. at 281. The repeated bludgeoning of both victims constituted gratuitous violence.
Senselessness: Found. "A murder is senseless if it is unnecessary for the defendant to complete his objective." After the victims were subdued, the murders were unnecessary to complete the theft.
Helplessness: Found. John Lee was seventy-two years old and small in size. Ginger Lee was fifty years old and also small like her father. Due to their age, size, and the fact that defendants had subdued them before the vicious attacks began, the Court held that both victims were helpless.
Witness Elimination: Not found. None of the Ross categories were satisfied, and therefore, the Court overturned the trial court's finding that the murders were committed to eliminate witnesses.

(F)(8) (Multiple Homicides) - UPHELD
This finding was upheld without discussion. The two victims, a father and daughter, were killed at the convenience store owned and operated by the family of the victims. The murder of each victim occurred during the murder of the other, and the defendant did not challenge the finding on appeal.

MITIGATING CIRCUMSTANCES:

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

Good Character [nonviolent person before these crimes]

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
Age [28 years old at time of crime]
Habitual Substance Abuse
Sentencing Disparity

JUDGMENT: Convictions and sentences affirmed.

State v. Miller, 186 Ariz. 314, 921 P.2d 1151 (1996)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of premeditated first-degree murder and kidnapping. 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 Court held that the victim experienced "great mental and physical suffering." Defendant was held responsible for the actions of his co-defendant from the point of giving the co-defendant a gun. "Thus, Miller is responsible for the suffering the victim experienced after being shot on Mt. Lemmon and driven down to the desert, a period of time in which Miller had the gun. The victim clearly experienced even more mental and physical anguish at the desert. She struggled to escape. By Miller's admission, he shot the victim repeatedly once they stopped." 186 Ariz. at 325.
Physical Pain: Found. See Mental Anguish.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The Court held that cutting or pulling the victim's hair out was sufficient to constitute gratuitous violence. The gratuitous violence finding in this case is unusual. There was some factual disagreement over whether the victim's hair was pulled or cut, but the State eventually stipulated that the hair had been cut. The trial court assumed at sentencing that defendant had pulled out large clumps of the victim's hair. During the sentencing, defendant interrupted to assert that the hair was cut, not pulled. The trial court stated that "whether it was cut or yanked it demonstrates a lack of humanity about somebody." On appeal, the Court agreed with the trial court, stating that "[w]hether he cut her hair or pulled it out, he inflicted injury beyond that necessary to kill." 186 Ariz. at 325. In most other cases in which the Court has found the existence of gratuitous violence, a far greater level of violence occurred.
Senselessness: Found. The trial court found senselessness and defendant did not challenge that finding.
Helplessness: Found. The Court held that the trial court's finding of helplessness was not inconsistent with its finding that the victim was attempting to escape. The co-defendant had already shot the victim when defendant approached the victim with a gun in hand. At the time defendant approached the victim, she was helpless.

MITIGATING CIRCUMSTANCES:

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

Remorse; Difficult Childhood/Family History; and Model Prisoner [became religious after arrest]

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 [intoxication]; Duress; Impulsivity; Cooperation; Follower; Lack of Criminal History; Lack of Intent to Kill; Sentencing Disparity; Intelligence; Family Ties

JUDGMENT: Convictions and sentences affirmed.

State v. Dickens, 187 Ariz. 1, 926 P.2d 468 (1996)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Yuma) of first-degree felony murder, armed robbery and conspiracy. Defendant 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
This finding was upheld without discussion of the facts supporting the finding. The facts described elsewhere in the opinion are that Dickens suggested a robbery to his young codefendant, Amaral, whom Dickens had met while working as a counselor at a placement center for violent juveniles. Dickens drove Amaral to a rest area on the interstate, waited for three hours until the victims drove into the rest area, gave Amaral a revolver and a walkie-talkie to communicate with him, and told Amaral "no witnesses." Amaral approached the victims, demanded their wallets and then shot both of the victims. Dickens picked up Amaral, then drove to the home of Dickens' brother, where Amaral removed cash, traveler's checks and a credit card, before burning the wallet and the remaining contents. The following morning, Amaral unsuccessfully attempted to use the victim's credit card. The Court noted that the (F)(5) finding is well supported by the facts and that the defendant did not challenge the finding on appeal. The Court once again rejected the argument that the (F)(5) aggravating circumstance is unconstitutional because it duplicates an element of the underlying crime of felony-murder, which is predicated on the armed robbery.

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

Cruel: Upheld.
Mental Anguish: Found. One victim, Bryan, was forced at gunpoint to relinquish his wallet and was then asked if he was ready to die. Bryan was then forced to watch the execution-style killing of his wife, followed by his own execution by a gunshot to the back of the head. After being shot, Bryan suffered consciously for at least twenty minutes until he was found by the police deputy. He was aware that he and his wife had been assaulted and shot.
Physical Pain: Found. See Mental Anguish.
Knew or Reason to Know that Victim Would Suffer: Found. The Court rejected the defendant's claim that the F(6) aggravating circumstance should not be applied to him because he did not personally murder Bryan "and thus did not inflict, intend or foresee the cruelty Bryan experienced." 187 Ariz. at 24. The Court found that the evidence established beyond a reasonable doubt that defendant did foresee or should have foreseen that a victim would suffer. Defendant "planned the murders, provided transportation to the scene, and patiently waited several hours to choose a suitable victim or victims. Defendant was admittedly intimately familiar with accomplice Amaral's violent temper and impulsiveness, yet he provided Amaral with a gun, instructed him to rob, and told him not to leave any witnesses. Defendant must have known that one victim would necessarily witness the execution of the other." 187 Ariz. at 24-25.

Heinous or Depraved: Not addressed.

(F)(8) (Multiple Homicides) - UPHELD
The defendant challenged this finding on two grounds: first, he contended that he did not know or foresee the existence of the second victim. The Court rejected this argument, saying that the (F)(8) factor requires no mental state. Second, he claimed the use of the factor violates due process and the prohibitions against double jeopardy and cruel and unusual punishment. The Court dismissed the claims, saying that it had already rejected the argument that multiple homicides as an aggravator under (F)(8) amounts to double counting.

MITIGATING CIRCUMSTANCES:

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

Difficult Childhood/Family History
Felony Murder conviction
Remorse
Family Ties

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

Impairment
(G)(3) Minor Participation
(G)(4) Death not Reasonably Foreseeable
Age [26 years old at time of crime]
Sentencing Disparity [disparity was explained because codefendant was 16 years old and entered into plea agreement]

JUDGMENT: Convictions and sentences affirmed.

State v. Soto-Fong, 187 Ariz. 186, 928 P.2d 610 (1996).

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

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
Substantial evidence demonstrated that murders were part of a plan to rob the El Grande market and were motivated by pecuniary gain. Two codefendants testified as to the pecuniary motive and at least $175.00 was missing from the market. The Court rejected Soto-Fong's claim that the large amount of money left in the store negated a finding of pecuniary gain motive. There was no evidence that Soto-Fong, despite his having been a former employee, knew about the $6,000.00 kept by the storeowner in cigarette cartons behind the counter. Detectives only fortuitously discovered this money some time after the murder. Likewise, the (F)(5) finding is not negated by the fact that none of the wallets, jewelry or monies of the victims was taken. The pecuniary gain finding "does not focus on whether the defendants were effective or thorough robbers, but on whether their motive was financial gain." Regarding testimony that the defendants intended to kill the victims even before the defendants entered the market, the Court said the "fact that the trio intended the murder in no way precludes the fact that they also intended to rob."

(F)(6) (Heinous, Cruel or Depraved) - REVERSED
The trial court made alternative findings of either cruelty because shots to the body caused pain before the shot to the head was rendered, or gratuitous violence because the shot to the head killed the victims and the subsequent shots to the body were gratuitous. The Court stated that "[w]e do not believe that an alternative finding based on a hypothetical set of facts can serve to death qualify a defendant under (F)(6). A trial court must determine whether an aggravating factor has been proven beyond a reasonable doubt. . . . The (F)(6) aggravating circumstance has several components (cruelty, heinousness, and depravity). Proof beyond a reasonable doubt of any one of them justify a finding of the (F)(6) aggravator. The circumstance is not proven if none of the individual component parts has been proven beyond a reasonable doubt. To conclude that a murder would be especially cruel or heinous if committed in an assumed manner, without evidence that it was committed in that manner, falls short of the mark."

Cruel: Reversed. The Court clarified the law regarding the consciousness of the victim in evaluating cruelty. "[T]he state's arguments on appeal in support of an (F)(6) finding of physical cruelty, appear to be based on the assumption that a murder is especially cruel whenever the victim remains conscious for some moments after being shot. We find this assumption to be flawed." 187 Ariz. at 203. The definition of cruelty is "disposed to inflict pain esp. in a wanton, insensate or vindictive manner: sadistic." 187 Ariz. at 203 (quoting Gretzler, 135 Ariz. 42, 51, 659 P.2d 1, 10 (1983)).
Mental Anguish: Not found. A murder is especially cruel if the victim suffers mental anguish by watching or hearing another person being killed. In this case, the three victims were killed in "rapid succession without any appreciable time to contemplate their fate. . . . Given the haste with which the trio exited the scene, it is unreasonable to assume that they lingered before their last shots." 187 Ariz. at 204, 205. Therefore, the trial court's finding of mental anguish as to the murders of Huang and Arriola was overturned.
Physical Pain: Not found. The Court followed "the implicit rule of Ortiz, Bishop, and Ceja, that where shots, stabbings, or blows are inflicted in quick succession, one of them leading rapidly to unconsciousness, a finding of cruelty, without any additional supporting evidence, is not appropriate."
FRED GEE: The state offered no persuasive evidence to establish that the chest wound occurred prior to the head wound, and therefore, the state did not prove beyond a reasonable doubt that this victim suffered any physical pain.
RAYMOND ARRIOLA: This victim was shot in the head and the abdomen with two different caliber bullets (.25 and .38 caliber). However, no proof beyond a reasonable doubt established the order of the shots. Therefore, physical pain was not found.
ZEWAN HUANG: This victim was shot three or four times in the head, back, chest, and arm. Testimony could not establish consciousness after the first shot, even though evidence of two different bullets (.25 caliber and .38 caliber) was present.

Heinous or Depraved: Reversed.
Gratuitous Violence: Not found. The trial court's "alternative finding" of gratuitous violence was reversed by the Court. Moreover, the Court found that shots to the body shortly after a shot to the head would probably not constitute gratuitous violence. 187 Ariz. at 205.
Senselessness: Found. However, the reversal of the gratuitous violence and witness elimination findings left only senselessness and helplessness, which alone are usually insufficient to support a finding of heinousness or depravity. The Court held that this case does not present unique or limited circumstances to call for a finding of heinousness or depravity based on senselessness and helplessness alone.
Helplessness: Found. See Senselessness.
Witness Elimination: Not found. The Court held that the first and second Ross categories witness to another crime and statement by the defendant were not present in this case. As to the third Ross category, "extraordinary circumstances," the Court found that category "requires a very high level of proof found only in the most `extreme' cases" and the present case is not "extraordinary" or "extreme." 187 Ariz. at 205. Here, the murders were part of a robbery-gone-bad when one of the victims fought back. Therefore, the Court reversed the finding of witness elimination.

(F)(8) (Multiple Homicides) - UPHELD
The defendant was convicted of the robbery-murder of three people in the El Grande market in Tucson, Arizona. The defendant challenged the constitutionality of the (F)(8) finding on the same double jeopardy grounds rejected in State v. Greenway, 170 Ariz. 155, 823 P.2d 22 (1991). The Court declined to revisit the matter.

MITIGATING CIRCUMSTANCES:

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

Age [17 years old at time of crime]
Employment history

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

Lack of Criminal History
Family Ties
Felony Murder instruction
Residual Doubt
Good Behavior at trial [not "relevant" in mitigation]
Life Sentence Available [this is a sentencing option, not a mitigating circumstance]

JUDGMENT: Convictions and sentences affirmed.

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