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State v. Chad Lee (Drury murder), 189 Ariz. 608, 944 P.2d 1222 (1997)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder and armed robbery, and 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
The defendant argued that (F)(1) could not apply because the murder was committed before the murder conviction for which he was sentenced here. The Court said that convictions entered prior to sentencing may be considered regardless of the order in which the underlying crimes occurred or the order in which the convictions were entered. For (F)(1) purposes, a conviction occurs upon determination of guilt.

(F)(2) (Prior Violent Felony) - UPHELD
The (F)(2) finding was upheld for the same reasons noted in State v. Chad Lee (Reynolds, Lacey murders), 189 Ariz. 590, 944 P.2d 1204 (1997).

(F)(5) (Pecuniary Gain) - UPHELD
This finding was upheld without discussion of the facts that support the finding. The facts described elsewhere in the opinion are that Lee entered a convenience store to buy cigarettes. After the store clerk opened the cash drawer, Lee took out his revolver and repeatedly shot the clerk. Lee picked up the cigarettes, took the entire cash drawer from the register and left the store. The defendant's "double-counting" challenge to the use of pecuniary gain as an aggravating circumstance was limited to his sentence for armed robbery (not the death sentence). The Court noted, however, that the legal principle is the same as in a challenge to a death sentence for felony-murder when the underlying felony is armed robbery. First, the legislature may adopt a sentencing scheme in which an element of a crime is also used for aggravation purposes. Moreover, pecuniary gain is not synonymous with robbery. "To prove robbery, the state must show a taking of property from the victim; to prove pecuniary gain, the state must show the actor's motivation was the expectation of pecuniary gain."

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

Cruel: Not addressed.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. Gratuitous violence, alone without other factors, may be sufficient to find heinousness or depravity. "After shooting Drury in the shoulder, cheek, neck, and top of the head, defendant lifted the counter top, walked around the counter, and fired two shots into Drury's right temple, just above the ear. One of the bullets went through Drury's head and into the glass cabinet next to where Drury was sitting. Because the shot downward into the top of Drury's head was unquestionably fatal, defendant's actions lifting the counter top, walking around the counter, and firing two more shots into Drury's temple constituted gratuitous violence." 944 P.2d at 1233.
Senselessness: Found. Senselessness is established when the murder is unnecessary for defendant to complete his or her objective. The victim was unarmed, but defendant claimed the victim resisted and tried to grab defendant's gun. The evidence demonstrated that the victim was shot in the shoulder and fell backward, which may have disabled the victim. The Court found that defendant could have taken the cash drawer and fled at that point, making the murder unnecessary. The killing was senseless because it was unnecessary to complete the robbery.

MITIGATING CIRCUMSTANCES:

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

Age
Lack of Criminal History
Difficult Childhood/Family History

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

Cooperation with police
Remorse

JUDGMENT: Convictions and sentences affirmed.

State v. Spreitz, 190 Ariz. 129, 945 P.2d 1260 (1997)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of first-degree murder, sexual assault, and kidnapping, 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 defendant's confession and the physical evidence at the scene discredited defendant's later claim that he killed the victim before stripping naked, beating, raping, and dragging her to her final location. Defendant's early admission was that he beat her because she was fighting back and he finally struck her with a rock when she would not stop yelling. The trial court found that evidence the victim defecated in and on her clothing was significant to the finding of mental anguish, and the Arizona Supreme Court concurred. Further, blood consistent with the victim and not defendant was found in defendant's car trunk and the scene showed drag marks and the bloody rocks used to kill the victim. The Court found that defendant brutally beat and raped the victim in an attack lasting several minutes before he crushed her skull.
Physical Pain: Found. The Court does not separate the findings of mental anguish and physical pain. See Mental Anguish.

Heinous or Depraved: Not addressed.

MITIGATING CIRCUMSTANCES:

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

Age
Lack of Criminal History
Difficult Childhood/Family History
Lack of Criminal History
Potential for Rehabilitation
Remorse

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 [mental or alcohol/drugs]
Model Prisoner [pretrial and presentence good behavior is not mitigating]

JUDGMENT: Convictions and sentences affirmed.

State v. Schackart, 190 Ariz. 238, 947 P.2d 315 (1997)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of first-degree murder, kidnapping, and sexual assault, and was sentenced to death for the murder. On direct appeal, the Arizona Supreme Court affirmed the convictions and non-capital sentences, but vacated the death sentence and remanded for resentencing, due to deficiencies in the record. State v. Schackart, 175 Ariz. 238, 858 P.2d 639 (1993). The defendant was resentenced to death and this is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - REVERSED
At the time of the murder, (F)(2) required a prior conviction of a felony in the United States involving the use or threat of violence on another person. The trial court found the existence of (F)(2) because of the defendant's prior convictions for sexual assault, kidnapping and aggravated assault. The Court found that the sexual assault and kidnapping crimes can be perpetrated by deception as well as by force, and so those crimes would not support the (F)(2) finding. Also, the state did not prove the specific subsection of aggravated assault regarding that prior conviction, so there was no proof of a conviction that necessarily involved the use or threat of violence. The Court declined to use judicial notice at the appellate level to establish the existence of aggravating factors and refused to apply the new (F)(2) factor because of the prohibition of the ex post facto clauses of the United States and Arizona Constitutions.

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

Cruel: Upheld.
Mental Anguish: Found. The Court found the four to five hours the victim was held, the presence of a gun, the sexual assault, defendant's discussion with the victim about tying her up or drugging her, defendant striking her in the head, the strangling, and the victim's uncertainty about her ultimate fate support a finding of cruelty. The medical examiner testified that the victim would have remained conscious for a minute or two after the strangling began. The Court stressed that all stranglings are not per se cruel and that all sexual assault/killing combinations do not automatically qualify under F(6). However, the facts in this case support the finding of cruelty.
Physical Pain: Found. See Mental Anguish.

Heinous or Depraved: Reversed.
Gratuitous Violence: Not found. The majority of injuries to the victim's neck and face were connected with the strangulation. Except for a broken tooth and lacerated tongue, no other evidence of violence beyond the strangling exists. The Court stated that "[w]e do not believe a single blow that chips a tooth qualifies as gratuitous violence." 947 P.2d at 326. To establish gratuitous violence, "more definitive proof of additional, severe brutality" is required. 947 P.2d at 326.
Relishing: Not found. The trial court found that "[D]uring that strangulation and prior to death, according to the pathologist, hundreds of small hemorrhages appeared in the victim's eyes and on her face as blood vessels burst . . . . With both hands on her neck and the victim face up you . . . must have watched those hemorrhages appear." 947 P.2d at 326 (quoting the trial court's special verdict). Defendant claimed that he could not have seen the hemorrhaging appear because it was nearly dark outside, the motel room lights were off, and the victim was lying face down on the bed when he strangled her. The victim's chipped tooth was found in the bed sheets, perhaps supporting defendant's claim. The medical examiner did not address when the hemorrhages appeared or the victim's position. "With nothing more in the record, we cannot say that the defendant ever saw, much less relished, the hemorrhages as he strangled the victim." 947 P.2d at 326. Further, the Court held that the ego gratification seen in other cases did not exist here because defendant turned himself in shortly after the crime and, according to the record, never boasted about the murder to anyone.
Senselessness: Found. The Court stated that the trial judge determined the killing was completely unnecessary, but the Court goes on to reaffirm that senselessness and helplessness, without more, are usually insufficient to support a finding of heinousness or depravity.
Witness Elimination: Not found. No facts in this case fit any of the three Ross categories.

MITIGATING CIRCUMSTANCES:

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

Age [21 years old at time of murder]
Cooperation
Good Character [positive activities as a youth; community activities]
Stress

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 [mental or alcohol/drugs]
(G)(2) Duress
(G)(4) Death not Reasonably Foreseeable
Model Prisoner [pretrial and presentence good behavior is not mitigating]
Military record
Remorse
Residual Doubt
Life Sentence available [this is a "sentencing option" not a mitigating circumstance]

JUDGMENT: Convictions and sentences affirmed.

Comment: The state asked the Court to consider other factors in connection with the (F)(6) aggravating circumstance, including the relationship between the victim and defendant. The victim was defendant's friend and was attempting to help defendant through a crisis in his life. "A few cases have mentioned the relationship between a defendant and a victim when evaluating aggravation, however (F)(6) has only been established where there was significantly more proof of gratuitous violence. We refuse to find [heinousness or depravity] based solely on the relationship between defendant and the victim. To do so would expand the meaning of `heinous and depraved,' thereby instituting `a regime of ad hoc sentencing, destroying the definitional consistency [and constitutionality] of our sentencing process.'" 947 P.2d at 327.

State v. Rienhardt, 190 Ariz. 579, 951 P.2d 454 (1997)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of first-degree murder, kidnapping, attempted transfer of a dangerous drug, and attempted arson of a structure. He 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 Serious Offense) - UPHELD
The trial court found beyond a reasonable doubt that the defendant had previously been convicted of a crime of violence. The Court found that the trial court incorrectly applied the old (F)(2) factor, and not the new (F)(2) factor, which was amended in 1993. The murder was committed in 1995, so the new (F)(2) factor should have been used. Accordingly, the trial court should have considered whether the prior conviction for aggravated assault constituted a serious offense. The Court here found that the prior conviction fit within the definition of serious offense, and that therefore the (F)(2) aggravator properly existed.

(F)(5) (Pecuniary Gain) - REVERSED
The victim was killed in connection with a drug deal gone awry. Rienhardt arranged to meet the victim, Ellis, and another man, Breedlove, at an apartment to purchase methamphetamines. Rienhardt gave Breedlove $1,180, with the understanding that Breedlove would return with the drugs. To secure the return of Breedlove, Ellis remained in the apartment with Rienhardt. When Breedlove did not return, Rienhardt beat Ellis and eventually took him to a remote location and killed him. The Court found that Rienhardt did not kill in expectation of pecuniary gain, but rather, he killed because he was tricked and was not going to receive the drugs he had purchased. The state did not prove beyond a reasonable doubt that Rienhardt killed to frighten Breedlove into returning the money or drugs. It is equally, if not more, plausible that he killed Ellis out of rage or frustration at being cheated. The Court distinguished State v. LaGrand, in which the Court found that LaGrand came to rob, and that desire infected all his other conduct. Here, Rienhardt "came to buy drugs, not to steal, and he killed because the seller tricked him." As reprehensible as this conduct may be, Rienhardt did not kill as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value.

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

Cruel: Upheld.
Mental Anguish: Found. Defendant took the victim hostage, threatened him, beat him, and after stating his intention, drove the victim to the desert and killed him. The victim feared for his life, as evidenced by his panicked statements to one of the captors. He endured a twenty-minute car ride to a remote location after hearing defendant state he would drive him to the desert and kill him. He further endured a severe beating at the murder scene and was alive when defendant dropped large rocks on his head to crush his skull. The Court held that the victim "suffered extreme mental anguish with respect to his ultimate fate."
Physical Pain: Found. The Court held that the victim's suffering was also physical, based on the severe beating the victim received, the defensive wounds on his hand and wrist caused by a gunshot wound, the aspiration of blood into his lungs during the beating to his head indicating that he was alive during that beating, and the crushing of his skull when large rocks were dropped on his head while he was still alive.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. Gratuitous violence exists when a defendant uses violence beyond that necessary to kill. Here, the Court found that the severe beating with the butt of a shot gun the victim received, the shooting of the victim at close range with a shotgun, and the dropping of at least one of the boulders on the victim's skull, qualified as gratuitous violence. The rage inflicted upon the victim was "shockingly evil." Although the trial court also found relishing, senselessness and helplessness, the Arizona Supreme Court only addressed gratuitous violence because gratuitous violence alone may demonstrate heinousness or depravity.

MITIGATING CIRCUMSTANCES:

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

Family Ties
Employment History

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 consumption and stress]
History of Alcohol and Drug Abuse

JUDGMENT: Convictions and sentences affirmed.

State v. Trostle, 191 Ariz. 4, 951 P.2d 869 (1997)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of first-degree murder, armed robbery, kidnapping, sexual assault and theft by control. 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 defendant's motivation in the crime was for pecuniary gain and this desire infected all of his other conduct. A significant consideration is whether the killing was part of the overall robbery scheme, or was accidental or unexpected. The defendant admitted that he and his codefendant went to the mall and waited hours to steal a vehicle. He admitted they killed the victim to delay reporting of the theft, and to eliminate the only witness. This murder was not accidental or unexpected. The murder was directly connected to the stated goal of carjacking.

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

Cruel: Upheld.
Mental Anguish: Found. The victim was confronted with a shotgun, abducted by strangers, driven for thirty minutes into the desert, threatened with the shotgun until her death, forced to walk into the desert, disrobe, and kneel down before being shot. The defendant's own statements to police confirmed that the victim begged for her life and was frightened.
Knew or Reason to Know that Victim Would Suffer: Found. The Court held that under these facts defendant knew or should have known the victim would suffer great mental anguish.

Heinous or Depraved: Reversed.
Senselessness: Found. The Court reaffirmed its holding that senselessness and helplessness alone are usually insufficient to support a finding of heinousness or depravity.
Helplessness: Found. See Senselessness.

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstances existed, and were sufficiently substantial to call for leniency in this case:

Impairment [long-term psychological damage from childhood abuse]
Age [20 years old at time of murder]
Cooperation
Family Ties
Rehabilitation [ability to function well in structured environment]
Lack of Criminal History
Remorse

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

(G)(2) Duress; (G)(3) Minor Participation; (G)(4) Death not Reasonably Foreseeable
Good Conduct during Trial; Recommendations for leniency from victim's family;
Natural Life Sentence available

JUDGMENT: Convictions and non-capital sentences affirmed. Death sentence reduced to natural life imprisonment due primarily to a finding of mental impairment.

State v. Tankersley, 191 Ariz. 359, 956 P.2d 486 (1998)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Yuma) of first-degree murder and sexual assault, 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: Not Addressed.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. See Mutilation.
Mutilation: Found. The Court found evidence of "both mutilation to the victim's body and gratuitous violence," but did not distinguish among the facts supporting each. The victim was strangled by her own oxygen tubes and was physically and sexually assaulted while still alive or at the point of death. The defendant caused feces to be smeared on the victim's body and chewed off parts of the victim's flesh while she was
still alive.
Senselessness: Found. See Helplessness.
Helplessness: Found. Defendant was a healthy male in good physical condition, while the victim was an ill, elderly woman connected to oxygen tubes, who posed no threat or harm to defendant and was wholly at his mercy.

MITIGATING CIRCUMSTANCES:

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

Impairment [alcohol use at time of murder]
Substance Abuse History
Difficult Childhood/Family History
Model Prisoner [good behavior during previous incarceration]

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

JUDGMENT: Convictions and sentences affirmed.

State v. Djerf, 191 Ariz. 583, 959 P.2d 1274 (1998)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of four counts of first-degree murder. He was sentenced to death on each count. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
The defendant argued that his real motive was revenge, not pecuniary gain. The Court upheld this finding because the defendant had forced Patricia to remove items from the home and place them in the family car. After fleeing the scene in the car, the defendant kept those items before leaving the car in a parking lot. The Court found this to be sufficient evidence to support this aggravating factor.

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

Cruel: Upheld.
Albert Luna, Sr.: The evidence showed that this victim was conscious during all or part of the beating he suffered from the baseball bat. Even if unconscious earlier, he later regained consciousness and struggled with the defendant in the kitchen. There he was stabbed with a knife that pierced his right forearm and was embedded in his torso.
Damien Luna: The defendant tried unsuccessfully to break this five-year-old victim's neck and electrocute him before ultimately shooting him in the head. He was present when the defendant told Patricia that he had killed Rochelle, and unquestionably would have been uncertain of his own fate.
Rochelle Luna. Evidence that the victim was bound indicates consciousness, as there is no need to bind an unconscious person. This victim would have suffered uncertainty as to her fate when she was forced into the bedroom, gagged and bound. Moreover, she had abrasions and contusions on her wrists indicating a struggle against the restraints before she was raped, her throat slit and stabbed nine times.
Patricia Luna. The defendant did not dispute the cruelty finding for this victim who feared for her life for hours, forced to watch the defendant kill her husband, and hear that the defendant had killed her daughter.

Heinous or Depraved: Not addressed.

(F)(8) (Multiple Homicides) - UPHELD
The Court agreed with the trial court that this aggravating circumstance exists for each of the four murders. The defendant was convicted of one or more homicides committed during the course of the murder. All four murders were spatially, temporally and motivationally related.

(F)(9) (Victim under Fifteen Years of Age) - UPHELD
The Court agreed with the trial court that the state proved beyond a reasonable doubt that Damien Luna was less than 15 years of age at the time of his murder.

MITIGATING CIRCUMSTANCES:

The Court found that there were no mitigating circumstances sufficiently substantial to call for leniency. The defendant failed to prove the existence of the following as mitigating circumstances:

Age [23 years old at time of murders]
Difficult Childhood/Family History
Remorse

JUDGMENT: Convictions and sentences affirmed.

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