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 State v. Greene, 192 Ariz. 431, 967 P.2d 106 (1998)

PROCEDURAL POSTURE: The defendant was convicted in the Superior Court (Pima) of premeditated and felony murder, robbery, kidnapping, theft and forgery. The defendant was sentenced to death on the murder conviction and to terms of imprisonment for the noncapital convictions. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
The defendant had an admitted need for money, drugs and transportation at the time he encountered the victim. He testified that he was homeless and was attempting to avoid a drug dealer who had threatened him over an outstanding debt. He was hungry, tired and craving methamphetamine at the time of the killing. After the murder, the defendant was driving the victim's car and using the victim's credit cards within hours. When one comes to rob, that pecuniary motive infects all other conduct. Here, the defendant killed the victim to obtain cash or credit cards for money or drugs. [A dissenting opinion by Chief Justice Zlaket argues that not all pecuniary gain cases are alike or ought to be given the same weight. He distinguishes this case from cases where the defendant prepared a meticulous and careful plan to murder. Here, there was a lack of substantial planning or scheming. Because the evidence in this case supports only a weak pecuniary gain finding, he would have reduced the sentence to life.]

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

Cruel: Not addressed.

Heinous or Depraved: Reversed
Relishing: Not found. Relishing refers to conduct which shows debasement or perversion and indicates that the defendant savored the murder. The trial court found relishing based on a statement by the defendant and several letters written by him. His statement was that he had "clubbed a faggot." This language is insufficient to support a relishing finding. Similarly, the defendant's display of the victim's driver's license did not indicate his enjoyment of the crime or that the license was a souvenir. The defendant merely showed the license to the witness to counter the witness' disbelief that the defendant had killed someone. Approximately one month after his arrest, the defendant wrote a letter stating that he "was the wrong white boy to be picked up by a faggot who ended up with his fuckin' skull caved in." While this showed a tremendous lack of remorse and constituted bragging, it did not show beyond a reasonable doubt that the defendant enjoyed the killing or what his state of mind was at the time of the murder. In another letter written two weeks after his conviction, the defendant wrote "convicted murderer" and "death row alley" below his signature. Again, while this demonstrates extraordinary callousness and lack of remorse, it does not prove that he relished the killing at the time of the murder.
Senselessness: After the Court reversed the relishing finding, it merely stated that senselessness and helplessness without more are ordinarily insufficient to sustain a finding of heinousness or depravity.
Helplessness: After the Court reversed the relishing finding, it merely stated that senselessness and helplessness without more are ordinarily insufficient to sustain a finding of heinousness or depravity.

MITIGATING CIRCUMSTANCES:

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

Education
Lack of Criminal History
Family Ties [effect of execution on the defendant's children]

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 [drug use and withdrawal]
Impairment [drug use and withdrawal]
Difficult Childhood/Family History
Remorse
Good Character
Family Ties [did not have good marriage or healthy family life]
Employment History
Potential for Rehabilitation

JUDGMENT: Kidnapping conviction reversed. All other convictions and sentences affirmed.

State v. Doerr, 193 Ariz. 56, 969 P.2d 1168 (1998)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder, sexual assault, and kidnapping, and was sentenced to death for the murder. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

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

Cruel: Upheld. Cruelty focuses on the victim's pain and suffering before death. The medical examiners could not specifically state the sequence of injuries or when she lost consciousness, however, the physical evidence indicated extreme pain and mental anguish. The victim had bruising and swelling on her arms consistent with defensive actions and hair clenched in her fist. Her nose had been broken, and she had cuts on her lip. She bled extensively from her vagina and rectum, which indicated wounds prior to or during death. In total, she had twenty-six other injuries to her body. Furthermore, the physical evidence at the crime scene showed her bloody footprint on the bathtub and bloody hair swipes on the walls and other surfaces. These and other findings suggest a violent struggle. A neighbor heard a female screaming at 3:30 that morning. All of this supports a finding of pain and extreme cruelty.

Heinous or Depraved: Upheld
Relishing: Found. A relishing finding requires something other than the crime itself to show that the defendant savored the murder. The testimony at trial of the defendant's cellmate reiterating the defendant's description of playing with the victim's blood was sufficient for the trial court and for this Court to find that the defendant relished this murder.
Mutilation: Found. Mutilation involves the purposeful severing of body parts distinct from the killing itself. Here, the victim's left nipple was cut off and marks above the right nipple suggested an attempt to amputate it as well.
Gratuitous Violence: Found. This is defined as violence beyond that which is necessary to kill. The medical examiner testified that the victim died of multiple blunt force trauma. In addition, she was sodomized with a metal pipe and a broom handle such that her rectal and vaginal cavities were ruptured. Her nose was fractured and face beaten so severely that family members could not identify her. One laceration was so deep it exposed the skull. The victim also suffered numerous knife slashes, bruises and injuries beyond that necessary to kill.

MITIGATING CIRCUMSTANCES:

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

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:

(G)(1) Significant Impairment [organic brain damage and intoxication]
Impairment to some degree [brain damage or intoxication]
Low Intelligence
Cooperation

JUDGMENT: Conviction and sentence affirmed.

State v. Sharp, 193 Ariz. 414, 973 P.2d 1171 (1999)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Cochise) of first- degree premeditated murder and felony murder, kidnapping and sexual assault. He was sentenced to death on the murder convictions and to terms of imprisonment on the noncapital convictions. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

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

Cruel: Upheld. The trial court found cruelty based on the great physical and emotional pain suffered by the victim when she was sexually assaulted and murdered. The victim here was conscious and suffered physical pain while she was brutally beaten, sodomized and strangled. The victim had defensive wounds and scratched the defendant in an effort to defend herself. This shows that she anticipated her fate and suffered mental anguish during the attack.
Mental Anguish: Found.
Physical Pain: Found.

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:

Difficult Childhood/Family History [given little weight because uncorroborated]
History of Drug and Alcohol Abuse [given little weight because uncorroborated]
Lack of Criminal History [given little weight because of long misdemeanor 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 ["agitated delirium" from alcohol/drug use]
Age [24 years old at time of murder]
Felony Murder instruction [found guilty of premeditation - clearly had intent to kill]
Police negligence [not relevant in mitigation]

JUDGMENT: Convictions and death sentence affirmed.

State v. Todd Lee Smith, 193 Ariz. 452, 974 P.2d 431 (1999)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Coconino) of two counts of first-degree murder, both felony and premeditated murder for each count, armed robbery and first-degree burglary. He was sentenced to death for the murder convictions, and to consecutive eighteen-year sentences for the noncapital crimes. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
It is undisputed that the defendant went to the victims' trailer to rob. He had no money and no job. He was armed with a knife and a gun. He attacked the victims, stole their property, beat them and slit their throats. His desire for pecuniary gain infected all his other conduct, and he killed the victims when he believed that they were resisting his efforts to rob them. The defendant argued that his only motive was to rob and that he killed the victims only after they attempted to resist him, and that this aggravator should not apply in this situation. He cited no authority for that proposition and the Court rejected it.

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

Cruel: Upheld (as to Mrs. Tannehill). The trial court found that the state had proven cruelty beyond a reasonable doubt for Mrs. Tannehill, but not for Mr. Tannehill. The Court here agrees with that ruling. The evidence did not establish that Mr. Tannehill was conscious after the initial blows to his head. A surgically implanted plastic plate in Mr. Tannehill's head was shattered in the attack, but the medical examiner could not pinpoint when during the attack this would have occurred. It could have happened with the first blow, rendering the victim unconscious or killing him outright. This victim did not have any defensive wounds. Thus, there was insufficient evidence to prove cruelty for Mr. Tannehill. However, there was sufficient evidence to prove cruelty for Mrs. Tannehill. The defendant stated that he only knocked her down initially. She had defensive wounds indicating that she was alive during the attack and had the opportunity to fear for her life and her disabled husband's life. She would have watched as her elderly husband tried to defend them by grabbing at the defendant's gun. She would have seen the defendant beat her husband with the gun before she herself was beaten. The defendant himself stated that he beat her again when he saw her getting up from the first beating. Cruelty can be found where the victim experiences mental anguish over the uncertainty of her own fate, and where a victim witnesses the killing of a family member before she herself is killed.

Heinous or Depraved: Not addressed

(F)(8) (Multiple Homicides) - UPHELD
The defendant did not challenge the trial court's (F)(8) finding. The defendant killed two people at the same time and in the same location.

(F)(9) (Victim Seventy or More Years of Age) - UPHELD
The defendant argued that this aggravating circumstance is unconstitutional because it considers whom the victim killed as opposed to the propensities of the defendant. However, the defendant cited no authority to support this proposition. The Court found the age of the victim to have a rational basis, and therefore, is an appropriate aggravating circumstance. By adopting the (F)(9) circumstance, the legislature determined that the young and the old are especially vulnerable, should be protected, and their murders are more abhorrent than other first-degree murders. This information is relevant to the propensities of the defendant because those who prey on the very young or the very old are more dangerous to society than other murderers. The defendant does not dispute the finding that both victims were more than seventy years old.

MITIGATING CIRCUMSTANCES:

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

Mental impairment [not "significant" impairment]
Behavioral and personality disorders
Long-term effect of head injuries
Chronic substance abuse
[long-term addiction]
Lack of criminal history
Cooperation with law enforcement
Family ties
[love for his son]
Good conduct in court hearings
Newfound religious beliefs

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

(G)(1) - Significant Impairment - [Mental or Alcohol/Drugs]

JUDGMENT: Convictions and sentences affirmed.

State v. Medina, 193 Ariz. 504, 975 P.2d 94 (1999)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder, burglary and aggravated robbery. 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 (F)(2) finding was upheld without discussion.

(F)(5) (Pecuniary Gain) - REVERSED
The Court pointed to the fact that the victim still had money in his pocket and his car was not stolen after the murder. The victim was incapacitated from the beating and could not have prevented the taking of his car or radio. While the reason for the beating may have been a desire to steal, it does not necessarily follow that the same is true for the murder. It is just as likely that the defendant drove over the victim for amusement. "The existence of an economic motive at some point during the events surrounding a murder is not enough to establish (F)(5). There must be a connection between the motive and the killing." Note, however, a dissent from Justice Martone regarding the pecuniary gain aggravating circumstance.

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

Cruel: Upheld. The victim's cries right before being run over by the defendant's car indicated both physical and mental pain and suffering.

Heinous or Depraved: Upheld.
Relishing: Found. The defendant's laughter and joking about driving over speed bumps shortly after the murder, and looking forward to the publicity generated by his crime indicated that he relished it.
Gratuitous Violence: Found. The medical examiner testified that the victim had been run over twice by a car, and that he died after the first pass. The defendant told his girlfriend that he had run over the victim three times and that the victim's head turned a different way with each pass.
Mutilation: Not found. The trial court found mutilation from the defendant running over the victim. This is the same conduct that caused the murder. The Court did not find a separate purpose to mutilate, apart from the killing itself.
Senselessness: Found. This murder served no rational purpose, was without an apparent motive, and the victim posed no threat to the defendant. The Court agreed with the trial judge that the murder was senseless.
Helplessness: Found. The victim was intoxicated at the time of the killing. His attackers were much younger and stronger. The Court found helplessness because the victim could not realistically defend himself.

(F)(9) (Victim Seventy Years of Age or Older) - UPHELD
The victim was seventy-one years of age at the time of his death. Defense counsel's argument that this was not proven beyond a reasonable doubt was dismissed as being without merit where two witnesses testified to the victim's age, the defendant did not dispute this testimony at trial, and the defendant admitted the victim's age in his sentencing memorandum. More significantly, the defendant argued that the (F)(9) aggravator should only apply where the state proves that the defendant was aware of the victim's age. He points to the (F)(10) aggravator, which specifically requires that the defendant be aware of the victim's status. The Court disagreed, noting that the plain language of the statute does not include knowledge as one of its elements. The defendant also argued that the trial judge double counted the victim's age in determining that this murder was senseless under (F)(6). The Court again disagreed, not only presuming that the trial judge correctly followed the law in considering the victim's age only once in sentencing the defendant, but also finding that there were no specific allegations to support the trial judge having considered the victim's age inappropriately.

MITIGATING CIRCUMSTANCES:

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

(G)(1) Significant Impairment [alcohol and drug use at time of crime]
Personality Disorders
Age [18 years old at time of murder]
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:

Rehabilitation/Lack of Future Dangerousness
Remorse
Gang Membership
Death Penalty is disproportionate to life sentences given in other cases

JUDGMENT: Convictions and sentences affirmed.

State v. White ( White II), 193 Ariz. 344, 982 P.2d 819 (1999)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Yavapai) of first-degree murder and conspiracy to commit first-degree murder. He was sentenced to death on the murder count. On appeal, the convictions and sentences were affirmed. State v. Michael White (Michael White I), 168 Ariz. 500, 815 P.2d 869 (1991). In 1992, the defendant petitioned for post-conviction relief. In 1995, he filed an amended petition. The trial court granted the defendant a new sentencing hearing on his ineffective assistance of counsel claim. At that resentencing, the defendant again received the death penalty on the murder conviction. This is his automatic, direct appeal from that resentencing to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
The defendant argued at his resentencing that he was not motivated by the life insurance proceeds, but by his love or infatuation for codefendant Susan Johnson, the victim's wife. The Court found "clear and forceful evidence of the defendant's involvement in a calculated scheme to take the life of David Johnson in order to achieve pecuniary gain."

MITIGATING CIRCUMSTANCES:

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

Recommendation for leniency [by Prosecutor]
Model Prisoner
Acceptance of life in prison
Lack of criminal history

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

Sentencing Disparity [the disparity was explained]
Potential for Rehabilitation / Lack of Future Dangerousness
Aberrant Behavior
Prosecutorial Policy of Yavapai County Attorney's Office

JUDGMENT: Convictions and sentences affirmed.

State v. Van Adams, 194 Ariz. 408, 984 P.2d 16 (1999)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder, kidnapping, attempted sexual assault, and second-degree burglary. He was sentenced to death for the murder. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Serious Offense) - UPHELD
The defendant was previously convicted of assault with intent to commit rape in California. The Court looked to the statutory definition of that crime in California to determine that it meets the definition of sexual assault in Arizona, and therefore, constitutes a serious offense under Arizona law. The Court found sufficient evidence that the State satisfied its burden of proof on this aggravating circumstance. The victim of that prior crime testified at the trial of this case in which she identified the defendant as the person who had attacked her in California. The Court agreed with the defendant that the trial court should not have considered her testimony to establish the prior conviction, but found no reversible error.

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

Cruel: Upheld
There was significant evidence that a struggle took place between the victim and her assailant. There were damaged candles and candlesticks in the bathroom, buttons and semen stains in the closet, bruises on the victim's neck, the defendant had a black eye and a facial injury, paint and ceramic chips in the bathroom and the bed, the victim's torn and knotted clothing, and injuries on her hands and wrists. There was also medical testimony that it takes from ninety seconds to two or three minutes for a strangulation victim to lose consciousness and that some of her injuries were inflicted prior to her death.

MITIGATING CIRCUMSTANCES:

The defendant refused to present mitigation evidence, stating that he voluntarily waived his right to do so, and that he was instructing his counsel not to do so. He also instructed his family not to cooperate with his counsel's efforts to investigate his background. Despite the defendant's refusal to cooperate in presenting mitigation, defense counsel advised the trial judge that the defendant planned a reconciliation with his wife and child. [See also Family Ties section]. This sole mitigating circumstance offered by defense counsel did not outweigh the aggravating circumstances of especial cruelty and a prior serious offense.

JUDGMENT: Convictions and sentences affirmed.

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