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State v. Kayer, 194 Ariz. 423, 984 P. 2d 31 (1999)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Yavapai) of first-degree murder and was sentenced to death. 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 first-degree burglary, which is one of the enumerated "serious" offenses in A.R.S. §13-751 (I). The state presented documentation of the 1981 first-degree burglary conviction, which was sufficient to prove the existence of the (F)(2) aggravating circumstance.

(F)(5) (Pecuniary Gain) - UPHELD
The Court found sufficient evidence to support the pecuniary gain finding in this case. Witnesses heard the defendant continually bragging about his gambling system and observed his addictive behavior of constantly wanting money with which to gamble. The codefendant testified that the defendant planned to rob and then kill the victim. The defendant took the victim's money, credit cards and personal items from the crime scene. After the murder, the defendant took the victim's house keys and stole additional property from the house. Pawnshop receipts and witness testimony established that the defendant sold virtually all of the victim's jewelry and guns.

MITIGATING CIRCUMSTANCES:

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

Family Ties [importance in the life of his 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 [mental illness and intoxication]
Intoxication
Impairment [bipolar or manic depressive condition]
Military Service
Sentencing Disparity

The Court found that the following were not mitigating circumstances:

Medical Problems [post-murder physical health]
High Intelligence
Cost of execution
Ability to contribute to society

JUDGMENT: Convictions and sentences affirmed.

State v. Robert Jones, 197 Ariz. 290, 4 P.3d 345 (2000)

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

AGGRAVATING CIRCUMSTANCES:

(F)(1)(Prior Life or Death Felony) – UPHELD

The defendant was convicted of two killings at the Moon Smoke Shop and four killings at the Fire Fighters Union Hall. Because he was convicted of all six murders prior to sentencing, and because each set of murders provides a sufficient basis for finding the circumstance as to the other set of murders, the Court found (F)(1) proven beyond a reasonable doubt. The defendant did not challenge this finding on appeal.

(F)(2)(Prior Serious Offense) – UPHELD

The Court found this aggravating circumstance satisfied by the defendant’s convictions on three counts of aggravated assault, three counts of armed robbery, and two counts of first degree burglary. Because the defendant was convicted of these serious offenses before the sentencing phase, each offense provided sufficient grounds for satisfying (F)(2) for the murder offenses. The trial judge was careful not to consider the murder convictions for (F)(2) as they had already been considered in the (F)(1) determination.

(F)(5)(Pecuniary Gain) – UPHELD

Ample evidence showed the defendant and his codefendant intended to rob and murder their victims. The defendant shot one victim as he entered the Moon Smoke Shop. The codefendant hunted down and shot a second victim who was trying to escape. The defendant also attempted to shoot the remaining witnesses. This indicates that the codefendants began the robbery intending to murder anyone who happened to be in the store at the time. Likewise, in the second robbery, the victims were all shot execution style, although none challenged the defendants. These were not "robberies gone bad." The codefendants committed the murders to facilitate the robberies and then escape punishment. The Court rejected the defendant’s argument that (F)(5) was unconstitutional because it included ordinary robberies and thus did not set this case apart from those in which the death penalty was not available.

(F)(7)(Commission of Murder While in Custody) – UPHELD

The defendant challenged this finding for the first time on appeal. The Court found that the circumstance was proven by uncontested testimony from the defendant’s parole officer that the defendant was in fact on parole (authorized release) at the time of the murders. In the absence of contravention, the parole officer’s testimony alone provides sufficient grounds for the trial court’s determination. The parole officer knew whether the defendant was in fact on parole at the time of the murders, and the statute requires nothing more.

(F)(8)(Multiple Homicides) – HARMLESS ERROR

The trial court found that both Moon Smoke Shop murders provided a sufficient basis for finding (F)(8) regarding the other murder. The trial court also found that for each of the murders at the Fire Fighters Union Hall the others murders committed at that same time sufficiently supported the (F)(8) aggravating circumstance. The Court, however, noted that it was impossible to tell from the record if the trial court "double counted" the murder convictions to support both the (F)(1) and the (F)(8) aggravating circumstances. That error was harmless, however, because with the number of murders committed in this case it is mathematically possible to satisfy both (F)(1) and (F)(8) without ever counting a single murder more than once. Furthermore, the aggravating circumstances combined with either (F)(1) or (F)(8) were sufficient to outweigh the mitigating circumstances.

MITIGATING CIRCUMSTANCES:

The defendant did not challenge on appeal any of the trial court’s mitigation findings.

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

Devotion to family

The Court found that the defendant failed to prove by a preponderance of the evidence the existence of the following as mitigating circumstances, or assigned them no weight if proven:

(G)(1) – Significant Impairment [alcohol and drug use; personality disorders]
(G)(3) – Minor Participation
Good Character
History of providing emotional and financial support for family
Good behavior during trial
Potential for rehabilitation

JUDGMENT: Convictions and sentences affirmed.

State v. Poyson, 198 Ariz. 70, 7 P.3d 79 (2000)

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

AGGRAVATING CIRCUMSTANCES:

Three different victims:

Delahunt – (F)(5), (F)(6) cruelty, (F)(8)
Wear – (F)(5), (F)(6) cruelty, (F)(8)
Kagen – (F)(5), (F)(8)

(F)(5) (Pecuniary Gain) – UPHELD

The Court found the record replete with evidence that showed the murders were committed to facilitate the theft of a truck owned by one of the victims. The defendant admitted killing the victims to steal the truck and drive to Illinois. The defendant did not challenge this finding on appeal.

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

Mental anguish: Found. The Court found cruelty based on great physical pain and "unspeakable mental anguish" suffered by victims Delahunt and Wear. Both victims struggled with the defendant and his accomplice and repeatedly asked why they were being murdered. After Delahunt’s throat was slashed with a butter knife, the defendant slammed his head against the floor, pounded it with a rock and drove the knife into his ear. Delahunt, 15 years old, struggled for 45 minutes before dying. He repeatedly asked the defendant and codefendant why they were trying to kill him. His hands showed defensive wounds. Wear begged the defendant not to hurt him, saying, "Bobby, stop. Bobby, don’t. I never did anything to hurt you." He was shot in the mouth, shattering several teeth. While conscious, he was struck in the head numerous times with a rifle and cinder block and kicked in the head.

Physical Pain: Found. See Mental Anguish.

Knew or Reason to Know that Victim would Suffer: No discussion.

The defendant did not challenge the cruelty findings on appeal.

Heinous or Depraved: Not addressed.

(F)(8)(Multiple Homicides) – UPHELD

The Court found that this aggravating circumstance existed for each of the three murders. The murders occurred over a relatively short period of time (five hours), at the same residence, and were part of a single course of conduct. The defendant did not challenge this finding on appeal.

MITIGATING CIRCUMSTANCES:

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

Age [19 years old at time of murders]

The Court found that the defendant failed to prove by a preponderance of the evidence the existence of the following as mitigating circumstances, or assigned them no mitigating weight if proven:

Drug use
(G)(1) – Significant Impairment [marijuana and PCP]
Cooperation with police
Personality disorders
Difficult childhood/family history
Remorse

JUDGMENT: Convictions and sentences affirmed.

State v. Hoskins, 199 Ariz. 127, 14 P.3d 997 (2000)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of premeditated murder, kidnapping, armed robbery and theft. He was sentenced to death on the murder count. This is his automatic direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) – UPHELD

The expectation of pecuniary gain is evident where a defendant commits a carjacking, takes control of a vehicle, and subsequently murders the victim to gain continuous undetected possession and use of the vehicle. This car was stolen and in the continuous possession of the defendant. The defendant made several prior statements of intent in conversations with friends. Before the murder, the defendant spoke of his plan to carjack a vehicle, kill the owner or driver, and drive to Pinetop. The record also indicates that the defendant was unemployed and did not have a vehicle. Pecuniary gain was at the heart of the defendant’s premeditated plan to obtain this vehicle.

The defendant argued that he was convicted of premeditated murder, not felony murder. The Court noted that the defendant was also convicted of armed robbery of the vehicle. A felony murder conviction does not guarantee a pecuniary gain finding, nor does the absence of such a conviction foreclose the pecuniary gain motive. Pecuniary gain refers to the actual motive whereas felony murder avoids motive. Felony murder and pecuniary gain may co-exist, but one may exist without the other; they are neither synonymous nor co-extensive. The jury may have concluded that the murder occurred well after the theft of the vehicle. The death penalty is not inappropriate simply because pecuniary gain is the only aggravating circumstance in the record.

The dissent sees a clear contradiction between the jury’s finding and the trial court’s pecuniary gain finding. If pecuniary gain was conclusively established as the basis for the murder, reasons the dissent, then the jury should have convicted on felony murder. Because the jury did not, that throws considerable doubt on the pecuniary gain finding.

MITIGATING CIRCUMSTANCES:

The Court found that the following were not proven by a preponderance of the evidence or were assigned no weight in mitigation if proven:

(G)(1) – Significant Impairment [bipolar disorder, antisocial personality disorder, emotional immaturity and impulsivity]
(G)(2) – Duress
(G)(3) – Minor Participant
(G)(4) – Unforeseeability of Death
Sentencing disparity

JUDGMENT: Convictions and sentences affirmed.

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