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State v. (Joe Clarence) Smith,
215 Ariz. 221, 159 P.3d 531 (2007)
(Death penalty upheld)
Jury Trial/Indep. Review
PROCEDURAL POSTURE: Sandy Spencer’s nude body was found in the desert northwest
of Phoenix in January 1976. She had multiple stab wounds,
and her nose and mouth had been stuffed with dirt and taped
shut, causing asphyxiation. Neva Lee’s nude body was found
in the desert in February 1976. She also had been
asphyxiated and her wounds were similar to Spencer’s. Smith
was charged with both murders, tried separately and
convicted and sentenced to death in each case in 1977. The
9th Circuit Court of Appeals reversed the death
sentences, and the cases were remanded by the federal
district court for resentencing in 2000. Due to Ring v.
Arizona, 536 U.S. 584 (2002), a new sentencing
proceeding in each case was tried before separate jury. The
juries resentenced Smith to death for both murders in 2004.
This is Smith’s direct appeal of those death sentences.
AGGRAVATING CIRCUMSTANCES:
(F)(1) (PRIOR CONVICTION
PUNISHABLE BY DEATH OR LIFE IMPRISONMENT) – UPHELD
Smith’s three
prior rape convictions conclusively established that he had
been convicted of another offense that carried a possible
sentence of life imprisonment or death.
(F)(2) (PRIOR CONVICTION OF
SERIOUS OFFENSE) – UPHELD
Smith’s prior
conviction of Lee’s murder met the requirements of the F(2)
aggravator in the Spencer case and vice versa.
(F)(6) (ESPECIALLY HEINOUS,
CRUEL OR DEPRAVED) – UPHELD
Especially Cruel – The court found that
overwhelming evidence established that the murders of
Spencer and Lee were especially cruel. They both died of
asphyxiation after having their noses and mouths filled with
dirt and taped shut. Such asphyxiation would undoubtedly
cause mental anguish and physical pain. At a minimum, Smith
should have known pain and anguish would occur.
Especially Heinous or
Depraved – The court
decided that because it independently concluded that the
murders were especially cruel, it need not consider the
jury’s separate findings of heinousness and depravity.
MITIGATING CIRCUMSTANCES:
The court noted that Smith
presented evidence of the following mitigators:
The role of Smith’s mental
health in the commission of the murders was accorded less
weight due to testimony that he could have controlled his
impulses and that he likely knew what he was doing and that
it was wrong. His good conduct while in prison and family
life was also lessened based on conflicting testimony
regarding their presence or substantiality. The court held
that even if all of the claimed mitigators were established,
the mitigation presented was not sufficiently substantial to
warrant leniency given the nature of the crimes committed
and the aggravators.
JUDGMENT: Death Sentence
Upheld.
State v. (Tracy Allen) Hampton, 213 Ariz.
167, 133 P.3d 735 (2006)
(Death penalty upheld) Jury
Trial/Indep. Review
PROCEDURAL POSTURE: Hampton killed Findley and Findley’s girlfriend, Ramsdell, who was
five months pregnant, execution-style with a gunshot to the forehead.
He admitted to his cellmate that he had committed the murders because
Findley was a rat and Ramsdell a “nigger lover” who was pregnant with
a Black man’s child. He was convicted in May 2002 in Superior Court
(Maricopa) of two counts of first-degree murder and one count of
manslaughter (for the unborn child). Before sentencing occurred, the
U.S. Supreme Court issued Ring v. Arizona, 536 U.S. 584 (2002),
necessitating a jury trial of the aggravating and penalty phases. The
sentencing proceedings were therefore conducted before a new jury.
This is Hampton’s direct appeal.
AGGRAVATING CIRCUMSTANCES:
(F)(6) (ESPECIALLY HEINOUS, CRUEL OR
DEPRAVED) – UPHELD
Heinous/Depraved – Not considered by court due to faulty jury
instructions - The court
found that the instructions given to the jury did not appropriately
define the facially vague terms “heinous” and “depraved” and
therefore it would not consider this aggravator in its independent
review of the death sentences.
(F)(8)
(MULTIPLE HOMICIDES) – UPHELD
The statutory requirement
that the multiple murders be
“temporally, spatially and motivationally related” to each other was
satisfied. The killing of each victim – Findley, Ramsdell, and the
unborn child – qualified as a homicide for purposes of this
aggravator. They were clearly closely related in time, space and
motivation. This aggravator carries more weight than other
aggravators, and a triple homicide triples the loss.
MITIGATING CIRCUMSTANCES:
The court independently found:
The mitigation was accorded less weight
because he did not tie it to his murderous behavior. The relevance of
his horrendous childhood was also lessened because he was 30 years old
when he committed the crimes. The mitigation was not sufficiently
substantial to call for leniency due to the extraordinary weight of
the multiple homicides aggravator.
JUDGMENT: Death Sentence
Upheld.
State v. (Charles David) Ellison
, 213 Ariz. 116, 140 P.3d 899 (2006) - (Death penalty upheld) Jury
Trial/Indep. Review
PROCEDURAL POSTURE:
Ellison and Richard Finch entered the Boucher’s home and killed the
couple in order to steal money and jewelry. Finch confessed his
involvement to a friend, who contacted the police. Finch led the
police to Ellison. When questioned by police, Ellison claimed that
Finch concocted the plan to burglarize the Bouchers and was
responsible for killing them. The police acknowledged at trial that no
physical evidence proved who actually killed either victim. Ellison
was convicted in January 2002 in Superior Court (Mohave) of two counts
of first-degree murder and one count of first-degree burglary. Before
sentencing occurred, the U.S. Supreme Court issued Ring v. Arizona,
536 U.S. 584 (2002), necessitating a jury trial of the aggravating and
penalty phases. The sentencing proceedings were therefore conducted
before a new jury. This is Ellison’s direct appeal.
AGGRAVATING CIRCUMSTANCES:
(F)(2) (PRIOR CONVICTION OF SERIOUS
OFFENSE) – UPHELD
Ellison’s prison records showed his prior
conviction for armed robbery, a statutorily defined serious felony,
A.R.S. § 13-751(H)(1)(h) (1999).
(F)(5) (PECUNIARY GAIN) – UPHELD
Ellison’s motive for
the murders was to facilitate the burglary. The Court found that
evidence established that Ellison planned the burglary and, in order
to escape and avoid detection, killed the Bouchers.
(F)(6) (ESPECIALLY HEINOUS, CRUEL OR
DEPRAVED) – UPHELD
Especially Cruel – Mental Anguish
The Court found that the especially
cruel aggravator based on extreme mental anguish was proved beyond a
reasonable doubt. The evidence established that the Bouchers were
conscious when they were bound and were aware of each other’s
suffering. They were uncertain as to their ultimate fate after being
attacked and bound by two men in their home at night. They also heard
one man ordering the other to kill Mr. Boucher.
The Court rejected the state’s argument that the Bouchers’ physical
injuries and the inherent nature of being suffocated or strangled also
showed physical cruelty. There was no specific evidence that the
Bouchers consciously suffered any extreme physical pain. The Court
also noted that it has been unwilling to find that all stranglings are
per se cruel.
(F)(7) (MURDER COMMITTED WHILE ON
PAROLE) – UPHELD
Ellison’s prison records also showed he
was on parole when he committed the murders.
(F)(8)
(MULTIPLE HOMICIDES) – UPHELD
The statutory requirement that the multiple murders be “temporally,
spatially and motivationally related” to each other was satisfied. The
Bouchers, a married couple residing together, were both killed in the
same room at approximately the same time.
(F)(9) (AGE OF VICTIM) – UPHELD
Ellison’s prison records showed that he
was older than 18 when he committed the offenses. The Bouchers’
daughter testified that her parents were each older than 70 when they
were murdered.
MITIGATING CIRCUMSTANCES:
The Court independently found:
-
Absence of love and guidance during
childhood: little value because Ellison was 33 years old when he
committed the crimes
-
Long-time drug abuse: although it is more likely that he suffered
some mental or emotional damage due to a combination of his
upbringing, physical and sexual abuse, physical deformity, and drug
and alcohol use, Ellison failed to provide any specific evidence that
his brain chemistry was actually altered by his past alcohol and drug
abuse so as to cause or contribute to his participation in the
murders.
-
Absence of genuine
violence in prior convictions: only slight mitigation
-
Love of his family:
“de minimus” compared to the murders and the six proven aggravators
The Court found that Ellison failed to prove diminished capacity to
appreciate the wrongfulness of his conduct.
The mitigation was not sufficiently
substantial to call for leniency due to the six proven aggravators.
JUDGMENT: Death sentence
affirmed.
State v. (Leroy Dean) McGill, 213 Ariz. 147, 140 P.3d 930 (2006)
(Death penalty upheld) Jury
Trial/Indep. Review
PROCEDURAL POSTURE: McGill
was convicted of premeditated murder, attempted murder, two counts of
arson and three counts of endangerment. Direct appeal of death
sentence with independent review.
AGGRAVATING CIRCUMSTANCES:
(F)(3) (GRAVE RISK OF DEATH TO
ANOTHER) - UPHELD
McGill went into a small apartment where there were four people.
He set two of the occupants on fire by throwing gasoline and a lit
match on them. The apartment was engulfed in flames and thereby
endangered two other occupants. The Court noted that the two other
occupants easily fled the apartment and stated: “The law does not
require, however, that McGill’s actions be the most risky
imaginable.” The F3 finding was upheld because McGill was aware of
the risk that setting the structure on fire created a grave risk to
the two other occupants.
(F)(3) (GRAVE RISK OF DEATH TO
ANOTHER) - DISMISSED
The fire spread to an attached apartment where there was one
occupant who escaped. The trial judge properly dismissed F3 as to
this person as there was no evidence that McGill knew the adjoining
apartment was occupied.
(F)(6) (ESPECIALLY HEINOUS,
CRUEL or DEPRAVED) - CRUELTY UPHELD
McGill mixed gasoline with styrofoam creating a napalm-like
mixture. He tossed the mixture upon the victim and set him afire.
The victim was burned over 80% of his body, screamed in pain, and
ultimately died. Setting a conscious person on fire necessarily
causes the victim tremendous suffering which was enhanced by the
napalm-like mixture which stuck to the victims and made it difficult
for rescuers to put out.
MITIGATING CIRCUMSTANCES:
The Court independently
found:
-
Difficult childhood: Abuse and
neglect were “only slight mitigation.”
-
Follower: under influence of
girlfriend lacked causal connection to crime.
-
Impairment:
Mental/psychological not proven.
-
Model Prisoner: “little
support”
-
Family ties. Execution impact
on family established family ties.
The Court found that although the
mitigation was “not insignificant, it does little to offset the
considerable aggravation.”
JUDGMENT: Death sentence
affirmed.
*State v. (Frank Silva) Roque,
213 Ariz. 193, 141 P.3d 368 (2006)
(Death penalty reduced to natural life without possibility of
release) Jury
Trial/Indep. Review
PROCEDURAL POSTURE: On
September 15, 2001, Roque shot and killed a Sikh of Indian descent,
believing him to be Arab, in retaliation for the 9/11 terrorist
attacks. He also shot at several other Arab-Americans. He was
convicted of premeditated murder, attempted murder, reckless
endangerment and three counts of drive-by shooting. Direct appeal of
death sentence with independent review.
AGGRAVATING CIRCUMSTANCES:
(F)(2) (PRIOR CONVICTION OF
SERIOUS OFFENSE) - DISMISSED
The trial court properly dismissed this aggravating factor based
on Roque’s 1983 California conviction for attempted robbery. The
attempted robbery offense in California would not have constituted
attempted robbery in Arizona and therefore did not qualify as a
serious offense under (F)(2).
(F)(3) (GRAVE RISK OF DEATH TO
ANOTHER) - UPHELD
Roque shot the victim while the victim was talking to another
man. He fired five or six shots toward both men from a distance of
20 feet. Although Roque’s intended target was the victim, the other
man was in the zone of danger and could have been hit or killed if
Roque had not been an accurate shot.
MITIGATING CIRCUMSTANCES:
The Court independently found:
-
Impairment - the evidence
showed that Roque’s mother was a schizophrenic, leaving Roque
predisposed to mental health problems. All four mental health
experts who testified at trial regarding Roque’s mental condition on
the days after September 11, 2001, agreed that his mental condition
impaired his capacity to conform to the law, but varied in their
opinions of how significant that impairment was. The Court gave this
mitigating evidence substantial weight.
-
Low IQ - Roque’s IQ was
measured at 80. Although this IQ is not, by itself, low enough for
Roque to be considered to have mental retardation, his overall score
is below average. The Court considered the likely impact of his low
IQ on Roque’s ability to seek help or reason his way out of
committing the crimes.
The Court found that the
mitigation was sufficiently substantial to outweigh the sole
aggravator.
JUDGMENT: Death sentence
vacated and reduced to natural life without possibility of parole.
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