Introduction    |   Table of Contents

State v. (Joe Clarence) Smith, 215 Ariz. 221, 159 P.3d 531 (2007)
(Death penalty upheld) Jury Trial/Indep. Review

PROCEDURAL POSTURESandy 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:

  • Mental health problems - he suffered from sexual sadism with a form of anxiety disorder

  • Good conduct while in prison

  • Family life

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.

JUDGMENTDeath 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:

  • Difficult childhood, including sexual and physical abuse

  • Long-time drug abuse

  • Mental health problems

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.

Back to Top