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State v. (Eugene) Tucker (Tucker II), 215 Ariz. 298, 160 P.3d 177 (2007)
(DEATH PENALTY UPHELD) Ring - Indep. Review

PROCEDURAL POSTURE:  Tucker was convicted in Superior Court (Maricopa) of three counts of first-degree murder, sexual assault, kidnapping and burglary, and sentenced to death for the triple homicide of Tucker’s girlfriend, the girlfriend’s brother and the brother’s girlfriend. This is his direct appeal following the Supreme Court’s remand for jury sentencing due to Ring v. Arizona, 536 U.S. 584 (2002). See, State v. Tucker (Tucker I), 205 Ariz. 157, 68 P.3d 915 (2003). 

AGGRAVATING CIRCUMSTANCES:

(F)(1) (CONVICTION OF ANOTHER OFFENSE ELIGIBLE FOR LIFE IMPRISONMENT OR DEATH)  - UPHELD
Tucker was convicted in 2000 of sexual assault and sentenced to 25 years to life imprisonment. The Court affirmed this conviction and sentence in Tucker I. As long as the prior conviction is entered before sentencing, it may support the (F)(1) aggravator even if it was committed before, contemporaneous with, or after the capital homicide. Thus, the (F)(1) aggravator was proven beyond a reasonable doubt.

(F)(3) (GRAVE RISK OF DEATH TO ANOTHER)  - DISMISSED
Tucker killed all the adults in a home, leaving a baby alone in its crib. One victim was killed in another room, and two were killed in the same room as the baby, but Tucker fired away from the crib when he shot those victims. The Supreme Court found the baby was not in the zone of danger during any of Tucker’s murderous acts.

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED)  - UPHELD AS TO VICTIM 1 ONLY
Cruelty - Upheld.

Physical Pain: Victim 1, the defendant’s girlfriend, had been raped vaginally and anally, bludgeoned about the head, strangled, and then shot twice in the head.  The ligature marks made during strangulation were conclusively inflicted before the victim died and were used to control her consciousness.  The various locations of blood spatter patterns and blood pools indicated there was a prolonged struggle.  The Court found that the victim was conscious when she was bound and strangled. The extent of her injuries showed that she suffered extreme physical pain.

Heinous or Depraved  - Not Considered - The Court decided that because the state established beyond a reasonable doubt that the victim’s murder was especially cruel, it did not need to also determine whether her murder was especially heinous or depraved. 

(F)(8) (MULTIPLE HOMICIDES) – UPHELD
The requirement that the multiple murders be “temporally, spatially and motivationally related” to each other was satisfied. The murders all occurred on the same day and in the same apartment. The Court found it “difficult to imagine a motive for the killings [of Victims 2 and 3] unrelated to the murder of [Victim 1].”

MITIGATING CIRCUMSTANCES:

The Court independently found:

  • Age (G)(5): Tucker turned 18 ten days before the murder

  • Lack of Prior Criminal Record 

  • Impairment: Tucker failed to establish a causal connection between his narcissistic personality disorder and the crime, and did not show that his capacity to appreciate the wrongfulness of his conduct or to conform it to the law was significantly impaired at the time of the murders. Personality or character disorders typically do not satisfy the (G)(1) mitigator. The Court gave little weight to Tucker’s disorder as a non-statutory mitigator.

  • Model Prisoner: given minimal weight because all prisoners are expected to behave and adapt to prison life.

  • Family ties: also minimal significance in light of conflicting testimony.

The Court found that the most compelling mitigation was Tucker’s age and lack of a prior criminal record. It concluded, however, that this mitigation was not sufficiently substantial to warrant leniency in light of the three aggravators remaining for Victim 1 and the two aggravators for Victims 2 and 3.

JUDGMENT:  Death sentences affirmed.

 

State v. (Wendi Elizabeth) Andriano, 215 Ariz. 497, 161 P.3d 540 (July 9, 2007)
(DEATH PENALTY UPHELD) Jury Trial/Indep. Review

PROCEDURAL POSTURE:  A Maricopa County Superior Court jury convicted Andriano of first-degree murder for the death of her terminally ill husband. It found the state had proved the especially cruel aggravator (A.R.S. §13-751(F)(6)) and determined that the defendant should be sentenced to death. This is Andriano’s direct appeal.

AGGRAVATING CIRCUMSTANCES:

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – UPHELD
Especially Cruel – Both Mental Anguish and Physical Pain

The evidence showed that Andriano poisoned her husband, who was terminally ill with cancer, and left him to suffer a long time. She knew from her Internet research that poisoning with sodium azide would cause her husband physical pain and mental anguish. He was conscious as he suffered the effects of the poisoning, and remained conscious until Andriano struck him at least 23 times in the back of the head with a bar stool. The Court concluded that cruelty was established based on either, or both, mental anguish or physical pain.

MITIGATING CIRCUMSTANCES:

The court noted that Smith presented evidence of the following mitigators:

  • Stress of husband’s cancer

  • Strong religious convictions

  • Missionary and community work

  • Model prisoner

  • Family life, good mother to two children

  • Sexual abuse and domestic violence victim

The Court found that none of this mitigation warranted substantial weight. The evidence established that Andriano did not kill her husband while defending against a domestic violence attack. The record also did not indicate that the stress of the husband’s cancer was any greater at the time of the offense than it had been two years earlier when it was first diagnosed. The Court held that even if all of the claimed mitigators were established, its quality and strength was not sufficiently substantial to warrant leniency in light of the especially cruel manner in which she murdered her husband.

JUDGMENT:  Conviction and death sentence affirmed.

 

State v. (Ruben) Garza, 216 Ariz. 56, 163 P.3d 1006 (2007)
(DEATH PENALTY UPHELD) Jury Trial/Indep. Review

PROCEDURAL POSTURE:  Garza was convicted by a Maricopa County Superior Court jury of two counts of first-degree murder. The jury found the state had proved the multiple homicides aggravator (A.R.S. §13-751(F)(8)) as to each murder, and determined that Garza should be sentenced to life imprisonment for one murder and death for the other. Direct appeal of death sentence with independent review.

AGGRAVATING CIRCUMSTANCES:

(F)(8) (MULTIPLE HOMICIDES) – UPHELD
The statutory requirement that the multiple murders be “temporally, spatially and motivationally related” to each other was satisfied. Both victims were shot in the same house, one shortly after the other. The two homicides were also motivationally related. Garza shot the first victim in the living room and then went down the hallway to the bedroom and shot the other victim.

MITIGATING CIRCUMSTANCES:

The Court independently found:

  • Age (G)(5): Garza was 19 years old at the time of the murders:  Of diminished significance when the defendant is a major participant in the crime, especially when he plans it in advance

  • Good character and lack of prior criminal record: Also accorded less weight because crime planned in advance

  • Stress: Lack of causal connection to the crime also diminishes this mitigation

The Court found that the mitigation was not sufficiently substantial to call for leniency.

JUDGMENT:  Convictions and death sentence affirmed.

 

State v. (Cory Deonn) Morris, 215 Ariz. 324, 160 P.3d 203 (2007)
(DEATH PENALTY UPHELD) Jury Trial/Abuse of Discretion Review

PROCEDURAL POSTURE:  A jury convicted Morris of murdering five women whose badly decomposed bodies were found in and around the camper he lived in. The jury found two aggravators for each murder and imposed five death sentences. Morris committed all five murders after August 1, 2002, and therefore the standard of review set out in A.R.S. § 13-751.05 applies. Pursuant to that statute, the Arizona Supreme Court no longer conducts independent review but instead determines whether the jury abused its discretion in finding aggravating circumstances and imposing a death sentence. This is Morris’s direct appeal.

AGGRAVATING CIRCUMSTANCES:  Under the new standard of review, the Court will uphold a finding of an aggravating circumstance if there is any reasonable evidence in the record to sustain it.

(F)(2) (PRIOR CONVICTION OF SERIOUS OFFENSE) – UPHELD
Morris’s multiple murder convictions from the guilt phase were properly used for this aggravator because they were not committed on the same occasion.

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – UPHELD

Especially Cruel – Physical Pain
The Court found that the especially cruel aggravator based on extreme mental anguish was proved beyond a reasonable doubt. The evidence established that the victims were conscious and experienced pain for at least some period of time while they were being strangled. Three of the victims also struggled with Morris.

Especially Heinous or Depraved
The court decided that because a finding of cruelty alone is sufficient to establish the (F)(6) aggravator, it need not address whether the jury abused its discretion in finding that the murders were also heinous and depraved.

MITIGATING CIRCUMSTANCES:  Under the new standard of review, the Court stated that it will not reverse a death sentence “so long as any reasonable jury could have concluded that the mitigation established by the defendant was not sufficiently substantial to call for leniency.” ¶81.

The Court cursorily noted that Morris “presented mitigation evidence relating to long-standing problems with his appearance and hygiene, the responsibilities placed on him at a young age, his desire to improve himself, and his good work record.” ¶82.

The Court found that given the nature and strength of the two aggravators for each murder, a reasonable jury could have determined that the mitigation was not sufficiently substantial to call for leniency and therefore did not abuse its discretion in imposing a death sentence for each murder.

JUDGMENT:  Convictions and death sentences affirmed.

 

State v. (Darrel) Pandeli (Pandeli IV), 215 Ariz. 514, 161 P.3d 557 ( 2007)
(INDEPENDENT REVIEW; DEATH PENALTY UPHELD) Ring

PROCEDURAL POSTURE:  Pandeli was convicted in Superior Court (Maricopa) of first-degree murder and sentenced to death. This is his direct appeal following the Supreme Court’s remand for jury sentencing due to Ring v. Arizona, 536 U.S. 584 (2002). See, State v. Pandeli (Pandeli III), 204 Ariz. 569, 65 P.3d 950 (2003).

AGGRAVATING CIRCUMSTANCES:

(F)(2) (PRIOR CONVICTION- SERIOUS OFFENSE) – UPHELD
Pandeli’s 1996 prior conviction for second-degree murder was a "serious offense" supporting the (F)(2) aggravator.

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – UPHELD

Heinous or depraved: Upheld
Pandeli mutilated Iler’s body and relished the murder by taking souvenirs.

MITIGATING CIRCUMSTANCES:  The Court independently found the following mitigating circumstances:

  • Difficult childhood, including physical and sexual abuse

  • Abuse of drugs and alcohol

  • Mental impairment and learning disabilities

  • Model prisoner

  • Develop and maintain positive relationships

The Court found that Pandeli failed to establish a causal nexus between this mitigation and the crime, and therefore accorded it less weight. Although the mitigation evidence was not insubstantial, the aggravating circumstances were also substantial, especially the fact that Pandeli had been convicted of another murder. In light of the prior murder and the brutality of the Iler murder, the Court found the mitigation evidence was not sufficiently substantial to call for leniency.

JUDGMENT:  Death sentence affirmed.

 

State v. (Juan) Velazquez, 216 Ariz. 300, 166 P.3d 91 (2007)
(INDEPENDENT REVIEW; DEATH PENALTY UPHELD)

PROCEDURAL POSTURE: Velazquez was convicted in Maricopa County Superior Court of three counts of child abuse and one count of first degree murder for the death of a 20-month old child, and four counts of child abuse for injuries inflicted on a three year old child. Both children were daughters of his girlfriend, with whom he had been living. This is Velazquez’s direct appeal of the death sentence.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (PRIOR CONVICTION OF SERIOUS OFFENSE) – UPHELD
Velazquez’s conviction of child abuse of the three year old met the requirements of the version of the F(2) aggravator in effect in 2001 when he committed the murder. This aggravator could not be based on convictions for serious offenses committed contemporaneously with the capital murder. However, it could be based on convictions for serious offenses that were committed separately from the murder, even if the murder serious offense convictions resulted from the same trial. This was the situation here. The child abuse of the other daughter did not arise from the same set of events as the murder.

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – UPHELD

Especially Cruel
The Court found that the State proved beyond a reasonable doubt that the child experienced intense physical pain as she was suffocated, squeezed, tripped, and left to die.  She was conscious when she sustained the skull fracture that caused her death.

(F)(9) (AGE OF VICTIM) – UPHELD
Velazquez was 23 years old at the time of the crime, and the victim was 20 months old.

MITIGATING CIRCUMSTANCES:  The Court independently found the following mitigating circumstances:

  • Age (G)(5): afforded little weight given Velazquez’s criminal history, average intelligence, maturity level, and the fact that he committed the murder on his own

  • Mental impairment, personality disorder: considered only as a non-statutory mitigator because personality disorders usually are not sufficient to satisfy the (G)(1) mitigator

  • Difficult childhood, including physical and emotional abuse

  • Abuse of drugs and alcohol

  • Remorse

  • Impact of execution on his family

Although the Court found this mitigation considerable, it decided that on balance the evidence was not sufficiently substantial to warrant a sentence less than death given the circumstances of the crime.

JUDGMENT:  Death sentence upheld.

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