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State v. (Frank) McCray, 218 Ariz. 252, 183 P.3d 503 (2008) (Death penalty upheld) Jury Trial/Indep. Review

PROCEDURAL POSTURE:  McCray was convicted by a Maricopa County Superior Court jury of first-degree felony murder committed in 1987. The jury found the state had proved the prior violent crime aggravator (A.R.S. §13-751(F)(2)(1978 & Supp. 1987)), and the cruel, heinous and depraved aggravator (A.R.S. §13-751(F)(2)), and determined that McCray should be sentenced to death. Direct appeal of death sentence with independent review.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (PRIOR CONVICTION OF VIOLENT CRIME) – UPHELD
McCray’s 1993 conviction for a 1992 sexual assault with a dangerous enhancement qualified as a (F)(2) prior violent crime aggravator. Before July 16, 1993, this aggravator provided “[t]he defendant was previously convicted of a felony in the United States involving the use or threat of violence on another person.” To determine if the prior offense involved the threat or use of violence, the court considers the specific statutory subsection under which the defendant was convicted, even if other subsections of the same statute may not qualify for the aggravator. The court also considers the fact that the prior conviction included an enhancement for dangerousness because it is analogous to focusing on the particular statutory subsection underlying the prior conviction. The court concluded that a sexual assault involving the use or exhibition of a deadly weapon or dangerous instrument is necessarily one that involves the use or threat of violence.

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – UPHELD
Especially Cruel: The court found that this aggravator was proved beyond a reasonable doubt. The evidence showed McCray forced his way into the victim’s apartment, physically assaulted her, raped her, and strangled her with a cord. The medical examiner testified that the victim probably died one to five minutes after the strangulation began, and he concluded from both the nature of her injuries and the condition of the apartment that a struggle probably occurred. The court found that the victim was conscious during a substantial part of the “murder transaction” and that she suffered intense physical pain and mental anguish during that time. McCray should have known that attacking, raping and strangling the victim would cause her severe physical and mental pain.

MITIGATING CIRCUMSTANCES:

Difficult family history: Accorded less weight because McCray was 28 when he murdered the victim and did not show a causal connection with the crime.

Mental health problems: Also accorded little weight because McCray presented evidence only of an undiagnosed mental illness and failed to establish that it caused the crime or inhibited his ability to appreciate the wrongfulness of his conduct or conform his conduct to the law. He did not offer any expert testimony that he suffered from any mental illness, but only testimony from family and other witnesses about his behavior.

Drug use: Also given minimal weight because there was no evidence that McCray was using drugs near the time of the murder.

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

JUDGMENT:  Conviction and death sentence affirmed.

State v. James Harrod, 218 Ariz. 268, 183 P.3d. 519 (2008) ("Harrod III") (Death Penalty Upheld) Jury Trial/Indep. Review

PROCEDURAL POSTURE:  In 1998, the defendant was sentenced to death by a judge and the sentence was affirmed in State v. Harrod, 200 Ariz. 309, 26 P.3d 492 (2001) (“Harrod I.”).  Ultimately, the case was remanded for capital sentencing by a jury. See Harrod v. Arizona, 536 U.S. 584 (2002); State v. Ring, 204 Ariz. 534, 65 P.3d 915 (2003)(“Ring III”); State v.  Harrod, 204 Ariz. 567, 65 P.3d 948 (2003)(“Harrod II”).  On remand, the jury imposed the death sentence and this is the direct appeal from this second death sentence, “Harrod III”.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) – UPHELD
There was “overwhelming evidence” that the defendant was a hired killer and therefore the murder was for pecuniary gain. ¶55-¶56.

MITIGATING CIRCUMSTANCES: The Court considered the following mitigating circumstances in conducting its independent review of the jury’s death sentence:

Sentencing Disparity.  The fact that the person who apparently hired the defendant to commit the murder was not charged was not a mitigating circumstance where “the State apparently has concluded that it does not have sufficient admissible evidence to proceed against him.” ¶58 citing Ethical Rule 3.8.

Family Ties.  The Defendant claimed as mitigation the impact of execution on his family and friends and love for and of family.  “This Court, however, gives minimal weight to family support.” ¶59.

Difficult Childhood/Family History.  Parent’s divorce, father’s alcoholism and father’s mental abuse were given minimal weight because no causal nexus was shown with the crime. ¶60.

Good Character.  The defendant’s lack of criminal history, past good conduct, absence of violent acts, educational accomplishments, the fact that the offense was out-of-character, and good conduct during trial were collectively considered as evidence of good character.  These factors deserved less weight in a case involving a murder planned in advance. ¶61.

Model Prisoner.  Excellent behavior while incarcerated was not a mitigating circumstance because inmates are expected to behave well in prison. ¶62.

JUDGMENT: Death sentence affirmed. In light of the compelling aggravating circumstance of a contract killing, the Court found the mitigating circumstances failed to rise to a level that called for leniency.  ¶64.

State v. Steve Alan Boggs, 218 Ariz. 325, 185 P.3d 111 (2008)(Death Penalty Upheld) Jury Sentencing/Indep. Review

PROCEDURAL POSTURE:  The defendant was convicted of robbing a fast food restaurant and murdering three employees. The murders were committed on May 19, 2002. The jury imposed three death sentences in 2005. This is the automatic direct appeal from the death sentences. Because the crimes were committed before August 1, 2002, the Supreme Court conducted an independent review of the death sentences. The defendant's accomplice, Christopher Hargrave, also received death sentences in a separate trial.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) – UPHELD
Defendant told a detective that money was his motivation.  Approximately $300 was taken from two cash registers and someone had attempted to pry open a third register. The victims' pockets were emptied and their wallets taken.  The accomplice tried to use a victim's bank card at an ATM. The evidence established the aggravator. ¶74-¶76.

The Court rejected the argument that there were multiple motivations for the murders and therefore the pecuniary gain motive was lacking.  The alleged other motives were a desire to silence witnesses and racist attitudes towards the victims.  Silencing witnesses so that none survive the robbery is an act in furtherance of the robbery and supports the pecuniary gain factor.  Because pecuniary gain need only be "a" motive or cause of the murder, the presence of other motives does not mean the aggravator is not proven.

(F)(6) (Cruelty: Mental Anguish) – UPHELD
Defendant's detailed confession supported finding the murders were especially cruel due to mental anguish. The three victims were forced at gunpoint to lie down, ordered to empty their pockets, ordered to march into a freezer, and then shot in rapid succession.  After the Defendant left the freezer, he heard screaming and returned and shot some more.

(F)(8) (Multiple Homicides) - UPHELD
The Defendant conceded the temporal and spatial relationship, but argued the homicides lacked the motivational relationship because he killed for other motives.  The alleged motives included: one victim caused the accomplice to lose his job, the Defendant flipped out after the accomplice shot, the race of a victim and to eliminate a witness. "Regardless of Boggs' specific motive for committing the murders, all the murders involved a continuous course of criminal conduct." ¶82.  Additionally, a racial motive applied to all victims as did the accomplices animosity toward the restaurant. ¶83-¶84

MITIGATING CIRCUMSTANCES:

The Court considered the following mitigating circumstances in conducting its independent review of the jury’s death sentence:

Difficult Childhood/Family History.  Parent’s divorce, father’s alcoholism and father’s mental abuse were given minimal weight because no causal nexus was shown with the crime. ¶85-¶88,-95.

Impairment: Mental Health.  Defendant's experts established he had post-traumatic stress disorder from a traumatic childhood and was bipolar.  A defense expert opined that the defendant may have been delusional at the time of the crime but was not in a manic state. A state's expert opined that the Defendant was not bipolar but exhibited characteristics of anti-social, narcissistic and borderline personality disorders.  The mental health problems were given less weight for two reasons: 1) there was no causal nexus between the problems and the crimes, and 2) the problems did not affect the ability to conform or appreciate the wrongfulness of his conduct. ¶89-¶91, ¶96.

Cooperation with police.  Cooperating with police to apprehend the accomplice was of minimal weight because Defendant initially blamed all the crimes on the accomplice and may have been acting out of self interest.  ¶92-93.

JUDGMENT:  Death sentences affirmed. Without a causal link between the murders and the troubled childhood or mental health issues, the mitigation was entitled to less weight.  Weighed against three aggravating circumstances, including one for multiple homicides, the mitigating evidence was not sufficiently substantial to call for leniency.

Jury
Trial/
Abuse of Discretion
Review
 
 
State v. (John Montenegro) Cruz, 218 Ariz. 149, 181 P.3d 196 (2008) (Death penalty upheld) Jury Trial/Abuse of Discretion Review

PROCEDURAL POSTURE: A jury found Cruz guilty of the first-degree murder of a police officer who was questioning him about a hit-and-run accident, and decided he should be sentenced to death. Cruz committed the murder after August 1, 2002, and therefore the standard of review set out in A.R.S. §13-751.05 applies. This is Cruz’s direct appeal.

AGGRAVATING CIRCUMSTANCE:

(F)(10) (POLICE OFFICER IN LINE OF DUTY) – UPHELD
The defendant was charged with first-degree murder by killing a police officer in the line of duty, A.R.S. §13-1105(A)(3). The only aggravating circumstance was killing a police officer in the line of duty, A.R.S. §13-751(F)(10). Although these require proof of nearly identical facts, the Court found no impermissible double counting. There also is no creation of a presumption of death simply because upon conviction for first-degree murder, the defendant is eligible for the death penalty. Killing a person one knows to be a peace officer who is acting in the line of duty adequately narrows the class of persons subject to the death penalty. ¶¶128-132.

Cruz never contested that he knew the victim was a police officer and that the victim was acting in the line of duty when he was killed. The Court found that the jury did not abuse its discretion in finding the (F)(10) aggravator. ¶136.

MITIGATING CIRCUMSTANCES:
 
Although on appeal Cruz did not argue that the jury abused its discretion in sentencing him to death, the Court stated that A.R.S. §13-751.05 requires it to review all capital sentences for abuse of discretion. ¶135.

During the penalty phase, Cruz alleged 17 mitigating factors: (1) impaired capacity to appreciate the wrongfulness of his conduct, (2) impaired capacity to conform his conduct to the law, (3) unusual and substantial duress, (4) unforseeability that the acts would cause death, (5) dysfunctional family, (6) deprivation of “necessary nurturing and love” from family, (7) family history of mental disorders, (8) post-traumatic stress disorder (“PTSD”), (9) drug addiction, (10) mental state affected by family history of mental disorders, PTSD, and drug addiction, (11) unfavorable impact on Cruz’s family, (12) existence of family support, (13) compliance with prison rules, (14) lack of propensity for future violence, (15) capability to adapt to prison life, (16) lack of plan to commit the murder, and (17) his “upbringing, life-style and subculture all made it far more likely that he would find himself in this position.”

The Court found that although Cruz’s early life was certainly not ideal, there was no evidence of horrible abuse often found in its capital jurisprudence. Cruz was neither suffering from any significant mental illness nor under the influence of drugs at the time of the crime. The evidence presented on most of these mitigating circumstances was weak, and Cruz established little or no causal relationship between the mitigating circumstances and the crime. Moreover, much of the mitigating evidence was effectively rebutted by the State. The jury did not abuse its discretion in finding the mitigation evidence not sufficiently substantial to call for leniency. ¶138.
 
JUDGMENT:  Conviction and death sentence affirmed.

State v. (Cody James) Martinez, 218 Ariz. 421, 189 P.3d 348 (2008) (Death penalty upheld) Jury Trial/Abuse of Discretion Review

PROCEDURAL POSTURE: A jury found Martinez guilty of first-degree premeditated murder, felony murder and kidnapping involving one victim. The jury found two aggravators, pecuniary gain and cruel, heinous and depraved, and decided Martinez should be sentenced to death. Martinez committed the murder after August 1, 2002, and therefore the standard of review set out in A.R.S. § 13-751.05 applies. This is Martinez’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. ¶65.

(F)(5) (PECUNIARY GAIN) – UPHELD
The Court found that the jury did not abuse its discretion in finding the (F)(5) aggravator. The jury heard substantial evidence that Martinez agreed to rob the victim, and the victim was beaten and his jewelry taken. The victim was then transported to his family home, where more items were stolen. Pecuniary gain must be a motive for the murder, but it need not be the sole motive. The facts support the jury’s finding that the victim was murdered to allow Martinez to keep the stolen property and avoid capture. ¶¶66-68.

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

Especially Cruel – Physical and Mental Pain
The Court found that substantial evidence supported the jury’s finding that the killing was especially cruel. The State conclusively established that Martinez’s ongoing physical violence against the victim caused the victim mental anguish that Martinez knew or should have known would have occurred. ¶¶69-71.

Especially Heinous or Depraved
The court decided that because the jury heard overwhelming evidence that the slaying was especially cruel, and a finding of cruelty alone is sufficient to establish the (F)(6) aggravator, it need not examine whether the jury abused its discretion in finding that the murders were also heinous and depraved. ¶71.

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.

During the penalty phase, Martinez claimed as mitigation his family problems, including parental inattention and having been sexually abused as a child, his age (21), impairment from the use of drugs and alcohol, his impaired intelligence, family ties and remorse, and the fact that the three codefendants received lesser sentences.  The Court found most of this evidence was unfocused and largely rebutted by the State. It particularly noted that Martinez’s claim of sexual abuse was not supported by the record and was undermined by the absence of any evidence of earlier claims of abuse.  The claim of abuse did not arise until Martinez faced the death penalty. ¶¶73-75.

The Court found that the jury did not abuse its discretion in finding the mitigation evidence not sufficiently substantial to call for leniency. ¶75.
 
JUDGMENT:  Convictions and death sentence affirmed.

State v. (Shad Daniel) Armstrong (Armstrong III), 218 Ariz. 451, 189 P.3d 378 (2008) INDEPENDENT REVIEW; DEATH PENALTY UPHELD, Ring
 
PROCEDURAL POSTURE:  In March, 2000, Armstrong was convicted in Superior Court (Pima) of the first-degree premeditated murders of his sister and her fiancé and was sentenced to death. On direct appeal, the Supreme Court affirmed the convictions, 208 Ariz. 345, 93 P.3d 1061 (2004), but remanded for jury sentencing due to Ring v. Arizona, 536 U.S. 584 (2002). See, State v. Armstrong (Armstrong II), 208 Ariz. 360, 93 P.3d 1076 (2004). This is Armstrong’s direct appeal following that remand.

AGGRAVATING CIRCUMSTANCES:

(F)(8) (MULTIPLE HOMICIDES) – UPHELD
On appeal, Armstrong did not dispute that the murders were temporally and spatially related; he contested only the state’s proof of a motivational relationship. The Court held that the motives for killing each victim need not be identical. It was sufficient that the same motivation for killing his sister – preventing her from alerting the authorities as to his whereabouts - was “inextricably intertwined” with an additional motivation for killing the fiancé – his hatred of the fiancé and the influence the fiancé had over his sister.  The shared motive – avoiding a return to prison – was sufficient, and it need not have been the sole motivation for killing both victims; it need only have been “related.”

MITIGATING CIRCUMSTANCES:
Armstrong presented evidence of five non-statutory mitigating circumstances: difficult family history, mental illness, compassionate nature, good behavior in structured environment, and the impact of his death sentence on his family. The Court gave each of these mitigators little weight because they were not causally linked to the murders.

The Court gave the (F)(8) multiple murders aggravator “extraordinary weight” and concluded that the mitigation was not sufficiently substantial to warrant leniency.

JUDGMENT:  Death sentences affirmed.

State v. (Phillip) Bocharski (Bocharski II), 218 Ariz. 476, 189 P.3d 403 (2008) INDEPENDENT REVIEW; SENTENCE REDUCED

PROCEDURAL POSTURE:  In 1996, a jury found the defendant guilty of first-degree felony murder and first-degree burglary, and a judge sentenced him to death. In 2001, the Supreme Court affirmed the convictions but reversed the death sentence, concluding that the defendant received inadequate funding for a mitigation investigation. State v. Bocharski (Bocharski I), 200 Ariz. 50 (2001).  On remand, a new jury found two aggravators: 1) the murder was committed in an especially heinous or depraved manner (A.R.S. §13-751(F)(6)), and (2) the defendant was an adult at the time of the offense and the victim was over 70 years old (A.R.S. §13-751(F)(9)). The jury sentenced the defendant to death.  The Supreme Court reduced the sentence to natural life.

AGGRAVATING CIRCUMSTANCES:

(F)(6) (HEINOUS OR DEPRAVED) – REVERSED
The victim was stabbed on her head and face about 24 times within a minute. The Court found that the evidence did not support a finding of mutilation or gratuitous violence. Mutilation requires an act separate and distinct from the killing itself. The evidence was insufficient that the defendant had this separate intent and none of the wounds occurred post-mortem.

Regarding gratuitous violence, the state first must show that the defendant did, in fact, use violence beyond that necessary to kill. The defendant’s blows involved considerable violence and he certainly did not need to inflict 24 knife injuries to cause the victim’s death. Thus, the Court concluded that this showing had been met. However, the state must also show that the defendant continued to inflict violence after he knew or should have known that a fatal action had occurred. The Court characterized this showing as “essential evidence of the defendant’s intent to inflict gratuitous violence.” ¶87. Because the injuries occurred in quick succession, and the medical examiner was unable to state with certainty when in the sequence of stabbings that the fatal wound occurred, the evidence was insufficient to establish beyond a reasonable doubt that the defendant knew or should have known that he had already struck a fatal blow yet continued to attack the victim.

(F)(9) (AGE OF VICTIM) – UPHELD
The defendant was 33 years old at the time of the offense. The victim’s daughter testified that her mother was 84 years old when she died, and the State admitted a birth certificate and a death certificate indicating the same.

MITIGATING CIRCUMSTANCESThe defendant presented one statutory and six non-statutory mitigating circumstances: (1) A.R.S. §13-751.G.1 (state of mind), (2) physical, mental, and sexual abuse of the defendant, (3) history of substance abuse and alcoholism, (4) dysfunctional family of origin including multigenerational violence, criminality, and substance, sexual, emotional, and physical abuse, (5) abandonment, severe neglect, starvation, and foster care placement, (6) impact of execution on the defendant’s family, and (7) remorse.

The Court found the (G)(1) statutory mitigator was not proven because although the mitigation presented showed that the defendant’s ability to conform his conduct to the requirements of law was impaired, it did not support a conclusion that he was significantly impaired. The Court therefore considered this mitigation as non-statutory mitigating circumstances. After reviewing the mitigation, the Court concluded that it was “unique in its depth and breadth. The evidence in the record demonstrates severe neglect, as well as almost unimaginable mental, physical, sexual, and emotional abuse throughout his childhood. The record also reveals Bocharski’s history of alcohol abuse and intoxication at the time of the crime. Finally, he established the impact of execution on his family and his remorse.” ¶109. The defendant also established a causal connection between the mitigation and the crime. Although it accorded less weight to some of the mitigation, the Court decided that due to the limited aggravation evidence ((F)(9) only) and the strong mitigation evidence, it doubted whether a death sentence was warranted and reduced the sentence to natural life.

JUDGMENT:  Death sentence reduced to natural life.

State v. (James Granvil) Wallace (Wallace III), 219 Ariz. 1, 191 P.3d 164 (2008) INDEPENDENT REVIEW; DEATH SENTENCES VACATED

PROCEDURAL POSTURE:  Wallace murdered his girlfriend and her two children in 1984. He was twice sentenced to death by a judge following remands for resentencing by the Arizona Supreme Court, with commission of each murder in an especially heinous or depraved manner (A.R.S. §13-751(F)(6)) as the only aggravator upheld on appeal. Following affirmance of his death sentences on appeal and state post-conviction relief, Wallace obtained federal habeas corpus relief on the ground that his counsel was ineffective during sentencing. At the third resentencing in 2005, a jury found the (F)(6) aggravator as to each murder and again sentenced Wallace to death. This is Wallace’s direct appeal following that third resentencing.

The Supreme Court found that the trial court erred in instructing the jury on the gratuitous violence factor of the (F)(6) heinous or depraved aggravator. The instruction told the jury that “[i]n deciding whether the defendant inflicted gratuitous violence, you may consider whether the defendant had available less violent alternatives to cause death.” This instruction allowed the jury to find gratuitous violence simply because a less violent means of murder was in some way “available” and thus did not require proof that the defendant intentionally chose one murder weapon over another. The Court found the instruction error to be harmful, requiring remand for resentencing. Based on this consequence, it then reviewed the defendant’s claim that the state failed to prove the (F)(6) aggravator.

AGGRAVATING CIRCUMSTANCES:

(F)(6) (HEINOUS OR DEPRAVED) – EVIDENCE SUFFICIENT as to children; REVERSED as to girlfriend
In order to prove gratuitous violence, the state must show that the defendant inflicted more violence than that necessary to kill and continued to inflict violence after he knew or should have known that a fatal action had occurred. The Court had little difficulty deciding that the evidence was sufficient to submit the issue of gratuitous violence to the jury regarding the murders of the two children. Wallace continued to strike the victims over the head after they had collapsed to the floor. One victim was struck so severely that a substantial amount of brain matter was spattered on the floor and wall. In killing another victim, Wallace shoved a jagged portion of the broken baseball bat through her throat after beating her.

However, regarding the girlfriend’s murder, the Court concluded the state failed to present sufficient evidence to prove that Wallace had the required mental state. The attack on the girlfriend involved four or five blows to the head with a pipe wrench over a relatively brief period. The medical examiner was unable to opine as to which blow was fatal. Although the assault on this victim was brutal and reprehensible, it came in an attempt to kill her, not to engage in violence beyond that necessary to kill.

MITIGATING CIRCUMSTANCESBecause the Court found that the trial court committed reversible error in instructing the jury on the gratuitous violence factor of the (F)(6) aggravator, it did not review the mitigating circumstances.

JUDGMENT:  Death sentences vacated, two remanded for resentencing and one reduced to life imprisonment with parole possible after 25 years.

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