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.
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”.
(F)(5) (Pecuniary Gain) – UPHELD
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.
(F)(5) (Pecuniary Gain) – UPHELD
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
(F)(8) (Multiple Homicides) - UPHELD
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.
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.
(F)(10) (POLICE OFFICER IN LINE OF DUTY)
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.
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.
State v. (Cody
James) Martinez, 218 Ariz. 421, 189 P.3d 348 (2008) (Death penalty upheld)
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.
(F)(5) (PECUNIARY GAIN) – UPHELD
(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – UPHELD
Especially Cruel – Physical
and Mental Pain
Especially Heinous or
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.
(Shad Daniel) Armstrong (Armstrong III), 218
Ariz. 451, 189 P.3d 378 (2008) INDEPENDENT REVIEW;
DEATH PENALTY UPHELD, Ring
(F)(8) (MULTIPLE HOMICIDES) –
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.
(F)(6) (HEINOUS OR DEPRAVED) –
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
MITIGATING CIRCUMSTANCES: The 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.
(HEINOUS OR DEPRAVED) – EVIDENCE SUFFICIENT as to children; REVERSED
as to girlfriend
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 CIRCUMSTANCES: Because 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.