| State v. Gallegos
(Gallegos I), 178 Ariz. 1, 870 P.2d 1097 (1994) PROCEDURAL POSTURE: The defendant was convicted in
Superior Court (Maricopa) of first-degree murder and sexual conduct with a minor under the
age of fifteen. Defendant was sentenced to death for the murder. This is the defendant's
automatic, direct appeal to the Arizona Supreme Court.
AGGRAVATING CIRCUMSTANCES:
(F)(6) (Heinous, Cruel or Depraved) - UPHELD
Cruel: Not addressed - because the Court
upheld heinousness and depravity.
Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The medical examiner testified that injuries
to the eight-year-old female victim's rectum were inflicted either premortem or
perimortem. Defendant admitted to anal intercourse with the victim for between fifteen and
twenty minutes after her body went limp and after he believed she was dead. The Court
found that defendant believed he committed necrophilia. Defendant stated that "it
wasn't like she was going to tell anybody," so "why not" do it because he
knew he would be caught the next day. 178 Ariz. at 15. After sodomizing the victim,
defendant discarded her naked, bruised and battered body under a tree, where she was found
the following day.
Senselessness: Found. See Helplessness. "We believe that the record
in this case supports a finding of senselessness, helplessness, and gratuitous
violence." 178 Ariz. at 15. Senselessness and helplessness, "in isolation,"
do not always lead to a finding of heinousness and depravity. 178 Ariz. at 14. However, if
either or both is considered with other factors, that can lead to a finding of heinousness
and depravity.
Helplessness: Found. The victim was an eight-year-old girl, weighing fifty-seven
pounds and standing four feet, five inches tall. The defendant is an eighteen-year-old
male who had a trust relationship with the victim. The defendant went into the victim's
room while she slept and suffocated her. The victim "never had a chance." 178
Ariz. at 15.
(F)(9) (Victim under Fifteen Years of Age) - UPHELD
The defendant was an adult and the murder victim was eight years old at the time
of the sexual assault and murder. On appeal, the defendant did not contest the
(F)(9)
finding, but argued he had been Adouble punished@ because the trial court considered
victim's age to establish the (F)(6) factor. Specifically, the defendant argued that the
finding of helplessness was a repetition of fact that the victim was a child. The Court
held that this argument was without merit. The same evidence may "support the finding
of more than one aggravating factor, as long as it is only weighed once in determining
whether to impose the death penalty." Moreover, the Court disagreed that the
helplessness finding was based solely on the victim's age. The defendant's status as a
kind of "uncle" to the child victim, his access to the victims bedroom, and the
fact the victim was asleep at the time of the attack, all supported a finding of
helplessness, apart from the victim's young age.
MITIGATING CIRCUMSTANCES:
The Court that the defendant proved by a preponderance of
the evidence the existence of the following mitigating circumstances:
Impairment ["to some degree" by alcohol
use on night of murder]
History of alcohol and drug abuse
Age [18 years old at the time of the murder]
Remorse
Cooperation with police
Recommendation for leniency [from police officers on case]
The Court found that the defendant failed to prove by a
preponderance of the evidence the existence of the following as mitigating circumstances:
(G)(1) Significant Impairment [alcohol and drug
use]
Lack of Intent to Kill
Sentencing Disparity [not applicable where insufficient evidence to charge the other
party]
The Court agreed with the trial court that the defendant's
impairment from alcohol and drug use on the night of the murder did not rise to the level
of "significant" impairment contemplated by the (G)(1) mitigating circumstance.
But the trial court should have considered whether the evidence that the defendant was
impaired to some degree, along with his history of alcohol and drug abuse, constituted a
nonstatutory mitigating circumstance. After considering the evidence, the Court found that
the defendant's impairment constituted a nonstatutory mitigating circumstance and remanded
for resentencing because it could not clearly ascertain whether the trial court would have
sentenced Gallegos to death if it had considered his impairment as a nonstatutory
mitigating circumstance.
JUDGMENT: Convictions and sentence
for sexual conduct with a minor under the age of fifteen affirmed. Remand for resentencing
on the first-degree murder conviction due to a finding of impairment as an additional
mitigating circumstance not considered by the trial court.
State v. Ramirez, 178
Ariz. 116, 871 P.2d 237 (1994)
PROCEDURAL POSTURE: Defendant was
convicted in Superior Court (Maricopa) of two counts of premeditated, first-degree murder,
and sentenced to death. This is defendant's automatic, direct appeal to the Arizona
Supreme Court.
AGGRAVATING CIRCUMSTANCES:
(F)(2) (Prior Violent Felony) - UPHELD
The defendant's prior convictions were for aggravated assault and robbery. The
Court examined the statutes under which the defendant was convicted and found that the
specific subsections of the statutes necessarily involved violence or the threat of
violence to another. In State v. Fierro, 166 Ariz. 539, 804 P.2d 72 (1990), the
Court held that a conviction for aggravated assault under A.R.S. §13-1203 and §13-1204
did not qualify as an aggravating factor because it was possible to commit the crime
without the use or threat of violence. Here, the state avoided that problem by proving the
specific subsections that applied, and those subsections necessarily involved violence.
The robbery statute also necessarily involved the use or threat of violence.
(F)(6) (Heinous, Cruel or Depraved) - UPHELD
Cruel: Upheld.
Mental Anguish: Found. The Court found that the victims experienced
great pain and suffering over a prolonged period of time. Neighbors heard "banging,
screaming, cries for help, and running noises" for twenty to thirty minutes. 178
Ariz. at 129. Blood and murder weapons were scattered throughout the apartment. The
victims were conscious during repeated stabbings. Each victim was stabbed fifteen to
twenty times. Each victim was aware of the other victim's suffering. Victim, Mrs. G., had
defensive wounds from the struggle. Under these facts, the Court found that F(6),
"especially cruel," applied to both murder counts.
Physical Pain: Found. See Mental Anguish.
Knew or Reason to Know that Victim Would Suffer: The Court found the victim's
suffering to be inescapably foreseeable to defendant.
Heinous or Depraved: Not addressed.
(F)(8) (Multiple Homicides) - UPHELD
The defendant was convicted of stabbing a female acquaintance and her
fifteen-year-old daughter to death. Citing State v. Lavers, 168 Ariz. 376, 814
P.2d 333 (1991), the Court said that it analyzes the temporal, spatial, and motivational
relationships between the capital homicide and the collateral [homicide], as well as the
nature of that [homicide] and the identify of its victim to determine if one murder was
committed during the course of another. In this case, the Court said the murders occurred
in same place, resulted from the same disturbance, and were committed in a relatively
short period of time in what can be fairly viewed as one continuous course of criminal
conduct. The trial court misstated the law by saying that the factor supports the death
sentence on either conviction. The Court noted that the factor, once proven, applies to
each conviction.
MITIGATING CIRCUMSTANCES:
The Court found that the following mitigating circumstances
existed, but were insufficiently substantial to call for leniency:
(G)(1) Significant Impairment
Difficult Childhood/Family History [including gang affiliation]
Lack of Education
Psychological history
Chronic substance abuse
Family Ties
The Court found the defendant failed to prove by a
preponderance of the evidence the existence of the following as mitigating circumstances:
Remorse
Model Prisoner
Residual Doubt
JUDGMENT: Convictions and sentences
affirmed.
State v. Cornell, 179
Ariz. 314, 878 P.2d 1352 (1994)
PROCEDURAL POSTURE: The defendant
was convicted in Superior Court (Maricopa) of first-degree murder, attempted first degree
murder, aggravated assault, and first degree burglary. He was sentenced to death on the
murder conviction. This is his automatic, direct appeal to the Arizona Supreme Court.
AGGRAVATING CIRCUMSTANCES:
(F)(1) (Prior Life or Death Felony) - REVERSED
The trial court's (F)(1) finding was based on an aggravated assault conviction
for which the defendant received a life sentence. That conviction was subsequently
reversed on appeal. The defendant was retried on that charge and found guilty of a
misdemeanor. The Court agreed with the defendant that the conviction could no longer
support the (F)(1) aggravating circumstance. However, instead of remanding the case to be
reweighed by the trial judge, the Court reduced the sentence to life imprisonment without
the possibility of parole for twenty-five years to be served consecutive to all other
sentences imposed.
(F)(3) (Grave Risk of Death to Others) - UPHELD
The (F)(3) finding was upheld without discussion. Because the Court reversed the
trial court's (F)(1) finding, and reduced the sentence to life, the Court never addressed
the merits of the (F)(3) finding. The facts apparently supporting the (F)(3) finding are
that Cornell shot and killed his estranged girlfriend, Daphne, and wounded her father,
Victor, at the Arizona Department of Transportation (ADOT) building. Victor drove his
truck to the entrance of the building, let Daphne out of the truck, and then confronted
Cornell, who had been following them. Cornell pulled out his gun, assumed a shooter's
stance and opened fire. One shot hit Victor as he tried to take cover behind his truck, in
which his granddaughter was still sitting. Cornell then followed Daphne into an office
area in the building, and in the presence of her co-workers, fired at least three shots at
her while she lay on the floor. Cornell then fled the building, threatening several people
with his gun so that they would not interfere with his escape.
MITIGATING CIRCUMSTANCES:
There is no discussion of mitigating circumstances in this
opinion because the Court set aside one of the aggravating circumstances and reduced the
sentence to life.
JUDGMENT: Convictions and sentences
affirmed except the death sentence, which was reduced to life imprisonment without the
possibility of parole for twenty-five years to be served consecutively to the defendant's
other sentences.
State v. Wood, 180 Ariz. 53,
881 P.2d 1158 (1994)
PROCEDURAL POSTURE: The defendant
was convicted in Superior Court (Pima) of two counts of first-degree murder and two counts
of aggravated assault. He was sentenced to death on each murder conviction. This is his
automatic, direct appeal to the Arizona Supreme Court.
AGGRAVATING CIRCUMSTANCES:
(F)(3) (Grave Risk of Death to Others) - UPHELD
This aggravating circumstance exists only if the defendant's murderous act itself
puts other people in the "zone of danger." The inquiry is whether, during
the course of the murder, the defendant knowingly engaged in conduct that created a real
and substantial likelihood that a specific third person might suffer a fatal injury.
No single factor is dispositive of this aggravating circumstance. Here, three employees
were present in the confined garage space where the defendant shot one of them. One of the
employees was only six to eight feet away from the victim when he was shot. The defendant
then turned toward another employee, as if to shoot him, but the employee fled. There was
evidence that the defendant cocked and uncocked the gun twice between shooting the first
victim and shooting the second. The other employees were found to be in the zone of danger
based on the defendant's actions.
(F)(8) (Multiple Homicides) - UPHELD
The (F)(8) finding was upheld without extensive discussion. Wood did not
challenge the finding on appeal. Wood shot and killed his estranged girlfriend and her
father at a Tucson body shop. The Court noted that this was a double murder and the trial
court properly found the existence of the (F)(8) aggravating circumstance.
MITIGATING CIRCUMSTANCES:
The Court found that the following mitigating circumstances
existed, but were insufficiently substantial to call for leniency:
Impulsive personality exacerbated by drug and
alcohol abuse ["little, if any" weight]
History of substance abuse ["little, if any" weight]
Lack of Criminal History
The Court found the defendant failed to prove by a
preponderance of the evidence the existence of the following as mitigating circumstances:
(G)(1) Significant Impairment [mental or
alcohol/drugs]
(G)(2) Duress
(G)(4) Death not Reasonably Foreseeable
Difficult Childhood/Family History
JUDGMENT: Convictions and sentences
affirmed.
State v. Maturana, 180
Ariz. 126, 882 P.2d 933 (1994)
PROCEDURAL POSTURE: Defendant was
convicted in Superior Court (Pima) of first-degree, premeditated murder and sentenced to
death. This is defendant's automatic, direct appeal to the Arizona Supreme Court.
AGGRAVATING CIRCUMSTANCES:
(F)(2) (Prior Violent Felony) - UPHELD
The trial court's (F)(2) finding was based on Maturana's prior conviction for
aggravated assault in Texas. Maturana argued that the state did not prove the existence of
the previous conviction beyond a reasonable doubt because the state failed to introduce a
certified copy of the conviction. Rejecting this argument, the Court noted that the state
introduced, at the sentencing hearing, certified copies of the indictment, plea agreement,
and judgment on plea of guilt, as proof that Maturana was previously convicted of stabbing
another person with a homemade spear.
(F)(6) (Heinous, Cruel or Depraved) - UPHELD
Cruel: Upheld.
Mental Anguish: Found. The Court found that the victim was conscious
through much of the attack due to possible defensive wounds on the victim's forearm and
hand. Additionally, the defendant had bragged to another inmate that the victim was
shaking and screaming after each gunshot.
Physical Pain: Found. The Court did not differentiate between mental anguish and
physical pain, but concluded that the victim both "suffered physical pain and endured
mental anguish during this attack."
Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The Court concluded that both gratuitous
violence and mutilation existed and commingled the factors. The victim was shot
at least twelve times in the head and chest. Some bullets caused multiple entrance wounds.
Further, the defendant watched as co-defendant Ballard repeatedly hacked the body with a
machete. One machete wound nearly severed the victim's jugular vein and defendant
apparently attempted to sever the victim's head before dumping the body in a rancher's
well.
Mutilation: Found. The Court addressed gratuitous violence and
mutilation together.
Relishing: Found. Defendant demonstrated no remorse and bragged to another inmate
about "how great it was." 180 Ariz. at 132. Defendant further stated that he
tricked the victim into going to the desert to make him pay for being a snitch and a
thief.
Senselessness: Not addressed. The Court declined to address senselessness because
heinousness and depravity were already found based on other factors.
MITIGATING CIRCUMSTANCES:
The Court found no mitigating circumstances in this case
that would call for leniency. The defendant failed to prove by a preponderance of the
evidence the existence of the following as mitigating circumstances:
(G)(1) Significant Impairment [drug usage];
(G)(2)
Duress; (G)(3) Minor Participation;
(G)(4) Death not Reasonably Foreseeable; Age [32 years old at time of crime];
Difficult Childhood/Family History; Substance Abuse; Military Service; Remorse;
Family Ties; Model Prisoner; Low Intelligence; Sentencing Disparity
JUDGMENT: Convictions and sentences
affirmed.
State v. King, 180 Ariz.
268, 883 P.2d 1024 (1994)
PROCEDURAL POSTURE: Defendant was
convicted in Superior Court (Maricopa) of first-degree murder and sentenced to death. This
is defendant's automatic direct appeal to the Arizona Supreme Court.
AGGRAVATING CIRCUMSTANCES:
(F)(5) (Pecuniary Gain) - UPHELD
The (F)(5) finding was upheld without discussion. The defendant went into a
convenience market, and while robbing the market, shot the store clerk and the security
guard with the guard's gun.
(F)(6) (Heinous, Cruel or Depraved) - REVERSED
Cruel: Not addressed.
Heinous or Depraved: Reversed.
Witness Elimination: Found. The Court found witness elimination did
exist, but alone, it was not sufficient to uphold a finding of heinousness and depravity.
In Greenway, 170 Ariz. 155, 823 P.2d 22 (1991), "Chief Justice Feldman
specially concurred, emphasizing that although `killing to eliminate witnesses may be a factor
in finding depravity,' the Court has never held that a finding of heinousness and
depravity could be based solely on a finding that a murder was motivated by a desire to
eliminate a witness." 180 Ariz. at 284. The Court held that A.R.S. §
13-703(F)(6)
does not permit it to find that a killing is especially heinous or depraved based solely
on a finding that the motive for the killing was to eliminate witnesses. 180 Ariz. at 285.
Witness elimination has an important evidentiary value in refuting a defense claim that a
murder is not senseless if it is done to avoid prosecution. 180 Ariz. at 286. The
circumstances of the murder must "raise it above the norm of first degree
murders." In this case, it was a cold-blooded murder demonstrating a vile state of
mind and qualified as witness elimination. However, witness elimination alone, without
other factors, is not enough to raise this murder "above the norm."
(F)(8) (Multiple Homicides) - UPHELD
The defendant was convicted of killing a store clerk and a security guard during
the robbery of a convenience store. The trial court stated incorrectly in its special
verdict that the factor "supports the imposition of a death sentence on either"
murder count. Once this factor is proven, it applies to each first-degree murder
conviction.
MITIGATING CIRCUMSTANCES:
The Court found that the following mitigating circumstances
existed, but were insufficiently substantial to call for leniency:
Difficult Childhood/Family History
Substance Abuse
Antisocial Personality Disorder
Post-Traumatic Stress Disorder
Family Ties
The Court found the defendant failed to prove by a
preponderance of the evidence the existence of the following as mitigating circumstances:
(G)(1) Significant Impairment [mental or
alcohol/drugs]
Age [26 years old at time of crime]
Remorse
JUDGMENT: Death sentence affirmed,
even without F(6) because of pecuniary gain and other felony convictions.
State v. Richmond
(Richmond III), 180 Ariz. 573, 886 P.2d 1329 (1994)
PROCEDURAL POSTURE: On remand from
the U.S. Supreme Court, this is the third review by the Arizona Supreme Court. Defendant
was convicted, again, in Superior Court (Pima) of robbery and first-degree murder and
sentenced to death for first-degree murder. This is defendant's automatic direct appeal to
the Arizona Supreme Court.
AGGRAVATING CIRCUMSTANCES:
(F)(1) (Prior Life or Death Felony) - UPHELD
Prior conviction for murder sufficient to support trial court's finding, even
though the prior conviction was obtained after the conviction in this case, but before
resentencing.
(F)(2) (Prior Violent Felony) - REVERSED
The defendant was previously convicted of kidnapping. At the time of the
defendant's murder trial, (F)(2) required that the prior conviction be predicated upon a
statute wherein the use or threat of violence is a necessary element of the crime. The
statutory definition, not the facts of the underlying conviction, dictate whether the
crime fits within the (F)(2) aggravator. The Court held that (F)(2) did not apply in this
case for several reasons. Initially, the trial court improperly received testimony
concerning the facts of the previous conviction. The state never introduced a formal
record of the conviction, but introduced only a copy of the information charging the
defendant and a copy of the sentencing minute entry, both of which indicated that the
defendant kidnapped the victim while armed with a deadly weapon. The Court could not
determine which section of the kidnapping statute applied to this particular case. The
statute itself includes subsections that allow for a kidnapping conviction without the use
or threat of violence. From this record, it was not possible to determine the specific
subsection of the kidnapping statute in question. Therefore, the (F)(2) finding was
reversed.
(F)(6) (Heinous, Cruel or Depraved) - REVERSED
Cruel: Not addressed because it was
rejected in the 1983 review of this case. The record did not indicate the victim suffered
more than the initial blow which rendered him unconscious. 180 Ariz. at 579.
Heinous or Depraved: Reversed.
Gratuitous Violence: Not found. The victim was run over by a car twice
after having been beaten with rocks and fists. The Court found the record was unclear on
the issue of whether defendant was the driver. A witness, Faith, testified that defendant
was driving, but she was high on heroin at the time, had been vomiting during the incident
and was lying in the back seat with her eyes closed when the other two people (including
defendant) got into the car and drove away. Another witness stated that Faith had told her
previously that defendant was not driving. Defendant stated that a third party was the
driver. The Court next addressed, if defendant were the driver, whether driving over
someone twice constitutes gratuitous violence. There was no evidence as to whether
defendant intended to mutilate the victim or whether, thinking he was not yet dead from
the beating, he simply intended to kill him. The Court found it possible that if a person
intentionally drives over a person twice, whether or not he knows the victim is dead after
the first pass, it could be gratuitous violence. However, the Court, in this case, did not
find gratuitous violence.
Mutilation: Not found. The Court addressed mutilation in
conjunction with gratuitous violence.
MITIGATING CIRCUMSTANCES:
The Court reduced the defendant's death sentence to life,
based largely on the evidence of his changed character during the twenty years since he
was originally sentenced to death. The Court found the evidence quite "persuasive and
unusual for a capital case." See case annotation in Model Prisoner section.
JUDGMENT: Convictions affirmed,
sentence of death reduced to life in prison without the possibility of parole for
twenty-five years, to be served consecutively to a life sentence for a "prior"
murder conviction.
Note: For extensive prior history, see
case summary for State v. Richmond, 136 Ariz. 312, 666 P.2d 57 (1983).
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