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A.R.S.
§13-751(F)(1)-PRIOR CONVICTION-LIFE IMPRISONMENT OR
DEATH
A.R.S. §13-751(F)(1) provides that it shall be an aggravating circumstance
where "[t]he defendant has been convicted of another offense in
the United States for which under Arizona law a sentence of life
imprisonment or death was imposable."
History: This is one of the six original
aggravating circumstances included in the 1973 capital sentencing
statute. It is similar to
(F)(2) in that it considers prior convictions.
However, (F)(1) looks to the possible sentence under Arizona law at the time that the prior crime occurred, not the nature of that
prior crime. This
aggravating circumstance goes to the determination of the defendant's
character, and is not a recidivist or enhancement statute meant to
serve as a warning to first offenders and to encourage their reform.
State v. Steelman,
126 Ariz. 19, 612 P.2d 475 (1980).
The Meaning of “Conviction”: What Can be Used:
A conviction means a determination of guilt, not a formal entry
of judgment. State
v. Walden, 183 Ariz. 595, 905 P.2d 974 (1995).
A determination of guilt occurs by a plea in open court, or by
the return of a guilty verdict.
Id.
Prior convictions that are under collateral attack may still be
used to satisfy the (F)(1) aggravating circumstance.
State v. Jordan, 126 Ariz. 283, 614 P.2d 825 (1980).
Until the prior conviction is invalidated, it may support an
(F)(1) finding.
Relevant
Date of the Offense for Determining Sentence Eligibility:
The
relevant date for (F)(1) purposes of determining whether a defendant
could have received life or death is the date the prior offense
occurred, not the date of sentencing for that offense .
State v. Atwood, 171 Ariz. 576, 832 P.2d 593 (1992).
In Atwood, the
defendant committed a crime in California at a time when Arizona
law provided a sentence of five years to life for the offense. Before
the defendant was sentenced in California, Arizona law had been modified so that a
life sentence was no longer possible for that offense.
The Court held that the (F)(1) aggravating circumstance exists
if, on the date the offense occurred, it was possible to receive a
life sentence under Arizona law.
Time
Sequence in Relation to the Capital Homicide:
There is no
requirement that the prior conviction be based on an offense that
occurred before or concurrent with the capital homicide.
The Court has noted that (F)(1) makes no reference to when the
acts underlying the convictions must be committed.
Thus, in State v. Moody, 208 Ariz. 424, 94 P.3d 1119
(2004), the defendant was tried for two murders committed on two
separate occasions and found guilty of both by the same jury.
At the sentencing hearing, the trial court properly found that
each murder conviction supported applying (F)(1) to the other, even
though the first murder was committed prior to the second.
Offenses Providing for
Life: Currently, the following Arizona
statutes provide life sentences: A.R.S. § 13-705, 13-706(A),
13-709.02(A), 13-751, 13-1003(D), 13-1406(D), 13-3410(A), 13-3410
(B), and 13-1423(B). Some of these
statutes provide for a life sentence only if certain enhancement
factors exist. In State
v. Spencer, 176 Ariz. 36, 859 P.2d 146 (1993), the
Court said that a prior offense that normally does not carry a life
sentence nonetheless will satisfy (F)(1), if the sentence was enhanced
to life imprisonment. The
Court also held in Spencer
that an enhanced sentence could satisfy (F)(1) if it were imposed
under a statute, such as A.R.S. §13-604.02 that became law after
1973, when (F)(1) was enacted.
(F)(1) FINDING
UPHELD
State v. Jordan
(Jordan I), 114 Ariz. 452, 561 P.2d 1224 (1976)
(F)(1)
finding upheld. The
defendant had previously been convicted in Texas
of four felonies, namely robbery by assault and three counts of
aggravated robbery. He
argued that none of his convictions were punishable by life
imprisonment or death in Arizona.
The statute in effect at the time, A.R.S. §13-643, specifies a
minimum punishment without listing a maximum punishment with one
exception. Another statute
in effect at the time, A.R.S. §13-1644, authorizes a maximum
punishment of life imprisonment where no limit to the duration of
punishment is otherwise stated. Thus,
under Arizona law in effect at the time, the defendant could have been punished by
life imprisonment and therefore the (F)(1) finding was correct.
State v.
Arnett (Arnett I), 119 Ariz. 38, 579 P.2d 542 (1978)
(F)(1) finding upheld.
The Court rejected the defendant's argument that the
classification created by the (F)(1) factor is not necessary to
promote any compelling state interest and is therefore violative of
the constitutional guarantee of equal protection.
Specification of the punishment for a crime is peculiarly a
question of legislative policy. The
statute in question has a rational relationship to the furtherance of
a legitimate state purpose (providing information about the character
of the defendant that the legislature deems relevant to punishment for
first degree murder). The
defendant’s prior conviction in California was for the crime of lewd and
lascivious acts upon a child under the age of 14 years.
In Arizona, a similar act committed upon a
child under the age of 15 years was punishable from five years to
life, and thus satisfied the requirements of this factor.
State v.
Watson (Watson II), 120 Ariz. 441, 586 P.2d 1253 (1978)
(F)(1) finding upheld based on
felony robbery conviction.
State v.
Brookover, 124 Ariz. 38, 601 P.2d 1322 (1979)
(F)(1)
finding upheld without discussion.
The defendant had a prior conviction of possession of marijuana
for sale with a prior conviction, punishable from 5 years to life
imprisonment.
State v.
Arnett (Arnett II), 125 Ariz. 201, 608 P.2d 778 (1980)
(F)(1)
finding upheld on resentencing without discussion.
See Arnett I noted above.
State v. Mata
(Mata I), 125 Ariz. 233, 609 P.2d 48 (1980)
(F)(1)
finding upheld without discussion on resentencing.
State
v. Sylvester Smith, 125 Ariz. 412, 610 P.2d 46 (1980)
(F)(1)
finding upheld. The
defendant was convicted of murder in Texas in 1968. The trial court
judicially noticed and relied on a 1973 Texas statute to determine that the 1968 conviction for murder with malice
satisfied the (F)(1) factor. The
Court found this not to be error because the offense was, at a
minimum, equivalent to second degree murder in Arizona,
and in Arizona a life sentence could be imposed for that crime.
State v.
Steelman (Steelman II), 126 Ariz. 19, 612 P.2d 475 (1980)
(F)(1) finding upheld.
The defendant was convicted of nine counts of first degree
murder and five first degree robbery counts, which were committed after
the murder at issue. The
Court held that the sentencing statute makes no reference to when the
acts underlying the convictions must be committed.
(F)(1) goes to the determination of a defendant’s character
and is not a recidivist or enhancement statute meant to serve as a
warning to first offenders and encourage their reform. The
defendant’s prior convictions were properly used as an aggravating
factor under (F)(1) even though this prior conviction was a result of
the case being submitted to the trial court on the basis of the grand
jury transcripts.
State v.
Jordan (Jordan II), 126 Ariz. 283, 614 P.2d 825 (1980)
(F)(1)
finding upheld. The Court
rejected the defendant’s argument that convictions must occur before
the commission of the murder for which he received the death sentence.
The Court also rejected the defendant’s argument that
convictions are not final because they are being collaterally attacked
by means of petitions for habeas corpus.
Until a prior conviction
is set aside, it may be used to enhance a sentence, though invalid
prior convictions may not be used as an aggravating circumstance to
support the death penalty.
State v.
Greenawalt, 128 Ariz. 150, 624 P.2d 828 (1981)
(F)(1)
finding upheld. The Court
held that certified copies of prior first degree murder convictions
satisfy (F)(1) because these crimes are punishable by life
imprisonment or death in Arizona.
State v. Gretzler (Gretzler II), 128 Ariz. 583, 627 P.2d 1081 (1981)
Special
action in which the defendant's pleas to nine prior murder convictions
in California were upheld as not void, and could be used as an
aggravating circumstance under Arizona law ((F)(1)).
State v.
Watson (Watson III), 129 Ariz. 60, 628 P.2d 943 (1981)
(F)(1)
finding upheld based on a robbery conviction.
State v.
Vickers (Vickers I (Ponciano murder)), 129 Ariz. 506, 633 P.2d 315
(1981)
(F)(1)
finding upheld. Prior
conviction for assault with a deadly weapon under former A.R.S. §13-249
was sufficient to establish this aggravator.
State
v. Ricky Tison (Ricky Tison I), 129 Ariz. 526, 633 P.2d 335 (1981)
(F)(1)
finding should have been made by the trial court.
The defendant was convicted of seventeen counts of assault with
a deadly weapon for the events that took place at the prison in Florence and at his capture in Pinal County.
The trial court believed that these charges could have been
brought in a single information or indictment along with the charges
in this case. The Court
found that this viewpoint unduly limits the statutory reach of the
legislation. These were
separate criminal offenses that took place at the prison and at the
roadblock. They were
punishable by life imprisonment and should have been considered as
(F)(1) aggravating circumstances.
State
v. Raymond Tison (Raymond Tison I), 129 Ariz. 546, 633 P.2d 355 (1981)
See discussion in Ricky Tison I.
State v.
Schad (Schad I), 129 Ariz. 557, 633 P.2d 366 (1981)
(F)(1)
factor upheld. Prior
conviction for second degree murder was sufficient to uphold the
factor.
State
v. Joseph Smith (Joseph Smith II), 131 Ariz. 29, 638 P.2d 696 (1982)
(F)(1)
factor upheld. Prior
convictions for rape, rape in the first degree, and murder in the
first degree, sufficient to support trial court’s finding of the
factor. The defendant was
sentenced to death for the murder of two victims in this case.
The finding of a prior conviction of murder was based, as to
each victim, on the murder of the other victim.
State v.
Blazak (Blazak II), 131 Ariz. 598, 643 P.2d 694 (1982)
(F)(1)
finding upheld without discussion.
The trial court
based its (F)(1) finding on prior convictions for robbery, and assault
with intent to commit murder.
State v.
Valencia (Valencia III), 132 Ariz. 248, 645 P.2d 239 (1982)
(F)(1)
finding upheld. Prior
convictions in Arizona of rape, kidnapping, and robbery sufficient to support trial court’s
finding of the factor.
State v.
Gretzler (Gretzler III), 135 Ariz. 42, 659 P.2d 1 (1983)
(F)(1)
finding upheld. Nine prior
convictions for first degree murder sufficient to support the trial
court’s finding of the factor.
State v.
Richmond (Richmond II), 136 Ariz. 312, 666 P.2d 57 (1983)
(F)(1)
finding upheld. Prior
conviction for murder sufficient to support trial court’s finding of
this aggravating circumstance even though the prior conviction was
obtained after the conviction in the instant case, but before
resentencing.
State v.
Harding (Wise, Concannon murder), 137 Ariz. 278, 670 P.2d 383 (1983)
(F)(1)
finding upheld. Prior
conviction and sentence to life imprisonment for dangerous or deadly
assault by prisoner sufficient to support trial court’s finding of
factor.
State v.
Jordan (Jordan III), 137 Ariz. 504, 672 P.2d 169 (1983)
(F)(1)
finding upheld. The Court
reiterated that the defendant's arguments against the use of his four
prior felony convictions had already been heard and rejected in Jordan
I, and that these prior convictions had been proven beyond a
reasonable doubt at trial.
State v.
Harding (Gage murder), 141 Ariz. 492, 687 P.2d 1247 (1984)
(F)(1)
finding upheld. Prior
convictions in Arizona of dangerous or deadly assault by prisoner, and two counts of first
degree murder sufficient to support trial court’s finding of this
factor.
State v.
Gerlaugh (Gerlaugh II), 144 Ariz. 449, 698 P.2d 694 (1985)
(F)(1)
finding upheld. The
defendant had previously been convicted of robbery.
He did not contest the (F)(1) finding on appeal.
He did not contest the existence of the prior conviction, nor
the fact that a life sentence was imposable for that crime.
State v.
Bracy, 145 Ariz. 520, 751 P.2d 464 (1985)
(F)(1)
finding upheld. Prior
conviction in Illinois on three counts of first degree murder sufficient to support trial
court’s (F)(1) finding.
State v.
Hooper, 145 Ariz. 538, 751 P.2d 482 (1985)
(F)(1) finding upheld.
Prior conviction in Illinois on three counts of first degree
murder sufficient to support trial court’s finding of factor.
State
v. Bernard Smith, 146 Ariz. 491, 707 P.2d 289 (1985)
F)(1) finding upheld. The defendant had been convicted of three prior armed robberies
in Arizona which were on appeal at the time of this murder trial. Under Arizona law, the
defendant had received a mandatory life sentence for each of those convictions. The Court
reiterated that until a conviction is set aside, it should count as a conviction under
this aggravating circumstance.
State v.
Tittle, 147 Ariz. 339, 710 P.2d 449 (1985)
(F)(1)
finding upheld. The
defendant had a 1965 California robbery conviction. He
acknowledged that in 1965 a first-time robbery conviction in Arizona was punishable by five years to life. The Court rejected the argument
that robbery was not punishable by life imprisonment in Arizona at time of the defendant’s capital sentencing.
The trial court was required to look at the potential penalty
imposable at time the defendant was sentenced on the original
conviction.
State v.
Castaneda, 150 Ariz. 382, 724 P.2d 1 (1986)
(F)(1)
finding upheld. The
defendant had previously been convicted of aggravated assault, assault
with intent to commit rape, assault with a deadly weapon, armed
burglary, and lewd and lascivious acts.
Some of these priors were discussed in an earlier appeal of
this case in State v. Castenada,
111 Ariz. 264, 528 P.2d 608 (1974). Here,
the defendant claimed that there was no factual basis for his
competency to plead guilty to those earlier offenses.
The record indicates, however, that two mental health experts
testified to the fact that the defendant was competent to plead
guilty. The defense then
argued that the court never notified the defendant that by pleading
guilty, these convictions could be used to support the imposition of
the death penalty. Again,
the record indicates that the judge did discuss the fact that the
prior convictions could be considered in sentencing on the capital
case.
State v.
Moorman, 154 Ariz. 578, 744 P.2d 679 (1987)
(F)(1) finding upheld without
discussion.
State v.
Arnett (Arnett III), 158 Ariz. 15, 760 P.2d 1064 (1988)
(F)(1)
finding again upheld based on a California conviction for lewd and
lascivious acts upon
a child under fourteen. While
this conviction supports both an (F)(1) and (F)(2) finding, there is
no constitutional prohibition against using it as support for those
aggravating circumstances as long as it is only weighed once in
sentencing.
State v.
Mauro (Mauro II), 159 Ariz. 186, 766 P.2d 59 (1988)
(F)(1)
finding upheld. This was
based on a Colorado conviction for felony menacing. The
Court rejected the defendant’s argument that (F)(1) violates double
jeopardy or double punishment principles under A.R.S. §13-116.
State v.
Vickers (Vickers II (Holsinger murder)), 159 Ariz. 532, 768 P.2d 1177
(1989)
(F)(1)
finding upheld. The
defendant had previously been convicted of assault with a deadly
weapon, murder in the first degree, and dangerous or deadly assault by
a prisoner. The first
degree murder conviction had been set aside and a new trial ordered,
but the other two convictions were valid and punishable under Arizona law by life imprisonment. Thus,
the other two convictions still supported this aggravating
circumstance.
State v.
Schad (Schad III), 163 Ariz. 411, 788 P.2d 1162 (1989)
(F)(1)
finding upheld. The
defendant had previously been convicted of second degree murder, which
occurred in connection with mutual acts of sodomy.
The defendant argued that changes in the criminal code reducing
sodomy to a misdemeanor and the elimination of second degree felony
murder require that this Utah conviction not be considered in sentencing.
The Court disagreed and argued that it must
look to the penalty in effect at the time the defendant was sentenced
for the prior crime. In
1968, the maximum penalty for second degree murder was life
imprisonment. Furthermore,
the underlying offense was not sodomy, but second degree murder based
on the manner in which the sodomy was performed.
The victim in that case was found in a closet with his hands
and feet bound and two pieces of cloth around his neck.
The cloth around the neck was apparently used to restrict the
flow of blood to the brain to heighten the erotic stimulus.
Aside from the issue of the constitutionality of consensual
sodomy statutes, a state may lawfully punish a person for engaging in
conduct that exhibits a knowing or reckless disregard for human life.
State
v. Ronald Williams, 166 Ariz. 132, 800 P.2d 1240 (1987)
(F)(1)
finding upheld with almost no discussion.
The defendant had two prior felony convictions for murder at
the time he was sentenced for the 1981 murder of a Scottsdale man during a burglary. The
Court summarily agreed with the trial court that these two prior
murder convictions, despite any of the circumstances surrounding those
murders, sufficiently met the (F)(1) standard.
State v.
Schaaf, 169 Ariz. 323, 819 P.2d 909 (1991)
(F)(1) finding upheld without discussion.
State v.
Atwood, 171 Ariz. 576, 832 P.2d 593 (1992)
(F)(1)
upheld. In 1974 the
defendant was convicted in California of lewd and lascivious conduct
for a crime which occurred on June 18, 1974.
Arizona’s 1974 equivalent, A.R.S. §
13-652, provided for a sentence of five years to life for the offense.
The defendant argued that the statute that
succeeded § 13-652, which modified the sentence to less than life
imprisonment, should control because it was in effect at the time the
defendant was sentenced for his California crime. The Court clarified
that the relevant date for
(F)(1) purposes is the date the prior offense occurred, not the date
of sentencing for that offense, or the date of sentencing for the
capital murder conviction.
State v.
Spencer, 176 Ariz. 36, 859 P.2d 146 (1993)
(F)(1)
finding upheld. Before his
capital murder conviction, the defendant had been convicted of armed
robbery, a class 2 felony, with two prior convictions and while on
probation. He had received
a life sentence for that conviction under A.R.S. § 13-604.02.
Because that statute had been enacted after § 13-751(F)(1), he
argued it could not be used to support (F)(1). The Court rejected this
argument, stating that the legislature is presumed to know the law
when it passes a statute, and that it presumed § 13-604.02 would
apply to § 13-751. Moreover,
the defendant did not
dispute that his armed robbery sentence was lawful.
State v.
Henry (Henry I), 176 Ariz. 569, 863 P.2d 861 (1993)
(F)(1)
finding upheld. Prior
conviction in California of armed robbery used to support (F)(1) finding.
Since this conviction could be used to support both (F)(1) and
(F)(2), the Court clarified that on resentencing, the conviction could
be weighed only once.
State v.
Stuard, 176 Ariz. 589, 863 P.2d 881 (1993)
(F)(1)
finding not contested on appeal. The
defendant was convicted of three separate counts of first degree
murder (different dates) and a previous robbery.
The other murder counts and the robbery supported both the
(F)(1) and (F)(2) findings.
State v.
Richmond (Richmond III), 180 Ariz. 573, 886 P.2d 1329 (1994)
(F)(1)
factor upheld. Prior
conviction for murder sufficient to support trial court’s finding
even though the prior conviction was obtained after the conviction in
the instant case, but before resentencing.
State v.
Walden, 183 Ariz. 595, 905 P.2d 974 (1995)
(F)(1)
finding upheld. The
defendant was convicted of dangerous kidnapping and dangerous
aggravated assault at the same time as his first-degree murder
conviction. The kidnapping
and aggravated assault offenses occurred prior to the murder, while
all charges were tried together. The
defendant argued that these "Hannah" priors were
insufficient to support an (F)(1) finding because a conviction is not
entered before the court renders judgment, and judgment occurs at the
time of sentencing. This
argument was rejected because "conviction"
means a determination of guilt, not judgment.
The Court analyzed the meaning of conviction under both the
Rules of Criminal Procedure and in its ordinary usage.
A determination of guilt
occurs by a plea in open court, or by the return of a guilty verdict.
To require the formal entry of judgment would lead to
irrational and arbitrary results.
State v.
Towery, 186 Ariz. 168, 920 P.2d 290 (1996)
(F)(1)
finding upheld. It was
undisputed that Towery was convicted of four counts of armed robbery,
committed while on parole, making him eligible for a life sentence.
The Court stated that these facts support a finding under both
(F)(1) and (F)(2). Note:
Although the facts support a finding that both circumstances exist, a
court may not give weight to both circumstances when each is supported
by the same facts. See,
e.g., State v. Spencer.
State v.
Thornton, 187 Ariz. 325, 929 P.2d 676 (1996)
(F)(1)
finding upheld without discussion. The finding was not contested on
appeal.
State v.
Rogovich, 188 Ariz. 38, 932 P.2d 794 (1997)
(F)(1)
finding upheld. The Court
rejected the defendant’s argument that (F)(1) applied only to
convictions obtained outside the state of Arizona.
The defendant was convicted of four counts of first degree
murder, two counts of aggravated assault, two counts of armed robbery,
and one count of unlawful flight from a law enforcement vehicle.
He was sentenced to death on three of the four murders.
The three murders for which he received the death sentence
occurred the same afternoon in a trailer park.
The fourth murder occurred earlier that morning in a
convenience store. The
trial judge found (F)(1) for the three trailer park killings, but not
for the convenience store killing.
State v.
Chad Lee (Reynolds, Lacey murders),
189 Ariz. 590, 944 P.2d 1204 (1997)
(F)(1)
finding upheld. The
defendant argued that (F)(1) could not apply because the murder was
committed before the murder conviction for which he was sentenced
here. The Court said that convictions
entered prior to sentencing may be considered regardless of the order
in which the underlying crimes occurred or the order in which the
convictions were entered. For (F)(1) purposes, a conviction occurs
upon determination of guilt.
State v.
Chad Lee (Drury murder),
189 Ariz. 608, 944 P.2d 1222 (1997)
(F)(1)
factor upheld. Prior
convictions for first degree murder sufficient to support trial
court’s finding even though the prior convictions were based on
murders that occurred after the murder at issue.
State
v. Lehr (I), 201 Ariz. 509, 38 P.3d 1172 (2002)
Three
victims were murdered and seven victims survived the attacks. Two of the murder
convictions were reversed for limitations on cross-examination of DNA experts.
The remaining murder conviction was affirmed. The trial judge had used the two
murder convictions, now reversed, to aggravate the other murder conviction under
(F)(1). Nevertheless, the Supreme Court affirmed the (F)(1) finding because it
was supported by numerous counts of kidnapping and sexual assault, for which
life sentences were imposed.
State v. Robert
Jones,
197 Ariz. 290, 4 P.3d 345 (2000)
(F)(1)
finding upheld. The defendant was convicted of two killings at the
Moon Smoke Shop and four killings at the Fire Fighters Union Hall.
Because he was convicted of all six murders prior to sentencing, and
because each set of murders provides a sufficient basis for finding
the circumstance as to the other set of murders, the Court found
(F)(1) proven beyond a reasonable doubt. The defendant did not
challenge this finding on appeal.
State v. (Scott Douglas) Nordstrom,
206 Ariz. 242, 77 P.3d 40 (Sept. 24, 2003) (Ring).
(F)(1) finding upheld. Nordstrom was
convicted of six first-degree murder counts stemming from two separate
robberies committed in Tucson on different dates – one at the Moon Smoke Shop and one at the
Firefighter’s Union Hall. The
murders at the Moon Smoke Shop satisfied the (F)(1) aggravating factor
as to the Firefighter’s’ Union Hall murders, and the
Firefighters’ Union Hall murders satisfied the (F)(1) aggravating
factor for the Moon Smoke Shop murders.
State v. (Danny) Montano, 206 Ariz. 296, 77 P.3d 1246 (October 21, 2003) (Ring)
(F)(1) finding upheld.
Montano had two prior armed robbery convictions for which he
received two concurrent life sentences.
(The present crime was committed while Montano was
incarcerated). These
were separate from the prior conspiracy to commit first-degree murder
conviction, which was used by the court to support (F)(2).
State v. (Robert Joe) Moody, 208 Ariz. 424, 94 P.3d 1119 (August 9, 2004) (Ring)
(F)(1) finding upheld.
Moody was tried on the same occasion for killing two women on
different dates. The
jury’s verdict of guilt on the first-degree murder charge for the
killing the first victim supported applying this factor as to the
second, and the jury verdict of guilt on the second victim supported
applying this factor to the first.
The court re-affirmed that the “order of the crimes or
convictions themselves is not important.”
State
v. (Michael Joe) Murdaugh,
209 Ariz. 19, 97 P.3d 844 (2004) (Ring)
(F)(1)
finding upheld. On
the same day that Murdaugh pleaded guilty to the kidnapping and murder
in this case, he pleaded guilty to the kidnapping and first-degree
murder of another man (who was killed in a similar fashion).
At his plea hearing, Murdaugh acknowledged that his conviction
for the second murder could be used as an aggravating factor in the
present case.
State v. (Joe Clarence)
Smith, 215 Ariz. 221, 159 P.3d 531 (2007)
(Ring)
(F)(1) finding upheld. Three prior convictions for rape for which
Smith was sentenced to five years to life, ten years to life, and 75
years to life sufficient to support the jury’s finding.
State v. (Eugene) Tucker
(Tucker II), 215 Ariz. 298, 160 P.3d 177 (2007)
(Ring)
(F)(1) finding 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)(1)
FINDING REVERSED
State v.
Charles Lee, 114 Ariz. 101, 559 P.2d 657 (1976)
(F)(1) finding reversed. The state asked the trial court to take judicial notice of the
defendant's prior convictions for armed robbery and assault with a deadly weapon. The
Court disapproved of this procedure of taking judicial notice of a conviction in this
situation where it will be used to prove an aggravating circumstance. The Court also found
there was insufficient evidence in the record to prove the assault conviction, and
remanded the case for a new sentencing hearing because the armed robbery conviction had
been reversed on appeal.
State v.
Ortiz, 131 Ariz. 195, 639 P.2d 1020 (1982)
(F)(1) finding reversed. The basis for this aggravating circumstance was a conspiracy
conviction entered at the same time as the first degree murder conviction. The Court
reversed the (F)(1) finding, stating that a prior conviction must be entered prior to the
time for which jeopardy attaches on the first degree murder charge. Note: Subsequently, in
State v. Gretzler, 135 Ariz. 42, 57 n.2 (1983), the Court explained this
decision. The Court stated that convictions entered prior to a sentencing hearing may be
considered regardless of the order in which the underlying crimes occurred, or the order
in which the convictions were entered. To the extent any language in Ortiz
suggests the contrary, it is disapproved. In Ortiz, "the trial court erred
in considering a contemporaneous conviction for conspiracy to commit murder as aggravation
for the murder. This exclusion from consideration is best understood as having been
required because both convictions arose out of the same set of events."
State v.
Cornell, 179 Ariz. 314, 878 P.2d 1352 (1994)
(F)(1) finding 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.
State v. Lacy,
187 Ariz. 340, 92 P.2d 1288 (1996)
(F)(1) finding not applicable. The trial court specifically found that
(F)(1) and (F)(2) did not apply. The trial court did find (F)(8), but that aggravating circumstance
did not exist at the time this murder occurred. The state asked the Court to substitute
(F)(1) or (F)(2) for the (F)(8) finding. The Court declined to do so. The defendant was
convicted of two counts of first degree murder, both of which happened on the same night
at the same apartment.
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