Introduction    |   Table of Contents

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of two counts of first-degree murder and was sentenced to death for each of the murders. On direct appeal, the Arizona Supreme Court remanded the case for resentencing. State v. Gretzler, 126 Ariz. 60, 612 P.2d 1023. The trial court resentenced the defendant to death and this is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
Nine prior convictions for first-degree murder were sufficient to support the finding of this aggravating circumstance.

(F)(2) (Prior Violent Felony) - UPHELD
Nine prior convictions for first-degree murder were sufficient to support the finding of this aggravating circumstance.

(F)(5) (Pecuniary Gain) - UPHELD
The Court reiterated that this aggravating circumstance is not limited to contract killings, but rather, includes any murder committed for financial gain. After killing the Sandbergs, Gretzler took their automobile, credit cards, blank checks and camera. These facts reflect a financial motivation. Like State v. Tison, 129 Ariz. 546, 633 P.2d 355 (1981), the victims here were murdered to obtain a car to continue the defendant's flight. Gretzler stated "we needed their car. So we tied them up and did them in."

(F)(6) (Heinous, Cruel or Depraved) - UPHELD

Cruel: Upheld. "[C]ruel: disposed to inflict pain esp. in a wanton, insensate or vindictive manner: sadistic." 135 Ariz. at 51 (quoting State v. Knapp, 114 Ariz. 531, 543, 562 P.2d 704, 716 (1977)). "[C]ruelty involves the pain and distress visited upon the victims . . . ." "[O]ur concept of cruelty involves not only physical pain, but also `mental * * * distress visited upon the victims.'" "Where, however, there is no evidence that the victims actually suffered physical or mental pain prior to death, or where the evidence presented is inconclusive, we have held that cruelty was not shown." 135 Ariz. at 51.
Mental Anguish: Found. Both victims "suffered mental anguish as a result of being held prisoner for an extended period." Due to captivity, the female victim was highly emotional and had to take medication while being held prisoner. The victims "knew that their captors were armed, hiding from the police, and anxious to escape. It may be inferred that throughout their imprisonment, they were uncertain as to their ultimate fate. This uncertainty had to be intensified when they were taken to separate rooms, bound and gagged." 135 Ariz. at 53 (citing Steelman II). The female victim "had to endure the unimaginable terror of having her husband shot to death within her hearing, and then having to wait for her own turn to come." 135 Ariz. at 53.
Physical Pain: Found. The Court stated that "[t]he Sandbergs clearly suffered the kind of `mental and physical distress' we have held constitutes cruelty." 135 Ariz. at 53 (citing State v. Tison, 129 Ariz. 526, 543, 633 P.2d 335, 352 (1981)). The male victim was tied up in a crouched position for a sustained period. Twine was used to tie his ankles to his neck with the twine running up his back and around his neck in a V-pattern such that it would cause choking if he straightened his legs. The Court did not relate any facts of the female victim's physical distress or pain. It is unclear whether the Court, despite its statement that the couple suffered mental and physical distress, actually found physical-based cruelty with respect to the female victim.

Heinous or Depraved: Not found by trial court.
Although the trial court found cruelty as support for the (F)(6) aggravating circumstance, and did not address heinousness or depravity, the Arizona Supreme Court provided a lengthy analysis of "heinous or depraved" in response to the defendant's argument that the entire "heinous, cruel or depraved" circumstance was unconstitutionally broad and vague. The Court restated the specific factors that were "suggested" in its prior decisions as supporting a finding of heinousness or depravity. Those factors are: relishing, infliction of gratuitous violence, mutilation, senselessness, and helplessness.
Gratuitous Violence: The Court referred to gratuitous violence as a factor supporting heinousness or depravity, but did not apply the factor to this case.
Mutilation: The Court referred to mutilation as a factor supporting heinousness or depravity, but did not apply the factor to this case.
Relishing: The Court referred to relishing as a factor supporting heinousness or depravity, but did not apply the factor to this case.
Senselessness: The Court referred to senselessness as a factor supporting heinousness or depravity, but did not apply the factor to this case.
Helplessness: The Court referred to helplessness as a factor supporting heinousness or depravity, but did not apply the factor to this case.

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstances existed, but were not sufficiently substantial to call for leniency:

(G)(1) - Significant impairment - [continuous drug use impaired volitional capabilities]
Difficult Childhood/Family history
Favorable adjustment to prison

JUDGMENT: Convictions and sentences affirmed.

State v. Zaragoza, 135 Ariz. 63, 659 P.2d 22 (1983)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder and was sentenced to death. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - UPHELD
Prior convictions for assault with a deadly weapon and aggravated assault sufficient to support trial court's finding of this aggravating circumstance. Both offenses involved the actual use of violence on another person.

(F)(6) (Heinous, Cruel or Depraved) - UPHELD
The Court reiterated the definitions of the terms "especially heinous, cruel, or depraved," as set forth in State v. Knapp, 114 Ariz. 531, 562 P.2d 704 (1977), and reaffirmed its holding in State v. Poland, 132 Ariz. 269, 645 P.2d 784 (1982), establishing that cruelty consists of mental and physical pain inflicted on the victim, whereas heinousness or depravity focuses on the defendant's state of mind. The Court also recognized "that all first degree murders are heinous, cruel, or depraved to a degree. In order to fall within §13-751(F)(6), however, a murder must be especially heinous, cruel, or depraved. There must be something about the murder that sets it apart from the norm of first degree murder." 135 Ariz. at 68.

Cruel: Not found by trial court. Supreme Court agreed.
Mental Anguish: Not addressed.
Physical Pain: Not found. Consciousness of the victim at the time she received the blows to her head could not be established and there was no evidence that she suffered great pain.

Heinous or Depraved: Upheld.
Senselessness: Found. The Court found that the defendant could have "accomplished whatever criminal goals he desired without killing her. . . We find that by sexually assaulting Winifred Duggan and senselessly killing her, knowing full well that by virtue of her advanced age and limited mental capabilities she was easy prey, appellant demonstrated a shockingly evil and corrupt state of mind." 135 Ariz. at 69-70.
Helplessness: Found. The Court held that the seventy-eight-year-old victim had limited mental capacity and was, therefore, easily manipulated, which rendered her helpless.

MITIGATING CIRCUMSTANCES:

None sufficiently substantial to call for leniency. The Court found that the defendant failed to prove the existence of the following as mitigating circumstances:

(G)(1) - Significant impairment - [intoxication]
Felony murder instruction/Lack of intent to kill

JUDGMENT: Convictions and sentences affirmed.

State v. Gerlaugh (Gerlaugh I), 134 Ariz. 164, as supplemented by 135 Ariz. 89, 659 P.2d 642 (1983)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder and was sentenced to death. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

F(5) (Pecuniary Gain) - UPHELD
The evidence established that the defendant and two companions decided to hitchhike into Phoenix and to rob whomever offered them a ride. They were picked up by the victim and the defendant pointed a gun at him and demanded his money. The victim wrestled the gun from the defendant, but was knocked down and beaten. The defendant's companions held the victim down, while the defendant ran over him several times with the car, and finally, stabbed him with a screwdriver multiple times. The Court found that the facts amply support the conclusion that the taking of the victim's money was the motivation for the crime. "It is well settled that in this type of robbery/murder situation, the pecuniary gain circumstance is established."

F(6) (Heinous, Cruel or Depraved) - UPHELD
The majority of the Court upheld the trial court finding of F(6) without comment. Justice Cameron, in his concurring opinion, set forth his reasoning for upholding the F(6) factor. "I agree that the death penalty is appropriate in the instant case. I feel, however, that the imposition of this most serious sanction requires a more thorough enunciation of our reasons than is contained in the supplemental opinion." 135 Ariz. at 90 (concurring opinion).

Cruel: Upheld.
Mental Anguish: Found. See Physical Pain.
Physical Pain: Found. The Court held that "[b]efore murdering the victim, the killers subjected him to severe beatings for a period lasting between ten and fifteen minutes. With the victim still struggling, two of his assailants held him down to the road while the third, Gerlaugh, got into the victim's car and ran him over with it several times. The evidence shows that although the victim was badly hurt, he was still conscious at this time, and in fact began pleading with his assailants to tell him the reason for their attack. Defendant Gerlaugh then took a screwdriver from the rear of the car, which was used to stab the victim numerous times until his death. By killing Schwartz in this manner, the murderers caused him to suffer pain to an extent which clearly constitutes cruelty under our sentencing statute."

Heinous or Depraved: Not addressed.

MITIGATING CIRCUMSTANCES:

None sufficiently substantial to call for leniency. The Court found the defendant failed to prove that his youthful age at the time of the murder (19 years old) was a substantial mitigating circumstance, in light of his individual maturity and experience.

JUDGMENT: Conviction and sentence affirmed.

State v. Graham, 135 Ariz. 209, 660 P.2d 460 (1983)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Mohave) of one count of first-degree murder and was sentenced to death. This is the defendant's automatic direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(5) (Pecuniary Gain) - UPHELD
Citing State v. Clark, 126 Ariz. 428, 616 P.2d 888 (1980), the Court looked to the defendant's statements that he went to the victim's house to rob him and that he did rob the victim after shooting him, to conclude that this aggravating circumstance exists.

(F)(6) (Heinous, Cruel or Depraved) - REVERSED

Cruel: Reversed.
Mental Anguish: Not found. See Physical Pain.
Physical Pain: Not found. The defendant knocked on the door to the victim's house, and when the victim turned on the lights and opened the door, defendant turned and fired twice in rapid succession through the still closed screen door. The victim was shot once in the head and once in the chest. The medical examiner testified that in his opinion the victim was rendered unconscious immediately, died within five minutes and did not suffer.

Heinous or Depraved: Reversed.
Relishing: Not found. Two witnesses testified that defendant smiled as he told them the victim "squealed like a rabbit" when he was shot. However, the Court was not convinced that this, even if true, proved defendant relished the crime. The Court pointed to evidence that characterized defendant as an extremely immature person who was easily influenced by others, particularly by one of the testifying witnesses, and concluded that any statements made by defendant about the killing "are more likely attributable to his immaturity, nervousness and need to impress his peers than to a hardened attitude towards the death of another."

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstances existed and were sufficiently substantial to call for leniency:

(G)(1) - Significant impairment - [drug intoxication, chronic drug abuse, neurological problems, brain damage]
Lack of criminal history
Age - [21 years old at time of murder

JUDGMENT: Conviction affirmed, but death sentence reduced to life imprisonment without possibility of parole for twenty-five years, after reweighing mitigating circumstances against the one remaining aggravating circumstance, pecuniary gain.

State v. Jeffers, 135 Ariz. 404, 661 P.2d 1105 (1983)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of first-degree murder and sentenced to death. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(3) (Grave Risk of Death) - REVERSED
While the defendant was killing his victim by injecting her with heroin, Doris walked in on him. He pointed his gun at Doris, ordered her to be quiet, and then returned to the victim, whom he strangled. The trial court believed the defendant would have killed Doris had she not complied, but the Court disagreed, saying it appeared the defendant never intended to harm Doris. The Court said that the act of pointing a gun at someone by itself does not establish this aggravating circumstance.

(F)(6) (Heinous, Cruel or Depraved) - UPHELD

Cruel: Reversed.
Mental Anguish: Not found. Victim was injected with heroin, after which she lost and never regained consciousness. Since she was unconscious, there was no mental anguish.
Physical Pain: Not found. Because the victim was unconscious, she experienced no pain.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. "[C]ourts may consider the murderer's acts after the victim's death in determining if this aggravating factor exists." 135 Ariz. at 429. Defendant "climbed on top of the dead victim and hit her in the face several times which eventually resulted in additional wounds and bleeding."
Relishing: Found. "[W]hile Jeffers was beating the victim he called her `a bitch and a dirty snitch' and with each striking blow said, `This one is for so and so. [naming several names].'" 135 Ariz. at 430.

MITIGATING CIRCUMSTANCES:

None sufficiently substantial to call for leniency. The Court found that the defendant failed to prove the existence of the following mitigating circumstances:

(G)(1) - Significant impairment - [from drugs]
Victim's actions - [stormy relationship/heat of passion]
Residual doubt/Claim of innocence

It appears that the Court agreed with the trial court that the following mitigating circumstances existed:

Stress - [had some reason to be provoked]
Drug intoxication - [ingested heroin on the day of murder]

JUDGMENT: Conviction and sentence affirmed.

State v. Gillies (Gillies I), 135 Ariz. 500, 662 P.2d 1007 (1983)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder, kidnapping, sexual assault, aggravated robbery, and computer fraud. The defendant was sentenced to death on the first-degree murder count. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - REVERSED
The trial court found this aggravating circumstance based on a prior conviction for theft. The trial court allowed the victim in the prior theft case to testify regarding the violent circumstances of that crime. The Court held that the trial court incorrectly applied the (F)(2) aggravator. The prior conviction must be for a felony that by its statutory definition involves violence or the threat of violence on another person. Allowing a victim to testify regarding a prior crime violated due process.

(F)(5) (Pecuniary Gain) - REVERSED
Gillies and his companion accepted a ride home from the victim. En route, they grabbed the victim, stopped the car and raped her. Over a period of many hours, they drove her to her apartment and other locations, raped her, and eventually killed her. When arrested, Gillies was in possession of several of her belongings, including her credit cards. He had also withdrawn cash from her bank account by using her ATM card. The Court reiterated that receipt of items of pecuniary value must be the cause of the murder, not just the result. "Without some tangible evidence, or strong circumstantial inference, it is not for the sentencing court to conclude that because money and items were taken, the purpose of the murder was pecuniary gain." Here, the Court did not find any evidence that the receipt of pecuniary gain was a cause of the murder. In fact, Gillies' own confessions demonstrate that the purpose of the murder was to eliminate the victim as a witness to her own rape.

(F)(6) (Heinous, Cruel or Depraved) - UPHELD

Cruel: Upheld.
Mental Anguish: Found. Victim "was transported from Phoenix to the Superstitions not knowing her fate. . . . The victim clearly suffered both physical pain and mental anguish." 135 Ariz. at 513.
Physical Pain: Found. Victim was repeatedly raped, then thrown off a forty-foot cliff, then further brutalized and beaten into unconsciousness prior to her death. "We find an abundance of evidence of cruelty and that the statutory aggravating circumstance of `especially cruel, heinous or depraved' is present." 135 Ariz. at 513.

Heinous or Depraved: Not addressed. "Because the finding of cruelty is so compelling, it is unnecessary to make specific findings of heinousness and depravity."

(F)(7) (Murder Committed while in Custody) - REVERSED
The trial court found that the defendant committed the murder while in the custody of the Department of Corrections. The Court disagreed. On December 26, 1980, the defendant was granted work furlough status in connection with his prior theft conviction, permitting him to choose his place of residence and employment subject to approval by a supervising officer. The defendant moved to Weldon's Riding Stables where he both lived and worked at the time of the crime. A.R.S. §31-234(C) states that a person in a work furlough program is in the "constructive custody" of the Department of Corrections. To fall within the terms of §13-751(F)(7), the defendant must have "committed the offense while in the custody of the department of corrections, a law enforcement agency or county or city jail." The legislative intent of this section is to protect the guards and other inmates at such institutions where a defendant is confined and to discourage violence by incarcerated persons. The Court held that §13-751(F)(7) does not apply to one who is on unsecured work furlough status.

MITIGATING CIRCUMSTANCES:

The Court found the defendant's age at the time of the murder (20 years old) was a mitigating circumstance but not sufficiently substantial to call for leniency. The Court found that the defendant failed to prove the existence of the following mitigating circumstances:

(G)(1) - Significant Impairment
Mental Disorder
Intoxication
Felony Murder/Lack of intent to kill
Sentencing Disparity

JUDGMENT: Convictions and death sentence affirmed. In a supplemental opinion, the Court remanded for resentencing on the first-degree murder count because the Court had struck down three of the four aggravating circumstances found by the trial court. "Law and policy would indicate that the trial judge should again make the determination required by A.R.S. §13-751(F)."

State v. McMurtrey (McMurtrey I), 136 Ariz. 93, 664 P.2d 637 (1983)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of two counts of first-degree murder and attempted first-degree murder and was sentenced to death on each of the murder counts. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(3) (Grave Risk of Death to Others) - UPHELD
The defendant was involved in a shooting at the Ranch House Bar in Tucson. Following an altercation, he left the bar, obtained a gun, returned to the bar and shot the three victims. He killed two people and wounded a third. The Court agreed with the trial court that the bar was crowded that night and that there were between five to nine other people in the immediate area of the victims when they were shot. When the defendant emptied his gun at the victims, he created a grave risk of death to those other people.

MITIGATING CIRCUMSTANCES:

The Court remanded to the trial court for resentencing because the trial judge did not properly consider the mitigating evidence of impairment offered by the defendant. The trial court must first evaluate evidence regarding the defendant's mental condition to determine if it satisfies the requirements of the (G)(1) mitigating circumstance. The trial court did that here, and found that the defendant had an antisocial personality. Because the trial court concluded that those kinds of character defects are not mitigating under Arizona law, no further evaluation of that evidence occurred. Under Lockett and Watson, the inquiry should not end there. The trial court must examine the evidence further "to determine whether it in some other way suggested that [the defendant] . . . should be shown leniency."

JUDGMENT: Convictions and sentence for attempted first-degree murder affirmed. Remanded for resentencing on the murder counts, directing the trial judge to fully consider the mitigation evidence.

State v. McDaniel (McDaniel II), 136 Ariz. 188, 665 P.2d 70 (1983)

PROCEDURAL POSTURE: The defendant was tried four times on the first-degree murder charge that is the subject of this appeal. In the first trial, a motion for new trial was granted. After the second trial, the defendant's conviction was reversed by the Arizona Supreme Court on direct appeal. State v. McDaniel, 127 Ariz. 13, 617 P.2d 1129 (1980). The third trial resulted in a mistrial. In the fourth trial the defendant was convicted of first-degree murder, robbery, and kidnapping, and 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: Upheld.
Mental Anguish: Found. The Court did not distinguish between mental anguish and physical pain in its cruelty analysis. The Court found that evidence existed that the victim was conscious after being beaten, gagged, tied, wrapped in a blanket and locked in the trunk of his car. While being driven to an apartment complex where he was abandoned, the victim was "banging" in the trunk. "These facts, aggravated by the extreme August heat, indicate that [victim] suffered prior to his death as a result of the defendant's actions."
Physical Pain: Found. See Mental Anguish.
Knew or Reason to Know that Victim Would Suffer: Found. The Court stated that "under these circumstances McDaniel should have foreseen the victim's suffering."

Heinous or Depraved: Not addressed.

MITIGATING CIRCUMSTANCES:

The Court the defendant's lack of intent to kill was a mitigating circumstance sufficiently substantial to call for leniency. Whether a defendant intended to kill is an important consideration when deciding if the death penalty is an appropriate sentence. American criminal law has long considered a defendant's intentions, and therefore his moral guilt, to be crucial to the degree of his criminal culpability. McDaniel and several others participated in robbing, beating, gagging and tying the victim, then locking him in the trunk of his own car. The car was then driven to an apartment complex and abandoned. But there was a "good deal of evidence" suggesting that McDaniel and his accomplices did not intend to kill the victim. The car in which the victim was locked was left in an apartment complex where people would likely hear him inside the trunk. The windows to the car were left open and the keys were in the ignition so that someone walking by who heard the victim could let him out. Moreover, the jury's general verdict finding McDaniel guilty of first-degree murder did not establish his intent to kill since the jury could have convicted on either a premeditation or a felony-murder theory.

JUDGMENT: Convictions and noncapital sentences affirmed. The death sentence was reduced to life imprisonment without the possibility of parole for 25 years.

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