| State v. Hensley
(Hensley II), 142 Ariz. 598, 691 P.2d 689 (1984) PROCEDURAL POSTURE: Defendant was convicted
in Superior Court (Maricopa) of two counts of first-degree murder, attempted murder and
armed robbery. He was sentenced to death and appealed to the Arizona Supreme Court. The
Court affirmed the conviction and remanded the case back to the trial judge for
resentencing in State v. Hensley (Hensley I), 137 Ariz. 80, 669 P.2d 58 (1983).
After remand, the death sentence was reimposed and this is his automatic appeal from that
second sentence to the Arizona Supreme Court.
AGGRAVATING CIRCUMSTANCES:
(F)(5) (Pecuniary Gain) - UPHELD
Citing State v. Harding, 137 Ariz. 278, 670 P.2d 383 (1983), the Court
here reiterates that the defendant's overall goal must be one of pecuniary gain before the
(F)(5) aggravating circumstance can be found. If the death is unexpected or accidental and
not in furtherance of the pecuniary gain goal, then the factor does not apply. Looking to
the facts of this case, the murders were part of the overall robbery scheme. The specific
purpose was to facilitate the escape of the robbers. The defendant had the three victims
lie on the floor of the bar where he shot each of them in the head so that no witnesses
would be left to identify the robbers. These murders were not accidental or unexpected.
MITIGATING CIRCUMSTANCES:
The Court found the mitigation offered by the defendant -
that he had obtained a GED degree - was not sufficiently substantial to call for
leniency.
JUDGMENT: Conviction and sentence
affirmed. After affirming the death sentence the second time, the defendant petitioned for
post-conviction relief in the trial court. The trial court granted relief, vacating the
death sentence because his counsel was ineffective at sentencing for not introducing
evidence of his intoxication at the time of the crime. On resentencing, the defendant
received two consecutive life sentences without the possibility of parole for 25 years on
the murder convictions.
State v. Carriger (Carriger III), 143
Ariz. 142, 692 P.2d 991 (1984)
PROCEDURAL POSTURE: Defendant was
convicted in Superior Court (Maricopa) of first-degree murder and robbery. Defendant was
sentenced to death for the murder. On direct appeal, the Arizona Supreme Court affirmed
the convictions and sentences. State v. Carriger, 123 Ariz. 335 (1979). In 1982,
the defendant filed a Rule 32 petition in the Arizona Supreme Court. The Court found that
trial counsel was ineffective at sentencing, reversed the sentence and remanded the case
for resentencing and consideration of any other matters properly raised. The trial court
rejected all Rule 32 claims and resentenced the defendant to death for the murder. This is
defendant's automatic, direct appeal to the Arizona Supreme Court. The appealable issues
from the Rule 32 petition are also addressed by the Court.
AGGRAVATING CIRCUMSTANCES:
(F)(2) (Prior Violent Felony) - UPHELD
This finding was upheld without discussion.
(F)(5) (Pecuniary gain) - UPHELD
Carriger was convicted of killing a jewelry shop owner during the course of a
robbery of the shop. Carriger argued that the pecuniary gain finding was unlawful for two
reasons; first, it was specifically not found at his first sentencing and the state was
barred from proving this aggravating circumstance, and second, the facts proving this
circumstance are the same facts needed to prove the underlying felony of robbery. The
Court found both arguments without merit. The state was not barred from proving this
circumstance because the law had been clarified between the original sentencing and
resentencing. At the time of his first sentencing, the Court had not yet held that
pecuniary gain was defined to include a robbery. The facts did not change and they would
have supported this finding at the original sentencing; the only change was the judicial
construction of the statute. Further, the state must prove additional facts to prove this
aggravating circumstance, once it has proved the robbery. Proving a taking in a robbery
does not necessarily prove the motivation for a murder and the state cannot be said to be
using one fact to prove two different items.
(F)(6) (Heinous, Cruel or Depraved) - UPHELD
Cruel: Upheld.
Mental Anguish: Found. The victim pleaded for his life to no avail. The
defendant bound the victim, who was unable to avoid the blows that killed him. "The
inference is that the victim suffered the terror of being uncertain as to his fate and
being helpless to avoid the assailant."
Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The defendant used three forms of attack to
kill the victim. "Carriger inflicted gratuitous pain on the victim. . . . He struck
the victim with a skillet so hard that pieces of the skillet flew off and the victim's
brain was `jelled loose'; he then struck the victim in the head with a pointed object;
finally, he used the victim's tie to strangle the victim. The bloody scene and the
mutilation of the victim's head tend to prove the crime was heinous and depraved."
Senselessness: Found. Because the victim was bound, he was unable to hinder the
defendant's flight from the jewelry store robbery, "making the crime senseless."
Helplessness: Found. "[T]he victim was bound and helpless and the blows came
from behind the victim."
MITIGATING CIRCUMSTANCES:
The Court found that the following mitigating circumstances
existed, but they were not sufficiently to call for leniency:
Model Prisoner -[polite, few disciplinary problems]
Saved life of fellow inmate
Risked retaliation to ensure safety of prison counselor
Writes poetry, fiction and paints
Family Ties
The Court found the defendant failed to prove the following
were mitigating circumstances:
Residual doubt
Claim of innocence
Quality of evidence at trial -[untrustworthiness of state's main witness]
Conducted survey of death row inmates to determine why people kill]
JUDGMENT: Convictions and sentences
affirmed.
State v. Nash, 143 Ariz.
392, 694 P.2d 222 (1985)
PROCEDURAL POSTURE: The defendant
was convicted in Superior Court (Maricopa) of first- degree murder, armed robbery,
aggravated assault, and theft. He received prison sentences on all counts, except the
murder conviction for which he received the death penalty. This is his direct appeal to
the Arizona Supreme Court.
AGGRAVATING CIRCUMSTANCES:
(F)(2) (Prior Violent Felony) - UPHELD
The state presented sufficient evidence that the defendant was convicted of
robbery, assault with intent to murder, aggravated robbery, and second degree murder. The
defendant argued that without testimony regarding the specific facts of each crime, the
Court cannot judicially notice that those crimes were violent felonies upon other persons.
The Court disagreed and took judicial notice that all of the defendant's prior
convictions, which, by definition, were violent felonies committed against other persons.
(F)(3) (Grave Risk of Death to Others - UPHELD
The factor is satisfied if the defendant puts a third party in the Azone of
danger@ during the commission of the murder. Firing a gun while a third party was
within close proximity of the victim and then pointing the murder weapon at the third
party are two factors that put the third party in a zone of danger, and therefore, in
grave risk of death. The murder of the victim took place during an armed robbery of a
coin shop. After the defendant shot the victim, he pointed his gun at Susan McCullough but
did not fire at her. She was five feet away from the defendant when he pointed the gun at
her. She was in close proximity to the victim when he was shot three times by the
defendant.
(F)(5) (Pecuniary Gain) - UPHELD
The Court reiterated that this aggravating circumstance is not unconstitutionally
vague and arbitrary. The defense argued that (F)(5) should only apply to murder for hire
situations, but the Court stated that this argument had already been rejected in State
v. Clark, 126 Ariz. 428, 616 P.2d 888 (1980). Receiving something of pecuniary value
must be the impetus for the murder, not just the result. Here, the murder was part of the
overall scheme of robbery with the specific purpose to obtain items of pecuniary value.
The defendant entered the coin shop with a gun and duffel bag and demanded money. He shot
the defenseless victim, and after the victim tried unsuccessfully to defend himself, the
defendant shot him again two more times and took money. The defendant had a plan to rob
and the murder furthered that plan. The murder was not unexpected or accidental. This
murder was not motivated by self-defense.
MITIGATING CIRCUMSTANCES:
The Court found that the defendant failed to prove by a
preponderance of the evidence the following mitigating circumstance:
(G)(1) - Significant Impairment
The Court found that the following was not mitigating in
this case:
Age -[67 years old at time of crime]
JUDGMENT: Convictions and sentences
affirmed.
State v. Patrick
Poland (Patrick Poland II), 144 Ariz. 388, 698 P.2d 183 (1985)
PROCEDURAL POSTURE: On retrial
defendant was convicted in Superior Court (Yavapai) of two counts of first-degree murder.
The trial court imposed the death penalty based on three aggravating factors. This is
defendant's automatic, direct appeal to the Arizona Supreme Court.
AGGRAVATING CIRCUMSTANCES:
(F)(2) (Prior Violent Felony) - UPHELD
The defendant had previously been convicted of a bank robbery. The Arizona
Supreme Court noted that a court may take judicial notice that certain felonies, by
definition, involve violence against others. Fear of force is an element of robbery and
the conviction is sufficient to support the (F)(2) finding.
(F)(5) (Pecuniary Gain) - UPHELD
The state proved beyond a reasonable doubt that Poland had a financial motivation
in committing these murders. Poland and his brother, Michael, robbed a Purolator van
containing approximately $328,180.00 in cash, and killed the two Purolator guards. The
Court concluded that the murders were part of an overall scheme to obtain items of
pecuniary value and the finding was "clearly warranted."
(F)(6) (Heinous, Cruel or Depraved) - REVERSED
Cruel: Reversed.
Mental Anguish: Not found. See physical pain.
Physical Pain: Not found. The state did not show that the victims were conscious
at the time of their death. Both victims (armored car guards) were believed to have
drowned, although one might have died of a heart attack. There was no conclusive evidence
whether the guards were drugged. Further, there was no evidence concerning the conditions
of their confinement. Autopsies revealed no evidence that the guards were bound or injured
prior to being placed in the water, and there was no sign of a struggle.
Heinous or Depraved: Reversed.
The Court found insufficient evidence on the record of the exact circumstances of the
guards' deaths. Especially lacking was any information of the circumstances under which
the guards were held hostage.
MITIGATING CIRCUMSTANCES:
The Court found that the following mitigating circumstances
existed, but they were not sufficiently to call for leniency:
Age -[27 years old at time of crime]
Model Prisoner
The Court found the defendant failed to prove by a
preponderance of the evidence the following mitigating circumstance:
Good Character
JUDGMENT: Conviction and sentences
affirmed.
State v. Michael
Poland (Michael Poland II), 144 Ariz. 412, 698 P.2d 207 (1985)
PROCEDURAL POSTURE: On retrial the
defendant was convicted in Superior Court (Yavapai) of two counts of first-degree murder.
The trial court imposed the death penalty based on two aggravating factors. This is the
defendant's automatic, direct appeal to the Arizona Supreme Court.
AGGRAVATING CIRCUMSTANCES:
(F)(5) (Pecuniary Gain) - UPHELD
These murders had a financial motivation. The defendant obtained items used in
the robbery of the Purolator van and in disposing of the guards' bodies. The purchase of
canvas bags in which the bodies were found indicates that the murders were contemplated
during the planning of the robbery. These murders, therefore, were part of an overall
scheme to obtain items of pecuniary value.
(F)(6) (Heinous, Cruel or Depraved) - REVERSED
Cruel: Reversed.
Mental Anguish: Not found. See physical pain.
Physical Pain: Not found. The state did not show that the victims were conscious
at the time of their death. Both victims (armored car guards) were believed to have
drowned, although one might have died of a heart attack. There was no conclusive evidence
whether the guards were drugged. Further, there was no evidence concerning the conditions
of their confinement. Autopsies revealed no evidence that the guards were bound or injured
prior to being placed in the water, and there was no sign of a struggle.
Heinous or Depraved: Reversed.
The Court found insufficient evidence on the record of the exact circumstances of the
guards' deaths. Especially lacking was any information of the circumstances under which
the guards were held hostage.
MITIGATING CIRCUMSTANCES:
The Court found the existence of the following mitigating
circumstances, but they were not sufficiently substantial to call for leniency:
Age -[36 years old at the time of the murder]
Family Ties
Model Prisoner
The Court found that the defendant failed to prove the
following mitigating circumstance:
Good Character
JUDGMENT: Conviction affirmed.
Although the (F)(6) finding was reversed, the Court upheld the death sentence based on
A.R.S. § 13-751(F)(5).
State v. Gerlaugh
(Gerlaugh II), 144 Ariz. 449, 698 P.2d 694 (1985)
PROCEDURAL POSTURE: Defendant was
convicted, at a joint trial, in Superior Court (Maricopa) of first-degree murder, armed
robbery, and kidnapping. Defendant was sentenced to death for the murder. His convictions
and sentences were affirmed on appeal. Defendant then brought a petition for
post-conviction relief pursuant to Rule 32. After an evidentiary hearing, the trial court
denied his Rule 32 petition. This is the defendant's appeal from the denial of his Rule 32
petition.
AGGRAVATING CIRCUMSTANCES:
(F)(1) (Prior Life or Death Felony) - UPHELD
The Arizona Supreme Court found no error in the trial court's finding that this
aggravating circumstance existed. 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.
(F)(5) (Pecuniary Gain) - UPHELD
(F)(6) (Heinous, Cruel or Depraved) - UPHELD
The trial court's finding of "especially heinous, cruel or depraved
manner" was not erroneous. The finding was not discussed further by the Court. 144
Ariz. at 458.
Cruel: Not Addressed
Heinous or Depraved: Not addressed
MITIGATING CIRCUMSTANCES:
In reviewing the denial of the defendant's Rule 32
petition, which claimed ineffective assistance of counsel at sentencing, the court
considered whether certain mitigating evidence would have changed the result. The Court
found no probability that the evidence would have established the following mitigating
circumstances:
(G)(1) Significant Impairment
Difficult childhood
Age
Sentencing Disparity
Follower
Cooperation
Impairment - [intoxication]
Good Character
JUDGMENT: Order denying
post-conviction relief was affirmed.
State v. Roscoe (Roscoe
I), 145 Ariz. 212, 700 P.2d 1312 (1984)
PROCEDURAL POSTURE: Defendant was
convicted in Superior Court (Maricopa) of first-degree murder, kidnapping, and two counts
of child molesting. The trial court imposed the death penalty. This is defendant's
automatic, direct appeal to the Arizona Supreme Court.
AGGRAVATING CIRCUMSTANCES:
(F)(6) (Heinous, Cruel or Depraved) - UPHELD
Cruel: Upheld.
Mental Anguish: Found. See Physical Pain.
Physical Pain: Found. The Court found that the seven-year-old victim experienced
both mental and physical suffering but does not further elaborate on the facts.
Heinous or Depraved: Upheld.
Senselessness: Found. The Court found generally that the crime reflected
a heinous and depraved state of mind. The Court specifically said that the killing was
senseless, given the abduction, violent sexual penetration and strangulation of a helpless
seven-year-old child.
Helplessness: Found. See "senselessness."
MITIGATING CIRCUMSTANCES:
The Court found the existence of the following mitigating
circumstances, but they were not sufficiently substantial to call for leniency:
Age
Family Ties
The Court found that the defendant failed to prove the
following mitigating circumstance:
Felony murder instruction -[no evidence of lack of
intent]
JUDGMENT: Conviction and death
sentence affirmed. Defendant was granted a new trial in state post-conviction proceedings
after showing that the state had offered fabricated evidence at trial. Defendant was again
convicted and sentenced to death. State v. Roscoe, 910 P.2d 635, 184 Ariz. 484
(1996).
State v. Martinez-Villareal,
145 Ariz. 441, 702 P.2d 670 (1985)
PROCEDURAL POSTURE: Defendant was
convicted in Superior Court (Santa Cruz) of two counts of first-degree murder and one
count of first-degree burglary. The trial court imposed the death penalty. This is
defendant's automatic, direct appeal to the Arizona Supreme Court.
AGGRAVATING CIRCUMSTANCES:
(F)(5) (Pecuniary Gain) - UPHELD
This finding was not contested by the defendant on appeal. There was substantial
evidence at trial to show that the defendant was at the ranch to rob the victims and steal
a truck before he or another participant shot the two victims on the ranch.
(F)(6) (Heinous, Cruel or Depraved) - UPHELD
Cruel: Not addressed.
Heinous or Depraved: Upheld.
Relishing: Found. The defendant relished the killing by bragging that he
murdered to show "machismo." "This horrific form of ego gratification
constitutes a manifest disregard for the fundamental principles upon which our society is
based." 145 Ariz. at 451.
Senselessness: Found. The murders were senseless, but the Court did not elaborate
on the facts beyond mention that the victims were unarmed.
Helplessness: Found. The Court explicitly states that the victims were
"helpless," noting that they were unarmed and offered no apparent resistance to
the burglary.
MITIGATING CIRCUMSTANCES:
The Court found that the defendant failed to prove the
following mitigating circumstances
(G)(2) Duress
(G)(3) - Minor Participation
JUDGMENT: Convictions and sentences
affirmed.
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