| State v. Bracy, 145 Ariz. 520, 751 P.2d 464
(1985) PROCEDURAL POSTURE:
Defendant was convicted in Superior Court (Maricopa) of one count of conspiracy to commit
first-degree murder, two counts of first-degree murder, one count of attempted
first-degree murder, three counts of kidnapping, three counts of armed robbery, and one
count of first-degree burglary. The trial court imposed the death penalty for each
first-degree murder conviction.. This is defendant's automatic, direct appeal to the
Arizona Supreme Court.
AGGRAVATING CIRCUMSTANCES:
(F)(1) (Prior Life or Death Felony) - UPHELD
Prior conviction in Illinois on three counts of first degree murder were
sufficient to support trial court's (F)(1) finding.
(F)(2) (Prior Violent Felony) - UPHELD
The defendant was previously convicted in Illinois of three counts of armed
robbery and three counts of aggravated kidnapping. The Court took judicial notice that all
of those crimes involved the use or threat of violence against others.
(F)(3) (Grave Risk of Death) - REVERSED
The defendant and two others bound and gagged three people and shot them each in
the head, intending to kill them. One victim survived. This aggravating circumstance did
not exist with respect to either of the two murders, because the survivor was an intended
victim of the crime and not a bystander in the zone of danger during the murderous act.
(F)(5) (Pecuniary Gain) - UPHELD
The Court found sufficient evidence to establish that Bracy was a hired murderer,
and concluded that this aggravating circumstance "indisputably" applies to this
fact situation. Bracy was one of three assailants hired to murder the victim in connection
with a business dispute. Evidence showed that prior to the murders, Bracy was given a
stack of $100 bills as advance payment, that he told a third part that he would be getting
$50,000 for a big job that was "not very pretty," and that other participants
had described the murders as contract killings.
(F)(6) (Heinous, Cruel or Depraved) - UPHELD
The Court cited State v. McCall, 139 Ariz. 147, 677 P.2d 920 (1983), cert.
denied, 467 U.S. 1220, 104 S. Ct. 2670, 81 L. Ed. 2d 375 (1984), for its discussion
of the facts of this case. The factual analysis below is largely identical to the analysis
in McCall.
Cruel: Upheld.
Mental Anguish: Found. The Court found that the victims experienced
mental suffering during the crimes. The victims were "herded" throughout the
home where they were killed at gunpoint. They were forced to lie down on the bed, had
their hands taped behind their backs and were gagged with socks. They knew the assailants
were armed. It could be inferred that they were uncertain as to their ultimate fate.
Except for the first victim shot, they had to experience hearing their loved ones shot to
death, and then wait for their own turn to come. In addition, one of the attackers said
"we don't need these two anymore" immediately before the shooting started.
Physical Pain: Found as to one of the victims. Expert medical testimony was given
that the victim did not die from the first gunshot wound to her head, that she did not
lose consciousness from that wound, and that she most certainly suffered pain from that
wound.
Heinous or Depraved: Upheld.
Gratuitous Violence: Found. See "Mutilation."
Mutilation: Found. The Court found the infliction of gratuitous violence
or mutilation as to one of the victims. The victim was not only shot twice in the
head, but also had his throat slashed open. Medical testimony established the that
slashing came just at the time of death or shortly thereafter. Testimony also supported
that this slashing was designed to be a "message" to warn other people.
Senselessness: Found. The Court found that the killing of one of the victims was
senseless. The victim was an elderly houseguest of the other victims, and had no possible
interest in their business affairs. Her murder did not further the plan [see
"note" below] of the killers.
Helplessness: Found. See "senselessness."
MITIGATING CIRCUMSTANCES:
The Court found no mitigating circumstances sufficiently
substantial to call for leniency. The Court found that the defendant's claim of
innocence was not a mitigating circumstance. The defendant testified at the
sentencing hearing that he was not in Arizona on the date of the murder and didn't kill
anyone. The Court noted that the jury found just the opposite and there was ample evidence
to support the verdict.
JUDGMENT: Conviction and sentences
affirmed.
Note: The facts of this case were also set
out in the appeal of McCall's co-defendant. See State v. Cruz, 137 Ariz.
541, 672 P.2d 470 (1983). The "plan" involved the killing of one of the victims;
the other two (his wife and mother-in-law) were at his home and thereby became victims as
well.
Comment: In their discussion of
"cruelty," the Court noted that the defendant must intend that the victim suffer
or reasonably foresee that there is a substantial likelihood that the victim will suffer. See
State v. Adamson, 136 Ariz. 250, 665 P.2d 972, cert. denied, 464 U.S.
865, 104 S. Ct. 204, 78 L. Ed. 2d 178 (1983). This standard was met with respect to the
mental anguish of the victims. However, the Court seems not to have applied the Adamson
requirement to the finding of physical pain by one of the victims. Compare the subsequent
case of State v. Smith, 146 Ariz. 491, 707 P.2d 289 (1985), where the Court finds
that a gunshot to the head was not intended to prolong suffering, but rather kill
immediately.
State v. Hooper, 145 Ariz.
538, 751 P.2d 482 (1985)
PROCEDURAL POSTURE: The defendant
was convicted in Superior Court (Maricopa) of one count of conspiracy to commit
first-degree murder, two counts of first-degree murder, one count of attempted
first-degree murder, three counts of kidnapping, three counts of armed robbery, and one
count of first-degree burglary. The Court imposed the death penalty for each count of
first-degree murder. This is the defendant's automatic, direct appeal to the Arizona
Supreme Court.
AGGRAVATING CIRCUMSTANCES:
(F)(1) (Prior Life or Death Felony) - UPHELD
Prior conviction in Illinois on three counts of first degree murder sufficient to
support trial court's finding of this aggravating circumstance.
(F)(2) (Prior Violent Felony) - UPHELD
Prior conviction in Illinois on three counts of armed robbery and three counts of
aggravated kidnapping sufficient to support trial court's finding of this aggravating
circumstance. The Court took judicial notice that all these crimes involve the use or
threat of violence against others.
(F)(3) (Grave Risk of Death) - REVERSED
The defendant and two others bound and gagged three people and shot them each in
the head, intending to kill them. One victim survived. This aggravating circumstance did
not exist with respect to either of the murders, because the survivor was an intended
victim of the crime and not a bystander in the zone of danger during the murderous act.
(F)(5) (Pecuniary Gain) - UPHELD
The defendant received some money as prepayment for the murders. The murders were
described by a witness as contract killings, and all three codefendants were armed with
guns shortly before the murders, and all spoke of coming into large amounts of money soon.
The evidence showed that the defendant was part of Robert Cruz' criminal organization and
an associate of codefendant William Bracy. Because the evidence established that the
defendant was a hired murderer, it clearly fit within the (F)(5) aggravator.
(F)(6) (Heinous, Cruel or Depraved) - UPHELD
For the same reasons stated in State v. Bracy, 145 Ariz. 520, 751 P.2d
464 (1985), the Court found the defendant committed the offense in an especially heinous,
cruel, or depraved manner. The analysis is not repeated here.
Cruel: Upheld.
Mental Anguish: Found. See State v. Bracy.
Physical Pain: Found. See State v. Bracy.
Heinous or Depraved: Upheld.
Gratuitous Violence: Found. See State v. Bracy.
Mutilation: Found. See State v. Bracy.
Relishing: Not addressed.
Senselessness: Found. See State v. Bracy.
Helplessness: Found. See State v. Bracy.
MITIGATING CIRCUMSTANCES:
The Court found that defense counsel's argument at
sentencing hearing that the death penalty is immoral, and the defendant's opposition to
the death penalty are not mitigating circumstances sufficiently substantial to call for
leniency.
JUDGMENT: Conviction and sentences
are affirmed.
State v. Rossi (Rossi I),
146 Ariz. 359, 706 P.2d 371 (1985)
PROCEDURAL POSTURE: Defendant was
convicted in Superior Court (Maricopa) of first-degree murder, first-degree burglary, and
attempted first-degree murder and was sentenced to death for the murder. This is
defendant's automatic, direct appeal to the Arizona Supreme Court.
AGGRAVATING CIRCUMSTANCES:
(F)(3) (Grave Risk of Death) - REVERSED
The defendant attempted to murder a woman who came into the house after he had
shot the victim to death. The Court said the factor was not satisfied because the woman
was an intended murder victim and she had not been in the "zone of danger"
during the victim's murder.
(F)(5) (Pecuniary Gain) - UPHELD
The (F)(5) finding was not discussed, except in reference to the
constitutionality of this aggravating circumstance, which had been previously decided in State
v. Nash, 143 Ariz. 392, 694 P.2d 222 (1985).
(F)(6) (Heinous, Cruel or Depraved) - UPHELD
Cruel: Upheld.
Mental Anguish: Found. The victim was grazed by the first gunshot, and
remained conscious after the second shot, which was to the chest. The victim had time to
reflect as to his ultimate fate and to plead for his life before the fatal shot.
Physical Pain: Found. The victim was in pain before his death. The first shot
grazed the victim, and the second shot was to the chest. The ammunition used by the
defendant was designed to create greater tissue damage. The victim was conscious for a
brief time after both shots were fired and before the final, fatal shot to the head.
Heinous or Depraved: Upheld.
Gratuitous Violence: Found. Defendant used special bullets designed to
inflict greater tissue damage than typical ammunition.
Relishing: Found. The defendant bragged about the murder, and gave three spent
bullets as a "souvenir" to a friend. After shooting the victim, defendant said
"that the bullets did not make as big a hole as they're supposed to."
Senselessness: Found. The murder was not necessary to complete the goal of
robbery and escape.
Helplessness: Found. The victim was sixty-six years old and in failing health.
The victim was in no position to prevent the robbery after defendant shot him in the
chest, further rendering him helpless.
MITIGATING CIRCUMSTANCES:
The Court vacated the death sentence because the trial
court used the wrong standard to evaluate the (G)(1) and (G)(2) mitigating circumstances.
The trial court thought that in order for impairment to be a mitigating circumstance under
(G)(1), it would have to rise to the level of a defense. Similarly, he thought that in
order to have the (G)(2) circumstance of duress, it would have to rise to the level of a
defense. The Court also found that the defendant failed to prove by a preponderance of the
evidence his ability to be rehabilitated.
JUDGMENT: Death sentence vacated,
not because of error in finding aggravation, but due to error in determining mitigation.
In Rossi II, 154 Ariz. 245, 741 P.2d 1233 (1987),
the Court found ability for rehabilitation, but held lack of showing that defendant was so
impaired that he could not appreciate the wrongfulness of his actions at the time of the
murder. No opinion was expressed as to a sentence of life or death. In Rossi III,
171 Ariz. 276, 830 P.2d 797 (1992), the Court ultimately upheld the imposition of the
death penalty for this murder. At no time after the first appeal was the trial court's
determination that the murder was committed in an especially "heinous, cruel, or
depraved" manner ever at issue.
State v. Bernard Smith,
146 Ariz. 491, 707 P.2d 289 (1985)
PROCEDURAL POSTURE: Defendant was
convicted in Superior Court (Yuma) of first-degree murder and armed robbery and was
sentenced to death for the murder. This is defendant's automatic, direct appeal to the
Arizona Supreme Court.
AGGRAVATING CIRCUMSTANCES:
(F)(1) (Prior Life or Death Felony) - UPHELD
The defendant had been convicted of three prior armed robberies in Arizona, which
were on appeal at the time of his trial for this murder. 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.
(F)(2) (Prior Violent Felony) - UPHELD
The defendant was previously convicted in Arizona of three counts of armed
robbery. The Court took judicial notice of the fact that armed robbery is a violent felony
committed against another person.
(F)(3) (Grave Risk of Death) - REVERSED
The murderous act itself must put others in a zone of danger. The defendant
entered a store and shot the cashier to obtain money in the register. Although there were
other people in the store at the time of the shooting the murderous at itself did not
place them within the zone of danger. The defendant shot only at the victim; the shooting
was not random and indiscriminate, but purposeful. The defendant pointed his gun at other
people in the parking lot and told them to go. The Court found that this activity did not
pose a grave risk of death to them.
(F)(5) (Pecuniary Gain) - UPHELD
The impetus for this murder was the expectation of pecuniary gain. Smith went into the Low
Cost Market to purchase cigarettes. After paying for the cigarettes, he told the clerk to
give him all the money in the cash register. When the clerk did not comply immediately and
called for the manager, Smith shot the clerk, took the money from the cash register and
left the store. Smith committed the murder "solely for the purpose of gaining access
to the cash register, which was in the victim's control." Smith, 146 Ariz.
at 503. Smith also claimed error in the trial judge's failure to specifically find that
the (F)(5) aggravating circumstance was established beyond a reasonable doubt. The Court
concluded that, although it is true that the state must prove the existence of aggravating
circumstances beyond a reasonable doubt, this burden had been met by the state at trial in
this case, and the lack of a specific, separate finding by the trial judge was not error
in this case. The Court noted that Smith was convicted of armed robbery of the clerk at
the convenience store and that, under the facts of this case, but certainly not of all
robberies, implicit in the finding by the jury that he committed armed robbery was a
finding beyond a reasonable doubt that Smith had committed the murder for pecuniary gain.
(F)(6) (Heinous, Cruel or Depraved) - REVERSED
Cruel: Reversed.
Knew or Reason to Know that Victim Would Suffer: Not found. The evidence of
cruelty was the pain and mental anguish of the victim during the two weeks after the
shooting and before the victim's death. However, the Court said that the state must show
that the defendant either intended or reasonably foresaw that the victim would suffer as a
result of the defendant's acts. The Court noted that the defendant shot the victim in the
head, which seems to show an intent to kill immediately, not an intent to prolong
suffering. See State v. Adamson, 136 Ariz. 250, 665 P.2d 972, cert. denied,
464 U.S. 865, 104 S. Ct. 204, 78 L. Ed. 2d 178 (1983); State v. Harding, 141
Ariz. 492, 687 P.2d 1247 (1984).
Heinous or Depraved: Reversed.
Gratuitous Violence: Not found. Defendant shot victim once and inflicted
no further violence.
Mutilation: Not found. The Court stated the defendant did not mutilate
the victim.
Relishing: Not found. "That defendant's actions may have been cold and
deliberate demonstrates not heinousness or depravity but the element of intent, which
established the mens rea necessary for the crime of first degree murder but is of no
consequence in the death sentencing determination." 146 Ariz. at 504.
MITIGATING CIRCUMSTANCES:
The Court found no mitigating circumstances sufficient to
call for leniency. The Court found the defendant's age (30 years old at the time of the
murder) was not a mitigating circumstance.
JUDGMENT: Conviction and death
sentence affirmed. The Court found error in the trial court's finding of
13-751(F)(6) and -751(F)(3), but affirmed the death sentence in light of the other three aggravating
circumstances and lack of mitigating circumstances.
State v. Evans (Evans III),
147 Ariz. 57, 708 P.2d 738 (1985)
PROCEDURAL POSTURE: The defendant
was convicted in Superior Court (Maricopa of first- degree murder and armed robbery and
sentenced to death. On appeal, the case was remanded to the trial court for resentencing.
The death sentence was again imposed. The Arizona Supreme Court, in Evans II, 124
Ariz. 526, 606 P.2d 16 (1980), affirmed the reimposition of the death sentence. The
defendant then petitioned for post-conviction relief, which was denied by the trial court.
This is the appeal from the denial of post-conviction relief.
AGGRAVATING CIRCUMSTANCES:
(F)(2) (Prior Violent Felony) - UPHELD
The defendant had previously been convicted in California of first degree
attempted robbery. The Court found that this crime could not be committed without the use
of force or fear against another after reviewing the applicable California statute. The
notation in the entry of judgment that the defendant did not use a deadly weapon during
the commission of the offense does not mean that this was not a crime of violence, as that
language concerned sentencing enhancement as opposed to the nature of the crime itself.
MITIGATING CIRCUMSTANCES:
There is no discussion of mitigating circumstances in this
opinion. This is the review of denial of post conviction relief.
JUDGMENT: The defendant is denied
relief.
The defendant filed a petition for habeas relief in federal
court. The district court denied relief and the defendant appealed that decision to the
Ninth Circuit Court of Appeals. The Ninth Circuit affirmed the conviction, but reversed
the trial court's ruling based on ineffective assistance of counsel at sentencing. The
Ninth Circuit released the defendant from the death sentence and remanded the case to
state court for resentencing. Evans v. Lewis, 855 F.2d 631 (1988).
State v. Tittle, 147 Ariz.
339, 710 P.2d 449 (1985)
PROCEDURAL POSTURE: The defendant
was convicted in Superior Court (Maricopa) of first- degree murder and armed robbery and
he was sentenced to death on the murder count. This is his automatic, direct appeal to the
Arizona Supreme Court.
AGGRAVATING CIRCUMSTANCES:
(F)(1) (Prior Life or Death Felony) - 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.
(F)(2) (Prior Violent Felony) - DISCUSSED
The trial court did not consider the California robbery conviction in connection
with the (F)(2) aggravating circumstance. The Court noted that on remand, the trial court
could also consider the robbery conviction for the purposes of (F)(2), without violating
double jeopardy.
MITIGATING CIRCUMSTANCES:
The Court found that the following mitigating circumstances
existed, but were not sufficiently substantial to call for leniency:
Remorse
Model Prisoner [changed attitudes and religious]
The Court found that the defendant failed to prove the
following mitigating circumstance by a preponderance of the evidence:
(G)(1) Significant Impairment [heroin use on day of
murder]
JUDGMENT: Remanded for
resentencing.
Back to Top |