Introduction    |   Table of Contents

PROCEDURAL POSTURE: The defendant was convicted of first-degree murder and sentenced to death. On direct appeal, the Arizona Supreme Court affirmed the sentence in Schad I, 129 Ariz. 557, 633 P.2d 366 (1981). On the defendant's petition for post-conviction relief, the Arizona Supreme Court reversed the conviction, holding that the trial court committed fundamental error by instructing the jury on felony murder without defining the elements of the underlying felony. Schad II, 142 Ariz. 619, 691 P.2d 710 (1984). On remand, the defendant was convicted of first-degree murder and sentenced to death. This is the defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
The defendant was previously 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.

(F)(2) (Prior Violent Felony) - DISCUSSED
The defendant was previously convicted of second-degree murder. The defendant argued that death was an accident involving no physical force. The state argued that murder is inherently a violent crime, and cannot occur without some type of violence to the victim. The Court did not resolve the issue because the trial judge found that the total mitigation present was not sufficient to overcome any one of the aggravating factors in this case. The trial court found both (F)(1) and (F)(5) in addition to (F)(2). Any of those other factors would have been sufficient to support the death sentence.

(F)(5) (Pecuniary Gain) - UPHELD
The evidence "strongly supports" the trial court's (F)(5) finding. After encountering the victim, the defendant abandoned the stolen car that he had been driving and took the victim's car. He also left the murder scene with the victim's wallet, money, credit cards and ring. "This provides strong circumstantial evidence that the purpose of the murder was pecuniary gain."

MITIGATING CIRCUMSTANCES:

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

Potential for Rehabilitation
Model Prisoner ["exemplary behavior"]

JUDGMENT: Conviction and sentence affirmed.

State v. Robinson and Washington, 165 Ariz. 51, 796 P.2d 853 (1990)

PROCEDURAL POSTURE: Codefendants Robinson and Washington were convicted in Superior Court (Yuma) of first-degree murder, attempted first-degree murder, aggravated assault, first-degree burglary and armed robbery after a joint jury trial. Both were sentenced to death. This is the defendants' automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(4) (Procured Commission of Offense) - UPHELD (as to Robinson)
Washington told police that he agreed to participate in Robinson's plan to rip off a cocaine dealer and take any money and drugs present in the house. Apparently, Washington did not know that the victims were actually the parents of Robinson's common-law wife, and not drug dealers. Washington was guided to the house by Robinson. At the house, Washington demanded drugs or money from the victims. The Court found that these facts supported the trial court's finding that Robinson procured the commission of the offense by promising pecuniary gain to Washington.

(F)(5) (Pecuniary Gain) - UPHELD (as to Washington)
                                      REVERSED (as to Robinson)
Washington's motivation for committing the murders was pecuniary gain. He searched the house for valuables and some items were stolen from the house. He also demanded drugs and money from the victims. On the other hand, there is no evidence that Robinson thought the victims were drug dealers. He went to the house motivated only by revenge and a desire to retrieve Susan, his common-law wife, who was the daughter of the victims.

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

Cruel: Upheld.
Mental Anguish: Found. The Court found that the wife experienced mental anguish before the murder. "The evidence indicated that Sterleen Hill was startled by the sudden intrusion of two armed individuals in her home. She and her husband were bound and forced to lie face down on their bedroom floor while demands were made upon them to produce drugs and money. Being bound would have caused Sterleen great distress. The Court could infer that Sterleen was uncertain as to her ultimate fate. Because there was no evidence that she was rendered unconscious by a physical blow prior to being executed, she, like Ralph Hill, probably heard one of the intruders state that they should `get' the Hills' teenage son. Ralph Hill testified that he was then suddenly rendered unconscious. The evidence supports the inference that his loss of consciousness resulted from being shot in the back with a .12Cgauge shotgun. Sterleen Hill would have witnessed this. Being aware that Ralph had been shot, and undoubtedly realizing that she was next, supports a finding of mental suffering by Sterleen." Moreover, since the weapon was a pump shotgun, a short span of time must have lapsed between the shot to the husband's back and the killing of the wife.

Heinous or Depraved: Upheld.
Senselessness: Found. "As difficult as it may be to define depravity, the gangland-style action of forcing two elderly persons to lay face down on the floor, tying them up, then senselessly shooting them amounts to depraved conduct."

MITIGATING CIRCUMSTANCES:

Robinson did not proffer any mitigation and the Court agreed with the trial court that no mitigating circumstances existed. As for Washington, the Court found the following mitigating circumstance existed, but was not sufficiently substantial to call for leniency:

Family Ties [single parent, raising young son]

The Court found that Washington failed to prove by a preponderance of the evidence the existence of the following as mitigating circumstances:

Impairment [to "any degree" from alcohol]
Age [27 years old at time of crime]

JUDGMENT: Convictions and sentences affirmed.

State v. Comer, 165 Ariz. 413, 799 P.2d 333 (1990)

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

AGGRAVATING CIRCUMSTANCES:

(F)(2) (Prior Violent Felony) - UPHELD
The defendant was previously convicted in California of rape, by threats and by force, and assault with a deadly weapon. A certified copy of these convictions was introduced, along with fingerprint evidence linking the documents to the defendant. The Court noted that the statutory definitions of both crimes involved the use or threat of violence upon another person.

(F)(5) (Pecuniary Gain) - UPHELD
The evidence established that Comer had run out of money when he arrived at the Burnt Corral campground. The victim was invited to dinner at Comer's campsite, after which Comer killed him. Comer then went to the victim's campsite and took a camera, fishing equipment and other items. He also looked for money, but found none. The murder was "clearly" motivated by Comer's need for money and supplies. The Court found no merit in Comer's claim that the (F)(5) finding was erroneous because the items taken from the victim's campsite were of little value. "[T]he murder was committed with the expectation that [Comer] would find money, gas and other supplies at [the victim's] campsite. The fact that he did not obtain money or property of any substantial value does not negate his original expectation of pecuniary gain."

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

Cruel: Not addressed.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The defendant told his companion that he stabbed the victim in the throat after the shooting, which the autopsy confirmed.
Relishing: Found. Shortly after shooting the victim, defendant forced his companion to look at the victim's body and described himself to her as "a cold and callous killer." 165 Ariz. at 429.
Senselessness: Found. It was not necessary to kill the victim in order to rob him. The term "senseless" does not mean the crime was committed without purpose, but rather that it was unnecessary to achieve the defendant's goal, such as robbery. 165 Ariz. at 429.
Helplessness: Found. The victim suffered from a physical disability that made it difficult for him to walk or stand.

MITIGATING CIRCUMSTANCES:

The trial court found no mitigating circumstances sufficiently substantial to call for leniency, and the Court agreed after an independent review of the record. (There is no further discussion in this opinion about what, if any, mitigation evidence was presented by the defendant).

JUDGMENT: Convictions and sentences affirmed.

State v. Hinchey (Hinchey I), 165 Ariz. 432, 799 P.2d 352 (1990)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder and attempted first-degree murder, and was sentenced to death for the murder. 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 the existence of this aggravating factor based on a prior conviction for endangerment, took judicial notice of this conviction, and heard testimony from the murder victim's mother to prove that violence was used in the prior endangerment offense. The Court reiterated that the crime must, by statutory definition, involve the use or threat of violence. Furthermore, the court may consider only evidence of the conviction. Allowing other evidence violates the defendant's due process rights. Endangerment cannot support this aggravating factor as the statutory definition does not necessarily require violence, namely the exertion of physical force or an intent to harm.

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

Cruel: Reversed. "To qualify as a §13-751(F)(6) 'committed in an especially cruel manner' aggravating circumstance, defendant's acts must have been committed while the victim was conscious; otherwise, the evidence is inconclusive as to whether the victim actually suffered pain or distress."
Mental Anguish: Not found. The Court found insufficient evidence of mental anguish because consciousness of the victim was not proven beyond a reasonable doubt. The medical examiner's testimony suggested that the gunshot wound could have rendered the victim unconscious. The defendant confessed that he shot the victim first, and the state presented no evidence to contradict the defendant's confession.
Physical Pain: Not found. The State conceded that the victim's moaning was the only evidence that she suffered pain, and such moaning might have been an involuntary and reflexive act. The medical examiner's testimony suggested that the gunshot wound could have rendered the victim unconscious, and medical evidence could not determine whether the gunshot to the head or stab wounds to the abdomen came first.
Knew or Reason to Know that Victim Would Suffer: Not found. "In addition, the State must show that defendant either intended or reasonably foresaw that the victim would suffer as a result of his acts." 165 Ariz. at 438. The Court points out that the State presented no evidence that defendant intended or foresaw that the victim would suffer.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The Court held that the defendant used considerably more force than was necessary. The attack was committed with three separate instruments (a gun, a large bottle and a large knife). The victim was shot twice in the face, the defendant left the victim to pursue her mother, and returned to beat the victim over the head with a large bottle. Defendant then went to the kitchen to retrieve a large knife, returned to the victim's room and stabbed her several times, leaving the knife protruding from her abdomen.
Senselessness: Found. See helplessness.
Helplessness: Found. The victim, a seventeen-year-old girl, was asleep and helpless when defendant first entered her room.

MITIGATING CIRCUMSTANCES:

There is no discussion of mitigating circumstances in this opinion because the Court remanded for resentencing after reversing the (F)(2) aggravating circumstance. The Court noted that the trial court found that the mitigating circumstances were not sufficiently substantial to outweigh the two aggravating circumstances. Because the Court could not tell whether the trial court would have found the mitigating circumstances sufficient to outweigh the single remaining aggravating circumstance, the Court remanded to allow the trial court another opportunity to exercise its sentencing discretion.

JUDGMENT: Conviction affirmed. Death sentence vacated and remanded to the trial court for a hearing and resentencing because one aggravator, A.R.S. § 13-751(F)(2), was reversed. The trial court relied on Hinchey I to determine that the murder was "heinous or depraved," so Hinchey II did not revisit the issue.

State v. Jiménez, 165 Ariz. 444, 799 P.2d 785 (1990)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder 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: Reversed.
The trial court erroneously considered the fact that the victim was under fifteen years of age in its cruelty analysis. The victim's age is considered a separate aggravating circumstance pursuant to A.R.S. § 13-751(F)(9), and must not be considered a second time to support a finding of cruelty. The trial court also considered the victim "helpless," which is a factor to support that the murder was "heinous or depraved," but not cruel. "To support a finding of cruelty, the state must prove beyond a reasonable doubt that the victim was conscious and suffered pain or distress at the time of the offense. . . . It is not inherently `cruel' to murder a victim quickly and by surprise." 165 Ariz. at 453-54.
Mental Anguish: Not found. The victim knew and liked the defendant, and had no reason to feel fear or experience apprehension under the circumstances.
Physical Pain: Not found. Postmortem multiple stab wounds cannot be evidence of cruelty because they could not contribute to the victim's suffering. However, the stab wounds may be considered as evidence of heinousness or depravity. 165 Ariz. at 454. In his confession, defendant said that he heard the victim cry between the two incidents of strangulation. "We find this evidence inconclusive to establish beyond a reasonable doubt that the victim suffered in such a way that the Court could conclude the crime was committed in an especially cruel manner within the specific legal meaning of A.R.S. § 13-751(F)(6). . . . Although defendant related at one point that the victim was crying while he was stabbing her, the pathologist conclusively found that the stab wounds occurred after her death." The Court also noted that the defendant was "hearing voices," rendering his statements unreliable. Moreover, the state did not present any expert or other testimony that the "cry" was evidence of consciousness, as opposed to an involuntary reflex.

Heinous or Depraved: Upheld.
Gratuitous Violence: Found. The Court found both gratuitous violence and mutilation based on the numerous postmortem stab wounds.
Mutilation: Found. Numerous postmortem stab wounds establish mutilation.
Senselessness: Found. Defendant, with no apparent reason, murdered a helpless child who trusted him.
Helplessness: Found. The victim was a five-year-old child who trusted defendant.

(F)(9) (Victim under 15 Years of Age) - UPHELD
The defendant committed the murder at age seventeen and was tried as an adult. The victim was under fifteen years of age.

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstance existed, but it alone was not sufficiently substantial to call for leniency:

Age [17 years old at time of murder]

The Court found that the following mitigating circumstance existed and was sufficiently substantial to call for leniency in this case:

(G)(1) Significant Impairment [schizophrenic with hallucinations]

JUDGMENT: Conviction affirmed. Sentence modified to life imprisonment without possibility of parole until defendant has served at least thirty-five years, pursuant to A.R.S. § 13-751(A), (E), and (F)(9), which apply because the victim was under fifteen years of age. The sentence was modified because the defendant's mental incapacity outweighed aggravating circumstances.

State v. Ronald Williams, 166 Ariz. 132, 800 P.2d 1240 (1987)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first-degree murder and burglary. He was sentenced to death for the murder conviction and fourteen years in prison for the burglary. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
The (F)(1) finding was 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 Arizona Supreme Court summarily agreed with the trial court that these two prior murder convictions, despite any of the circumstances surrounding those murders, sufficiently meet the requirements for an (F)(1) finding.

(F)(2) (Prior Violent Felony) - UPHELD
The (F)(2) finding was upheld with very little discussion. The defendant had two prior convictions for murder. At least one of those prior convictions was for felony murder. The Court found both convictions to be for serious crimes involving violence.

(F)(5) (Pecuniary Gain) - UPHELD
Citing State v. Walter LaGrand, 153 Ariz. 21, 734 P.2d 563 (1987), the Court held that no explanation exists for the killing other than the victim discovered a burglary in progress. Items were taken from the neighbor's house when the victim went over to investigate and was found shot to death. Unlike cases where other inferences exist as to the motive for the killing, or where the facts make no one inference any more probable than another, here the facts point to the killing occurring to permit the defendant to complete the burglary or make his escape. Either way, pecuniary gain was a motivating circumstance.

MITIGATING CIRCUMSTANCES:

The Court found that there were no mitigating circumstances sufficiently substantial to call for leniency. The Court found the defendant failed to prove by a preponderance of the evidence the existence of the following as mitigating circumstances:

Family Ties
Model Prisoner [good behavior]
Difficult Childhood/Family History
Circumstances of the prior convictions

JUDGMENT: Convictions and sentences affirmed.

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