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State v. Pandeli, 200 Ariz. 365, 26 P.3d 1136 (2002)

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

AGGRAVATING CIRCUMSTANCES:

(F)(2) (PRIOR CONVICTION- SERIOUS OFFENSE) – UPHELD
The defendant’s prior conviction for second degree murder was a "serious offense" supporting the (F)(2) aggravator.

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – UPHELD

Heinous or depraved: Upheld

Gratuitous Violence: Found
The victim died from a single deep knife slash to the throat. But forensic evidence also showed the defendant attempted to strangle the victim, and also inflicted blows to the head and chest that fractured the victim’s sternum. The absence of defensive wounds undermined the defendant’s contention that a struggle had occurred. The defendant’s actions thus were beyond that required to kill.

Mutilation: Found
The severing of both of the victim’s breasts after her death established mutilation.

MITIGATING CIRCUMSTANCES:

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

Rehabilitation
Adapted to incarceration
Educational advancements since incarceration
Remorse
Religious Faith

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

(G)(1) -- Significant Impairment: The Court assented to the trial court’s resolution of credibility disputes and found the defendant failed to meet his burden of proof.
Family and Developmental History, Mental/Emotional health. No nexus established.
Residual Doubt
Poor Health
Cooperation with Law Enforcement
Good Character

JUDGMENT: Conviction and death sentence affirmed.

State v. Lehr, 201 Ariz. 509, 38 P.3d 1172 (2002)

PROCEDURAL POSTURE: The defendant, in connection with attacks on ten different women, was convicted in Superior Court (Maricopa) of three counts of first degree murder and numerous assaults and sexual offenses. He was sentenced to death. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (PRIOR CONVICTION- LIFE IMPRISONMENT OR DEATH) – UPHELD
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.

(F)(2) (OLD LAW/PRE-1993/PRIOR CONVICTION- USE OR THREAT OF VIOLENCE) – UPHELD
Convictions for attempted first degree murder and aggravated assault were felonies "involving the use or threat of violence on another person" under the pre-1993 version of (F)(2).

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – REVERSED

Cruel: Reversed
Heinous or depraved: Reversed

Based on the testimony of victims who survived the defendant's attacks, the trial court inferred the remaining murder was especially cruel because the victim suffered terror and mental anguish from the time she was abducted until the moment she was killed. The Supreme Court found that there was little known about the victim’s death and "it is simply too speculative to conclude that this homicide was committed in a cruel, heinous, or depraved manner." Although the (F)(6) factor was set aside, the death sentence was affirmed based on the (F)(1) and (F)(2) factors.

MITIGATING CIRCUMSTANCES:

The trial court found the following non-statutory mitigating factors existed, but were not sufficiently substantial to call for leniency:

Defendant was a good father, a good husband and a good son.
Defendant had no prior criminal record of violence.
Defendant had been a model prisoner while in custody.

The Court affirmed the trial court’s findings that the following were not mitigating circumstances:

Expert opinion regarding the appropriateness of the death penalty.
Harm to the defendant’s family.
A single request for the death penalty from only one victim’s family
Lack of good role models
Residual Doubt was not proven by preponderance.

The Supreme Court agreed that the mitigation was weak and affirmed the death sentence.

JUDGMENT: One murder conviction and death sentence affirmed. Two other murder convictions reversed.

State v. Canez, 202 Ariz. 133, 42 P.3d 564 (2002)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pinal) of felony murder, armed robbery and burglary and was sentenced to death. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (PRIOR CONVICTION- SERIOUS OFFENSE) – UPHELD
Following the jury verdicts, the trial court held a bench trial and found beyond a reasonable doubt the defendant had four prior convictions. At the capital sentencing hearing held seven months later, the trial judge found beyond a reasonable doubt the defendant has been convicted of the serious offenses of first degree burglary and aggravated robbery. The Court found it unnecessary for the prior convictions to be separately litigated in the capital sentencing hearing.

(F)(5) (PECUNIARY GAIN) – UPHELD
The Court stated that a murder committed during a robbery is not per se for pecuniary gain. However, robbing and killing a victim while making no attempt to conceal identity is powerful circumstantial evidence that the motive was pecuniary. Where the murder and robbery occur almost simultaneously, the Court will not attempt to divine if the motive to kill shifted from pecuniary gain to some other non-pecuniary motive.

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – UPHELD

Cruel: Upheld
The evidence showed that the victim was conscious throughout the assaults and the Court upheld the cruelty finding

Heinous or depraved: Reversed

Gratuitous Violence: Reversed. Defendant attempted to strangle the victim, stabbed him six times and delivered 10 blunt force injuries to the head and 11 other blunt force injuries. The defendant used his fists, a frying pan, a laundry bag and a knife. The Court found that the violence was not beyond that necessary to kill because the defendant simply escalated his attacks until he succeeded in killing the victim.

Senselessness: Found. The Court stated that senselessness and helplessness together would not justify a finding of heinousness or depravity.

Helplessness: Found. The Court stated that senselessness and helplessness together would not justify a finding of heinousness or depravity.

(F)(9) – Elderly Victim – Upheld: 
The Court held that even without the victim’s birth certificate, the evidence supported the trial court’s finding that the victim was at least 70 years old.

MITIGATING CIRCUMSTANCES:

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

Drug and Alcohol Use
Traumatic Childhood and Dysfunctional Family
Love of Family
Mental Illness or Impairment

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

(G)(1) -- Significant Impairment (intoxication/drug craving, brain damage, mental illness, retardation
Felony Murder
Good Character
Good Conduct in Court
Disparate Sentence of Co-Defendant

JUDGMENT: Murder conviction and death sentence affirmed.

State v. Finch, 202 Ariz. 410, 46 P.3d 421 (2002)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of first degree felony murder and several non-homicide counts resulting from three different robberies. The sole murder occurred during the third robbery. He was sentenced to death. This is his automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (PRIOR CONVICTION- SERIOUS OFFENSE) – UPHELD

All of the charges were consolidated for one trial. At sentencing, the trial court based its finding on the defendant’s convictions, entered before sentencing, for armed robbery, kidnapping and aggravated assault from the first and second robberies. The Court held that convictions entered simultaneously with the murder conviction but before sentencing satisfy (F)(2). Because the convictions stemming from the first and second robberies were entered before sentencing, they qualify as previous serious offenses under (F)(2).

(F)(5) (PECUNIARY GAIN) – UPHELD

The defendant testified he shot the victim to prevent him from reporting the robbery. The Court held this established the motive behind the killing was the taking of or ability keep items of pecuniary value.

MITIGATING CIRCUMSTANCES:

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

Family Support
Remorse
Difficult Childhood
Rehabilitative Potential
Personal Growth and Good Behavior During Incarceration
Cooperation with Authorities

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

JUDGMENT: Murder conviction and death sentence affirmed.

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Pima) of first degree felony and premeditated murder and several non-homicide counts resulting from three different robberies. The sole murder occurred during the third robbery. He was sentenced to death. This is his automatic, direct appeal to the Arizona Supreme Court.

All of the charges were consolidated for one trial. At sentencing, the trial court based its finding on the defendant’s convictions, entered before sentencing, for armed robbery, kidnapping and aggravated assault from the first, second and third robberies. The Court held that convictions entered simultaneously with the murder conviction but before sentencing satisfy (F)(2), so long as they do not arise from the same set of events as the murder. The trial court did not err by relying on the convictions from the first and second robberies because they were entered before sentencing. But the court did err by considering the convictions from the third robbery because, although they were also entered before sentencing, they arose from the same set of events as the murder. In addition, the court properly relied on the defendant’s 1998 convictions for armed robbery, aggravated assault, and robbery.

(F)(5) (PECUNIARY GAIN) – UPHELD

During the third robbery, the defendant fired shots at the backs of customers seated at a bar. The shooting resulted in the murder victim’s escape attempt, which led to his being shot by the co-defendant. The shooting of the victim permitted the defendant and his cohort to obtain and keep the robbery proceeds. The defendant’s conduct during the third robbery, coupled with his desire for money, justified the trial court’s finding of (F)(5).

MITIGATING CIRCUMSTANCES:

The Court found the following mitigating factor existed, but was not sufficiently substantial to call for leniency:

Family Support

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

(G)(1) -- Significant Impairment (intoxication/drug)
Substance Abuse
Difficult Childhood
Minor Participation
Age
Familial Responsibility
Remorse
Felony Murder Conviction

JUDGMENT: Murder conviction and death sentence affirmed.

State v. Carlson 202 Ariz. 570, 48 P.3d 1180 (2002)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of first degree murder and other offenses resulting from the contract killing of the defendant’s mother-in-law. She was sentenced to death. This is her automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(4) (PROCUREMENT OF MURDER BY PAYMENT OR PROMISE OF PAYMENT) - UPHELD

The defendant offered a co-defendant $20,000 to kill her mother-in-law. The co-defendant accepted and later killed the targeted victim.

(F)(5) (PECUNIARY GAIN) – UPHELD

The defendant wanted her mother-in-law killed so she could benefit from her trust fund and annuities. The Court held this established the motive for the killing. However, because (F)(4) and (F)(5) were based on related facts, they should not be independently assigned full weight.

(F)(6) (HEINOUS, CRUEL, OR DEPRAVED) – REVERSED

The victim was bedridden and ill. The killers repeatedly stabbed her as she tried to defend herself. She lay in her room for 3 hours, unable to call for help. She then lived for about 6 months before passing. The trial court found that while the defendant might not have foreseen her co-conspirators would bungle the killing, she was nonetheless responsible for the resulting pain and suffering, making the killing especially cruel.

The Supreme Court held the tort law concept of foreseeability did not apply in determining eligibility for the death penalty. The Court instead applied the criminal law concept of mens rea, and required a finding that the defendant intended that the murder would be committed in such a way as to cause the victim to suffer or, absent intent, knew it would be so. Because the defendant did not plan how the murder would be committed and could not have known that the killer would botch it by closing his eyes while repeatedly stabbing the victim, she could not be held responsible for the resulting cruelty.

The trial court found heinousness and depravity based on mutilation, senselessness and helplessness. The Supreme Court found insufficient support for mutilation or senselessness, but agreed the victim was helpless. Noting that helplessness alone would not support a finding of heinousness or depravity, the Court considered whether the familial relationship between the defendant and the victim, when added to the victim’s helpless condition, justified the (F)(6) finding. Distinguishing the case from those involving a parent killing his/her young child, the Court held the defendant’s relationship with the victim did not render the crime heinous or depraved.

MITIGATING CIRCUMSTANCES:

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

(G)(2) – Duress
Criminal History
Brain Damage
Sentencing Disparity

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

(G)(1) -- Significant Impairment (brain damage)
(G)(3) – Minor Participation
Motivated by need for money to be used to gain custody of children.

JUDGMENT:  Murder conviction affirmed. Death sentence reduced to natural life without the possibility of parole.

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