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State v. Ryan Wesley Kuhs, 2010 WL 624016__ Ariz. __, __ P.3d __ (February 24, 2010)(ABUSE OF DISCRETION REVIEW; DEATH PENALTY UPHELD)

PROCEDURAL POSTURE:
Kuhs was convicted of one count of first degree burglary and one count of first degree murder for the stabbing death of a man with whom he had previously argued, and a jury sentenced him to death.  This is his automatic appeal following his death sentence.  Because the murder occurred after August 1, 2002, the Supreme Court conducted an abuse of discretion review of his death sentence.

AGGRAVATING CIRCUMSTANCES

(F)(2) PRIOR CONVICTION OF A SERIOUS OFFENSE – UPHELD
The jury found that Kuhs was convicted of the offense of first degree burglary in this matter, and convicted for second degree burglary in a previous case.  Kuhs did not contest this aggravating circumstance at trial.

(F)(6)ESPECIALLY HEINOUS, CRUEL OR DEPRAVED – UPHELD
Especially cruel:  The court found the jury did not abuse its discretion in finding that the murder was especially cruel.  The victim suffered significant pain before his death.  He was stabbed several times, and ultimately died by bleeding to death while choking on his own blood.  The victim had ample opportunity to feel pain and to contemplate his own impending death.  After a final stab wound to his head, the victim was not immediately unconscious, but lay unable to move in a pool of his own blood.  Kuhs left the victim alive and dying, and took no action to alleviate his suffering.

(F)(7)(a) OFFENSE COMMITED WHILE ON RELEASE – UPHELD
The jury found that Kuhs committed the murder while on release from prison.  Kuhs did not contest this aggravating circumstance at trial.

(F)(7)(b) OFFENSE COMMITTED WHILE ON PROBATION – UPHELD
The jury found that Kuhs committed the murder while on probation for a prior felony.  Kuhs did not contest this aggravating circumstance at trial.

MITIGATING CIRCUMSTANCES:
The Court found the mitigation evidence was not compelling.  Kuhs’ purported mental disorder was linked to the crime only in that it might have made him more impulsive.  Kuhs’ childhood was not so abusive that it mitigates his actions in killing the victim.  Moreover, Kuhs possesses average to above average intelligence.  Thus, the jury did not abuse its discretion in not finding the mitigation sufficiently substantial to call for leniency and rendering a death verdict.

JUDGMENT Death sentence affirmed.


State v. (Joshua Idlefonso) Villalobos, 225 Ariz. 74, 235 P.3d 227 (2010) (DEATH PENALTY UPHELD)

PROCEDURAL POSTURE: Villalobos was convicted of first degree murder and child abuse in the beating death of his girlfriend’s five-year-old daughter. After finding three aggravating circumstances, F6 (especially heinous, cruel or depraved), F7 (offense committed while on release), and F9 (victim under age 15), and concluding that any mitigating circumstances were not sufficiently substantial to call for leniency, the jury returned a death verdict. The Supreme Court affirmed the convictions and death sentence. This is Villalobos’s direct appeal.

AGGRAVATING CIRCUMSTANCES:

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – UPHELD
The State presented substantial evidence that the victim suffered and that Villalobos knew or should have known she was suffering, supporting the cruelty prong of this aggravator. Villalobos admitted that he beat the victim and she remained conscious. The medical examiner also testified that the victim was conscious after she was punched and would have been in pain comparable to that from a ruptured appendix. Ample evidence also supported the jury’s separate finding that the murder was especially heinous or depraved based on its conclusion that the murder was senseless, the victim was helpless, and Villalobos had a caregiver relationship with the victim.

(F)(7) (MURDER COMMITTED WHILE ON RELEASE) – UPHELD
The State introduced uncontroverted evidence that Villalobos was on authorized release from prison for federal and state drug charges at the time of the offense.

(F)(9) (VICTIM UNDER AGE 15)
The State introduced uncontroverted evidence that Villalobos was twenty-one when he murdered the victim, who was five.

MITIGATING CIRCUMSTANCES:
Villalobos presented four general categories of mitigation evidence: prior abuse, mental health, good behavior, and remorse. The Court stated that even assuming that Villalobos met his burden of establishing all claimed mitigation evidence by a preponderance of the evidence, it could not conclude that the jury abused its discretion in determining that the mitigating circumstances, taken as a whole, were not sufficiently substantial to call for leniency.

JUDGMENT: Convictions and death sentences affirmed.


State v. (Derek Don) Chappell, __ Ariz. __, __ P.3d __ (August 3, 2010) (DEATH PENALTY UPHELD)

PROCEDURAL POSTURE: Chappell drowned his girlfriend’s two year-old son, Devon Shackleford, in the apartment complex’s swimming pool. The jury convicted him of first degree murder and a prior incident of child abuse, found three aggravators (F2 (the child abuse conviction), F6 (especially cruel), and F9 (victim under age 15)), and determined that he should be sentenced to death. This is Chappell’s automatic appeal following that death sentence. Because the murder occurred after August 1, 2002, the Court reviewed for abuse of discretion the jury’s aggravation findings and death sentence. A.R.S. § 13-756(A).

AGGRAVATING CIRCUMSTANCES:

(F)(2) (PRIOR SERIOUS OFFENSE) - UPHELD
Chappell did not contest that this aggravator was established by the jury’s guilty verdict on the child abuse charge.

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – UPHELD
Cruelty – The medical examiner’s testimony supported a finding that Devon consciously experienced mental anguish before his death and Chappell knew or should have known that Devon would suffer. Chappell told reporters during a post-arrest press conference that Devon had struggled while in the pool and he remembered Devon “looking at [him] straight in the eyes as he was in the water.” The Court noted that “extreme” mental anguish is not required to establish this aggravator, and the mere fact that Devon was two years old, and possibly did not comprehend he was dying, did not prevent the jury from finding that he consciously experienced mental anguish before his death.

(F)(9)) (AGE OF VICTIM) – UPHELD
This aggravator was established by the jury’s explicit finding during the guilt phase that Devon was under the age of fifteen when he died.

MITIGATING CIRCUMSTANCES:
Chappell offered evidence of the following mitigating factors: (1) age; (2) impaired ability to appreciate the wrongfulness of his conduct; (3) lack of previous criminal history; (4) past good conduct and character; (5) commission of the offense was out of character; (6) educational accomplishments; (7) good behavior during pre-trial incarceration; (8) love for and by his family; (9) good conduct during trial; (10) remorse; (11) existence of an uncharged co-perpetrator (Shackleford); (12) cooperation with authorities; (13) good prospect of rehabilitation; (14) religious commitment and belief; (15) alcoholism; (16) impulsivity under stress; (17) mental health symptoms; (18) bipolar disorder; (19) attention deficit hyperactivity disorder; (20) unusual stress at or near the time of the incident; and (21) family history of mental illness. The Court held that although Chappell presented a significant amount of mitigation evidence, in light of the nature and strength of the three aggravators, it could not conclude that the jury abused its discretion in determining that the mitigation was not sufficiently substantial to warrant leniency.

JUDGMENT: Convictions and death sentence affirmed.


State v. (Leroy D.) Cropper, 223 Ariz. 522, 225 P.3d 579 (2010) (DEATH PENALTY UPHELD)

PROCEDURAL POSTURE: Cropper pled guilty to first degree murder in 1999 for the 1997 killing of an Arizona Department of Corrections officer, and was sentenced to death by a superior court judge. His conviction was affirmed on automatic appeal, see 205 Ariz. 181, 68 P.3d 407 (2003), but the death sentence was vacated and the matter remanded for resentencing before a jury pursuant to Ring v. Arizona, 536 U.S. 584 (2002). On remand, a jury found two aggravating factors: Cropper had a prior serious conviction and he committed the murder while incarcerated. However, the jury could not reach a verdict as to whether the killing was especially cruel, or whether death was the appropriate sentence. A second jury was impaneled, and found that the murder was committed in an especially cruel manner and that death was the appropriate punishment. This is Cropper’s automatic appeal following that death sentence.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (PRIOR SERIOUS OFFENSE) - UPHELD
Cropper did not contest that he had been previously convicted of aggravated assault, a serious offense.

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – UPHELD
Cruelty – The evidence demonstrated that Cropper sought out a violent confrontation. The struggle lasted up to two minutes, he acknowledged. Further, the medical testimony regarding the victim’s wounds and blood loss demonstrates that the officer suffered physical pain. The medical examiner explained that the wounds inflicted would have been particularly painful because of the “higher concentration of nerves” in the neck; the officer would have felt a “stinging, burning kind of pain.” The officer bled to death as a result of a number of penetrating injuries to his thyroid gland, the jugular vein, and his chest cavity and lung. Thus, it would have taken minutes for him to lose consciousness because the time it would have taken to lose consciousness was the time it took him to bleed out. Thus, the facts established beyond a reasonable doubt that the officer consciously suffered physical pain and Cropper knew or should have known he would experience such pain.

(F)(7)(a) (IN CUSTODY/ON RELEASE AT TIME OF OFFENSE) – UPHELD
Cropper did not contest the fact that he committed the murder of the prison guard while he was in the custody of the Arizona DOC.

MITIGATING CIRCUMSTANCES:
Abusive childhood - The Court found Cropper had established this mitigator by a preponderance of the evidence because testimony detailed that both his father and stepmother abused him. However, it determined that childhood troubles deserve less weight in mitigation because Cropper was 33 years old when he committed the murder.

Remorse – The Court found Cropper’s expression of remorse in allocution, and testimony by witnesses that he had changed while in prison to be sufficient to establish this mitigator. However, the Court accorded it less weight based on the State’s strong rebuttal evidence that Cropper threatened penal personnel and wrote letters mocking them and bragging about the murder, continued to have disciplinary problems and act violently, and assaulted another inmate after the murder.

JUDGMENT: Conviction and death sentence affirmed.


State v. (Alfredo Lucero) Garcia, 224 Ariz. 1, 226 P.3d 370 (2010) (DEATH PENALTY UPHELD)

PROCEDURAL POSTURE: Garcia and Sheffield shot and killed a bar owner during a robbery. They were each charged with first degree murder and armed robbery. Their cases were severed for trial. A jury found Garcia guilty of both counts. Following a mistrial, a new jury found two aggravators, (F)(2) serious offense and (F)(5) pecuniary gain, and decided Garcia should be sentenced to death. The Supreme Court affirmed the convictions and death sentence. This is Garcia’s direct appeal.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (PRIOR CONVICTION OF SERIOUS OFFENSE) – UPHELD
The State proved this aggravator beyond a reasonable doubt by introducing documents reflecting Garcia’s prior convictions for sexual assault and armed robbery.

(F)(5) (PECUNIARY GAIN) – UPHELD
When the killing and robbery happen almost simultaneously, the Court will not attempt to divine the evolution of the defendant’s motive in order to discern when, or if, his reason for harming the victim shifted from pecuniary gain to some other speculative nonpecuniary drive. Considered in its totality, the evidence established beyond a reasonable doubt that Garcia’s participation in the murder was motivated by the expectation of pecuniary gain, even if assuming that Sheffield rather than Garcia shot the victim.

MITIGATING CIRCUMSTANCES:

(G)(3) (MINOR PARTICIPANT)
Garcia failed to establish this statutory mitigator because circumstantial evidence established that he was actively involved in the murder.

NON-STATUTORY MITIGATION
The Court found the following non-statutory mitigating factors established by a preponderance of the evidence: sentencing disparity (Sheffield received a life sentence), drug addiction, dysfunctional childhood, and lack of future dangerousness. All of these were accorded minimal weight. The Court also rejected remorse as mitigation because Garcia has consistently denied involvement in the murder.

JUDGMENT: Convictions and death sentence affirmed.


State v. (Aaron Brian) Gunches, 225 Ariz. 22, 234 P.3d 590 (2010) (DEATH PENALTY VACATED)

PROCEDURAL POSTURE: In November 2002, Gunches and a female friend drove the victim to an isolated desert area, where Gunches shot the victim four times. In October 2003, he was indicted for first degree murder and kidnapping. He was found competent to stand trial in November 2005 and competent to waive his right to counsel in November 2007. He subsequently pleaded guilty to both counts and stipulated during the aggravation phase that he had previously been convicted of a serious offense (F2). The jury also found that the murder was committed in an especially heinous or depraved manner (F6). Gunches presented virtually no mitigation evidence during the penalty phase, but requested leniency in allocution. The jury returned a death verdict. This is Gunches’s automatic appeal following that death sentence. Because the murder occurred after August 1, 2002, the Court reviewed for abuse of discretion the jury’s aggravation findings and death sentence. A.R.S. § 13-756(A).

AGGRAVATING CIRCUMSTANCES:

(F)(2) (PRIOR SERIOUS OFFENSE) - UPHELD
Gunches stipulated during the aggravation phase that he had previously been convicted of attempted murder, a serious offense.

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – REVERSED
Heinousness/Depravity - The Court reviewed the evidence supporting the jury’s aggravation finding of heinousness and depravity, which was based on the gratuitous violence factor. The medical examiner testified that each of the four wounds ultimately would have been fatal. Gunches fired the shots from several feet away and in rapid succession. The Court found that although there was substantial evidence that Gunches inflicted more violence than was necessary to kill, the record did not support the finding that he knew or should have known that he had fired the fatal shot and yet continued to inflict violence.

JUDGMENT: Convictions affirmed; death sentence vacated and remanded for resentencing.


State v. (Gary Wayne) Snelling, __ Ariz. __, 236 P.3d 409 (August 9, 2010) (DEATH PENALTY VACATED)

PROCEDURAL POSTURE: Adele Curtis was strangled in 1996 in a townhouse she owned but was showing to prospective tenants. The murder remained unsolved until 2003 when DNA obtained from the scene matched Snelling’s profile. In addition, Snelling’s prints matched the prints found at the townhouse, and he had lived in the same complex as Curtis at the time of the murder. The jury found Snelling guilty of first degree murder and that the murder was committed in an especially cruel manner (F6). However, it could not reach unanimous agreement concerning whether the murder was committed for pecuniary gain and also hung on the appropriate penalty. A second jury was impaneled to determine the penalty and sentenced Snelling to death. This is Snelling’s automatic appeal following that death sentence. Because the murder occurred after August 1, 2002, the Court reviewed for abuse of discretion the jury’s aggravation findings and death sentence. A.R.S. § 13-756(A).

AGGRAVATING CIRCUMSTANCE:

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – REVERSED
Cruelty - The Court found that cruelty had not been established beyond a reasonable doubt. The record showed only that the victim was suddenly confronted by an assailant who promptly strangled her to death and therefore, she did not contemplate her fate for very long. The State also presented no evidence of physical suffering because even if the victim was conscious for some time during the strangulation, that alone does not support a finding of physical pain.

Because the Court on independent review found the evidence insufficient evidence to support the sole aggravator, it did not consider Snelling’s mitigation evidence and reduced the death penalty to natural life in prison.

JUDGMENT: Conviction affirmed; death sentence vacated and natural life sentence imposed.

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