State v. Brewer

P.2d 783 Arizona, Appellee, STATE of BREWER, Appellant. George

John CR-88-0308-AP,

Nos. CR-89-0319-T/AP. Arizona,

Supreme Court of

En Banc.

Jan. 1992. April Denied

Reconsideration Collectively,

participate as curiae. amicus following issues: raise the briefs jur- limit this court’s 1. Did defendant his conviction to review isdiction Woods, Gif- Atty. by Jessica Gen. Grant by attempting and sentence of Counsel, Funkhouser, Former Chief ford mandatory and discre- waive all McMurdie, Atty. Div., Paul Asst. J. Crim. tionary appeals? Phoenix, Yerkamp, Gen., Coconi- and John discre- abuse its Did the trial court 2. Newton, Depu- County Atty. by A. Fred no determining that defendant tion Flagstaff, County Atty., for State. ty guilty? competent plead Phoenix, appel- Kelly, A. Kathleen effective as- denied Was lant. of counsel? sistance curi- Hannah, amicus Tempe, R. John penalty stat- Arizona's death 4. Does Project. Capital Representation ae eighth and four- ute violate by precluding amendments

teenth considering all from trial court the OPINION relevant, mitigating circumstances CORCORAN, Justice. ap- the presuming death to be (defen- George Brewer John Appellant propriate sentence? first-degree dant) the pleaded guilty to penalty death stat- Does Arizona’s 5. (victim) girlfriend murder of the sixth and fourteenth ute violate appeal This automatic sentenced to death. the by removing from amendments 13-4033; rules 26.- A.R.S. followed. See § factu- determination the jury the 15, 31.2(b), 31.15(a)(3),Arizona Rules capital murder? al elements Procedure. of Criminal finding err in the trial court 6. Did appeal in the its own The State filed pur- person a the fetus was challenging the appeals, court of determining aggravat- the poses of first-degree murder of the court’s dismissal creating risk grave a ing factor 22- the victim’s charge the death of person addi- to another of death week-old, transferred unborn fetus. We the offense? tion victim appeal to this court the renumbered State’s “espe- factor of aggravating the 7. Is auto- it with defendant’s and consolidated depraved” heinous, cruel or cially 31.4(b), Arizona rule appeal. matic See its vague on unconstitutionally Procedure. Rules Criminal face? below, affirm reasons stated For the concluding by err the trial court 8. Did judgment of conviction court’s the trial the victim murdered that defendant guilty and the sentence upon plea of heinous, cruel “especially in an court’s the trial affirm death. We also depraved” manner? charge first-degree murder the dismissal of the con- court violate the trial 9. Did juris We have of the fetus. for the death clause, process the due frontation art. pursuant to Ariz. Const. diction by clause, Arizona statutes and the 13-4031, -4033. 5(3), A.R.S. §§ evidence relying on inadmissible findings aggravating

support its ISSUES PRESENTED circumstances? finding by err trial court death, Did the 10. involving the victim’s In the case did factors defendant, State, by filed

papers were aggravat- outweigh the sufficiently Representation Capital Arizona leniency? require ing factors to permission had obtained Project,1 with, at, Arizona is not affiliated Project but is located Capital Representation 1. The Arizona College legal University of Law. as organization provides non-profit It cases. in death defendants sistance to girlfriend. improperly sleep 11. con- cou- Did trial court back to with his approximately ple got out of 1:30 impact victim from bed at sider evidence p.m. their from presentence report and continued discussion and the testi- night. point At in the previous some mony police officers in determin- exchange, girlfriend told she defendant appropriate sentence? and, did, she would loved him because she 12. the trial Was court bound prove him so that could he could leave prosecutor’s recommendation of Enraged by himself. state- live sentence, despite life State’s ment, dog defendant locked roommate’s proving submission of screamed, “Why think in another room and existence of factors? dead, you you.” if I’ll kill De- about were 13. Is pro- defendant’s death sentence girlfriend, then attacked his and a fendant portionate imposed to sentences violent, 30- struggle to 45-minute ensued. cases? similar strangle girlfriend Defendant tried to following We also note issues raised hands, put up with his bare she violent but separate appeal the State’s from the trial resistance, testicles, eyes, grabbing for his dismissing charge court’s order of first- escaped and ears. She almost on several degree murder the unborn fetus: occasions, pulled but back her 13-1103(A)(5) pre- Does A.R.S. § beating each floor time and continued clude the State de- prosecuting from body against her “whatever could [he] fendant for the unborn ability find” to diminish her to resist. De- under child homicide State’s fingers fendant also bent her back statutes? pushed his into in an eyes thumbs her 15. Was the 22-week-old unborn fetus eyeballs. girl- attempt dislodge to The being purposes a human managed yell to that if he her friend killed 13-1101(3)? A.R.S. § go jail, he but replied, would to he “So ” We will necessary address those to issues At you what? least would be dead! decision, our necessarily but not or- necktie, Eventually, defendant found a der set above. forth neck, girlfriend’s it wrapped around the strangled repeatedly and her. de- Twice FACTS AND PROCEDURAL HISTORY dead, girlfriend fendant believed his was In apartment defendant lived an began but to necktie she breathe when the Flagstaff, Arizona his pregnant finally with removed. The victim suc- was girlfriend her and roommate. On strangulation. Novem- after thé third cumbed year, ber 11 of that sometime between mid- undressed, Defendant threw his clothes a.m., night up- and 5:00 defendant became victim, and, according on the took a shower during argument set an with the two wom- police, proceeded to his statements to en about his on dependency his mother. corpse. to with the have sexual intercourse argument The was precipitated a tele- checking signs pupils After the victim’s phone conversation between defendant and life, to telephoned he and claimed his feeling very mother that had him left assaulting have a man a woman. witnessed depressed. pestered When to reveal his dispatcher pressed When for fur- plans girlfriend die, if his to defen- were details, he ther defendant admitted that tears in an cry adjoining dant left in strangled had and the victim death. beat composure, gaining room. After defen- his Flagstaff Depart- Officers from the Police “patch[ed] things together”2 dant with responded took ment to the call and girlfriend couple proceeded and to bed custody. police read defendant into The around 5:30 a.m. rights, which defendant Miranda inquiries, up response police In Defendant woke at 11:15 a.m. and waived. again once to the reminded the roommate that she needed to confessed work, go transported He Defendant then she did. then went crime. Quotations summary in this of facts are taken from defendant’s confession. reversal of the trial appeals seeking police he made a hand- station where charge dismissing the for the order court’s

typed confession. appeal was trans- of the fetus. That Physical evidence at the scene of with court and consolidated ferred to this story. defendant’s murder corroborated appeal. badly police found the victim’s beaten apartment body lying on the floor of the DISCUSSION up rolled pants her and underwear with I. Motion to Dismiss dog They her head. also found the near Defendant’s Appeal Mandatory adjoining an room and noticed locked in eyes. scratch marks around defendant’s proceedings, de Throughout these myriad autopsy The victim’s verified support for the has voiced his fendant contusions, abrasions, covering and lesions expressed penalty statute and state’s death body, includ- large portion of the victim’s he should be executed for his belief that swelling hemorrhages on ing severe of these confessed crimes. On account scalp eyes, and in the and bite marks views, to the clerk letter defendant sent arm, hand, right upper part right requesting that he be allowed of this court right breast. Medical examiners appeals. all We treated to abandon profusely the victim’s face as described mandatory dismiss his letter as a motion to swollen, impressions from manual parties to brief the appeal ordered the ligature strangulation found multiple were to maintain compelling defendant bases for on the neck. victim’s Reasoning a defendant’s appeal. an appeal voluntarily dismiss an does power grand separate indict- jury A issued two mandatory filed in apply appeal first-degree charging defendant with ments 31.2(b), cases, rules 26.15 and capital see of the victim and the murder for the death Procedure, we of Criminal The Arizona Rules resulting death of the unborn fetus. See also defendant’s motion. the two indictments denied trial court consolidated cases (appeals 13-4031 in death A.R.S. granted defendant’s motion dismiss supreme court first-degree charge may be filed murder for the of prescribed by the rules criminal and are child. After conduct- death of the unborn 31.15(a)(3), Rules procedure); Arizona hearing rule evidentiary change plea of ing an (power dismiss an to of Procedure finding sufficient factual basis to Criminal and parties of the does appeal by stipulation charge first-degree murder support the of 31.2(b) appeals).3 to rule victim, accepted apply court de- not trial and ordered de- plea guilty fendant’s of that, though argues now even The State evi- present to fense counsel 31.2(b) rule appeal under the automatic hearing. presentencing dence at the dismissed, defen- voluntarily may not be limits nevertheless sentenced dant’s waiver subsequently Defendant was scope of review. and jurisdiction appeal filed court’s to and an automatic death discretionary all 31.2(b), defendant waived rule Ari- Because pursuant on his behalf issues, jurisdiction to review has this court Procedure. The zona Rules of Criminal un- that are authorized only those matters separate appeal with the court filed a State Utah, Gilmore v. appellate [Bessie] review. See or at least 22 states’ “statutes 3. We note that 438-39, 436, 1012, 1014-17, indicating ap- S.Ct. 50 employ language that 97 their 429 U.S. rules (court jurisdiction least the sentence declines pellate must review at courts L.Ed.2d Arkansas, stay capital v. filed every application Whitmore of execution case.” for in over 1717, 1, 149, 1, objection). n. n. 110 S.Ct. Gary over his 495 U.S. mother Gilmore’s J., (1990) (Marshall, Whitmore, and Bren- States Su- Similarly, 109 L.Ed.2d 135 the United in nan, J., dissenting) (listing and state statutes to waive permitted preme Court Arizona). rules, including case, Whitmore, Our in research rules 495 U.S. at capital appeal in a a defendant was 1722, no cases in which 153-154, reveals also statutes but Arkansas 110 S.Ct. at mandatory appeal. permitted to waive a appeal death of provide for automatic not do 196-97, 181, State, sentences, 296 Ark. v. Franz Gary in Utah without was executed Gilmore J., (1988) (Glaze, concur- review, 754 S.W.2d time appellate but Utah that any state ring dissenting). mandatory, and provide for nonwaivable did 13-4035(A) der Upon appeal by the statutes. Section states an the defendant either supreme all that “the court shall review judgment from a of conviction or from rulings affecting judgment,” sentence, but the illegal if an sentence has been places corresponding duty statute no imposed upon finding lawful verdict or authority on this court to review sentences. court, guilty by the supreme of insists, therefore, may that State shall the sentence court correct to corre- review this case for fundamental error spond finding. to the verdict or applies judgment guilt as it of and Thus, once an appeal, a defendant files not the sentence of death. cases, in capital which is automatic arewe however, argument, The State’s expressly required by is- statute review statutorily minimizes our prescribed pow affecting judgment sues and both sentenc- and, accepted, ers of review if would defeat ing in our for search fundamental error. purpose requiring of obvious mandato See, Smith, e.g., 136Ariz. ry appeals capital cases, in which is (1983) (finding inef- of insure is properly death sentence sentencing fective assistance counsel at constitutionally applied. and As we read part considered of the court’s “fundamen- interpreting statutes and cases review). tal error” them, duty, wholly apart this court has a is, Appellate sentencing review of obligation from judgment our review course, even in necessary more the context errors, validity pro review the capital penalty of a case. The of death priety all Section 13- sentences. from other differs all forms criminal instance, jurisdic is not so much punishment severity in terms of and irrevo in tional nature as it is relevant our cability, in the be exacted review, scope requiring us to search the absence certain constitutional safe entire record for error fundamental “when guards. Gregg Georgia, 428 U.S. appeals a defendant judgment, from a re 2909, 2931-32, 96 S.Ct. L.Ed.2d gardless of grounds urged ap J., (1976)(Stewart, announcing judgment of peal.” Dawson, court, Stewart, J., opinion Pow We find ell, J., Stevens, J.). is, eighth That nothing 13-4035 or statutes prohibit all fourteenth amendments jurisdictional that relate to authority, see sentencing procedures creating a substan -4033, through A.R.S. 13-4031 indicat §§ tial risk that the death is inflicted legislature to suspend intended arbitrary capricious an manner. our review death sentences cases in Gregg, U.S. at 96 S.Ct. at 2932. attempts which the to defendant waive his mandatory appeal.4 held, therefore, long We have that by gravity we are bound of the death believe, anything,

If we as we did in penalty proper compliance to insure with Richmond, 186, 196, State v. Ariz. penalty Arizona’s death statute. Rich legislature P.2d that “[t]he 51; mond, 114 Ariz. at at charged duty this court with the to correct Vickers, 129 State v. Ariz. illegal sentences which are and sen [death] (1981). We cannot fulfill punishment find this tences where we that the greater duty by simply inspecting first- imposed is than the circumstances Richmond, degree murder of the warrant.” In conviction for fundamental case premised language on from error. We must also conduct a de view was for novo 13-1717, rulings of mer A.R.S. codified at review the trial court’s concern now § 13-4037(A), part, ing aggravation mitigation, which instructs and and then § assertions, Contrary predicated upon appeal to the State’s Dawson an filed State. speak Dawson, does to issue of whether defen- at 749. The may appeal mandatory dant waive his or re- pertains to issue here our review of the manda- scope appellate attempt- strict our ing review tory appeal death filed be- from a sentence merely held to do so. Dawson that our 31.2(b). pursuant half the defendant to rule power illegally to correct an lenient sentence is plea agreement limiting no the sentence independently the death

decide whether imposed. be the trial court conducted imprisonment, sentence should life Gretzler, compe- hearing a to determine defendant’s tency change plea guilty against his hearing, de- At the advice counsel. guaran- appeal mechanism The automatic counsel, Hurst, B. informed fense William opportunity and the tees this court both murder the court that he had reviewed the legality the sen- vehicle to assess charge sentencing issues with and related 26.15, case. See rules capital in each tence plead him not to and had advised defendant 31.15(a)(3), 31.2(b), Arizona Rules of thoroughly guilty. Defendant was then (rules requiring manda- Criminal Procedure regarding his ca- questioned by the court tory all appeal supreme court charges against cases); pacity comment to rule to understand the death sentence 31.15(a)(3) him, (specific purpose rights, of rule is the advice his attor- 31.15 his of the automatic if he “to avoid circumvention defendant ney. The court also asked 13-703(D) (trial appeal”); court consequences waiving A.R.S. § understood the findings on must set forth existence coun- rights ignoring the advice of mitigat- aggravating and nonexistence sel, including irrevocability plea aof verdict); special factors in a A.R.S. imposition may that result (sentence may be of death 13-4031 ques- defendant was penalty. When court). If appealed supreme pleading for his reasons tioned about court, for that record reveals following exchange place: took guilty, the reason, improperly sentenced whatever my It is honored THE DEFENDANT: death, we must overturn that defendant sen- life sentence or death belief so duty ability to do is sentence. Our for a proper punishment is the tence destroyed by the neither diminished nor murderer. desires to simple fact defendant you, But it for sir. THE is COURT: right appeal. waive be may well youDo understand that short, attempt to curtail In the State’s you? We are not punishment rejected must scope of our review be abstract, dealing dealing in are very for reason we denied defendant’s you? appeal proprie- to dismiss this motion —the I I killed her. THE DEFENDANT: not for the defen- ty the death is is killed This court very sorry am I her. alone to decide. or the trial court dant entire my I fully aware that have—that with this court decision rests also That basically two is been police run in with guided, appeal above upon automatic traffic violations. all, narrowly stat- construed by the state’s deals with the sentence Just because limited circumstances specifying the utes wrong. it necessarily make me does deemed be right it’s right if I it is feel 13-703, regard- death-eligible, see A.R.S. § right somebody it’s for me. else death wish. Be- less defendant’s own get trying to What I am THE COURT: acceptance of the believe that cause we at, Brewer, sure I to make is want Mr. renun- to the position is tantamount State’s understanding. I full you that have upon imposed the duty of a us ciation got make sure for you I’ve to think do. pro- of criminal and our own rules statutes under- you do have full the record that cedure, may neither that defendant we hold entering into this admis- standing that mandatory ap- nor restrict the circumvent may subjecting yourself be you sion well pursu- for him provided peal to this court penalty? to the death proce- capital-sentencing state’s ant to the in- I have been DEFENDANT: dures. THE I that he feels by Mr. Hurst that formed Competency II. candidate, the I was prime believe am a used, sen- the death for word that he plea guilty accepting defendant’s Before guilty. of plea I do enter a if with tence first-degree, premeditated murder to you THE sustaining COURT: understand most the And favorable to trial that? Id. finding.” A criminal defendant court’s Yes, do, competent plead guilty

THE DEFENDANT: I “is not if Your to the Honor. substantially impaired illness mental has ability to make a reasoned his choice plea of change hearing, At end of the among presented him alternatives to having been satisfied defendant’s an- understand and the nature the conse- throughout proceeding, swers the entire quences plea.” of his 162 Ariz. at stated, trial court 583, quoting Sieling Eyman, P.2d at On the basis of record I find that (9th Cir.1973). F.2d knowingly, intelligently the defendant voluntarily plea and into a enters just briefly assayed principles guilty charge Degree to the of First Pre- suggest no reason to disturb meditated Murder. That there is a factu- first, ruling. is not court’s Defendant al basis it. last, likely person plead and upon I find that psycho- review the case.5 logical guilty a death We cannot reports [by Bayless, B. Michael Ph.D., Gerstenberger, say prone incompetent and Dean L. he is to self- M.D.], defendant, the demeanor of the impulses simply destructive because he de responses inquiries, his Burnett, court’s People sires to do so.. Cf. understanding consequences full Cal.App.3d Cal.Rptr. sentencing options available to the (1987) (courts against guard must the dan court, two, being only there Mr. very ger repre that a defendant’s wish to light Brewer. Further of his edu- sent himself is as an itself treated indica he fairly cation has versed himself unfit); see mentally that he tion be legal procedures and he does understand Bishop, also 162 Ariz. at 781 P.2d at complexities of this case. (defendant may visionary” a “less have upon foregoing Based all of I here- ability penal of the state’s view by accept plea guilty. humane, systems provide mental health compassionate, Defense and rehabilitative treat counsel now attacks the trial findings ment). Indeed, following competency court’s for the test reasons: under (1) defendant personality suffers from a Eyman defendant acted in whether i§ causing disorder severe detachment de- interests, pos his own best whether he but pression, him turn forces to make make a ability sessed the reasoned opposite decisions that seem to what is best consequences choice to understand him; (2) applied the court an incorrect Bishop, that 162 Ariz. at decision. legal competency; standard to determine ruling, at 586. The trial court’s ruling contradicts the court’s though couched in terms different from the represent refusal allow defendant Eyman, magic words used in concluded right present himself or to waive his did, agree. presentencing evidence at hearing. 2}h years Defendant attended disabilities, college, learning suffers no Preliminarily, gov our review intelligence quo and achieved a full-scale by an erned abuse of discretion standard. (I.Q.) that ranks him in tient a score look to see whether reasonable “[W]e superior range of intellectual function supports finding” the trial court’s ing. indicating Aside from defendant competent waive personality suffers from a borderline disor Bishop, plea. and enter rights the brought background (1989). der on a troubled 781 P.2d mother, psy- light dependency will also “consider facts in a and a on his the We the (1986); many We mention two cases in State 5. of Smith, guilty pleaded a defendant and received Wallace, penalty: displayed communi reports filed earlier with the court6 Defendant also normal chiatric thought processes, and the found no of a mental defect or an cation skills and of capacity of does not contain a scintilla evi erosion mental and concluded record into competent plead to dence that defendant was coerced mak that defendant was passing that Bayless plea. We note in guilty. Specifically, Dr. stated qualified recently found a much less defen report, his competent guilty. plead dant to See Bish suffering is not from Mr. Brewer 107-08, 104-05, P.2d at op, 162 Ariz. at ren- mental disease or defect that would 582-83, (defendant competent found 585-86 incompetent____ him der though physi he plead guilty to even was (I.Q. mentally cally impaired, retarded earlier, Mr. Brewer is definite- As stated labile, 77), schizophrenic, and emotionally ly competent to stand trial and has organic dysfunc an brain suffered from ability at time to understand tion). him, proceedings against as nature of the as, attorney ability to assist his well upon foregoing, we find suffi- Based preparation of his defense. in the own cient evidence to conclude that defendant’s Further, plead if Brewer to Mr. chooses ability to make rational choices and un- guilty, ability does have the to make a consequences was derstand the attendant concerning the competent decision waiv- substantially impaired at the time of as, rights, his well a rational and er of as guilty plea. That the trial court failed understanding of the conse- factual Eyman does cite the test verbatim quences entering in a plea guilty legal wrong standard not mean that of law. court expressly The court found applied. intelligently concluded, “knowingly, that defendant Gerstenberger Dr. also plea voluntarily” entered into the alert, well ori- Mr. Brewer seen to be conse- understanding had a “full [the] ented, He evi- cooperative. has no sentencing options available quences thinking of delusional and is dence If exists be- to the court.” a difference any signs thought to have of a seen disorder____ competency displayed by tween the level of He understands capacity to under- this defendant and charges against him and also is aware de- and make the reasoned choice stand legal pro- possible outcome of the of it. Eyman, scribed we are unaware ceedings against him. defense, Contrary by the to assertions his competent change plea He is competency rulings in this case the other he decide to do so. should present determina- light shed little on our Re- condition. tion of defendant’s mental psychiatric experts disagreed as suggestion that defendant garding the tend- possessed suicidal whether se, example, might proceed pro want to law, judge Arizona the trial encies. Under remarked, court reject required accept was “not [the] your rely you expert testimony expect in toto and I will consult with [could] ex- of one or more and at least listen particular attorney views Hurst] [the] [Mr. ruling. competency you do perts” making say. he has to What what is, 585. again, entirely up P.2d at Bishop, 162 Ariz. that information you. inquiry change at the The course competent to found You have been the ex-

plea hearing only confirmed what proceedings. It's a in these responses re- stand trial perts reported. Defendant’s a little It’s charges little different standard. knowledge a solid flected competent to de- higher to be law, understanding of standard as well an and the competent to are not yourself. fend You consequences of waiver. rights reports from filed hearing, parties stipu- would be determined offense a rule 11 both In lieu of Bayless experts: Dr. two competency with the court to stand trial that defendant’s lated Gerstenberger. Dr. at the time of the his mental condition whether, yourself, probably defend as I would not unable ascertain or to which competent myself. standards, be to defend competency defendant’s to mitigating was waive evidence assessed at adage says There’s an old which suggests possi- that time. record person represents who himself has a ... court, bility believing it re- that was you’re fool for a client. And in that quired mandating by public policy informed same situation. You should even not mitigating attempt sentencing it. to marshall evi- dence,7 considered defendant’s mental con- The court’s possibili- ruminations about the dition to its irrelevant decision. ty waiving of defendant counsel were legal on knowledge based and Thus, to extent the trial court’s com- wisdom, competency. and not his mental on rulings incongruous, petency they seem do appeal The State concedes that “[t]he sug- so the court have because applied determining test to be whether gested stringent a standard in too discuss- legally capable waiving one of counsel rights, possible waiver of other legal is ... ... not one of skills.” finding it not because erred in Martin, 102 Ariz. plead to competent guilty. Defendant was (1967) (footnote (emphasis original) certainly prejudiced by presence of omitted). presentation mitigating counsel or evidence, does event, argue defense any In the trial court did not need on appeal. say otherwise Suffice it to competency to comment on defendant’s to competent plead guilty defendant was to represent waive assistance of counsel and Eyman under the standard. We find no himself. Notice that defendant desired to reversible error. rights Bay- exercise such came from Dr.

less, who made a note to that effect in report, and from a few defendant’s own III. Imposition the Death Sentence mentioning displeasure letters with defense A. Constitutionality the Death Penal- However, during counsel. to hearing ty consider Mr. motion Hurst’s to withdraw counsel, Appellate defense counsel contends that defense de- ultimately statute, nied, penalty the Arizona death A.R.S. repre- defendant recanted his wish to 13-703, (1) himself is unconstitutional because it sent and informed the court precludes longer considering the sentencer from no wanted “to not have an attor- relevant, circumstances; mitigating (2) all He ney.” simply grant the court wanted presumes the death ap- be the defense counsel’s motion to withdraw sentence; propriate appoint a removes from attorney, new defense one that jury of the not make feel the determination factual “would a criminal [him] [like] capital trying plead elements of murder. guilty.” Although de- desired attorney, fendant a new he never Supreme The United States Court recent request proceed made a formal without ly rejected argu three addressed and all therefore, suggests, one. The record Arizona, ments in 497 U.S. Walton question the waiver counsel was never -, 3047, 3054-56, 111 110 S.Ct. L.Ed.2d an issue this case. (1990), aff'g Concerning re- ruling trial court’s This court reached the same quiring present long defense counsel result in line of other cases. See mitigation, Fulminante, entry the court’s minute does order, (1988) (burden proof not recite basis for the so are According entry, judge to a circumstances. Case law also in- minute regard mitiga- sentencing authority "reviewed law whether should be structs that brought be tion witnesses should to Court well informed the circumstances of- Defendant____” testify on behalf of the Section record, character, propensi- fense and states that the trial court "shall conduct 13-703 See, e.g., ties of the offender. Richmond v. separate sentencing hearing to determine Cardwell, (D.Ariz.1978). F.Supp. existence nonexistence" 498 mitigation 1. Assistance of Counsel jury participation and lack of unconstitutional), aff'd, are not Arizona v. hindsight, defen With aid — 1246,

Fulminante, U.S. -, 111 S.Ct. appeal new counsel on maintains dant’s Correll, (1991); 113 L.Ed.2d 302 seeking attorney in not that the trial erred 483-84, 721, 468, P.2d 736-37 stipulated agreement by 715 and life sentence (denial presentation ag (1986) failing object jury sentencing and defen support In of this gravating evidence. proving mitigating evi dant’s burden view, an opening brief contains defendant’s unconstitutional); v. dence are not State by prosecutor stating that the affidavit 145 480 Ariz. 703 P.2d Bracy, in judge defense counsel were trial and (1985) (restricting judge’s sentencing dis to rec prosecutor’s formed of the decision unconstitutional); is v. cretion State life in-chambers confer during ommend an 278, 293, Harding, 137 Ariz. 670 P.2d aggrava immediately ence before (1983) (failure jury in the 398 to involve hearing. The re tion/mitigation State capital sentencing not violate decision does performance sponds that counsel’s defense amendment). the sixth sentencing up during does leading to and give claim. precedent, rise to constitutional Consistent with the above appellate argu- reject defense counsel’s ineffective as To establish an pen- death ments reaffirm state’s claim, defendant must sistance of counsel alty statute constitutional. (1) minimal his counsel lacked prove by

competence prevailing as determined Nash, norms, v. 143 professional State Sentencing B. Prosecutorial Recommen- (1985); 392, 397, 227 Ariz. dations performance that counsel’s deficient accept- Lee, three after Approximately defense, weeks prejudiced the v. plea, (1984). ing 210, 214, the trial court com- Ariz. Accord, Washington, v. evidentiary hearing an to deter- Strickland menced 2052, 2064, 80 U.S. 104 S.Ct. aggravat- statutory the existence of mine (1984) (defendant must show L.Ed.2d 674 circumstances, A.R.S. resulting prejudice). deficient conduct and 13-703(F)-(G), other miti- as well as “the defendant must be prejudice, To show proffer. gating defendant wished to factors probabili a ‘reasonable able to demonstrate hearing was continued for another might affect have been ty’ that verdict weeks, the prosecution at which time three Walton, v. ed the error.” State testimony in support offered evidence (1989), Ariz. aggravating factors the State be- of the 639, 110 Arizona, 497 U.S. aff'd, Walton Despite his to exist. decision lieved citing L.Ed.2d 511 S.Ct. evidence, prosecu- present aggravating Strickland, 694, 104 S.Ct. at 466 U.S. at that defendant “serve tor recommended prongs of address both 2068. We need not prison, life rather than death.” prove ei if fails to inquiry sequence Salazar, of events forms basis This ther one. State ap- 541, arguments asserted of two defense First, denied effective

peal. defendant was that the assistance We also note his trial at- of counsel because assistance the trial issue was not raised with counsel recognize dispensability torney failed to to fore- of defendant’s desire court because light proceed discretionary motions go all of a life sen- prosecutor’s recommendation strategy competent ings. Because Second, recommendation absent a tence. many on as performance take death, prosecutor in favor cases, “this court as there are forms authority to consid- no of ineffective possessed trial court decide claims reluctant evidentiary of an penalty. We will consider in advance assistance er the for coun- hearing the reasons to determine separately. issues both 499 any particular appeal sel’s actions or inactions on this to dismiss this and receive court Valdez, 9, 14, penalty. point.” State v. death 313, (1989). 770 318 If a defendant furthermore, counsel, Defense was wishes to raise an ineffective assistance position in no State from block the issue, begin ordinarily counsel “he should presenting aggravation. evidence in “The someplace court,” in 160 other than this aggravation decision to offer evidence of or 319, Ariz. at citing 770 P.2d State responsibility not offer such evidence is the Guerrero, 568, 569, Ariz. prosecutor. The court has no [trial] filing preferably by authority interfere with the discretion of petition post-conviction pursuant for relief prosecutor in this area.” State v. Mur rule Arizona Rules of Criminal Pro- phy, held, therefore, cedure. We have that we (1976). in case Defense counsel this had no not consider will an ineffective assistance authority pro more than the trial court to appeal claim asserted for the first time on compel prosecutor’s hibit or decision to clearly unless the that record demonstrates aggravating offer circum evidence Carver, the claim is meritless. State v. stances. that defense counsel’s conduct We hold qualifies This limit- case under that range fell the wide “within reasonable exception. ed assistance____” Strickland, professional assuming, Even deciding, without 2065. 466 U.S. at 104 S.Ct. at given prior defense counsel was notice prosecutor’s intention to recommend a 2. Recommendation Effects sentence, life counsel believe saw few Equally appellate meritless defense advantages seeking sentencing negotia- in belief that court counsel’s the trial revealing tions with the State. Aside from prosecutor’s by bound recommendation sentencing position its minutes before by The sentence. exercise of discretion aggravation/mitigation hearing,8 the State prosecutor may begin well before proceeded throughout hearings if it as charges into are filed and extend the sen- seek nothing would but the death sentence. tencing phase, 428 U.S. at Gregg, see plea The State had negotiate refused to (prosecutor’s authority S.Ct. at agreements occasions,9 prior and its de- prose- select defendants he those wishes cision to recommend a life fell sentence capital cute for a offense is not unconstitu- of expressing short a desire to do so at tional), capital in a but we believe it ends hour, especially 11th prosecutor when the prosecutor’s case decision to did not renounce his resolve to offer evi- present ignore aggravation. evidence of proving dence witnesses the existence prosecutor put factors.10 own Defendant’s If decides aggravation, desire to penalty receive death also on the trial court evidence strongly suggests that he re- him would to do otherwise. Mur have not force any stipulated life one jected phy, sentence 113 Ariz. at 555 P.2d at 1112. had procured. pleads con- Conversely, prosecutor This conclusion is once the been expressed aggravation, in request support firmed offers posi- prosecutor prosecutor states in his affidavit himself reiterated that 8. couple decided to recommend a life sentence “a tion in court. sentencing of weeks before the scheduled hear- ing,” ”believe[d]" that he defense counsel recently proce- 10. This court has formalized However, decision. defen- was aware of that provides the state notice that it dure proof appellate dant’s counsel offers no other 15.1(g), penalty. seek the death Rule intends to about the that Mr. Hurst knew recommendation (amended Rules of Criminal Procedure Arizona sentencing. before the date of 1, 1991), July effective now re- June prosecutor give quires "no later notice plea change hearing, Before the exam- 9. days arraignment superior ple, than after the received defense counsel a letter from refusing plea negotiations, to enter into court.” case, require Aggravating our statutes Factors: A.R.S. 13- 703(F) aggra- the trial court determine whether fact, vating circumstances exist 13-703(E) precludes the Section they outweighed by any whether are miti- first-degree mur unless the gating calling leniency. circumstances accompanied by “is der least one Thus, 13-703(DHE). although A.R.S. § statutory aggravating seven circum prosecution the determines whether the 5, Rockwell, stances.” v. 161 Ariz. State it penalty, State will seek the death does 14, 1069, “The state 775 P.2d penalty not propriety decide the of that prove aggravating must circumstances be placed during sentencing. once in issue Id., citing yond a reasonable doubt.” 312, Richmond, 322, v. State Although prosecutor’s the affidavit (1983). Upon completion of the aggravating claims that evidence was hearing, aggravation/mitigation the trial is presented on the mistaken that it belief special finding verdict the court issued law, required Murphy under Arizona clear- presence aggravating circum two choice, ly holds otherwise. We have no (1) knowingly stances: “defendant created therefore, the exercise of but assess or grave person risk of death to another prosecutorial discretion and not actions persons in addition to the victim Here, prosecutor presented words. evi- offense,” 13-703(F)(3); A.R.S. § aggravation dence of and the court found in an “defendant committed the offense aggravating the existence of circum- heinous, depraved man especially cruel or Having aggra- presented stances. thus ner,” 13-703(F)(6). A.R.S. § court, vating circumstances the trial backpedal prosecutor not thereafter (a) Death Grave Risk of impose require the trial court to a life to Another Person sentence. The trial court committed no case, subject In this refusing adopt error in the State’s sen- “grave aggravating factor claim was risk” tencing recommendation. protests The the unborn fetus. defense finding the fetus in consideration of Independent C. Review it aggravating circumstance because this person” a fetus is not “another believes penalty severity of the death 13- aggravation under purposes extensive, an requires that we undertake in 703(F)(3), and the defendant because independent review each death sentence girl to kill the fetus as well as his tended handed under Arizona law. Rich down the former friend. We need not address mond, As 114 Ariz. at 560 P.2d at 51. shows, and proposition because the record Watson, explained in v. State concedes, acted the State that defendant (1981), finding 628 P.2d “[a] to kill fetus. Under with intent imposition of the death merely that Johnson, 147 rule established State ‘factually penalty the trial court was ” Ariz. supported’ ‘justified by the evidence’ aggravating “grave risk” circumstance appellate treatment that the death apply in cases in which “the other does warrants. We must determine endangered or intend person was victim believe that ourselves whether “we if the criminal conduct.” Even ed victim of imposed.” Id. penalty should be person” “another this victim’s fetus was searching the this after We make decision 13-703(F)(3), an intend it was also under § error, examining the evi record for entire hold, We target ed of defendant’s crime. or absence establishing presence dence therefore, aggravat “grave risk” that the mitigating circum aggravating and ing this case. does not exist in circumstance stances, determining lat whether the aggravating cir outweigh former In the event an circumstances ter Richmond, appeal, on we have cumstance is set aside present. are See both when resen- the case for discretion to remand 560 P.2d at 51. 114 Ariz. at tencing aggravat- based the remaining We do not doubt the nature cruel Fierro, explained factors. As murder. in the trial (1990) (court special verdict, could court’s remand case because the trial court erred The Defendant ... told the victim was respect aggravating to one of three going struggle to kill her and a fierce factors). Here, however, judge the trial During ensued. struggle, specifically special noted verdict minutes, lasted approximately 45 “that each circum- (A) the defendant told victim his standing stances alone would be sufficient intent was kill her. to mandate death penalty____” We (B) every way the victim resisted in therefore, proceed, will with our considera she could. remaining sentencing tion of the issues. (C) proceeded the defendant “... McCall, 147, 161 n. her, her, her, strangle pound beat throw (1983)(elimination P.2d 4n. of one her, wall, against bash her head the tried “does factor not mandate a to break her arms so she couldn’t claw court”). remand to the trial (defendant’s words). my eyes out.” (D) attempted the defendant to break (b) Heinous, Cruel, or Depraved Manner smashing the by victim’s arms them Objections finding to the court’s of an against the dresser drawers. heinous, “especially depraved cruel or man- (E) gouge the defendant tried to out (1) 13-703(F)(6) are ner” threefold: the § and, fact, the in did eyes victim’s cause aggravating circumstance is unconstitu- damage eyes. severe to the victim’s tionally vague face; (2) on its the facts (F) the defendant bit the in sev- victim case this do not show that mur- defendant places. eral heinous, dered his in an “especially victim (G) the almost escaped victim several depraved manner”; cruel or and the times but the defendant to over- was able improper trial court considered evidence in come her. making finding 13-703(F)(6). its under § (H) the was most of victim bruised on Supreme The United recently States Court body. her argument Walton, rejected the first -, (“the was, U.S. at 110 S.Ct. at 3056-58 ... very the victim until near the given the ‘especially pro- definition cruel’ struggle, end of this 45-minute conscious constitutionally sufficient”), vision ... is only and able to not resist her attacker and we need not discuss pain being upon it further. also but feel the inflicted experience anguish her and the and ter- legislature phrased The the ror of knowing that the defendant in- “heinous, depraved” (emphasis cruel or tended to kill her. added) disjunctive, circumstance the so opportu- That the had defendant several aggravation find if the cruelty nities on to reflect and any establishes one the three factors. wrongfulness his actions well as as Walton, 1033; 159 Ariz. at at victim, pain being suffered Correll, 715 P.2d at 733. yet abate. and did not Cruelty pain is as the defined infliction That the choked victim to defendant wanton, insensitive, suffering in a or point thought was dead where she Correll, vindictive manner. 148 Ariz. at once, twice, times but three be- 733; Gretzler, 715 P.2d at 135 Ariz. at fore the deed was done. “Cruelty 659 P.2d at 10. involve can suffering,” physical espe Any suggestion by as mental well as the defense cially experiences significant suffering if a victim victim’s was unforeseeable or uncertainty as to ultimate fate. Cor short-lived is without merit. We believe rell, 733; fully 148 Ariz. at 715 P.2d at see that his was aware Gillies, great physical and emo- also State v. attack would inflict moreover, ordeal, pain. tional The victim’s attack, especially after she was ren- sufficiently prolonged painful to the finding during multiple cruelty. warrant a Dr. Forrest dered unconscious following gave testimony strangulations. R. Ritland autopsy summarizing findings: question, act of ne- Without intensity severity inju- [T]he gratuitous crophilia inflicted violence indicate, believe, certainly ries I would strongly objects the victim. defense injury pain, particularly the enormous finding gratuitous violence eye. The and trauma to contusions case, arguing contains that the record extremities, I would also believe engaged that defendant equivocal evidence degree pain painful, be and the in sexual intercourse with the victim’s determine, difficult to but shown examiners, for exam- corpse. The medical quite large num- pictures, she has ple, signs saw no visible of trauma abrasions, bruises, significant ber of although vaginal vagina, vulva forth, so which I believe would be associ- pres- verify taken to rectal swabs were significant pain. ated with semen, prosecutor not offer ence of did short, In few murders exhibit we believe Bayless into Dr. tes- the results evidence. degree cruelty in this evidenced he did not believe defendant had tified that case. that defendant corpse, sex the and with the so that he would receive fabricated act The and “de terms “heinous” fulfill his homicide- the death and praved” on the defendant’s mental focus claims Bayless mission. Dr. also and reflected his words suicide state attitude as necrophilia Wallace, recanted the 151 Ariz. that defendant and actions. State during psychiat- 362, 367, (1986). portion of his confession a We look However, during pre- following examination. indicia of heinousness and ric explained (1) relishing sentencing hearing, defendant depravity: apparent of the during changed murder; (2) gratuitous he his confession infliction of violence that Dr. because he was afraid beyond on the victim the murderous act examination him He then itself; (3) find insane. body; Bayless victim’s would mutilation crime; having (5) original admission help and reaffirmed senselessness Gretzler, corpse. 135 Ariz. sex with the of the victim. lessness 51-52, 4 and at P.2d at 10-11. Factors failing that intercourse to show While finding of a heinousness do warrant occur, upon by arguments relied did not accompanied by addi depravity unless evidence ignore significant also the defense Correll, at 148 Ariz. tional factors. after the it did. Just a few hours that 715 P.2d at 734. murder, typed out his own con- having to sex in he admitted facts not show that defen fession which do corpse. Defendant stated that with the relished the murder or mutilated the dant thought she some time after body death. Like the trial “waited victim’s after [he] her, shower, dead, a sex however, took had court, fair read was we believe a pupils, dressed and called the compels finding her ing a checked of the record far, found no cause police.” Thus we have senselessness, gratuitous and helplessness, confession, as most girl question defendant’s The victim was defendant’s violence. have been corroborated its details mother of child. We and future friend investigation in- through and court police murder other than a see no reason that de- photographs confirm quiry. Police spawned by her threat disagreement pants and had removed victim's also more than fendant him. The victim was leave Also, given the fact the victim signifi not a underwear. pregnant and was 5 months dead, that the vic- cannot assume Although she was we threat defendant. cant vagi- and cause intercourse fight, her tim could resist put up an initial able to it incredi- Finally, we believe increasingly im nal trauma. ability to resist became murder, that, defen- the time ble at paired as the vicious assault continued. in iritrica- sufficiently versed end of dant was entirely helpless near the She was hearings, penalty jurisprudence preliminary cies of ad- our missions, sources,” necrophilia may an act of estab- other know that under McVay, lish an circumstance 641 P.2d 13-703(F)(6). including “presentence Our statutes do not re- 861 reports,” Freda, quire State must offer conclusive State v.

proof aggravation. show It need a depravity beyond rea- heinousness theory appears misguided. The State’s doubt, Rockwell, sonable see Ariz. at trial, a we This case did involve (aggravation must be 13-703(C) fur- need not decide whether § proven doubt; beyond reasonable defen- position. thers the State’s The State’s prove mitigating dant must circumstances simply judge cases what the describe evidence), preponderance accepting plea. do They consider it sustained believe that burden admissibility not address the of evidence at case. sentencing plea accepted. once objection Thus, aggravation The final is that ad- we choose resolve the instant upon relied missibility grounds. trial court inadmissible evi- on less issue technical cruelty is, dence to find heinousness That we believe the record contains our apart violation of statutes and defendant’s sufficient from the sentenc- rights ing presentence under the due report confrontation and memoranda and process Specifically, aggravation. clauses. the defense find The State’s evidence during the trial presented aggravation/mitiga- believes that court used sentenc- presentence report memoranda and a tion hearing consists defendant’s confes- sion, containing hearsay, autopsy report, inadmissible im- photographs victim statements, pact police scene, opinion mak- and testimony by the crime wit- two ing nesses, aggravation findings. including its 13- the performed Section doctor who 703(C)governs the at autopsy. admission of evidence The exhibits alone attest provides sentencing part: brutality, savagery, and senselessness murder, of the as well helplessness as the Any any mitigat- information relevant to of As for gratui- the victim. evidence of ing may circumstances ... presented be violence, having tous defendant admits to prosecution either or the defen- corpse sex photographs with the dant, regardless admissibility of its un- showed the nude from victim the waist governing der the rules of admission evi- therefore, judge, down. The trial did trials, dence criminal at but the admissi- supplement need to the record infor- with bility any relevant to information of of sentencing mation or from the memoranda ... circumstances presentence report proof aggra- to find of governed by govern- shall be the rules a beyond vation reasonable doubt. ing crimi- the admission evidence at nal trials. presume willWe “that a trial added.) (Emphasis evidence, judge, will aware of rules of counters from language The State not consider inadmissible evidence in mak 548, providing Fierro, “[ejvidence ruling.” the same statute that 166 Ariz. at trial, 81, ag- relating citing Hadd, admitted to such 804 127 at P.2d at State v. circumstances, gravating mitigating 1047, (App. or 619 Ariz. P.2d 1052 reintroducing 1980). proof contrary, shall considered without it be “Absent sentencing proceeding.” capital A.R.S. judge pre at trial case must be 13-703(C) (emphasis added). The State sumed to focus to be able on the relevant § therefore, believes, that defen- ir sentencing whenever a factors and to set aside the pursuant plea, relevant, guilty inflammatory, to a dant is convicted and the emo forming any Beaty, information the factual basis tional factors.” 519, (1988), plea purposes is admissible of that 762 531 cert. 910, 3200, appropriate denied, 105 determining sentence. 491 109 S.Ct. U.S. not, (1989). “reports This consist of of L.Ed.2d The defense did information 708 (9th Cir.1987), cannot, part, any proof 832 F.2d 476 specific offer rev’d 764, 3092, rev’d, 110 S.Ct. judge findings aggra- U.S. the trial based (1990). in L.Ed.2d 606 solely contained vation information presentence sentencing memoranda or Here, no miti the trial court found did, report.11 Even if he the cumulative require gating circumstances sufficient to of the in either nature evidence contained defense penalty less than death. The finding preclude source would reversi- either failed to maintains that the court also United ble error. We note recognize gave insufficient Supreme recently its Court lifted States (1) following mental effect to the factors: impact ban on the use of victim statements duress; (3) (4) (2) age; impairment; lack prosecutorial argument, stating that record; (5) upbringing; and a criminal Eighth per no se “the Amendment erects appeal, feelings of our task remorse. On bar" to the admission of such evidence to de independently to “review the record — Tennessee, sentencing. U.S. Payne any mitigating circum termine whether -, -, 2609, 115 111 S.Ct. outweigh aggravating circum stances (1991) overruling Booth v. L.Ed.2d Robinson, stances.” State 2529, 96 482 U.S. 107 S.Ct. Maryland, (1990), cert. de — L.Ed.2d 440 nied, -, 111 S.Ct. U.S. v. Ste citing L.Ed.2d 1107 findings trial of an We affirm the court’s vens, heinous, depraved cruel or man- “especially Richmond, (1988); 114 Ariz. at ner.” court, find at 51. Like factors, alleged mitigating none of Mitigating A.R.S. 13- Factors: “sufficiently 703(G) collectively, is taken alone or leniency.” See to call for substantial sentencing a defendant con In 13-703(E). A.R.S. § murder, the first-degree sentencer victed foregoing of the claims “any defen At heart aspect consider must psychological mitigation is a combination record and circum dant’s character or plagued problems that have emotional relevant determin stance offense Fierro, point prior in his life at some appropriate sentence. ing” the including McCall, murder, personali- defective 551, 84, citing a P.2d at Ariz. at 804 impulses, structure, immaturity, suicidal 162, Defen ty at 677 P.2d at 935. 139 Ariz. detachment, reactions, feelings mitigat phobic prove must the existence dant inadequacy. dependency, and depression, preponderance the evi of factors a 551, experts diagnosed defendant’s Fierro, P.2d Both mental 166 Ariz. at 804 dence. personality disor- a judge must con condition as borderline Although at the trial a social inter- stemming from lack of proffered der mitigating all evidence sider dysfunctional during and a defendant, play childhood “it is within the discretion According to relationship his mother. weight with judge much should be the trial how only impaired defense, not this disorder given proffered to the factors.” appreciate the Ricketts, “capacity to F.Supp. 627 Id., v. defendant’s citing Jeffers or his to conform wrongfulness of conduct (D.Ariz.1986), part, 1334, 1357 aff'd 11, 84, 551, tion, Fierro, 804 P.2d at excerpt 166 Ariz. at simply upon see relies an The defense clearly to consider entitled stating the court was sentencing special verdict from report presentence memoranda presented at the “information court considered determining defendant's sentence. before hearing, report, presentence presentencing making] sentencing so, however, [in memoranda ... not mean that it does That did findings existence or nonexistence upon as to the to find same sources court relied previously circumstances ... indi- of the As aggravating cated, each circumstances. any presen- miti- presented at the or nonexistence to the existence the information added.) adequate hearing Be- (Emphasis tencing establishes an gating alone circumstances." believe, "any aspect evidentiary aggravation. We must consider basis the trial court cause therefore, rebut the defense failed to that the or record and defendant's character of the mitiga- Fierro/Beaty presumption. relevant to of the offense" circumstance

505 it requirements his conduct of the must still determine whether should be law,” 13-703(G)(1), independent mitigating weight. given see but also caused § 101-02, experience sub- 664 McMurtrey, “unusual and 136 Ariz. at P.2d duress,” eventually forcing (mitigating may stantial him to not fit at 645-46 evidence murder, first-degree statutory category, may suggest 13- it commit see a but § 703(G)(2). leniency). Defendant other reasons present “additional evidence show First, do not believe that significant- capable that the ‘disorder’ is 13-703(G)(1) mitigating circumstance of § Vickers, ly impairing person’s capacity.” a Generally, char exists this case. a mere 515-16, 324-25, 129 at 633 P.2d at Ariz. personality acter or disorder alone is insuf Jordan, 283, 290, Ariz. citing v. 126 State ficient to a mitigating constitute circum 825, (1980). 614 832 The trial court 449, Gerlaugh, 144 Ariz. stance. State v. personality defendant’s disorder considered 459, 694, (1985); 698 P.2d 704 v. State but concluded 93, 102, McMurtrey, 136 Ariz. 664 P.2d appreciate capacity Defendant’s (1983); Vickers, 515-16, 646 129 Ariz. at im- wrongfulness of his conduct was not 324-25; Richmond, P.2d at 633 Further, paired. ability the Defendant’s 197-98, at at 52-53. Such condi require- to conform his conduct to the slow, degree dull, “differ in tions from a perhaps minimally ments law was brain-damaged judgment defendant whose impaired, but impaired not so to consti- Walton, marginal.” rationality are prosecution tute a defense to or a either 1034, citing 159 Ariz. at P.2d at 769 significant mitigating factor. Ceja, Ariz. State (1980)(because not defendant was finding The trial court’s is correct. slow, brain-damaged individual, per a troubled evidence back sonality require leniency). defects did ground personality establishes impairments greater “Mental have far miti that, prove disorder exists. It at does gating they may effect because an crime, the time the disorder con inability of the defendant to control his impaired or trolled defendant’s conduct Walton, conduct.” at degree capacity mental that le such Doss, P.2d at Ariz. citing required. Vickers, niency Compare This (record Ariz. at P.2d at case does not involve the same level of existed, showed that character disorder psychological mental disease or defects impaired it capacity but not that mental considered other cases in behavior), Doss, 116 influenced 13-703(G)(1)mitigating circumstance (evi 568 P.2d at See, Jimenez, e.g., found to exist. epilepsy, dence that defendant’s ab showed 444, 456-59, Ariz. 165 797- condition, per serious normal mental and (1990) (schizotypal illness, psychotic 800 sonality disorder were factors substantial voices, command and hallucinations border crime). causing in asked When about intelligence); Mauro, line Ariz. State 159 the connection between defendant’s disor 186, 208, (1988) (chemical 81 murder, present Bayless der Dr. and the brain); Graham, disorder in the State v. stated, 209, 213, (1983) 660 P.2d 464 linkage young here man is that this intoxication, (valium neurological problems, developed pathological dependency had Brookover, damage); brain and person told him that on a who—who had P.2d 1325 going separate, and from they to were (“prenatal neurological disrupt lesion” that string point, that that is where actu- integration storage and of informa ed broke, judgment— ally in which then his tion). impaired judgment very is much because stress,

Although disorder. his personality defendant’s with this Under willingness insight, his to foresight, does not rise to the of a his disorder level solutions, circumstance, willing- his statutory mitigating we look reasonable at added.) (Emphasis The record reveals dependency ness to—to some on that have knowing amade conscious and defendant himself and defend on himself [sic] fully to murder victim and was decision needs, extremely im- his own became wrongfulness of his actions. aware paired point At his and distorted. that may state be symp- emotional Defendant’s that, anger only out was and we also see many things, but not of a mar- tomatic lashing You with this disorder. see recognize wrongful- ginal capacity to anger out of with disorder. or control his ness of his conduct behavior. equate willing- We refuse to defendant’s personality Defendant’s borderline disorder ability to his actions his ness control with of his not a reduction sen- does warrant Although do the to same. defendant Walton, imprisonment. to See tence life con- have found it difficult conform his (“sociopa- P.2d at 1034 Ariz. at law, possessed duct to the we believe he disorders not thology personality have ability to restrain himself. He certain- in favor of le- sufficed to tilt balance impulses may have ly resisted whatever niency”). experienced long enough to insure own his en do we believe defendant is Nor safety by locking dog the roommate’s leniency because duress. “We titled commencing his at- another room before ‘any illegal impris defined duress as have agree with the trial tack the victim. We onment, used for an legal imprisonment conform ability court bodily or threats of or oth illegal purpose, requirements of the law his conduct harm, amounting to or er or other means impaired, so perhaps minimally but not was another, tending to coerce the will of impaired constitute either a defense inducing contrary actually him to do an act prosecution significant or a ” Wallace, 151 Ariz. at to his free will.’ factor. 239, citing at Cas wrong- appreciated the That defendant taneda, Ariz. ques- fulness of his conduct cannot be Dictionary quoting Law Black’s experts found that tioned. Both mental 1979). (5th import “The clear ed. cognitive possessed superior person is one must this definition under legally sane abilities and person or induce another to do coerce rule, expert gave neither M’Naghten Castaneda, something against his will.” did not know any indication that defendant 724 P.2d at 13. Under right wrong the difference between Castaneda, personality rule announced Dr. during of the crime. the commission do impulse problems control disorders or specifically Gerstenberger’s report found meaning of “fall duress” not within 13-703(G)(2). “was aware of nature that defendant is under Id. This course, at the time consequences expe acts” say, that defendant did Bayless leading alleged during Dr. also offense. rience duress events personality disor- The record shows to up that a murder. testified borderline did, degree no that he and we take some der assessing tice of fact sentence. schizophrenia, which is not akin now to is However, agree the trial court that who have reality. from Persons a break anger fright occasioned defen are touch with disorders personality mitigat a minimal “only dant’s disorder things Their motivation and reality. ing factor.” do, into con- may which comes they that typically society, based years flict with are was 22 old age, As to on. that thinking, not so there impaired but he the murder. We have when committed hearing or mitigating as voices rejected age delusions such circumstance are voices, or are hallucinations was much in cases in which the murderer command See, things e.g., not here they younger see that are than defendant. Wal- where (age there, ton, P.2d at 1035 perse- that there are 159 Ariz. at or feel or not factor); Gerlaugh, 144 mitigating like is anything 20 not complexes, or cution 460-61, (age 19 at 705-06 Ariz. at P.2d necessarily going on. not factor); world, mitigating against not a v. Clabo but because it’s an act urne, just every religion, 142 Ariz. in I God about be- (1984) (age factor); But, mitigating sepa- 20 not a I still have—it’s hard to lieve. Gillies, upset feelings, rate those because I am killed, (age 20 not a miti that —that I that I took a about factor). gating upset good I’m times I life. about the victim], miss with the times when we [the however, Chronological age, go riding, we would horseback when always dispositive maturity. of one’s troupes would take our Girl Scout [sic] Walton, 1035; 159 Ariz. at 769 P.2d at activities, go on various when we would Roscoe, see also State v. rafting, just sitting around whitewater 226-27, (1985) (age 1326-27 playing computer games. I those miss vacuum). cannot be considered in a No, greatly, but do I miss [the victim]? intelligence, past experi Factors such as Perhaps “glad”is posi- not one bit. too ence, and the extent and duration of the tive a word. I am not the least bit crime determining are also relevant unhappy she is dead. leniency whether should be afforded be added.) (Emphasis We find that defendant Walton, youth. cause of 159 Ariz. at lacks true sense of remorse for his 1035; Ceja, 769 P.2d at 126 Ariz. at crime. superior at 494. Given defendant’s I.Q., college experience, and work noted, As the trial court defen court, interaction with the trial and the upbringing12 prior dant’s and his lack of a performed deliberateness with which very pertinent record are factors in sen prolonged, attack, homicidal find However, tencing. like the rest of the evi age mitigating is not a factor under A.R.S. mitigation, dence offered in these factors 13-703(G)(5)or otherwise. outweigh § do not evidence. Having weighed considered and

Remorse be a all that, mitigation presented, Clabourne, factor if found we find to exist. See although significant, it is it is not suffi- Ariz. at 690 P.2d at 66. Pastor ciently require leniency in Schaumburg aggrava John substantial testified at the light shocking tion/mitigation hearing cruelty and senseless- that defendant ex pressed ness of defendant’s crime. believe the during some “sense of remorse” We is warranted in this case.13 approximately conversation 2 or 3 weeks after the murder. judge The trial failed to Manslaughter IV. Fetal Statute: verdict, special mention remorse in his but 13-1103(A)(5) A.R.S. § good he did so for a reason. Defendant’s type “sense of remorse” is not the of sor argues Finally, sepa the State in a penance row or that deserves considera appeal rate trial court erred tion. are Illustrative defendant’s own dismissing charge first-degree mur sentencing: statements to the court before der of the fetus. The trial court dismissed very upset myself

I’m ground manslaughter that I have on the that the fetal law, statute, 13-1103(A)(5), just precludes breached this it is a because Arizona, prosecuting law of the State of and I believe State from a defendant for the just every single place in about death of an unborn child under the homi- experienced many compare punish- 12. Defendant emotional sentence with the teen, problems early as a child and but he lived imposed ment on others convicted of a similar an otherwise normal and uneventful childhood. opinions. reported published crime as court, however, justices Other on this contin- 13. The author and Justice Moeller do not be- self-imposed propor- support ue to the court’s proportionality lieve that a review of defen- concurring tionality requirement. review See dant’s death sentence is either authorized law opinion achieving purpose. of Justice Feldman in White. Their or effective in concurring opinions its stated See proportionality of Justices Corcoran and assessment be found in the White, 500, in State v. special opinion. Moeller 168 Ariz. 815 concurrence to this (1991). Consequently, opinion 869 this does not cide statutes. That section states that a DISPOSITION person manslaughter by commits death, involving the In the case victim’s recklessly causing record for funda

[k]nowingly or the we have examined the 13-4035, pursuant mental error A.R.S. any stage § of child of death an unborn 738, California, v. 386 U.S. 744- Anders by physical development injury its 45, 18 L.Ed.2d S.Ct. the mother of such child which would be Leon, 297, (1967), Ariz. and State v. if of mother had murder the death 298-99, 878, (1969). 879-80 Hav 451 P.2d occurred. none, ing found we affirm defendant’s con court, Like we believe that upon guilty plea sen viction legislature’s enactment of the fetal man- tence death. slaughter conclusively resolves the statute affirm the trial court’s dismissal We question of whether this state’s homicide charge for the first-degree murder fetus. apply statutes the death of the fetus. death explains, entry As the trial court’s minute 13-1103(A)[(5)] specifically A.R.S. MOELLER, V.C.J., concurs. case. The deals with the facts this Justice, CAMERON, specially re- fact that the Defendant has stated concurring: peatedly that he intended to kill the fetus affirmed defendant’s Because we have “knowingly” requirement meets the conviction, proportional must conduct a we 13- committing pursuant an act to A.R.S. review determine “whether sen ity 1103(A)(5) first- and does make [the dispropor excessive or death ] [is] tence[ ap- degree more or less murder statute] penalty imposed in similar tionate

plicable. cases, considering both the crime and the legislature, can assume that the [We] Richmond, 114 Ariz. v. defendant.” State 1983, up it when drew this statute 196, 51, 41, denied, 433 cert. complex issue of when the considered 53 L.Ed.2d U.S. 97 S.Ct. and, apply should when murder statute White, (1977); 168 Ariz. see also State v. complex legal, with the medi- (1991); Lavers, confronted 815 P.2d 869 State questions involved cal moral 814 P.2d cert. de — issue, nied, -, S.Ct. chose to create a lesser offense U.S. (1991). In Arizona the death murder, L.Ed.2d 282 manslaughter, i.e. when exhibiting penalty is for cases reserved is involved. an unborn fetus circumstances, aggravating of most “the dealing an ancient stat- We are not with shocking repugnant are so [those that] relatively ute, new dealing we are with out from the nor- that the murder stands legislature on by the pronouncement murder,” or cases which degree first mal the law is. what him background of the defendant sets “the magnitude is of this best A decision apart from the usual murderer.” spoken. legislature and it has left to the Watson, may not be we hold that defendant Because of the fe- charged first-degree murder First, cases from have reviewed

tus, the State’s invitation we decline involving throughout country murders “human the fetus was a decide whether by who pregnant women individuals statute. being” by the homicide defined These of their victims’ conditions. knew (“ 13-1101(3) means a A.R.S. ‘Person’ See similar to that that crimes cases reveal charge, dismissing In being.”). human regularly pun defendant are committed expressly stated trial court See, e.g., Amaya- ished death. manslaugh- 177-78, proceed Ruiz, was free state — denied, U.S. -, charge respect to the fetus. How- 1285-86 cert. ter (1991)(“De- 2044, 114 L.Ed.2d 129 do 111 S.Ct. ever, failed to so. the state

509 pregnant non-trigger-person fensive wounds on victim’s hands onment for his role in struggled that she her pregnant indicate save the murder of his wife after a life,” splattered through and “blood was jury pen- death deadlocked on whether the indicating several rooms that defendant Barber, alty appropriate); People v. was pursued unsuccessfully the victim as she 767, 472, Ill.App.3d 452 116 72 Ill.Dec. fought mitigating for her life.” No factors (1983) (defendant life N.E.2d 725 received sufficiently substantial to call for le were ex-wife, murder his who sentence for affirmed.); niency, penalty so the death was man, jury pregnant was another after State, (Ala.Crim. Heath v. 536 142 So.2d impose penalty). the death refused (death App.1988) penalty ap affirmed defendants’ death sentences for Other $2,000 pellant paid party who third to shoot murdering pregnant they knew to women wife); pregnant People his nine-months v. pregnant proce- reversed due to be were Hamilton, 1142, Cal.Rptr. 48 Cal.3d 259 See, e.g., Lindquist, dural errors. State v. 701, (1989) (after 774 P.2d 730 extensive 766, (1979) (death 99 589 P.2d 101 Idaho plotting attempts, and numerous failed de despite sentence set aside “abominable pregnant fendant twice shot and killed his depraved” pregnant murder of near-term wife, children; the mother of his four victim, penalty because Idaho death statute affirmed); Manier, penalty People v. 184 sentencing at time of un- effect deemed 44, (1974) (defendant Colo. 518 P.2d 811 constitutional); Smith, 1, State v. 310 Or. shooting bigam sentenced to death for (1990) (Defendant’s pregnant 791 P.2d 836 ready ist nearly wife when she was exposure wife died of after he tied her husband, baby of deliver her second whom hands and feet behind her back and left her she in jail); wed while defendant was Jack in a remote area. His death sentence was State, (Fla.1978), son v. 366 So.2d 752 cert. reversed, however, and the case remanded denied, 885, 177, 444 U.S. 100 62 S.Ct. resentencing incomplete jury due to (1979) (death upheld L.Ed.2d 115 sentence Oregon sentencing instructions under the woman, eight-months for robber killed who statute.); Moore, 420, State v. N.J. her, pregnant, by shooting tying electrical 864, (1991) (defendant A.2d 869-70 struck hiding cord around her neck and then her inwife head with hammer more than twen- (and fetus) area); in isolated v. Ruffin times, her, ty killing her her fetus and State, (Fla.1981), 397 So.2d 277 cert. de eighteen-month-old son: murder conviction nied, 882, 368, 454 U.S. 102 S.Ct. and death sentence reversed because defen- (1981) (death penalty imposed L.Ed.2d 194 erroneously required prove dant was who, companion, with aid of capacity suffered from a diminished abducted, raped, pistol-whipped robbed and prevented acting purposely, him from victim); pregnant seven-months Justus v. knowingly recklessly). Commonwealth, 667, 222 Va. 283 S.E.2d (1981), denied, cert. 455 U.S. also Arizona cases in We have reviewed (1982) (de 102 S.Ct. 71 L.Ed.2d 693 the court affirmed death sentences “capital only statutory aggravating fendant sentenced to death for the when one of, existed, during See, murder e.g., commission or subse factor as in this case. to, quent rape Wallace, ...” victim who was v. fetus). denied,

carrying a near-term But see Peo cert. 494 U.S. Ruchan, (1990) (death ple Ill.App.3d 162 Ill. 108 L.Ed.2d 649 S.Ct. (1991) (trial affirmed, given killing N.E.2d Dec. judge imprisonment especially depraved sentenced defendant to heinous or and the re for his natural life at bench trial after factor was the defendant’s morse); White, finding defendant’s murder of his seven to eight-months pregnant (despite mitigating P.2d 869 factors wife and female repulsive regarding she carried was “so defendant’s lack criminal fetus vile record, defy dependent personality, his ina description”); as to almost Soto State, (1984) bility to form and maintain close relation 252 Ga. 312 S.E.2d 306 past of a record of (judge impris- ships, sentenced defendant to life his lack violent 510 sorrow, aggravating penalty ap ing outweighed his death factor

behavior and which, considering aggravat previous for propriate, statutory factor conviction law, ing murder was for of life im- factor that committed under Arizona a sentence pecuniary gain); prisonment possible); 114 Ariz. Knapp, State v. or death State v. was (1977), 531, denied, Watson, (1981) 60, 562 P.2d 704 cert. 435 943 129 Ariz. 628 P.2d 1458, 908, S.Ct. 55 L.Ed.2d 500 (mitigating age U.S. 98 at factors of defendant’s (1978) (death appropriate penalty (21), because time of the show- offense mitigating weigh first, there were no factors ing that the victim shot codefendant’s especially against aggravating sentence, factor an receipt of life defendant’s be- heinous, of kill depraved cruel or manner prisoner attempt his havior a model 35, ing); Ceja, 612 P.2d State v. 126 Ariz. prison in further his education while (1980) (reduction 491 of sentence from sentence, leniency despite called for in imprisonment not warranted life factors, aggravating on the same based murder committed such an because was event, a life prior of a conviction for which heinous, depraved way or especially cruel possible prior or death sentence was mitigating and there were “no circum involving the felony of a use or commission inappro would indicate the stances which Valencia, force); v. 132 threat of State penalty); priateness of” the death 248, (1982) (mitigating P.2d 239 Ariz. 645 (1984) 691 689 Hensley, 142 Ariz. P.2d (16) age at time of offense out- factor (mitigating obtained factor that defendant prior con- weighed aggravating factors of sufficiently in prison not his G.E.D. while the use or threat of victions that involved leniency to call for when substantial life and for which sentences were violence aggravating weighed against statutory Marlow, 163 Ariz. imposable); State v. was committed for factor the murder (1989) (court found codefend- 786 P.2d 395 Clabourne, pecuniary gain); v. State dramatically disparate sentence of ants’ (1984) (mitigating Ariz. 690 P.2d 54 significant years imprisonment be a four age young of defendant's factors mitigating circumstance and substantial and his minimal re time the offense despite calling leniency, leniency not to call for morse sufficient pecuni- committing murder for factors espe for murder committed in an sentence heinous, gain especially in an cruel ary manner); heinous, depraved cruel or cially Rockwell, manner); depraved v. or State 622 P.2d 478 Bishop, v. (1989) State Ariz. (1981) prior crimi (mitigating factors no (Significant mitigating factors were: intelligence not nal record and low suffi age at time of offense young leniency in ciently substantial to call for (defen- background and character sentencing espe for murder committed tragic motorcycle was a victim in dant manner); heinous, depraved cruel cially fault, accident, loss of a not his that caused Amaya-Ruiz, v. later, and, alco- leg, injuries head serious (murder (1990) especially was so which, combination, led to his holism heinous, depraved mitigat cruel and violent and appear macho and his need to prior felony, limited intel of no factors behavior), his “destructive unpredictable education, char and limited formal ligence relationship” with his abnormally symbiotic previous indicating no histo acter evidence Lewis, probation officer’s and his brother violence, ry age subsequent remorse against the death recommendation it). outweigh did against was case defendant because the primarily on confessions made based Likewise, Arizona cases we have studied (the was known family members statutory ag- findings of one or two brag crimes he did at times about sentence gravating factors in which the commit). mitigating circumstances These imprisonment. decreased to life See was that mur- outweighed aggravating factor Brookover, 124 Ariz. e.g., State gain.); pecuniary committed (defendant’s der was capacity to Stevens, his conduct State wrongfulness of appreciate the murder (1988)(aggravating factor that mitigat- significantly impaired pecuniary gain was committed for out- 826 P.2d 808 weighed of defen- factor OWEN, Paul William capacity appreciate dant’s diminished Plaintiff/Appellant, wrongfulness heavy of his conduct due to drug consumption day alcohol and CREEDON, Director, killing). Acting James S. Raymond, Hearing and Richard W. Of Wallace, also ficer, Division, Depart Motor Vehicle involves an emotional crime committed Transportation, of Ari ment of against her children a live-in-lover and zona, Defendants/Appellees. apparent without an motive. The defen- bludgeoned dant in to death his Wallace No. 2 CA-CV 91-0206. live-in-girlfriend and her two children one Arizona, Appeals Court of they at a time as arrived home. 160 Ariz. 2, Department A. Division conclude, 773 P.2d 983. We in our Wallace, independent review Feb. by surprise killed murder victims were Further, relatively quickly. the state they

that case offered no evidence suffered Id.; (I),

any pain. State v. Wallace (1986). Defen- 728 P.2d 232 hand, girlfriend, clearly

dant’s on the other physical

suffered intense and emotional

pain during forty-five and trauma her min- fight pp.

ute for her life. 501- See infra pp. 798-799. The murder in shocking

this case at least Wallace,

repugnant as the murders in

which we affirmed the death sentence.

Thus, comparison our of this case to Wal- does not convince us defendant’s

lace disproportionate.

sentence is excessive or involving

We have reviewed cases facts

and defendants similar to those of the

present case and we find dispro-

sentence to be neither excessive nor

portionate.

FELDMAN, C.J., and FRANK X.

GORDON,Jr., J., Retired, concur Justice opinion and Justice

CORCORAN’s special

CAMERON’S concurrence.

Case Details

Case Name: State v. Brewer

Court Name: Arizona Supreme Court

Date Published: Jan 28, 1992

Citation: 826 P.2d 783

Docket Number: CR-88-0308-AP, CR-89-0319-T/AP

Court Abbreviation: Ariz.