State v. Greene

Arizona, Appellee. STATE GREENE, Appellant.

Beau John

No. CR-96-0502-AP. Arizona,

Supreme Court of

En Banc. 20, 1998.

Oct.

433 Woods, General, Attorney

Grant Paul J. McMurdie, Counsel, Appeals Chief Criminal Section, Northup, Dawn Attorney Assistant General, Phoenix, for the State of Arizona. Tucson, Levitt, Harriette P. for Beau John Greene.

OPINION MARTONE, Justice. jury 1 A convicted John Beau Greene of (both degree

first premeditated murder murder), theft, felony robbery, kidnapping, touched purportedly smiled and forgery. trial court Johnson and six counts of leg. murder con- “freaked him death for the Greene claims he sentenced viction, imprisonment for the touch, terms of and to him sev- and struck out” Johnson’s Appeal court is noncapital crimes. to.this He with fist. eral times the head 31.2(b), 26.15 and under Rules automatic body the back motionless moved Johnson’s P., and direct under A.R.S. Ariz. R.Crim. wash, dumped car, of the drove to a except the kid- We affirm 13—1031. Next, says, he walked back body. napping conviction. away. He claims then the car and drove money he re- so that he needed

realized I. wash, body, BACKGROUND to the walked down turned to wallet. and stole Johnson’s Johnson, at the Roy professor a music Arizona, University seen around was last pieces of undermine evidence Several February He was p.m. 9:30 First, killing. medi- of the Greene’s version Valley Presbyterian leaving the Green testimony heavy flat ob- indicates that a cal organ just given he had Church where ject damaged a human Johnson’s —not fist — expected him his wife recital. striking person’s head skull. Fist bones ordinarily punc- p.m., the home before 10:00 ordinarily long the thick shatter before will night. it tual did not make back Johnson skull, yet neither Greene’s of the bones later, days body his Four authorities found Second, only injured. one set of hands were in a admitted lying face down wash. Greene and left footprints entered tire tracks and at trial that he killed Johnson. wash, did not suggesting that Greene ¶ that he had us- 3 Greene testified wallet, him but had it with return for the continuously ing methamphetamine for sev- immediately the murder. left after when he days that he preceding eral the murder and Third, to told Bevan he beat someone Greene during slept nor much had neither eaten body dumped near death with club and suffering was from time. He said that he pass. Gates drugs withdrawal from when he killed John- son. body dumping in the 7 After Johnson’s wash, directly car to Greene drove Johnson’s murder, day of the Greene’s trailer. He told Bevan the Bevan/Verner Mends, Verner, Bevan Loriann told Tom and killing. asked Bevan for about the Greene longer stay could no their trail- Greene he rug shoes. He also took a small some clean the Tucson Mountains. A er located west of bloody car seats. to cover shoot Greene drug dealer threatened to outstanding and over an debt and Bevan for left the trailer and headed 8 Greene presence in their Verner feared Greene’s K-mart, stops on the first of he made several relationship ruin their with the trailer would and spending spree using Johnson’s cash a truck and drove drug dealer. Greene stole any discrepancies explain To credit cards. truck to Tucson where the broke down. and on the credit signature his those between night, during drive Sometime that Johnson’s cards, K-Y wrapped hand with his concert, home from the Greene and Johnson Among jelly gauze feigned injury. paths, tell us but the record does not crossed clothes, food, camp- things, bought he other how. rifle, ing gear, scope and air and VCR story, by judge Greene’s disbelieved (which methamphet- for he later traded jury, approached is as follows. Johnson amine). eventually abandoned Johnson’s He park. claims that John- Greene in a 2nd, police March car the desert. On him, perform to oral sex son wanted arrested Greene a Mend’s house. accepted, pay him for it. Greene offered to parking lot drove to a secluded and the two says he then ear. Greene Johnson’s II. ISSUES changed mind and told Johnson following issues: response, raises through.

would not follow Trial pre- A. Issues son testified that Greene’s claim “was posterous____[Johnson] great was man of 1. Whether the trial court committed re- integrity, great principle, honor and moral by allowing versible error wife Johnson’s deep, abiding faith. important- And most testify regarding to Johnson’s moral val- ly, he was devoted me as was to him.” ues; 12,1996, Tr. of Mar. at 92. 2. Whether trial court re- committed appellant’s versible in denying error mo- agrees 10 Greene that once a victim’s tion for a directed count verdict issue, preference put sexual the state three, robbery; may offer rebuttal regarding evidence Rivera, heterosexuality. victim’s See State v. 3. Whether the evidence sufficient 1090,1101 (1987); kidnapping; sustain a conviction for 404(a)(2), see also Rule R. Evid. But felony 4. Whether the murder conviction accusing person a married making a non- predicate felony cannot stand because spousal places sexual advance far more than invalid; convictions are preference in sexual issue. All sorts of char- 5. Whether the trial court committed re- implicated, fidelity, acter issues are such as by allowing versible error the state to elicit trustworthiness, integrity, honesty, loyal- testimony concerning letters Greene wrote Thus, ty. rebuttal, purposes Joseph after his arrest to Tom Bevan and implicated accusation all of these. (a.k.a.“Dr.G.Jones”). Fausto ¶ 11 testimony Mrs. Johnson’s Sentencing B. Issues her husband was devoted and faithful her Whether trial court re- committed tends show that the victim would by admitting versible error into evidence made sexual toward advances Greene. upon relying aggravation/mitf- in the testimony honor, Her that he man was a of gation hearing a letter Greene wrote to integrity, good directly moral character George conviction; after Christina his rebuts Greene’s of inf accusations Johnson’s imposition 2. Whether the of the death idelity.1 testimony of in Admission the penalty improper; was question proper was rebuttal evidence. 404(a)(2), Rule Ariz. R. no Evid. There was 3. Whether the trial court re- committed error. by aggravated versible imposing error con-

secutive noncapital sentences the of- fenses; 2. THE SUFFICIENCY OF EVI-

DENCE-ROBBERY III. ANALYSIS ¶ 12 Greene moved a directed arguing verdict that there “no A. Trial was substan Issues tial evidence to a warrant conviction” on the 1. WIDOW’S TESTIMONY 20(a), robbery count. Rule P. R.Crim. ¶ 9 proof Greene claims the trial court Substantial evidence is that a rational by failing to erred limit of Johnson’s widow’s trier fact could find to a sufficient testimony specific beyond to the character guilt trait conclusion of a reasonable heterosexuality. Murray, state recalled Mrs. doubt. State v. testimony to

Johnson rebut the of Greene’s P.2d We construe the evi girlfriend former who testified that in light Greene dence the most favorable to sustain verdict, told her that he Johnson in re ing killed the all resolve reasonable sponse to a homosexual against advance. Mrs. John- inferences the defendant. State argues 1. Greene also infidelity homosexuality. that the trial court erred son’s was There Evid.; allowing 404(a)(2), family testify a friend the Johnson to no error. See Rule Ariz. R. 26.7(b), aggravation/mitigation hearing at the P.("[A]ny party may that John- Rule Ariz. R.Crim. reliable, evidence, family Aug. son "was a decent Tr. man.” introduce relevant includ- testimony ing hearsay, at aggravating 34. This was relevant to in order to show or circumstances....”). mitigating rebut Greene's continued accusations of John- THE EVI- 3. OF SUFFICIENCY Gallegos, DENCE-KIDNAPPING ¶ argues next ra Greene robbery if, in person 13 A commits not have found be tional trier of fact could taking property of another the course of knowingly yond doubt that he a reasonable presence person or immediate from his to inflict Johnson with the intent restrained will, against or uses with the he she force death, injury, a sexual offense on physical or victim, property or in to coerce the surrender or aid the commis intent to otherwise ' § felony. A.R.S. 13- sion of to resistance. A.R.S. 13- prevent 1304(A)(3)(1989). 1902(A)(1989). argues that there is to take no evidence that he intended direct us Nothing in the record tells how he property at the time used victim’s car got car. The into Johnson’s argues force. He killed Johnson any way. Although damaged overture, response to the homosexual heavy object to kill apparently flat used only dumped body, then Johnson, decided he found nothing indicates whether reasons, car, object For with him. his car and wallet. these or carried it steal Moreover, evidence demonstrates no his circumstances were similar Greene claims car, Greene, knowingly in the re- while Lopez, to those him, bludgeoning before strained Johnson (1988),where this court overturned P.2d 545 at him an simply whether he chose strike robbery conviction because insufficient opportune moment. evidence. highly probable it seems Lopez 14 Greene’s reliance on point at some Johnson was restrained Greene, death, misplaced. Lopez Unlike defen before the evidence is insufficient finding beyond reasonable support such a dants discarded victim’s wallet Thus, kidnapping con- doubt. we reverse burned his car after the murder “for the entry judgment of a viction and order removing purpose of from themselves charge. acquittal kidnapping on the scene, prevent attempt delay identifi body, destroy cation of and to evidence.” 4. FELONYMURDER Thus, Id. at there was ¶ no that evidence earlier use force argues we that must against accompanied by felony the victim was murder conviction because reverse robbery kidnapping Here, robbery. convictions to commit Id. intent Although cannot stand. we reverse kid tired, hungry, craving Greene was meth conviction, napping robbery conviction he amphetamine when encountered Johnson. predicate crime to remains as a sufficient temporary He had been thrown of his out felony murder conviction. affirm Greene’s residence, transportation, no and was § 13-1105(A)(2)(Supp.1997). Be See A.R.S. seeking drug who had to avoid dealer that he killed John cause Greene admitted stealing shoot him. threatened to After son, Florida, 458 U.S. Enmund car, killing Johnson’s and within hours after S.Ct. 73 L. Ed.2d money him, began spending Johnson’s Arizona, Tison v. U.S. cards. using his credit In 95 L.Ed.2d satisfied. addition, also we note that Greene was con The examination of crime scene premeditated murder. victed of only one set tire tracks and foot- revealed prints A to and from the wash. rational trier LETTERS 5. POST-ARREST beyond a of fact could have found reasonable against doubt use force argues the court erred 20 Greene Greene’s. accompanied by an intent Johnson was permitted the to cross-examine when it state property. The Rule 20 mo- after take Johnson’s him letters he wrote about two (a.k.a.“Dr. Joseph one Fausto arrest: properly tion was denied. G.Jones”) and the other to Tom Bevan. the court admitted the en- letter, only following: the contents claims of the letters tire it relied on impermissible amounted to irrelevant and right up Mother fuckin’ rank snitch’s there 404(b), “other acts” evidence under Rule child with molesters & homosexuals. And Ariz. R. Evid. you lately you if have news seen the then good probably got pretty idea as to how argument fails be faggots! I feel about cause the letter Bevan was relevant guilt. show Greene’s consciousness of See sincerely yours, Very letter, Rule R. Evid. In the Greene indicated he had Be- reviewed Beau Greene authorities, yet van’s recorded statement convicted murderer challenge nowhere the letter did Greene alley row death the truth of Bevan’s statement. Greene was 4-D-25 only informing concerned about Bevan Ex. State’s 1. These create in statements him. finding especially ferences relevant to a of an ¶22 letter The to Fausto is also depraved heinous or state mind. See relevant it because rebuts claims that Greene 13-703(F)(6)(Supp.1997); A.R.S. committing charged felt remorse for of Salazar, boy. fenses: like I been a “Looks baaaad (1992)(“In determining whether a is crime always Fuck it! did like to stir shit! depraved heinous or focus on the we defen pay fucker me to sex with wanted to dant’s mental state and attitude as evidenced him Oops sorry faggot, wrong ... ... white actions.”). by his words and The letter was boy!” Tr. In of Mar. at 155. probative of Greene’s attitude about the mur addition, the letter contains statements rele provides insight der and into his callous fasci vant claim to Greene’s that he hit Johnson murderer,” being nation with a “convicted only with report his fists: “Coroner’s said Moreover, apparently headed for death row. fractures, multiple skull of death cause probative value of these statements is blunt force trauma. Sounds to me like he substantially outweighed by danger of got his fuckin’ caved skull in!” Id. prejudice. unfair Rule Ariz. R. See 107 S.Ct. 1676. Evid. There was no error. ¶ Moreover, the letters not “oth- were THE 2. PROPRIETY OF DEATH purpose er acts” evidence introduced for the SENTENCE proving conformity acted in cases, capital indepen we 404(b), with them. Rule R. Evid. dently findings review the trial court’s The letters were direct evidence that Greene aggravating mitigating circumstances to charged committed the offense. There was if penalty appropriate. determine the death no error. § 13-703.01(A)(Supp.1997). A.R.S. The trial court found that murder was the committed B. SENTENCING ISSUES pecuniary gain, § for A.R.S. 13 LETTER -703(F)(5)(Supp.997), especially GEORGE in an heinous, manner, depraved cruel or A.R.S. ¶24 Approximately af two weeks 13-703(F)(6)(Supp.1997). convictions, Greene, request ter his at the of inmate, another a letter threatening wrote to Pecuniary a. Gain an George. inmate named Christina Greene argues admitting aggravating erred in pe the court The factor of sentencing gain letter at cuniary present because it not rele is when “[t]he was defen vant, relevant, or, probative if its was dant committed the offense as value consideration outweighed substantially by danger receipt, in expectation the for the or of the re 401, 402, 403, prejudice. pecuniary unfair ceipt, anything See Rules value.” § 13-703(F)(5)(Supp.1997). Ariz. R. Evid. A.R.S. The evi suspect, memory all that if is gain was But Greene’s that financial must show dence Soto-Fong, evidence offered is uneontradicted for the murder. State remains motive Moreover, trial, during Greene by P.2d the state. — U.S. —, detail, denied, recalled, before great events both cert. (1997). examination, 137 L.Ed.2d On cross the murder. and after usage unequivocally that neither he stated medi- found that the 28 The trial court methamphetamine had from nor withdrawal scene evidence testimony cal and the crime memory. affected his ever the version of negated Greene’s completely examiner, According the medical killing. to that when one held We fractured Johnson’s could not have Greene rob, Further, expects pecuniary the medical the accused comes to skull with his fists. object heavy flat all other conduct. gain testified that this desire infects examiner an kill The use of Landrigan, used to Johnson. was State v. also implies premeditation. (1993). It supports instrument The evidence therefore, and, account, Greene’s undermines finding beyond a doubt reasonable Likewise, at the credibility. evidence his methamphetamine Greene, coming off falsity of the Greene’s crime scene reveals to obtain cash or penniless, killed Johnson killing. the The sin- proffered motivation for he make fraudulent credit so that could cards footprints the gle tracks and near set tire exchange money drugs. to for purchases for did not return

wash indicates Greene Thus, trial court found that claims, but instead as he Johnson’s wallet drugs, money, and trans need for admitted he with him left wallet when crime with the portation combination immediately following murder. wash intended that Greene scene evidence showed finding that trial court’s Greene than the profit from murder no later the murder also profit from was intended object kill picked up John moment he for supported Greene’s admitted need agree. murdered Johnson son. Greene We transportation. money, drugs, and gain. pecuniary tired, hungry, he and crav- testified that was methamphetamine when he encountered ing Depraved Especially b. Heinous or homeless, was had no trans- Johnson. He portation, attempting to avoid and was ¶33 found The trial court also him drug dealer who had threatened shoot especially heinous or the murder outstanding debt. Greene testified over (F)(6) aggravating cir depraved under the things life important most in his that the two terms “heinous” “de cumstance. The drugs and to get were to more at time state of praved” focus on the defendant’s girlfriend. win back his State v. mind offense. See time the murder after Greene’s actions Amaya-Ruiz, 166 Ariz. Driv- pecuniary motive. also demonstrate have said that “[t]he We car, of the ing and within hours Johnson’s cruel, heinous, especially depraved cir murder, using credit began Johnson’s disjunctive, so if phrased is cumstance K-Y wrapped hand in cards. found, is the cir the three factors one of injury explain gauze feigned jelly and Murray, cumstance satisfied.” signatures. any discrepancy in credit card cards, purchased the stolen credit With determining whether Factors we consider food, and electronic camping equipment, depraved especially heinous or a murder drugs. later traded for equipment that he (2) (1) murder; gra relishing of the include: girl- to bought and took it his He also food (4) (3) mutilation; violence; sense tuitous for her son. friend’s house (5) (6) lessness; witness helplessness; Ross, 598, 180 See State v. elimination. failed to argues the court Greene 1354, (1994); 605, see also 1361 886 effect of his metham- properly consider the 51-52, 42, Gretzler, accurately State v. phetamine ability on his to use (1983). case, the trial 1, In this night. P.2d 10-11 that perceive recall the events senselessness, 888, relishing, court (1980)(saving spent found bullet from 75, helplessness. crime); 63, Lambright, State v. 138 Ariz. (1983) 1, (wearing 673 P.2d a necklace “Relishing” refers or to words victim), belonged charm that with a had to perver actions “that show debasement or on grounds overruled other Hedlund v. Roscoe, sion.” State v. 184 Ariz. Sheldon, 143, (1992). 173 Ariz. 840 P.2d 1008 635, 910 P.2d The defendant facts, however,' support These not do such a say something must or do that indicates he conclusion. savored the murder. Id. The found court “displayed” 38 Greene claims he li- relishing a based on statement made cense to counter disbelief. Bevan’s Bevan’s along to Tom Bevan with Greene’s later dis testimony trial is consistent with this ac- play Bevan, of the victim’s license to count: letters he wrote while incarcerated. Q: your What was reaction when he may guy] you? [he said have killed to (1) Statement to Bevan I did really A: believe it at the ¶ 35 at When arrived Be- time, no. trailer, van’s he told Bevan he that had “faggot.” “clubbed” a The court conceded us, sir, Q: You you indicated to that may simply that Greene “relating, actually held the driver’s license. Was perhaps vernacular, explana vulgar his you picked up there reason that 1996, tion of his Aug. conduct.” Tr. of it? held however, 7. The argues, state this lan No, guage just enough A: he handed it to language like the used in me so West, State v. at it. 176 Ariz. P.2d 192 looked support finding relishing. of We Q: you why Did handing he tell he was disagree. you? it to A: No. people West told he “beat the fuck out of some old man.” Id. at P.2d at Q: Did you he make statements to “bragged 208. He about cuts and bruises you while handed the driver’s license? his coming hand from beating up ‘the old No. A: Moreover, man he ripped off.’” Id. West testimony, Based on this we are not con- repeatedly boasted of the murder and to displaying vinced that Greene was the license different friends detail. He one told trophy enjoyment indicating as a “ up friend that ‘he had beat this old man the crime. legs tied his arms and behind his back and ripped threw him in the closet and then he Post-Arrest Letters ” his stuff off and the car.’ Id. at ¶ 39 The trial court believed P.2d at 197. While the facts of instant following letters Greene wrote his arrest West, ease are those in they close to do not relishing. general demonstrate rule is reach necessary the level finding may that a of mind state be “defendant’s relishing. from inferred behavior at or near the time of Martinez-Villareal, offense.” State (2) Display of Driver’s License gave The trial prove court also Post-murder relevant behavior is weight “displayed” depravity provides the fact when it heinousness Johnson’s driver’s license to of “a Bevan. The evidence killer’s vile state of mind at the murder____” Gretzler, exhibiting court believed that Greene was time “trophy Roy souvenir of Johnson’s murder” (1983)(empha-sis added). amounting Thus, “proof Aug. his kill.” post-murder Tr. statements indifference, callousness, at 7. A souvenir from a suggesting taken or a lack See, may e.g., crime relishing. “relishing,” only constitute constitute remorse when Clark, 428, 437, indicate, doubt, they beyond State P.2d reasonable a ¶42 find that the statement enjoyed the We that killer savored or murder the certainly demonstrate Greene’s letters time at or the of the murder. near callous toward vile of mind and attitude state (a) Nevertheless, they do not the show Fausto Letter murder. beyond a that relished the murder Greene his 40 About one month after ar finding a of relish reasonable doubt. Absent rest, Joseph wrote his Faus to friend (F)(6) stand, ing, aggravator the cannot be (a.k.a.“Dr.G.Jones”). to The court not trial helplessness, cause with senselessness qualms ed the “no that in letter Greene had more, ordinarily prove to out insufficient boy’ stating ‘wrong about that is the white he Ross, depravity. See State v. heinousness picked up by ‘faggot’ up ended to be who 598, 607, P.2d ” Aug. with fuckin’ skull caved in.’ Tr. of ‘his court at The concluded Statutory Mitigation c. his “brag[ging] Greene was about conduct not 43 The trial court did find enjoyed caving because he in the victim’s any set forth in mitigating the factors of agree skull.” Id. We the statements 13-703(G) (Supp.1997). § Greene dis A.R.S. bragging constitute and show a tremendous (G)(1) finding. putes only the trial court’s cases, bragging lack some of remorse. In argues that the trial court erred proof relishing about a is sufficient of crime use, drug to failing to find that due his his provide where the defendant’s statements “capacity appreciate wrongfulness the to of insight clear into his state of mind at the his or to conform conduct to the conduct his See, West, killing. e.g., time of the requirements significantly of law was im (1993); paired.” Runningeagle, (1993) (finding relishing 44 Greene testified that at the time of where defendant drugs. withdrawing the murder he was from laughed he returned to car after as the the statement, pre- Other than his own bragged murder and that he ain had. no evidence of the the with- “good believe, however, sented effect fight”). not We do capacity appreciate had on his drawal to beyond Greene’s statements show rea ability conduct wrongfulness his or his enjoyed actually sonable doubt that he requirements to the conform his conduct killing, reveal his state of mind at or near at the time of the offense. law killing. the time of the ¶45 contrary, To the Greene’s behavior (b) George Letter appreciate wrongful- he shows that did murder, ness his conduct. After ¶41 upon also court relied pants for Greene asked Bevan clean George, letter Greene wrote to Christina pants Because did shoes. Bevan not inmate, about two weeks after he con him, bloodstains, dirt on the Greene rubbed victed, sentencing. finding, before In its inconspicuous “trying possible.” to be as as placed the court noted that Greene words Tr. Mar. 104. Greene also row alley” “convicted murderer” “death bloody rug took small to cover the car signature, on the lines below his and conclud addition, feigned injury he his seats. “look[ing] ed that because he was forward to hand in order to stolen credit use Johnson’s death, notoriety no there is doubt agree the trial court that the cards. We with Roy Aug. 26, he Tr. relished Johnson’s.” evidence is insufficient the exis- establish anticipation at 8. (G)(1) mitigating tence of circumstance.. be he would sentenced to death reflects Furthermore, agree that we Greene failed extraordinary callousness and lack of re mitigating establish of the factors morse, provide insight it does not sufficient 13-703(G). A.R.S. killing he whether relished the at or Moreover, near the time killed. rela Mitigation Nonstatutory d. George per tive remoteness of letter prove suades that the did The trial court considered the fol- us state relish ing mitigation offered found it insuffi- beyond lowing reasonable doubt. In

ciently leniency: drug he had little formal education. substantial to call for -withdrawal; seventeen, dysfunctional family when he turned he moved back to use record; history; felony Washington edu- to live with Ms mother. lack criminal achievement; “hog ability provide to for Greene’s mother testified that she was cational drugs drinking wild” “into the and the family, good himself and Ms and to have a life; marriage productive positive partying” influ- and the when Greene returned. 29, 1996, July Tr. of at 47. admitted step-brother; ence on and the effect that the She contributing problems to Greene’s with meth- execution would have on his children. amphetamine. (1) Drug Use and Withdrawal ¶ 51 This court has held that ¶ 47 Evidence showed that Greene “family background may be a substantial mit history dating had a back substance abuse igating when it is to circumstance shown Despite periods to 1983. occasional of sobri have some with the defendant's connection always heavy ety, reverted to use. Towery, State offense-related conduct.” v. ¶ 48 Jones, 471, 491, In 185 Ariz. 168, 189, (1996), 186 Ariz. 920 P.2d gave 917 P.2d this court denied, 1128, 117 985, 136 cert. 519 U.S. weight” to evidence of defen “some L.Ed.2d 867 Greene’s mother intro abuse, history drug dant’s of alcoholism and methamphetamine, him duced and encour night and his own statement that on the aged, discourage, or at least failed to his use slept the murder he had not for three or four through open flagrant her own use. But days and was under the influence of metham personal responsibility because adults have phetamine and alcohol. actions, for their adult offenders have a diffi days drug 1149 Greene’s use on the be- proving cult burden of connection between undisputed. fore the murder is From Fri- family background and offense-related con 24, 1995, day, February Tuesday, until Feb- Stokley, duct. See State (the murder), ruary date 898 P.2d At the time of the methamphetamine every day. old; Greene used murder, years Greene was During very this time he ate little and did had little or no contact with his mother Jones, sleep. Unlike the defendant years. may have Greene’s mother intro however, Greene testified that he was not drugs, him duced Greene failed drugs under the influence of at the time he on the show how this influenced his behavior expert testimony killed. Nor was there Towery, night of the murder. See drug causal connection between use or Thus, find 920 P.2d at 311. we do not withdrawal and the offense. See State v. history dysfunctional family Greene’s to be a Rienhardt, mitigating circumstance. history (1997)(rejecting of substance mitigating abuse as a when no circumstance Felony Lack of Criminal Record evidence establishes a causal connection be- ¶ 52 said the “[L]ack We have crime). drug tween the abuse and the While felony may prior convictions constitute money get it is true that Greene killed to nonstatutory mitigating circumstance.” buy drugs, this is not the sort of causal at 472. Stokley, 182 Ariz. at connection that would a claim of prior felony convic Although Greene has no mitigation. kill To hold that motivation to tions, conviction he has 1986 misdemeanor part by drugs fueled a desire for is miti- agree with the trial court that for theft. We gating anomalous would be indeed. We re- felony is a miti Greene’s lack of a conviction ject mitigating this claimed circumstance. circumstance, gating but entitled little weight. (2) Dysfunctional Family History parents separated when he (4) Educational Achievement thirteen, primarily and Greene lived with father, his G.E.D. in trapper, migrated who between 53 Greene received time, degree from Washington. During he obtained a

Arizona and

443 (6) Step-Brother Influence on Institute, Positive special- Motorcycle Mechanics Harley-Davidson repair. in izing ¶ a mid step-brother, 57 Greene’s to be achievement find this educational we teacher, that Greene testified dle school Hensley, 142 v. mitigating, see State slightly and self-reli perspectives him new taught (1984)(ob- 689, 604, 598, P.2d 695 691 Ariz. char good conduct Although past ance. is not suffi- mitigation), it is taining circumstance, G.E.D. mitigating a relevant acter is aggrava- to overcome ciently 368, 384, substantial Williams, 904 Ariz. 183 v. see State Murray, id.; deed, (1995), see also single good in this case. See 437, tor 454 P.2d (1995) 542, 9, 45, crime, 578 906 P.2d not Ariz. does 184 from the in time removed becoming a diploma and (earning high mitigating. school level and is not to that rise 549, 530, mit- sufficiently not substantial Ariz. 892 paralegal Willoughby, was 181 v. State (1995) num aggravator). 1319,1338 (finding “great overcome igation to P.2d mitigating to have past good deeds

ber” of value). (5) Marriage Life and Productive Good (7) of Execution Effect ¶ January of met his ex-wife 54 Greene Children Greene’s

1989, of married her November 1989 until sometime year. ¶ From same ex-wife testified Greene’s 58 children, completed 1993, two he fathered effect Greene’s about the she was concerned school, employed. and was trade We on her children. would have execution weight to the effect mitigating

give some ¶ mitigation emo found have on the 55 We have would Greene’s execution v. adequate family See State well-being of his children. tional where defendant 933, 126, 135, 519, Maturana, 882 P.2d member, Stanley, Ariz. v. 167 see State (1994). (1991), 529, 944, refused 942 P.2d mitigation the defendant find where (8) Arguments Additional his child. minimal contact with maintained West, 432,451, P.2d 176Ariz. See State v. miti- additional submits two 59 Greene (1993). 192, after his mar Sometime by the trial court: gating factors not found rights (2) parental remorseful, riage ended Greene’s is is his financial Any were severed and of re- to his children claims capable of rehabilitation. by minimal to non negated for his children was completely morse good mind, mar did not have a letters existent. He thus as shown vile state offense, reject at a healthy family this riage long life. We after the Greene wrote drugs. Nor has mitigation. using claim of when he was time any that he is presented evidence reject both capable of rehabilitation. We leading productive 56 As for factors. these life, mitigation the de have found where we gainfully periods for fendant had some Reweighing Independent e. Soto-Fong, Ariz. employed, State v. (1996), cert. de P.2d review independently 60 We — —, nied, findings aggravation U.S. the trial court’s made, (1997), to find inde mitigation, and refused is we

L.Ed.2d 1033 and if an error unable suf mitigation defendant was mitigation where the if the pendently determine leniency in period job significant to warrant ficiently hold substantial down § 13- unemployed, existing aggravation. A.R.S. frequently light and was weighing, we consid (Supp.1997). Spears, 184 703.01 simply strength, not at the and the unemployed quality er the Greene was number, mitigating aggravating and provide and failed to of the murder time McKinney, 185 trade State gainful employment after factors. See evidence Al mitigating reject in 1990. We school (F)(6) finding, rejected though we have circumstance. ZLAKET, Justice, leaving pecuniary gain aggrava- dissenting. as the sole Chief tor, upon independent reweighing we con- Watson, 64 In mitigation, clude that considered indi- plainly this court vidually collectively, sufficiently is not stated: leniency. substantial to warrant have a We Godfrey Georgia, [446 We believe v. U.S. (F)(5) here, very strong relatively with trivi- 420, 1759, 100 S.Ct. 64 L.Ed.2d 398 nonstatutory mitigation. al (1980)], penalty mandates that the death only ag-

should be reserved for the most circumstances, gravating of circumstances 3. IMPOSITION OF AGGRAVATED shocking repugnant that are so that the SENTENCES murder stands out above the norm of first murders, degree background or the of the findings “pecuni 61 Based on apart him defendant sets from the usual ary gain” depraved” and a “heinous or state murderer. mind, imposed aggravated trial court my opinion, nothing there is about Beau robbery, kidnapping, sentences on the and John Greene or his crime that meets this theft-by-control convictions. Greene claims constitutional standard. findings that because these are either sad, true, tragic 65 It is that the of, to, essential element or irrelevant reprehensible killing and of Professor John- question, offenses the trial court erred in son is not much different from other “rob- relying upon them. bery gone awry” murders that come to us. ¶ 62 But an element of a can crime also Moreover, showing there has no clear aggravation be used for enhancement and that the defendant rises above “the norm” of Lee, 608, purposes. See State v. 189 similarly other convicted offenders. I am 620, 1222, (1997), 944 P.2d 1234 cert. de persuaded that in- had this court not so —nied, —, U.S. 118 S.Ct. 140 advisedly proportionality elected to abandon Lara, Salazar, cases, (citing capital L.Ed.2d 321 v. 171 reviews see State v. 282, 285, (1992)). 399, 417, (1992), 844 P.2d 584 inconsistency and arbitrariness of this Pecuniary gain aggravating is an circum penalty instantly death would become obvi- in determining robbery stance sentence. ous. 620-21, See id. at 944 P.2d at 1234-35. 13-702(0(5) (heinous,

A.R.S. sections cruel ¶ 66 “The United States Constitution de (C)(6) depraved), and (pecuniary gain) re imposition mands that of a death sentence be quire the trial court to consider these factors upon principled based some distinction.” sentencing noncapital on the Mata, convictions. 319, 323, (1996), denied, There is no error here. cert. 518 U.S. Ag 135 L.Ed.2d 1114 S.Ct. “rationally gravating circumstances must dis IV. DISPOSITION tinguish between those individuals for whom appropriate death is an sanction and those ¶ 63 We affirm Greene’s convictions and Florida, Spaziano for whom it is not.” murder, robbery, degree sentences for first 447, 460, 3154, 3162, 104 S.Ct. U.S. theft, forgery,2 including the sentence of Creech, (1984); L.Ed.2d 340 see also Arave v. kidnap- death. We reverse the conviction for 1534, 1542, U.S. S.Ct. ping judgment acquittal that a order (1993) (“[A] capital L.Ed.2d 188 State’s sen be entered on that count. tencing ‘genuinely scheme also must narrow persons eligible class death JONES, V.C.J., MOELLER, ”) penalty.’ (quoting Stephens, J. Zant v. (retired), 2733, 2742, concur. S.Ct. U.S. appeal capital 2. An P. not contest the automatic notice of in a case Ariz. R.Crim. Greene does appeal respect forgery appeal, theft and thus sufficient as notice of with convictions 31.2(b), judgments they automatically all entered in the case. Rule are affirmed. doubted, however, (1983)). that some be differently, consti It cannot Put L.Ed.2d 235 than others. The same are worse tutionally permissible aggravators must “rea homicides human may of killers —as with all more se be said sonably justify imposition of a exactly beings, two alike. The deter- compared to no the defendant vere sentence on Zant, die live who shall 462 mination who shall guilty found of murder.” others something more definite quoted be based on at 2742 must 103 S.Ct. U.S. Oklahoma, the visceral reaction predictable than Romano U.S. View- defendant. 2009,129 particular crime L.Ed.2d 1 and/or case in the con- the facts of the instant ing trial majority admits that struggle I capital jurisprudence, text of our (F)(6) That finding is unsustainable. court’s this death sentence. to make sense of (F)(5), gain,” the sole “pecuniary leaves in precipitated worry may that it have years, in aggravator this matter. In recent in prominence of the his part by the victim statutory aggra acknowledged we have inflam- community, insulting as as and well the same vating factors are not entitled to long by the matory remarks made defendant have weight every example, case. For we are that do after the crime. These matters varying de that because there are stated un- aggravating constitute circumstances not depravity, grees cruelty, of heinousness and capital sentencing laws. our der (F)(6) aggravator may great be the accorded agree facts weighed 69 I that the here significance or lesser when er (F)(5) it, interpret aggravator as we now against mitigation given in a situa the available See, Miller, 314, though once dis- e.g., Ariz. even there was considerable tion. 186 (af However, (1996) just 327-28, 1151, meaning.1 as agreement 921 P.2d 1164-65 to its cruelty, hei- varying degrees are firming holding the trial court’s that four as there ag killings not all mitigators outweighed by single depravity, nousness were heinous, gain Consequently, pecuniary cert. are the same. gravator depraved), cruel denied, 1152, 1088, weight in they given 117 137 the same 519 S.Ct. should be U.S. Barreras, (1997); sentencing case 221 v. 181 believe our L.Ed.2d State the calculus. (stat principle. 516, 521, 852, (1995) plainly Ariz. P.2d law reflects this 892 857 process “requires an ing weighing the (F)(5) many present is 70 strength of both quality evaluation the uncommonly seen as capital senteneings, it is evidence”); aggravating mitigating the aggravator. An examination the sole Gulhrandson, v. 184 Ariz. 906 State where courts have those few instances trial (1995) 579, that, (holding because P.2d 604 this defendants to death based on sentenced killing “particularly gruesome, the bru solitary v. factor instructive. In is State tal, protracted,” gratu “finding Stevens, 595, (1988), 724 Ariz. P.2d great [was] itous violence entitled having drags and alcohol contrib found that weight”). foregoing principle is While conduct, reduced uted to the defendant’s we appli logical, subjectivity inherent in its cases, In life. three other his sentence to expose the fragile cation tends to constitu sentences, we affirmed death where underpinnings capital tional of our sentenc v. striking are similarities. In State there ing is more obvious scheme. Nowhere 869, White, 500, 503-04, P.2d 168 Ariz. gain” the “pecuniary than in our treatment of (1991) girl his the defendant and 872-73 aggravator. conspired kill her to obtain friend husband At a proceeds. predetermined never The details of murder are life insurance time, Most, fact, quite drove to the victim’s detestable. the defendant pleasant. Legislature, aggravating X. believed circumstance. 1. Former Chief Justice Frank Gordon [(F)(5)] intended, only legislature accomplished that the "intended this re- it so could have Id.; where is a hired include situation defendant specific language.” precise, sult with more 437, Clark, 428, killer.” State v. 126 Ariz. 549, Willoughby, 181 Ariz. see also State v. (1980) (Gordon, J., concurring). P.2d (noting a con- Thus, (F)(5) "[b]y extending meaning [ ] "may killings prompted have cern for contract case, majority included the instant killing has 703(F)(5)”). promulgation of 13— robbery perpetration of as an in the and, gun, may kiñ been “as instantane- using potato-silencer house on his decision to have mind,” thoughts of the him. Id. The ous as successive shot and killed Defendant Eastlack, collecting girlfriend later discussed the State v. his (1994), may developed or it money. Willoughby, In insurance State 530, 533-34, over the course of an hour or two. We 1322-23 however, (1995), clear, simply It the defendant convinced his wife to cannot know. generous reading of the large policies naming him that even the most take out insurance planning beneficiary. meet state’s evidence fails to uncover as the After numerous girlfriend agreed upon scheming remotely comparable to that ings, he and his an they plan and detañed murder above cases. elaborate later executed. Id. at 892 P.2d at 1323. 73 We have times reduced death sen- wife, Shortly killing after the defendant where, here, tences to life the trial court Spears, insurance claims. filed multiple aggravators, on re- identified (1996), 908 P.2d 1062 cert. except pecuniary all view were eliminated — denied, —, U.S. Rockwell, gain factor. See State v. L.Ed.2d 308 the victim considered the (1989) (defendant 775 P.2d 1069 Wiled boyfriend. Relying defendant to be her employee stop during robbery); at a truck this, money plan he devised a to take her Graham, 135 Ariz. 660 P.2d 460 282, vehicle. Id. at 908 P.2d at The (1983) (defendant took a rifle to victim’s work, took a leave of victim absence from rob, intending house and Wiled victim apparently believing taking trip she a was door). when he answered the In State v. During “trip,” with the defendant. this she Marlow, 395, advances, pur obtained substantial cash upheld aggravators, we two of three him, things signed chased for over her including pecuniary gain, weighed them body in vehicle title. Her was found the only they once because were based on the gunshot desert with a wound to the back of same facts. then reduced the sentence. We 283, the head. Id. at 908 P.2d at 1068. ¶74 have Where death sentences ¶ affirming 71 In the in these sentences affirmed, generañy the facts are than worse cases, emphasized carefully we the conceived presented here. those As we noted meticulously prepared plans. exam- For McKinney, pecuni v. have encountered “[w]e Willoughby ple, in we said: ary gain aggravator as the sole in other cases just Wiling This was not the result of mo- penalty imposed, in which the death was not mentary premeditation but of Defendant’s quality but the Hedlund’s con [Defendant] deliberate, conceived, carefully meticulous- certainly gives weight great duct in this case ly planned, and cold-blooded scheme aggravating to the circumstance.” 185 Ariz. kiñ, divorce, unsuspecting rather than (1996) (citations 567, 1214, 1231 584, 917 P.2d — In respect very wife. this it was much like omitted), denied, —, cert. U.S. killing the cold and callous contract that 310, 136 L.Ed.2d 226 That may prompted promulgation have the conduct involved two murders committed 13-703(F)(5). during carefully planned burglary spree in possibhity 549, 1338; which of murder was dis “[t]he 181 Ariz. at 892 P.2d at see also recognized being fully cussed and as ac White, 168 Ariz. at 815 P.2d at 885 Id.; ceptable contingency.” see also State v. (stating that “there is difference between Hensley, 142 Ariz. 691 P.2d 689 exacting, pre- taking of human life with (planned robbery involving a double murder coolness, here, hasty, meditated witnesses). to eliminate impulsive taking of life that from evolves activity”); Spears, Ariz. at other criminal weight aggravator 75 Once the of each (“This premeditated 908 P.2d at 1080 assessed, mitigator has been we are carefuñy prey planned murder of the was obligated against to balance the factors each resulted.”). and calculated for the lucre which leniency appropri- other to decide whether is Hinse, Note, matter, Appellate present In ate. Karen L. there is no Analysis An planning. evidence of substantial Greene’s Review Death Sentences: it Defendant Greene what is about Mississippi v. Impact Clemons murderers, him, among all crime that makes Arizona, 142 n. 11 Ariz. L.Rev. Ledewitz, indicated, deserving of retribution?” “most previously our cases As tell majority does not us. supra, at 355. unequivocally “[w]e have that will stated asserts, my merely without unless It penalty of the death uphold imposition (F)(5) very strong opinion, “[w]e have a differs either the murder or defendant noted, Supra, previously here.” at 60. As degree from norm of first murders Fierro, sentencing practices the last court over trial defendants.” State decade, (1990); precedent, sug- as well as our own Spears, see also contrary. we have no indi- gest the Because P.2d at 1080. Further- 184 Ariz. at more, planning was involved long princi- to the cation substantial “adhere[d] we case, relationship of or confi- in this no trust is a whether the ple that ‘where there doubt perpetrator and his vic- dence between imposed, be we will penalty death should tim, surrounding the other details sen- few that doubt favor of life resolve ” beyond reasonable Marlow, proven crime that were tence.’ 163 Ariz. at Rockwell, doubt, aggravator that this must Ariz. at conclude (quoting at 402 1080). case, spectrum. end of the present lie toward the weaker P.2d at In the it seems only principles me these honored deterrence, majority As ad- in their breach. place hungry, without a mits stay, withdrawing from a meth- recent Georgia, Gregg Supreme amphetamine binge when he killed Mr. John- purposes purport- Court noted two social imagine' It difficult to the death son. edly capital punishment: served “retribu- penalty having much deterrent effect on capital by pro- tion crimes and deterrence Pulaski, supra, so someone situated. See spective offenders.” U.S. judges (arguing that should assess wheth- 47 2909, 2929-30, 49 859 S.Ct. L.Ed.2d signifi- “imposing penalty er the death would Florida, In v. the Enmund Court stated goals cantly legislative implicit advance penalty “measurably unless death con- statutory aggravating in those circumstances goals, tributes to one or both of these it ‘is ease”); Gregg, present the defendant’s 428 nothing purposeless more than the and need- 185, (noting at at 2931 “that U.S. 96 S.Ct. pain imposition suffering,’ less there are murderers ... for whom the threat punishment.” hence an unconstitutional 458 effect”). little or of death has no deterrent 782, 798, 3368, 3377, U.S. 102 S.Ct. 73 . (1982) 1140 (quoting L.Ed.2d Coker v. Geor- ¶ majority 79 The considers nine circum- 592, 2861, 2866, 584, gia, 53 433 U.S. nonstatutory mitigation: possible as stances (1977)). differently, L.Ed.2d 982 Stated 1) 2) withdrawal, drug dysfunctional use and justifies]’ ‘reasonably of a “[w]hat selection 3) felony family history, lack of criminal rec- particular subgroup of defendants is that 4) 5) achievement, ord, good educational mar- crimes, defendants, 6) these or their are the life, productive positive influence riage and murders, meaning “worst’ murderers or 7) step-brother, the effect of execution on on retribution, deserving most or the most 8) 9) children, remorse, capabil- Greene’s Ledewitz, New deterrable.” Bruce S. 1, 2, ity rejects 5, It items for rehabilitation. Aggravating Statutory Role Circum- 6, altogether, despite fact that Law, Penalty in American Death stances expressly two of judge the trial found at least L.Rev, (alteration (1984) 317, Duq. (1 6) mitigating. to be It acknowl- them and ¶. original) (citing U.S. Stephens, Zant 3, 7, edges presence of items 4 and but 15, 2733, 2742 877 n. 103 S.Ct. n. “relatively trivial.” Su- describes them (1983)). L.Ed.2d 235 weight” It accords “little pra, 60. history, criminal which is innocuous Greene’s F(5) arguably aggravator Arizona’s capital compared that of most defendants. “a concern with retribution” reflects both Supra, at 52. Pulaski, A. “a rationale.” Charles deterrence contrast, Jr., agree In I with the trial Sentencing in A Capital Arizona: Criti- Evaluation, proven. judge But that items and 6 L.J. 47. cal St. majority’s share the Stanley partici- conclusion that items Justice G. Feldman did not present, 4 and 7 place considerably pate in the determination of this matter. Const, weight VI, 3,§

more on the lack Pursuant to Ariz. defendant’s of a art. mind, Kleinschmidt, my serious criminal record. Honorable Judge when Thomas C. mitigation collectively One, Appeals, considered and Arizona Court of Division against solitary, designated balanced relatively weak was to sit in his stead. (F)(5) aggravator, there is considerable

doubt as to whether a death sentence is Marlow,

appropriate. See 163 Ariz. at

786 P.2d at 402. 81 While I am offended agree they

letters and do not remorse, his claim of I choose not to overem- 967 P.2d 123 phasize Experience them. and common Arizona, Appellee, The STATE of expressed pris- sense tell us that attitudes may precipitated by be panoply of mo- tives, influences, pressures and circum- Stephen LUJAN, Appellant. Castañeda foreign stances to the outside world. While No. CR-97-0375-PR. might hope we spurs incarceration kill- remorse, openly express ers to ought we Supreme Arizona, Court of be shocked when it fails to do so. En Banc. ¶ 82 No deny evaluating one can Oct. quality strength aggravation and miti gation degree subjectivity. involves Barreras, However, in order to protect weighing process from “the same

unguided, emotional results denounced since Georgia,

Furman [v. 408 U.S. 92 S.Ct. (1972)],” White, 33 L.Ed.2d 346

(Corcoran, J., concurring), we attempt must manage subjective our inclinations so that arbitrary rulings are avoided. id. at (“If sentencing

815 P.2d at 892 judge has right

no ... to consider his or her own

subjective appropriateness belief as to the penalty, greater we have no authority to do appeal.”). precedent

so on indispens Our is Pulaski, regard,

able this see supra, at 46

(“One guidance source of prior deci Court.”),

sions of the Arizona Supreme it compels only

believe one result. compassion

I feel the utmost for the victim survivors,

and his genuinely despise defendant,

crime committed I honest

ly any principled do not believe there is basis upon

under our law which to execute him. I

would reduce his sentence to life without

possibility parole.

KLEINSCHMIDT, J., concurs.

Case Details

Case Name: State v. Greene

Court Name: Arizona Supreme Court

Date Published: Oct 20, 1998

Citation: 967 P.2d 106

Docket Number: CR-96-0502-AP

Court Abbreviation: Ariz.