State v. Barraza

BARKER, Judge.

¶ 1 In a capital murder case, the capital aggravator of “especially heinous, cruel or depraved” under Arizona Revised Statutes (“A.R.S.”) section 13-703(F)(6) (Supp.2006) may only be invoked in compliance with the factors set forth in State v. Murdaugh, 209 Ariz. 19, 31, ¶ 59, 97 P.3d 844, 856 (2004). The primary issue in this opinion is whether compliance with the Murdaugh factors is also required in a wow-capital homicide for there to be a valid wow-capital aggravator of “especially heinous, cruel or depraved” under A.R.S. § 13-702(0(5).

¶ 2 We hold that the Murdaugh factors may serve as a guide in non-capital cases under § 13-702(C)(5), but that strict compliance with them is neither appropriate nor required. Accordingly, we affirm.

I.

¶ 3 Mayra Isabel Barraza (“Barraza”) appeals from the trial court’s imposition of a twenty-two year aggravated sentence for her conviction of second degree murder. On May 4, 2001, Gregorio Espinoza (“Espinoza”), a forty-seven-year-old landscaper, picked up Barraza, seventeen years old at the time, for a date at approximately 8:30 p.m. Barraza met Espinoza when Espinoza did landscaping work for the neighbors of a family Barraza babysat for. Barraza claimed that Espinoza did not have any romantic interest in her and that he knew she was homosexual. When Espinoza picked Barraza up on May 4, 2001, Espinoza stopped to purchase beer and then took her back to his house so that he could take a shower.

¶4 While at Espinoza’s house, Barraza stabbed Espinoza sixty times with a knife. Espinoza, who was five feet, two inches in height and weighed 139 pounds, bled to death in “a matter of minutes.” The wounds covered Espinoza’s chest, back, and neck, in addition to defensive wounds on the hands and forearms.1 Espinoza’s brother discovered the body and called the police.

*46¶ 5 When the police arrived at Espinoza’s house, they found a bloody towel used to wipe something, diluted blood in the sink, and a bloody footprint and handprint later identified as Barraza’s. The police also found a piece of paper in Espinoza’s truck with Barraza’s name, address, and phone number.

¶ 6 The police subsequently contacted Barraza. Barraza denied ever having been at Espinoza’s house and claimed that she was with friends on May 4, 2001. The police attempted to verify her story, but it proved to be false. During a third interview with police, which took place May 11, 2001, Barraza admitted to being with Espinoza on May 4, 2001. Barraza claimed that, although she is homosexual, she “plays men for money.” Barraza admitted, “I take their money and stuff-Mostly they take me shopping, and they pay for everything that I buy, and so I just use them for rides.” She had asked Espinoza for money as well. Barraza explained that on May 4, 2001, when she was at Espinoza’s house and he claimed to be getting in the shower, Barraza went in the master bedroom. Espinoza, who was naked, then came at her, pushed her on the bed, and sexually assaulted her. She attempted to fight him off and was able to reach her purse, which held a knife that she carried for protection. She claimed that she did not know how many times she stabbed him. Barraza then remembered going to the bathroom and washing her hands. She took Espinoza’s keys and left the house. She attempted to take his truck, but it would not start. She began walking home, then later got a ride from a stranger.

¶ 7 The police also interviewed S. Gonzales, a friend of Barraza. Gonzales testified that approximately one week before Espinoza’s murder she was watching television with Barraza when Barraza, commenting on what they saw on television, said she wanted to “kiss a guy and slit his throat.” Barraza pulled out a knife and showed it to Gonzales. Gonzales testified that she thought Barraza was joking, but that Barraza said, “[w]atch, I’ll do it. I’m going to do it, watch.” Gonzales said that Barraza wanted to “tell them she could suck on their neck and then slice their throats and take their money.” Gonzales took the knife from Barraza because, even though she “took it as a joke,” she wanted to “make[] sure.” Both Gonzales and Barraza forgot about the knife.

¶ 8 Barraza was charged with one count of first degree murder. A jury found Barraza guilty of the lesser-included offense of second degree murder. At Barraza’s sentencing hearing, held June 21, 2002, the trial court found as mitigating factors Barraza’s age and lack of prior criminal involvement. The court also found aggravating factors, including that it was an “egregious, brutal, calculated thrill killing that has caused substantial emotional harm.” The court believed that it was necessary “to protect society from what the Court believes to be a dangerous and disturbed young woman,” and accordingly sentenced her to the maximum aggravated term of twenty-two years imprisonment.

¶ 9 On July 2, 2002, Barraza timely appealed her conviction to the Court of Appeals. This court affirmed Barraza’s conviction. State v. Barraza, 209 Ariz. 441, 104 P.3d 172 (App.2005). However, we simultaneously filed a memorandum decision in which we vacated Barraza’s sentence as it did not comply with the sentencing requirements established in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). State v. Barraza, 1 CA-CR 02-0591 (Ariz. App. Jan. 11, 2005) (mem.decision). Accordingly, we remanded for resentencing.

¶ 10 On July 7, 2005, the State filed an allegation of aggravating circumstances, including:

The offense(s) involved the use, threatened use or possession of a deadly weapon or dangerous instrument during *47the commission of the crime, specifically a knife.
The defendant committed the offense(s) in an especially heinous, cruel, or depraved manner.
The offense(s) caused physical, emotional or financial harm to the victim or, if the victim died as a result of the conduct of the defendant, caused emotional or financial harm to the victim’s immediate family.

A jury trial was held on February 7, 2006 regarding Barraza’s resentencing and the alleged aggravating factors. The jury was presented with a large portion of the testimony presented at Barraza’s original trial. Although Gonzales did not testify at the re-sentencing, Barraza admitted at the resentencing that, while watching television with friends before the murder, she showed them a knife and stated that she wanted to stab someone. At the close of the evidence, the jury found that all three aggravating factors had been proven beyond a reasonable doubt. The court subsequently sentenced her to the aggravated term of twenty-two years of imprisonment. Barraza timely filed a notice of appeal from the sentence. This court has jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) (2003) and 13-4033(A) (2001).

II.

¶ 11 We address in this opinion two issues2 Barraza raises on appeal: 1) whether there was sufficient evidence to show that the murder was especially heinous, cruel, or depraved; 3 and 2) whether the jury instruction regarding heinousness, cruelty, or depravity was error. We address each argument below.

III.

A.

¶ 12 Barraza argues that there was insufficient evidence to find that the murder was especially heinous, cruel, or depraved because the evidence did not show that Barraza relished the murder, needlessly mutilated Espinoza, or inflicted gratuitous violence on Espinoza. Barraza relies on the factors enumerated in State v. Murdaugh, 209 Ariz. 19, 31, ¶ 59, 97 P.3d 844, 856 (2004), which describe when heinousness, cruelty, or depravity exists in capital cases. Section 13-703(F)(6) lists a finding that “[t]he defendant committed the offense in an especially heinous, cruel or depraved manner” as an aggravating circumstance which may be used to raise a first degree murder sentence to the death penalty. Similarly, A.R.S. § 13-702(C)(5) provides for the “[e]specially heinous, cruel or depraved manner in which the offense was committed” to be considered as an aggravating circumstance in non-capital offenses. Although the statutes are worded almost identically, their application has been disparate.

¶ 13 In Murdaugh, the Arizona Supreme Court enumerated five factors that must be considered when determining whether a capital offense was committed with heinousness or depravity pursuant to A.R.S. § 13-703(F)(6):

1) whether the defendant relished the murder; 2) whether the defendant inflicted gratuitous violence on the victim; 3) whether the defendant needlessly mutilated the victim; 4) the senselessness of the crime; and 5) the helplessness of the victim.

209 Ariz. at 31, ¶ 59, 97 P.3d at 856 (derived from State v. Sansing, 206 Ariz. 232, 237, ¶ 17, 77 P.3d 30, 35 (2003) and State v. Gretzler, 135 Ariz. 42, 52, 659 P.2d 1, 11 (1983)). Barraza asserts error based on an insufficiency of evidence regarding the first three Murdaugh factors. However, a finding of heinousness, cruelty, or depravity under A.R.S. § 13-702(C)(5) for non-capital offenses does not require compliance with Murdaugh, which was a capital case dealing *48with 703(F)(6) rather than a non-capital ease dealing with 702(C)(5). Our cases show that a jury’s finding of heinousness, cruelty, or depravity as a non-capital aggravating circumstance may be established without compliance with Murdaugh. See, e.g., State v. Bean, 174 Ariz. 544, 548, 851 P.2d 843, 847 (App.1992) (affirming an aggravated sentence for custodial interference on the grounds that the crime was cruel and depraved, without consideration of the defendant’s relishment, gratuitous violence, or mutilation in the offense); State v. Meador, 132 Ariz. 343, 347, 645 P.2d 1257, 1261 (App.1982), superseded on other grounds by A.R.S. § 13-702(D) as stated in State v. Molina, 211 Ariz. 130, 137, ¶ 24, 118 P.3d 1094, 1101 (App.2005) (affirming a finding of heinous, cruel, or depraved manner of a second degree murder without considering any of the Murdaugh factors).4

¶ 14 We note that A.R.S. § 13-702(C)(5) is statutorily available as an aggravating circumstance for all felonies. See A.R.S. § 13-702(A). The language in A.R.S. § 13-703(F)(6), which the Arizona Supreme Court interpreted in Murdaugh, applies only to “aggravating circumstances in determining whether to impose a sentence of death.” A.R.S. § 13-703(F) (emphasis added). The Murdaugh factors were created to assist in determining whether to impose the death penalty. This is so because the death penalty is only to be imposed when “the crime [which] was committed raises it above the norm of first degree murders, or the background of the defendant places the defendant above the norm of first degree murderers.” State v. Fulminante, 161 Ariz. 237, 258, 778 P.2d 602, 623 (1988).

¶ 15 To require that the Murdaugh factors be met in every non-capital case in which the sentence is sought to be aggravated pursuant to A.R.S. § 13-702(0(5) would effectively eliminate that statutory aggravator from consideration in many (if not all) non-capital felonies.5 For example, in Bean the defendant was given an aggravated sentence based on heinousness, cruelty, or depravity for his conviction of custodial interference when he refused to return his son to the child’s mother. 174 Ariz. at 545, 851 P.2d at 844. The court found heinousness, cruelty, or depravity based on the defendant’s statement to the child’s mother that she would never see the child again. Id. at 548, 851 P.2d at 847. Although Murdaugh does not hold that all five factors must be established, 209 Ariz. at 31, ¶ 59, 97 P.3d at 856, it holds that two of them, “[senselessness and helplessness, do not by themselves establish that the crime was heinous or depraved unless the State establishes additional circumstances that separate the crime from the ‘norm’ of first degree murders.” Id. at 33, ¶ 67, 97 P.3d at 858. The aggravating circumstance in Bean clearly could not pass this test. Likewise, the availability of the 702(C)(5) aggravator would be inappropriately eliminated in many other circumstances if Murdaugh was applied.

¶ 16 Accordingly, we hold that compliance with Murdaugh is not required to establish the “especially heinous, cruel or depraved” aggravator under § 13-702(0(5). We do not hold that the Murdaugh factors may not be used to provide guidance in certain cases, particularly with regard to non-capital homicides. For instance, in State v. Stanhope, 139 Ariz. 88, 94-95, 676 P.2d 1146, *491152-53 (App.1984), the court relied on the Arizona Supreme Court’s definition of “cruel” and “depraved” from capital cases (Gretzler, 135 Ariz. at 51, 659 P.2d at 10 (1983) and State v. Knapp, 114 Ariz. 531, 543, 562 P.2d 704, 716 (1977)) to find that the non-capital statutory aggravator was met in an aggravated assault case in which the defendant put victims on top of each other and stabbed them. Likewise, in State v. Inglish, 129 Ariz. 444, 445-46, 631 P.2d 1102, 1103-04 (App.1981), the court relied on capital cases to uphold the non-capital statutory aggravator when the defendant was convicted of second degree murder after placing the victim’s body in a mine shaft and burning it. As the circumstances in each case were viewed as qualifying under the capital standard the court did not determine (nor was the issue presented) whether compliance with the capital case law was required in a non-capital setting as contrasted with being implemented for guidance as the circumstances warranted. That is the issue we face here.

¶ 17 As stated above, if the capital standard is met, then the non-capital standard would also be met, but compliance with the capital standard is not required in a non-capital case, nor is it clear how it reasonably could be required in a non-capital setting as the aggravator in the capital setting is only to apply to murders which are “above the norm of first degree murders.” Fulminante, 161 Ariz. at 258, 778 P.2d at 623. This is a standard that a conviction for second degree murder, aggravated assault, or other non-first degree murder offenses could not meet as a matter of law.

¶ 18 Further, by holding that compliance with the Murdaugh factors is not required, but that they may be used for guidance as applicable, we do not suggest that the terms “heinous,” “cruel,” or “depraved” have now become amorphous and are left undefined. As the Arizona Supreme Court stated in a capital case, “[t]he words ‘heinous, cruel or depraved’ have meanings that are clear to a person of average intelligence and understanding.” Knapp, 114 Ariz. at 543, 562 P.2d at 716. The supreme court went on to provide the Webster’s Third New International Dictionary definitions of those terms:

heinous: hatefully or shockingly evil: grossly bad.
cruel: disposed to inflict pain especially] in a wanton, insensate or vindictive manner: sadistic.
depraved: marked by debasement, corruption, perversion or deterioration.

Id. We have no quarrel with, and affirm, those definitions as applied to the non-capital aggravator for the terms “heinous, cruel or depraved” stated in § 13-702(0(5). See Inglish, 129 Ariz. at 446, 631 P.2d at 1104 (utilizing the definitions from Knapp in a non-capital setting under § 13-702(0(5)). What we reject is a requirement that every non-capital case applying the § 13-702(0(5) aggravator must necessarily comply with Murdaugh (and other capital cases elaborating on those definitions) in determining whether the evidence satisfies those definitions of heinous, cruel or depraved.

¶ 19 As stated earlier, the tests or standards applied to determine whether the definitions of “heinous, cruel or depraved” are satisfied in a capital context were devised with that specific offense in mind and in many instances simply have no application to any number of non-capital offenses. As another example, Murdaugh requires that a factfinder “must consider,” but not necessarily find, that the defendant “needlessly mutilated” the victim. 209 Ariz. at 31, ¶ 59, 97 P.3d at 856. In a non-capital ease, physical injury may not even be an element of the offense to which application of the “cruel, heinous or depraved” aggravator is sought. Application of the non-capital aggravator under § 13-702(0(5) may be sought for all non-capital felonies, be they for trafficking in stolen property (A.R.S. § 13-2307 (2001)), fraud (A.R.S. § 13-2310 (2001)), forgery (A.R.S. § 13-2002 (2001)), or any of the host of other non-physically invasive criminal offenses defined by our legislature.6 See gen-*50emlly A.R.S. Title 13. Certainly, it makes no sense that a jury “must consider” needless mutilation in such a setting. See Murdaugh, 209 Ariz. at 31, ¶ 59, 97 P.3d at 856.

¶20 In sum, to require compliance with Murdaugh in a non-capital setting takes Murdaugh out of the specific statutory context in which it was decided and would vitiate the Legislature’s provision of an “especially heinous, cruel or depraved” aggravator in a non-capital setting. For those reasons, and those others set forth above, we reject Bar-raza’s assignment of error on this ground.

B.

¶ 21 We turn now to the specific evidence supporting the aggravator here. In reviewing a claim of insufficiency of evidence, we will affirm “as long as there is reasonable evidence in the record to substantiate the aggravating circumstances found by the trial court.” Meador, 132 Ariz. at 348, 645 P.2d at 1262. In Meador, we affirmed a finding of exceptional heinousness, cruelty, and depravity when the defendant was convicted of second degree murder. 132 Ariz. at 344-45, 645 P.2d at 1258-59. In that case, the victim was giving the defendant a ride when they pulled the car over and walked to a desert area to urinate. Id. The defendant then struck the victim in the head with a large rock, leaving him unconscious, and took the victim’s car. Id. at 345, 645 P.2d at 1259. The victim’s body was later found in^a creek bed, where he had died of a skull fracture. Id. We stated:

It is clear from the record that the trial court based the finding of aggravation here on a number of factors, including, but not limited to, the fact that the defendant did not seek assistance for the helpless victim. There is reasonable evidence in the record establishing that the defendant struck the victim, dragged him to a creek bed, removed his shoes and wallet, and drove away in the victim’s car.

Id. at 347, 645 P.2d at 1261. Accordingly, the finding of heinousness, cruelty, and depravity was deemed proper.

¶ 22 The number of stab wounds inflicted on Espinoza, totaling sixty, demonstrates the particularly cruel nature of the murder. The autopsy showed that Espinoza died in a matter of minutes from blood loss. The murder was especially heinous and depraved considering Barraza’s statement to friends before the murder that she wanted to kill someone. Barraza’s acts following the murder of washing off, wiping the knife, and stealing Espinoza’s keys demonstrate the depraved nature of the crime. As in Meador, Barraza’s failure to procure help for Espinoza is also relevant to the aggravating circumstance. We therefore hold that there was reasonable evidence supporting the finding that the crime was especially heinous, cruel, and depraved under A.R.S. § 13-702(C)(5).

IV.

¶ 23 Barraza next argues that the jury instruction regarding whether the crime was especially heinous, cruel, or depraved was improper. Specifically, Barraza claims that the court’s instruction to the jury that it could consider whether the murder was senseless or the victim helpless was error because senselessness and helplessness are not, standing alone, sufficient to find heinousness, cruelty, or depravity.

¶ 24 The court instructed the jury that, to find heinousness and depravity, it must find the “[ijnfliction of gratuitous violence on the victim beyond that necessary to MU” or “[mjutilation of the victim’s body.” The court went on to say:

To assist you in determining whether a crime is heinous or depraved, you may consider whether: 1. The murder was senseless; or 2. Helplessness of the vic-tim____Neither senseless nor helplessness standing alone are sufficient to prove that this murder was heinous or depraved.

*51The court crafted these instructions itself, based on Murdaugh, noting they were “very similar” to those proposed by defense counsel. The State’s proposed jury instruction on this issue was also based on cases in which the crime at issue was first degree murder and the relevant standards for heinousness, cruelty, or depravity pertained to the capital aggravating factor under A.R.S. § 13-703(F)(6) or its predecessor statute.7 Thus, the jury instruction prepared by the court substantially mirrored the factors enumerated in Murdaugh. 209 Ariz. at 31, ¶ 59, 97 P.3d at 856.

¶25 Barraza alleges the instruction is in error as it permits a finding that the crime was “heinous or depraved” if both senseless and helplessness are found, but no other factor as set forth in Murdaugh. We acknowledge that Murdaugh states, “senselessness and helplessness do not by themselves establish that the crime was heinous or depraved unless the state establishes additional circumstances that separate the crime from the ‘norm’ of first degree murders.” 209 Ariz. at 33, ¶ 67, 97 P.3d at 858 (emphasis added). Whether or not this would be error in a capital case proceeding under A.R.S. § 13-703(F)(6), we need not decide.

¶26 We reiterate, as stated above, that compliance with Murdaugh is not required for heinousness, cruelty, or depravity to be found as an aggravating circumstance in non-capital cases under A.R.S. § 13-702(C)(5). See supra ¶¶ 11-17. A finding that the victim was helpless or the crime was senseless or both, may be sufficient, standing alone, to support a finding of “especially heinous, cruel, or depraved” under A.R.S. § 13-702(C)(5). This will depend on all the facts and circumstances of the case.

¶27 As we previously set forth, Mur-daugh’s requirements may provide guidance in considering whether a non-capital offense is especially heinous, cruel or depraved, but they should not be used to determine the issue. See supra ¶¶ 11-17. Additionally, Murdaugh itself explains that senselessness and helplessness may be sufficient to find heinousness or depravity if there are “additional circumstances that separate the crime from the ‘norm’ of first degree murders.” 209 Ariz. at 33, ¶ 67, 97 P.3d at 858 (emphasis added). Barraza was convicted of second degree murder. It makes no sense to inform a jury in a sentencing proceeding for second degree murder that it could only base a finding of heinousness, cruelty, or depravity on senselessness or helplessness if it found additional circumstances raising Barraza’s crime above the norm of first degree murders.

¶28 The trial court’s jury instructions were erroneous to the extent they required the jury to meet the standard set forth in Murdaugh. However, this was an error that benefited Barraza. We therefore reject Bar-raza’s claim in this regard.

y.

¶ 29 For the foregoing reasons, and those set forth in the simultaneously filed memorandum decision, we affirm Barraza’s sentence.

CONCURRING: JON W. THOMPSON, Judge.

. Dr. Phillip Keen, who conducted Espinoza's autopsy, testified as to Espinoza’s wounds in full:

*46Three of the wounds in the back were able to penetrate to the level of the left lung, one to the level of the right lung, but the fatal complex of injuries was to the neck, in which he had a wound which severed the right carotid artery, the right external jugular vein, the right lobe of the thyroid, and the right submandibular salivary gland, basically a wound that’s slashing in from the skin surface to almost the level of the spine, and catching both venous and arterial blood supply on the right side of the neck.

. A third issue does not meet the standard for publication under Rule 111 of the Rules of the Arizona Supreme Court. It is addressed in a simultaneously filed memorandum decision.

. We subsume in this argument the issue whether Barraza’s Rule 20 motion, based on insufficient evidence, was properly denied. Because, as explained herein, there was sufficient evidence, we do not take up the issue of whether Rule 20 of the Arizona Rules of Criminal Procedure applies to non-capital sentencings that are now conducted pursuant to Blakely.

. The concurrence argues that the issue of compliance with Murdaugh "is not an issue presented in this case.” We disagree. The State specifically argued that the reliance on "capital cases is misplaced. Here, as in other non-capital cases the 'especially heinous cruel or depraved' aggravating factor in A.R.S. § 13-702(C)(5) is justified and applied on much broader grounds that in its capital counterpart.” Appellant’s Opening Brief at 9; see also Appellant’s Opening Brief at 13 (citing to Bean and Meador and arguing that "[b]ecause this is a non-capital case the jurors would have been justified in finding heinousness or depravity even in the absence of the five factors outlined in [Murdaugh ]”).

. Our separately concurring colleague agrees that 702(C)(5) by its terms, may he sought for all non-capital felonies. Infra ¶ 48. She asserts that not all non-capital felonies will support its application. We agree that on the facts the 702(C)(5) aggravator may or may not apply with regard to a particular felony. Our concern, however, is that the judicial test from Murdaugh, which was established for capital offenses, should not act as a legal barrier to a statute (702(C)(5)) enacted to apply to non-capital offenses.

. The concurrence argues that the Murdaugh factors need to be adopted as "reasonable people can rightly conclude that all rapes are shockingly evil." Infra ¶ 42. Thus, the concurrence suggests that 702(C)(5) has no "moorings” if compliance with Murdaugh is not required. We are not *50suggesting, and do not hold, that other judicial tests similar to the Murdaugh factors may not be applied as to non-capital felonies. Our holding is that compliance with Murdaugh is not required under 702(C)(5). That is the specific issue with which we are presented. As we point out, portions of Murdaugh may be appropriate for guidance in a non-capital setting. We are neither accepting nor rejecting, because it is not before us, an "above the norm” standard for say, sexual assaults, in determining whether the 702(C)(5) aggravator would apply.

. The cases that the State cites in support of its proposed jury instruction regarding the especially heinous, cruel, or depraved factor are: State v. Medina, 193 Ariz. 504, 975 P.2d 94 (1999); State v. Murray, 184 Ariz. 9, 906 P.2d 542 (1995); Knapp, 114 Ariz. 531, 562 P.2d 704; State v. Doerr, 193 Ariz. 56, 969 P.2d 1168 (1998); State v. Amaya-Ruiz, 166 Ariz. 152, 800 P.2d 1260 (1990); State v. Richmond, 180 Ariz. 573, 886 P.2d 1329 (1994); State v. Stanley, 167 Ariz. 519, 809 P.2d 944 (1991); State v. Milke, 177 Ariz. 118, 865 P.2d 779 (1993). They are all capital cases.