State v. Wallace

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-09-0341-AP
Appellee, )
) Pima County
v. ) Superior Court
) No. CR012590
JAMES GRANVIL WALLACE, )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Pima County
The Honorable Virginia C. Kelly, Judge

SENTENCES REDUCED
________________________________________________________________

THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation
Lacey Alexandra Stover Gard, Tucson
Assistant Attorney General
Attorneys for the State of Arizona

ARIZONA CAPITAL REPRESENTATION PROJECT Tucson
By Amy Sara Armstrong
Emily Skinner

And

LAW OFFICE OF CARLA G. RYAN Tucson
By Carla G. Ryan
Attorneys for James Granvil Wallace
________________________________________________________________

P E L A N D E R, Justice

¶1 This case is before us now for a fourth time on James

Granvil Wallace’s automatic appeal from two death sentences.
See State v. Wallace (Wallace III), 219 Ariz. 1, 191 P.3d 164

(2008); State v. Wallace (Wallace II), 160 Ariz. 424, 773 P.2d

983 (1989); State v. Wallace (Wallace I), 151 Ariz. 362, 728

P.2d 232 (1986). For the reasons below, on independent review

we find that the State has not established beyond a reasonable

doubt that Wallace inflicted gratuitous violence on the two

victims. The murders thus were not heinous or depraved under

A.R.S. § 13-751(F)(6),1 the sole aggravating factor alleged in

this case. Accordingly, we vacate Wallace’s death sentences and

sentence him to consecutive life terms of imprisonment.

I.

¶2 In early 1984, Wallace was living with his girlfriend,

Susan Insalaco, and her two children, sixteen-year-old Anna and

twelve-year-old Gabriel. When Wallace came home drunk on

January 31, 1984, Susan told him to move out. The next day,

Susan went to work, and Anna and Gabriel left for school while

Wallace stayed home.

¶3 When Anna returned from school, Wallace was hiding

behind the front door with a small wooden baseball bat. He

struck Anna in the head with the bat from behind. She fell to

the ground but continued breathing and moaning. Wallace struck

her in the head at least ten times, eventually breaking the bat,

1
We refer to the current version of statutes that have not
substantively changed since Wallace’s crimes were committed.

2
but Anna was still alive. Wallace dragged her into the bathroom

and drove the broken bat into her throat.

¶4 After killing Anna, Wallace found an 18-inch pipe

wrench and decided to use it to kill Gabriel because he “didn’t

want him to suffer like [Anna].” Gabriel arrived home shortly

thereafter and walked into his bedroom. Wallace followed and

hit Gabriel in the head with the pipe wrench. Gabriel fell to

the floor, and Wallace hit him in the head approximately ten

more times until he had “crushed his skull.”

¶5 When Susan arrived home from work a couple hours

later, Wallace hit her in the head with the pipe wrench. She

fell, and Wallace hit her several more times, ultimately killing

her. Wallace reported the crimes to the police the next day.

After waiving his Miranda rights, he confessed in detail to the

murders but could not explain why he committed them.

¶6 Wallace pleaded guilty and was sentenced to death by

the trial judge for all three murders. After this Court twice

affirmed the convictions and death sentences on appeal, see

Wallace I; Wallace II, the federal district court granted habeas

corpus relief and ordered a new sentencing trial. That retrial

before a jury in 2005 again resulted in the imposition of three

death sentences.2

2
After the United States Supreme Court decided Ring v.
Arizona, 536 U.S. 584 (2002), the Arizona Legislature enacted

3
¶7 In 2008, we reduced the death sentence for Susan’s

murder to life in prison because the evidence was insufficient

to prove an aggravating circumstance as to that murder. Wallace

III, 219 Ariz. at 7-8 ¶¶ 36-39, 191 P.3d at 170-71. Finding

error in the jury instructions, we also remanded the case for a

new sentencing trial with respect to the murders of the

children. Id. at 4-6 ¶¶ 18-25, 8 ¶ 39, 191 P.3d at 167-69, 171.

In 2009, a jury found that Wallace murdered both children in an

especially heinous or depraved manner through the use of

gratuitous violence. The jury found that death was the

appropriate sentence for each of those two murders.

II.

¶8 Because the murders occurred before August 1, 2002,

this Court independently reviews the aggravation and mitigation

findings, as well as the propriety of the death sentences. See

A.R.S. § 13-755(A). In independent review, “we do not defer to

the findings or decision of the jury, with respect to

aggravation or mitigation, when determining the propriety of the

death sentence.” State v. Newell, 212 Ariz. 389, 405 ¶ 82, 132

P.3d 833, 849 (2006) (alterations and internal quotation marks

omitted). The state must prove aggravating circumstances beyond

statutes providing for a jury trial on allegations of
aggravating circumstances and the appropriate sentence in
capital cases. 2002 Ariz. Sess. Laws, ch. 1, §§ 1, 3 (5th Spec.
Sess.). See A.R.S. §§ 13-751, 13-752.

4
a reasonable doubt. State v. Kayer, 194 Ariz. 423, 433 ¶ 28,

984 P.2d 31, 41 (1999).

¶9 The sole aggravating circumstance here, heinousness or

depravity of the murders, requires proof beyond a reasonable

doubt that Wallace inflicted gratuitous violence in murdering

Anna or Gabriel.3 Wallace argues that the State failed to prove

that aggravating factor beyond a reasonable doubt. “The term

‘heinous or depraved,’” as used in § 13-751(F)(6), describes

“the defendant’s state of mind.” State v. Murdaugh, 209 Ariz.

19, 31 ¶ 59, 97 P.3d 844, 856 (2004). The state can prove

heinousness or depravity by showing that a defendant inflicted

gratuitous violence on his victim. State v. Womble, 225 Ariz.

91, 99 n.7 ¶ 27, 235 P.3d 244, 252 n.7 (2010).4

3
Gratuitous violence was the State’s only theory for the
(F)(6) aggravating circumstance of heinousness or depravity. If
the crimes were committed today, the multiple homicides
aggravator could also be alleged for each murder. See A.R.S.
§ 13-751(F)(8). And the murder of Gabriel could be aggravated
because he was twelve years old when killed. See A.R.S. § 13-
751(F)(9). But because the legislature enacted those provisions
after Wallace committed the murders, 1985 Ariz. Sess. Laws, ch.
364, § 8 (1st Reg. Sess.); 1984 Ariz. Sess. Laws, ch. 66, § 1
(2nd Reg. Sess.), they cannot serve to make Wallace death-
eligible, State v. Correll, 148 Ariz. 468, 482, 715 P.2d 721,
735 (1986); see also Wallace III, 219 Ariz. at 6 n.4 ¶ 25, 191
P.3d at 169 n.4.
4
Five factors support a finding of heinousness or depravity:
(1) relishing; (2) infliction of gratuitous violence;
(3) needless mutilation of the victim; (4) senselessness of the
crime; and (5) helplessness of the victim. State v. Gretzler,
135 Ariz. 42, 52–53, 659 P.2d 1, 11–12 (1983). However,
findings of senselessness and helplessness alone generally do

5
¶10 In State v. Bocharski, this Court clarified the

standard for gratuitous violence, recognizing that our “prior

cases ha[d] not been entirely consistent in describing the

showing needed to establish” that factor. 218 Ariz. 476, 494

¶ 85, 189 P.3d 403, 421 (2008); see also Wallace III, 219 Ariz.

at 6 ¶ 28, 191 P.3d at 169 (noting that Bocharski “clarif[ied]

the principles governing” gratuitous violence). Bocharski

established a two-pronged test. First, the state must show that

the defendant used “violence beyond that necessary to kill.”

218 Ariz. at 494 ¶ 85, 189 P.3d at 421. Second, “[t]he State

must also show that the defendant continued to inflict violence

after he knew or should have known that a fatal action had

occurred.”5 Id. at ¶ 87.

¶11 In Bocharski, this Court found on independent review

that the State failed to prove gratuitous violence beyond a

reasonable doubt even though the defendant had stabbed the

victim twenty-four times in the head, including eight wounds

that penetrated deep into the victim’s face and head. 218 Ariz.

not establish heinousness or depravity. Womble, 225 Ariz. at 99
n.7 ¶ 27, 235 P.3d at 252 n.7. Thus, the (F)(6) aggravator can
be upheld in this case only if gratuitous violence is
established.
5
We reject Wallace’s suggestion that the law requires a
distinct element of “actual knowledge and intent” in addition to
Bocharski’s second requirement of actual or constructive
knowledge. See Bocharski, 218 Ariz. at 494 ¶ 87, 189 P.3d at
421.

6
at 494 ¶¶ 85-86, 189 P.3d at 421. Although we could infer that

the defendant used more violence than necessary to kill, we

could not conclude that the State established the knowledge

requirement. Id. at 495 ¶ 91, 189 P.3d at 422. A medical

examiner testified that the immediately fatal wound “probably”

occurred early in the sequence of wounds, but was uncertain

precisely when. Id. at 494 ¶ 88, 189 P.3d at 421. The doctor

also testified that the knife injuries occurred in “quick

succession and that all the injuries were likely inflicted

within a minute.” Id. at 495 ¶ 89, 189 P.3d at 422. This Court

concluded that “[b]ecause Bocharski only used a knife to inflict

the wounds and completed his attack very rapidly, we find it

unlikely he knew or should have known he had inflicted a fatal

wound but continued nonetheless to inflict more violence.” Id.

at ¶ 90.

¶12 Even before Bocharski, this Court had made clear that

multiple, rapid attacks on a victim, although reprehensible, do

not necessarily establish gratuitous violence when the attacks

were made in attempting to kill the victim. In State v. Cañez,

for example, the defendant “attempted to strangle [the victim],

stabbed him six times, and delivered 21 blunt force injuries,

ten of them to the head.” 202 Ariz. 133, 161 ¶ 106, 42 P.3d

564, 592 (2002). The defendant attacked the victim “with his

fist, a frying pan, a laundry bag, and a knife.” Id. Because

7
the State asserted that the stabbing occurred last, however, the

evidence demonstrated that the defendant “merely escalated his

attacks until he succeeded in killing” the victim. Id. at 161-

62, 42 P.3d at 592-93. Thus, this Court could not find beyond a

reasonable doubt that the violence exceeded that necessary to

kill. Id.

¶13 Similarly, in State v. Anderson, even though it was a

“close[] question,” we could not find gratuitous violence. 210

Ariz. 327, 355 ¶ 123, 111 P.3d 369, 397 (2005). This Court

reasoned:

[Two victims] were subjected to prolonged and
varied attacks before they succumbed. [One] had
his throat slashed, a knife pounded into his ear,
and his head beaten with a rock. [The other] was
shot through the jaw, hit over the head with a
rifle butt and a lantern, and then killed by blows
to the head from a cinder block. While these
multiple attacks were reprehensible, they do not
meet the (F)(6) test of gratuitous violence. Each
attack came in an attempt – albeit clumsy – to
kill the victim, not engage in violence beyond
that necessary to kill.

Id.

III.

¶14 Although this Court has previously considered whether

Wallace inflicted gratuitous violence on his victims, the law,

most notably in Bocharski, has evolved in this area. In Wallace

III, we disavowed the reasoning used in Wallace I and Wallace II

and held that the trial court erred in instructing the jury to

8
consider “whether the defendant had available less violent

alternatives to cause death” in evaluating gratuitous violence.

219 Ariz. at 4 ¶¶ 15, 18, 191 P.3d at 167. Without any showing

that Wallace actually intended to inflict greater violence than

that necessary to kill, the State had not proven the “killer’s

vile state of mind” as required to establish heinousness or

depravity under § 13-751(F)(6). Id. at 4-5 ¶ 19, 191 P.3d at

167-68 (internal quotation omitted).

¶15 This Court also concluded in Wallace III that the

issue of gratuitous violence should not have been submitted to

the jury with respect to Susan’s murder. Id. at 7 ¶ 36, 191

P.3d at 170. We noted that the attack on her involved four or

five blows to the head “over a relatively brief period,” and

“the blows were apparently struck in rapid succession with the

same implement that caused death.” Id. Although the medical

examiner had stated that each blow to Susan’s head “might have”

been fatal, he “was unable to opine as to which blow was fatal,

let alone whether sufficient injury to kill had already been

inflicted before the final blow.” Id. at 7-8 ¶ 37, 191 P.3d at

170-71. In addition, the evidence did not support a reasonable

conclusion that Wallace possessed the requisite mental state:

“Although the assault on Susan was brutal and reprehensible, it

‘came in an attempt . . . to kill the victim, not to engage in

violence beyond that necessary to kill.’” Id. (quoting

9
Anderson, 210 Ariz. at 355 ¶ 123, 111 P.3d at 397).

¶16 This Court in Wallace III found sufficient evidence to

submit the issue of gratuitous violence to the jury on remand

with respect to the murders of Anna and Gabriel. Id. at 7

¶¶ 32-35, 191 P.3d at 170. But because we remanded the case, we

did not engage in independent review of the gratuitous-violence

findings relating to those two victims. Id. at ¶ 35. That

issue is squarely presented now and we turn to it, considering

the evidence adduced on remand in the 2009 trial.

IV.

¶17 In the aggravation phase of the 2009 trial, the

medical examiner, Dr. Parks, testified about Anna and Gabriel’s

injuries. Crime scene and autopsy photos depicting their wounds

were admitted into evidence. Transcripts of the recorded

statements Wallace made to police the day after the murders were

also introduced. In our independent review, we must determine

whether the State proved beyond a reasonable doubt that Wallace

inflicted gratuitous violence on the children, analyzing the

evidence separately as to each of those victims.

A. Anna’s murder

1. More injury than necessary to kill

¶18 Dr. Parks testified that Anna suffered at least ten

blows to the head, causing two skull fractures. But he was not

able to determine the order of the blows, nor could he determine

10
which blow caused her death. Describing the neck wound, Dr.

Parks stated that the bat went through the skin of Anna’s lower

neck, into her left chest cavity, breaking a rib in her lower

chest cavity, and pushed through the body to her back, leaving

“a bulge in her back where the end of the bat came to rest.”

¶19 Dr. Parks testified that the late Dr. Jones, who had

conducted the autopsy of Anna, listed cerebral injuries as a

cause of death, indicating that Dr. Jones did not consider the

wound through the neck to be a cause of death. Dr. Parks stated

that when the bat entered Anna’s chest and neck area, it did not

hit any major arteries or other blood vessels; thus, the neck

wound alone would not have been fatal. But Dr. Parks could not

determine whether Anna was alive when Wallace inserted the bat

into her neck. When asked whether he thought the bat wound to

Anna “finished the act of killing her,” he stated “I don’t

exactly know.” When asked whether it “hastened the act of

killing her,” he stated “it’s possible it could have

contributed.”

¶20 Dr. Parks acknowledged that at the 2005 trial, he had

testified that he could not conclude with certainty whether Anna

sustained more injuries than were necessary to have caused her

death. Based on the small amount of blood found in Anna’s chest

cavity, however, Dr. Parks opined, “[i]f [Anna] was alive when

the bat was placed [in her neck], she didn’t live much longer

11
after that or she was in the process of dying when the bat was

inserted.” He explained “[s]he would not have been able to live

too long and have such a small amount of blood accumulate.”

¶21 Whether the evidence establishes that more injury than

necessary to kill was inflicted on Anna is a close question.

Dr. Parks never clearly expressed an opinion to that effect.

But this Court can infer that Wallace did not have to stab Anna

through the neck with the bat in order to kill her after already

inflicting ten blows to her head. Although there is uncertainty

about whether Anna was still alive when the neck wound was

inflicted, the inquiry is not whether the victim was dead before

further injury was inflicted, but rather whether more injury was

inflicted than necessary to kill. See Bocharski, 218 Ariz. at

494 ¶ 86, 189 P.3d at 421. Dr. Parks indicated that the neck

wound would not have been fatal, permitting an inference that

the head injuries alone would have been. We find the evidence

proved beyond a reasonable doubt that Wallace inflicted more

injury on Anna than necessary to kill.

2. Knew or should have known requirement

¶22 The more difficult question is whether the State

proved beyond a reasonable doubt that Wallace continued to

inflict injury after he knew or should have known that he had

inflicted a fatal wound. Wallace stated that he hit Anna on the

head because “I thought she would die with one blow, that’d be

12
it, like in the movies, it ain’t that way, she looked me in the

eye, she knew who was killing her.” After Anna fell to the

ground, Wallace said, she continued to moan and breathe. He

stated, “she wouldn’t die. I broke a f***ing bat on her head

and she was still moaning. I don’t know what people are like

when they are dead. I wanted to put her out of her misery man,

and she wouldn’t f***ing die.”

¶23 Wallace also said that even after he jammed the bat

piece through Anna’s throat, “she still wouldn’t die.” Before

Gabriel’s arrival, Wallace went to the shed to get a piece of

steel to kill Gabriel because, he said, “I didn’t know how hard

it was to kill a human being, I didn’t want Gabe to go through

what I put Anna through, I wanted her to die quick and she

didn’t.”

¶24 The State argues that Wallace’s “self-serving”

statements about Anna’s moaning and breathing and his difficulty

killing her should be given little weight. But Wallace made the

statements the day after the murders when he turned himself in

to the police and freely admitted his crimes, providing many

incriminating details without attempting to escape blame or

minimize his actions. Indeed, Wallace’s statements were the

only direct evidence about how the murders occurred.

¶25 Wallace’s observations that Anna was “moaning” before

he stabbed her through the neck were supported by Dr. Parks’s

13
testimony. Dr. Parks was not able to determine whether Anna was

alive when Wallace drove the bat through her neck. In addition,

Dr. Parks agreed that Anna might have still been conscious

during the striking of the blows to her head, and that she might

have still been moving such that “the person inflicting the

blows would not realize that the person was, in fact, fatally

injured.” Referring to Wallace’s next-day statement that Anna

was breathing, moaning, making eye contact, and “just wouldn’t

die,” the defense asked, “[i]s that medically logical and

consistent with the injuries that you observed through your

photos and [the autopsy] report?” Dr. Parks responded “[y]es.”

¶26 On this record, we cannot find beyond a reasonable

doubt that Bocharski’s actual or constructive knowledge

requirement was met. Viewed as a whole, the evidence casts

reasonable doubt on whether Wallace knew or should have known a

fatal wound had been inflicted when he stabbed Anna in the neck.

¶27 Anna’s murder is more akin to the clumsy and

escalating attacks in Cañez and Anderson than to murders in

recent cases in which the Court has found gratuitous violence.

See State v. Bearup, 221 Ariz. 163, 173 ¶¶ 50-53, 211 P.3d 684,

694 (2009) (upholding especially heinous or depraved finding

when defendant cut off victim’s finger an hour after beating

victim with an aluminum baseball bat, reasoning that the removal

of the finger constituted either gratuitous violence or

14
mutilation);6 cf. State v. Gunches, 225 Ariz. 22, 26 ¶¶ 17-18,

20, 234 P.3d 590, 594 (2010) (finding insufficient evidence to

establish beyond a reasonable doubt that the defendant, who shot

victim four times, knew or should have known that he had already

fired a fatal shot and yet continued to inflict violence). If

Anna continued moaning and breathing before Wallace inflicted

the neck wound, as the evidence suggests, a logical inference

would be that Wallace’s jamming of the piece of bat into her

neck “came in an attempt . . . to kill the victim, not to engage

in violence beyond that necessary to kill.” Wallace III, 219

Ariz. at 8 ¶ 37, 191 P.3d at 171 (quotations omitted); see also

Gunches, 225 Ariz. at 26 ¶ 21, 234 P.3d at 594 (evidence that

victim was still breathing before final shots were fired

supported finding that defendant did not knowingly inflict

gratuitous violence by firing final shots).

¶28 In sum, the evidence does not establish beyond a

reasonable doubt that Wallace knew or should have known that he

already had inflicted fatal wounds upon Anna before committing

his final assault. We therefore cannot find heinousness or

depravity, the sole aggravating factor in this case.

B. Gabriel’s murder

6
Pre-Bocharski cases in which this Court found that the
defendant inflicted violence beyond that necessary to cause
death are generally unhelpful, not having engaged in the two-
step analysis that Bocharski now requires.

15
 1. More injury than necessary to kill

¶29 Dr. Parks testified that there were a total of eleven

lacerations on Gabriel’s head, and that no more than eleven

blows would have caused those lacerations. Dr. Parks was not

able to determine the order of the blows or which particular one

caused Gabriel’s death, but opined that two separate wounds to

Gabriel’s head would alone “most likely [have been] fatal.” One

of those blows to the forehead exposed Gabriel’s brain and

caused a portion of brain tissue to separate from the rest of

his brain and exit Gabriel’s skull. Another fatal skull

fracture near Gabriel’s right ear protruded inward, causing a

deep depression in Gabriel’s head.

¶30 On cross examination, Dr. Parks acknowledged that he

“could not say that the injuries [Gabriel] sustained were

more . . . than were necessary to have caused his death.” But

later, when asked whether he thought either the “gaping hole” to

Gabriel’s forehead or the “caved in portion” of his head could

by itself have caused Gabriel’s death, Dr. Parks responded

affirmatively. We therefore conclude that the State proved

beyond a reasonable doubt that Wallace inflicted more injury

than necessary to kill Gabriel.

2. Knew or should have known requirement

¶31 When asked by police whether he knew Gabriel was dead

during the attack, Wallace said, “I just knew I had to kill him,

16
I couldn’t stand there and watch him go.” When asked whether

Gabriel was moving, Wallace said, “He might, he, body reflexes,

he probably flinched or something, I smashed his skull in.” As

noted earlier, he also stated, “I never killed anybody before.

. . . I tried to kill his sister and she wouldn’t die. I broke

a f***ing bat on her head and she was still moaning. I don’t

know what people are like when they’re dead.”

¶32 Dr. Parks testified that, if the two most severe blows

to Gabriel’s head were delivered in rapid succession, there

would be “no time for the person to register the effect of Blow

A versus Blow B.” He further acknowledged that the potentially

fatal blows could have been the final two impacts to Gabriel’s

skull. Dr. Parks agreed that Gabriel might have still been

conscious as his head was struck and might have exhibited some

bodily movement “to make one think the person was still alive.”

In that regard, Dr. Parks acknowledged that Wallace’s statement

that Gabriel might have been “flinching” during the blows was

medically consistent with his observations. When asked about

the blood found in Gabriel’s lungs, Dr. Parks stated that this

indicated Gabriel’s “breathing following at least some of the

injuries.”

¶33 Whether Bocharski’s knowledge requirement has been

established with respect to Gabriel’s murder is difficult to

determine. In contrast to his recollection of Anna’s murder,

17
Wallace was less certain about whether Gabriel was flinching

during the attacks, which suggests that he was not motivated by

Gabriel’s movements to continue attacking him. Given the heavy

tool and force used to pummel Gabriel’s head, the number of

blows inflicted, and the nature and severity of the injuries

Gabriel suffered, it is certainly arguable that Wallace should

have known that striking the head of a 102-pound twelve-year-old

with an 18-inch pipe wrench nine or fewer times, rather than ten

or eleven times, would have been sufficient to kill. See

Wallace III, 219 Ariz. at 7 ¶ 34, 191 P.3d at 170 (“[T]he nature

of the attack [on Gabriel] and its results support an inference

that Wallace either knew or should have known he had struck

enough blows to kill yet continued his attack.”).

¶34 But Wallace stated that he used the pipe wrench on

Gabriel because he had such difficulty killing Anna and wanted

Gabriel to die more quickly than her. As in Bocharski, the

injuries occurred in quick succession, and all the blows were

delivered with the means used to inflict death, facts that tend

to cut against a finding of gratuitous violence. In addition,

as Dr. Parks acknowledged, the most obviously fatal and gruesome

wound that caused Gabriel’s skull to split open could have been

the final blow. Creating further doubt, Dr. Parks also

acknowledged that in 2005 he could not say for certain whether

more injury than necessary to kill was inflicted on Gabriel.

18
¶35 Although the issue is very close, on our independent

review of this record, we cannot find beyond a reasonable doubt

that Wallace “continued to inflict violence [on Gabriel] after

he knew or should have known that a fatal action had occurred.”

Bocharski, 218 Ariz. at 494 ¶ 87, 189 P.3d at 421. Because the

State did not meet its burden of proving beyond a reasonable

doubt Wallace’s intent to inflict gratuitous violence on

Gabriel, the (F)(6) aggravating circumstance was not

established.

V.

¶36 Even among capital cases, this case is atrocious.

Wallace’s premeditated, brutal murders of Anna and Gabriel

clearly were senseless, and the unsuspecting, defenseless

victims were helpless. Under Arizona’s current statutes,

Wallace most certainly would be eligible for the death sentence.

See supra n.3. But under the applicable law when Wallace

murdered the victims, his eligibility for capital punishment

requires a finding of gratuitous violence to establish

heinousness or depravity under § 13-751(F)(6).

¶37 The United States Supreme Court determined that

Arizona’s (F)(6) aggravating circumstance is facially vague but

“can be cured by a state appellate court applying a narrowed

construction of the aggravator and determining de novo whether

the evidence supported the finding of the aggravator.”

19
Anderson, 210 Ariz. at 352 ¶ 109, 111 P.3d at 394 (citing Walton

v. Arizona, 497 U.S. 639, 654 (1990), overruled on other grounds

by Ring v. Arizona, 536 U.S. 584, 608-09 (2002)). Bocharski’s

clarification and narrowing of the concept of gratuitous

violence for establishing heinousness or depravity under (F)(6)

were thus constitutionally required, as is our application of

Bocharski’s two requirements in this case.

¶38 In common parlance, Wallace’s crimes undoubtedly would

be characterized as heinous or depraved. But under the Supreme

Court’s jurisprudence, we must apply narrowing constructions of

those words, not common understandings, to avoid “serious

constitutional problems.” State v. Carlson, 202 Ariz. 570, 585

¶ 55, 48 P.3d 1180, 1195 (2002); see also Anderson, 210 Ariz. at

355 ¶¶ 123-24, 111 P.3d at 397.

¶39 Under Bocharski and our other (F)(6) narrowing

jurisprudence, we conclude on independent review that the

evidence does not show beyond a reasonable doubt that Wallace

actually or constructively knew that he had delivered one or

more fatal blows to Anna or Gabriel before he stopped striking

them. We therefore vacate the death sentences imposed on the

two convictions relating to Anna and Gabriel’s murders and

impose life sentences for each of those convictions.7 See State

7
In view of this disposition, we do not address Wallace’s
mitigation evidence, his various other issues raised on appeal,

20
v. Snelling, 225 Ariz. 182, 190 ¶ 38, 236 P.3d 409, 417 (2010)

(noting that a “death penalty may be imposed only if the state

has proved the existence of at least one aggravating factor

beyond a reasonable doubt”) (citation and internal quotation

marks omitted). These sentences will be served consecutively to

the life sentence previously imposed for Susan’s murder. See

Wallace III, 219 Ariz. at 8 ¶ 38, 191 P.3d at 171.

_____________________________________
A. John Pelander, Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
Robert M. Brutinel, Justice

_____________________________________
*

or the sixteen additional issues he presented to avoid
preclusion. See Bocharski, 218 Ariz. at 499 n.20 ¶ 112, n.21
¶ 113, 189 P.3d at 426 nn.20, 21.
*
Justice W. Scott Bales has recused himself from this case.
Pursuant to Article 6, Section 3 of the Arizona Constitution,
the Honorable Michael D. Ryan, Retired Justice of the Arizona
Supreme Court, was designated to sit in this matter. Before his
untimely death on January 30, 2012, Justice Ryan fully
participated in this case, including oral argument, and
concurred in this opinion’s reasoning and result.

21