SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-08-0116-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR-1997-003949
LEROY D. CROPPER, )
)
Appellant. )
) O P I N I O N
_________________________________ )
Appeal from the Superior Court in Maricopa County
The Honorable Joseph B. Heilman, Judge
AFFIRMED
________________________________________________________________
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Jeffrey A. Zick, Assistant Attorney General
Melissa A. Parham, Assistant Attorney General
Attorneys for State of Arizona
BRUCE PETERSON, OFFICE OF THE LEGAL ADVOCATE Phoenix
By Kerri L. Chamberlin, Deputy Legal Advocate
Attorneys for Leroy D. Cropper
________________________________________________________________
R Y A N, Justice
¶1 Leroy D. Cropper pled guilty to first degree murder in
1999 for the 1997 killing of an Arizona Department of
Corrections officer.1 A Maricopa County judge determined that
1
Cropper also pled guilty to dangerous and deadly assault by
a prisoner and three counts of promoting prison contraband.
1
Cropper should be sentenced to death for the murder and an
automatic appeal followed. See State v. Cropper (Cropper I),
205 Ariz. 181, 183-84 ¶ 12, 68 P.3d 407, 409 (2003). While the
appeal was pending, the Supreme Court decided Ring v. Arizona
(Ring II), which held that jurors, not judges, must find
aggravating factors that expose defendants to capital sentences.
536 U.S. 584, 609 (2002). In response to that decision, and
subsequent legislation,2 this Court vacated Cropper’s sentence
and remanded for resentencing under the appropriate statutes.
State v. Cropper (Cropper II), 206 Ariz. 153, 158 ¶ 24, 76 P.3d
424, 429 (2003).
¶2 On remand, a jury found two aggravating factors:
Cropper had a prior serious conviction and he committed the
murder while incarcerated. See Ariz. Rev. Stat. (“A.R.S.”) §
13-751(F)(2), (F)(7) (Supp. 2009).3 That jury, however, could
not reach a verdict as to whether the killing was especially
cruel, A.R.S. § 13-751(F)(6), or whether death was the
2
After Ring II, legislation was enacted providing for a jury
trial as to both the existence of capital aggravating
circumstances and the appropriate sentence. 2002 Ariz. Sess.
Laws, ch. 1, § 3 (5th Spec. Sess.); see State v. Ring (Ring III),
204 Ariz. 534, 545 ¶ 13, 65 P.3d 915, 926 (2003).
3
Arizona’s capital sentencing statutes were reorganized and
renumbered to A.R.S. §§ 13-751 to -759. 2008 Ariz. Sess. Laws,
ch. 301, §§ 26, 38-41 (2d Reg. Sess.). Because the renumbered
statutes are not materially different, we cite the current
version, unless otherwise noted.
2
appropriate sentence. A second jury was impaneled, see A.R.S. §
13-752(K), and concluded that the murder was committed in an
especially cruel manner and that death was the appropriate
punishment. This automatic appeal followed. Ariz. R. Crim. P.
26.15, 31.2. We have jurisdiction under Article 6, Section 5(3)
of the Arizona Constitution and A.R.S. § 13-4031 (2001).
I
¶3 Cropper was an inmate at the Perryville prison in
1997.4 Two corrections officers, one female, another male, were
looking for missing mops and brooms. The female guard
approached Cropper’s cell and saw Cropper and his cell mate
sitting on a bunk. She discovered contraband tattooing material
in the cell and ordered the two inmates out so the officers
could conduct a search. The officers found a home-made tattoo
gun, needles and ink, a shank, and another item with security
implications. Cropper became angry that the female officer, in
Cropper’s opinion, had been disrespectful of him and his
property.
¶4 Although the female officer had angered Cropper, he
sought out a violent confrontation with the male officer -- “an
innocent man” -- because he did not want to be known as a
“ladykiller.” Cropper had been placed on lockdown, but he
4
A detailed description of the facts is set forth in Cropper
I, 205 Ariz. at 182-83 ¶¶ 2-9, 68 P.3d at 408-09.
3
obtained a knife from another inmate and escaped from his cell
with the help of others.
¶5 The male officer was alone in the control room of the
cellblock in which Cropper was held. Cropper banged open the
door, rushed at the officer and stabbed him in the neck. The
men crashed into a desk. Cropper pinned the officer up against
a wall while a “very violent” struggle continued for up to two
minutes. Believing he had seen the officer die, Cropper ran
back to his cell and attempted to clean himself up while prison
officers were changing shifts.
¶6 Officers coming on duty discovered the victim. They
performed CPR on him in the control room for about ten minutes
and continued life-saving efforts until the officer was finally
brought to Perryville’s main building. One officer testified
that he believed that the victim remained alive, moving his eyes
and maintaining a faint pulse in the moments after he was
discovered. The control room was covered in blood.
II
¶7 Because the first jury to consider Cropper’s penalty
could not reach a verdict, he argues that the second penalty-
phase trial violated his rights under the Ex Post Facto Clauses
of the United States and Arizona Constitutions. U.S. Const.
art. I, § 10; Ariz. Const. art. 2, § 25. Those provisions
“prohibit[] a state from ‘retroactively alter[ing] the
4
definition of crimes or increas[ing] the punishment for criminal
acts.’” State v. Ring (Ring III), 204 Ariz. 534, 545 ¶ 16, 65
P.3d 915, 926 (2003) (quoting Collins v. Youngblood, 497 U.S.
37, 43 (1990)); see also State v. Noble, 171 Ariz. 171, 173-74,
829 P.2d 1217, 1219-20 (1992). Cropper contends that by
permitting the State to retry the penalty phase after a jury
deadlocked, the legislature changed the substantive standard
applicable to capital defendants.
¶8 Under A.R.S. § 13-752(K), if the penalty-phase jury
“is unable to reach a verdict, the court shall dismiss the jury
and shall impanel a new jury.” It is only after that second
jury cannot resolve the case that a court must impose a life
sentence. Id. In contrast, Cropper claims, under prior law,
A.R.S. § 13-703 (2001), a trial judge could not have “hung,” but
rather was charged with determining in a single proceeding
whether a capital or lesser sentence was warranted based on an
assessment of aggravating factors and mitigating evidence.
Thus, he argues, permitting a second jury to determine whether a
death sentence was appropriate when the first trier of fact
“determined that there was some doubt as to whether death was
the appropriate punishment, and when the law at the time of the
offense would not have permitted a second trial, violates the ex
post facto prohibition.”
¶9 This Court, however, has rejected similar challenges.
5
See Ring III, 204 Ariz. at 546-47 ¶¶ 20-21, 65 P.3d at 927-28;
see also State v. Dann, 220 Ariz. 351, 367 ¶¶ 82-83, 207 P.3d
604, 620 (2009) (no ex post facto violation for failure to
require special verdicts or interrogatories); State v.
Bocharski, 218 Ariz. 476, 492 ¶¶ 76-78, 189 P.3d 403, 419 (2008)
(same). In Ring III, this Court explained that “Arizona’s
change in the statutory method for imposing capital punishment
is clearly procedural.” 204 Ariz. at 547 ¶ 23, 65 P.3d at 928.
This is so because the change to jury sentencing made no change
in punishment and added no new element to the crime of first
degree murder. Id. Moreover, the Court rejected the argument
that the procedural change had a substantive impact, noting that
the state is still required to prove aggravating circumstances
beyond a reasonable doubt. Id. at ¶ 24. “The only difference
is that a jury, rather than a judge, decides whether the state
has proved its case.” Id.
¶10 Our holding in Ring III was based, in part, on the
Supreme Court’s identical conclusion in Dobbert v. Florida, 432
U.S. 282 (1977). Id. at 546 ¶ 20, 65 P.3d at 927. In the
context of a capital resentencing after a change in sentencing
procedure, Dobbert explained that no ex post facto claim arises
when “[t]he new statute simply alter[s] the methods employed in
determining whether the death penalty was to be imposed,” and
not “the quantum of punishment attached to the crime.” 432 U.S.
6
at 293-94.
¶11 Cropper’s attempt to distinguish these principles is
flawed for two reasons. First, it attempts to compare the roles
of trial judges and juries. A judge, unlike a jury, cannot
“deadlock” on a sentencing decision. Second, it misapprehends
the effect of a hung jury. A jury’s decision to acquit a
defendant differs from a jury’s failure to reach a decision.
Cf. Yeager v. United States, 129 S. Ct. 2360, 2366 (2009)
(second trial after failure to reach a verdict is not prohibited
by double jeopardy principles). As in Ring III, the change in
the law permitting the state to retry the penalty phase when the
first jury could not reach a decision neither adds a new element
to the crime of first degree murder nor increases the punishment
for the crime. Therefore, Cropper’s ex post facto argument
fails.5
III
¶12 Cropper next contends that the prosecutor committed
5
Citing State v. Valencia, Cropper argues that the previous
standard of proof for a capital sentence was that “[w]here there
is a doubt whether the death sentence should be imposed, [it
should be] resolve[d] . . . in favor of a life sentence.” 132
Ariz. 248, 250, 645 P.2d 239, 241 (1982). But this statement
reflects this Court’s standard with regard to independent review.
See State v. Roque, 213 Ariz. 193, 231 ¶ 170, 141 P.3d 368, 406
(2006) (applying penalty doubt standard on independent review).
The legislature made no substantive change in shifting from judge
sentencing to jury sentencing. Ring III, 204 Ariz. at 547 ¶ 23,
65 P.3d at 928.
7
misconduct in his arguments regarding the (F)(6) cruelty
aggravator. At Cropper’s request, the trial court instructed
the jury that, to establish the cruelty prong of the (F)(6)
aggravator, the State was required to show a victim’s suffering
“existed for a significant period of time.”6 (Emphasis added).
In their arguments, both defense counsel and the prosecutor
attempted to explain to the jury what constituted a “significant
period of time.” The defense objected after the prosecutor told
jurors that the standard was “subjective,” suggesting that the
phrase should be defined by “what that means to you.” The trial
court overruled the objection, and the prosecutor again
explained the “significant period of time” language in
“subjective” terms. The defense ultimately moved for a
mistrial, which was denied.
¶13 The prosecutor’s remarks must be assessed in context.
The instruction Cropper requested, to which the State objected,
6
The instruction read:
All first degree murders are, to some extent, cruel,
however, this aggravating circumstance cannot be found
to exist unless the State has proven beyond a
reasonable doubt that the murder was especially cruel.
“Especially” means unusually great or significant. The
term “cruel” focuses on the victim’s pain and
suffering. A murder is especially cruel if the State
proves beyond a reasonable doubt that the victim
suffered pain prior to losing consciousness, the
victim’s conscious suffering existed for a significant
period of time, and the defendant knew or should have
known that the victim would suffer pain.
8
differed from (F)(6) cruelty instructions this Court has
previously approved. Our cases make clear that an (F)(6)
instruction is sufficient if it requires the state to establish
that “‘the victim consciously experienced physical or mental
pain and the defendant knew or should have known that’ the
victim would suffer.” State v. Tucker, 215 Ariz. 298, 310-11 ¶¶
31-33, 160 P.3d 177, 189-90 (2007) (alterations removed)
(quoting State v. Anderson, 210 Ariz. 327, 352 n.18 ¶ 109, 111
P.3d 369, 394 n.18 (2005)). No set period of suffering is
required. See State v. Soto-Fong, 187 Ariz. 186, 203-04, 928
P.2d 610, 627-28 (1996) (rejecting any “bright-line, arbitrary
temporal rule” to determine whether cruelty has been
established). An instruction consistent with this standard
sufficiently narrows the (F)(6) aggravator for constitutional
purposes. See Tucker, 215 Ariz. at 310-11 ¶¶ 31-33, 160 P.3d at
189-90; see also Walton v. Arizona, 497 U.S. 639, 654-56 (1990)
(concluding that Arizona court’s construction of the (F)(6)
aggravator is appropriate under the Eighth Amendment), overruled
on other grounds by Ring II, 536 U.S. at 608-09.
¶14 To evaluate “the propriety of a prosecutor’s
arguments, we consider ‘whether the remarks called to the
jurors’ attention matters that they should not consider.’”
State v. Morris, 215 Ariz. 324, 336 ¶ 51, 160 P.3d 203, 215
(2007) (quoting State v. Roque, 213 Ariz. 193, 224 ¶ 128, 141
9
P.3d 368, 399 (2006)). In his comments, the prosecutor sought
to clarify the meaning of “significant period of time” for the
jury. The comments with which Cropper takes issue deal directly
with the otherwise-unexplained jury instruction language he
requested; the comments did not dispute the essential elements
of physical cruelty. Consistent with this Court’s case law, the
prosecutor’s comments emphasized that “significant period of
time” did not mean a particular amount of time, but nevertheless
recognized that the state was required to establish conscious
suffering. Because the argument focused on considerations
proper for the jury in light of the instruction Cropper
requested, the prosecutor did not commit misconduct.
IV
¶15 Because the murder was committed before August 1,
2002, this Court “independently review[s] the trial court’s
findings of aggravation and mitigation and the propriety of the
death sentence.” A.R.S. § 13-755 (Supp. 2009); see 2002 Ariz.
Sess. Laws, ch. 1, § 7 (5th Spec. Sess.).
¶16 Cropper does not contest that the prior serious
offense aggravator, § 13-751(F)(2), and the offense committed
while in custody aggravator, § 13-751(F)(7), were proven. These
aggravating circumstances are established, respectively, by
Cropper’s guilty plea for a 1999 aggravated assault on another
inmate in the Maricopa County jail and the undisputed evidence
10
that Cropper was in prison when he murdered the corrections
officer.
¶17 Cropper does, however, argue that in our independent
review, we should find the § 13-751(F)(6) aggravator was not
established beyond a reasonable doubt. See State v. Speer, 221
Ariz. 449, 459 ¶ 51, 212 P.3d 787, 797 (2009) (explaining that
on independent review the Court “must independently determine
whether the State has established the aggravating circumstance
beyond a reasonable doubt”).
A
¶18 “Cruelty exists if the victim consciously experienced
physical or mental pain prior to death and the defendant knew or
should have known that suffering would occur.” State v.
Trostle, 191 Ariz. 4, 18, 951 P.2d 869, 883 (1997) (citation
omitted). The evidence demonstrates that Cropper sought out a
violent confrontation. The struggle lasted up to two minutes,
he acknowledged. Further, the medical testimony regarding the
victim’s wounds and blood loss demonstrates that the officer
suffered physical pain. See State v. Bearup, 221 Ariz. 163, 172
¶ 49, 211 P.3d 684, 693 (2009) (cruelty established when assault
lasted between sixty and ninety seconds and resulted in
substantial blood loss); State v. Amaya-Ruiz, 166 Ariz. 152,
177, 800 P.2d 1260, 1285 (1990) (evidence of struggle
demonstrated cruelty).
11
¶19 Dr. Philip Keen, former chief medical examiner of
Maricopa County and a specialist in forensic pathology,
testified in detail on the nature of the attack. He explained
that the wounds inflicted would have been particularly painful
because of the “higher concentration of nerves” in the neck; the
officer would have felt a “stinging, burning kind of pain.”
¶20 Keen also testified that the officer suffered a number
of “penetrating injuries.” The deeper of these cuts severed his
thyroid gland, the jugular vein, and his chest cavity and lung.
The officer bled to death as a result of these injuries. The
officer did not, however, experience significant arterial damage
from the attack because his aorta and carotid arteries were not
damaged. Thus, the time it would have taken to lose
consciousness was the time it took him to bleed out, Keen
confirmed. Based on the injuries, the officer would have
“progressively” lost consciousness. Keen testified that it
would have taken “minutes” for him to lose consciousness based
on the amount of blood found in his chest cavity and at the
scene. Despite Cropper’s contentions, Keen concluded that it
was unlikely the officer would have lost consciousness in less
than a minute. Taken together, these facts establish beyond a
reasonable doubt that the officer consciously suffered physical
pain and Cropper knew or should have known he would experience
12
such pain.7
B
¶21 In mitigation, Cropper argues that we should find that
he suffered an abusive childhood and he has expressed remorse
for his actions. In our review, we have considered all of the
mitigation evidence presented to the jury.
¶22 We conclude that Cropper has established by a
preponderance of the evidence that he suffered an abusive
childhood. See A.R.S. § 13-751(C). Testimony detailed that
both his father and stepmother abused him. For example,
evidence suggests that Cropper’s father beat Cropper and once
choked him to the point of passing out. When Cropper did not
properly clean a toilet, his stepmother beat his head against it
and flushed his head in it. Other evidence indicates that
Cropper was neglected as he grew up in New York: he had to
sneak food to eat and was left without a winter coat.
¶23 Cropper’s claims of remorse present a closer question.
7
In Soto-Fong we stated that “where shots, stabbings, or
blows are inflicted in quick succession, one of them leading
rapidly to unconsciousness, a finding of cruelty, without any
additional supporting evidence, is not appropriate.” 187 Ariz.
at 204, 928 P.2d at 628. But this is not a case in which the
proof of cruelty relies on a claim that the method by which the
murder was committed was inherently cruel. See State v. Ellison,
213 Ariz. 116, 142 n.19 ¶ 121, 140 P.3d 899, 925 n.19 (2006)
(rejecting state’s claim that strangling inherently cruel).
Rather, the State provided ample evidence of pain and
consciousness, as well as other evidence indicating that Cropper
sought out a violent conflict.
13
For example, Cropper, in allocution, expressed remorse, stating
that he regretted his action and recognized its impact on the
officer’s family and on his own. He presented testimony,
including some by his mitigation specialist, that he had changed
while in prison. We have found allocution sufficient to
establish remorse. State v. Velazquez, 216 Ariz. 300, 315 ¶ 74,
166 P.3d 91, 106 (2007).
¶24 In rebuttal, however, the State presented strong
evidence contradicting genuine remorse and reform. Cropper
threatened penal personnel and wrote letters mocking them and
bragging about the murder. For example, when he was found with
two toothbrushes in his possession in the Maricopa County jail,
Cropper told a jail guard “You wouldn’t know what a shank was
unless it was sticking out of your neck,” adding that “the next
time I get a toothbrush, I will stick it in your fucking neck.”
Asked during an investigation whether he was an “expert” on
shanks, Cropper said, “Let’s just say I know what I’m talking
about. I’ve been around.” Cropper bragged that he had
“stainless for each hand” in a letter to another inmate. He
once told an officer that if he wanted an officer dead, he would
be dead already.
¶25 Further, Cropper threatened a “repeat episode of blood
and guts” and bragged he would probably “be on the TV again,” in
a letter. He signed letters using “in your neck” and “Fuck them
14
all in the neck” as epigrams and “IYN” as a return address.
After the murder, Cropper wrote a letter addressed “Greetings
fellow psychopaths,” in which he boasted about the slaying,
writing “Yee haw. Are we having fun yet? He he.” He mocked
the prison personnel who had responded to the killing as “a
bunch of keystone cops all running around totally fucking
panicked and deathly scared.” Finally, he bragged that
protective vests worn by officers “protect the heart, lungs,
kidney, etcetera, etcetera, but their daring necks are always
exposed. Imagine that.”
¶26 After the murder, Cropper also continued to have
disciplinary problems and act violently. For example, while in
the Maricopa County jail, Cropper was found with a six-inch
shank; he was also involved in the December 10, 1999 incident
for which he was later convicted, establishing the § 13-
751(F)(2) aggravator. As late as 2002 he attempted to injure
another inmate with a dart.
¶27 In addition, Cropper was heavily invested in prison
culture. For instance, when Cropper pled guilty to the murder,
he said that he did not want his plea referred to as a plea
agreement, confirming that he did not “want anybody to get the
wrong impression that [he had] somehow cooperated with the
State.” He stated that under the inmate codes, snitches are
among the worst people. Significantly, Cropper took the stand
15
in the trial of the other inmates and took personal
responsibility for the entire crime, despite the fact that co-
conspirators aided him in committing it.
¶28 In light of this evidence, it is difficult to conclude
that Cropper’s later remorse is genuine. Indeed, we have found
similar evidence sufficient to rebut or foreclose a finding of
remorse. See State v. Greene, 192 Ariz. 431, 443 ¶ 59, 967 P.2d
106, 118 (1998) (stating that evidence of defendant’s “vile
state of mind,” shown in letters after the crime, rebuts
remorse); State v. Djerf, 191 Ariz. 583, 598 ¶¶ 64-65, 959 P.2d
1274, 1289 (1998) (stating that defendant’s tactical motives and
statements of potential for future killing prevent finding of
remorse). Accordingly, although we credit Cropper’s allocution
and related testimony, we cannot give such evidence substantial
weight in reviewing the propriety of the death sentence.8
C
¶29 In considering the propriety of the death sentence,
“we do not merely consider the quantity of aggravating and
mitigating factors which were proven, but we look to the quality
and strength of those factors.” State v. Newell, 212 Ariz. 389,
405 ¶ 82, 132 P.3d 833, 849 (2006). “The relationship between
8
Evidence also established that Cropper harbored an interest
in murdering guards for some time. At one point he wrote that
“[m]any times I go back and forth with delusions of killing these
guards.”
16
the mitigation evidence and the crime . . . can affect the
weight given to such evidence.” State v. Ellison, 213 Ariz.
116, 144 ¶ 132, 140 P.3d 899, 927 (2006). Three aggravators,
including the (F)(6) cruelty aggravator, are established.
¶30 Cropper urges us to give significant weight to his
abusive childhood, arguing that the cell search triggered an
uncontrollable rage. We do not find this argument persuasive.
First, “childhood troubles deserve little value as a mitigator
for . . . murder[] . . . committed at age thirty-three,” as
Cropper was at the time of this offense. Id. Further, the
record does not demonstrate a crime of rage. Rather, it
demonstrates that Cropper specifically sought out a male officer
as a victim, obtained a weapon, and launched a calculated,
violent attack. “This was not a crime of passion or an
impetuous reaction to difficult circumstances.” Speer, 221
Ariz. at 465 ¶ 94, 212 P.3d at 803. Moreover, he continued to
engage in acts of violence and other infractions in jail and
prison.
¶31 Similarly, the evidence of remorse and reform he
provided is of limited weight in light of his words and actions
suggesting his remorse and reform are not genuine. See Greene,
192 Ariz. at 443 ¶ 59, 967 P.2d at 118; Djerf, 191 Ariz. at 598
¶¶ 64-65, 959 P.2d at 1289.
¶32 The aggravators in this case, in contrast, are
17
entitled to substantial weight. The (F)(7) aggravator, for
example, represents a legislative judgment that inmates who
commit first degree murder while incarcerated have failed to
make even minimal efforts to comply with societal norms and thus
warrant particularly serious treatment. Likewise, Cropper’s
aggravated assault conviction warrants particular weight, as it
stemmed from another violent attack some eighteen months after
he murdered the corrections officer. Finally, the (F)(6)
aggravator is likewise entitled to considerable weight. In
light of the significant aggravating factors, and the
comparatively minimal mitigation, a capital sentence is
warranted.9
V
¶33 For the above reasons, we affirm Cropper’s death
sentence.
_____________________________________
Michael D. Ryan, Justice
9
Cropper raises several issues previously decided by the
Supreme Court, or this Court, to preserve for federal review.
These are listed verbatim in the attached appendix, along with
authority he identifies as having rejected his arguments.
18
CONCURRING:
_____________________________________
Rebecca White Berch, Chief Justice
_____________________________________
W. Scott Bales, Justice
_____________________________________
A. John Pelander, Justice
_____________________________________
Philip Hall, Judge*
*
Justice Andrew D. Hurwitz has recused himself from this
case. Pursuant to Article 6, Section 3 of the Arizona
Constitution, the Honorable Philip Hall, Judge of the Arizona
Court of Appeals, Division One, was designated to sit on this
matter.
19
Appendix
Cropper seeks to preserve twelve issues for later federal
review, which are listed as presented along with the authority
Cropper cites as rejecting the issues:
1. The prosecutor’s discretion to seek the death penalty
has no standards and therefore violates the Eighth and
Fourteenth Amendments to the United States Constitution and
Article 2, Sections 1, 4, and 15 of the Arizona Constitution.
Appellant recognizes authority to the contrary. See State v.
Sansing, 200 Ariz. 347, ¶ 46, 26 P.3d 1118 (2001), vacated on
other grounds, Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428
(2002); State v. Rossi, 146 Ariz. 359, 366, 706 P.2d 371, 378
(1985).
2. Arizona’s death penalty is applied so as to
discriminate against poor, young, and male defendants in
violation of Article 2, Sections 1, 4, and 13 of the Arizona
Constitution. Appellant recognizes authority to the contrary.
See Sansing, at ¶ 46.
3. The death penalty is cruel and unusual under any
circumstances and violates the Eighth and Fourteenth Amendments
to the United States Constitution and Article 2, Section 15 of
the Arizona Constitution. Appellant recognizes authority to the
20
contrary. See State v. Harrod, 200 Ariz. 309, ¶ 59, 26 P.3d 492
(2001).
4. The absence of proportionality review of death
sentences by Arizona courts denies capital defendants due
process of law and equal protection, and amounts to cruel and
unusual punishment in violation of the Fifth, Eighth, and
Fourteenth Amendments to the United States Constitution and
Article 2, Section 15 of the Arizona Constitution. Appellant
recognizes authority to the contrary. See Harrod, at ¶ 65;
State v. Salazar, 173 Ariz. 399, 416, 844 P.2d 566, 583 (1992).
5. Arizona’s capital sentencing scheme is
unconstitutional because it does not require that the State
prove that the death penalty is appropriate. Failure to require
this proof violates the Fifth, Eighth, and Fourteenth Amendments
to the United States Constitution and Article 2, Section 15 of
the Arizona Constitution. Appellant recognizes authority to the
contrary. See State v. Ring, 200 Ariz. 267, ¶ 64, 25 P.3d 1139
(2001), rev’d on other grounds, Ring v. Arizona, 536 U.S. 584,
122 S. Ct. 2428 (2002).
6. The death penalty is cruel and unusual because it is
irrationally and arbitrarily imposed. The statute requires
imposition of a death sentence if the jurors find one or more
aggravating circumstances and no mitigating circumstances
21
sufficiently substantial to call for life imprisonment.
Furthermore, the death penalty serves no purpose that is not
adequately addressed by a sentence of life imprisonment.
Therefore, it violates a defendant’s right to due process under
the Fourteenth Amendment to the United States Constitution and
Article 2, Sections 1 and 4 of the Arizona Constitution.
Appellant recognizes authority to the contrary. See State v.
Pandeli, 200 Ariz. 365, ¶ 88, 26 P.3d 1136 (2001); State v.
Beaty, 158 Ariz. 232, 247, 762 P.2d 519, 534 (1988).
7. A.R.S. § 13-703 provides no objective standards to
guide the jurors in weighing the aggravating and mitigating
circumstances and therefore violates the Eighth and Fourteenth
Amendments to the United States Constitution and Article 2,
Section 15 of the Arizona Constitution. Appellant recognizes
authority to the contrary. See Pandeli, at ¶ 90.
8. A.R.S. § 13-703 does not sufficiently channel the
sentencing jurors’ discretion. Aggravating circumstances should
narrow the class of persons eligible for the death penalty and
reasonably justify the imposition of a harsher penalty. The
broad scope of Arizona’s aggravating factors encompasses nearly
anyone involved in a murder, violating the Eighth and Fourteenth
Amendments to the United States Constitution and Article 2,
22
Section 15 of the Arizona Constitution. Appellant recognizes
authority to the contrary. See Pandeli, at ¶ 90.
9. Execution by lethal injection is cruel and unusual
punishment in violation of the Eighth and Fourteenth Amendments,
and Article 2, § 15 of the Arizona Constitution. Appellant
recognizes authority to the contrary. See State v. Van Adams,
194 Ariz. 408, ¶ 55, 984 P.2d 16 (1999).
10. A proportionality review of a defendant’s death
sentence is constitutionally required. Appellant recognizes
authority to the contrary. See State v. Gulbrandson, 184 Ariz.
46, 73, 906 P.2d 579, 606 (1995).
11. Arizona’s death penalty statute violates the Eighth
and Fourteenth Amendments to the United States Constitution and
Article 2, Sections 4 and 15 of the Arizona Constitution because
it does not require multiple mitigating factors to be considered
cumulatively or require the fact-finder to make specific
findings as to each mitigating factor. Appellant recognizes
authority to the contrary. See Van Adams, at ¶ 55.
12. Arizona’s death penalty statute is constitutionally
deficient because it requires defendants to prove that their
lives should be spared. Appellant recognizes authority to the
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contrary. See State v. Fulminante, 161 Ariz. 237, 258, 778 P.2d
602, 623 (1988).
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