State v. Finch

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-99-0551-AP
Appellee, )
) Pima County Superior
v. ) Court
) No. CR-61452
MARCUS LASALLE FINCH, )
)
Appellant. ) O P I N I O N
)
__________________________________)

Appeal from the Superior Court of Pima County
Honorable Bernard P. Velasco, Judge
AFFIRMED

_________________________________________________________________

Janet Napolitano, Attorney General Phoenix
By Kent E. Cattani, Chief Counsel
Capital Litigation Section
and Jack Roberts, Assistant Attorney General
Attorneys for the State of Arizona

Law Office of S. Jonathan Young, Esq. Tucson
By S. Jonathan Young
Attorney for Finch

_________________________________________________________________
M c G R E G O R, Vice Chief Justice

¶1 A grand jury charged Marcus Finch with fifty-six counts

of armed robbery, kidnaping, aggravated assault, and attempted

first degree murder for three robberies that occurred in Tucson on

April 12, 24, and 28 of 1998. He was also charged with one count

of first degree murder for the death of Kevin Hendricks that

occurred during the April 28 robbery. The trial court consolidated

all three incidents for a dual jury trial with Finch’s co-
defendant, Keith Phillips. Finch’s jury convicted him of first

degree felony murder, as well as most of the non-homicide counts.

Following a sentencing hearing, Judge Bernard P. Velasco sentenced

Finch to death on December 6, 1999. Appeal to this court is

automatic and direct when the court imposes a sentence of death.

Arizona Revised Statutes (A.R.S.) § 13-703.01 (2001). We exercise

jurisdiction pursuant to Article 6, Section 5.3 of the Arizona

Constitution, A.R.S. section 13-4031 and Arizona Rule of Criminal

Procedure 31.2(b).

I.

A.

¶2 Around 1:30 a.m. on April 12, 1998, Finch and Phillips

entered the Famous Sam’s restaurant on Silverbell and Grant in

Tucson. Finch, who was carrying a sawed-off rifle, and Phillips,

carrying a handgun, ordered two of the four restaurant employees

into the cooler. When waitress Shelly Raab saw Finch, she dropped

to her knees about one arm’s length away from him. Finch pointed

the sawed-off rifle at her chest, said, “Get in the cooler, bitch,”

and shot her in the chest. Next, Finch grabbed Raab by the hair

and dragged her into the cooler.

¶3 After taking the employees to the cooler, Finch and

Phillips held office manager Beverly Rochon at gunpoint and told

her to lead them to the money. Rochon gave them all the money she

could find and went back into the cooler. Finch and Phillips left

2
shortly thereafter.

¶4 Shelly Raab survived, but the bullet fragmented her

liver, lung and stomach, caused her to lose her spleen, a kidney,

and part of her pancreas. Raab’s injuries have left her with a

permanent limp and frequent numbness in her legs.

B.

¶5 At 10:30 p.m. on April 23, 1998, Phillips came into the

Firelight Lounge on Wetmore in Tucson and asked what time the bar

closed. Jaimi Ramirez Gilson, the bartender, told him that she

closed at 1:00 a.m. Two hours later, Finch walked into the bar and

asked for a Killian’s Red beer. When Ms. Gilson stepped into the

cooler to get the beer, Phillips came in the front door with a

sawed-off rifle and shouted, “Everybody on the fucking floor or I’m

going to blow your brains out.” Ms. Gilson tried to hide behind

the bar but Finch, who had a handgun, grabbed her by the hair,

dragged her to the cash register, and told her to open it. After

taking the money, Finch dragged Ms. Gilson to the men’s restroom

and threw her inside.

¶6 Meanwhile, Phillips took money from the customers and

herded them into the women’s restroom when he learned there was no

cooler large enough to hold them. As patron Bill Gilson was

entering the women’s restroom, Phillips shot him once in the

shoulder and once in the back. Gilson fell into the restroom,

where other patrons assisted him. Finch and Phillips left the bar,

3
and the police arrived shortly thereafter.

¶7 Bill Gilson survived, but one of the bullets collapsed

his right lung. In addition, he lost his spleen and part of his

liver and remained in a coma for three weeks.

C.

¶8 Around midnight on April 28, 1998, Finch walked into the

Famous Sam’s located at Cardinal and Valencia in Tucson and asked

Margaret Damron, the bartender, how much a Killian’s Red beer cost.

When she answered, he told her he was going back to his car to get

some change. When Finch returned, he sat down and ordered a beer.

A few minutes later, Phillips walked through the front door with a

sawed-off rifle and opened fire directly into the backs of

customers seated at the bar. Phillips shot Ricardo Herrera in both

arms and Mario Rodriguez in one arm. Finch, armed with a handgun,

suddenly emerged from a restroom and told one patron, “Get down or

I’ll fucking shoot you.” Finch then saw two customers, Preston

Juan and Kevin Hendricks, fleeing out the back door. Finch

followed them outside and shot Hendricks in the back twice. After

returning to the restaurant, Finch forced several patrons into the

walk-in cooler and Phillips held Damron at gunpoint until she gave

him all the money from the restaurant office.

¶9 Shortly after midnight on April 28, 1998, Pima County

Sheriff’s Deputy Jeff Englander received a dispatch stating that

shots had been fired at the Famous Sam’s on Cardinal and Valencia.

4
When he arrived at the restaurant’s parking lot, he saw a gold

Chrysler LeBaron speeding out of the lot. Englander pursued the

LeBaron until it finally pulled over and stopped. Englander

ordered Finch and Phillips out of the car and took them into

custody. Inside the car Englander found money, an empty gun

holster on the driver’s side where Finch had been sitting, and a

sawed-off rifle on the passenger side where Phillips had been

seated. Deputy Thomas Adduci, who searched the LeBaron pursuant to

a search warrant, found a .380 caliber handgun with a live round in

the chamber and three more in the magazine as well as .22 caliber

ammunition.

¶10 Some time after Deputy Englander took Finch and Phillips

into custody, dispatch informed him that a mall security guard had

found a body in the rear parking lot of Famous Sam’s. The parties

stipulated it was the body of Kevin Hendricks. Hendricks died of

two gunshot wounds. One bullet entered the right side of

Hendricks’ back, punctured his right lung, and exited below his

collarbone. The other entered the upper part of the left side of

his back and lodged in his left lung.

D.

¶11 Finch confessed to all three robberies. At trial,

testifying before his jury only, he admitted participating in the

robberies, shooting Shelly Raab and shooting Kevin Hendricks.

Finch stated that he shot Hendricks twice in the back to prevent

5
him from telling anyone that a robbery was taking place. Finch’s

jury convicted him of several counts of attempted first degree

murder, aggravated assault with a deadly weapon, aggravated assault

with serious physical injury, kidnaping, armed robbery, and one

count of first degree felony murder.

¶12 Following a sentencing hearing, the trial court found

that the State had proved beyond a reasonable doubt the existence

of statutory aggravating factors under A.R.S. sections 13-703.F.5

(expectation of pecuniary gain) and 13-703.F.2 (prior conviction of

a serious offense).1 Furthermore, the trial court found that Finch

failed to prove any statutory mitigation, and that the few proved

nonstatutory mitigating factors did not warrant leniency. The

court concluded that either of the two aggravating circumstances

was sufficient in itself to outweigh the mitigating factors.

II.

A.

¶13 Finch asserts that because officers continued to question

him after he made a clear and unambiguous request for counsel the

trial court should have excluded his confession. We will not

reverse a trial court’s ruling on the admissibility of a confession

absent clear and manifest error. State v. Eastlack, 180 Ariz. 243,

251, 883 P.2d 999, 1007 (1994).

1
Ariz. Rev. Stat. (A.R.S) section 13-703 has been revised
so that the F.5 and F.2 aggravators are now located at sections 13-
703.G.5 and 13-703.G.2.

6
¶14 When a suspect invokes his right to a lawyer, all

questioning must cease. Edwards v. Arizona, 451 U.S. 477, 482, 101

S. Ct. 1880, 1883 (1981). If the suspect reinitiates contact with

the police, however, he waives his right and questioning may

continue. Oregon v. Bradshaw, 462 U.S. 1039, 1043-44, 103 S. Ct.

2830, 2833-34 (1983). For example, in State v. Smith, 193 Ariz.

452, 459, ¶ 31, 974 P.2d 431, 438 ¶ 31 (1999), we held that

although the defendant initially requested counsel, he waived his

right to counsel when he reinitiated contact with the police by

stating, “I don’t see why I shouldn’t just tell you.”

¶15 The Pima County Sheriff’s Department conducted two video-

taped interviews with Finch after his arrest. Finch was given

Miranda warnings prior to the first interview, and the following

exchange ensued:

Officer: Do you understand what I’ve told you?
Finch: Yes, I do.
Officer: Okay . . . having been told these . . . will
you talk to uh . . . to us about what
happened?
Finch: I’m not gonna, not gonna play around. Uh . .
. I would like to have counsel (five second
pause). You can ask questions, though.
Officer: Okay. Um we’ll keep that in mind. And so you
know . . . um . . . we appreciate you
answering questions. Um . . . and of course
you will be afforded counsel . . . um . . . as
soon as . . . um . . . I don’t know if you’ve
ever been arrested before?
Finch: Yes, I have.
Officer: So you know the . . . the routine there, and
you will be afforded . . . uh counsel. But
will you talk to us now?
Finch: I’ll talk to you now.

7
Finch then proceeded to describe all three robberies and confess to

his role in them.

¶16 Finch’s statement, “You can ask questions, though,”

superseded his request for counsel. Finch’s interviewer clarified

that Finch’s statement demonstrated an intent to speak with

detectives by asking, “But will you talk to us now?” Finch clearly

replied, “I’ll talk to you now.” Thus, Finch reinitiated contact

with police after his request for counsel.

¶17 Following a suppression hearing at which the trial judge

viewed Finch’s video-taped confession and heard testimony from the

two detectives who interviewed Finch, the judge admitted Finch’s

confession. We find no error.

B.

¶18 Finch claims that the trial court’s reasonable doubt

instruction improperly shifted the burden of proof to the

defendant. In its instruction, the trial court defined reasonable

doubt as “proof that leaves you firmly convinced of the defendant’s

guilt.” The court also explained:

If, based on your consideration of the evidence, you are
firmly convinced that the defendant is guilty of the
crimes charged, you must find him or her guilty. If, on
the other hand, you think that there is a real
possibility that the defendant is not guilty, you must
give the defendant the benefit of the doubt and find the
defendant not guilty.

The trial court gave the reasonable doubt instruction approved in

State v. Portillo, 182 Ariz. 592, 898 P.2d 970 (1995), and upheld

8
in State v. Van Adams, 194 Ariz. 408, 418 ¶ 30, 984 P.2d 16, 26

¶ 30 (1999). The trial court did not err.

C.

¶19 Finch argues that he joined co-defendant Phillips’

request for a jury instruction on proximate cause and that the

trial court erred in refusing to give the instruction. Finch,

however, neither requested a proximate cause instruction nor joined

in Phillips’ request for one. If a party fails to object to an

error or omission in a jury instruction, we review only for

fundamental error. Rule 21.3(c), Arizona Rules of Criminal

Procedure (Ariz. R. Crim. P.); State v. Valenzuela, 194 Ariz. 404,

405 ¶ 2, 984 P.2d 12, 13 ¶ 2 (1999).

¶20 A trial court does not commit fundamental error by

failing to sua sponte give a proximate cause instruction in a

felony murder case when causation is not at issue in the trial.

State v. Smith, 160 Ariz. 507, 510, 774 P.2d 811, 814 (1989).

Finch argues that because the police did not find Hendricks in time

to save his life, the time it took police to locate Hendricks

constituted a superseding event that proximately caused Hendricks’

death. Finch confessed, however, that he shot Hendricks in the

back twice from a distance of eight to twelve feet. Hendricks died

as a result of those two gunshot wounds. Although Hendricks may

have survived had he received prompt medical attention, he would

not have died had Finch not shot him in the back. Thus, causation

9
was not at issue, and the trial court did not commit fundamental

error by not sua sponte providing a proximate cause instruction to

the jury.

D.

¶21 Finch argues the court erred by instructing the jury that

intoxication, by alcohol or drugs, is no defense to any criminal

act, and cannot be considered with respect to any criminal state of

mind. We have previously rejected this argument because A.R.S.

section 13-503 “expressly states that voluntary, temporary

intoxication is not a defense to any crime or culpable mental

state.” State v. Sharp, 193 Ariz. 414, 423 ¶ 30, 973 P.2d 1171,

1180 ¶ 30 (1999) (emphasis added).

E.

¶22 Finch contends that the trial court improperly excluded

or the State struck seven jurors on the basis of their religious

views. Three of the seven jurors listed by Finch belonged to

Phillips’ jury. The trial court excluded or the State struck three

of the four jurors in Phillips’ panel for non-religious reasons.

Specifically, the court excused Mr. H due to severe financial

hardship and excused Ms. F because she did not understand English

well enough to serve on a jury. The State struck Ms. L because she

had difficulty understanding English and did not want to serve on

the jury. Thus, Finch’s argument is limited to Ms. R, whom the

State struck.

10
¶23 Jurors may be struck for nondiscriminatory reasons.

Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986). In

response to the trial court’s question as to whether potential

jurors’ views on the death penalty would affect their ability to

serve, Ms. R stated she did not believe in the death penalty and

her views on the death penalty would make it difficult for her to

decide a case if the death penalty might be imposed. Ms. R,

however, never stated that her views were religiously motivated.

After further questioning by the trial court, she stated that she

would be able to serve on the jury. Because Finch did not provide

any evidence to support his contention that the State struck Ms. R

for religious reasons, the trial court did not err in allowing the

State to use a peremptory challenge.

¶24 Finch also argues that the court or State removed Mr. H,

Ms. F, Ms. L, and Ms. R for religious reasons because they stated

their religious views in questionnaires. Although the record

confirms that these jurors described their religious viewpoints in

jury questionnaires, Finch has not shown these statements led to

their removal. Even if the court or State removed jurors because

their religious convictions affected their ability to serve, it is

not improper to “question and excuse venire members who would not

be impartial for any reason, religious or otherwise.” State v.

Fisher, 141 Ariz. 227, 249, 686 P.2d 750, 772 (1984). Thus, we

find no error.

11
 F.

¶25 Finch argues that the State did not prove his felony

murder conviction beyond a reasonable doubt because the trial

court’s special verdict stated that Finch engaged in an act of

gratuitous murder, and Arizona’s felony murder statute does not

include gratuitous murder.

¶26 In describing Hendricks’ death as an act of gratuitous

murder, the trial court observed that Finch did not need to shoot

Hendricks to complete the robbery. The court also found that Finch

shot Hendricks to avoid apprehension in order to spend his ill-

gotten gains.

¶27 Felony murder requires that the defendant commit murder

“in furtherance of” the underlying felony. A.R.S. § 13-1105.A.2.

At trial, Finch testified that he shot Hendricks to prevent him

from telling anyone that a robbery was taking place. Finch’s

admission allowed a jury to conclude that Finch shot and killed

Hendricks in order to successfully complete the robbery. Thus,

sufficient evidence justified the jury verdict convicting Finch of

felony murder.

III.

A.

¶28 Finch contends the trial court erred when it referred to

an undisclosed Army Field Manual in its special verdict. The trial

12
court did not, however, rely on the manual in deciding to impose

the death sentence. Rather, the court merely prefaced its findings

with excerpts from the manual. Additionally, the court did not use

the manual to make its findings with respect to aggravation and

mitigation. We find no error.

B.

¶29 Finch challenges the court’s findings related to

aggravating factors. First, Finch claims the trial court erred in

finding that he committed Hendricks’ murder for pecuniary gain. We

disagree.

¶30 When a defendant commits murder “as consideration for the

receipt, or in expectation of the receipt, of anything of pecuniary

value,” the court shall consider this an aggravating circumstance.

A.R.S. § 13-703.F.5 (2000). The State must establish F.5 by

proving beyond a reasonable doubt that financial gain “was a

motive, cause, or impetus for the murder and not merely the result

of the murder.” State v. Sansing, 200 Ariz. 347, 353 ¶ 12, 26 P.3d

1118, 1124 ¶ 12 (2001) (citations omitted). Although “[t]he

existence of an economic motive at some point during the events

surrounding a murder is not enough to establish pecuniary gain,” we

have held that “a murder committed to facilitate escape and/or

hinder detection by police furthers the pecuniary interest of the

criminal.” Id. at 354 ¶ 14, 355 ¶ 21, 26 P.3d at 1125 ¶ 14, 1126

¶ 21 (citations omitted).

13
¶31 In this case, Finch himself testified that he shot

Hendricks to prevent him from telling anyone that a robbery was

taking place. Thus, Finch murdered Hendricks so that he and

Phillips could complete the robbery without being detected.

Because the motive behind Hendricks’ murder facilitated Finch and

Phillips’ escape as well as “the taking of or the ability to keep

items of pecuniary value,” the trial court properly found the

pecuniary gain factor. Id. at 354 ¶ 15, 26 P.3d at 1125 ¶ 15.

¶32 Finch also contests the trial court’s application of the

F.2 aggravating factor by arguing that conviction for a previous

serious offense that is “simultaneous” with the murder conviction

should be afforded less weight than a “historical” conviction.

Here, the trial court based its F.2 finding on Finch’s convictions,

entered prior to sentencing, for armed robbery, kidnaping, and

aggravated assault from the first and second robberies.

¶33 When a “defendant was previously convicted of a serious

offense, whether preparatory or completed,” the trial court shall

consider this an aggravating circumstance. A.R.S. § 13-703.F.2.

(2000). Convictions entered simultaneously with the murder

conviction but prior to sentencing satisfy F.2. State v. Jones,

197 Ariz. 290, 311 ¶ 64, 4 P.3d 345, 366 ¶ 64 (2000). Because

Finch’s convictions stemming from the first and second robberies

were entered prior to sentencing, they qualify as previous serious

offenses under F.2. Thus, the trial court did not err.

14
 C.

¶34 Finch asserts that the trial court either failed to

consider or failed to give adequate weight to a number of

mitigating factors. We disagree.

1.

¶35 Finch argues the trial court erred in rejecting his use

of crack cocaine during the robberies as a mitigating factor

because cocaine significantly impaired his ability to appreciate

the wrongfulness of his actions or to conform his conduct to the

requirements of the law.

¶36 A statutory mitigating factor exists when “[t]he

defendant’s capacity to appreciate the wrongfulness of his conduct

or to conform his conduct to the requirements of the law was

significantly impaired, but not so impaired as to constitute a

defense to prosecution.” A.R.S. § 13-703.G.1 (2000).2 Finch did

not prove that cocaine impaired him or even that he used cocaine

when he committed the robberies and Hendricks’ murder. In fact,

testimony from an old family friend and Finch’s mother provided the

only evidence of Finch’s drug use. The family friend merely stated

that Finch, along with his father and brother, had used drugs three

or four years earlier. Mrs. Finch testified that Finch, his

2
A.R.S. section 13-703.G.1 is now found at section 13-
703.H.1.

15
brother and his father had recently used crack cocaine. In

contrast, Finch’s video-taped confession, taken two hours after his

arrest, shows that Finch clearly and coherently answered questions

regarding all three robberies. The trial court did not err in

finding that Finch failed to prove the G.1. mitigator by a

preponderance of the evidence.

2.

¶37 Finch proffered his family’s support as a non-statutory

mitigating factor. The trial court did not err in finding that

although Finch proved his family loves and supports him, this

mitigator did not warrant leniency. See State v. Rienhardt, 190

Ariz. 579, 592, 951 P.2d 454, 467 (1997) (the fact the defendant’s

family appeared to care about his future and that he had a young

son did not overcome the aggravators).

3.

¶38 Finch contests the trial court’s refusal to find that the

effects of Finch’s execution on his children is a non-statutory

mitigator.

¶39 In State v. Greene, 192 Ariz. 431, 443 ¶ 58, 967 P.2d

106, 118 ¶ 58 (1998), the defendant’s ex-wife’s testimony expressed

concern about the effect the defendant’s execution would have on

their children. We concluded the trial court should have given

“some mitigating weight to the effect Greene’s execution would have

on the emotional well-being of his children.” Id. Here, Finch’s

16
ex-wife did not testify as to the effects of Finch’s execution on

his two children. Furthermore, although Finch’s mother offered

testimony that Finch’s children visit him in prison, Finch’s

children did not live with him prior to the robberies and

testimony suggested that Finch maintained only minimal contact with

his children before his arrest. Thus, we concur with the

sentencing judge’s findings. See State v. West, 176 Ariz. 432,

451, 862 P.2d 192, 211 (1993) (refusing to find mitigation where

defendant maintained only minimal contact with his child).

4.

¶40 The trial court found that Finch’s remorse, although

proven, did not call for leniency. Finch argues that the trial

court should have given more weight to his remorse. We uphold the

trial court’s finding because Finch’s remorse did not stop him from

committing the second and third robberies and does not

counterbalance his willingness to hurt or kill innocent people for

financial gain. See State v. Spreitz, 190 Ariz. 129, 150, 945 P.2d

1260, 1281 (1997).

5.

¶41 We have previously rejected personal growth and pretrial

and presentence good behavior during incarceration as a mitigating

circumstance because “a defendant [is] expected to behave himself

in [jail] while awaiting [sentencing].” Id.

6.

17
¶42 Finch claims that he was under emotional duress when he

committed the robberies because he needed money to buy drugs.

Duress is “any illegal imprisonment, . . . threats of bodily or

other harm, or other means amounting to or tending to coerce the

will of another, and actually inducing him to do an act contrary to

his free will.” State v. Wallace, 151 Ariz. 362, 369, 728 P.2d

232, 239 (1986). Finch did not provide any evidence suggesting he

was under duress when he committed the robberies and killed Kevin

Hendricks. We affirm the trial court’s finding that duress did not

constitute a mitigating factor in Finch’s case.

7.

¶43 The trial court found that Finch’s difficult childhood

did not call for leniency because while Finch’s father was a

functioning substance abuser, Finch’s conduct went far beyond that

provided by his father’s example. We have held that “family

background may be a substantial mitigating circumstance when it is

shown to have some connection with the defendant’s offense-related

conduct.” Greene, 192 Ariz. at 442 ¶ 51, 967 P.2d at 117 ¶ 51.

Because Finch did not establish a nexus between his father’s

substance abuse and his actions, the trial court did not err.

8.

¶44 The trial court found that Finch did not prove any

impairment due to drugs and alcohol. As stated above, Finch’s

video-taped confession reveals no sign that he was impaired when he

18
committed the robbery and killed Kevin Hendricks. We find no

error.

9.

¶45 Finch asserts that his felony murder conviction evinces

that he lacked the intent to kill Kevin Hendricks. Although a

felony murder conviction can be a mitigating factor, any mitigation

will be offset by a defendant’s “major participation in the

planning and execution of the crime.” State v. Dickens, 187 Ariz.

1, 25, 926 P.2d 468, 492 (1996). Finch substantially participated

in the planning and execution of the three robberies and the murder

of Kevin Hendricks. Thus, Finch’s felony murder conviction does

not provide mitigation in this case.

IV.

¶46 The trial court correctly found the F.5 and F.2

aggravating factors. The proven mitigation involves the support

Finch receives from his family, Finch’s remorse, rehabilitative

potential, good behavior, and cooperation with authorities.

Independently considering those factors, we conclude that the

mitigation, individually and collectively, does not outweigh the

aggravation.

V.

¶47 We have previously considered and rejected the following

challenges Finch makes to the constitutionality of Arizona’s death

sentencing scheme:

19
¶48 Finch claims his sentence is unconstitutional because the

pecuniary gain aggravating factor does not narrow the class of

persons eligible for the death penalty. We disagree. State v.

Greenway, 170 Ariz. 155, 164, 823 P.2d 22, 31 (1991).

¶49 Finch argues that Arizona’s capital sentencing scheme is

unconstitutional in light of Jones v. United States, 526 U.S. 227,

119 S. Ct. 1215 (1999), and Apprendi v. New Jersey, 530 U.S. 466,

120 S. Ct. 2348 (2000), because judges, not juries, sentence

defendants in capital cases in Arizona. Because neither Jones nor

Apprendi expressly overrules Walton v. Arizona, 497 U.S. 639, 110

S. Ct. 3047 (1990), which upheld Arizona’s capital sentencing

scheme, this court remains bound by Walton. State v. Ring, 200

Ariz. 267, 279-80 ¶ 44, 25 P.3d 1139, 1151-52 ¶ 44 (2001), cert.

granted, 122 S. Ct. 865, 151 L. Ed. 2d 738 (Jan. 11, 2002).

VI.

¶50 We reject the following arguments, raised by the

defendant to preserve for appeal:

The prosecutor’s discretion to seek the death penalty is

unconstitutional and violates the Eighth and the Fourteenth

Amendments of the United States Constitution and Article II,

Sections 1, 4 and 15 of the Arizona Constitution. See State v.

Rossi, 146 Ariz. 359, 366, 706 P.2d 371, 378 (1985).

¶51 The Arizona death penalty statute is applied in a manner

that discriminates against poor, young, and male defendants in

20
violation of the Thirteenth Amendment of the Constitution and

Article II, Sections 1, 4, and 13 of the Arizona Constitution. See

State v. Stokley, 182 Ariz. 505, 516, 898 P.2d 454, 465 (1995).

¶52 Arizona’s death penalty statute is cruel and unusual

punishment and violates the Eighth and Fourteenth Amendments of the

Constitution and Article II, Section 15 of the Arizona

Constitution. See State v. Gulbrandson, 184 Ariz. 46, 72-73, 906

P.2d 579, 605-06 (1995).

¶53 Arizona’s death penalty statute is imposed arbitrarily

and irrationally in violation of the Eighth Amendment of the

Constitution and Article II, Sections 1 and 15 of the Arizona

Constitution. See State v. Roscoe, 184 Ariz. 484, 501, 910 P.2d

635, 652 (1996).

¶54 Arizona’s death penalty statute does not provide guidance

to the sentencing court because no objective standards exist. The

statute which assists in weighing the aggravating and the

mitigating circumstances violates the Eighth and Fourteenth

Amendments of the Constitution and Article II, Section 15 of the

Arizona Constitution. See id.; State v. Bolton, 182 Ariz. 290,

310, 896 P.2d 830, 850 (1995).

¶55 The failure of the Arizona courts to conduct a

proportionality review denied defendant due process of law. See

State v. Salazar, 173 Ariz. 399, 416-17, 844 P.2d 566, 583-84

(1992).

21
¶56 The jury selection process in Arizona allows for a

conviction-prone jury in violation of the right to a fair and

impartial jury under the Sixth and Fourteenth Amendments of the

Constitution and Article II, Sections 4, 23, and 24 of the Arizona

Constitution. See Jones, 197 Ariz. at 302 ¶ 24, 4 P.3d at

357 ¶ 24.

¶57 The death penalty in Arizona is unconstitutional because

a defendant cannot death-qualify the sentencer. This violates a

defendant’s rights under the Eighth and Fourteenth Amendments of

the Constitution and Article II, Section 15 of the Arizona

Constitution. See State v. Rossi, 154 Ariz. 245, 247-48, 741 P.2d

1223, 1225-26 (1987).

¶58 Denying defendant the right to a jury trial in the

sentencing phase violated his Eighth and Fourteenth Amendment

rights under the Constitution and Article II, Sections 13 and 15 of

the Arizona Constitution. See generally Walton, 497 U.S. 639, 110

S. Ct. 3047 (1990); State v. Hoskins, 199 Ariz. 127, 146 ¶ 84, 14

P.3d 997, 1016 ¶ 84.

VII.

¶59 For the foregoing reasons, we affirm the defendant’s

convictions and sentences.

__________________________________
Ruth V. McGregor, Vice Chief Justice

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CONCURRING:

___________________________________
Charles E. Jones, Chief Justice

___________________________________
Stanley G. Feldman, Justice

___________________________________
Thomas A. Zlaket, Justice (Retired)

___________________________________
Edward C. Voss, Judge*

*Pursuant to Ariz. Const. Article VI, Section 3, the Honorable
Edward C. Voss, Chief Judge of the Court of Appeals, Division One,
was designated to sit on this case.

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