SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-08-0164-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2005-007848-001 DT
GARY WAYNE SNELLING, )
)
Appellant. )
) O P I N I O N
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Linda A. Akers, Judge
CONVICTION AFFIRMED; DEATH SENTENCE VACATED
________________________________________________________________
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
Susanne Bartlett Blomo, Assistant Attorney General
Attorneys for State of Arizona
THOMAS A. GORMAN, ATTORNEY AT LAW Sedona
By Thomas A. Gorman
Attorney for Gary Wayne Snelling
________________________________________________________________
P E L A N D E R, Justice
¶1 Gary Wayne Snelling was convicted of first degree
murder and sentenced to death. We have jurisdiction over this
mandatory appeal under Article 6, Section 5(3) of the Arizona
Constitution and Arizona Revised Statutes (A.R.S.) sections 13-
1
4031 and 13-4033(A)(1) (2010).1
FACTUAL AND PROCEDURAL BACKGROUND2
¶2 On July 14, 1996, Adele Curtis was cleaning a
townhouse she owned in Phoenix so it could be rented. The
prospective tenant met Curtis at the townhouse around noon,
stayed for about two hours, and left through the unlocked front
door. She last saw Curtis sitting on the stairs with a drink
and sandwich and Curtis’s truck parked outside the townhouse.
¶3 Two days later, a police officer responded to a report
of an abandoned truck behind a nearby bar. The truck belonged
to Curtis. The officer went to the townhouse but received no
response to his knock.
¶4 Curtis’s family became concerned after not hearing
from her. Her niece went to the townhouse but found it locked
and Curtis’s truck gone. After finding a key, the niece
returned to the townhouse on July 18 and discovered Curtis’s
naked body lying on the upstairs bathroom floor. Curtis had
marks on her neck consistent with a ligature. The medical
examiner opined that she had died of asphyxia by strangulation.
1
This opinion cites the current version of statutes, unless
otherwise noted.
2
Except when conducting our independent review, we view the
facts in the light most favorable to sustaining the verdict.
State v. Garza, 216 Ariz. 56, 61 n.1, 163 P.3d 1006, 1011 n.1
(2007).
2
When the autopsy was performed on July 19, Curtis’s body was in
an advanced state of decomposition consistent with her having
died three to four days earlier.
¶5 Police collected scrapings of a blood smear on an
upstairs bedroom door frame and a blood drop on the bathroom
floor near Curtis’s body. An electrical cord, cut from a lamp
in the upstairs bedroom, was in the upstairs bathroom sink.
Fingerprints were found on receipts in the downstairs bathroom;
a fingerprint and palm print were on the upstairs bathroom’s
sink counter. Curtis’s partially eaten sandwich and drink were
on the stairway landing. On the kitchen counter, police found
Curtis’s purse without any cash inside and with checks missing
from a checkbook. Police also found a discarded beverage can in
Curtis’s truck.
¶6 Curtis’s murder remained unsolved for several years.
In 2003, a detective re-opened the investigation and submitted
evidence for DNA testing. A DNA profile obtained from the
beverage can matched Snelling’s profile, which had been obtained
in an unrelated matter in 1999. Snelling’s profile also matched
the profiles obtained from the blood smear and blood drop, and
his DNA was likely present on the electrical cord. In addition,
Snelling’s prints matched the prints found at the townhouse, and
he had lived in the same complex as Curtis at the time of the
murder.
3
¶7 After his arrest, Snelling was incarcerated in the
same jail pod as Jerry Rader and told him about having murdered
Curtis. Snelling told Rader that he had watched Curtis cleaning
the townhouse after the previous tenants moved out. He informed
Rader that he had entered Curtis’s townhouse intending to
sexually assault her, taken $1,000 from her purse, gone
upstairs, cut a cord in case he needed a weapon, surprised her
in the bathroom, and choked her to death when she screamed.
¶8 Snelling was indicted for first degree murder (both
premeditated and felony) and found guilty. During the
aggravation phase of the trial, the jurors found that Snelling
had committed the murder in an especially cruel manner, A.R.S.
§ 13-751(F)(6) (2010), but could not decide whether he had
committed the murder in expectation of pecuniary gain, § 13-
751(F)(5). The jury also could not reach a unanimous verdict on
the appropriate penalty.
¶9 A second jury was impaneled to re-try the penalty
phase. After finding no mitigation sufficiently substantial to
call for leniency, the second jury determined that Snelling
should be sentenced to death.
ISSUES ON APPEAL
I. Prosecutorial Misconduct in the Grand Jury Proceeding
¶10 Snelling claims the grand jury proceeding was tainted
by prosecutorial misconduct because the State presented no
4
evidence of the felony murder predicates of sexual assault and
attempted sexual assault.3 Snelling apparently challenges both
the prosecutor’s conduct before the grand jury and the
sufficiency of evidence for the indictment.
¶11 A defendant alleging prosecutorial misconduct in a
grand jury proceeding generally must seek relief from an adverse
trial court ruling through special action rather than waiting to
raise such issues on appeal. See State v. Verive, 128 Ariz.
570, 574-75, 627 P.2d 721, 725-26 (App. 1981); see also State v.
Gortarez, 141 Ariz. 254, 258, 686 P.2d 1224, 1228 (1984)
(discussing the denial of a motion for a redetermination of
probable cause). “The one exception to this rule is when a
defendant has had to stand trial on an indictment which the
government knew was based partially on perjured, material
testimony.” Gortarez, 141 Ariz. at 258, 686 P.2d at 1228.
Because Snelling does not identify any false statement or
perjured testimony before the grand jury, he is precluded from
challenging the prosecutor’s conduct during the grand jury
proceeding.
¶12 Nor may Snelling challenge on appeal the sufficiency
of the evidence presented to the grand jury on the felony murder
predicates. “Courts generally do not concern themselves with
3
Burglary was also alleged as a predicate offense for felony
murder.
5
the evidence underlying a grand jury indictment.” State v.
Jessen, 130 Ariz. 1, 5, 633 P.2d 410, 414 (1981); see Crimmins
v. Superior Court, 137 Ariz. 39, 42-43, 668 P.2d 882, 885-86
(1983) (a trial court is prohibited from “considering an attack
on an indictment based on the nature, weight or sufficiency of
the evidence presented to the grand jury”). Moreover, “a
conviction precludes review of the finding of probable cause
made by a grand jury.” State v. Moody, 208 Ariz. 424, 440 n.3
¶ 31, 94 P.3d 1119, 1135 n.3 (2004).
II. Qualification of Defense Counsel
¶13 Snelling argues he was denied his right to counsel and
due process because the trial court did not expressly determine
that a qualified capital defense team had been appointed for
him. He contends the court’s failure to comply with Arizona
Rules of Criminal Procedure 6.5 and 6.8 was structural error.
¶14 Arizona Rule of Criminal Procedure 6.8(b) sets forth
the qualifications for lead and co-counsel in capital cases, and
Rule 6.5(a) requires the trial court to enter an order whenever
counsel is appointed. Neither rule, however, mandates the court
to make a recorded finding that a capital defendant has been
appointed qualified counsel. To the extent Snelling challenges
his counsels’ effectiveness, he must raise any such claim in a
petition for post-conviction relief under Arizona Rule of
Criminal Procedure 32. State v. Spreitz, 202 Ariz. 1, 3 ¶ 9, 39
6
P.3d 525, 527 (2002) (holding that “ineffective assistance of
counsel claims are to be brought in Rule 32 proceedings”).
III. Admission of Crime Scene and Autopsy Photographs
¶15 During the guilt phase, the trial court admitted crime
scene and autopsy photographs over Snelling’s objection. We
review a trial court’s decision to admit photographs for abuse
of discretion. State v. Anderson, 210 Ariz. 327, 339 ¶ 39, 111
P.3d 369, 381 (2005).
¶16 “The admissibility of a potentially inflammatory
photograph is determined by examining (1) the relevance of the
photograph, (2) its tendency to incite or inflame the jury, and
(3) the probative value versus potential to cause unfair
prejudice.” State v. Lynch, ___ P.3d ___, 2010 WL 2485248, at
*4 ¶ 30 (Ariz. June 22, 2010) (citation and internal quotation
marks omitted). Photographs may not be admitted “for the sole
purpose of inflaming the jury,” State v. Gerlaugh, 134 Ariz.
164, 169, 654 P.2d 800, 805 (1982), but may be introduced “to
show the nature and location of the fatal injury, to help
determine the degree or atrociousness of the crime, to
corroborate state witnesses, to illustrate or explain testimony,
and to corroborate the state’s theory of how and why the
homicide was committed,” State v. Chapple, 135 Ariz. 281, 288,
660 P.2d 1208, 1215 (1983).
¶17 Although several photos in this case show skin
7
slippage and discoloration, “[e]ach photograph conveys
different, highly relevant information about the crime.” State
v. Rienhardt, 190 Ariz. 579, 584, 951 P.2d 454, 459 (1997). The
photographs provide information about the cause and manner of
Curtis’s death and her body’s state of decomposition, and were
used by the medical examiner to explain Curtis’s injuries and to
assist the jury in understanding the testimony. Therefore, the
trial court did not abuse its discretion in admitting the
photographs after expressly finding that their probative value
was not substantially outweighed by any prejudicial effect. See
Ariz. R. Evid. 403.
IV. Medical Examiner’s Testimony
¶18 Snelling contends the medical examiner’s testimony in
2007 during the guilt phase was hearsay and violated his
confrontation rights because she had not performed Curtis’s
autopsy in 1996 or authored the autopsy report. We review a
trial court’s admission of expert testimony for abuse of
discretion. State v. Davolt, 207 Ariz. 191, 210 ¶ 69, 84 P.3d
456, 475 (2004). “Evidentiary rulings that implicate the
Confrontation Clause, however, are reviewed de novo.” State v.
Ellison, 213 Ariz. 116, 129 ¶ 42, 140 P.3d 899, 912 (2006).
¶19 When considering a similar argument in State v. Smith,
we found that “[e]xpert testimony that discusses reports and
opinions of another is admissible . . . if the expert reasonably
8
relied on these matters in reaching his own conclusion.” 215
Ariz. 221, 228 ¶ 23, 159 P.3d 531, 538 (2007).
Facts or data underlying the testifying expert’s
opinion are admissible for the limited purpose of
showing the basis of that opinion, not to prove the
truth of the matter asserted. Testimony not admitted
to prove the truth of the matter asserted by an out-
of-court declarant is not hearsay and does not violate
the confrontation clause.
Id. at 229 ¶ 26, 159 P.3d at 539 (quoting State v. Rogovich, 188
Ariz. 38, 42, 932 P.2d 794, 798 (1997)). The expert, however,
cannot “act as a conduit for another non-testifying expert’s
opinion.” Id. at 228 ¶ 23, 159 P.3d at 538 (citation and
internal quotation marks omitted).
¶20 Here, the medical examiner testified that she formed
her own opinions after reading the report on Curtis’s autopsy.
Although she referred to the report’s findings, she used this
information, as well as the photographs of the victim’s body, to
reach her own conclusions about Curtis’s injuries and the cause
of her death. Snelling confronted and cross-examined the
medical examiner about her opinions. See Rogovich, 188 Ariz. at
42, 932 P.2d at 798 (stating “the defendant’s confrontation
right extends to the testifying expert witness, not to those who
do not testify but whose findings or research merely form the
basis for the witness’s testimony”). Therefore, the medical
examiner’s testimony was not hearsay and did not violate
Snelling’s confrontation rights.
9
¶21 Snelling cites cases such as Melendez-Diaz v.
Massachusetts, 129 S. Ct. 2527, 2532 (2009), and Johnson v.
State, 929 So. 2d 4, 7 (Fla. Dist. Ct. App. 2005), which
involved admission of documents that were found to be
testimonial. Even if we assume the autopsy report was
testimonial, however, it was not admitted into evidence and,
thus, no Confrontation Clause violation occurred.
INDEPENDENT REVIEW
¶22 Because the murder occurred before August 1, 2002,
this Court independently reviews the aggravation, mitigation,
and propriety of the death sentence.4 A.R.S. § 13-755(A) (2010);
2002 Ariz. Sess. Laws, ch. 1, § 7 (5th Spec. Sess.).
¶23 The first jury found only one aggravating factor –
that Snelling murdered Curtis in an especially cruel manner. We
review the record de novo to determine whether the evidence
supports that finding beyond a reasonable doubt. Anderson, 210
Ariz. at 354 ¶ 119, 111 P.3d at 396 (citing former § 13-703.04).
Because the first jury found the aggravator, we limit our review
to the evidence presented to that jury in the guilt and
aggravation phases, without considering evidence presented to
4
Snelling argues there was insufficient evidence to support
the jury’s finding of the (F)(6) aggravator. This claim,
however, is subsumed in our independent review of the
aggravating factor. See State v. Andriano, 215 Ariz. 497, 506
n.5 ¶ 41, 161 P.3d 540, 549 n.5 (2007).
10
the second penalty phase jury. See Ellison, 213 Ariz. at 142
n.19 ¶ 121, 140 P.3d at 925 n.19 (declining on independent
review to consider evidence that was not presented to the
sentencing jury); cf. A.R.S. § 13-752(K) (2010) (“The new jury
shall not retry the issue of the defendant’s guilt or the issue
regarding any of the aggravating circumstances that the first
jury found by unanimous verdict to be proved or not proved.”).
¶24 The United States Supreme Court has determined that
Arizona’s (F)(6) aggravator is facially vague but may be
remedied by judicial constructions limiting its application to
specified circumstances. Walton v. Arizona, 497 U.S. 639, 654
(1990), overruled on other grounds by Ring v. Arizona (Ring II),
536 U.S. 584, 589 (2002); see also Arave v. Creech, 507 U.S.
463, 474 (1993) (“If the sentencer fairly could conclude that an
aggravating circumstance applies to every defendant eligible for
the death penalty, the circumstance is constitutionally
infirm.”).5
¶25 Our case law has so limited the (F)(6) aggravator. We
have held that a murder is especially cruel only if the state
proves beyond a reasonable doubt that “the victim consciously
5
Because Arizona now requires jury findings of aggravation
and jury sentencing in capital cases, A.R.S. § 13-752(E), (H),
the facial vagueness of the (F)(6) aggravator “may be remedied
with appropriate narrowing instructions,” State v. Tucker, 215
Ariz. 298, 310 ¶ 28, 160 P.3d 177, 189 (2007).
11
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). Although “[t]he victim . . . does not need
to be conscious for each and every wound inflicted,” State v.
Sansing, 206 Ariz. 232, 235 ¶ 7, 77 P.3d 30, 33 (2003) (citation
and internal quotation marks omitted), the (F)(6) aggravator
cannot be found if the evidence on consciousness is
inconclusive, State v. Fulminante, 161 Ariz. 237, 255, 778 P.2d
602, 620 (1988).
¶26 In addition, we have been “unwilling to say that all
stranglings are per se cruel.” State v. Schackart, 190 Ariz.
238, 248, 947 P.2d 315, 325 (1997). Rather, to establish that a
murder by strangulation or any other means is especially cruel,
the state must prove that the particular victim consciously
suffered mental anguish or physical pain before death. See
Ellison, 213 Ariz. at 141-42 ¶ 119, 140 P.3d at 924-25
(strangulation); State v. Ramirez, 178 Ariz. 116, 129, 871 P.2d
237, 250 (1994) (stabbing).
I. Mental Anguish
¶27 “Mental anguish includes the victim’s uncertainty as
to her ultimate fate.” State v. Lavers, 168 Ariz. 376, 392, 814
P.2d 333, 349 (1991). In evaluating uncertainty, “[t]he length
of time during which a victim contemplates her fate affects
12
whether the victim’s mental anguish is sufficient to bring a
murder within that group of murders that is especially cruel.”
State v. Prince, 206 Ariz. 24, 27 ¶ 8, 75 P.3d 114, 117 (2003);
see State v. Soto-Fong, 187 Ariz. 186, 204-05, 928 P.2d 610,
628-29 (1996) (finding the time of contemplation insufficient
when the victims were killed in rapid succession). Evidence of
a victim’s pleas or defensive injuries can show that she
suffered mental anguish. Sansing, 206 Ariz. at 236 ¶ 10, 77
P.3d at 34. “The entire murder transaction, not just the final
act, may be considered.” State v. McCray, 218 Ariz. 252, 259
¶ 31, 183 P.3d 503, 510 (2008).
¶28 The record contains no evidence that Curtis
contemplated her fate for very long. Based on what Snelling had
told him, Rader testified in the guilt phase that Curtis yelled
“Who’s there?” around the same time that Snelling was cutting
the cord in the upstairs bedroom. According to Rader, Curtis
opened the bathroom door, saw Snelling, and “got belligerent and
yelled” when “he told her to just shut up and do what he said.”
Snelling then strangled her with the cord “to shut her up” and
“freaked” when “she fell down.”
¶29 Curtis likely was terrified when she heard a noise,
opened her bathroom door, and saw Snelling holding an electrical
cord. And, unlike the victim in State v. Jimenez, 165 Ariz.
444, 454, 799 P.2d 785, 795 (1990), she was in her own house and
13
did not know her attacker. But the clear inference from Rader’s
testimony is that very little time elapsed between Curtis’s
initially seeing Snelling and the murder. Cf. Prince, 206 Ariz.
at 27 n.5 & ¶ 8, 75 P.3d at 117 n.5 (listing cases that
“involved a longer, more definite period of captivity”).
¶30 The record also does not show that Curtis had any
defensive injuries. Cf. State v. Van Adams, 194 Ariz. 408, 421
¶ 45, 984 P.2d 16, 29 (1999) (noting “[i]njuries to [a
strangulation victim’s] hands and wrists signify that she
struggled and attempted to defend herself”). The medical
examiner, when questioned about the possibility of sexual
assault, testified that Curtis did not have any obvious
lacerations or bruises; and she discussed only the single
ligature mark on Curtis’s neck when asked about external
physical injuries.
¶31 In addition, there was no evidence that Curtis
struggled with Snelling or pleaded for her life. Curtis had
only a single ligature mark, indicating the ligature was not
readjusted once placed on her neck. Cf. State v. Stokley, 182
Ariz. 505, 517, 898 P.2d 454, 466 (1995) (noting “evidence of
repetitive gripping of [the strangulation victim’s] neck” as one
possible indicator of a struggle). The small bathroom in which
the murder occurred was undisturbed; Curtis’s clothes were
neatly stacked on the toilet seat, and cleaning supplies were
14
lined up on the toilet tank. Cf. State v. Walden, 183 Ariz.
595, 618, 905 P.2d 974, 997 (1995) (finding signs of a struggle
when victim’s hands were intertwined in the electrical cord used
to strangle her and blood was sprayed around the room),
overruled on other grounds by State v. Ives, 187 Ariz. 102, 108,
927 P.2d 762, 768 (1996); State v. Amaya-Ruiz, 166 Ariz. 152,
177-78, 800 P.2d 1260, 1285-86 (1990) (noting as evidence
supporting cruelty that “[t]he crime scene exhibited signs of a
violent and bloody struggle”).
¶32 Absent any evidence of defensive injuries, a struggle,
or pleas for help, the record shows only that Curtis was
suddenly confronted by an assailant who promptly strangled her
to death. “It is not inherently ‘cruel’ to murder a victim
quickly and by surprise.” Jimenez, 165 Ariz. at 454, 799 P.2d
at 795. On this record, we cannot find beyond a reasonable
doubt that, before her death, Curtis experienced the mental
anguish required by our prior decisions.
II. Physical Pain
¶33 Strangulations are not per se physically cruel absent
specific evidence that the victim consciously suffered physical
pain. Ellison, 213 Ariz. at 142 n.19 ¶ 121, 140 P.3d at 925
n.19 (citing Schackart, 190 Ariz. at 248, 947 P.2d at 325). Yet
“[t]his Court has held that a period of suffering from eighteen
seconds to two to three minutes can be enough to warrant
15
application of the cruelty aggravator.” Schackart, 190 Ariz. at
248, 947 P.2d at 325.
¶34 The State presented no evidence of physical suffering.
The medical examiner did not testify that victims in general
always experience, or that Curtis in particular experienced,
pain during strangulation.6 Nor did she mention any other
injuries unrelated to the strangulation itself that might have
caused Curtis pain. Cf. State v. Brewer, 170 Ariz. 486, 501-02,
826 P.2d 783, 798-99 (1992) (finding the strangulation victim
suffered physical pain from the injuries to her eye and the
numerous bruises and abrasions on her body).
¶35 The record also does not support a finding of physical
pain relating to a sexual assault. Cf. Sansing, 206 Ariz. at
236 ¶ 11, 77 P.3d at 34 (finding “[t]he evidence of the
[victim’s] rape independently establishes both mental and
physical suffering”). Although found naked, Curtis apparently
disrobed voluntarily to take a shower in the upstairs bathroom.
Neither semen nor sperm was found on the swabs collected in the
sexual assault kit. The medical examiner testified that Curtis
had no “obvious lacerations” or “gross bruises.” The
6
The medical examiner testified that Curtis’s thyroid
cartilage was fractured during strangulation, but noted that
this cartilage, like the hyoid bone, is “easily fractured.” In
addition, she did not describe the nature or extent of any pain
associated with that internal injury.
16
positioning of Curtis’s body on its side when found also did not
indicate a sexual assault. And the trial court directed a
verdict against the State on the sexual assault predicate for
the felony murder charge (but not the attempted sexual assault
predicate) after determining that the evidence did not support
such a finding.
¶36 In addition, the evidence on whether Curtis
consciously experienced physical pain was inconclusive. Based
on unidentified reports in medical literature, the medical
examiner testified that a strangulation victim generally remains
conscious for ten to one hundred seconds if the ligature totally
encircles the neck and the victim remains passive. She further
testified that such victims might remain conscious for minutes
if the ligature does not completely encircle the neck and the
victim fights. No other evidence, however, indicated whether,
or for how long, Curtis was conscious while being strangled.
Cf. State v. Morris, 215 Ariz. 324, 341 ¶ 79, 160 P.3d 203, 220
(2007) (finding cruelty when the state presented evidence of a
struggle in addition to expert testimony that strangulation
victims remain conscious and experience pain for some time).
And even if Curtis was conscious for some time during the
strangulation, that alone does not support a finding of physical
pain.
¶37 Although one might reasonably suspect that any
17
strangulation victim must experience physical pain, speculation
cannot support a finding of especial cruelty when, as here, the
record contains no evidence of the physical pain required for an
(F)(6) finding. Cf. State v. Atwood, 171 Ariz. 576, 606, 832
P.2d 593, 623 (1992) (noting that “[w]e will not speculate on
appeal about ‘what might have been’ or ‘what could have
happened’”), disapproved on other grounds by State v. Nordstrom,
200 Ariz. 229, 241 ¶ 25, 25 P.3d 717, 729 (2001). Absent
evidence of the pain experienced during strangulation or other
bruises, abrasions, or wounds on the victim, and lacking any
proof of a struggle, we cannot find beyond a reasonable doubt
that Curtis consciously suffered physical pain before or during
the strangulation. See State v. Poland, 144 Ariz. 388, 405, 698
P.2d 183, 200 (1985) (finding no evidence that the victims
suffered because “[t]he autopsy revealed no evidence that they
had been bound or injured prior to being placed in the water,
and there was no sign of a struggle”); cf. State v. Newell, 212
Ariz. 389, 406 ¶ 85, 132 P.3d 833, 850 (2006) (finding cruelty
in a ligature strangulation case when the evidence showed
“bruising that occurred at or near the time of death consistent
with grasping [the victim’s] arms, sexual assault-related
bruises and injuries, testimony that it normally takes two
minutes for death by asphyxiation to occur, and marks showing
that [the victim] was grasping at the ligature”).
18
¶38 “The death penalty may be imposed only if the state
has proved the existence of at least one aggravating factor
beyond a reasonable doubt,” Ramirez, 178 Ariz. at 128, 871 P.2d
at 249, and we “will reduce a death penalty to life imprisonment
where the evidence of aggravating factors is inconclusive,”
State v. Jordan, 126 Ariz. 283, 286, 614 P.2d 825, 828 (1980).7
CONCLUSION
¶39 We affirm Snelling’s conviction for first degree
murder. On independent review, however, we find the record
insufficient to support the (F)(6) aggravator because the
evidence does not prove beyond a reasonable doubt that Curtis
consciously suffered mental anguish or physical pain sufficient
to render the murder especially cruel. Therefore, we vacate
Snelling’s death sentence and sentence him to imprisonment for
natural life. A.R.S. § 13-703(A) (1993) (currently § 13-751(A))
(providing that a defendant guilty of first degree murder can be
sentenced to death, natural life imprisonment, or life
imprisonment with the possibility of release in twenty-five
years); cf. State v. Wallace, 219 Ariz. 1, 8 ¶ 38, 191 P.3d 164,
171 (2008) (commuting one of the defendant’s death sentences to
7
Because we do not find sufficient evidence to support the
sole aggravator on our independent review, we do not consider
Snelling’s mitigation evidence. See A.R.S. § 13-752(F)-(G)
(providing that the penalty phase at which mitigation evidence
may be presented is held only after one or more aggravating
circumstances has been found).
19
life imprisonment, in accordance with sentencing statute in
effect at the time of his crimes, after concluding that “the
sole aggravating circumstance alleged should not have been
submitted to the jury for [that] murder”).8
_____________________________________
A. John Pelander, Justice
CONCURRING:
_____________________________________
Rebecca White Berch, Chief Justice
_____________________________________
Andrew D. Hurwitz, Vice Chief Justice
_____________________________________
Michael D. Ryan, Justice
_____________________________________
W. Scott Bales, Justice
8
Given our disposition of this matter, we need not address
other issues raised by Snelling concerning the aggravation and
penalty phases of the trial. Nor need we list the twenty-nine
issues concerning the death penalty raised to avoid federal
preclusion.
20