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¶23 McKinley fails to establish error, fundamental or otherwise, because “no specific finding of dangerousness is required where an element of the offense charged requires proof of the dangerous nature of the felony.” –38 (1984) (reasoning that a jury’s dangerousness determination may be made either explicitly by special verdict or implicitly when dangerousness is “a necessary element in the felony for which the appellant was originally convicted.”).

(“[N]o specific finding of dangerousness is required where an element of the offense charged requires proof of the dangerous nature of the felony.”); (dangerousness finding implicit in guilty verdict for aggravated assault using a deadly weapon or dangerous i

State conducted pretrial identification procedures done in an unduly suggestive manner “may unfairly cause a witness to misidentify the defendant, and then to repeat the misidentification at trial.”

(determining that the first factor weighed in favor of reliability where the witness “observed the suspect face to face in the well-lighted store for approximately three minutes”); State v. (Bernard) Smith, (determining that the witness viewing the suspect walk across a parking lot weighed in favor of reliability).

¶10 “If [we determine] that the pretrial identification procedure was unduly suggestive, [we] must next address the question whether the identification [was] nevertheless reliable.” - 97 (1985).

The death penalty is reserved for “those who stand out from the norm of first degree murderers.” ().

d if Appellant used a dangerous instrument, something that was “readily capable of causing death or serious physical injury.” ¶19 If an element of the offense charged requires proof of the dangerous nature of the felony, a jury is not required to make a separate finding of “dangerousness.” ¶ 17, (-99, -97 (1985)).

the defendant knew or should have known that the victim would suffer.’” 5 (1985).

The primary concern arising from that scenario is that “[u]nduly suggestive pretrial [identification] procedures may unfairly cause a witness to misidentify the defendant, and then to repeat the misidentification at trial.” see also Simmons v. United States, 390 U.S. 377, 383-84 (1968) (“Regardless of how the initial misidentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actually seen, reducing the trustworthines

For example, -99 , -97 (1985) the court determined that a guilty verdict for armed robbery necessarily includes a jury finding that the offense was dangerous because armed robbery can only be committed when one uses a “deadly weapon” or “dangerous instrument.” “Thus, no specific finding of dangerousness is req

or the background of the murderer sets him apart from the usual first degree murderer.”)

(finding no cruelty because gunshot to the head could not reasonably be foreseen to cause suffering).

(finding no cruelty because gunshot to the head could not reasonably be foreseen to cause suffering).

See, , (defendant killed a convenience store clerk to gain access to the cash register; court found “[u]nder the facts of this case (but certainly not of all robberies) the commission of the killing necessarily carried with it the expectation of pecuniary gain”)

(a lack of diversion at the crime scene bolsters reliability of witness identification).

“Unduly suggestive pretrial procedures may unfairly cause a witness to misidentify the defendant, and then to repeat the misidentification at trial.”

-02 , -300 (1985) (prior armed robbery convictions in Yuma, Arizona, were properly considered as an (F)(1) aggravating circumstance).

State v. Smith (Bernard)

We have repeatedly stated that “the death penalty [should be] reserved for those who stand out from the norm of first degree murderers either because of the act committed or because of the defendant’s background.”