State v. Wallace

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-05-0149-AP
Appellee, )
) Pima County
v. ) Superior Court
) No. CR-12590
JAMES GRANVIL WALLACE, )
)
Appellant. )
) O P I N I O N
_________________________________ )

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

DEATH SENTENCES VACATED; REMANDED FOR RESENTENCING PROCEEDINGS
ON TWO COUNTS; LIFE SENTENCE IMPOSED ON ONE COUNT
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Capital Litigation Section
Lacey Stover Gard, Assistant Attorney General Tucson
Attorneys for State of Arizona

ARIZONA CAPITAL REPRESENTATION PROJECT Tucson
By Jennifer Bedier

And

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

H U R W I T Z, Justice

¶1 James Granvil Wallace pleaded guilty to three counts

of first-degree murder and was sentenced to death on each count.

This is an automatic appeal from those sentences. See Ariz. R.
Crim. P. 31.2(b). We have jurisdiction under Article 6, Section

5(3) of the Arizona Constitution and A.R.S. § 13-4031 (2001).

I.

¶2 Wallace lived with Susan Insalaco, his girlfriend, and

her two children, sixteen-year-old Anna and twelve-year-old

Gabriel, in Susan’s home in Pima County. During their on-again-

off-again relationship, Wallace and Susan fought about his

drinking and drug use. On January 31, 1984, Wallace came home

drunk, and Susan told him to move out. The next day, Susan left

for work, and Anna and Gabriel left for school. Wallace woke up

around 10:00 a.m., but did not leave the house.

¶3 When Anna returned from school around 2:45 p.m.,

Wallace was hiding behind the front door with a small wooden

baseball bat. He struck Anna in the head from behind, and she

fell to the ground, but continued breathing and moaning. He

struck her in the head ten to twelve more times. Anna was still

alive; Wallace then dragged her into the bathroom and hit her

until the bat broke. He then drove the broken bat into her

throat until the bat hit the floor.

¶4 Wallace got a pipe wrench to kill Gabriel because he

“didn’t want him to suffer like [Anna].” Gabriel arrived around

3:00 p.m. and walked into his bedroom. Wallace followed and hit

Gabriel in the head with the wrench. Gabriel fell to the floor,

and Wallace hit him in the head ten to twelve more times.

2
¶5 After killing Gabriel, Wallace retrieved Susan’s .22-

caliber handgun from a closet and loaded it in order to commit

suicide, but could not bring himself to do so. Susan came home

from work around 5:00 p.m. After she set groceries down in the

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

fell, and Wallace hit her three or four more times. Wallace

told the police that he did not use the gun to kill Susan

because the neighbors might hear the noise.

¶6 Wallace grabbed some clothing and took about ten

dollars from Susan’s purse. He then drove to a friend’s

apartment, where he spent the night. Wallace told the friend

about the murders the next morning, February 2, 1984.

¶7 Wallace then called the Tucson police and reported, “I

just killed three people and I want you to come get me.” The

police picked up Wallace outside the friend’s apartment shortly

thereafter. In a series of statements, Wallace admitted to the

murders, but could not explain why he committed them.

II.

¶8 Wallace pleaded guilty to three counts of first-degree

murder and two counts of armed robbery. In 1985, a superior

court judge found that each murder was committed in an

especially heinous, cruel, or depraved manner. A.R.S. § 13-

3
703(F)(6) (1984).1 He also found that Susan was murdered for

pecuniary gain. A.R.S. § 13-703(F)(5). The judge found one

mitigating circumstance, “genuine remorse,” A.R.S. § 13-703(G),

but concluded it was not sufficiently substantial to call for

leniency and sentenced Wallace to death for each murder.

Wallace received concurrent twenty-one-year sentences for the

armed robberies.

¶9 On appeal, this Court vacated the armed robbery

convictions, State v. Wallace (Wallace I), 151 Ariz. 362, 366,

728 P.2d 232, 236 (1986), and set aside the pecuniary gain

aggravator, id. at 368, 728 P.2d at 238. The Court also found

that the cruelty prong of the (F)(6) aggravator had not been

established, but held that the murders were gratuitously violent

and therefore especially heinous and depraved. Id. at 367, 728

P.2d at 237. The death sentences for the murders of Anna and

Gabriel were affirmed; the case was remanded to the superior

court for resentencing for Susan’s murder. Id. at 370, 728 P.2d

at 240.

¶10 On remand, the court again sentenced Wallace to death

for Susan’s murder. Wallace filed a petition for post-

conviction relief, alleging, among other things, ineffective

1
We cite to statutes in effect at the time Wallace committed
the crimes unless otherwise indicated.
4
assistance of counsel. Ariz. R. Crim. P. 32. The trial court

dismissed the Rule 32 petition.

¶11 The direct appeal of the death sentence for Susan’s

murder was consolidated with review of the denial of Rule 32

relief. State v. Wallace (Wallace II), 160 Ariz. 424, 425, 773

P.2d 983, 984 (1989). This Court upheld the dismissal of the

Rule 32 petition, id. at 426, 773 P.2d at 985, and affirmed the

death sentence, id. at 428, 773 P.2d at 987.

¶12 Wallace filed a petition for a writ of habeas corpus

in federal district court, which denied relief. On appeal, the

Ninth Circuit remanded for an evidentiary hearing, holding that

Wallace had made a prima facie showing of ineffective assistance

of counsel at the penalty phase of his sentencing. Wallace v.

Stewart (Wallace III), 184 F.3d 1112, 1117-18 (9th Cir. 1999).

On remand, the district court found that Wallace had received

ineffective assistance of counsel and ordered new sentencing

proceedings.

¶13 A sentencing trial was held before a jury in March

2005.2 The jury found that Wallace committed the murders in an

especially heinous and depraved manner and that evidence of

2
In the wake of Ring v. Arizona, 536 U.S. 584 (2002),
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, 204 Ariz. 534, 545 ¶ 13, 65
P.3d 915, 926 (2003).

5
mitigation was insufficient to warrant leniency. He was again

sentenced to death on each of the three counts.

III.

¶14 Wallace raises a number of issues on appeal. We focus

initially on his contention that the superior court erred in

instructing the jury on gratuitous violence.

A.

¶15 In the aggravation phase, the jury was instructed,

over Wallace’s objection, that “[i]n deciding whether the

defendant inflicted gratuitous violence, you may consider

whether the defendant had available less violent alternatives to

cause death.” We determine de novo whether a jury instruction

correctly states the law. State v. Tucker, 215 Ariz. 298, 310

¶ 27, 160 P.3d 177, 189 (2007).

1.

¶16 In Wallace I, this Court said,

We believe . . . that [Wallace’s] actions clearly
amount to “gratuitous violence.” Had defendant’s
intent been merely to kill these people, less violent
alternatives were readily available to him.
Specifically, defendant admits to having had a loaded
gun with him that afternoon. He deliberately chose
not to use it, however, because the noise would alert
neighbors.

151 Ariz. at 367-68, 728 P.2d at 237-38 (internal citation

omitted). This language was repeated virtually verbatim in

Wallace II. 160 Ariz. at 427-28, 773 P.2d at 986-87.

6
¶17 Only one Arizona case other than Wallace I and II

directly addresses whether gratuitous violence can be premised

on the availability of a less violent means of causing death.

In State v. Styers, the prosecution alleged that the murder was

gratuitously violent because the defendant used hypervelocity

bullets. 177 Ariz. 104, 115, 865 P.2d 765, 776 (1993). This

Court rejected the argument, “find[ing] no evidence that

defendant used these particular bullets because he wanted or

intended to inflict greater damage to the victim.” Id. Thus,

no case other than Wallace I and II has relied upon the less

violent means theory to support a finding of gratuitous

violence.3

2.

¶18 The instruction in this case allowed the jury to find

gratuitous violence simply because a less violent means of

murder was in some way “available.” The instruction did not

require proof that the defendant intentionally chose one murder

3
In State v. Rossi, in finding a murder especially heinous
and depraved, this Court noted that the defendant “used special
bullets which he knew were designed to inflict greater tissue
damage on a human body.” 146 Ariz. 359, 365, 706 P.2d 371, 377
(1985). The Court did not indicate in that case, however, that
the (F)(6) aggravator was premised on gratuitous violence.
Rather, the opinion noted that the defendant later gave three of
the spent bullets to a friend and bragged about the murder, id.,
facts that would seem more relevant to the issue of relishing.
See State v. Gretzler, 135 Ariz. 42, 52, 659 P.2d 1, 11 (1983)
(stating that a defendant’s relishing of the murder can support
a finding that it was especially heinous or depraved).
7
weapon over another. Thus, the jury could have found the (F)(6)

aggravator because the gun was in the house at the time the

victims were murdered, without regard to whether Wallace thought

about using it. We have recently emphasized that “[h]einousness

and depravity refer to the mental state and attitude of the

perpetrator.” State v. Bocharski, ___ Ariz. ___, ___ ¶ 83, ___

P.3d ___, ___, 2008 WL 3166304 (Aug. 8, 2008) (quoting State v.

Jones, 205 Ariz. 445, 449 ¶ 15, 72 P.3d 1264, 1268 (2003)).

This state of mind cannot be established without proof that the

defendant at least considered and then rejected the “less

violent” alternative. The jury here was not so instructed.

¶19 Moreover, the instruction given below did not require

that the defendant intend to inflict greater violence by

forgoing the use of an alternative weapon. We have long

stressed that “the statutory concepts of heinous and depraved

involve a killer’s vile state of mind at the time of the

murder.” State v. Gretzler, 135 Ariz. 42, 51, 659 P.2d 1, 10

(1983). The requirement in Styers that the defendant must

intend to inflict greater violence by intentionally choosing one

weapon over another is aimed at proof of precisely such a state

of mind. The instruction here, in contrast, would allow a

finding of the (F)(6) aggravator without such a showing and thus

was erroneous under our case law defining gratuitous violence.

8
 3.

¶20 Because Wallace objected to the erroneous instruction,

we review for harmless error. State v. Henderson, 210 Ariz.

561, 567 ¶ 18, 115 P.3d 601, 607 (2005). Under this standard,

the State must “prove beyond a reasonable doubt that the error

did not contribute to or affect the verdict.” Id.

¶21 The State has not met this burden. The challenged

instruction played a significant role in the State’s closing

argument and rebuttal. The prosecutor repeatedly focused on the

instruction, asking the jury to find gratuitous violence because

Wallace could have killed each victim with “[o]ne shot to the

head.” See State v. Anthony, ___ Ariz. ___, ___ ¶ 40, ___ P.3d

___, ___, 2008 WL 2875341 (July 28, 2008) (declining to find

harmless error when allegation of prior bad act was repeated

theme of closing).

¶22 Nor has the State demonstrated beyond a reasonable

doubt that the challenged instruction did not affect the jury

verdicts. The State presented no evidence that Wallace thought

about using the gun to murder Anna or Gabriel, let alone that he

chose other weapons in order to inflict greater injury upon

them. Thus, under the Styers standard, the challenged

instruction was prejudicial.

9
¶23 As to Susan, Wallace admitted that he considered using

the gun, but said he rejected it not to inflict greater injury,

but rather to avoid alerting neighbors. Thus, a jury could have

concluded that Wallace did not intend to cause greater injury by

using the pipe wrench, even if that were the end result. Under

Styers, we therefore cannot find the error harmless. See State

v. Ring, 204 Ariz. 534, 560 ¶ 79, 65 P.3d 915, 941 (2003)

(defining harmless error as “those instances in which no

reasonable jury could find that the state failed to prove [the

relevant aggravating circumstance] beyond a reasonable doubt”).

4.

¶24 In any event, we believe that a “less violent

alternative” instruction is not appropriate in gratuitous

violence cases. The determination of whether one potential

murder weapon is “less violent” than another is fraught with

conceptual peril; the violence that attends a murder committed

with any particular modality usually depends on the manner in

which the weapon is used rather than the nature of the weapon.

It is not clear, for example, whether a single blow to the head

with a pipe wrench or a baseball bat is more or less violent

than a gunshot. The essential issue in gratuitous violence

cases is whether “the defendant continued to inflict violence

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

occurred.” Bocharski, ___ Ariz. at ___ ¶ 87, ___ P.3d at ___.

10
The defendant’s use of a particular weapon over another

available alternative does not establish this state of mind.

5.

¶25 Each of Wallace’s death sentences was based on the

same aggravating circumstance - that he committed the murders in

an especially heinous and depraved manner. A.R.S. § 13-

703(F)(6).4 The State alleged three factors to support its

allegation that the murders were especially heinous or depraved:

gratuitous violence, the senselessness of the crimes, and the

helplessness of the victims. See Gretzler, 135 Ariz. at 52, 659

P.2d at 11 (listing factors that establish heinousness and

depravity). But senselessness and helplessness, without more,

generally do not render a killing especially heinous or

depraved. E.g., State v. Murdaugh, 209 Ariz. 19, 33 ¶ 67, 97

P.3d 844, 858 (2004); State v. Cañez, 202 Ariz. 133, 162 ¶ 109,

4
Were the crimes committed today, the multiple homicides
aggravator could also be alleged for each murder. See A.R.S.
§ 13-703(F)(8) (Supp. 2007) (allowing death penalty when
“defendant has been convicted of one or more other homicides
. . . that were committed during the commission of the
offense”). The murder of Gabriel could also be aggravated
because he was less than fifteen years old when killed. See
A.R.S. § 13-703(F)(9) (Supp. 2007) (allowing death penalty when
“defendant was an adult at the time the offense was committed
. . . and the murdered person was under fifteen years of age”).
However, these aggravating circumstances were adopted by the
legislature after Wallace committed the murders, 1985 Ariz.
Sess. Laws, ch. 364, § 8 (1st Reg. Sess.); 1984 Ariz. Sess.
Laws, ch. 66, § 1 (2nd Reg. Sess.), and cannot serve in this
case to make Wallace death-eligible, State v. Correll, 148 Ariz.
468, 482, 715 P.2d 721, 735 (1986).
11
42 P.3d 564, 593 (2002); State v. Barreras, 181 Ariz. 516, 523,

892 P.2d 852, 859 (1995).5 Our conclusion that the jury was

improperly instructed on the issue of gratuitous violence

therefore requires that we vacate the three death sentences.

III.

¶26 Because the erroneous “less violent alternative”

instruction requires that we remand for resentencing, it is not

necessary for us to address Wallace’s other arguments seeking a

new sentencing proceeding. We therefore turn to Wallace’s

argument that capital sentences are not warranted because the

State failed to present sufficient evidence that the murders

were committed with gratuitous violence and thus were especially

heinous or depraved.6 See Ariz. R. Crim. P. 20(a) (requiring

trial court to “enter a judgment that an aggravating

5
Wallace does not seriously contest that the murders were
senseless and the victims helpless.
6
When this Court first considered Wallace’s sentences, it
concluded that the aggravator had been proved as to each murder.
Wallace I, 151 Ariz. at 368, 728 P.2d at 238; Wallace II, 160
Ariz. at 427-28, 773 P.2d at 986-87. But the practical effect
of the district court’s order granting a new sentencing trial
was to nullify our earlier conclusions on aggravation,
mitigation, and the propriety of the death sentences. Cf. State
v. Moody, 208 Ariz. 424, 439 ¶ 26, 94 P.3d 1119, 1134 (2004)
(stating that, for double jeopardy purposes, “[w]hen a case is
reversed for any reason but insufficient evidence, the original
conviction has been nullified and the slate wiped clean”
(quoting Bullington v. Missouri, 451 U.S. 430, 442 (1981))
(internal quotation marks omitted)).

12
circumstance was not proven if there is no substantial evidence

to warrant the allegation”).7

¶27 In reviewing a jury’s finding of an aggravating

circumstance for sufficiency of the evidence, we take the facts

in the light most favorable to the prosecution and ask whether

substantial evidence supports the verdict. See State v. Roque,

213 Ariz. 193, 218 ¶ 93, 141 P.3d 368, 393 (2006). “Substantial

evidence is such proof that reasonable persons could accept as

adequate and sufficient to support a conclusion of defendant’s

guilt beyond a reasonable doubt.” Id. (internal quotation marks

and citation omitted).

A.

¶28 Recognizing that “our prior cases have not been

entirely consistent in describing the showing needed to

establish gratuitous violence,” we attempted in Bocharski to

clarify the principles governing this theory of heinousness and

depravity. ___ Ariz. at ___ ¶ 85, ___ P.3d at ___. We stressed

that to prove gratuitous violence, the State must first show

7
For murders committed before August 1, 2002, this Court
independently reviews the trial court’s findings of aggravating
circumstances, mitigation, and the propriety of a death
sentence. A.R.S. § 13-703.04(A) (Supp. 2007). When we find no
reversible error in the aggravation phase, we often subsume
claims that the evidence was insufficient to support the finding
of an aggravator in our independent review. See, e.g., State v.
Anderson, 210 Ariz. 327, 354 ¶ 119 & n.21, 111 P.3d 369, 396 &
n.21 (2005). However, because we have vacated the three death
sentences imposed on Wallace, this is not an occasion for
independent review.
13
that the defendant “inflicted more violence than that necessary

to kill.” Id. at ___ ¶ 86, ___ P.3d at ___. Gratuitous

violence requires a specific mental state: “The state must also

show that the defendant continued to inflict violence after he

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

Id. at ___ ¶ 87, ___ P.3d at ___.

¶29 We applied these principles in Bocharski to a murder

involving twenty-four knife wounds. Id. at ___ ¶ 86, ___ P.3d

at ___. Eight of these wounds penetrated deeply into the

victim’s face and head. Id. at ___ ¶ 86, ___ P.3d at ___. The

medical examiner testified that at least one of the eight wounds

was fatal, and that the fatal wound probably occurred before

additional blows were struck. Id. at ___ ¶ 86, ___ P.3d at ___.

On that record, we concluded that Bocharski had used more

violence than was necessary to kill. Id. at ___ ¶ 86, ___ P.3d

at ___.

¶30 We were unable, however, to conclude that the State

had sufficiently proved the required mental state. Id. at ___

¶ 91, ___ P.3d at ___. We noted first that, although the

medical examiner had opined about the likely timing of the fatal

wound, the expert was unable to conclusively determine the

sequence of the wounds. Id. at ___ ¶ 88, ___ P.3d at ___.

Moreover, the medical examiner’s testimony demonstrated that the

victim was alive when each of the wounds was inflicted. Id. at

14
___ ¶ 88, ___ P.3d at ___. This “uncertainty about the timing

of the fatal wound” made it “difficult to conclude . . . that

Bocharski knew or should have known that he had already struck a

fatal wound yet continued to attack the victim.” Id. at ___

¶ 88, ___ P.3d at ___.

¶31 We also stressed in Bocharski that the knife injuries

occurred in rapid succession – “all the injuries were likely

inflicted within a minute,” id. at ___ ¶ 89, ___ P.3d at ___ –

and involved a single weapon. Id. at ___ ¶ 90, ___ P.3d at ___.

We contrasted those facts with prior decisions finding

gratuitous violence, cases involving prolonged assaults and

multiple weapons, circumstances that allowed an inference that

the defendant possessed the requisite mental state. Id. at ___

¶¶ 89-90, ___ P.3d at ___. We concluded that “[b]ecause

Bocharski used only a knife to inflict the wounds and completed

his attack very rapidly, we find it unlikely he knew or should

have known he had inflicted a fatal wound but continued

nonetheless to inflict more violence.” Id. at ___ ¶ 90, ___

P.3d at ___.

1.

¶32 Under the standard enunciated in Bocharski, we

conclude that there was sufficient evidence to submit the issue

of gratuitous violence to the jury with respect to the murder of

Anna. She was struck over the head with a baseball bat until

15
her skull was crushed. The assault began in the living room of

the home; it continued after Wallace dragged Anna into the

bathroom, where he struck her with the bat until it broke and

then shoved the remaining jagged edge through her throat.

¶33 The medical examiner testified that Anna died from

head injuries. Thus, Wallace’s final act was not necessary to

kill her. Moreover, the length and savagery of the attack would

allow a properly instructed jury to infer that Wallace either

knew or should have known that he had inflicted sufficient

violence to kill, but nonetheless continued the attack.

¶34 We reach a similar conclusion with respect to the

murder of Gabriel. The attack involved ten to twelve blows with

a pipe wrench. The result of the attack was horrific – not only

was Gabriel’s skull crushed, his brain was exposed and extruded,

and brain matter was found on the floor at the crime scene.

Although the medical examiner was unable to conclusively

determine which blow was fatal or the order of the injuries, the

nature of the attack and its results support an inference that

Wallace either knew or should have known he had struck enough

blows to kill yet continued his attack.

¶35 Whether the State can prove this aggravating

circumstance on remand beyond a reasonable doubt is not the

issue before us; we conclude only that the evidence warranted

16
submission of the (F)(6) aggravator to the jury with respect to

the murders of Anna and Gabriel.

2.

¶36 We cannot conclude, however, that the issue of

gratuitous violence was properly submitted to the jury with

respect to the murder of Susan. The attack involved four or

five blows to the head with the pipe wrench over a relatively

brief period. As in Bocharski, the blows were apparently struck

in rapid succession with the same implement that caused death.

¶37 The medical examiner, although suggesting that any of

the blows that struck Susan “might have” been fatal, was unable

to opine as to which blow was fatal, let alone whether

sufficient injury to kill had already been inflicted before the

final blow. But even if we assume that to be the case, the

evidence would not allow a jury reasonably to conclude that

Wallace possessed the requisite mental state. Although the

assault on Susan was brutal and reprehensible, it “came in an

attempt . . . to kill the victim, not to engage in violence

beyond that necessary to kill.” State v. Anderson, 210 Ariz.

327, 355 ¶ 123, 111 P.3d 369, 397 (2005). We conclude that the

State did not present sufficient evidence to prove the defendant

had the required mental state.

17
 B.

¶38 At the time Wallace murdered Susan, the penalty for

first-degree murder was “death or imprisonment . . . for life,

without possibility of parole [for] twenty-five calendar years.”

A.R.S. § 13-703(A) (1984).8 Because we have concluded that the

sole aggravating circumstance alleged should not have been

submitted to the jury for Susan’s murder, Wallace is not

eligible for the death penalty on that count, and we must reduce

his sentence to life in prison. We order that this sentence be

served consecutively to the sentences imposed on remand for the

murders of Anna and Gabriel.

IV.

¶39 For the reasons above, we (1) vacate the three death

sentences imposed on Wallace; (2) remand for new sentencing

proceedings for the murders of Anna and Gabriel; and (3) order

that Wallace be sentenced to life imprisonment pursuant to

A.R.S. § 13-703(A) (1984) for the murder of Susan, such sentence

to be served consecutively to the sentences imposed on remand

for the other two murders.

_______________________________________
Andrew D. Hurwitz, Justice

8
The current statute provides an additional sentencing
option for crimes committed after its enactment – so-called
“natural life” - under which the defendant is “not eligible for
commutation, parole, work furlough, work release or release from
confinement on any basis.” A.R.S. § 13-703(A) (Supp. 2007).
18
CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Donn Kessler, Judge∗

∗
Justice W. Scott Bales recused himself from this case.
Pursuant to Article 6, Section 3 of the Arizona Constitution,
the Honorable Donn Kessler, Judge of the Arizona Court of
Appeals, Division One, was designated to sit in this matter.
19