State v. McCray

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-05-0508-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2001-015915
FRANK DALE MCCRAY, )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Douglas L. Rayes, Judge

AFFIRMED AS MODIFIED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Capital Litigation Section
Jon G. Anderson, Assistant Attorney General
Attorneys for the State of Arizona

BRUCE PETERSON, OFFICE OF THE LEGAL ADVOCATE Phoenix
By Kerri L. Chamberlin, Deputy Legal Advocate
Attorneys for Frank Dale McCray
________________________________________________________________

B A L E S, Justice

¶1 This mandatory appeal concerns Frank Dale McCray’s

conviction and death sentence for the murder of Chestene

Cummins. We have jurisdiction under Article 6, Section 5(3) of

the Arizona Constitution and Arizona Revised Statutes (“A.R.S.”)

section 13-4031 (2001).

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On May 21, 1987, Chestene Cummins was strangled to

death in her Phoenix apartment. Her boyfriend found her body on

the floor with her mouth gagged, her body heavily bruised, her

pants removed, and her shirt sliced open. She had been

strangled with a sweatpants drawstring that was wrapped three

times around her neck. The apartment was in disarray and there

were signs of a struggle. Cummins’s wallet and rings were

missing. The only fingerprints indentified at the scene

belonged to Cummins, her boyfriend, and her sister.

¶3 During an autopsy the next day, Cummins’s vagina,

rectum, and mouth were swabbed for fluid. The medical

examiner’s office tested fluid from each swab for acid

phosphatase, an enzyme found in semen, and all the tests were

negative. Fluid from each swab was also placed on separate

filter papers that were sent to the Department of Public Safety

crime lab. Unlike the medical examiner, a DPS analyst found

acid phosphatase in the fluid from the vaginal and oral swabs.

DPS froze and retained portions of the samples. DPS also

identified acid phosphatase on other objects from the apartment.

In 1987, DNA technology could not identify a perpetrator from

the evidence, and the crime remained unsolved for more than a

decade.

2

¶4 In 1997, the blood of Frank McCray, who had been

imprisoned for a 1992 sexual assault, was drawn and stored

pursuant to A.R.S. § 13-4438 (Supp. 1997) (since renumbered as

A.R.S. § 13-610 (Supp. 2007)), which required DNA samples to be

collected and retained for sex offenders. In 2000, DPS entered

a DNA profile of McCray’s blood into its database.

¶5 A few months later, a Phoenix detective asked DPS to

run a DNA test on the samples taken in 1987 from Cummins’s body.

A DPS criminalist identified DNA from semen in both the vaginal

and oral samples and entered the DNA profile into the DPS

database. The DNA matched that of McCray. To verify the match,

the criminalist prepared a new profile from McCray’s blood. She

found that it also matched the profile from the DNA in the semen

on the samples taken from Cummins’s body.

¶6 McCray was indicted in 2001 for murder, sexual

assault, and burglary. The sexual assault and burglary charges

were dismissed because the statutes of limitations had run. In

2005, a jury convicted McCray of first-degree felony murder. In

the penalty phase of the trial, the jury found two aggravating

factors: McCray had been previously convicted of a felony

involving violence, see A.R.S. § 13-703(F)(2) (1978 & Supp.

1987), and the murder was especially cruel, id. § 13-703(F)(6).

After the jury determined McCray should receive a death

3

sentence, the trial court entered a sentence of death by lethal

injection. This appeal followed.

DISCUSSION

¶7 McCray raises four issues on appeal. For the reasons

explained below, we affirm his conviction and, as modified, his

death sentence.

A. Chain of custody

¶8 McCray argues that the trial court erred in admitting

the DNA evidence because the State did not establish a

sufficient chain of custody to authenticate the evidence. A

trial court’s conclusion that evidence has an adequate

foundation is reviewed for an abuse of discretion. State v.

Romanosky, 162 Ariz. 217, 224, 782 P.2d 693, 700 (1989).

¶9 An item is authenticated when there is “evidence

sufficient to support a finding that the matter in question is

what its proponent claims.” Ariz. R. Evid. 901(a). A party

seeking to authenticate evidence based on a chain of custody

“must show continuity of possession, but it need not disprove

every remote possibility of tampering.” State v. Spears, 184

Ariz. 277, 287, 908 P.2d 1062, 1072 (1996). Furthermore, “[a

party] need not call every person who had an opportunity to come

in contact with the evidence sought to be admitted.” State v.

Hurles, 185 Ariz. 199, 206, 914 P.2d 1291, 1298 (1996).

4

¶10 McCray argues that the State failed to establish a

sufficient chain of custody from the time the fluid samples were

taken from Cummins’s body at the autopsy until they were

delivered later that day to DPS. In particular, McCray argues

that the chain of custody was deficient because neither the

medical examiner who performed the autopsy nor his assistant

testified about taking the samples. Instead, Detective Mitch

Rea, who attended the autopsy, testified that he was present

when the swabs were taken, that the swabs were then each wiped

on filter papers, that the medical examiner then gave him the

filter paper samples in separate envelopes, and that Rea later

delivered these samples, along with other evidence, to DPS.

¶11 To support his position, McCray cites this Court’s

opinion in State v. Ritchey, which observed that evidence can be

admitted “notwithstanding the inability of the state to show a

continuous chain of custody . . . unless a defendant can offer

proof of actual change in the evidence, or show that the

evidence has, indeed, been tampered with.” 107 Ariz. 552, 557,

490 P.2d 558, 563 (1971). McCray argues that the circumstances

here reflect a change in or tampering with the evidence.

¶12 McCray notes that Rea said the medical examiner took

the swabs, while other evidence showed that the medical

examiner’s office usually had an assistant take the swabs. He

also notes that Rea initially testified that the medical

5

examiner had placed each sample in a separate envelope and that

Rea had then packaged each one in an additional envelope;

however, the DPS criminalist who received them testified that

each sample was inside only one envelope. (When recalled, Rea

testified that he must not have repackaged the swab samples.)

Finally, McCray argues that the evidence was changed because the

medical examiner did not identify acid phosphatase on the

samples, but DPS later found this enzyme present.

¶13 Even if we accept McCray’s interpretation that Ritchey

requires a “complete” chain of custody when there is proof of

tampering or a change in the evidence, the trial court did not

abuse its discretion in admitting the DNA evidence here. The

inconsistent test results did not prove some actual change in

the evidence. Instead, as noted in the trial testimony of both

a medical examiner and a DPS analyst, the different results

might be explained by technical limitations on the medical

examiner’s tests, insufficient semen on the swabs after fluid

was transferred to the filter papers, or environmental

degradation of the swabs.

¶14 Nor has McCray shown any tampering with the evidence.

Indeed, it is hard to imagine how his semen could somehow have

been improperly placed on the filter papers in 1987. McCray

does not challenge the chain of custody after the samples were

delivered to DPS, which extracted DNA from semen in these

6

samples and later matched it with DNA taken in 1997 from

McCray’s blood, not his semen.

¶15 Detective Rea described from personal knowledge the

chain of custody of the fluid samples from their collection at

the autopsy to their delivery to DPS. To the extent his

recollection of the events was incomplete or conflicted with

testimony by other witnesses, these concerns go to the weight

rather than the admissibility of the evidence. See State v.

Gonzales, 181 Ariz. 502, 511, 892 P.2d 838, 847 (1995). The

trial judge did not abuse his discretion in admitting the DNA

evidence.

B. The (F)(2) aggravator

¶16 McCray argues that the trial court erred in holding

that his 1993 conviction for a 1992 sexual assault with a

dangerousness enhancement qualified him for the (F)(2) prior

violent crime aggravator. This Court reviews de novo whether a

prior crime was violent for the purposes of the (F)(2)

aggravator. State v. Smith, 215 Ariz. 221, 227 ¶ 14, 159 P.3d

531, 537 (2007), cert. denied, 128 S. Ct. 466 (2007).

¶17 Under the applicable statute, a first-degree murder

may be aggravated when “[t]he defendant was previously convicted

of a felony in the United States involving the use or threat of

violence on another person.” A.R.S. § 13-703(F)(2). In

determining whether a prior felony involved violence or threats,

7

we must look to the “statutory definition” of the crime, not the

particular facts of the case. State v. Henry, 176 Ariz. 569,

587, 863 P.2d 861, 879 (1993). In other words, if the offense

could have been committed without the use or threat of violence,

the prior conviction does not qualify as an (F)(2) aggravator.

¶18 McCray’s prior conviction was for sexual assault with

a dangerousness enhancement in violation of A.R.S. §§ 13-1406(A)

(1989) and 13-604(G) (1989). McCray first argues that this

offense cannot qualify for the (F)(2) aggravator because in 1992

sexual assault could be committed not only by force or threat of

force but also by deceit or a victim’s otherwise invalid

consent. See State v. Bible, 175 Ariz. 549, 604, 858 P.2d 1152,

1207 (1993). McCray also contends that the dangerousness

enhancement under A.R.S. § 13-604(G) should not be considered as

part of the statutory definition of his prior crime.1

¶19 For purposes of applying the (F)(2) aggravator, courts

should consider the fact that a prior conviction included an

enhancement for dangerousness. The dangerous nature of the

offense must, under A.R.S. § 13-604(K) (renumbered as A.R.S. §

13-604(P) (2001 & Supp. 2007)), be charged and be either

admitted by the defendant or found by the trier of fact. The

1
In 1993, the legislature rewrote the (F)(2) statute to list
the crimes that qualify for the aggravator. 1993 Ariz. Sess.
Laws 745-48. One of the listed crimes is sexual assault.
A.R.S. § 13-703(I)(5) (Supp. 2007).

8

allegation of dangerousness in effect adds to the underlying

offense an element that subjects the defendant to increased

penalties.

¶20 To determine if a prior offense involved the threat or

use of violence, we consider the specific statutory subsection

under which a defendant was convicted, even if violations of

other subsections of the same statute may not qualify for the

(F)(2) aggravator. See, e.g., State v. Ramirez, 178 Ariz. 116,

129-30, 871 P.2d 237, 250-51 (1994). Considering a prior

offense as enhanced for dangerousness is analogous to focusing

on the particular statutory subsection underlying a prior

conviction. Cf. State v. Correll, 148 Ariz. 468, 478-79, 715

P.2d 721, 731-32 (1986) (considering a California robbery

conviction with firearm enhancement in determining if (F)(2)

aggravator applied).

¶21 McCray also contends, however, that sexual assault

with a dangerousness enhancement is not a crime that by its

statutory definition satisfies the (F)(2) aggravator. When the

sexual assault occurred, Arizona’s enhancement statute defined a

dangerous felony as a “felony involving use or exhibition of a

deadly weapon or dangerous instrument or . . . the intentional

or knowing infliction of serious physical injury upon another.”

A.R.S. § 13-604(G) (renumbered as A.R.S. § 13-604(I) (2001 &

Supp. 2007)) (emphasis added).

9

¶22 Is it possible for sexual assault to be enhanced as

dangerous but not involve the “use or threat of violence”? Even

without the enhancement, a sexual assault that is accomplished

by force or threat of force would involve the use or threat of

violence. Thus, the issue reduces to whether it is possible for

a defendant to commit sexual assault through deceit or the

victim’s otherwise invalid consent (e.g., intoxication or

drugs), yet for the offense to be enhanced as one “involving the

use or exhibition” of a deadly weapon or dangerous instrument.

In arguing that there can be a dangerous but non-violent sexual

assault, McCray offers the following hypothetical: a defendant

deceives his victim into engaging in sexual conduct and then

fires a non-threatening celebratory shot into the air.

¶23 McCray’s argument presumes an unduly broad

interpretation of the word “involving” as it is used in the

enhancement statute. For purposes of A.R.S. § 13-604(G), an

offense is one “involving” the “use or exhibition” of a deadly

weapon or dangerous instrument if the use or exhibition helps

accomplish the underlying offense. Using or exhibiting a weapon

or dangerous instrument to accomplish a sexual assault must, as

a practical matter, involve at least a threat of violence. The

hypothetical posed by McCray would not be a sexual assault

“involving” the use or exhibition of a deadly weapon or

dangerous instrument, even though the imaginary gun might be

10

visible or fired in a non-threatening way.2 Cf. State v. Greene,

182 Ariz. 576, 581, 898 P.2d 954, 959 (1995) (holding, for

purposes of A.R.S. § 13-604.02(A), that an offense is not one

“involving” injury merely because the injury occurs at same time

as the crime or increases its likelihood).

¶24 Stated differently, we conclude that a sexual assault

that “involv[es] use or exhibition of a deadly weapon or

dangerous instrument” within the meaning of A.R.S. § 13-604(G)

is necessarily one that “involv[es]” the use or threat of

violence. Accordingly, we hold that the trial court did not err

in instructing the jury as to the (F)(2) aggravator.

C. The (F)(6) aggravator

¶25 McCray next argues that the trial court violated his

right to due process by providing the jury with an

unconstitutionally vague instruction on the “especially cruel”

aspect of the (F)(6) aggravator. “We review de novo whether

jury instructions adequately state the law.” State v. Tucker,

215 Ariz. 298, 310 ¶ 27, 160 P.3d 177, 189 (2007), cert. denied,

128 S. Ct. 296 (2007).

2
The legislature amended the enhancement statute in 1993 to
refer to offenses “involving the use or threatening exhibition”
of a deadly weapon or dangerous instrument. 1993 Ariz. Sess.
Laws 1411 (codified as amended at A.R.S. § 13-604(I) (2001 &
Supp. 2007)). This statutory change does not alter our
conclusion, which turns on the meaning of the term “involving”
in the context of sexual assault; we need not address the
consequences of the 1993 amendment with regard to other crimes.

11

¶26 The trial court instructed the jury on the meaning of

both “especially cruel” and “cruelty.”3 We recently approved a

nearly identical (F)(6) instruction. Id. at 310-11, ¶¶ 29-33,

160 P.3d at 189-90. We hold that the instruction in this case

was not unconstitutionally vague.

D. Means of execution

¶27 McCray argues, and the State concedes, that his

sentence improperly specifies that he shall be executed by means

of lethal injection. Because McCray committed the murder before

November 23, 1992, he is entitled under A.R.S. § 13-704(B)

(2001) to choose between lethal injection and lethal gas. This

Court can correct an illegal sentence, A.R.S. § 13-4037(A)

3
The instruction read:

Definition of “Especially Cruel”

Concerning this aggravating circumstance, all first
degree murders are to some extent cruel. However,
this aggravating circumstance cannot be found to exist
unless the murder is especially cruel, that is, where
the circumstances of the murder raise it above the
norm of other first degree murders.
“Cruelty”

Cruelty involves the infliction of physical pain
and/or mental anguish on a victim before death. A
crime is committed in an especially cruel manner when
a defendant either knew or should have known that the
manner in which the crime is committed would cause the
victim to experience physical pain and/or mental
anguish before death. The victim must be conscious
when the pain and/or anguish was inflicted.

12

(2001), and we modify McCray’s sentence to provide that the

manner of execution shall be determined as provided in A.R.S. §

13-704(B).

E. Independent review

¶28 Because Cummins’s murder occurred before August 1,

2002, this Court independently reviews the “findings of

aggravation and mitigation and the propriety of the death

sentence.” A.R.S. § 13-703.04(A) (Supp. 2007); see 2002 Ariz.

Sess. Laws 2158.

1. Aggravating circumstances

¶29 The jury found two aggravating circumstances: McCray

had been “previously convicted of a felony in the United States

involving the use or threat of violence on another person,”

A.R.S. § 13-703(F)(2), and he had committed the murder “in an

especially cruel . . . manner,” id. § 13-703(F)(6).

a. The (F)(2) aggravator

¶30 The (F)(2) aggravator was proved beyond a reasonable

doubt by evidence of McCray’s 1993 conviction for sexual assault

with the dangerousness enhancement. See supra, ¶¶ 16-24.

b. The (F)(6) aggravator

¶31 A first degree murder is “especially cruel” when the

victim suffered physical pain or mental anguish and the

defendant knew or should have known that the victim would

13

suffer. Tucker, 215 Ariz. at 310-11 ¶ 31, 160 P.3d at 189-90.

The victim, however, need not have been conscious for “each and

every wound inflicted.” State v. Sansing, 206 Ariz. 232, 235

¶ 7, 77 P.3d 30, 33 (2003). The entire murder transaction, not

just the final act, may be considered. State v. Ellison, 213

Ariz. 116, 142 ¶ 119, 140 P.3d 899, 925 (2006), cert. denied,

127 S. Ct. 506 (2006).

¶32 The evidence indicates that McCray forced his way into

Cummins’s apartment, physically assaulted her, raped her, and

strangled her with a cord. At trial, the county’s chief medical

examiner, Dr. Phillip Keen, testified about the results of the

1987 autopsy, which had been performed by another doctor. Keen

said that Cummins probably died one to five minutes after the

strangulation began, and he concluded from both the nature of

her injuries and the condition of the apartment that a struggle

probably occurred.

¶33 In our independent review, we find that Cummins was

conscious during a substantial part of the “murder transaction”

and that she suffered intense physical pain and mental anguish

during that time. McCray should have known that attacking,

raping, and strangling Cummins would cause her severe physical

and mental pain. The (F)(6) aggravator was proved beyond a

reasonable doubt.

14

2. Mitigating circumstances

¶34 During the penalty phase, “the defendant and the state

may present any evidence that is relevant to the determination

of whether there is mitigation that is sufficiently substantial

to call for leniency.” A.R.S. § 13-703.01(G) (Supp. 2007). The

mitigating circumstances must be proved by a preponderance of

the evidence. A.R.S. § 13-703(C) (Supp. 2007).

¶35 McCray presented evidence of two non-statutory

mitigators: difficult family history and mental health

problems. Evidence of a third non-statutory mitigator, drug

use, was also introduced during the penalty phase, although on

cross-examination and rebuttal by the State. We consider each

potential mitigator in turn.

a. Difficult family history

¶36 A difficult family history is considered in

mitigation, but its strength depends on whether the defendant

can show it has a causal connection with the crime. State v.

Pandeli (“Pandeli II”), 215 Ariz. 514, 532 ¶ 72, 161 P.3d 557,

575 (2007). Furthermore, a difficult childhood is given less

weight when the defendant is older. State v. Hampton, 213 Ariz.

167, 185 ¶ 89, 140 P.3d 950, 968 (2006), cert. denied, 127 S.

Ct. 972 (2007) (defendant was thirty at the time of the crime).

McCray presented evidence that he was born to alcoholic parents;

that as an infant he was briefly placed in a foster home after

15

being abandoned by his mother; that he was emotionally

mistreated by his father and step-mother; and that he sometimes

had troubled relations with his step-mother and her daughters.

After his father divorced his step-mother, she raised him, paid

his tuition for cosmetology school, and otherwise helped support

him financially. McCray was twenty-eight years old when he

murdered Cummins.

¶37 Here, although McCray proved he had a less-than-ideal

childhood, he presented no evidence causally relating his

childhood to his attack on Cummins. McCray urges this Court to

reevaluate its rule that, especially when the defendant is

older, a difficult childhood is given less mitigating weight

than if the defendant can show a causal connection between the

childhood and the crime. We decline to do so, but we reaffirm

that we do consider evidence of a difficult childhood in

mitigation even if no causal connection has been shown. See

State v. Newell, 212 Ariz. 389, 406 ¶¶ 86-87, 132 P.3d 833, 850

(2006), cert. denied, 127 S. Ct. 663 (2006). In this case, we

accord the factor little mitigating weight.

b. Mental health problems

¶38 This Court generally gives little mitigating weight to

evidence of an undiagnosed mental illness. See State v.

Murdaugh, 209 Ariz. 19, 35 ¶ 82, 97 P.3d 844, 860 (2004). This

is especially true when the defendant fails to establish that

16

the mental illness caused the crime or inhibited his ability to

appreciate the wrongfulness of his conduct or conform his

conduct to the law. Pandeli II, 215 Ariz. at 533 ¶ 81, 161 P.3d

at 576.

¶39 McCray did not offer expert testimony that he suffered

from any mental illness. Instead, McCray’s step-mother

testified that he behaved unusually as a child, had trouble at

school, and had undergone a brain scan indicating damage in the

areas of comprehension and coordination. She said McCray had

received no medical treatment as a child for this condition.

One of his step-sisters said that he had occasional “blackout

spells,” when he forgot things that had happened the same day or

appeared not to register what people were saying. Another

step-sister said that she believed he was diagnosed with a

seizure disorder. No tests or diagnostic results were

introduced at trial.

¶40 His step-mother said McCray also often acted unusually

when he was older. She said she was “almost sure he was on

drugs at the time” of one incident, although one of her

daughters said neither she nor her mother had ever seen him use

drugs. A Phoenix police officer also said McCray acted

bizarrely while in the county hospital and police custody four

days before the murder, even though no drugs were found in his

system and no tests were run for alcohol. On rebuttal at the

17

penalty phase, a detective testified that McCray had said he had

used drugs during that general time period.

¶41 We conclude that McCray’s evidence of an undiagnosed

mental illness is entitled to little mitigating weight.

c. Drug use

¶42 Drug abuse can be considered a mitigating

circumstance. Absent evidence tying it to the crime, however,

it is given minimal weight. State v. Velazquez, 216 Ariz. 300,

314-15 ¶ 73, 166 P.3d 91, 105-06 (2007); Newell, 212 Ariz. at

406 ¶¶ 86-87, 132 P.3d at 850.

¶43 The evidence suggests that McCray abused drugs near

the time of the murder. This mitigating factor merits minimal

weight, however, because there is no evidence he was using drugs

when he killed Cummins. Moreover, his actions in connection

with the crime indicate that he recognized the wrongful nature

of his conduct and took steps to conceal his identity. In

particular, he avoided leaving identifiable fingerprints and

though he is Caucasian, he wrote “Black is all right” on a

mirror in the apartment.

3. Propriety of death sentence

¶44 In reviewing the propriety of the death sentence, this

Court “consider[s] the quality and the strength, not simply the

number, of aggravating and mitigating factors.” State v.

Glassel, 211 Ariz. 33, 55 ¶ 93, 116 P.3d 1193, 1215 (2005). The

18

(F)(2) and (F)(6) aggravators were established beyond a

reasonable doubt. The mitigation evidence was insubstantial and

does not warrant leniency.

F. Issues preserved for federal review

¶45 To avoid preclusion, McCray raises twelve additional

constitutional claims that he states have been rejected in

previous decisions by the Supreme Court or this Court. The

attached appendix lists the claims raised by McCray and the

decisions he identifies as rejecting them.

CONCLUSION

¶46 Because we affirm McCray’s conviction and death

sentence as modified to comply with A.R.S. § 13-704(B), we need

not address the State’s cross-appeal issues.

_______________________________________
W. Scott Bales, Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

_______________________________________
Andrew D. Hurwitz, Justice

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APPENDIX

McCray raises the following claims to preserve them

for federal review:

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. See State v.
Sansing, 200 Ariz. 347 ¶ 46, 26 P.3d 1118 (2001), vacated on
other grounds, Ring v. Arizona, 536 U.S. 584 (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. 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. 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. 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 the State to prove that the death
penalty is appropriate. Failure to require this violates the
Fifth, Eighth, and Fourteenth Amendments to the United States
Constitution and Article 2, Section 15 of the Arizona
Constitution. 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 (2002).
6. The death penalty is cruel and unusual because it is
irrationally and arbitrarily imposed. The statute requires the
imposition of a death sentence if the jurors find one or more
aggravating circumstances and no mitigating circumstances
sufficiently substantial to call for life imprisonment.
Furthermore, the death penalty serves no purpose that is not

20

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. See
State v. Pandeli (“Pandeli I”), 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 standard to guide the
jurors in weighing 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. See Pandeli I 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,
Section 15 of the Arizona Constitution. See Pandeli I at ¶ 90.
9. Execution by lethal injection is cruel and unusual
punishment in violation of the Eighth and Fourteenth Amendments,
and Article 2, Section 15 of the Arizona Constitution. See
State v. Van Adams, 194 Ariz. 408, 422 ¶ 55, 984 P.2d 16, 30
(1999).
10. A proportionality review of a defendant’s death sentence is
constitutionally required. 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. See Van Adams at 423 ¶
55, 984 P.2d at 31.
12. Arizona’s death penalty statute is constitutionally
deficient because it requires defendants to prove that their
lives should be spared. See State v. Fulminante, 161 Ariz. 237,
258, 778 P.2d 602, 623 (1988).

21