State v. Cropper

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-08-0116-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR-1997-003949
LEROY D. CROPPER, )
)
Appellant. )
) O P I N I O N
_________________________________ )

Appeal from the Superior Court in Maricopa County
The Honorable Joseph B. Heilman, Judge

AFFIRMED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Jeffrey A. Zick, Assistant Attorney General
Melissa A. Parham, Assistant Attorney General
Attorneys for State of Arizona

BRUCE PETERSON, OFFICE OF THE LEGAL ADVOCATE Phoenix
By Kerri L. Chamberlin, Deputy Legal Advocate
Attorneys for Leroy D. Cropper
________________________________________________________________

R Y A N, Justice

¶1 Leroy D. Cropper pled guilty to first degree murder in

1999 for the 1997 killing of an Arizona Department of

Corrections officer.1 A Maricopa County judge determined that

1
Cropper also pled guilty to dangerous and deadly assault by
a prisoner and three counts of promoting prison contraband.

1

Cropper should be sentenced to death for the murder and an

automatic appeal followed. See State v. Cropper (Cropper I),

205 Ariz. 181, 183-84 ¶ 12, 68 P.3d 407, 409 (2003). While the

appeal was pending, the Supreme Court decided Ring v. Arizona

(Ring II), which held that jurors, not judges, must find

aggravating factors that expose defendants to capital sentences.

536 U.S. 584, 609 (2002). In response to that decision, and

subsequent legislation,2 this Court vacated Cropper’s sentence

and remanded for resentencing under the appropriate statutes.

State v. Cropper (Cropper II), 206 Ariz. 153, 158 ¶ 24, 76 P.3d

424, 429 (2003).

¶2 On remand, a jury found two aggravating factors:

Cropper had a prior serious conviction and he committed the

murder while incarcerated. See Ariz. Rev. Stat. (“A.R.S.”) §

13-751(F)(2), (F)(7) (Supp. 2009).3 That jury, however, could

not reach a verdict as to whether the killing was especially

cruel, A.R.S. § 13-751(F)(6), or whether death was the

2
After Ring II, 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 (Ring III),
204 Ariz. 534, 545 ¶ 13, 65 P.3d 915, 926 (2003).
3
Arizona’s capital sentencing statutes were reorganized and
renumbered to A.R.S. §§ 13-751 to -759. 2008 Ariz. Sess. Laws,
ch. 301, §§ 26, 38-41 (2d Reg. Sess.). Because the renumbered
statutes are not materially different, we cite the current
version, unless otherwise noted.

2

appropriate sentence. A second jury was impaneled, see A.R.S. §

13-752(K), and concluded that the murder was committed in an

especially cruel manner and that death was the appropriate

punishment. This automatic appeal followed. Ariz. R. Crim. P.

26.15, 31.2. We have jurisdiction under Article 6, Section 5(3)

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

I

¶3 Cropper was an inmate at the Perryville prison in

1997.4 Two corrections officers, one female, another male, were

looking for missing mops and brooms. The female guard

approached Cropper’s cell and saw Cropper and his cell mate

sitting on a bunk. She discovered contraband tattooing material

in the cell and ordered the two inmates out so the officers

could conduct a search. The officers found a home-made tattoo

gun, needles and ink, a shank, and another item with security

implications. Cropper became angry that the female officer, in

Cropper’s opinion, had been disrespectful of him and his

property.

¶4 Although the female officer had angered Cropper, he

sought out a violent confrontation with the male officer -- “an

innocent man” -- because he did not want to be known as a

“ladykiller.” Cropper had been placed on lockdown, but he

4
A detailed description of the facts is set forth in Cropper
I, 205 Ariz. at 182-83 ¶¶ 2-9, 68 P.3d at 408-09.
3

obtained a knife from another inmate and escaped from his cell

with the help of others.

¶5 The male officer was alone in the control room of the

cellblock in which Cropper was held. Cropper banged open the

door, rushed at the officer and stabbed him in the neck. The

men crashed into a desk. Cropper pinned the officer up against

a wall while a “very violent” struggle continued for up to two

minutes. Believing he had seen the officer die, Cropper ran

back to his cell and attempted to clean himself up while prison

officers were changing shifts.

¶6 Officers coming on duty discovered the victim. They

performed CPR on him in the control room for about ten minutes

and continued life-saving efforts until the officer was finally

brought to Perryville’s main building. One officer testified

that he believed that the victim remained alive, moving his eyes

and maintaining a faint pulse in the moments after he was

discovered. The control room was covered in blood.

II

¶7 Because the first jury to consider Cropper’s penalty

could not reach a verdict, he argues that the second penalty-

phase trial violated his rights under the Ex Post Facto Clauses

of the United States and Arizona Constitutions. U.S. Const.

art. I, § 10; Ariz. Const. art. 2, § 25. Those provisions

“prohibit[] a state from ‘retroactively alter[ing] the
4

definition of crimes or increas[ing] the punishment for criminal

acts.’” State v. Ring (Ring III), 204 Ariz. 534, 545 ¶ 16, 65

P.3d 915, 926 (2003) (quoting Collins v. Youngblood, 497 U.S.

37, 43 (1990)); see also State v. Noble, 171 Ariz. 171, 173-74,

829 P.2d 1217, 1219-20 (1992). Cropper contends that by

permitting the State to retry the penalty phase after a jury

deadlocked, the legislature changed the substantive standard

applicable to capital defendants.

¶8 Under A.R.S. § 13-752(K), if the penalty-phase jury

“is unable to reach a verdict, the court shall dismiss the jury

and shall impanel a new jury.” It is only after that second

jury cannot resolve the case that a court must impose a life

sentence. Id. In contrast, Cropper claims, under prior law,

A.R.S. § 13-703 (2001), a trial judge could not have “hung,” but

rather was charged with determining in a single proceeding

whether a capital or lesser sentence was warranted based on an

assessment of aggravating factors and mitigating evidence.

Thus, he argues, permitting a second jury to determine whether a

death sentence was appropriate when the first trier of fact

“determined that there was some doubt as to whether death was

the appropriate punishment, and when the law at the time of the

offense would not have permitted a second trial, violates the ex

post facto prohibition.”

¶9 This Court, however, has rejected similar challenges.
5

See Ring III, 204 Ariz. at 546-47 ¶¶ 20-21, 65 P.3d at 927-28;

see also State v. Dann, 220 Ariz. 351, 367 ¶¶ 82-83, 207 P.3d

604, 620 (2009) (no ex post facto violation for failure to

require special verdicts or interrogatories); State v.

Bocharski, 218 Ariz. 476, 492 ¶¶ 76-78, 189 P.3d 403, 419 (2008)

(same). In Ring III, this Court explained that “Arizona’s

change in the statutory method for imposing capital punishment

is clearly procedural.” 204 Ariz. at 547 ¶ 23, 65 P.3d at 928.

This is so because the change to jury sentencing made no change

in punishment and added no new element to the crime of first

degree murder. Id. Moreover, the Court rejected the argument

that the procedural change had a substantive impact, noting that

the state is still required to prove aggravating circumstances

beyond a reasonable doubt. Id. at ¶ 24. “The only difference

is that a jury, rather than a judge, decides whether the state

has proved its case.” Id.

¶10 Our holding in Ring III was based, in part, on the

Supreme Court’s identical conclusion in Dobbert v. Florida, 432

U.S. 282 (1977). Id. at 546 ¶ 20, 65 P.3d at 927. In the

context of a capital resentencing after a change in sentencing

procedure, Dobbert explained that no ex post facto claim arises

when “[t]he new statute simply alter[s] the methods employed in

determining whether the death penalty was to be imposed,” and

not “the quantum of punishment attached to the crime.” 432 U.S.
6

at 293-94.

¶11 Cropper’s attempt to distinguish these principles is

flawed for two reasons. First, it attempts to compare the roles

of trial judges and juries. A judge, unlike a jury, cannot

“deadlock” on a sentencing decision. Second, it misapprehends

the effect of a hung jury. A jury’s decision to acquit a

defendant differs from a jury’s failure to reach a decision.

Cf. Yeager v. United States, 129 S. Ct. 2360, 2366 (2009)

(second trial after failure to reach a verdict is not prohibited

by double jeopardy principles). As in Ring III, the change in

the law permitting the state to retry the penalty phase when the

first jury could not reach a decision neither adds a new element

to the crime of first degree murder nor increases the punishment

for the crime. Therefore, Cropper’s ex post facto argument

fails.5

III

¶12 Cropper next contends that the prosecutor committed

5
Citing State v. Valencia, Cropper argues that the previous
standard of proof for a capital sentence was that “[w]here there
is a doubt whether the death sentence should be imposed, [it
should be] resolve[d] . . . in favor of a life sentence.” 132
Ariz. 248, 250, 645 P.2d 239, 241 (1982). But this statement
reflects this Court’s standard with regard to independent review.
See State v. Roque, 213 Ariz. 193, 231 ¶ 170, 141 P.3d 368, 406
(2006) (applying penalty doubt standard on independent review).
The legislature made no substantive change in shifting from judge
sentencing to jury sentencing. Ring III, 204 Ariz. at 547 ¶ 23,
65 P.3d at 928.

7

misconduct in his arguments regarding the (F)(6) cruelty

aggravator. At Cropper’s request, the trial court instructed

the jury that, to establish the cruelty prong of the (F)(6)

aggravator, the State was required to show a victim’s suffering

“existed for a significant period of time.”6 (Emphasis added).

In their arguments, both defense counsel and the prosecutor

attempted to explain to the jury what constituted a “significant

period of time.” The defense objected after the prosecutor told

jurors that the standard was “subjective,” suggesting that the

phrase should be defined by “what that means to you.” The trial

court overruled the objection, and the prosecutor again

explained the “significant period of time” language in

“subjective” terms. The defense ultimately moved for a

mistrial, which was denied.

¶13 The prosecutor’s remarks must be assessed in context.

The instruction Cropper requested, to which the State objected,

6
The instruction read:

All first degree murders are, to some extent, cruel,
however, this aggravating circumstance cannot be found
to exist unless the State has proven beyond a
reasonable doubt that the murder was especially cruel.
“Especially” means unusually great or significant. The
term “cruel” focuses on the victim’s pain and
suffering. A murder is especially cruel if the State
proves beyond a reasonable doubt that the victim
suffered pain prior to losing consciousness, the
victim’s conscious suffering existed for a significant
period of time, and the defendant knew or should have
known that the victim would suffer pain.
8

differed from (F)(6) cruelty instructions this Court has

previously approved. Our cases make clear that an (F)(6)

instruction is sufficient if it requires the state to establish

that “‘the victim consciously experienced physical or mental

pain and the defendant knew or should have known that’ the

victim would suffer.” State v. Tucker, 215 Ariz. 298, 310-11 ¶¶

31-33, 160 P.3d 177, 189-90 (2007) (alterations removed)

(quoting State v. Anderson, 210 Ariz. 327, 352 n.18 ¶ 109, 111

P.3d 369, 394 n.18 (2005)). No set period of suffering is

required. See State v. Soto-Fong, 187 Ariz. 186, 203-04, 928

P.2d 610, 627-28 (1996) (rejecting any “bright-line, arbitrary

temporal rule” to determine whether cruelty has been

established). An instruction consistent with this standard

sufficiently narrows the (F)(6) aggravator for constitutional

purposes. See Tucker, 215 Ariz. at 310-11 ¶¶ 31-33, 160 P.3d at

189-90; see also Walton v. Arizona, 497 U.S. 639, 654-56 (1990)

(concluding that Arizona court’s construction of the (F)(6)

aggravator is appropriate under the Eighth Amendment), overruled

on other grounds by Ring II, 536 U.S. at 608-09.

¶14 To evaluate “the propriety of a prosecutor’s

arguments, we consider ‘whether the remarks called to the

jurors’ attention matters that they should not consider.’”

State v. Morris, 215 Ariz. 324, 336 ¶ 51, 160 P.3d 203, 215

(2007) (quoting State v. Roque, 213 Ariz. 193, 224 ¶ 128, 141
9

P.3d 368, 399 (2006)). In his comments, the prosecutor sought

to clarify the meaning of “significant period of time” for the

jury. The comments with which Cropper takes issue deal directly

with the otherwise-unexplained jury instruction language he

requested; the comments did not dispute the essential elements

of physical cruelty. Consistent with this Court’s case law, the

prosecutor’s comments emphasized that “significant period of

time” did not mean a particular amount of time, but nevertheless

recognized that the state was required to establish conscious

suffering. Because the argument focused on considerations

proper for the jury in light of the instruction Cropper

requested, the prosecutor did not commit misconduct.

IV

¶15 Because the murder was committed before August 1,

2002, this Court “independently review[s] the trial court’s

findings of aggravation and mitigation and the propriety of the

death sentence.” A.R.S. § 13-755 (Supp. 2009); see 2002 Ariz.

Sess. Laws, ch. 1, § 7 (5th Spec. Sess.).

¶16 Cropper does not contest that the prior serious

offense aggravator, § 13-751(F)(2), and the offense committed

while in custody aggravator, § 13-751(F)(7), were proven. These

aggravating circumstances are established, respectively, by

Cropper’s guilty plea for a 1999 aggravated assault on another

inmate in the Maricopa County jail and the undisputed evidence
10

that Cropper was in prison when he murdered the corrections

officer.

¶17 Cropper does, however, argue that in our independent

review, we should find the § 13-751(F)(6) aggravator was not

established beyond a reasonable doubt. See State v. Speer, 221

Ariz. 449, 459 ¶ 51, 212 P.3d 787, 797 (2009) (explaining that

on independent review the Court “must independently determine

whether the State has established the aggravating circumstance

beyond a reasonable doubt”).

A

¶18 “Cruelty exists if the victim consciously 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). The evidence demonstrates that Cropper sought out a

violent confrontation. The struggle lasted up to two minutes,

he acknowledged. Further, the medical testimony regarding the

victim’s wounds and blood loss demonstrates that the officer

suffered physical pain. See State v. Bearup, 221 Ariz. 163, 172

¶ 49, 211 P.3d 684, 693 (2009) (cruelty established when assault

lasted between sixty and ninety seconds and resulted in

substantial blood loss); State v. Amaya-Ruiz, 166 Ariz. 152,

177, 800 P.2d 1260, 1285 (1990) (evidence of struggle

demonstrated cruelty).
11

¶19 Dr. Philip Keen, former chief medical examiner of

Maricopa County and a specialist in forensic pathology,

testified in detail on the nature of the attack. He explained

that the wounds inflicted would have been particularly painful

because of the “higher concentration of nerves” in the neck; the

officer would have felt a “stinging, burning kind of pain.”

¶20 Keen also testified that the officer suffered a number

of “penetrating injuries.” The deeper of these cuts severed his

thyroid gland, the jugular vein, and his chest cavity and lung.

The officer bled to death as a result of these injuries. The

officer did not, however, experience significant arterial damage

from the attack because his aorta and carotid arteries were not

damaged. Thus, the time it would have taken to lose

consciousness was the time it took him to bleed out, Keen

confirmed. Based on the injuries, the officer would have

“progressively” lost consciousness. Keen testified that it

would have taken “minutes” for him to lose consciousness based

on the amount of blood found in his chest cavity and at the

scene. Despite Cropper’s contentions, Keen concluded that it

was unlikely the officer would have lost consciousness in less

than a minute. Taken together, these facts establish beyond a

reasonable doubt that the officer consciously suffered physical

pain and Cropper knew or should have known he would experience

12

such pain.7

B

¶21 In mitigation, Cropper argues that we should find that

he suffered an abusive childhood and he has expressed remorse

for his actions. In our review, we have considered all of the

mitigation evidence presented to the jury.

¶22 We conclude that Cropper has established by a

preponderance of the evidence that he suffered an abusive

childhood. See A.R.S. § 13-751(C). Testimony detailed that

both his father and stepmother abused him. For example,

evidence suggests that Cropper’s father beat Cropper and once

choked him to the point of passing out. When Cropper did not

properly clean a toilet, his stepmother beat his head against it

and flushed his head in it. Other evidence indicates that

Cropper was neglected as he grew up in New York: he had to

sneak food to eat and was left without a winter coat.

¶23 Cropper’s claims of remorse present a closer question.

7
In Soto-Fong we stated that “where shots, stabbings, or
blows are inflicted in quick succession, one of them leading
rapidly to unconsciousness, a finding of cruelty, without any
additional supporting evidence, is not appropriate.” 187 Ariz.
at 204, 928 P.2d at 628. But this is not a case in which the
proof of cruelty relies on a claim that the method by which the
murder was committed was inherently cruel. See State v. Ellison, 213 Ariz. 116, 142 n.19 ¶ 121, 140 P.3d 899, 925 n.19 (2006)
(rejecting state’s claim that strangling inherently cruel).
Rather, the State provided ample evidence of pain and
consciousness, as well as other evidence indicating that Cropper
sought out a violent conflict.
13

For example, Cropper, in allocution, expressed remorse, stating

that he regretted his action and recognized its impact on the

officer’s family and on his own. He presented testimony,

including some by his mitigation specialist, that he had changed

while in prison. We have found allocution sufficient to

establish remorse. State v. Velazquez, 216 Ariz. 300, 315 ¶ 74,

166 P.3d 91, 106 (2007).

¶24 In rebuttal, however, the State presented strong

evidence contradicting genuine remorse and reform. Cropper

threatened penal personnel and wrote letters mocking them and

bragging about the murder. For example, when he was found with

two toothbrushes in his possession in the Maricopa County jail,

Cropper told a jail guard “You wouldn’t know what a shank was

unless it was sticking out of your neck,” adding that “the next

time I get a toothbrush, I will stick it in your fucking neck.”

Asked during an investigation whether he was an “expert” on

shanks, Cropper said, “Let’s just say I know what I’m talking

about. I’ve been around.” Cropper bragged that he had

“stainless for each hand” in a letter to another inmate. He

once told an officer that if he wanted an officer dead, he would

be dead already.

¶25 Further, Cropper threatened a “repeat episode of blood

and guts” and bragged he would probably “be on the TV again,” in

a letter. He signed letters using “in your neck” and “Fuck them
14

all in the neck” as epigrams and “IYN” as a return address.

After the murder, Cropper wrote a letter addressed “Greetings

fellow psychopaths,” in which he boasted about the slaying,

writing “Yee haw. Are we having fun yet? He he.” He mocked

the prison personnel who had responded to the killing as “a

bunch of keystone cops all running around totally fucking

panicked and deathly scared.” Finally, he bragged that

protective vests worn by officers “protect the heart, lungs,

kidney, etcetera, etcetera, but their daring necks are always

exposed. Imagine that.”

¶26 After the murder, Cropper also continued to have

disciplinary problems and act violently. For example, while in

the Maricopa County jail, Cropper was found with a six-inch

shank; he was also involved in the December 10, 1999 incident

for which he was later convicted, establishing the § 13-

751(F)(2) aggravator. As late as 2002 he attempted to injure

another inmate with a dart.

¶27 In addition, Cropper was heavily invested in prison

culture. For instance, when Cropper pled guilty to the murder,

he said that he did not want his plea referred to as a plea

agreement, confirming that he did not “want anybody to get the

wrong impression that [he had] somehow cooperated with the

State.” He stated that under the inmate codes, snitches are

among the worst people. Significantly, Cropper took the stand
15

in the trial of the other inmates and took personal

responsibility for the entire crime, despite the fact that co-

conspirators aided him in committing it.

¶28 In light of this evidence, it is difficult to conclude

that Cropper’s later remorse is genuine. Indeed, we have found

similar evidence sufficient to rebut or foreclose a finding of

remorse. See State v. Greene, 192 Ariz. 431, 443 ¶ 59, 967 P.2d

106, 118 (1998) (stating that evidence of defendant’s “vile

state of mind,” shown in letters after the crime, rebuts

remorse); State v. Djerf, 191 Ariz. 583, 598 ¶¶ 64-65, 959 P.2d

1274, 1289 (1998) (stating that defendant’s tactical motives and

statements of potential for future killing prevent finding of

remorse). Accordingly, although we credit Cropper’s allocution

and related testimony, we cannot give such evidence substantial

weight in reviewing the propriety of the death sentence.8

C

¶29 In considering the propriety of the death sentence,

“we do not merely consider the quantity of aggravating and

mitigating factors which were proven, but we look to the quality

and strength of those factors.” State v. Newell, 212 Ariz. 389,

405 ¶ 82, 132 P.3d 833, 849 (2006). “The relationship between

8
Evidence also established that Cropper harbored an interest
in murdering guards for some time. At one point he wrote that
“[m]any times I go back and forth with delusions of killing these
guards.”
16

the mitigation evidence and the crime . . . can affect the

weight given to such evidence.” State v. Ellison, 213 Ariz.

116, 144 ¶ 132, 140 P.3d 899, 927 (2006). Three aggravators,

including the (F)(6) cruelty aggravator, are established.

¶30 Cropper urges us to give significant weight to his

abusive childhood, arguing that the cell search triggered an

uncontrollable rage. We do not find this argument persuasive.

First, “childhood troubles deserve little value as a mitigator

for . . . murder[] . . . committed at age thirty-three,” as

Cropper was at the time of this offense. Id. Further, the

record does not demonstrate a crime of rage. Rather, it

demonstrates that Cropper specifically sought out a male officer

as a victim, obtained a weapon, and launched a calculated,

violent attack. “This was not a crime of passion or an

impetuous reaction to difficult circumstances.” Speer, 221

Ariz. at 465 ¶ 94, 212 P.3d at 803. Moreover, he continued to

engage in acts of violence and other infractions in jail and

prison.

¶31 Similarly, the evidence of remorse and reform he

provided is of limited weight in light of his words and actions

suggesting his remorse and reform are not genuine. See Greene,

192 Ariz. at 443 ¶ 59, 967 P.2d at 118; Djerf, 191 Ariz. at 598

¶¶ 64-65, 959 P.2d at 1289.

¶32 The aggravators in this case, in contrast, are
17

entitled to substantial weight. The (F)(7) aggravator, for

example, represents a legislative judgment that inmates who

commit first degree murder while incarcerated have failed to

make even minimal efforts to comply with societal norms and thus

warrant particularly serious treatment. Likewise, Cropper’s

aggravated assault conviction warrants particular weight, as it

stemmed from another violent attack some eighteen months after

he murdered the corrections officer. Finally, the (F)(6)

aggravator is likewise entitled to considerable weight. In

light of the significant aggravating factors, and the

comparatively minimal mitigation, a capital sentence is

warranted.9

V

¶33 For the above reasons, we affirm Cropper’s death

sentence.

_____________________________________
Michael D. Ryan, Justice

9
Cropper raises several issues previously decided by the
Supreme Court, or this Court, to preserve for federal review.
These are listed verbatim in the attached appendix, along with
authority he identifies as having rejected his arguments.

18

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
W. Scott Bales, Justice

_____________________________________
A. John Pelander, Justice

_____________________________________
Philip Hall, Judge*

*
Justice Andrew D. Hurwitz has recused himself from this
case. Pursuant to Article 6, Section 3 of the Arizona
Constitution, the Honorable Philip Hall, Judge of the Arizona
Court of Appeals, Division One, was designated to sit on this
matter.
19

Appendix

Cropper seeks to preserve twelve issues for later federal

review, which are listed as presented along with the authority

Cropper cites as rejecting the issues:

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.

Appellant recognizes authority to the contrary. See State v.

Sansing, 200 Ariz. 347, ¶ 46, 26 P.3d 1118 (2001), vacated on

other grounds, Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428

(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. Appellant recognizes authority to the contrary.

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. Appellant recognizes authority to the
20

contrary. See 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. Appellant

recognizes authority to the contrary. 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 that the State

prove that the death penalty is appropriate. Failure to require

this proof violates the Fifth, Eighth, and Fourteenth Amendments

to the United States Constitution and Article 2, Section 15 of

the Arizona Constitution. Appellant recognizes authority to the

contrary. 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,

122 S. Ct. 2428 (2002).

6. The death penalty is cruel and unusual because it is

irrationally and arbitrarily imposed. The statute requires

imposition of a death sentence if the jurors find one or more

aggravating circumstances and no mitigating circumstances
21

sufficiently substantial to call for life imprisonment.

Furthermore, the death penalty serves no purpose that is not

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.

Appellant recognizes authority to the contrary. See State v.

Pandeli, 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 standards to

guide the jurors in weighing the 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. Appellant recognizes

authority to the contrary. See Pandeli, 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,

22

Section 15 of the Arizona Constitution. Appellant recognizes

authority to the contrary. See Pandeli, at ¶ 90.

9. Execution by lethal injection is cruel and unusual

punishment in violation of the Eighth and Fourteenth Amendments,

and Article 2, § 15 of the Arizona Constitution. Appellant

recognizes authority to the contrary. See State v. Van Adams,

194 Ariz. 408, ¶ 55, 984 P.2d 16 (1999).

10. A proportionality review of a defendant’s death

sentence is constitutionally required. Appellant recognizes

authority to the contrary. 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. Appellant recognizes

authority to the contrary. See Van Adams, at ¶ 55.

12. Arizona’s death penalty statute is constitutionally

deficient because it requires defendants to prove that their

lives should be spared. Appellant recognizes authority to the

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contrary. See State v. Fulminante, 161 Ariz. 237, 258, 778 P.2d

602, 623 (1988).

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