State v. Snelling

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