State v. Pete J. Vanwinkle

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-09-0322-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR2008-128068-001
PETE J. VANWINKLE, )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Paul J. McMurdie, Judge

AFFIRMED
________________________________________________________________

THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
Ginger Jarvis, Assistant Attorney General
Attorneys for State of Arizona

MICHAEL J. DEW, ATTORNEY AT LAW Phoenix
By Michael J. Dew
Attorney for Pete J. VanWinkle
________________________________________________________________

B R U T I N E L, Justice

¶1 In 2009, Pete J. VanWinkle was sentenced to death for

the first degree murder of Robert Cotton. We have jurisdiction

over this automatic appeal under Article 6, Section 5(3) of the

Arizona Constitution and A.R.S. § 13-4031 (2010).

I. FACTUAL AND PROCEDURAL BACKGROUND1

¶2 On May 1, 2008, when Maricopa County Jail inmates

VanWinkle and Robert were out of their cells for recreation

time, jail videos show Robert, who walked with a visible limp,

climbing the stairs to the second level of cells. Robert looked

backward twice and appeared to talk to VanWinkle.2 When he

reached the second tier, Robert stood outside VanWinkle’s cell.

VanWinkle ascended the stairs less than a minute later,

appearing to speak to Robert, who then walked into the cell.

¶3 Before VanWinkle entered his cell, he walked into a

shower area next door. A few seconds later, he entered his

cell. For about one minute, VanWinkle and Robert stood in the

cell outside the view of the jail surveillance camera. When

they came back into view, VanWinkle was on top of Robert,

hitting him. After a brief struggle, Robert became still.

¶4 Then, for approximately eighteen minutes, VanWinkle

continued to beat Robert, strangling him, stomping on him,

punching him, and jumping up and down on his motionless body.

The video reflects that VanWinkle took several breaks to rest

and wipe the blood from his hands before resuming the attack.

¶5 VanWinkle then dragged Robert’s body from the cell and

1
We view the facts “in the light most favorable to upholding
the verdicts.” State v. Chappell, 225 Ariz. 229, 233 ¶ 2 n.1,
236 P.3d 1176, 1180 n.1 (2010).
2
The surveillance equipment did not record audio.

2

tried to push it through the railing onto the first level.

When he could not do so, VanWinkle went downstairs, got a drink

of water, and waited for jail staff to respond. Within minutes

they handcuffed VanWinkle and tried unsuccessfully to revive

Robert.

II. ISSUES ON APPEAL

A. Denial of Motions to Continue

¶6 VanWinkle contends that the trial court abused its

discretion by denying his successive motions to continue the

trial. He argues that not postponing his trial date prevented

his counsel from preparing to present mitigating evidence.

¶7 VanWinkle is not now contending that he was denied

effective assistance of counsel, as he acknowledges that such

claims cannot be raised on direct appeal. See State v. Spreitz,

202 Ariz. 1, 3 ¶ 9, 39 P.3d 525, 527 (2002). Instead, he

contends that the trial court abused its discretion in denying a

continuance because it left his counsel unprepared. See, e.g.,

State v. Barreras, 181 Ariz. 516, 520, 892 P.2d 852, 856 (1995).

We will not find an abuse of discretion unless VanWinkle

demonstrates prejudice. See id.; see also State v. Lamar, 205

Ariz. 431, 437-38 ¶ 32, 72 P.3d 831, 837-38 (2003) (requiring

defendant to establish prejudice when trial court denied

continuance).

¶8 A party requesting a continuance must demonstrate that

3

“extraordinary circumstances exist” and “state with specificity

the reason(s) justifying” a continuance. Ariz. R. Crim. P. 8.5.

When a trial court grants a continuance, it must state on the

record specific reasons for doing so. Id.

¶9 In each of his three motions requesting continuances,

VanWinkle argued that his lead counsel had a grueling schedule

that prevented him from adequately preparing for trial in this

case; he also asserted generally that counsel needed more time

for trial preparation and investigation of mitigation evidence.

In denying the first two motions, the trial court acknowledged

counsel’s busy schedule, but instructed that it would not grant

a motion containing “only conclusory statements such as . . .

additional time is needed to prepare for trial or investigate

the matter.” Despite the court’s warnings, VanWinkle continued

to file non-specific motions. In his third motion, counsel

argued that he needed to interview state witnesses and to

conduct pretrial investigation into mitigation topics, that

“several motions remain[ed] to be written,” and that some of

VanWinkle’s family members had not yet been interviewed.

¶10 Although we recognize that defense counsel must be

allowed sufficient time to prepare, see State v. Narten, 99

Ariz. 116, 120, 407 P.2d 81, 83 (1965), we cannot conclude on

this record that the trial court abused its discretion. As the

court repeatedly noted, counsel failed to abide by Rule 8.5’s

4

specificity requirements. Without this information, the trial

court could not meet its own Rule 8.5(b) obligation even if it

were inclined to grant a continuance. See Ariz. R. Crim. P.

8.5(b) (requiring trial court to state on the record specific

reasons for granting a continuance).

¶11 On appeal, VanWinkle argues that he could not provide

more detail because his counsel did not have time enough to

investigate to know what potential mitigation issues required

more attention. But, as the trial court noted, the defense had

been engaged in investigating the case for more than a year when

it filed these motions. And counsel had several ways he could

have fulfilled Rule 8.5’s requirements even absent full

knowledge of what evidence might exist. As the trial court

suggested in denying VanWinkle’s first motion, he could have

detailed what members of the defense team had done to prepare

for trial and outlined tasks they had yet to complete. He could

have made an offer of proof to explain what evidence he believed

additional investigation would uncover. See State v. Benge, 110

Ariz. 473, 477, 520 P.2d 843, 847 (1974) (acknowledging

usefulness of offer of proof to justify continuance). And if

VanWinkle was concerned about disclosing matters of trial

strategy or work product, he could have requested an ex parte

hearing. See Ariz. R. Crim. P. 15.9(b) (allowing ex parte

proceedings when defendant requires confidentiality).

5

¶12 VanWinkle has also failed to establish prejudice from

the denials. Counsel had approximately eighteen months to

prepare for a trial that lasted just ten days from opening

statements to the jury’s penalty phase verdict. Evidence at

trial involved showing the video-recording of the crime and the

testimony of sixteen witnesses, including VanWinkle himself.

Counsel cross-examined witnesses and presented affirmative

defenses based on self-defense and justification. VanWinkle has

not identified any witness or other evidence that could have

been presented, or presented more effectively, had his counsel

been afforded more preparation time.

¶13 At trial, a mitigation specialist assisted his defense

team, and counsel had available several traditional sources of

mitigation. Because VanWinkle, who was twenty-six when he

murdered Robert, had been incarcerated almost continuously from

the time he was eighteen, much of his social history was fully

documented. And as the State pointed out after compiling its

own mitigation report, nothing suggests that VanWinkle’s

upbringing had been extraordinary or that his childhood posed

any particular difficulty for investigating possible mitigation.

VanWinkle maintained close relationships with his mother and an

uncle, whom his counsel interviewed. He had been evaluated by

mental health professionals whose reports were made available to

the defense. Additionally, VanWinkle cooperated with his

6

defense counsel, testifying on his own behalf and complimenting

his lead attorney’s dedication.

¶14 This record does not support VanWinkle’s suggestion

that, but for the trial court’s denial of a continuance, he

would have been able to present substantial additional

mitigation.

B. Sufficient Evidence of Premeditation

¶15 VanWinkle contends the State presented insufficient

evidence of premeditation. Viewing the facts in the light most

favorable to sustaining the verdict, we review whether

substantial evidence supports the jury’s finding. See State v.

Bearup, 221 Ariz. 163, 167 ¶ 16, 211 P.3d 684, 688 (2009). To

prove premeditation, the state must show that a defendant

intended to kill another person, and “after forming that intent

. . . reflected on the decision before killing.” State v.

Thompson, 204 Ariz. 471, 479 ¶ 32, 65 P.3d 420, 428 (2003).

Circumstantial evidence may establish that the defendant

reflected on the killing. Id. at 480 ¶ 33, 65 P.3d at 429.

¶16 The State presented ample evidence from which the jury

could infer that VanWinkle lured Robert to his cell to kill him.

Importantly, the jury watched surveillance video from which it

could infer VanWinkle’s intent. See Ferguson v. State, 704

S.E.2d 470, 473 (Ga. Ct. App. 2010) (surveillance video prior to

theft allowed jury to infer defendant’s state of mind); State v.

7

Albercht, 809 So. 2d 472, 478 (La. Ct. App. 2002) (video

recording of event allowed court to infer perpetrator’s mental

state); State v. Davis, 318 S.W.3d 618, 622, 640 (Mo. 2010)

(video of rape and murder of “supreme probative value” when

defendant contended victim’s suffocation was accidental). The

video does not portray any aggressive conduct by the victim, and

the jury could have concluded that VanWinkle’s calm demeanor

suggested that he had planned the killing. See State v.

Braxton, 531 S.E.2d 428, 444-45 (N.C. 2000) (holding testimony

that inmate was calm immediately following murder relevant

evidence that attack was premeditated and not in self defense).

The jurors could have concluded that VanWinkle acted with

premeditation upon watching his prolonged, brutal attack, during

which he alternated between beating, strangling, and jumping up

and down on the victim, he took breaks, and he renewed his

attack against his unresisting victim State v. Gulbrandson, 184

Ariz. 46, 65, 906 P.2d 579, 598 (1995) (finding “protracted,

brutal, and . . . sustained” attack on victim evidence of

premeditation).

¶17 Evidence of VanWinkle’s statements and knowledge

preceding the attack also supported a finding of premeditation.

Before VanWinkle was transferred into Robert’s unit at the jail,

he warned his mother that he planned to get into a fight and

would likely experience a loss of privileges. Within two days

8

of the transfer, he killed Robert. See State v. Dann, 205 Ariz.

557, 565 ¶ 19, 74 P.3d 231, 239 (2003) (finding defendant’s

allusion to consequences of crime before its commission evidence

of premeditation). Evidence also showed that VanWinkle was

aware of jail surveillance practices, suggesting that he planned

to kill Robert when he was least likely to be stopped. See

State v. Womble, 225 Ariz. 91, 98 ¶ 21, 235 P.3d 244, 251 (2010)

(finding defendant’s taking steps to avoid being discovered

during commission of crime evidence of premeditation).

C. Other Acts Evidence

¶18 VanWinkle next contends the trial court erroneously

permitted the State to present evidence of “other bad acts” he

had committed while incarcerated. We review the admission of

other act evidence for an abuse of discretion. See State v.

Dickens, 187 Ariz. 1, 13-14, 926 P.2d 468, 480-81 (1996).

¶19 VanWinkle testified that “inmate rules” require

prisoners to resolve disputes themselves without involving jail

staff. He therefore testified that although facility rules

would forbid fighting, when Robert entered his jail cell, the

inmate rules gave VanWinkle no choice but to respond

aggressively to the threat. On cross examination, the State

asked VanWinkle to tell the jury about “some of those situations

in prison where [he] chose not to follow the prison facility

rules” and instead to abide by the inmate rules.

9

¶20 VanWinkle objected to this question and a hearing

followed. The State argued that because VanWinkle brought up

the inmate rules, he opened the door to inquiry into his

decisions to violate formal facility rules. It further argued

that because VanWinkle raised justification as a defense, the

State was entitled to introduce evidence of other unprovoked

violent attacks. The State then made an offer of proof,

describing incidents in which VanWinkle struggled with a guard;

attempted to kick another inmate; threatened an officer; struck

another inmate (while armed with a shank); and attempted to hit

an officer. The court ruled that the testimony was admissible,

concluding that VanWinkle had put his character at issue, noting

that because prison conduct was essential to VanWinkle’s

defense, specific incidents of conduct refuting that defense

were relevant.

¶21 Although evidence of a person’s character generally is

not admissible to show conduct in conformity therewith, Ariz. R.

Evid. 404(a), evidence of other acts may be admissible under

Rule 404(b) to show “proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of accident.”

Such evidence is admissible only when the evidence is relevant

and the potential for prejudice does not substantially outweigh

its probative value. See Ariz. R. Evid. 403. Additionally, the

trial court is required to give a limiting instruction on its

10

use if so requested. See State v. Lee, 189 Ariz. 590, 599, 944

P.2d 1204, 1213 (1997).

¶22 Because VanWinkle claimed to kill Robert in self-

defense pursuant to the inmate rules, the State was entitled to

present evidence of other indiscriminate acts of violence to

rebut this claim.

¶23 In Lee, this Court considered the relevance of a

previous murder to disprove a defendant’s self-defense claim.

There, the defendant had robbed and murdered victims on two

separate occasions. He contended, that “he was forced to shoot

his robbery victims because they attacked him.” Id. We

affirmed that each murder was relevant to prove the defendant’s

intent regarding the other because “the unlikeliness of this

[the defendant being forced to kill victims] happening twice

tends to show that neither shooting was accidental.” Id.

¶24 The State’s presentation of other act evidence here

was similarly relevant to show intent. Evidence that VanWinkle

has, on several occasions, attacked others at the jail facility

without justification supported the State’s argument that

VanWinkle did not act in self defense when he killed Robert.

The other 404(b) admissibility requirements also were met. See

Lee, 189 Ariz. at 599, 944 P.2d at 1213 (listing factors

governing admission under Rule 404(b)). This evidence was not

unduly prejudicial. The State’s cross-examination of VanWinkle

11

related to these incidents was brief, comprising no more than

four pages of transcript, the State did not elicit details about

the attacks, and VanWinkle explained the circumstances of one

incident. Additionally, the State did not belabor VanWinkle’s

past violence in arguments to the jury. Finally, VanWinkle did

not request a limiting instruction and does not challenge any of

the trial court’s instructions that could relate to this

evidence.

D. Instruction on the (F)(6) Aggravator

¶25 VanWinkle next argues that the trial court incorrectly

defined “gratuitous violence” with respect to the (F)(6)

(especially heinous or depraved) aggravating circumstance. At

trial, he requested an instruction different from the one he now

contends is correct under the law; accordingly we review this

issue only for fundamental error. See State v. Moore, 222 Ariz.

1, 16 ¶ 85, 213 P.3d 150, 165 (2009). To establish fundamental

error, VanWinkle must show there was error that went to the

foundation of his case and denied him a fair trial, and that he

was, in fact, prejudiced by the error. See State v. Henderson,

210 Ariz. 561, 568 ¶¶ 23-24, 569 ¶ 26, 115 P.3d 601, 608, 609

(2005).

¶26 The trial court instructed the jury that a defendant

inflicts gratuitous violence by “us[ing] violence clearly beyond

what was necessary to kill the victim.” As VanWinkle correctly

12

points out, this instruction is inadequate under State v.

Bocharski, 218 Ariz. 476, 494 ¶ 87, 189 P.3d 403, 421 (2008),

because it omits reference to the defendant’s state of mind. To

prove gratuitous violence, the state must “show that the

defendant continued to inflict violence after he knew or should

have known that a fatal action had occurred.” Id. (emphasis

omitted).

¶27 But the trial court’s error caused no prejudice

because VanWinkle admitted that he continued to attack Robert

after he determined that Robert had died. That admission

eliminates the possibility that failing to instruct the jury on

intent contributed to the verdict. See Moore, 222 Ariz. at 16-

17, ¶¶ 86-87, 213 P.3d at 165-66 (finding no fundamental error

when “no reasonable jury could fail to find” aggravator proven

beyond a reasonable doubt); State v. Murdaugh, 209 Ariz. 19, 30

¶ 51, 97 P.3d 844, 855 (2004) (“When ‘a defendant stipulates,

confesses or admits to facts sufficient to establish an

aggravating circumstance, [the court] will regard that factor as

established.’” (quoting State v. Ring, 204 Ariz. 534, 563 ¶ 93,

65 P.3d 933, 944 (2003) (alteration in Murdaugh))).

E. Rebuttal to Mitigation

¶28 VanWinkle also challenges the trial court’s admission

of rebuttal evidence that he had attacked and seriously injured

another inmate (“the S. evidence”) after he killed Robert.

13

Under A.R.S. § 13-751, any evidence offered to rebut the

defendant’s mitigation must be relevant to show that the

defendant should not be shown leniency. State v. Boggs, 218

Ariz. 325, 339 ¶ 65, 185 P.3d 111, 125 (2008). This Court

defers to the trial court’s determination of relevance so long

as the rebuttal is relevant to the “‘thrust of the defendant’s

mitigation’” and not unduly prejudicial. Id. (quoting State v.

Hampton, 213 Ariz. 167, 180 ¶ 51, 140 P.3d 950, 963 (2006)); see

also State v. Pandeli, 215 Ariz. 514, 527-28 ¶ 43, 161 P.3d 557,

570-71 (2007) (explaining that Due Process Clause prohibits

unbounded and limitless rebuttal evidence).

¶29 During the penalty phase, VanWinkle’s mitigation

focused on the realities of prison life, both physically and

socially. He asked the jury to consider mitigating that:

1. [He] committed the murder in a dangerous high-
security jail environment in which he faced the
constant danger of death or serious injury. The
murder was a reaction to the stress of this
environment.
2. The jail provided inadequate security procedures
within the jails to prevent and respond to violence
between the inmates.
3. Immersion in “prison culture” limits the number and
type of inmate responses to threats, leaving inmates
with few appropriate methods of response to personal
violence or threats of violence.

He further argued that his moral culpability for the crime was

reduced because Robert presented a “threat of danger,” and he

emphasized that inmates needed to protect themselves in jail.

14

Additionally, VanWinkle argued that his jail socialization

taught him to respond to perceived threats on his own, without

waiting for staff intervention.

¶30 In response, the State offered evidence that, after he

killed Robert, VanWinkle was placed in a high-security unit,

which did not allow him to have any direct contact with other

inmates. While housed in this unit, jail staff accidentally

allowed VanWinkle into a recreation room at the same time as

sixty-two-year-old S., who was described as aged beyond his

years. VanWinkle attacked S., strangling him from behind and

punching him repeatedly in the head. When the guards opened the

door, S. crawled out of the room, bleeding profusely.

¶31 Following the attack, VanWinkle responded that he “had

to do it” because S. was a sex offender. Within a month,

VanWinkle wrote a letter, saying he “wouldn’t have passed up a

chance to teach that creep what happens when you put your hands

on a woman” and that S. was lucky the guards “caught on before

[he] had the time to let out the air in his lungs forever.”

¶32 VanWinkle argues that the S. evidence was irrelevant

because he never claimed to be a “model inmate.” But the State

did not offer it to rebut such a claim. The thrust of

VanWinkle’s mitigation was that he was less responsible for

murdering Robert because of jail culture and the need to protect

himself. Evidence of a similar, unprovoked attack on a

15

different victim was properly presented by the State in

rebuttal.

¶33 Unlike his claims regarding Robert, VanWinkle did not

contend — nor could he seriously argue — that S. posed a threat

to him. VanWinkle attacked S. from behind, and there is no

evidence S. instigated the fight or attempted to fight back.

Contrary to VanWinkle’s claims that the jail environment

required him to defend himself, he attacked relatively weaker

and defenseless victims in the aged S. and Robert, who walked

with a limp.

¶34 The attack on S. also undercut VanWinkle’s argument

that his actions were compelled by inmate rules. There was no

evidence that S. had done anything to VanWinkle or that he had

any argument to settle. VanWinkle’s letter further confirmed

that he did not attack S. because the inmate rules required it,

but because he believed that sex offenders should be killed and

that he had the right to do it.

¶35 We have previously approved the admission of evidence

that rebutted mitigation relating to a defendant’s motivation

for committing a crime. In Pandeli, the defendant’s former

girlfriends testified about past violent acts to counter the

defendant’s claim that he was impulsive due to mental illness.

215 Ariz. at 528 ¶ 45, 161 P.3d at 571. The women’s testimony

evidenced an escalating pattern of violence inconsistent with

16

his mental illness mitigation. Id. In State v. McGill, the

defendant offered mitigation that another person manipulated him

into committing a murder. 213 Ariz. 147, 157 ¶ 42, 140 P.3d

930, 940 (2006). We concluded it was proper for the State to

present rebuttal evidence showing that the defendant tried to

put a contract on a witness’s life because the evidence

suggested he had acted on his own and not at another’s behest.

Id. ¶ 44. Finally, in State v. Roque, a defendant alleged that

he killed the victim because the defendant was mentally ill.

213 Ariz. 193, 221 ¶ 111, 141 P.3d 368, 396 (2006). The State

presented rebuttal evidence of the defendant’s history of racism

to show the murder was racially motivated and not a result of

mental illness. Id.

¶36 The S. evidence similarly rebuts VanWinkle’s claims

that he was forced by inmate rules or the stress of prison life

to kill Robert.

G. Review of the Death Sentence

¶37 Because this murder was committed after August 1,

2002, we review the jury’s aggravation findings and imposition

of the death sentence for an abuse of discretion. A.R.S. § 13-

756(A). We will affirm if the record contains any reasonable

evidence to support the jury’s findings and sentence. State v.

Chappell, 225 Ariz. 229, 242 ¶ 56, 136 P.3d 1176, 1189 (2010).

¶38 The State alleged three aggravating circumstances:

17

VanWinkle was an inmate of the Maricopa County Jail when he

murdered Robert, see § 13-751(F)(7)(a); he had previously been

convicted of a serious crime, see § 13-751(F)(2); and the crime

was especially heinous and depraved, see § 13-751(F)(6).

VanWinkle concedes the State proved the (F)(7)(a) and (F)(2)

aggravators by presenting certified copies of his convictions

and evidence that he was in custody at the time of the murder.

¶39 VanWinkle contends, however, that the State presented

insufficient evidence that the murder was especially heinous and

depraved, failing to prove that he used gratuitous violence or

relished the murder. We disagree.

¶40 Proof that a defendant either employed gratuitous

violence or relished the killing will suffice to establish that

a murder was especially heinous or depraved. See State v.

Rienhardt, 190 Ariz. 579, 590, 951 P.2d 454, 465 (1997). Here,

there was sufficient evidence that VanWinkle both used

gratuitous violence and relished the murder.

¶41 VanWinkle beat Robert for nearly twenty minutes,

strangling him, punching him, beating his head against the

floor, and jumping up and down on his motionless body.

VanWinkle admitted that he began his attack with a choke hold,

and medical testimony indicated Robert would have been

asphyxiated within a few minutes. The surveillance video

reflects that less than two minutes after VanWinkle began his

18

attack, Robert became motionless, apparently losing

consciousness and dying thereafter. And VanWinkle testified

repeatedly that he concluded at some point that Robert had died,

yet he continued to beat him and tried to throw his body over

the second floor railing. VanWinkle thus clearly continued to

inflict violence after he knew he had killed Robert. This is

the very definition of gratuitous violence. See Bocharski, 218

Ariz. at 494 ¶ 87, 189 P.3d at 421.

¶42 The jury could also readily conclude that VanWinkle

relished the murder. Because the crime was video recorded, the

jury could see VanWinkle’s demeanor as he repeatedly jumped up

and down on Robert before dragging him from the cell and

attempting to throw him over the railing. VanWinkle shouted

that he was “going to throw this motherfucker over the tier.”

See State v. Runningeagle, 176 Ariz. 59, 65, 859 P.2d 169, 175

(1993) (finding relishing when defendant laughed and bragged of

“good fight” immediately after murder). The State played audio

recordings of a jailhouse phone call in which VanWinkle

described himself as “enrapture[d]” when he was killing Robert.

Although the phone call took place nearly a year after the

murder, VanWinkle clearly described how he was feeling at the

time of the crime. See State v. Greene, 192 Ariz. 431, 441

¶ 40, 967 P.2d 106, 116 (1998) (noting that statements after a

crime that “provide clear insight into [the defendant’s] state

19

of mind at the time of the killing” are evidence of relishing).

From this evidence, the jury could readily conclude that, as

evidenced by his words and actions, VanWinkle “savored or

enjoyed the murder at or near the time of the murder.” Id. at

441 ¶ 39, 967 P.2d at 116.

¶43 Given the relative weakness of VanWinkle’s proffered

mitigation and the proof of the three aggravating circumstances,

the jury did not abuse its discretion in determining that death

was the appropriate sentence.

IV. CONCLUSION

¶44 For the foregoing reasons, we affirm VanWinkle’s

conviction and sentence.3

_____________________________________
Robert M. Brutinel, Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
Scott Bales, Vice Chief Justice

_____________________________________
A. John Pelander, Justice

3
VanWinkle raises eighteen issues to avoid preclusion on
federal review. His statements of those issues and the cases he
cites rejecting his contentions are presented verbatim in the
Appendix.

20

APPENDIX

1. The death penalty is per se cruel and unusual
punishment. Gregg v. Georgia, 42 U.S. 153, 186-87, 96
S.Ct. 2909, 49 L.Ed.2d 859 (1976); State v. Salazar, 173 Ariz. 399, 411, 844 P.2d 566, 578 (1992); State v.
Gillies, 135 Ariz. 500, 507, 662 P.2d 1007, 1014
(1983).

2. Execution by lethal injection is cruel and unusual
punishment. State v. Hinchey, 181 Ariz. 307, 315, 890
P.2d 602, 610 (1995).

3. The death statute is unconstitutional because it fails
to guide the sentencing jury. State v. Greenway, 170
Ariz. 155, 164, 823 P.2d 22, 31 (1991).

4. The statute unconstitutionally fails to require either
cumulative consideration of multiple mitigating
factors or that the jury make specific findings as to
each mitigating factor. State v. Gulbrandson, 184
Ariz. 46, 69, 906 P.2d 579, 602 (1995); State v.
Ramirez, 178 Ariz. 116, 131, 871 P.2d 237, 252 (1994);
State v. Fierro, 166 Ariz. 539, 551, 804 P.2d 72, 84
(1990).

5. Arizona’s statutory scheme for considering mitigating
evidence is unconstitutional because it limits full
consideration of that evidence. State v. Mata, 125
Ariz. 233, 242, 609 P.2d 48, 57 (1980).

6. Arizona’s death statute insufficiently channels the
sentencer’s discretion in imposing the death sentence.
State v. West, 176 Ariz. 432, 454, 862 P.2d 192, 214
(1993); Greenway, 170 Ariz. at 162, 823 P.2d at 31.

7. Arizona’s death statute is unconstitutionally
defective because it fails to require the State to
prove that death is appropriate. Gulbrandson, 184
Ariz. at 72, 906 P.2d at 605.

21

8. The prosecutor’s discretion to seek the death penalty
unconstitutionally lacks standards. Salazar, 173
Ariz. at 411, 844 P.2d at 578.

9. The Constitution requires a proportionality review of
a defendant’s death sentence. Salazar, 173 Ariz. at
416, 844 P.2d at 583; State v. Serna, 163 Ariz. 260,
269-70, 787 P.2d 1056, 1065-66 (1990).

10. There is no meaningful distinction between capital and
non-capital cases. Salazar, 173 Ariz. at 411, 844
P.2d at 578.

11. Applying a death statute enacted after the Supreme
Court’s decision in Ring II violates the ex post facto
clauses of the federal and state constitutions and
A.R.S. § 1-244. Ring III, 204 Ariz. at 545-47 ¶¶ 15-
24, 65 P.3d at 926-928.

12. The death penalty is cruel and unusual because it is
irrationally and arbitrarily imposed and serves no
purpose that is not adequately addressed by life in
prison. State v. Pandeli, 200 Ariz. 365, 382 ¶ 88, 26
P.3d 1136, 1153 (2001), vacated on other grounds, Ring
v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d
556 (2002); State v. Beaty, 158 Ariz. 232, 247, 762
P.2d 519, 534 (1988).

13. Arizona’s death penalty statute is unconstitutional
because it requires imposition of the death penalty
whenever at least one aggravating circumstance and no
mitigating circumstances exist. Walton v. Arizona, 497 U.S. 639, 648, 110 S.Ct. 3047, 111 L.Ed.2d 511
(1990); State v. Miles, 186 Ariz. 10, 19, 918 P.2d
1028, 1037 (1996); State v. Bolton, 182 Ariz. 290,
310, 896 P.2d 830, 850 (1995). State v. Tucker
(“Tucker II”), 215 Ariz. 298, 160 P.3d 177 (2007).

14. The death penalty is unconstitutional because it
permits jurors unfettered discretion to impose death
without adequate guidelines to weigh and consider
appropriate factors and fails to provide principled
means to distinguish between those who deserve to die
or live. State v. Johnson, 212 Ariz. 425, 440 ¶ 69,
133 P.3d 735, 750 (2006).

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15. The trial court improperly omitted penalty phase
instructions that the jury could consider mercy or
sympathy in evaluating the mitigation evidence and
determining whether to sentence the defendant to
death. State v. Carreon, 210 Ariz. 54, 70-71 ¶¶ 81-
87, 107 P.3d 900, 916-17 (2005).

16. The jury instruction that required the jury to
unanimously determine that the mitigating
circumstances were “sufficiently substantial to call
for leniency” violated the Eighth Amendment. State v.
Ellison, 213 Ariz. 116, 139 ¶¶ 101-102, 140 P.3d 899,
922 (2006).

17. The refusal to permit voir dire of prospective jurors
regarding their views on specific aggravating and
mitigating circumstances violates Appellant’s rights
under the Sixth and Fourteenth Amendments. State v.
Johnson, 212 Ariz. 425, 440 ¶¶ 29-35, 133 P.3d 735,
750 (2006).

18. Refusing to instruct the jury to permit the
introduction of evidence and argument regarding
residual doubt violated Appellant’s rights under the
Sixth, Eighth, and Fourteenth Amendments and Arizona
law. State v. Harrod (Harrod III), 218 Ariz. 268,
278-79 ¶¶ 37-39, 183 P.3d 519, 529-30 (2008); State v.
Garza, 216 Ariz. 56, 70 ¶ 67, 163 P.3d 1006, 1020
(2007).

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