State v. Salazar

FELDMAN, Chief Justice,

specially concurring.

Respectfully, I concur in today’s holding. I write separately to state my view that this court should not abandon proportionality review in capital cases. I have fully set out my reasoning in State v. White, 168 Ariz. 500, 525 , 815 P.2d 869, 894 (1991) (Feldman, V.C.J., specially concurring), cert. denied, — U.S.-, 112 S.Ct. 1199 , 117 L.Ed.2d 439 (1992).

In abandoning this “court-created” procedure and its accompanying precedent, the majority relies on Hedlund v. Sheldon, 173 Ariz. 143 , 840 P.2d 1008 (1992), and observes that this court has wide latitude in re-examining authority that is a product of this court’s rule making. Salazar, at 417, 844 P.2d at 584. I have no quarrel with the majority’s conclusion that this court has relatively great leeway in reviewing precedent that concerns its own procedures.

Hedlund , however, was guided by “a recognition that the judicial process benefits from [a change] according flexibility and discretion to judges in their efforts to manage a large and complex caseload.” 173 Ariz. at 144 , 840 P.2d at 1009 . Because I continue to believe that proportionality review serves an important and substantial function, I would not overrule prior precedent and discontinue its use. See, e.g., State v. Fierro, 166 Ariz. 539, 555-57 , 804 P.2d 72, 86-88 (1990). Instead of surrendering to its shortcomings, see White, 168 Ariz. at 522-24 , 815 P.2d at 891-93 (Corcoran, J., specially concurring), we should strive to achieve its indispensable objective: fairness when imposing the state’s most severe penalty. See generally David C. Baldus, et al., Arbitrariness and Discrimination in the Administration of the Death Penalty: A Challenge to State Supreme Courts, 15 Stetson L.Rev. 133 (1986). By eliminating the safeguard of proportionality review, the court gains little, if anything; sacrifices the added protection and confidence provided by this procedure; and fails to adequately recognize judicial, indeed human, fallibility.

Justice Martone’s concurrence takes the view that proportionality reviews should be discontinued because they

are performed in a non-adversarial setting, without any pretense at real science. They require a court to engage in the alchemy of measuring degrees of depravity among a handful of selected cases. The pursuit of justice does not require us to engage in unauthorized false science.

Salazar, at 417, 844 P.2d at 584 (Martone, J., specially concurring). Implicit in this, I fear, is the idea that death penalty jurisprudence is some form of “real science” and that, in deciding who should live and who should die, courts do not “engage in the alchemy of measuring degrees of depravity.” See id. To my observation, nothing could be further from the case.

The object of our death penalty jurisprudence is to try to separate the exceptional crime or criminal from the “normal” murder or murderer, for it is only the former that is death-penalty eligible. Fierro, 166 Ariz. at 548, 556 , 804 P.2d at 81, 89 . Thus, we must determine whether any aggravating circumstances are present that make *419 the defendant death eligible—for example, whether a killing was committed “in an especially heinous, cruel or depraved manner.” A.R.S. § 13-703(F)(6). If there is some “real science” to separating “especially” heinous, cruel, or depraved killers from “ordinary” heinous, cruel, or depraved killers, it escapes me. It also has escaped the court. Compare State v. Jimenez, 165 Ariz. 444, 453-55 , 799 P.2d 785, 794-96 (1990) (although heinous and depraved, the court held that the evidence was insufficient to find that a murder was especially cruel where the defendant strangled his five-year-old victim and left her under a bed but returned after hearing her cry to strangle her again), with State v. Beaty, 158 Ariz. 232, 237, 242 , 762 P.2d 519, 524, 529 (1988) (court held that murder was especially cruel where defendant asphyxiated his thirteen-year-old victim by clamping his hand over her mouth, causing her to vomit), cert. denied, 491 U.S. 910 , 109 S.Ct. 3200 , 105 L.Ed.2d 708 (1989); compare also State v. Chaney, 141 Ariz. 295, 312-13 , 686 P.2d 1265, 1282-83 (1984) (court held that murder was especially heinous, cruel, and depraved where the defendant shot his victim with an automatic weapon), and State v. Johnson, 147 Ariz. 395, 397, 400-01 , 710 P.2d 1050, 1052, 1055-56 (1985) (court held that senseless murder was not especially heinous, cruel, or depraved where the defendant killed his victim with a shot gun blast while the victim lay sleeping). The very use of the term “especially” in A.R.S. § 13-703(F)(6) requires comparison of one crime or criminal to others—a question of proportionality.

Although choosing between life and death is better left to divine judgment, we are bound by law to do it. We must do what the law commands, but, in doing so, we should not pretend we apply rules of logic and science. In Arizona, for instance, one becomes death eligible when killing to rob but not when killing to rape. See A.R.S. § 13-703(F)(5). One becomes death eligible if, hand trembling because of fear, mental illness, or drug use, one fails to aim accurately or kill with the first blow and the victim fortuitously suffers and dies slowly. See Chaney, 141 Ariz. at 312 , 686 P.2d at 1282 (affirming death penalty in case where the defendant’s gunfire did not kill the victim instantaneously, but, instead, the victim suffered for thirty minutes before losing consciousness and dying). The assassin who senselessly shoots with steady hand and kills in cold blood or uses a weapon with ruthless efficiency and dispatch and causes immediate death does not kill cruelly and may not be death eligible. See Johnson, 147 Ariz. at 397, 400-01 , 710 P.2d at 1052, 1055-56 (cruelty not even considered where the defendant shot his sleeping victim, who “rapidly bled to death”). If this, too, is “real science,” its logic escapes me.

The truth of the matter is that in determining whether to impose the ultimate penalty, we must compare the case before us with others. Why else all those case citations in determining what is “especially heinous, cruel or depraved”? See, e.g., Jimenez, 165 Ariz. at 453-55 , 799 P.2d at 794-96 ; State v. Hinchey, 165 Ariz. 432, 437-39 , 799 P.2d 352, 357-59 (1990), cert. denied, — U.S.-, 111 S.Ct. 1589 , 113 L.Ed.2d 653 (1991); Beaty, 158 Ariz. at 242-43 , 762 P.2d at 529-30 ; Johnson, 147 Ariz. at 400-01 , 710 P.2d at 1055-56 ; State v. Wallace, 151 Ariz. 362, 366-67 , 728 P.2d 232, 236-37 (1986), cert. denied, 483 U.S. 1011 , 107 S.Ct. 3243 , 97 L.Ed.2d 748 (1987); Chaney, 141 Ariz. at 312 , 686 P.2d at 1282 ; State v. Brookover, 124 Ariz. 38, 40-41 , 601 P.2d 1322, 1324-25 (1979); State v. Lujan, 124 Ariz. 365, 372 , 604 P.2d 629, 636 (1979). Proportionality review is simply another form of comparison entailing no more “alchemy” than the rest of our capital jurisprudence. It is a tool by which the court can compare and remedy injustice when, as, and if it is perceived. It is wrong to discard this tool, especially if we do so under the illusion that we will thereby return to some scientific method of capital punishment. We are not smart enough to know the answer to the age-old question of who should live. It is one that can be correctly answered only with divine knowledge of proportionality and purpose. Because we must stumble on with human intelligence, we should use every tool in our possession to hold error and injustice to a minimum.

ZLAKET, J., concurs.

*420 APPENDIX

The Court finds beyond reasonable doubt that the Defendant committed the offense in an especially heinous or cruel manner, in that the evidence shows that the Defendant and Mr. Davis went to the house in the middle of the night where they knew a frail, elderly woman lived; that they removed the wrought iron on the window that had been placed there for her protection; that at the time that this was occurring, the television was on.

So, the Court determines that there is no doubt that the men knew that the residence was occupied at that point.

The Defendant then went to a relatively secluded part of the residence where she slept.

The Court further finds that the position of the bedroom or sleeping area was such that you could not just accidentally run into her because it was in a relatively secluded portion of the house with only one way to get there.

The Court finds that this was not an accidental interaction with the victim.

The Court further notes that there was a large number of file cabinets and other storage places in the house.

The footprints of two different individuals that were found somewhere on her were—were on her body. Some footprints were on the top of the table wherein the body was found and the footprints were left by different type shoes.

There were a number of file drawers opened and there were numerous and varied areas where valuables, if she had any, could have been hidden.

The Court further notes that there were a number of injuries to [the victim] implying a number of blows to her face and body, including a blow to her forehead, one behind her ear, one to her mouth, one under the chin, and a blow to her shoulder.

She was a frail person weighing approximately eighty-nine pounds, and was approximately eighty-three years of age.

She was strangled with a telephone cord after the beating, and the telephone cord was looped twice around her neck with great force.

Fingerprints or palm prints of the Defendant Davis and the fingerprints of the Defendant Salazar in what appeared to be blood were found immediately adjacent to where the strangled body was located.

Of the two different kinds of footprints that were found on the table where the body lay, one set was on her body. The other footprint was left on the table where she-had been stepped on, and there was an imprint on the arm and the table.

The Court further notes that in addition to Mr. Salazar’s fingerprints that was left in what appeared to be blood, there were scratches on his chest.

Either cruelness of mind or depravity was exhibited by the placement of the telephone back on the receiver while the cord was entwined around [the victim’s] throat.

The Court finds that the forensic evidence indicates that this was a planned, calculated attempt to go to her bedroom. And I believe what occurred afterwards was an attempt to extract, if possible, information of where imagined valuables were hidden. That explains in this Court’s view the number of blows and injuries she suffered before she was strangled.

Under those circumstances, the Court finds that this was an especially cruel, heinous or depraved murder because of the excessive amount of gratuitous violence on the victim, the senselessness of the murder and the helplessness of the victim.

The Court further finds no mitigating circumstances as set forth in ARS 13-703 as amended, Subsection G, Paragraphs 1 through 5.

The Court has considered specifically Section 13-703(G)(3).

Court, after considering that as a potential mitigating factor, finds that the preponderance of evidence does not show that the Defendant was not present at the time of the murder.

*421 The facts and circumstances of how the entry was made, where the bedroom was, and the footprints and fingerprints of both Defendants instead show beyond reasonable doubt that both were present when [the victim] was murdered.

Considering the possibility of other mitigating factors, Court finds the following mitigating factors:

Number 1, the Defendant’s lack of a prior felony conviction;

Number 2, the fact that alcohol and perhaps other substances were used prior to the break-in;

Number 3, the felony-murder instruction that was given to the jury;

Number 4, the question as to whether the Defendant did the actual strangulation.

The Court finds as to Mitigating Factors 3 and 4 the following additional findings: The Defendant Salazar was a major participant in the felony committed, and that his involvement led to either the actual participation in the strangulation or the other violence perpetrated on the victim, or indicated reckless indifference to human life by the Defendant’s actions, when in his presence the victim was being murdered.

In this connection, however, the Court notes the fingerprints of Defendant Salazar in what appeared to be blood and the fresh scratches observed shortly after the incident on the Defendant’s chest.

Further, the Court notes his disposing of his shoes shortly after he left the house. This is contrasted to his story wherein he indicated in the trial that he left prior to any violence being perpetrated on the victim.

The Court finds that under those circumstances that the mitigating factors are not sufficiently mitigating to outweigh the aggravating factors found by the Court beyond reasonable doubt.