finding improper the prosecutor’s comment in rebuttal that “only 8 STATE v. GASTELUM Decision of the Court two individuals knew detailed information of the crime: ‘[o]ne is [a co-conspirator] and the other one is sitting right here at the table asking you not to hold him accountable through his lawyer’”
How later courts described this case
- finding improper the prosecutor’s comment in rebuttal that “only 8 STATE v. GASTELUM Decision of the Court two individuals knew detailed information of the crime: ‘[o]ne is [a co-conspirator] and the other one is sitting right here at the table asking you not to hold him accountable through his lawyer’”
- concluding that the prosecutor’s statement was an impermissible comment on defendant’s failure to testify, but the error did not contribute to the jury’s verdict in light of the “overwhelming evidence of guilt and the context within which it was made”
- concluding that prosecutor’s statement was an impermissible comment on defendant’s failure to testify, but the error did not contribute to the jury’s verdict in view of the “overwhelming evidence of guilt and the context within which it was made”
- finding the prosecutor’s explanation—that the juror was struck because he had previously served on a criminal jury that returned not guilty verdicts—to be “a facially objective basis for a peremptory challenge, unrelated to race or gender”
Written by the judges who cited it.
The opinion
JONES, Vice Chief Justice,
dissenting:
I respectfully dissent. After weighing the aggravating and mitigating factors, I would affirm the death sentence. I agree with the majority that the murder was committed for pecuniary gain, A.R.S. Section 13-703(F)(5), and in an especially heinous, cruel or depraved manner. See A.R.S. Section 13-703(F)(6); State v. LaGrand, 153 Ariz. 21, 35-36 , 734 P.2d 563, 577-78 (1987). The record demonstrates that the murder was not accidental, but planned, and that the defendant participated fully in the crime. See State v. Greenway, 170 Ariz. 155, 164-65 , 823 P.2d 22, 31-32 (1991). The crime was cruel, lasting not minutes but approximately two hours from the time the victim was accosted and kidnapped in the shopping center parking lot until her violent death in the desert. For a prolonged period prior to her death, defendant knowingly and intentionally subjected her to unspeakable anguish. See State v. Kiles, 175 Ariz. 358, 371 , 857 P.2d 1212, 1225 (1993); State v. Apelt, 176 Ariz. 369, 376-77 , 861 P.2d 654, 661-62 (1993); State v. Lambright, 138 Ariz. 63, 75 , 673 P.2d 1, 13 (1983).
Weighed against the claim that defendant was a mere follower, led to commit this crime by his fourteen-year-old accomplice, I am not *24 persuaded that mitigating factors consisting of defendant’s dysfunctional family background and his emotional and mental condition should excuse his participation in any degree. See State v. McKinney, 185 Ariz. 567, 580 , 917 P.2d 1214, 1217 (1996); State v. King, 180 Ariz. 268, 282 , 883 P.2d 1024, 1038 (1994). Clearly, the difficulties faced in childhood and adolescence created substantial challenges for defendant. The record persuades me, however, that no meaningful link exists between his abuse as a child and a crime of this magnitude. I perceive no significant evidence to show that even though defendant could appreciate the wrongfulness of his conduct, his ability to follow the law was impaired at the time of the offense. See A.R.S. § 13-703(G)(1); State v. Rossi 154 Ariz. 245, 251 , 741 P.2d 1223, 1229 (1987). I would agree with Dr. Joseph Geffen’s testimony that defendant’s childhood experience impacted his behavior, but, not to the extent that he need not be held supremely accountable for his actions against the victim in this case. See, e.g., State v. Thornton, 187 Ariz. 325, 334 , 929 P.2d 676, 685 (1996). His past did not rob him of the ability to decide whether it was unlawful to commandeer a car he did not own, and take the life of the owner after the events and in the manner described in this record. It is sufficiently clear that defendant understood the nature of his crime and could easily have prevented both the killing and the attendant aggravation. The evidence leads me to conclude that defendant does not warrant a reduction in sentence.
MARTONE, J., concurs.