State v. Pete J. Vanwinkle ( 2012 )

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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