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Murray v. Schriro

United States Court of Appeals, Ninth Circuit

February 14, 2018

Roger W. Murray, Petitioner-Appellant,
v.
Dora Schriro, Warden, Respondent-Appellee.

          Argued and Submitted September 13, 2012 Las Vegas, Nevada

         Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding D.C. No. 2:03-CV-00775-DGC

          John E. Charland (argued), The Charland Law Firm, Phoenix, Arizona, for Petitioner-Appellant.

          Jeffrey A. Zick (argued) and Jacinda A. Lanum, Assistant Attorneys General, Capital Litigation Section; Lacey Stover Gard and Kent E. Cattani, Chief Counsel; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Respondent-Appellee.

          Before: Johnnie B. Rawlinson, Jay S. Bybee, and Sandra S. Ikuta, Circuit Judges.

         ORDER AND AMENDED OPINION

         SUMMARY[*]

         Habeas Corpus/Death Penalty

         The panel amended an opinion affirming the denial of a 28 U.S.C. § 2254 habeas corpus petition challenging a conviction and capital sentence for murder, denied a petition for rehearing, and denied on behalf of the court a petition for rehearing en banc.

         In the amended opinion:

         The panel affirmed the denial of relief as to petitioner's change of venue motion, including as to petitioner's contention that there is a heightened obligation to change venue in capital cases. The panel held that the state court's decision-that the substantial media coverage of this "sensational, small-town murder" was not constitutionally prejudicial-was not contrary to or an unreasonable application of Supreme Court precedent.

         For the reasons set forth in Robert Murray v. Schriro, 745 F.3d 984 (9th Cir. 2014), the panel affirmed the denial of relief as to petitioner's claim under Batson v. Kentucky, 476 U.S. 79 (1986). The panel wrote that, in addition, it was not persuaded that the outcome of the Batson issue would change had comparisons been made between prospective jurors.

         The panel affirmed the denial of relief as to petitioner's claim that he was denied due process based on a belated request for access to the sanitized crime scene.

         The panel affirmed the denial of relief as to petitioner's request for jury instructions on voluntary intoxication and second degree murder. The panel held that the evidence in the record did not support the request, and that the state court's denial of relief was consistent with Supreme Court precedent.

         The panel affirmed the denial of relief as to petitioner's claim that the sentencing court misapplied Eddings v. Oklahoma, 455 U.S. 104 (1982), and its progeny by requiring a nexus between evidence of petitioner's dysfunctional childhood and his commission of the crimes. The panel held that any such causal nexus error was harmless.

         The panel held that the state court's denial of relief on petitioner's claims of ineffective assistance of counsel was not contrary to or an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984), and did not warrant a remand under Martinez v. Ryan, 132 S.Ct. 1309 (2012).

         ORDER

         The opinion in this case, published at 746 F.3d 418 (9th Cir. 2014), is hereby amended as follows:

         1. 746 F.3d at 448, Claim Six - Batson Violation

a. Change the Murray citation to <745 F.3d 984, 1006-10 (9th Cir. 2014)>.
b. Insert the following language at the end of the section: <In addition, we are not persuaded that the outcome of the Batson issue would change had comparisons been made between prospective juror Alvarado and prospective jurors A and N. As Roger noted, both these jurors "edged . . . away from their questionnaire answers" indicating indecisiveness. The third juror mentioned by Roger, Juror B, gave no indication of indecisiveness>.

         2. 746 F.3d at 455, Claim Twenty-Six - Failure to Appropriately Consider Mitigating Evidence

a. Second Paragraph, last line: Change <Murray, 906 P.2d at 577> to <Id. at 577>.
b. Fourth Paragraph:
i. Line 4 - Delete the citation to Towery v. Ryan, 673 F.3d 933, 946 (9th Cir. 2012) (per curiam).
ii. Delete the last sentence beginning with <On the other hand, > through the citation to Lopez v. Ryan, 630 F.3d 1198, 1204 (9th Cir. 2011), and the accompanying parenthetical.
3. 746 F.3d at 455-56: Delete the fifth paragraph on page 455, beginning with <In determining whether> through the citation to Styers, 547 F.3d at 1035 and the accompanying parenthetical; the last paragraph of page 455, continuing to page 456, beginning with <After closely reviewing> through <See id. at 577>; and the following paragraph on page 456, beginning with <Taken in the full context> through the citation to <See Lopez, 630 F.3d at 1204>, and the accompanying parenthetical.

         4. 746 F.3d at 457: Delete the final paragraph of the section, beginning with <In sum, > through the citation to <See Stokley, 705 F.3d at 404>, and the accompanying parenthetical.

         5. 746 F.3d at 466, SUMMARY

Replace the third paragraph of the section beginning with <As the Arizona Supreme Court detailed>, through <with Supreme Court precedent> with the following language: <Any causal nexus error in the state court's consideration, at sentencing, of mitigation evidence relating to Roger's troubled childhood was harmless.>

         A copy of the Amended Opinion is attached.

         With these amendments, the panel has voted to deny the Petition for Rehearing. The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

         The petition for rehearing and petition for rehearing en banc, filed March 8, 2017, are DENIED.

         No further petitions for rehearing may be filed.

          OPINION

          RAWLINSON, Circuit Judge:

         Petitioner-Appellant Roger Murray (Roger) appeals the district court's denial of his petition for habeas corpus challenging the death sentence imposed following his convictions for murder and armed robbery.

         I. BACKGROUND[1]

         Dean Morrison (Morrison), age 65, and Jacqueline Appelhans (Appelhans), age 60, operated a store and restaurant in Grasshopper Junction, a rural area outside Kingman, Arizona. See State v. Murray, 906 P.2d 542, 553 (Ariz. 1995). On May 14, 1991, between 8:30 and 9:00 a.m., an acquaintance discovered the bodies of Morrison and Appelhans lying face down, in their bathrobes, after being shot multiple times in the head. See id. at 553-54.

         At the crime scene, a revolver was found on the couch and a .22 caliber semiautomatic rifle was leaning against the wall. See id. at 554. Near the bodies were various .22 and .38 caliber bullets, as well as shotgun pellets. See id. Two weeks after the crime, Morrison's sister found a .25 caliber bullet in the pantry. See id.

         In the living room, drawers were pulled out and the contents scattered. See id. The bedrooms and kitchen were also ransacked. See id. A .303 rifle was on a bed and $172 was on a desk chair. See id. Morrison's wallet containing $800 was undisturbed in his pants pocket. See id. The drawer from the cash register in the store had been removed, and the gas register was left on. See id. Morrison's glasses, a flashlight, and a set of keys were found on the patio of the store. See id. In addition, three live .38 caliber bullets were found near the gas pumps. See id.

         Detective Lent of the Mohave County Sheriff's Department and another officer found and noted four sets of footprints, other than those of the investigating officers and the acquaintance who discovered the bodies. See id. Two sets of footprints belonged to the victims, a third set was made by tennis shoes, and the fourth set by western boots. See id. A different set of three footprints were made by the tennis shoes, the western boots, and Morrison's slippers. See id. Morrison's footprints indicated resistance by him. See id. At the time of their arrest, Roger was wearing tennis shoes and Robert was wearing western boots, both of which were consistent with the footprints analyzed at the crime scene. See id. at 553-54.

         Morrison's autopsy revealed that he had suffered a shotgun blast that shattered his skull. See id. He also suffered two gunshot wounds from a large caliber pistol. See id. at 554-55. A .38 caliber bullet was recovered from the back of his neck and large caliber buckshot was removed from his head. See id. at 555. Found next to Morrison was a fired .38 caliber bullet. See id. Morrison had lacerations and abrasions on his face, elbow, forearm, knee, and thigh. See id. The autopsy revealed that these injuries occurred at approximately the same time as the gunshot wounds. See id.

         Appelhans was shot with at least three different guns. See id. A shotgun blast shattered her head. See id. Two .38 caliber slugs were removed from her skull. See id. She also suffered .22 caliber wounds that entered at the back of the neck and exited her face. See id. Aspiration hemorrhaging in her lungs indicated a lapse of time between the initial gunshot and death. See id. The shotgun blast was definitely lethal, and the .38 caliber bullets were also a possible cause of death. See id.

         Before the bodies were discovered, police officers found one of Morrison's tow trucks abandoned on Interstate 40 westbound near Kingman, Arizona. See id. at 553. Roger and Robert were arrested on unrelated charges on Interstate 40 eastbound near Holbrook, Arizona. See id. The brothers were driving a Ford sedan with Alabama license plates. See id. at 554. When an officer attempted to stop the vehicle, the brothers fled, driving in excess of eighty-five miles per hour. See id. During their flight, the brothers breached a manned and armed roadblock. See id. The brothers stopped only after their vehicle ran off the road into a wash that impeded further progress. See id. Robert, the driver, threw a .38 revolver containing four bullets from the car. See id. Roger discarded a loaded .25 semiautomatic pistol. See id. Additionally, Robert had two spent shotgun shell casings in his pants pocket. See id.

         A loaded twelve gauge sawed-off shotgun and shotgun shells were discovered inside the car. See id. A checkered cushion cover that matched the cushion on Morrison's couch contained rolled coins stamped "Dean's Enterprises, Grasshopper Junction, Kingman, Arizona, 86401." Id. A blue pillow case contained approximately $1400 in coin rolls and $3300 in cash. See id. Gloves and a hotel receipt were also in the vehicle. See id. Records from the hotel indicated that the brothers had listed a Ford sedan, the description of which matched the vehicle they were driving at the time of their arrest, on the hotel registration card. See id. Officers retrieved from the sedan an atlas with circles around the locations of two rural establishments, the Oasis and Grasshopper Junction, which were not otherwise indicated on the map. See id.

         Keys found in Robert's pants pocket were later identified as the keys to a pickup truck on Morrison's property. See id. A scanner and connecting knob in the sedan fit an empty bracket in the abandoned tow truck. See id. It was determined that the casings found at the crime scene and in Robert's pocket were fired from the guns possessed by Roger and Robert. See id. at 555.

         Human blood and tissue were found on Robert's shirt, on Roger's pants, and on the cushion cover. See id. The blood on Roger's pants could have come from either victim or from Robert, but not from Roger. See id. The blood on Robert's shirt was consistent with that of either victim, but not with the blood of Roger or Robert. See id. The blood on the cushion cover could have come from Appelhans, but not from Morrison or the Murrays. See id. No DNA tests were conducted. See id.

         The brothers were indicted for the first degree murders of Morrison and Appelhans and for the armed robbery of Morrison. See id. A jury convicted them of all charges. See id. The first degree murder verdicts were unanimous for both premeditated murder and felony murder. See id. After separate sentencing hearings, the trial court found that the state had proven three aggravating circumstances as to each defendant: the murders were committed for pecuniary gain, as defined in A.R.S. § 13-703(F)(5);[2] the murders were especially heinous, cruel or depraved, as provided in § 13-703(F)(6);[3] and the defendants committed multiple homicides, as described in § 13-703(F)(8).[4] See id. Finding the mitigation evidence insufficient to outweigh the aggravating circumstances, the trial court denied leniency for both defendants and imposed a sentence of death. See id.

         The Arizona Supreme Court affirmed the convictions and sentences. See id.

         A. Direct Appeal - Robert and Roger

         On October 26, 1995, the Arizona Supreme Court affirmed the convictions and sentences. See id. at 553. On direct appeal, the brothers raised five issues: (1) jury selection; (2) pretrial motions; (3) evidentiary issues; (4) motion for acquittal; and (5) special verdict form. See id. at 555-65. Roger raised five additional trial issues: (1) jury sequestration; (2) jury instructions; (3) request for mistrial; (4) prosecutorial misconduct; and (5) visitation of the crime scene. See id. at 565-69. In addition, Roger raised three sentencing issues: (1) objective standards and prosecutorial discretion; (2) independent review; and (3) aggravating factors. See id. at 569-71. Roger also raised issues related to the following statutory mitigation factors: (1) capacity to appreciate wrongfulness of conduct or conform conduct to requirements of the law, (2) relatively minor participation; (3) age; (4) duress; and (5) no reasonable foreseeability that his conduct would create a grave risk of death. See id. at 573-77.

         The Arizona Supreme Court also addressed the following nonstatutory mitigation factors that Roger raised during trial: (6) dysfunctional childhood and family relations; (7) medical treatment; (8) remorse; (9) drug and alcohol use; and (10) mental health. See id. at 577-78. For the first time on direct appeal Roger urged as mitigation factors: (11)education; (12) residual or lingering doubt; (13) felony murder instruction; and (14) cooperation. See id. at 578.

         1. Jury Selection

         The original master jury list used was composed of a one-and-a-half-year-old driver's license list in violation of Arizona law. See id. at 555. Just days before trial was scheduled to begin, the trial court ordered that a new jury list be created using both the old driver's license list and a list of registered voters. See id. The jury commissioner advised the trial court that the new list would generate adequate potential jurors by the date of trial, even though the deadline to respond was beyond the date trial was scheduled to begin. See id. Robert and Roger argued that (1) the truncated time to respond to the jury questionnaire resulted in fewer potential jurors from more remote portions of the county; and (2) the one-and-a-half-year-old driver's license list resulted in fewer young prospective jurors. See id. Robert and Roger contended that these infirmities denied them a jury of their peers because they hailed from a small, rural area in Alabama and were young at the time of trial. See id. at 555-56. The Arizona Supreme Court concluded that Robert and Roger failed to establish the lack of a fair and impartial jury or prejudice. See id. The brothers failed to show that they were denied the right to have jurors selected from a fair cross-section of the community, or systematic exclusion of any discrete segment of the community. See id. at 556. The court noted that "failure to follow statutory procedures is harmless, absent some separate showing of prejudice or discrimination . . . ." Id.

         The brothers also contended that the jury commissioner's use of standardless exclusions violated their constitutional rights. See id. However, the Arizona Supreme Court determined that the jury commissioner, within her discretion, excused and notified potential jurors in accordance with state law. See id. at 557. The court concluded that the brothers were not denied their right to a jury drawn from a fair cross-section of the community, because the criteria used were neutral and did not "constitute systematic exclusion." Id. (citation omitted).

         Finally, Robert and Roger asserted a Batson[5] violation when the prosecution used peremptory challenges to dismiss the only two Hispanic potential jurors. See id. at 557-58. The Arizona Supreme Court rejected the Batson challenge, concluding that the trial court's acceptance of the prosecutor's race-neutral explanation for striking the Hispanic jurors was not an abuse of discretion. See id.

         2. Pretrial Motions

         a. Severance

         The Arizona Supreme Court concluded that the trial court did not abuse its discretion in declining to sever the brothers' cases. See id. at 558. The court noted that "joint trials, are the rule rather than the exception . . . ." Id. (citation omitted). The court also pointed out that the crimes were so intertwined that it would have been virtually impossible to sever the evidence, because the evidence implicated the brothers equally. See id. The jury questionnaire screened out prospective jurors who would have trouble segmenting the evidence, and the trial court instructed the jury to consider the evidence separately against each defendant. Under these circumstances, the Arizona Supreme Court found no prejudice. See id.

         b. Change of Venue

         The Arizona Supreme Court determined that Robert and Roger failed to prove presumed or actual prejudice based on the denial of their request for a change of venue due to pretrial publicity. See id. at 559. The Court emphasized that the brothers failed to show any pretrial publicity that was so outrageous that the trial was "utterly corrupted." Id. (citation omitted). Any security measures were largely effectuated when jurors were unlikely to be present. See id. Only prospective jurors who pledged to decide the case solely on the evidence were empaneled, and empaneled jurors were repeatedly admonished to avoid media coverage. See id. After reviewing this record, the Arizona Supreme Court affirmed the trial court's denial of the requested venue change. See id.

         c. Hybrid Representation

         After noting that there is no right to hybrid representation (some combination of self-representation and counsel), the Arizona Supreme Court held that the trial court acted within its discretion when it denied the brothers' requests for hybrid representation in the absence of irreconcilable conflict or incompetent counsel. See id. at 560.

         d. Library Access

         Citing Bounds v. Smith, 430 U.S. 817 (1977), the Arizona Supreme Court held that because the brothers were provided with counsel throughout the proceedings, their constitutional right to access the court was afforded, regardless of whether they were able to personally access legal materials. See id. at 561.

         3. Evidentiary Issues

         The brothers challenged the admissibility of crime scene photographs and footprint comparisons, and argued that the court improperly prevented them from impeaching a witness. See id. at 561-64. The Arizona Supreme Court determined that the challenged photographs were relevant to the case and were not unduly inflammatory. See id. at 561-62. The court also rejected the challenge to footprint comparisons made by a detective, holding that the trial court did not abuse its discretion in qualifying the detective as an expert where the detective had extensive tracking experience in criminal investigations and had previously been qualified as an expert in state and federal court. See id. at 562-63. Any issue of proper methodology "went to the weight rather than admissibility." Id. at 563 (citation omitted).

         Finally, the brothers contended that the trial court impermissibly precluded impeachment of the detective who testified regarding the footprint evidence. See id. at 563-64. During cross-examination, the detective admitted that he had previously lied under oath. See id. at 563. After hearing argument in chambers, the trial court determined that the relevant extrinsic evidence of the detective's truthfulness (or lack thereof) was minimally probative, but far outweighed by its prejudicial and confusing nature. See id. The trial court was of the view that admission of the extrinsic evidence to impeach the detective would essentially result in the trial of a collateral matter. See id. at 563-64. The Arizona Supreme Court concluded that the trial court did not abuse its discretion in applying the Arizona Rules of Evidence. See id. at 564.

         4. Motion for Acquittal

         Robert and Roger moved for acquittal, arguing that there was not substantial evidence to support a conviction. See id. at 564. The Arizona Supreme Court concluded that there was substantial evidence supporting the robbery and felony murder convictions, including signs of a struggle, to establish that the defendants used force to rob the victims. See id. The court also clarified that the prosecution did not need to establish that Roger killed or intended to kill to prove felony murder under Arizona law. See id. at 564-65. Rather, the prosecution need only establish that a principal or accomplice attempted to commit or committed a robbery and a person was killed during the commission of and in furtherance of the robbery. See id. at 565.

         Further, the court affirmed the existence of substantial evidence supporting the convictions for first-degree murder, namely evidence establishing that Robert and Roger were present at the crime scene and participated in the crimes, including evidence from the crime scene found on the brothers and the execution-style murders. See id.

         Finally, the Arizona Supreme Court held that the trial court issued a special verdict that was in the record, as required by law, although not specifically titled "Special Verdict." Id.

         B. Direct Appeal - (Trial Issues)

         1. Jury Sequestration

         Although the trial court denied Roger's motion to sequester the jury, the jury was repeatedly admonished to avoid media coverage. See id. at 566. Roger failed to assert or establish that the jurors failed to follow the trial court's admonitions. See id. The Arizona Supreme Court concluded that the trial court did not abuse its discretion when it denied the sequestration request. See id.

         2. Willits Jury Instruction[6]

         The Arizona Supreme Court concluded that the evidence Roger asserted that the state failed to preserve, such as the types of shoes worn by others at the crime scene and fast-food remnants, would not have tended to exonerate him. See id. Therefore, the trial court acted within its discretion when it denied the requested Willits instruction. See id.

         3. Intoxication Instruction

         Roger asserted that he was entitled to an intoxication instruction, because on the night of the murders, he and Robert had been drinking at a local bar. See id. However, the manager of the bar testified that the brothers were "handling themselves very well." Id. In view of the trial court's finding that there was no evidence that alcohol consumption affected the brothers' "ability to think, function, or form intent, " the Arizona Supreme Court concluded that Roger failed to meet his burden of showing that consumption of alcohol negated an element of the crime. Id. at 566-67 (citations omitted).

         4. Second-Degree Murder/Lesser Included Offense Instruction

         The Arizona Supreme Court explained that an instruction on second-degree murder would pertain, if at all, only to the premeditated murder count and only if supported by the evidence. See id. at 567. Due to the substantial evidence of premeditation in the record, the Arizona Supreme Court agreed with the trial court that an instruction on second-degree murder was contraindicated because the jury could have only rationally drawn the inference that Robert and Roger premeditated the murders. See id.

         5. Request for a Mistrial

         Roger's request for a mistrial stemmed from witness statements referring directly or indirectly to his in-custody status. See id. at 567. The Arizona Supreme Court concluded that the jurors were already aware that the brothers had been arrested and were in custody at some point prior to trial. The court ruled that such knowledge was not prejudicial and did not deprive the brothers of their right to a presumption of innocence. See id. at 568.

         6. Prosecutorial Misconduct

Roger alleged the following instances of misconduct:
(1) A detective's joking about the Federal Bureau of Investigations [FBI] while testifying. The objection to the FBI comment was sustained based on irrelevance and the jury was instructed to disregard it.
(2) Discussion by officers in the courthouse library that defendants were using the "fecal defense"-throwing up anything and hoping something sticks. The trial court thoroughly probed this issue and concluded that there had been no discussion of the evidence and that the jurors were unlikely to have heard the discussion.
(3) The prosecutor's alleged joking with a witness in front of the jury about whether a bartender at the Temple Bar had gone fishing in Mexico. Defendant waived this issue for failure to object at trial. See State v. White, 564 P.2d 888, 892 (Ariz. 1977).
(4) The prosecutor's joking with someone while on a cigarette break about being subpoenaed, while two jurors stood nearby. The prosecutor himself brought the incident to the court's attention; neither defendant objected [n]or moved for a mistrial in the trial court. Thus, defendant waived this issue.
(5) In closing argument, the prosecutor's referring to defendants as "the boys from Alabama." Defendant waived this issue by failing to object at trial. See State v. Hankins, 686 P.2d 740, 747 (Ariz. 1984).
(6) The prosecutor's stating that a .25 caliber bullet found on the premises had been fired by one of the brothers. The argument was permissible because a ballistics expert found that the bullet matched the pistol Roger threw from the car.
(7) Reference in closing argument by the state to defendants feeling a "sick excitement" in committing the murders. The trial court cautioned the prosecutor and the prosecutor made no more such references.

Id.

         The Arizona Supreme Court determined that the prosecutor's conduct did not negatively influence the trial because Roger failed to establish that the prosecutor's actions affected the jury's verdict in any way. See id.

         7. Visitation of the Crime Scene

         The Arizona Supreme Court determined that the trial court did not abuse its discretion by denying Roger's request to revisit the crime scene. See id. at 569. On the fourth day of trial, more than a year after the crime was committed, Roger filed a motion to revisit the crime scene. See id. (citing Ariz. R. Crim. P. 15.1(e)). The trial court denied the motion because Roger had failed to show a substantial need for the second inspection. See id. Roger's attorney had previously examined the crime scene with investigators, and the attorney and investigators were still available. Additionally, the crime scene had been cleaned. See id.

         C. Direct Appeal - (Sentencing Issues)

         1. Objective Standards and Prosecutorial Discretion

         The Arizona Supreme Court noted that Roger's arguments regarding the alleged lack of objective standards for imposing the death penalty and the broad discretion afforded the prosecution in seeking the death penalty had been rejected in previous cases. See id. (citing State v. Salazar, 844 P.2d 566, 578 (Ariz. 1992) (in banc); State v. Correll, 715 P.2d 721, 737 (Ariz. 1986) (in banc); State v. Harding, 670 P.2d 383, 397 (Ariz. 1983) (in banc)).

         2. Independent Review

         The Arizona Supreme Court explained that it conducts an independent review of death sentences for error, determines whether the aggravating circumstances were proven beyond a reasonable doubt, considers mitigating circumstances, and weighs the aggravating factors and the mitigating circumstances anew to decide whether leniency is warranted. See id.

         3. Aggravating Factors Roger challenged all three of the following aggravating factors found by the trial court:

A. Defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value. A.R.S. § 13-703 (F)(5).
B. Defendant committed the offense in an especially heinous, cruel, or depraved manner. A.R.S. § 13-703 (F)(6).
C. Defendant has been convicted of one or more other homicides which were committed during the commission of the offense. A.R.S. § 13-703 (F)(8).

Id.

         The Arizona Supreme Court concluded that there was substantial evidence to establish that Roger committed the crime for pecuniary gain, i.e., that there was financial motivation. See id. Among other evidence, a number of items, including cash were taken. See id. at 569-70. The record also supported a finding that the crimes were especially heinous, cruel, or depraved. See id. at 570. The victims were kidnapped at gunpoint, were taken by surprise, and were aware of their imminent demise. See id. The signs of struggle and fear, e.g., Appelhans clutching Morrison's arm, established mental anguish as well as pain and suffering. See id. Finally, the elderly, helpless victims were subjected to gratuitous violence and the murders were senseless. See id. at 571.

         4. Multiple Murders

         Citing its precedent, the Arizona Supreme Court rejected Roger's argument that double jeopardy foreclosed application of the multiple homicide aggravating factor where the murders were part of the same criminal offense. See id. (citing State v. Glenway, 823 P.2d 22, 34-35 (Ariz. 1991) (in banc)).

         5. Mitigating Circumstances

         The Arizona Supreme Court reviewed and addressed the following mitigating circumstances presented by Roger:

a. Capacity to Appreciate Wrongfulness of Conduct or Conform Conduct to Requirements of the Law

         After discussing Roger's juvenile problems, head injuries, hyperactivity, and substance abuse, the Arizona Supreme Court determined that Roger failed to establish that these factors, either individually or in combination, affected his capacity to appreciate the wrongfulness of his conduct or to confirm his conduct to the requirements of the law. See id. at 573-76.

         b. Relatively Minor Participation

         Roger asserted that Robert's jailhouse letters to him, in which Robert admitted participating in the killing of Morrison and Appelhans, exculpated him. Roger also referenced the lack of evidence establishing that he fired any of the guns. See id. at 576. The Arizona Supreme Court disagreed, referencing evidence at trial implicating both Robert and Roger, including footprint evidence, the fact that both defendants were armed when captured, and the fact that the victims suffered numerous bullet wounds from different weapons. See id. Additionally, the Court noted that Robert's jailhouse letters did not "indicate the role Roger did or did not play." Id. The Court determined that Roger failed to prove by a preponderance of the evidence that his role in the crimes was minor. See id.

         c. Age - (Twenty Years Old)

         The Arizona Supreme Court rejected Roger's reliance on his relative youth as a mitigating factor. The Court reasoned that Roger's intelligence, previous criminal history, experience with law enforcement, the extent of his involvement with the crimes, and the deliberate nature of the murders militated against concluding that the commission of the crimes was due to a lack of maturity. See id. at 576-77. In sum, Roger failed to prove "how his age impaired his judgment in committing the crimes." Id. at 577 (citation omitted).

         d. Duress

         The Arizona Supreme Court concluded that Roger was not under duress from Robert and had failed to show that his desire to please his brother rose to the level of duress. See id.

         e. No Reasonable Foreseeability that Conduct Would Create a Grave Risk of Death

         According to the Arizona Supreme Court, Roger's asserted immaturity, dependent personality, and idolizing of his brother, even if true, would not negate the foreseeability that use of guns to commit a robbery would create a grave risk of death. See id.

         f. Dysfunctional Childhood and Family Relations

         Although Roger established that his childhood was dysfunctional, the Arizona Supreme Court concluded that "[a] difficult family background alone is not a mitigating circumstance." Id. (citation omitted). The court held that "[f]amily background is a mitigating circumstance only if a defendant can show that something in that background had an effect or impact on his behavior that was beyond the defendant's control." Id. (citation omitted). In sum, the court concluded that the fact of Roger's dysfunctional childhood was not a mitigating circumstance because "he fail[ed] to show how [his] background impacted his behavior at Grasshopper Junction." Id.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;g. Med ...


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