Roger W. Murray, Petitioner-Appellant,
Dora Schriro, Warden, Respondent-Appellee.
and Submitted September 13, 2012 Las Vegas, Nevada
from the United States District Court for the District of
Arizona David G. Campbell, District Judge, Presiding D.C. No.
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.
AND AMENDED OPINION
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.
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.
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.
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.
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
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.
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).
opinion in this case, published at 746 F.3d 418 (9th Cir.
2014), is hereby amended as follows:
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>.
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
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
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
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.>
of the Amended Opinion is attached.
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.
petition for rehearing and petition for rehearing en banc,
filed March 8, 2017, are DENIED.
further petitions for rehearing may be filed.
RAWLINSON, Circuit Judge:
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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); the murders were especially heinous, cruel
or depraved, as provided in §
13-703(F)(6); and the defendants committed multiple
homicides, as described in § 13-703(F)(8). 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
Arizona Supreme Court affirmed the convictions and sentences.
Direct Appeal - Robert and Roger
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.
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
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.
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).
Robert and Roger asserted a Batson 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.
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
Change of Venue
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.
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.
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.
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).
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.
Motion for Acquittal
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.
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.
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."
Direct Appeal - (Trial Issues)
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
Willits Jury Instruction
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.
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
Second-Degree Murder/Lesser Included Offense
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.
Request for a Mistrial
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.
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
(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.
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.
Visitation of the Crime Scene
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.
Direct Appeal - (Sentencing Issues)
Objective Standards and Prosecutorial Discretion
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)).
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.
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).
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.
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)
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
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.
Relatively Minor Participation
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
Age - (Twenty Years Old)
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).
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
No Reasonable Foreseeability that Conduct Would Create a
Grave Risk of Death
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.
Dysfunctional Childhood and Family Relations
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