State v. Marlow (1989)

See, e.g., State v. Rockwell, 775 P.2d 1069, 1079 (Ariz. 1989) (“This defendant’s character and background, together with his age at the time of the murder and the unique circumstances of his conviction, cause us to conclude that a sentence of death is inappropriate in this case.”); State v. Marlow, 786 P.2d 395, 402 (Ariz. 1989) (“[T]he result of our review discloses one substantial aggravating factor to be weighed against any mitigation that appears in the record.

State v. Marlow, 786 P.2d 395, 398 (Ariz.1989).

See State v. Mann, 188 Ariz. 220, 230 , 934 P.2d 784, 794 (1997) (unexplained disparity in sentences of defendant and accomplice is mitigating); State v. Marlow, 163 Ariz. 65, 72 , 786 P.2d 395, 402 (1989) (“[Disparity between the sentences of accomplices ... must be considered and may be found as a mitigating circumstance and weighed against any aggravating circumstances, in determining whether to impose the death penalty.”). 11135 Sentencing differences in cases like this …

In State v. Marlow, 163 Ariz. 65, 72 , 786 P.2d 395, 402 (1989), we upheld two of three aggravators, including pecuniary gain, but weighed them only once because they were based on the same facts.

In State v. Marlow, 163 Ariz. 65, 71 , 786 P.2d 395, 401 (1989), we stated that "[w]e have previously concluded that a killing motivated by a desire to eliminate the victim as a witness is heinous or depraved," and cited Correll, Gillies, and Smith as support for this conclusion.

The trial court denied the motion without prejudice, reasoning that this court’s decision in State v. Marlow precluded de la Vara from claiming the ineffective assistance of his co-counsel. 163 Ariz. 65, 68 , 786 P.2d 395, 398 (1989) ("[I]t is inappropriate for counsel to claim that his or her own conduct of the trial or the conduct of co-counsel was not reasonably effective.").

The only case in which the court accepted a finding of depravity based solely on a finding that the murder was motivated by a desire to eliminate witnesses was State v. Marlow, 163 Ariz. 65, 71 , 786 P.2d 395, 401 (1989).

See, e.g., Ex parte Burgess, 811 So. 2d 617, 628 (Ala. 2000); State v. Marlow, 786 P.2d 395, 402 (Ariz. 1989); Beardslee v. Woodford, 358 F.3d 560, 579-80 (9th Cir. 2004).

State v. Marlow, 163 Ariz. 65, 72 , 786 P.2d 395, 402 (1989).

State v. Rockwell, 161 Ariz. 5 , 775 P.2d 1069 (1989) (reducing sentence to life imprisonment where pecuniary gain was sole aggravator but mitigation was great); State v. Marlow, 163 Ariz. 65, 72 , 786 P.2d 395, 402 (1989) (where same evidence was used to support both pecuniary gain and heinous and depraved, it can be weighed only once; thus only one aggravating factor could be weighed against substantial mitigating evidence, making life imprisonment the appropriate sentence…

However, once that conviction has been obtained, disparity between the sentences of the sort that occurred in this case must be considered and may be found as a mitigating circumstance and weighed against any aggravating circumstances, in determining whether to impose the death penalty. 163 Ariz. at 72, 786 P.2d at 402 (citations omitted); see also State v. Lambright, 138 Ariz. 63, 76 , 673 P.2d 1, 14 (1983), cert. denied, 469 U.S. 892 , 105 S.Ct. 267 , 83 L.Ed.2d 203 (1984).

Leniency granted to an accomplice under a plea agreement, for example, “does not in itself prevent the imposition of the death penalty,” State v. Marlow, 163 Ariz. 65, 72 , 786 P.2d 395, 402 (1989) (emphasis added), but we will consider such leniency “along with other mitigating circumstances in determining whether to impose the death penalty.” State v. Lambright, 138 Ariz. 63, 76 , 673 P.2d 1, 14 (1983) (emphasis added), cert. denied, 469 U.S. 892 , 105 S.Ct. 267 , 83 L.Ed.…

See State v. Escalante, 245 Ariz. 135 , 138, ¶ 1 (2018); State v. Marlow, 163 Ariz. 65, 69 (1989) ("Failure to make a timely objection to the introduction of evidence waives all except fundamental error.").

We have previously noted, however, that it is improper for appellate counsel to argue his own ineffectiveness at trial because the “standard for determining whether counsel was reasonably effective is ‘an objective’ standard which we feel can best be developed by someone other than the person responsible for the conduct.” State v. Marlow, 163 Ariz. 65, 68 , 786 P.2d 395, 398 (1989) (quoting Strickland v. Washington, 466 U.S. 668, 688 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984))…

State v. Marlow, 163 Ariz. 65, 70 , 786 P.2d 395, 400 (1989); State v. Hauss, 140 Ariz. 230, 231 , 681 P.2d 382, 383 (1984). ¶ 54 The documentation admitted into evidence through stipulation provided a sufficient basis for the jury to find, beyond a reasonable doubt, the existence of Carreon’s prior convictions.

Id. at 70, n. 2 ; 786 P.2d at 400, n. 2 .

Leniency was thus warranted because "Stevens' condition at the time of the offense was a major and contributing cause of his conduct and was sufficiently substantial to outweigh the aggravating factor of pecuniary gain." Id. at 600 , 764 P.2d at 729 ; see also Marlow , 163 Ariz. at 71 -72 , 786 P.2d 395 (pecuniary gain outweighed by "dramatic disparity" in sentence compared to co-defendant); Rockwell , 161 Ariz. at 15 -16 , 775 P.2d at 1079-80 (mitigation evidence showing de…

See State v. Marlow, 163 Ariz. 65 , 786 P.2d 395 (1989).

See State v. Marlow, 163 Ariz. 65, 72 , 786 P.2d 395, 402 (1989) (evidence that defendant killed to avoid detection used to support aggravating factors of murder for pecuniary gain and murder committed in heinous, cruel, or depraved manner); State v. Tittle, 147 Ariz. 339, 345 , 710 P.2d 449, 455 (1985) (defendant’s prior conviction used to support aggravating factors of prior conviction involving use or threat of violence and prior conviction for which under Arizona law sen…

Compare Ex parte Burgess, 811 So.2d 617, 628 (Ala.2000) (the lenient treatment of accomplices was appropriate mitigating factor that trial court should have given greater weight), State v. Ferguson, 642 A.2d 1267, 1269 (Del.Super.1992) (the disposition of co-defendants' cases is relevant, mitigating evidence), and State v. Marlow, 163 Ariz. 65 , 786 P.2d 395, 402 (1989) (disparity between sentences of accomplices must be considered and may be found a mitigating circumstance …

See State v. Marlow, 163 Ariz. 65, 70 , 786 P.2d 395, 400 (1989).

See State v. Marlow, 163 Ariz. 65, 71-72 , 786 P.2d 395, 401-402 (1989).

See also Arizona v. Marlow, 163 Ariz. 65, 69-70 , 786 P.2d 395, 399-400 (1989) (en banc) (citing Carver and determining that ineffectiveness claims should be raised by counsel other than trial counsel).

See, *607 e.g., State v. Marlow, 163 Ariz. 65, 71-72 , 786 P.2d 395, 401-02 (1989); State v. Rockwell, 161 Ariz. 5, 15-16 , 775 P.2d 1069, 1079-80 (1989); State v. Stevens, 158 Ariz. 595, 599 , 764 P.2d 724, 728 (1988).

See, e.g., State v. Marlow, 163 Ariz. 65, 72 , 786 P.2d 395, 402 (1989) (death sentence set aside for defendant convicted on accomplice theory when possible principal sentenced to four years); State v. Gerlaugh, 135 Ariz. 89, 91 , 659 P.2d 642, 644 (1983) (Cameron, J., concurring) (apparent disparity justified by defendant’s greater participation in the crime and mitigating factors applicable to codefendant).

See State v. Marlow, 163 Ariz. 65, 69 (1989); see also State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). ¶20 Fundamental error is “rare” and is an “error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.” Henderson, 210 Ariz. at 567 , ¶ 19 (quoting State v. Hunter, 142 Ariz. 88, 90 (1984)); see also State v. Morris, 215 Ari…