Defintion of "especially cruel" in the AZ statute:
http://www.supreme.state.az.us/courtserv/CrtProj/capsentguid/F6.htm
Especially Cruel"; (The victim-oriented factor)
The Court's interpretation of "especially cruel" encompasses the mental anguish and physical pain of the
victim.
State v. Clark, 126 Ariz. 428, 616 P.2d 888 (1980). Sometimes the case law uses mental distress and sometimes it uses mental anguish.
See State v. Carriger, 143 Ariz. 142, 160, 692 P.2d 991, 1009 (1984) (mental distress);
State v. Murdaugh, 209 Ariz. 19, 30, 97 P.3d 844, 855 (2004) (mental anguish). To find that a victim suffered mental anguish or physical pain, the Court must find beyond a reasonable doubt that (1) the victim was conscious during at least some portion of the crime and that (2) the defendant knew or should have known that the victim would suffer.
State v. Trostle, 191 Ariz. 4, 951 P.2d 869 (1997).
See State v. Moody, 208 Ariz. 424, 94 P.3d 1119 (2004) (court refused to uphold this factor on a
Ring harmless error review where the evidence showed clearly that the victims did suffer, but there was disputed evidence as to whether the defendant was capable of knowing that they were suffering).
Mental anguish includes a victim's contemplation of his or her ultimate fate,
State v. Jackson, 186 Ariz. 20, 918 P.2d 1038 (1996), and watching or hearing a loved one die while knowing the victim will be killed next.
State v. Dickens, 187 Ariz. 1, 926 P.2d 468 (1996);
State v. Ramirez, 178 Ariz. 116, 871 P.2d 237 (1994). A victims pleas for help and defensive wounds can support finding this factor.
State v. Sansing, 206 Ariz. 232, 235, 77 P.3d 30, 34 (2003);
and see State v. Lambright, 138 Ariz. 63, 75, 673 P.2d 1, 13 (1983) (mental anguish shown by evidence that victim trembled and begged for life after being abducted and sexually assaulted),
overruled on other grounds by Hedlund v. Sheldon, 173 Ariz. 143, 840 P.2d 1008 (1992). More recently the court has noted that few especially cruel findings . . . are predicated solely on an inference that the victim contemplated his or her fate, especially when no witness can quantify the length of time between the point at which [the victim] first experienced mental anguish and the moment that [the defendant] shot [her].
State v. Prince, 206 Ariz. 24, 27, 75 P.3d 114, 117 (2003).
As to physical pain, the victim does not need to be conscious for each and every wound inflicted for cruelty to apply.
Sansing, 206 Ariz. at 235, 77 P.3d at 33 (quoting
State v. Lopez (I), 163 Ariz. 18, 115, 786 P.2d 959, 966 (1990)). Physical pain may be found where a conscious victim physically suffered for at least a short period of time.
State v. Schackart, 190 Ariz. 238, 947 P.2d 315 (1997) (holding victim hostage for four to five hours in the presence of a weapon, sexually assaulting her, striking her in the head, and strangling her);
State v. William Herrera, Jr., 176 Ariz. 21, 859 P.2d 131 (1993) (finding victim was lying on the ground with a gash in his head for at least 18 seconds and possibly as much as two to three minutes).
Rape: Evidence of a rape while the victim was conscious independently establishes both mental and physical suffering.
Sansing, 206 Ariz. at 236, 77 P.3d at 34.
Setting Someone on Fire (while alive): Satisfies cruelty element, as the victim suffers both mental and physical suffering.
State v. Schurz, 176 Ariz. 46, 859 P.2d 156,
cert. denied, 510 U.S. 1026 (1993) (victim was conscious during burning and survived for a few hours before dying). Note that other cases support applying depravity to burning death.
No Vicarious Liability: A defendant cannot be vicariously liable for cruelty in a capital case, absent a plan intended or reasonably certain to cause suffering.
State v. Carlson, 202 Ariz. 570, 583, 48 P.3d 1180, 1193 (2002). The plan must be such that suffering before death must be inherently and reasonably certain to occur, not just an untoward event.
Id. However, where the defendant actually participated in the killing, the fact that he did not actually perform the murder does not preclude application of the cruelty subpart of (F)(6).
See State v. Frank Anderson, 210 Ariz. at __, ¶109-14, 111 P.3d at 395 (where defendant held down first victim while co- conspirator administered fatal wound and both hit third victim and gave co-conspirator weapon with which to kill third victim, cruelty aspect of (F)(6) could lawfully be applied to defendant).
so maybe someone can state this better
