13-751

13-751. Sentence of death or life imprisonment;
aggravating and mitigating circumstances; definition

A. If the state has filed a notice of intent to seek the death penalty and the
defendant is convicted of first degree murder as defined in section 13-1105, the
defendant shall be sentenced to death or imprisonment in the custody of the state
department of corrections for life or natural life as determined and in accordance with
the procedures provided in section 13-752. A defendant who is sentenced to natural life
is not eligible for commutation, parole, work furlough, work release or release from
confinement on any basis. If the defendant is sentenced to life, the defendant shall not
be released on any basis until the completion of the service of twenty-five calendar
years if the murdered person was fifteen or more years of age and thirty-five years if
the murdered person was under fifteen years of age or was an unborn child. In this
section, for purposes of punishment an unborn child shall be treated like a minor who is
under twelve years of age.

B. At the aggravation phase of the sentencing proceeding that is held pursuant to
section 13-752, the admissibility of information relevant to any of the aggravating
circumstances set forth in subsection F of this section shall be governed by the rules of
evidence applicable to criminal trials. The burden of establishing the existence of any
of the aggravating circumstances set forth in subsection F of this section is on the
prosecution. The prosecution must prove the existence of the aggravating circumstances
beyond a reasonable doubt.

C. At the penalty phase of the sentencing proceeding that is held pursuant to
section 13-752, the prosecution or the defendant may present any information that is
relevant to any of the mitigating circumstances included in subsection G of this section,
regardless of its admissibility under the rules governing admission of evidence at
criminal trials. The burden of establishing the existence of the mitigating
circumstances included in subsection G of this section is on the defendant. The defendant
must prove the existence of the mitigating circumstances by a preponderance of the
evidence. If the trier of fact is a jury, the jurors do not have to agree unanimously
that a mitigating circumstance has been proven to exist. Each juror may consider any
mitigating circumstance found by that juror in determining the appropriate penalty.

D. Evidence that is admitted at the trial and that relates to any aggravating or
mitigating circumstances shall be deemed admitted as evidence at a sentencing proceeding
if the trier of fact considering that evidence is the same trier of fact that determined
the defendant's guilt. The prosecution and the defendant shall be permitted to rebut any
information received at the aggravation or penalty phase of the sentencing proceeding and
shall be given fair opportunity to present argument as to whether the information is
sufficient to establish the existence of any of the circumstances included in subsections
F and G of this section.

E. In determining whether to impose a sentence of death or life imprisonment, the
trier of fact shall take into account the aggravating and mitigating circumstances that
have been proven. The trier of fact shall impose a sentence of death if the trier of fact
finds one or more of the aggravating circumstances enumerated in subsection F of this
section and then determines that there are no mitigating circumstances sufficiently
substantial to call for leniency.

F. The trier of fact shall consider the following aggravating circumstances in
determining whether to impose a sentence of death:

1. The defendant has been convicted of another offense in the United States for
which under Arizona law a sentence of life imprisonment or death was imposable.

2. The defendant has been or was previously convicted of a serious offense, whether
preparatory or completed. Convictions for serious offenses committed on the same occasion
as the homicide, or not committed on the same occasion but consolidated for trial with
the homicide, shall be treated as a serious offense under this paragraph.

3. In the commission of the offense the defendant knowingly created a grave risk of
death to another person or persons in addition to the person murdered during the
commission of the offense.

4. The defendant procured the commission of the offense by payment, or promise of
payment, of anything of pecuniary value.

5. The defendant committed the offense as consideration for the receipt, or in
expectation of the receipt, of anything of pecuniary value.

6. The defendant committed the offense in an especially heinous, cruel or depraved
manner.

7. The defendant committed the offense while:

(a) In the custody of or on authorized or unauthorized release from the state
department of corrections, a law enforcement agency or a county or city jail.

(b) On probation for a felony offense.

8. The defendant has been convicted of one or more other homicides, as defined in
section 13-1101, that were committed during the commission of the offense.

9. The defendant was an adult at the time the offense was committed or was tried as
an adult and the murdered person was under fifteen years of age, was an unborn child in
the womb at any stage of its development or was seventy years of age or older.

10. The murdered person was an on duty peace officer who was killed in the course of
performing the officer's official duties and the defendant knew, or should have known,
that the murdered person was a peace officer.

11. The defendant committed the offense with the intent to promote, further or
assist the objectives of a criminal street gang or criminal syndicate or to join a
criminal street gang or criminal syndicate.

12. The defendant committed the offense to prevent a person's cooperation with an
official law enforcement investigation, to prevent a person's testimony in a court
proceeding, in retaliation for a person's cooperation with an official law enforcement
investigation or in retaliation for a person's testimony in a court proceeding.

13. The offense was committed in a cold, calculated manner without pretense of moral
or legal justification.

14. The defendant used a remote stun gun or an authorized remote stun gun in the
commission of the offense. For the purposes of this paragraph:

(a) "Authorized remote stun gun" means a remote stun gun that has all of the
following:

(i) An electrical discharge that is less than one hundred thousand volts and less
than nine joules of energy per pulse.

(ii) A serial or identification number on all projectiles that are discharged from
the remote stun gun.

(iii) An identification and tracking system that, on deployment of remote
electrodes, disperses coded material that is traceable to the purchaser through records
that are kept by the manufacturer on all remote stun guns and all individual cartridges
sold.

(iv) A training program that is offered by the manufacturer.

(b) "Remote stun gun" means an electronic device that emits an electrical charge
and that is designed and primarily employed to incapacitate a person or animal either
through contact with electrodes on the device itself or remotely through wired probes
that are attached to the device or through a spark, plasma, ionization or other
conductive means emitting from the device.

G. The trier of fact shall consider as mitigating circumstances any factors
proffered by the defendant or the state that are relevant in determining whether to
impose a sentence less than death, including any aspect of the defendant's character,
propensities or record and any of the circumstances of the offense, including but not
limited to the following:

1. The defendant's capacity to appreciate the wrongfulness of his conduct or to
conform his conduct to the requirements of law was significantly impaired, but not so
impaired as to constitute a defense to prosecution.

2. The defendant was under unusual and substantial duress, although not such as to
constitute a defense to prosecution.

3. The defendant was legally accountable for the conduct of another under section
13-303, but his participation was relatively minor, although not so minor as to
constitute a defense to prosecution.

4. The defendant could not reasonably have foreseen that his conduct in the course
of the commission of the offense for which the defendant was convicted would cause, or
would create a grave risk of causing, death to another person.

5. The defendant's age.

H. For purposes of determining whether a conviction of any dangerous crime against
children is a serious offense pursuant to this section, an unborn child shall be treated
like a minor who is under twelve years of age.

I. For the purposes of this section, "serious offense" means any of the following
offenses if committed in this state or any offense committed outside this state that if
committed in this state would constitute one of the following offenses:

1. First degree murder.

2. Second degree murder.

3. Manslaughter.

4. Aggravated assault resulting in serious physical injury or committed by the use,
threatened use or exhibition of a deadly weapon or dangerous instrument.

5. Sexual assault.

6. Any dangerous crime against children.

7. Arson of an occupied structure.

8. Robbery.

9. Burglary in the first degree.

10. Kidnapping.

11. Sexual conduct with a minor under fifteen years of age.

12. Burglary in the second degree.

13. Terrorism.