A.R.S. tit. 13 ch. 7.1 — Arizona Revised Statutes Title 13 Chapter 7.1 — Capital Sentencing

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: 1. Convicted of first degree murder pursuant to section 13-1105, subsection A, paragraph 1 or 3 and was at least eighteen years of age at the time of the commission of the offense, the defendant shall be sentenced to death or imprisonment in the custody of the state department of corrections for 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. 2. Convicted of first degree murder pursuant to section 13-1105 and was under eighteen years of age at the time of the commission of the offense, the defendant shall be sentenced to 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. 3. Convicted of first degree murder pursuant to section 13-1105, subsection A, paragraph 2, 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. 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. The defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value, or the defendant committed the offense as a result of payment, or a promise of payment, of anything of pecuniary value. 4. The defendant committed the offense in an especially heinous, cruel or depraved manner. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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. 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 the 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. In this section, for purposes of punishment an unborn child shall be treated like a minor who is under twelve years of age. J. 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. 13-752. Sentences of death, life imprisonment or natural life; imposition; sentencing proceedings; definitions A. If the state has filed a notice of intent to seek the death penalty and the defendant is convicted of first degree murder, the trier of fact at the sentencing proceeding shall determine whether to impose a sentence of death in accordance with the procedures provided in this section. If the trier of fact determines that a sentence of death is not appropriate, or if the state has not filed a notice of intent to seek the death penalty, and the defendant is convicted of first degree murder pursuant to section 13-1105, subsection A, paragraph 1 or 3 and was at least eighteen years of age at the time of the commission of the offense, the court shall impose a sentence of natural life. If the defendant was under eighteen years of age at the time of the commission of the offense or if the defendant is convicted of first degree murder pursuant to section 13-1105, subsection A, paragraph 2, the court shall determine whether to impose a sentence of life or natural life. B. Before trial, the prosecution shall notice one or more of the aggravating circumstances under section 13-751, subsection F. C. If the trier of fact finds the defendant guilty of first degree murder, the trier of fact shall then immediately determine whether one or more alleged aggravating circumstances have been proven. This proceeding is the aggravation phase of the sentencing proceeding. D. If the trier of fact finds that one or more of the alleged aggravating circumstances have been proven, the trier of fact shall then immediately determine whether the death penalty should be imposed. This proceeding is the penalty phase of the sentencing proceeding. E. At the aggravation phase, the trier of fact shall make a special finding on whether each alleged aggravating circumstance has been proven based on the evidence that was presented at the trial or at the aggravation phase. If the trier of fact is a jury, a unanimous verdict is required to find that the aggravating circumstance has been proven. If the trier of fact unanimously finds that an aggravating circumstance has not been proven, the defendant is entitled to a special finding that the aggravating circumstance has not been proven. If the trier of fact unanimously finds no aggravating circumstances, the court shall then determine whether to impose a sentence of life or natural life on the defendant pursuant to subsection A of this section. F. The penalty phase shall be held immediately after the trier of fact finds at the aggravation phase that one or more of the aggravating circumstances under section 13-751, subsection F have been proven. A finding by the trier of fact that any of the remaining aggravating circumstances alleged has not been proven or the inability of the trier of fact to agree on the issue of whether any of the remaining aggravating circumstances alleged has been proven shall not prevent the holding of the penalty phase. G. At the penalty phase, the defendant and the state may present any evidence that is relevant to the determination of whether there is mitigation that is sufficiently substantial to call for leniency. In order for the trier of fact to make this determination, regardless of whether the defendant presents evidence of mitigation, the state may present any evidence that demonstrates that the defendant should not be shown leniency including any evidence regarding the defendant's character, propensities, criminal record or other acts. H. The trier of fact shall determine unanimously whether death is the appropriate sentence. If the trier of fact is a jury and the jury unanimously determines that the death penalty is not appropriate, the court shall determine whether to impose a sentence of life or natural life pursuant to subsection A of this section. I. If the trier of fact at any prior phase of the trial is the same trier of fact at the subsequent phase, any evidence that was presented at any prior phase of the trial shall be deemed admitted as evidence at any subsequent phase of the trial. J. At the aggravation phase, if the trier of fact is a jury, the jury is unable to reach a verdict on any of the alleged aggravating circumstances and the jury has not found that at least one of the alleged aggravating circumstances has been proven, the court shall dismiss the jury and shall impanel a new jury. The new jury shall not retry the issue of the defendant's guilt or the issue regarding any of the aggravating circumstances that the first jury found not proved by unanimous verdict. If the new jury is unable to reach a unanimous verdict, the court shall impose a sentence of life or natural life on the defendant. K. At the penalty phase, if the trier of fact is a jury and the jury is unable to reach a verdict, the court shall dismiss the jury and shall impanel a new jury. The new jury shall not retry the issue of the defendant's guilt or the issue regarding any of the aggravating circumstances that the first jury found by unanimous verdict to be proved or not proved. If the new jury is unable to reach a unanimous verdict, the court shall impose a sentence of life or natural life on the defendant. L. If the jury that rendered a verdict of guilty is not the jury first impaneled for the aggravation phase, the jury impaneled in the aggravation phase shall not retry the issue of the defendant's guilt. If the jury impaneled in the aggravation phase is unable to reach a verdict on any of the alleged aggravating circumstances and the jury has not found that at least one of the alleged aggravating circumstances has been proven, the court shall dismiss the jury and shall impanel a new jury. The new jury shall not retry the issue of the defendant's guilt or the issue regarding any of the aggravating circumstances that the first jury found not proved by unanimous verdict. If the new jury is unable to reach a unanimous verdict, the court shall impose a sentence of life or natural life on the defendant. M. Alternate jurors who are impaneled for the trial in a case in which the offense is punishable by death shall not be excused from the case until the completion of the sentencing proceeding. N. If the sentence of a person who was sentenced to death is overturned, the person shall be resentenced pursuant to this section by a jury that is specifically impaneled for this purpose as if the original sentencing had not occurred. O. In any case that requires sentencing or resentencing in which the defendant has been convicted of an offense that is punishable by death and in which the trier of fact was a judge or a jury that has since been discharged, the defendant shall be sentenced or resentenced pursuant to this section by a jury that is specifically impaneled for this purpose. P. The trier of fact shall make all factual determinations required by this section or the Constitution of the United States or this state to impose a death sentence. If the defendant bears the burden of proof, the issue shall be determined in the penalty phase. If the state bears the burden of proof, the issue shall be determined in the aggravation phase. Q. If the death penalty was not alleged or was alleged but not imposed, the court shall determine whether to impose a sentence of life or natural life pursuant to subsection A of this section. In determining whether to impose a sentence of life or natural life, the court: 1. May consider any evidence introduced before sentencing or at any other sentencing proceeding. 2. Shall consider the aggravating and mitigating circumstances listed in section 13-701 and any statement made by a victim. R. Subject to section 13-751, subsection B, a victim has the right to be present at the aggravation phase and to present any information that is relevant to the proceeding. A victim has the right to be present and to present information at the penalty phase. At the penalty phase, the victim may present information about the murdered person and the impact of the murder on the victim and other family members and may submit a victim impact statement in any format to the trier of fact. S. For the purposes of this section: 1. "Trier of fact" means a jury unless the defendant and the state waive a jury, in which case the trier of fact shall be the court. 2. "Victim" means the murdered person's spouse, parent, child, grandparent or sibling, any other person related to the murdered person by consanguinity or affinity to the second degree or any other lawful representative of the murdered person, except if the spouse, parent, child, grandparent, sibling, other person related to the murdered person by consanguinity or affinity to the second degree or other lawful representative is in custody for an offense or is the accused. 13-753. Mental evaluations of capital defendants; hearing; appeal; definitions A. In any case in which the state files a notice of intent to seek the death penalty, a person who is found to have an intellectual disability pursuant to this section shall not be sentenced to death but shall be sentenced to life or natural life. B. If the state files a notice of intent to seek the death penalty, the court, unless the defendant objects, shall appoint a prescreening psychological expert in order to determine the defendant's intelligence quotient using current community, nationally and culturally accepted intelligence testing procedures. The prescreening psychological expert shall submit a written report of the intelligence quotient determination to the court within ten days of the testing of the defendant. If the defendant objects to the prescreening, the defendant waives the right to a pretrial determination of status. The waiver does not preclude the defendant from offering evidence of the defendant's intellectual disability in the penalty phase. C. If the prescreening psychological expert determines that the defendant's intelligence quotient is higher than seventy-five, the notice of intent to seek the death penalty shall not be dismissed on the ground that the defendant has an intellectual disability. If the prescreening psychological expert determines that the defendant's intelligence quotient is higher than seventy-five, the report shall be sealed by the court and be available only to the defendant. The report shall be released on the motion of any party if the defendant introduces the report in the present case or is convicted of an offense in the present case and the sentence is final. A prescreening determination that the defendant's intelligence quotient is higher than seventy-five does not prevent the defendant from introducing evidence of the defendant's intellectual disability or diminished mental capacity at the penalty phase of the sentencing proceeding. D. If the prescreening psychological expert determines that the defendant's intelligence quotient is seventy-five or less, the trial court, within ten days of receiving the written report, shall order the state and the defendant to each nominate three experts in intellectual disabilities, or jointly nominate a single expert in intellectual disabilities. The trial court shall appoint one expert in intellectual disabilities nominated by the state and one expert in intellectual disabilities nominated by the defendant, or a single expert in intellectual disabilities jointly nominated by the state and the defendant, none of whom made the prescreening determination of the defendant's intelligence quotient. The trial court, in its discretion, may appoint an additional expert in intellectual disabilities who was neither nominated by the state nor the defendant, and who did not make the prescreening determination of the defendant's intelligence quotient. Within forty-five days after the trial court orders the state and the defendant to nominate experts in intellectual disabilities, or on the appointment of such experts, whichever is later, the state and the defendant shall provide to the experts in intellectual disabilities and the court any available records that may be relevant to the defendant's status. The court may extend the deadline for providing records on good cause shown by the state or defendant. E. Not less than twenty days after receipt of the records provided pursuant to subsection D, or twenty days after the expiration of the deadline for providing the records, whichever is later, each expert in intellectual disability shall examine the defendant using current community, nationally and culturally accepted physical, developmental, psychological and intelligence testing procedures, for the purpose of determining whether the defendant has an intellectual disability. Within fifteen days of examining the defendant, each expert in intellectual disabilities shall submit a written report to the trial court that includes the expert's opinion as to whether the defendant has an intellectual disability. F. If the scores on all the tests for intelligence quotient administered to the defendant are above seventy, the notice of intent to seek the death penalty shall not be dismissed on the ground that the defendant has an intellectual disability. This does not preclude the defendant from introducing evidence of the defendant's intellectual disability or diminished mental capacity at the penalty phase of the sentencing proceeding. G. No less than thirty days after the experts in intellectual disabilities submit reports to the court and before trial, the trial court shall hold a hearing to determine if the defendant has an intellectual disability. At the hearing, the defendant has the burden of proving intellectual disability by clear and convincing evidence. A determination by the trial court that the defendant's intelligence quotient is sixty-five or lower establishes a rebuttable presumption that the defendant has an intellectual disability. This subsection does not preclude a defendant with an intelligence quotient of seventy or below from proving intellectual disability by clear and convincing evidence. H. If the trial court finds that the defendant has an intellectual disability, the trial court shall dismiss the intent to seek the death penalty, shall not impose a sentence of death on the defendant if the defendant is convicted of first degree murder and shall dismiss one of the attorneys appointed under rule 6.2, Arizona rules of criminal procedure, unless the court finds that there is good cause to retain both attorneys. If the trial court finds that the defendant does not have an intellectual disability, the court's finding does not prevent the defendant from introducing evidence of the defendant's intellectual disability or diminished mental capacity at the penalty phase of the sentencing proceeding. I. Within ten days after the trial court makes a finding on intellectual disability, the state or the defendant may file a petition for special action with the Arizona court of appeals pursuant to the rules of procedure for special actions. The filing of the petition for special action is governed by the rules of procedure for special actions, except that the court of appeals shall exercise jurisdiction and decide the merits of the claims raised. J. This section applies to all capital sentencing proceedings. K. For the purposes of this section, unless the context otherwise requires: 1. "Adaptive behavior" means the effectiveness or degree to which the defendant meets the standards of personal independence and social responsibility expected of the defendant's age and cultural group. 2. "Expert in intellectual disabilities" means a psychologist or physician licensed pursuant to title 32, chapter 13, 17 or 19.1 with at least five years' experience in the testing or testing assessment, evaluation and diagnosis of intellectual disabilities. 3. "Intellectual disability" means a condition based on a mental deficit that involves significantly subaverage general intellectual functioning, existing concurrently with significant impairment in adaptive behavior, where the onset of the foregoing conditions occurred before the defendant reached the age of eighteen. 4. "Prescreening psychological expert" means a psychologist licensed pursuant to title 32, chapter 19.1 with at least five years' experience in the testing, evaluation and diagnosis of intellectual disabilities. 5. "Significantly subaverage general intellectual functioning" means a full scale intelligence quotient of seventy or lower. The court in determining the intelligence quotient shall take into account the margin of error for the test administered. 13-754. Capital defendant prescreening evaluation for competency and sanity A. If the state files a notice of intent to seek the death penalty, unless the defendant objects, the court shall appoint a psychologist or psychiatrist licensed pursuant to title 32, chapter 13, 17 or 19.1 to conduct a prescreening evaluation to determine if reasonable grounds exist to conduct another examination to determine the following: 1. The defendant's competency to stand trial. 2. Whether the defendant was sane at the time the defendant allegedly committed the offense. B. The court may appoint separate psychological experts to conduct each of the evaluations ordered pursuant to subsection A. C. The court shall seal any psychological expert's report pursuant to this section, and the report shall only be available to the defendant. The report shall be released on the motion of any party if the defendant introduces the report in the present case, raises a mental health defense at trial or sentencing or is convicted of an offense in the present case and the sentence is final. D. If the prescreening evaluation indicates that reasonable grounds exist to conduct another examination as prescribed by subsection A, the court shall treat the prescreening evaluation as a preliminary examination pursuant to rule 11.2(c) of the Arizona rules of criminal procedure and shall proceed in accordance with rule 11 of the Arizona rules of criminal procedure. 13-755. Death sentences; supreme court review A. The supreme court shall review all death sentences. On review, the supreme court shall independently review the trial court's findings of aggravation and mitigation and the propriety of the death sentence. B. If the supreme court determines that an error was made regarding a finding of aggravation or mitigation, the supreme court shall independently determine if the mitigation the supreme court finds is sufficiently substantial to warrant leniency in light of the existing aggravation. If the supreme court finds that the mitigation is not sufficiently substantial to warrant leniency, the supreme court shall affirm the death sentence. If the supreme court finds that the mitigation is sufficiently substantial to warrant leniency, the supreme court shall impose a life sentence pursuant to section 13-751, subsection A. C. The independent review required by subsection A does not preclude the supreme court from remanding a case for further action if the trial court erroneously excluded evidence or if the appellate record does not adequately reflect the evidence presented. 13-756. Death sentences; supreme court review A. The supreme court shall review all death sentences to determine whether the trier of fact abused its discretion in finding aggravating circumstances and imposing a sentence of death. B. If the supreme court determines that an error occurred in the sentencing proceedings, the supreme court shall determine whether the error was harmless beyond a reasonable doubt. If the supreme court cannot determine whether the error was harmless beyond a reasonable doubt, the supreme court shall remand the case for a new sentencing proceeding. 13-757. Method of infliction of sentence of death; identity of executioners; license suspension A. The penalty of death shall be inflicted by an intravenous injection of a substance or substances in a lethal quantity sufficient to cause death, under the supervision of the state department of corrections. B. A defendant who is sentenced to death for an offense committed before November 23, 1992 shall choose either lethal injection or lethal gas at least twenty days before the execution date. If the defendant fails to choose either lethal injection or lethal gas, the penalty of death shall be inflicted by lethal injection. C. The identity of executioners and other persons who participate or perform ancillary functions in an execution and any information contained in records that would identify those persons is confidential and is not subject to disclosure pursuant to title 39, chapter 1, article 2. D. If a person who participates or performs ancillary functions in an execution is licensed by a board, the licensing board shall not suspend or revoke the person's license as a result of the person's participation in an execution. 13-758. Persons present at execution of sentence of death; limitation The director of the state department of corrections or the director's designee shall be present at the execution of all death sentences and shall invite the attorney general and at least twelve reputable citizens of the director's selection to be present at the execution. The director shall, at the request of the defendant, permit clergymen, not exceeding two, whom the defendant names and any persons, relatives or friends, not exceeding five, to be present at the execution. The director may invite peace officers as the director deems expedient to witness the execution. No persons other than those set forth in this section shall be present at the execution nor shall any minor be allowed to witness the execution. 13-759. Death warrant; return A. After a conviction and sentence of death are affirmed and the first post-conviction relief proceedings have concluded, the supreme court shall issue a warrant of execution that authorizes the director of the state department of corrections to carry out the execution thirty-five days after the supreme court's mandate or order denying review or upon motion by the state. The supreme court shall grant subsequent warrants of execution on a motion by the state. The time for execution shall be fixed for thirty-five days after the state's motion is granted. B. Upon the execution of a sentence of death, the director of the state department of corrections shall make a return upon the death warrant to the court which pronounced sentence and the supreme court, showing the time, mode and manner in which it was executed.