NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Capital Punishment Handbook: State Law Summaries - Arizona

        a.    History
        b.    Capital Offenses
        c.    Prescreening to Determine Whether Defendant is Mentally Retarded
        d.    Representation In Capital Cases
        e.    Trial Of Capital Offenses
        f.     Capital Sentencing: Penalty Hearing
        g.    Aggravating Circumstances
        h.    Mitigating Circumstances
        i.     Appellate Review of Capital Sentences
        j.     Collateral Remedies
        k.    Post-Conviction Relief
        l.     Habeas Corpus
        m.   Appellate Review Of Collateral Proceedings
        n.    Procedural Bar/Waiver/Exhaustion
        o.    Execution
        p.    Competency for Execution
        q.    Stays Of Execution
        r.     Clemency Procedures

In response to the U.S. Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238 (1972), Arizona’s legislature enacted a new death penalty statute (1973 Ariz. Sess. Laws ch. 138, § 5, at 968–70; current version at Arizona Revised Statutes Annotated § 13-703) eliminating the trial court’s broad discretion in imposing capital punishment. The statute enumerated aggravating and mitigating factors and permitted imposition of the death penalty only when the court found at least one aggravating factor and no mitigating factors to warrant leniency.

Shortly after the Arizona Supreme Court in State v. Bishop, 118 Ariz. 263, 576 P.2d 122 (1978), construed the list of mitigating factors to be exclusive, the U.S. Supreme Court in Lockett v. Ohio, 438 U.S. 586 (1978), held unconstitutional any limitation of mitigating circumstances in capital sentencing. Consequently, the Arizona Supreme Court in State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978), severed the portion of the statute limiting mitigating circumstances and reinterpreted the statute to allow consideration of any mitigating circumstance. The 1979 legislature amended the applicable statute, and the court resentenced all death row inmates accordingly.

In response to the decision in Ring v. Arizona, 536 U.S. 584 (2002), Arizona’s legislature amended the death penalty statute, effective August 1, 2002, to provide for jury determination of aggravating and mitigating factors and jury sentencing, except in those cases in which both the state and the defendant waive a jury trial. See "Trial of Capital Offenses" and "Capital Sentencing," below.

Ring v. Arizona, 536 U.S. 584 (2002) (holding that capital defendants are entitled to jury determination of any fact on which legislature conditions increase in their maximum punishment).

Lockett v. Ohio, 438 U.S. 586 (1978) (holding unconstitutional Ohio death penalty statute limiting mitigating circumstances).

Furman v. Georgia, 408 U.S. 238 (1972) (holding unguided discretionary sentencing unconstitutional).

State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978) (en banc) (reinterpreting capital statute to allow consideration of any mitigating circumstance), cert. denied, 440 U.S. 924 (1979).

State v. Bishop, 118 Ariz. 263, 576 P.2d 122 (1978) (en banc) (construing list of mitigating factors in first death penalty statute after Furman to be exclusive), vacated and remanded in light of Lockett, 439 U.S. 810 (1978).

Ariz. Rev. Stat. Ann. § 13-703(F) (Supp. 2005) (codifying Watson interpretation of mitigating circumstances: providing that mitigating factors are any factors proffered by defendant or state relevant to determining whether to impose sentence less than death and enumerating non-exclusive list of mitigating factors).

Ariz. Rev. Stat. Ann. § 13-703.02 (Supp. 2005), (providing for I.Q. screening of capital defendants; prohibiting imposition of death penalty on person suffering from mental retardation).

Ariz. Rev. Stat. Ann. § 13-703.03 (Supp. 2005) (providing for prescreening of capital defendant for competency to stand trial and sanity at time of offense).

In Roper v. Simmons, 543 U.S. 551 (2005), the Supreme Court held that the Eighth and Fourteenth Amendments forbid the imposition of the death penalty on those who were under the age of 18 at the time their crimes were committed. Previously, Arizona law did not prohibit the imposition of the death penalty on those under age 18, although the defendant’s age could be considered as a mitigating circumstance.

United States Supreme Court:

Roper v. Simmons, 543 U.S. 551 (2005) (holding that the Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed).

Arizona Statutes:

Under Ariz. Rev. Stat. Ann. § 13-703.02, if the state files a notice of intent to seek the death penalty, the court must appoint a prescreening psychological expert in order to determine the defendant’s I.Q. using current community, nationally, and culturally accepted intelligence testing procedures. The prescreening psychological expert must submit a written report of the I.Q. determination to the court within 10 days of the testing. If the prescreening psychological expert determines that the defendant’s I.Q. is 75 or less, the trial court will appoint one or more additional psychological experts to independently determine whether the defendant has mental retardation. “Mental retardation” is defined in § 13-703.02(K)(2) as 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 these conditions occurred before the defendant reached the age of 18. Under § 13-703.02(G) a determination by the trial court that the defendant’s I.Q. is 65 or less establishes a rebuttable presumption that the defendant has mental retardation, but that does not preclude a defendant with an I.Q. of 70 or below from proving mental retardation by clear and convincing evidence. If the trial court finds that the defendant has mental retardation, the trial court must dismiss the intent to seek the death penalty and not impose a sentence of death on the defendant if the defendant is convicted of first degree murder.

The United States Supreme Court held in Atkins v. Virginia, 536 U.S. 304 (2002), that the execution of the mentally retarded constitutes cruel and unusual punishment prohibited by the Eighth Amendment. See § 1.6.

Atkins v. Virginia, 536 U.S. 304 (2002) (holding that executing the mentally retarded violates the Eighth Amendment’s prohibition against cruel and unusual punishment).

In addition to an indigent defendant having a right to counsel during the trial and direct appeal of a capital case, an indigent prisoner under capital sentence has a statutory right to counsel in state postconviction proceedings. The Arizona legislature has adopted representation and compensation standards for counsel who represent capital defendants in state postconviction proceedings. See Ariz. Rev. Stat. Ann. § 13-4041. Additionally, the Arizona Supreme Court has adopted representation standards for trial, appellate, and postconviction counsel in death penalty cases and has provided for the appointment of lead and co-counsel throughout all stages of capital litigation. See Ariz. R. Crim. P. 6.8.

After appointing qualified counsel, the court may also appoint investigators and experts “reasonably necessary” to adequately present an indigent defendant’s defense at trial and any subsequent proceeding. The court orders “reasonable” compensation for appointed investigators and experts.

The Ninth Circuit ruled in Spears v. Stewart, 267 F.3d 1026 (9th Cir. 2001), amended and superseded by 283 F.3d 992 (9th Cir.), cert. denied, 537 U.S. 977 (2002), and cert. denied 537 U.S. 995 (2002), that Arizona had in place as of July 17, 1998 (the relevant date as to the petitioner), a mechanism for the appointment and compensation of counsel for indigent capital defendants in state postconviction proceedings that met the requirements of Chapter 154 of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and therefore qualified for opt-in status as of that date, but that Arizona was not entitled to enforce the expedited procedures of Chapter 154 because it had not complied with the timeliness requirements of its own system as to the petitioner. Arizona’s timeliness requirement codified in Rule of Criminal Procedure 32.4(c) was amended in 2000 and no longer requires that counsel be appointed within 15 days if an indigent capital defendant requests the appointment. Rule 32.4 now provides that counsel must be appointed pursuant to Ariz. Rev. Stat. Ann. § 13-4041 (requiring that counsel must be appointed “[a]fter the supreme court has affirmed a defendant’s conviction and sentence in a capital case” ) and Ariz. R. Crim. P. 6.8 (attorney competency standards). In 2002, Rule 32.4(c) was amended to provide for appointment of postconviction relief counsel after issuance of the decision affirming the defendant’s conviction and sentence but prior to completion of certiorari proceedings or issuance of the mandate.

Spears v. Stewart, 267 F.3d 1026 (9th Cir. 2001), amended and superseded by 283 F.3d 992 (9th Cir.), cert. denied, 537 U.S. 977 (2002), and cert. denied, 537 U.S. 995 (2002) (holding that Arizona had in place as of July 17, 1998 (the relevant date as to the petitioner), a mechanism for appointment and compensation of counsel for indigent capital defendants in state postconviction proceedings that met requirements of Chapter 154 of AEDPA and therefore qualified for opt-in status as of that date, but that Arizona was not entitled to enforce expedited procedures of Chapter 154 because it had not complied with timeliness requirements of its own system as to the petitioner).

Ariz. Rev. Stat. Ann. § 13-4013(B) (2001) (providing for appointment of investigators and expert witnesses reasonably necessary to adequately present defense at trial and any subsequent proceeding and providing compensation rate as what court deems appropriate).

Ariz. Rev. Stat. Ann. § 13-4041 (2001) (detailing the appointment of postconviction counsel in a capital case, the required qualifications, and the compensation).

Ariz. Rev. Stat. Ann. § 13-4234(D) (2001) (providing for indigent right to counsel in postconviction proceedings).

Ariz. R. Crim. P. 15.9 (governing appointment of investigators, expert witnesses for indigent defendants).

Arizona’s county superior courts are the state trial courts of general jurisdiction. These courts have original jurisdiction over all criminal cases, including petitions for postconviction relief and habeas corpus.

In Ring v. Arizona, 536 U.S. 584 (2002), reversing the decision of the Arizona Supreme Court, the U.S. Supreme Court held that Walton v. Arizona, 497 U.S. 639 (1990), and Apprendi v. New Jersey, 530 U.S. 466 (2000), are irreconcilable and overruled Walton to the extent that it allowed a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty. The Court reasoned that because Arizona’s enumerated aggravating factors operate as “the functional equivalent of an element of a greater offense” (Apprendi, 530 U.S. at 494 n. 19), the Sixth Amendment requires that they be found by a jury. The Court held that capital defendants are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment. The Court pointed out that 29 of 38 states in which there is a death penalty generally commit sentencing decisions to juries, and that other than Arizona, only four States commit both capital sentencing factfinding and the ultimate sentencing decision entirely to judges: Colorado (Colo. Rev. Stat §16-11-103 (2001) (three-judge panel); Idaho (Idaho Code §19-2515 (Supp. 2001)); Montana (Mont. Code §46-18-301 (1997)); and Nebraska (Neb. Rev. Stat. §29-2520 (1995)). The Court observed that the right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant’s sentence by two years, but not the factfinding necessary to put him to death. Subsequently, in Schriro v. Summerlin, 542 U.S. 348 (2004), the Supreme Court ruled that Ring does not apply retroactively to cases already final on direct review.

 In response to Ring v. Arizona, the 2002 Arizona Legislature enacted new capital jury sentencing procedures. The legislative intent of the statute provides those persons who were previously sentenced to death in Arizona are not entitled to a new sentencing proceeding if they have already exhausted direct appeals of their sentences. 2002 Ariz. Sess. Laws, ch. 1, § 9 (5th special session). The statute retains the bifurcated adjudication process for capital cases. However, unlike the former procedure in which the judge conducted the penalty phase and determined the sentence, Ariz. Rev. Stat. Ann. § 13-703.01, provides that if a defendant is found guilty of first degree murder at trial, the “trier of fact” then immediately determines whether the aggravating circumstances have been proved (aggravation phase of sentencing proceeding). If the trier of fact determines that at least one of the aggravating circumstances was proved, the trier then proceeds to determine whether a death sentence should be imposed (penalty phase of sentencing proceeding). “Trier of fact” is defined in § 13-703.01(S)(1) as meaning a jury unless the defendant and the state waive a jury, in which case the trier of fact is a judge. The statute applies to all sentencing or resentencing proceedings held after August 1, 2002 (2002 Ariz. Sess. Laws, ch. 1, § 7).

The defendant is entitled to notice of the state’s intent to seek the death penalty; however, the basic procedures for the trial of a capital case are the same as those for the trial of other felonies. The prosecution is entitled to “death-qualify” the jury. See State v. LaGrand, 153 Ariz. 21, 33, 734 P.2d 563, 575 (1987).

The Arizona Supreme Court has held that “an accused is not entitled to a unanimous jury verdict on the precise manner in which the defendant committed the crime,” State v. Smith, 136 Ariz. 273, 665 P.2d 995 (1983) (en banc), but is entitled to a unanimous jury verdict on whether the defendant in fact committed first degree murder. See State v. Arnett, 158 Ariz. 15, 760 P.2d 1064 (1988) (en banc).

Schriro v. Summerlin, 542 U.S. 348 (2004) (holding that Ring v. Arizona did not apply retroactively to cases already final on direct review).

Ring v. Arizona, 536 U.S. 584 (2002) (holding that capital defendants are entitled to jury determination of any fact on which legislature conditions increase in their maximum punishment; also holding that Walton and Apprendi are irreconcilable and overruling Walton to extent that it allowed sentencing judge, sitting without jury, to find aggravating circumstance necessary for imposition of death penalty).

Arizona Supreme Court:

State v. Anderson, 197 Ariz. 314, 4 P.3d 369 (2000) (en banc) (finding structural error where court removed for cause prospective jurors who indicated a general objection to the death penalty in their questionnaires without allowing voir dire to possibly rehabilitate).

Holmberg v. DeLeon, 189 Ariz. 109, 938 P.2d 1110 (1997) (en banc) (holding death penalty precluded when state filed its notice of intent to seek death penalty one year and three months after defendant’s arraignment, notwithstanding lack of prejudice argument).

State v. Arnett, 158 Ariz. 15, 760 P.2d 1064 (1988) (en banc) (holding defendant entitled to unanimous jury verdict on whether defendant committed first degree murder).

State v. LaGrand, 153 Ariz. 21, 33, 734 P.2d 563, 575 (1987) (discussing deathqualifying guilt jury).

State v. Smith, 136 Ariz. 273, 665 P.2d 995 (1983) (en banc) (holding defendant not entitled to unanimous verdict on manner in which defendant committed crime).

Ariz. Const. art. II, § 23 (requiring twelve jurors and unanimous verdict for capital trial).

Ariz. Rev. Stat. Ann. § 13-703.01 (Supp. 2005) (providing procedures for capital cases including sentencing proceedings composed of aggravation phase and penalty phase).

Ariz. Rev. Stat. Ann. §§ 13-3981–3990 (2001) and (Supp. 2005) (detailing trial procedures).

Ariz. Rev. Stat. Ann. § 13-4031 (2001) (providing supreme court exclusive appellate jurisdiction over capital cases).

Ariz. Rev. Stat. Ann. § 21-102 (2002) (setting capital jury at twelve persons and unanimous verdict).

As discussed in “Trial of Capital Offenses,” above, the 2002 Arizona Legislature enacted new capital jury sentencing procedures in response to the decision in Ring v. Arizona. These procedures apply to all sentencing or resentencing proceedings held after August 1, 2002, pursuant to 2002 Ariz. Sess. Laws, ch. 1, § 7 (5th special session). The amended death penalty statute employs the term “trier of fact,” defined as a jury unless the defendant and the state waive a jury, in which case the trier of fact is a judge. In the discussion below, “jury” is also used where it is appropriate in context. 

Before trial, the state must provide the defendant with notice of the aggravating factors it intends to prove at the sentencing hearing. Before the defendant is eligible for the death penalty for first degree murder, the state must prove at least one enumerated aggravating circumstance beyond a reasonable doubt. If the defendant is death-eligible pursuant to a felony murder conviction, the state must also show that the defendant killed, attempted to kill or intended to kill, or was a major participant in the underlying felony and acted with reckless disregard for human life. See Tison v. Arizona, 481 U.S. 137 (1987); Enmund v. Florida, 458 U.S. 782 (1982). In State v. Ring, 204 Ariz. 534, 65 P.3d 915 (2003) (en banc), the Arizona Supreme Court held that the Sixth Amendment principles of Apprendi/Ring do not require that Enmund-Tison findings be made by a jury.

The defendant must prove the existence of mitigating circumstances by a preponderance of the evidence and must show that the mitigating circumstances are sufficiently substantial to call for leniency. If the trier of fact is a jury, the jurors do not have to agree unanimously that a mitigating circumstance has been found to exist; each juror may consider any mitigating circumstance found by that juror in determining the appropriate penalty. In the sentencing proceeding, the state or defendant may present any information relevant to mitigating circumstances regardless of its admissibility under the rules of evidence that govern trial proceedings. Information relevant to aggravating circumstances, however, is admissible only in accordance with the rules of evidence. If there is the same trier of fact at any subsequent phase of the trial as there was at a prior phase, any evidence presented at the prior phase is deemed admitted in the subsequent phase, including evidence admitted at the trial as to aggravating or mitigating factors.

After a guilty verdict of first degree murder, the trier of fact immediately determines whether aggravating circumstances have been proved and must make a special finding on whether each aggravator has been proved. If the trier of fact is a jury, the decision on aggravators must be unanimous. Ariz. Rev. Stat. Ann. § 13-703.01(E). The penalty phase is then held if the trier finds at least one aggravator to have been proved. Under § 13-703.01(H), the determination whether death is the appropriate sentence must be unanimous. If the jury determines unanimously that the death penalty is not appropriate, the court will determine whether to impose a sentence of life with or without the possibility of parole.

If the jury is unable to reach a verdict on any of the alleged aggravating circumstances and the jury does not find that at least one of the alleged aggravators has been proved, the court must dismiss the jury and impanel a new one. The new jury does not retry the issue of guilt or the issue regarding any of the aggravating circumstances that the first jury found not proved by a unanimous verdict. If the second jury does not reach a unanimous verdict, the court must then impose a sentence of life with or without the possibility of parole. Ariz. Rev. Stat. Ann. § 13-703.01(J). Likewise, under § 13-703.01(K), if the jury at the penalty phase is unable to reach a verdict, the judge must impanel a new jury, which does not retry the issue of guilt or any aggravators found to be proved or not proved unanimously by the first jury. If the second jury is unable to reach a unanimous verdict, the court must impose a life sentence with or without the possibility of parole.

Under § 13-703.01(R), a victim (defined as a person’s spouse, parent, child or other lawful representative, unless such person is in custody for an offense or is the accused) has a right to be present at the aggravation phase and to present any information that is relevant. A victim also has the right to be present at the penalty  phase and to be heard. The right to be heard includes presentation of evidence, information, and opinions that concern the criminal offense, the defendant, and the sentence. In 2003 the Arizona legislature conditionally amended § 13-703.01(R) to provide that victims in capital cases have the right to make recommendations regarding the appropriate sentence in the same manner as defendants. The conditional amendment is to become effective if on or before June 30, 2013, the Arizona Supreme Court or United States Supreme Court rules that it is constitutional for a crime victim in a case to make a sentencing recommendation.

In State v. Ring, 204 Ariz. 534, 65 P.3d 915 (2003) (en banc), consolidated cases involving all defendants sentenced to death who had matters pending on direct appeal at the time of the U.S. Supreme Court decision in Ring, the Arizona Supreme Court held that changes in the state’s capital sentencing statutes were procedural in nature and that resentencing these defendants under the new statutes would not violate the ex post facto clauses of the state or federal constitutions, nor did double jeopardy principles preclude resentencing them. The court also held that the failure to submit capital aggravating factors to a jury was not a structural error mandating reversal.

Schriro v. Summerlin, 542 U.S. 348 (2004) (holding that Ring v. Arizona did not apply retroactively to cases already final on direct review; also holding that (1) that the Ring decision is properly classified as procedural, rather than substantive; and (2) the Ring rule does not fall under the second exception under Teague for watershed rules of criminal procedure).

Ring v. Arizona, 536 U.S. 584 (2002) (holding that capital defendants are entitled to jury determination of any fact on which legislature conditions increase in their maximum punishment).

Tison v. Arizona, 481 U.S. 137 (1987) (holding that to qualify for death sentence, felony murder defendant must have been a major participant in the underlying felony and acted with reckless disregard for human life).

Enmund v. Florida, 458 U.S. 782 (1982) (holding that to qualify for death sentence, felony murder defendant must have actually killed, attempted to kill, or intended to kill the victim).

Ortiz v. Stewart, 149 F.3d 923 (9th Cir. 1998) (finding that amended notice of aggravating factors given to defendant 13 days before sentencing hearing did not violate due process), cert. denied, 526 U.S. 1123 (1999).

State v. Carreon, 210 Ariz. 54, 107 P.3d 900 (2005) (en banc) (holding that because Ring v. Arizona, 536 U.S.584 (2002) (Ring II), announced a new procedural rule, rather than a substantive one, the retroactive application of Arizona’s new death penalty statute enacted in response to Ring II did not violate the Ex Post Facto Clauses of the state and federal constitutions or the statutory prohibition against retroactive application of statutes).

State v. Davolt, 207 Ariz. 191, 84 P.3d 456 (2004) (en banc) (holding that in a capital murder prosecution of a juvenile defendant, in which the death penalty was imposed but the trial court had failed to make individualized assessment of defendant’s maturity before trial, the proper remedy was remand for the trial court to determine, if possible, the extent of defendant's maturity and moral responsibility at the time he committed the murders).

Lynn v. Reinstein, 205 Ariz. 186, 68 P.3d 412 (2003) (en banc) (holding that the Eighth Amendment prohibits a victim from making a sentence recommendation to a jury in a capital case, although a victim’s statement as to the harm caused by the defendant’s criminal acts are no longer barred).

State v. Ring, 204 Ariz. 534, 65 P.3d 915 (2003) (en banc) (holding in consolidated cases involving all defendants sentenced to death who had matters pending on direct appeal at the time of Ring, that changes in state’s capital sentencing statutes were procedural in nature and that resentencing these defendants under new statutes would not violate the ex post facto clauses of state or federal constitutions, nor did double jeopardy principles preclude resentencing them; also holding that Sixth Amendment principles of Apprendi/Ring do not require that Enmund-Tison findings be made by jury; ruling that failure to submit capital aggravating factors to jury was not structural error mandating reversal).

State v. Towery, 204 Ariz. 386, 64 P.3d 828 (en banc) (holding that Ring v. Arizona does not apply retroactively to those defendants whose cases have become final; holding that new rule announced in Ring did not meet either of two exceptions to Teague’s general rule that new rules do not apply to cases that have become final; also holding under an Allen v. Hardy analysis the rule did not apply retroactively where (1) the rule was not designed to improve the accuracy of criminal trials; (2) the Arizona justice system acted in good faith in applying the rule in Walton; and (3) applying the rule would greatly disrupt the administration of justice and noting that Arizona has approximately 90 prisoners on death row whose cases are final), cert. dismissed, 539 U.S. 986 (2003).

State v. Lacy, 187 Ariz. 340, 929 P.2d 1288 (1996) (en banc) (finding that evidence of reckless indifference to human life in felony-murder death sentence was insufficient when record unclear whether defendant knew codefendant had a gun or whether defendant should have anticipated violence).

State v. Thornton, 187 Ariz. 325, 335, 929 P.2d 676, 686 (1996) (en banc) (rejecting argument that death penalty unconstitutional because sentencer not required to find that aggravators outweigh mitigators beyond a reasonable doubt).

State v. Landrigan, 176 Ariz. 1, 859 P.2d 111 (holding nonjury sentencing does not violate equal protection), cert. denied, 510 U.S. 927 (1993).

State v. Bible, 175 Ariz. 549, 858 P.2d 1152 (1993) (en banc) (holding capital sentencing scheme must perform genuine narrowing function, narrowing class of deatheligible defendants), cert. denied, 511 U.S. 1046 (1994).

State v. McCall, 160 Ariz. 119, 770 P.2d 1165 (1989) (en banc) (holding detailed findings regarding aggravating and mitigating circumstances not required in state trial record; holding defendant must show mitigating circumstances are sufficiently substantial to call for leniency), cert. denied, 497 U.S. 1031 (1990).

State v. Leslie, 147 Ariz. 38, 708 P.2d 719 (1985) (en banc) (finding that trial court must show in record that it considered all relevant mitigating factors in sentencing defendant).

State v. McMurtrey, 143 Ariz. 71, 691 P.2d 1099 (1984) (en banc) (holding defendant must prove mitigating circumstances by preponderance of evidence).

State v. Jordan, 126 Ariz. 283, 614 P.2d 825 (en banc) (holding eligibility for death penalty requires state to prove at least one enumerated aggravating circumstance beyond reasonable doubt), cert. denied, 449 U.S. 986 (1980).

Ariz. Rev. Stat. Ann. § 13-703(B) and (C) (Supp. 2005) (providing for admissibility of evidence of aggravating or mitigating circumstances).

Ariz. Rev. Stat. Ann. § 13-703.01(B) (Supp. 2005) (providing for notice by prosecution of aggravating circumstances).

Ariz. Rev. Stat. Ann. § 13-703.01(C) - (F) (Supp. 2005) (providing for aggravation and penalty phases of sentencing proceeding).

Ariz. Rev. Stat. Ann. § 13-703.01(G) (Supp. 2005) (providing for presentation of mitigating evidence at penalty phase).

Ariz. Rev. Stat. Ann. § 13-703.01(H) (Supp. 2005) (providing that jury determination of whether to impose death sentence must be unanimous).

Ariz. Rev. Stat. Ann. § 13-703.01(I) (Supp. 2005) (providing for admissibility of evidence admitted trial).

Ariz. Rev. Stat. Ann. § 13-703.01(J)-(L) (Supp. 2005) (providing for procedures where jury is unable to reach unanimous verdict at aggravation phase or penalty phase).

Ariz. Rev. Stat. Ann. § 13-703.01(N) and (O) (Supp. 2005) (providing for procedures for sentencing and resentencing where death sentence is overturned).

Ariz. Rev. Stat. Ann. § 13-703.01(R) (Supp. 2005)(providing for victim impact statement and right of victim to be present at sentencing proceeding).

Ariz. R. Crim. P. 15.1(i)(2), (i)(3) and (i)(5) (requiring state to disclose proof of aggravation).

Under Ariz. Rev. Stat. Ann. § 13-703(E), the trier of fact must impose a death sentence if the trier finds one or more of the enumerated aggravating circumstances and no mitigating circumstances sufficiently substantial to call for leniency.

The aggravating circumstances enumerated in § 13-703(F) are: 

(1) a previous felony conviction for which under Arizona law a sentence of life imprisonment or death may be imposed;

(2) a previous conviction 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 as the homicide but consolidated for trial with the homicide are treated as serious offenses);

(3) knowing creation of a grave risk of death to other persons in the commission of the offense;

(5) commission of the offense as consideration for or in expectation of the receipt of anything of pecuniary value;

(6) commission of the offense in an especially heinous, cruel, or depraved manner;

(7) commission of the offense while in the custody of or on release, authorized or not, from a correctional facility or jail or on probation for a felony offense;

(8) conviction of one or more other homicides committed during the commission of the offense;

(9) the defendant was an adult or was tried as an adult and the victim was under 15 years of age or was 70 years of age or older; or

(10) the victim was an on-duty peace officer killed in the course of his or her official duties and defendant knew or should have known the victim was a peace officer.

Under § 13-703.01(R) and (S) , a victim (defined as a person’s spouse, parent, child or other lawful representative, unless such person is in custody for an offense or is the accused) has a right to be present at the aggravation phase and to present any information that is relevant.

Walton v. Arizona, 497 U.S. 639 (1990) (upholding the “heinous, cruel or depraved” aggravating factor, as construed by the Arizona Supreme Court in Gretzler, 159 Ariz. 42, 659 P.2d 11 (1983)), overruled on other grounds in Ring v. Arizona, above.

Woratzeck v. Stewart, 97 F.3d 329 (9th Cir. 1996) (holding pecuniary gain aggravating factor constitutional as applied to robbery felony-murder death-eligible defendants).

State v. Carreon, 210 Ariz. 54, 107 P.3d 900 (2005) (en banc) (holding that aggravators need not be alleged in the indictment, and that Arizona’s method of providing notice to defendants of the aggravating factors that the state will seek to prove at sentencing violates neither the state nor federal constitutional right to a jury trial). 

State v. Moody, 208 Ariz. 424, 94 P.3d 1119 (2004) (en banc) (affirming convictions for the first degree murder but vacating a death sentence and remanding for resentencing, the supreme court held that it could not find harmless error in having the trial judge, rather than the jury, find the aggravating circumstance of expectation of pecuniary gain, where the jury could have differently assessed evidence that (1) defendant suffered from brain dysfunction, psychosis, and dissociative identity disorder at the time of the murders; (2) defendant had used massive amounts of cocaine at some time before the murders and that heavy cocaine use could lead to violent behavior; and (3) a small television, microwave, jewelry, and cocaine were left behind at one of the murder scenes).

State v. Phillips, 205 Ariz. 145, 67 P.3d 1228 (2003) (en banc) (holding on appeal in case that was pending at time decision was issued in Ring v. Arizona that because pecuniary gain aggravating circumstance is so fact-intensive, supreme court would not affirm judge’s finding of pecuniary gain unless supreme court was convinced beyond a reasonable doubt that no jury could find that state failed to prove pecuniary gain beyond a reasonable doubt), cert. denied, 540 U.S. 1000 (2003).

State v. Ring, 204 Ariz. 534, 65 P.3d 915 (2003) (en banc) (holding in consolidated cases involving all defendants sentenced to death who had matters pending on direct appeal at time of U.S. Supreme Court decision in Ring v. Arizona, that Sixth Amendment did not require resentencing on (F)(1) and (F)(2) aggravating factors since holding that age of victim aggravating circumstance (F)(9) can logically inhere in verdict where jury also convicted defendant of age-dependent crime and other circumstances of harmless error include instances where defendant stipulated to victim’s age or there was overwhelming evidence of victim’s age).

State v. Harrod, 204 Ariz. 567, 65 P.3d 948 (2003) (en banc) (holding that trial court’s finding that state had proven pecuniary gain statutory aggravating factor was not harmless error and remanding for resentencing under Arizona’s new statutory scheme following decision in Ring v. Arizona).

State v. Canez, 202 Ariz. 133, 42 P.3d 564 (2002) (upholding as permissible (F)(9) aggravating factor of victim’s age as having rational basis to protect the young and elderly as particularly vulnerable; using age as aggravating factor did not result in double counting since judge explicitly made heinous, cruel, and depraved finding without regard to murder victim’s age), reconsideration denied (May 21, 2002).

State v. Lehr, 201 Ariz. 509, 38 P.3d 1172 (2002) (en banc) (although (F)(6) aggravating factor was not established beyond a reasonable doubt, the (F)(1) and (2) aggravating factors that were established were sufficient to warrant death penalty absent sufficient mitigation; mitigating factors were weak and insufficient to warrant leniency).

State v. Sansing, 200 Ariz. 347, 26 P.3d 1118 (2001) (en banc) (holding existence of economic motive at some point during events surrounding murder is not enough to establish pecuniary gain as motive; holding there must be connection between economic motive and killing), cert. granted, 536 U.S. 954 (2002), vacated and remanded in light of Ring.

State v. Ring, 200 Ariz 267, 25 P.3d 1139 (2001) (en banc) (finding evidence supported trial court’s finding of pecuniary gain as an aggravating circumstance but did not support a finding of heinousness and depravity), rev’d on other grounds, 536 U.S. 584 (2002).

State v. Hoskins, 199 Ariz. 127, 14 P.3d 997 (2000) (en banc) (affirming death sentence with pecuniary gain as only aggravating factor; finding pecuniary gain where defendant car-jacked vehicle and killed driver; distinguishing pecuniary gain from felony murder), cert. denied, 534 U.S. 970 (2001).

State v. Martinez, 196 Ariz. 451, 999 P.2d 795 (en banc) (holding conviction of dangerous and deadly assault by a prisoner qualifies as a “serious offense” even though § 13-703H(1)(d) (now (H)(4)) does not contain the word “prisoner.”), cert. denied, 531 U.S. 934 (2000).

State v. Gallegos, 178 Ariz. 1, 870 P.2d 1097 (en banc) (finding (F)(9) aggravating factor applies when defendant tried as an adult and victim was younger than 15), cert. denied, 513 U.S. 934 (1994).

Ariz. Rev. Stat. Ann. § 13-703(E) (Supp. 2005) (requiring court to take aggravating and mitigating circumstances into account in determining sentence of death or life imprisonment and authorizing death sentence if court finds one or more aggravating circumstances enumerated in subsection (F) and no sufficient mitigating circumstances to call for leniency).

Ariz. Rev. Stat. Ann. § 13-703(F) (Supp. 2005) (enumerating aggravating circumstances).

Ariz. Rev. Stat. Ann. § 13-703.01(R) and (S) (Supp. 2005) (providing for victim impact statement and right of victim to be present at aggravation and penalty phases of sentencing proceeding; defining victim).

In presenting evidence of mitigating circumstances, the defendant may proffer any factors relevant to the determination of whether to impose a sentence less than death. These circumstances include, but are not limited to, the following: (1) significant impairment to defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law; (2) unusual and substantial duress; (3) relatively minor participation; (4) death not reasonably foreseeable; and (5) defendant’s age.

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 proved to exist. Each juror may consider any mitigating circumstance found by that juror in determining the appropriate penalty.

Jeffers v. Lewis, 38 F.3d 411 (9th Cir. 1994) (holding that sentencing court not required to specifically discuss each item of mitigation as long as it appears that it considered all relevant evidence), cert. denied, 514 U.S. 1071 (1995).

State v. Lehr, 205 Ariz. 107, 67 P.3d 703 (2003) (en banc) (holding that reversible error occurred where judge sentenced defendant to death under procedure invalidated in Ring where two of defendant’s three murder convictions had been reversed on appeal and therefore jury may have according less weight to (F)(1) aggravating factor, and reasonable jury might have accepted mitigating factors rejected by trial judge).

State v. Grell, 205 Ariz. 57, 66 P.3d 1234 ( 2003) (en banc) (holding that remand was required in capital case in order to conduct a hearing to determine whether defendant was mentally retarded where trial judge had viewed issue of defendant’s mental retardation as a possible mitigating circumstance rather than as a factor that would preclude imposition of the death penalty, as required in the later-decided case of Atkins v. Virginia).

State v. Pandeli, 204 Ariz. 569, 65 P.3d 950 (en banc) (holding that trial court’s finding that there were no mitigating circumstances was not harmless error where defense had presented expert who diagnosed defendant as suffering from paranoid schizophrenia and post traumatic stress disorder, and remanding for resentencing under Arizona’s new statutory scheme following decision in Ring v. Arizona) cert. denied, 124 S. Ct. 386 (2003).

State v. Bocharski, 200 Ariz. 50, 22 P.3d 43 (2001) (en banc) (finding capital mitigation investigation lacked adequate funding; remanding for resentencing).

State v. Kayer, 194 Ariz. 423, 984 P.2d 31 (1999) (en banc) (finding defendant competent to waive cooperation with court-appointed mitigation specialist; finding trial court did not err in proceeding to sentencing under circumstances), cert. denied, 528 U.S. 1196 (2000).

State v. Clabourne, 194 Ariz. 379, 983 P.2d 748 (1999) (en banc) (holding economic cost of death sentence not mitigating evidence; holding mental illness alone insufficient to support finding of impairment mitigator), cert. denied, 529 U.S. 1028 (2000).

State v. White, 194 Ariz. 344, 982 P.2d 819 (1999) (en banc) (declining to adopt “aberrant behavior” as a mitigating factor; discussing “model inmate” mitigating evidence), cert. denied, 529 U.S. 1005 (2000).

State v. Lacy, 187 Ariz. 340, 929 P.2d 1288 (1996) (en banc) (finding that victim’s opposition to death penalty not relevant mitigation evidence).

State v. Jones, 185 Ariz. 471, 917 P.2d 200 (1996) (en banc) (finding that sentencing judge must consider any aspect of defendant’s character, circumstance, or record relevant to imposing sentence; court has discretion to determine how much weight to give each mitigating circumstance).

State v. Stokley, 182 Ariz. 505, 898 P.2d 454 (1995) (en banc) (holding that unexplained disparity in sentencing of codefendant may be mitigation factor; nonstatutory mitigation weight given where defendant had documented mental disorders), cert. denied, 516 U.S. 1078 (1996).

Ariz. Rev. Stat. Ann. § 13-703(C) (Supp. 2005) (providing for presentation of mitigating evidence and placing burden of proof on defendant).

Ariz. Rev. Stat. Ann. § 13-703(G) (Supp. 2005) (stating that mitigating factors are any factors proffered by defendant or state relevant to determining whether to impose sentence less than death and enumerating non-exclusive list of mitigating factors).

When a court sentences a defendant to death, the superior court clerk files a notice of appeal on the defendant’s behalf at the time of entry of judgment and sentence. The Arizona Supreme Court has exclusive jurisdiction over all direct appeals of death penalty cases. In 2002 Arizona’s legislature rewrote the statutory scheme as to the scope of the supreme court’s review. As to cases in which a murder was committed before August 1, 2002, the state supreme court must independently review the trial court’s findings of aggravation and mitigation and the propriety of the sentence. Ariz. Rev. Stat. Ann. § 13-703.04. As to any sentencing or resentencing proceeding on any first degree murder case in which the offense was committed after August 1, 2002, there is no longer an independent review by the supreme court of the findings of the trier of fact of aggravation and mitigation and the propriety of the death sentence. Instead, newly enacted § 13-703.05 provides that the supreme court must review all death sentences to determine whether the trier of fact abused its discretion in finding aggravating circumstances and imposing a death sentence. If the supreme court determines that an error occurred, the court must determine whether the error was harmless beyond a reasonable doubt. If the court cannot determine whether the error was harmless, the court must remand for a new sentencing proceeding.

State v. Trostle, 191 Ariz. 4, 951 P.2d 869 (1997) (en banc) (holding that if supreme court finds error in trial court’s findings, court independently reweighs evidence to determine whether leniency appropriate).

State v. Lacy, 187 Ariz. 340, 929 P.2d 1288 (1996) (en banc) (finding that although the appellate court is charged with the duty of reviewing, and, when appropriate, reweighing various factors, the court will not engage in de novo application of statutory aggravating factors on appeal; § 13-703.01 (now 13-703.04) of the Arizona Code reflects strong legislative preference for supreme court not to remand for resentencing).

State v. Bible, 175 Ariz. 549, 858 P.2d 1152 (1993) (en banc) (holding that supreme court will remand for resentencing where trial judge has erred in the sentencing process and there is mitigating evidence of more than de minimis weight), cert. denied, 511 U.S. 1046 (1994).

State v. Salazar, 173 Ariz. 399, 844 P.2d 566 (1992) (en banc) (holding appellate proportionality review not constitutionally required and discontinued), cert. denied, 509 U.S. 912 (1993).

State v. Nash, 143 Ariz. 392, 694 P.2d 222 (en banc) (holding state supreme court must independently review record to determine aggravating and mitigating circumstances), cert. denied, 471 U.S. 1143 (1985).

Ariz. Rev. Stat. Ann. § 12-120.21 (1992) (providing that court of appeals does not have jurisdiction over appeal of criminal actions in which sentence of death imposed). 

Ariz. Rev. Stat. Ann. § 13-703.04 (formerly 13-703.01) (Supp. 2005) (applicable in first degree murder cases where murder occurred before August 1, 2002 and providing that supreme court must review all death sentences and must independently review trial court’s finding of aggravating and mitigating circumstances and propriety of death sentence and providing that review required does not prevent remand to trial court for further action in cases of error).

Ariz. R. Crim. P. 26.15 (setting special procedure for capital cases; filing notice of appeal).

Ariz. R. Crim. P. 31.9 (providing that after filing of notice of appeal in capital case, notice be sent to all court reporters directing them to submit their portion of record to supreme court).

Ariz. R. Crim. P. 31.17(c) (fixing date of execution after the death sentence has been affirmed).

A defendant may seek postconviction relief through Arizona Code § 13-4231, et seq. (postconviction relief) or Arizona Code § 13-4121, et seq. (habeas corpus). Relief is generally governed by Rule 32 of the Arizona Rules of Criminal Procedure. If a petition for writ of habeas corpus attacks the validity of the petitioner’s conviction or sentence, it is treated as a postconviction relief petition.

Ariz. Rev. Stat. Ann. §§ 13-4121–4145, 4147 (2001) (providing for habeas corpus relief).

In capital cases, a postconviction relief proceeding commences with the clerk of the supreme court filing a notice of postconviction relief with the trial court upon issuance of a supreme court mandate affirming the defendant’s conviction and sentence on direct appeal. The petitioner has 120 days from the date of notice to file a postconviction relief petition. An untimely filed petition can be dismissed with prejudice. On May 23, 2002, Rule 32.4(c) was amended to provide for appointment by the Arizona Supreme Court of postconviction relief counsel after issuance of the decision on direct appeal affirming the defendant’s conviction and sentence but prior to completion of certiorari proceedings in the U.S. Supreme Court or issuance of the Arizona Supreme Court’s mandate.

The petition must include all known challenges to the defendant’s conviction and sentence. The defendant is precluded from relief if the court finds by a preponderance of the evidence that the issue (1) remains appealable on direct appeal or post-trial motion; (2) was previously adjudicated on the merits; or (3) was waived in a previous proceeding. In State v. Spreitz, 202 Ariz. 1, 39 P.3d 525 (2002), the ArizonaSupreme Court clarified that claims of ineffective assistance must be raised in the postconviction relief petition and not on direct appeal.

The state has forty-five days to respond to defendant’s petition. The court may dismiss the petition summarily if it finds that the petition raises no material issues of law or fact. If the court holds a hearing on the merits, the defendant must prove the allegations by a preponderance of the evidence. The state must then prove the defect harmless beyond a reasonable doubt. Although the rules of evidence apply in these proceedings, the defendant has no privilege against self-incrimination.

State v. Spreitz, 202 Ariz. 1, 39 P.3d 525 (2002) (en banc) (holding that ineffective assistance of counsel claims are to be brought only in postconviction petition, not direct appeal).

State ex rel. Napolitano v. Brown, 194 Ariz. 340, 982 P.2d 815 (1999) (en banc) (holding the part of Arizona Code § 13-4234 that allowed defendant only sixty days to file postconviction relief petition was unconstitutional under separation of powers doctrine because it conflicted with the court rules allowing 120 days).

State v. Bejarano, 158 Ariz. 253, 762 P.2d 540, 541 (1988) (en banc) (holding unconstitutional one-year limitation period for filing state habeas petition under former Arizona Code § 13-4232).

Collateral relief is also available in the form of a writ of habeas corpus. However, if a prisoner challenges the validity of a sentence or conviction, the petition will be transferred to the court where the prisoner was convicted and will be treated as a petition for postconviction relief pursuant to Criminal Procedure Rule 32.

White v. State, 8 Ariz. App. 46, 442 P.2d 869 (1968) (holding summary denial proper if record refutes allegations of petition).

Arizona Statutes:

Ariz. Rev. Stat. Ann. §§ 13-4121-4145, 13-4147 (2001) (providing for habeas corpus relief).

Ariz. Rev. Stat. Ann. § 13-4233 (2001) (providing that habeas corpus writ treated as petition for postconviction relief).

Ariz. R. Crim. P. 31.23(b) (detailing timing of issuance of mandate in capital cases affirming death sentence).

Ariz. R. Crim. P. 32.3 (providing that habeas corpus writ treated as petition for postconviction relief).

Ariz. R. Sup. Ct. 1 (providing rules governing original filing of habeas petition in supreme court).

Any aggrieved party may move the court for rehearing and/or petition the supreme court for review of the trial court’s ruling. The supreme court may summarily grant or deny review or rule after oral argument on the petition.

Pursuant to statute, a defendant is precluded from state postconviction relief if: (a) the issue is still presentable on direct appeal or by a post-trial motion; (b) the issue was finally adjudicated on the merits on appeal or in any previous collateral proceeding; or (c) the issue was waived at trial, on appeal, or in any previous collateral proceeding. 

Exceptions to these procedural bars are claims based on: (a) newly discovered material facts, (b) a significant change in the law which, if applied retroactively, would probably overturn petitioner’s conviction or sentence, (c) the defendant’s failure to appeal within the prescribed time without fault on defendant’s part, (d) the defendant being held after his or her sentence has expired, or (e) the defendant can show by clear and convincing evidence that no reasonable factfinder would have found the defendant guilty of the underlying offense beyond a reasonable doubt or that the court would not have imposed the death penalty. The state has the burden of proving by a preponderance of the evidence any ground of preclusion asserted.

The U.S. Supreme Court, in Stewart v. Smith, 536 U.S. 856 (2002) (per curiam) held that because a state court’s finding of preclusion by waiver under Ariz. R. Crim. P. Rule 32.2(a)(3) does not require an examination of the merits of the claim, it is independent of federal law. In addition, Rule 32.2(a)(3) has been found by the Ninth Circuit to be regularly and consistently applied (see Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th Cir 1998)). Thus Rule 32.2(a)(3) is to be distinguished from preclusion under Rule 32.2(a)(2) (any ground finally adjudicated on the merits on appeal or in any previous collateral proceeding), which is not a bar to federal relief, as explained in Poland v. Stewart, 169 F.3d 573, 578 (9th Cir 1999).

Stewart v. Smith, 536 U.S. 856 (2002) (per curiam) (holding, following answering of certified question by Arizona Supreme Court, that because finding of waiver under Rule 32.2(a)(3) does not require examination of merits of claim, it is independent of federal law).

Stewart v. Smith, 534 U.S. 157 (2001) (per curiam) (as to Ninth Circuit decision holding petitioner’s ineffective assistance of counsel claim not to be procedurally defaulted because Arizona’s Rule 32.2 requires that state court consider nature of claim before finding it procedurally defaulted, U.S. Supreme Court certified question to Arizona Supreme Court as follows: at time of respondent’s Rule 32 petition in 1995, did question whether asserted claim was of “sufficient constitutional magnitude” to require a knowing, voluntary, and intelligent waiver for purposes of Rule 32.2(a)(3) depend on the merits of the particular claim or merely on the particular right alleged to be violated; question answered by Arizona Supreme Court in Stewart v. Smith, 202 Ariz. 446, 46 P.3d 1067 (2002), discussed below).

Stewart v. Smith, 202 Ariz. 446, 46 P.3d 1067 (2002) (answering question certified by U.S. Supreme Court in Stewart v. Smith, 534 U.S. 157 (2001), above, and holding that at time of respondent’s third Rule 32 petition in 1995, question whether asserted claim was of “sufficient constitutional magnitude” to require a knowing, voluntary, and intelligent waiver for purposes of Rule 32.2(a)(3), depended not on merits of particularclaim, but rather merely on particular right alleged to be violated). 

State v. White, 194 Ariz. 344, 982 P.2d 819 (1999) (en banc) (stating defendant waived claim on appeal by not raising it in earlier proceeding), cert. denied, 529 U.S. 1005 (2000).

Ariz. Rev. Stat. Ann. § 13-4232 (2001) (precluding postconviction relief for certain barred claims).

After the state supreme court affirms a death sentence and the first postconviction relief proceeding is concluded, or the period to file a postconviction relief petition has expired, the supreme court issues an execution warrant to the director of the department of corrections. The warrant designates a 24-hour period for execution of the sentence between 35 and 60 days following its issuance.

If any court stays the initial warrant, the supreme court is required to issue subsequent warrants upon the state’s motion. The warrant orders the director to provide 20-days’ notice of the designated hour of execution. The director makes a return on the warrant to the supreme court showing the time and manner of execution.

In 1992, Arizona voters passed a constitutional amendment changing the method of execution from lethal gas to lethal injection. However, if sentenced before November 23, 1992, the prisoner may elect execution by lethal gas. The director of the state department of corrections or a designee of the director is present at the execution. The prisoner may have two clergymen and five relatives or friends present at the execution.

Subsequent to a June 25, 1998 amendment to Rule 31.17(c) of the Arizona Rules of Criminal Procedure, the Arizona Department of Corrections changed their execution time from 12:01 a.m. to 3:00 p.m. The executions occur at the state prison in Florence.

Stewart v. LaGrand (Walter), 526 U.S. 115 (1999) (per curiam) (holding that petitioner waived claim that execution by lethal gas violated Eighth Amendment by choosing to be executed by lethal gas rather than lethal injection).

LaGrand (Karl) v. Stewart, 133 F.3d 1253, 1264 (9th Cir.) (holding that lethal gas challenge was not ripe for adjudication because petitioner would be executed by lethal gas only if he affirmatively chose that option), cert. denied, 525 U.S. 971 (1998).

Poland v. Stewart, 117 F.3d 1094 (9th Cir. 1997) (holding that option to choose between gas and injection by a prisoner sentenced to death before adoption of lethal injection is constitutional), cert. denied, 523 U.S. 1082 (1998).

Hernandez v. State, 43 Ariz. 424, 32 P.2d 18 (1934) (holding Arizona Constitution article 22, § 22 provision of execution by lethal gas not cruel and unusual punishment).

Ariz. Rev. Stat. Ann. § 13-704 (2001) (providing for lethal injection as method of execution, or, if sentenced before November 23, 1992, choice of lethal injection or lethal gas).

Ariz. Rev. Stat. Ann. § 13-706 (2001) (requiring warrant for execution by supreme court and return by director of department of corrections).

Ariz. Rev. Stat. Ann. § 13-4040 (2001) (providing for supreme court jurisdiction to issue execution warrant).

Ariz. Rev. Stat. Ann. § 13-4234 (2001) (providing for stay of execution date on the filing of a second or subsequent petition).

Ariz. R. Crim. P. 31.17(c) (fixing the date of execution after exhaustion of state court remedies).

A mentally incompetent, mentally retarded, or pregnant prisoner is not subject to execution in Arizona. If the director of the state department of corrections, the prisoner’s attorney, or the state’s attorney believe the prisoner may be mentally incompetent, he or she files a motion with the superior court in the county where the prisoner is located requesting the prisoner to be examined for mental competency. A separate motion must be filed with the supreme court to obtain a stay of execution.

If the superior court finds that the motion is timely and presents reasonable grounds for the requested examination, the court appoints experts to examine the prisoner. After the examinations are completed, the court may hold a hearing to determine the prisoner’s competency. The prisoner is presumed to be competent and must prove incompetency by clear and convincing evidence.

If the prisoner is found incompetent, the prisoner remains in the custody of the department of corrections until the supreme court reviews the finding. If the supreme court upholds the finding of incompetency, the prisoner is transferred to a licensed behavioral health or mental health in-patient facility operated by the department of corrections for competency restoration treatment. The sentence is suspended until such time as the prisoner is restored to competency.