State v. Sansing, No. CR-99-0438-AP.

• Court: Supreme Court of Arizona
• Writing for the Court: McGREGOR, Justice.
• Citation: 26 P.3d 1118,200 Ariz. 347
• Docket Number: No. CR-99-0438-AP.
• Decision Date: 02 July 2001
• Parties: STATE of Arizona, Appellee, v. John Edward SANSING, Appellant.

26 P.3d 1118
200 Ariz. 347

STATE of Arizona, Appellee,
v.
John Edward SANSING, Appellant

No. CR-99-0438-AP.

Supreme Court of Arizona, En Banc.

July 2, 2001.

26 P.3d 1122

Maricopa County Public Defender, by Terry J. Adams, Deputy Public Defender and Spencer D. Heffel, Deputy Public Defender, Phoenix, Attorneys for John Edward Sansing

Janet Napolitano, The Attorney General, by Kent E. Cattani, Chief Counsel, Capital Litigation Section and Monica Beerling Klapper, Assistant Attorney General, Phoenix, Attorneys for State.

OPINION

McGREGOR, Justice.

¶ 1 On March 4, 1998, a grand jury indicted the defendant, John Edward Sansing, on four counts: first-degree murder, kidnaping, armed robbery, and sexual assault. The defendant pled guilty to all charges on September 18, 1998. Following a sentencing hearing, Judge Ronald S. Reinstein sentenced the defendant to death on September 30, 1999. Appeal to this court is automatic and direct when the court imposes a sentence of death. Ariz.Rev.Stat. (A.R.S.) § 13-703.01 (2001). We exercise jurisdiction pursuant to Article 6, Section 5.3 of the Arizona Constitution, A.R.S. section 13-4031, and Arizona Rule of Criminal Procedure 31.2.b.

I.

¶ 2 On February 24, 1998, the defendant called the Living Springs Church and requested delivery of a food box for his family. He gave the church secretary his name and home address for the delivery. The defendant then telephoned his wife, Kara Sansing, at work several times, primarily to discuss how to obtain more crack cocaine for the two

26 P.3d 1123

of them to smoke. During these calls, the defendant informed his wife that he had obtained some crack cocaine, that he had smoked some of it and was saving the rest for her. He also told her that he had called a church and arranged for delivery of some food. When Kara Sansing returned home at approximately 3:20 p.m., the couple smoked the remaining crack cocaine. The defendant, in the presence of his four children, informed Kara of his plan to rob the person who came from the church with the food boxes so he could purchase more crack cocaine

¶ 3 Trudy Calabrese left the Living Springs Church in her truck at approximately 4:00 p.m. She arrived at the Sansing home shortly thereafter, parked in front of the house, and delivered two boxes of food. Ms. Calabrese chatted with Kara Sansing in the kitchen while the defendant signed a receipt for the delivery. Before Ms. Calabrese could leave, the defendant grabbed her from behind and threw her to the dining room floor. Aided by his wife and with his children watching, the defendant bound her wrists while she cried, "Lord, please help me" and, "I don't want to die, but if this is the way you want me to come home, I am ready," and repeatedly asked the defendant's children to call the police. The defendant instructed his children to go into the living room and watch television.

¶ 4 Using a club, the defendant struck Ms. Calabrese in the head several times with force sufficient to break the club into two pieces and render her temporarily unconscious. Leaving her on the dining room floor, the defendant took her keys and moved her truck to a business parking lot nearby. At some point before he returned, Ms. Calabrese regained consciousness. Upon his return, the defendant dragged her into his bedroom and sexually assaulted her. Kara Sansing, who witnessed the rape, testified that she heard the defendant and Ms. Calabrese speaking during the rape. The defendant then fatally stabbed her in the abdomen three times with a kitchen knife. During the attack, the defendant placed a sock in Ms. Calabrese's mouth and secured two plastic bags over her head with additional cords and a necktie. According to the medical examiner, she lived several minutes after being stabbed. After the murder, the defendant left the bedroom and went to look out the dining room window to make certain no one had observed his actions.

¶ 5 The defendant then removed Ms. Calabrese's jewelry and left her body in his bedroom, covered with laundry, for several hours. The defendant engaged in two separate drug transactions shortly after the murder. First, he telephoned a drug dealer and arranged to trade the victim's rings for crack cocaine. Later, he arranged to trade her necklace for more crack cocaine.

¶ 6 Later in the evening, Pastor Becker from Living Springs Church called the Sansing home looking for Ms. Calabrese and spoke to the defendant. The defendant, giving a false address, told the pastor that she had never arrived.

¶ 7 Late that night, the defendant dragged Ms. Calabrese from the bedroom to the backyard and placed her body in a narrow space between the back of his shed and the fence. He covered her with a piece of old carpeting and other debris. At least three of the four Sansing children saw the body behind the shed. At some point, the defendant washed the bloody club and hid the clothes he had used to cover her body in a box in the bedroom.

¶ 8 The next day, searchers found Ms. Calabrese's truck in a parking lot near the Sansing home. Inside, they found a piece of paper with the Sansings' correct address. The police went to the Sansing home and discovered the victim's body behind the shed. The defendant, who had driven to his sister's house, admitted to her that he and his wife had killed Ms. Calabrese. Eventually, the defendant's father telephoned the police and reported the defendant's location. The defendant knew the police were coming and did not attempt to flee. When the police arrived, he submitted to custody peaceably and without resistance.

II.

A. Aggravating Factors

1. Consideration of Character of the Victim

¶ 9 The defendant asserts that the judge improperly based his sentencing decision

26 P.3d 1124

on Ms. Calabrese's good character. In his special verdict, the judge referred to the victim as a "Good Samaritan" and as a person who "took great joy in helping people in need." The judge's concluding remarks, after considering all aggravating and mitigating factors, described Ms. Calabrese as a person who "stood out like a shining light, as a true Samaritan" and who "kept her faith in God to the end." The defendant argues that the judge imposed the death sentence because he viewed the victim as a person above the norm of other murder victims. That approach, he argues, violates A.R.S. section 13-703, which does not define the character of the victim as an aggravating factor, and discriminates on the basis of the victim's status. A.R.S. § 13-703.A H (2001)

¶ 10 We agree with the State that the judge's comments, taken in context, do not show that the trial judge relied upon the victim's good character in imposing the sentence. Taken in context, the comments merely state the judge's summary of the aggravating factors, particularly the senselessness of the crime and the helplessness of the victim. The fact that the victim was delivering food when attacked is related to the senselessness of the crime; the judge's comments related to "resorting to prayer for comfort" describe the helplessness of the victim after she had been beaten and bound.

¶ 11 The defendant relies on Gerlaugh v. Lewis, 898 F.Supp. 1388 (D.Ariz.1995), aff'd 129 F.3d 1027 (9th Cir.1997), to support his argument that imposing a death sentence based on the social or economic background of the victim or defendant supports a claim of discrimination. In Gerlaugh, the habeas petitioner alleged that Arizona's death sentence is "discriminately applied because the death penalty is more likely to be imposed if the victim is white and the defendant is a young male from a lower socio-economic background." Gerlaugh, 898 F.Supp. at 1416. The court stated that "[t]o prevail on an equal protection claim, Petitioner must prove `that the decision-makers in his case acted with discriminatory purpose.'" Id. (citing McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987)). The defendant points to no facts that support a finding that the trial judge acted with discriminatory purpose, and nothing in the special verdict suggests that the victim's social or economic background affected the judge's decision.

2. Pecuniary Gain as an Aggravating Factor

¶ 12 When a defendant commits murder "as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value," the court shall consider this an aggravating circumstance. A.R.S. § 13-703.F.5 (2001). To establish the F.5 factor, the State must prove beyond a reasonable doubt that pecuniary gain was "a motive, cause, or impetus for the murder and not merely the result of the murder." State v. Kayer, 194 Ariz. 423, 433 ¶ 32, 984 P.2d 31, 41 ¶ 32 (1999) (quoting State v. Spears, 184 Ariz. 277, 292, 908 P.2d 1062, 1077 (1996)), cert. denied, 528 U.S. 1196, 120 S.Ct. 1259, 146 L.Ed.2d 115 (2000). We conclude the court erred in finding the State established the F.5 factor in this matter.

¶ 13 The State, relying on LaGrand and Greene, argues that the defendant's overall motive was to rob the victim and "this desire infect[ed] all other conduct of the defendant." State v. LaGrand, 153 Ariz. 21, 35, 734 P.2d 563, 577 (1987); State v. Greene, 192 Ariz. 431, 439 ¶ 32, 967 P.2d 106, 114 ¶ 32 (1998), cert. denied, 526 U.S. 1120, 119 S.Ct. 1772, 143 L.Ed.2d 802 (1999). The State interprets the language from LaGrand too broadly and ignores relevant restrictions that apply when evaluating the F.5 aggravating factor. A murder committed in the context of a robbery or burglary is not per se motivated by pecuniary gain. Rather, we reserve the death penalty for murders committed during a robbery or burglary for those cases in which the facts clearly indicate a connection between a pecuniary motive and the killing itself; the expectation of pecuniary gain must be a motive for the murder.

¶ 14 We distinguish a murder that occurs during a robbery or burglary in which the expectation of pecuniary gain serves as a catalyst for the...