State v. Wallace, No. 6584

CourtSupreme Court of Arizona
Writing for the CourtFERNANDEZ; GORDON; ROBERT J. CORCORAN
Citation160 Ariz. 424,773 P.2d 983
PartiesSTATE of Arizona, Appellee, v. James Granvil WALLACE, Appellant.
Decision Date11 April 1989
Docket NumberNo. 6584

Page 983

773 P.2d 983
160 Ariz. 424
STATE of Arizona, Appellee,
v.
James Granvil WALLACE, Appellant.
No. 6584.
Supreme Court of Arizona, In Banc.
April 11, 1989.
As Amended June 15, 1989.

Robert K. Corbin, Atty. Gen. by William J. Schafer, III and Crane McClennen, Assistant Attys. Gen., Phoenix, for appellee.

Curtis & Cunningham by George Haskel Curtis, Tucson, for appellant.

FERNANDEZ, Judge.

The essential facts of this case appear in State v. Wallace, 151 Ariz. 362, 728 P.2d 232 (1986), cert. denied, 483 U.S. 1011, 107 S.Ct. 3243, 97 L.Ed.2d 748 (1987). On February 1, 1984, appellant murdered his girl friend Susan Insalaco, with whom he had lived for two and one-half years. Earlier that day, while he waited for Susan to

Page 984

[160 Ariz. 425] return from work, appellant killed her two children, Anna, age 16, and Gabe, age 12. Appellant killed Anna by repeatedly hitting her with a baseball bat. When the bat broke, appellant forced a portion of the bat through her throat. Gabe died in an equally brutal manner when he was struck with a pipe wrench. When Susan came home, she too was killed with a pipe wrench.

Appellant then took money from Susan's wallet, took her truck, drove to a liquor store and then to a roadside area to drink. Later, he went to a friend's house where he played chess and spent the night. The next morning he told his friend what had happened and called the police. After he was advised of his rights, appellant gave a detailed confession, constantly expressing remorse and repeatedly requesting execution.

He was indicted on three counts of murder and two counts of armed robbery. After a preliminary examination pursuant to Rule 11, Ariz.R.Crim.P., 17 A.R.S., the court determined that appellant was competent to stand trial. Against the advice of his attorney, appellant entered a plea of guilty to all counts. The court sentenced him to death on each of the three murder counts and to two concurrent terms of 21 years on the armed robbery counts.

In appellant's first appeal, we held that the trial court erred in finding a factual basis for the two robbery convictions. 151 Ariz. at 366, 728 P.2d at 236. We also found that the element of cruelty as an aggravating factor was not established beyond a reasonable doubt because the state offered no evidence to establish pain or suffering by the victims and because the evidence was inconclusive as to whether any of the victims remained conscious after the initial blow. In addition, we found that the evidence fully supported the aggravating factor that the murders were committed in a heinous and depraved manner.

With regard to Susan's death, the trial court also found as an aggravating factor that appellant committed the murder for pecuniary gain. This finding fell when this court found no factual basis for the robbery charges. We affirmed the death sentences for the murders of the two children. Because we set aside one of the aggravating factors the trial court found with regard to Susan, we remanded that murder charge for resentencing with a reweighing of the remaining aggravating and mitigating factors.

On remand, the trial court dismissed the robbery counts and held a new aggravation/mitigation hearing on the murder of Susan Insalaco. In June 1987, before he was resentenced, appellant filed a petition for post-conviction relief pursuant to Rule 32, Ariz.R.Crim.P., 17 A.R.S., in which he argued that 1) Dr. David Gurland's recent opinion on appellant's mental state at the time of the crimes constituted newly-discovered evidence, 2) the finding of this court that the aggravating factor of "especially cruel" had not been established also required the trial court to set aside the death sentences for the murders of the children, and 3) appellant had received ineffective assistance of appellate counsel. The parties agreed that the court could weigh the evidence presented at the aggravation/mitigation hearing to determine whether to hold an evidentiary hearing on the issues raised in the Rule 32 petition.

At the conclusion of the hearing, the trial court weighed the one mitigating circumstance, appellant's remorse, against the one remaining aggravating circumstance, that appellant committed the murder in a heinous and depraved manner, and concluded that the mitigating circumstance was not sufficiently substantial to call for leniency. The court then resentenced appellant to death for the murder of Susan Insalaco. In ruling on the post-conviction relief petition, the court found that there had been no ineffective assistance of counsel and noted that this court's prior opinion upheld the death sentences with regard to the children. The court also found no additional mitigating circumstances and denied relief.

We have jurisdiction pursuant to A.R.S. § 13-4031. At oral argument, the parties agreed to consolidate the appeal of the resentencing with the review of the denial of the Rule 32 petition.

Page 985

[160 Ariz. 426] Appellant contends the trial court erred in failing to find the mitigating factor that he was mentally impaired at the time of Susan's murder and in failing to find the mitigating factor that he had a difficult family background.

We have reviewed the court's finding that there was no ineffective assistance of counsel. We find nothing to support appellant's contention in that regard and affirm the finding.

We also agree with the trial court that our previous opinion, affirming the death sentences for the murders of the children despite our conclusion that cruelty was not an aggravating factor, requires us to reject appellant's contention that the death penalties for the children's murders must be set aside because the finding of cruelty was set aside. In that opinion, we stated as follows:

The first aggravating circumstance found by the trial court was that the murders were committed in an especially heinous, cruel or depraved manner. A.R.S. § 13-703(F)(6). As the statutory expression is in the disjunctive, it is not necessary that all three elements be present. A finding of any one of these factors is sufficient to constitute the aggravating circumstance.

151 Ariz. at 366-67, 728 P.2d at 236-37 (emphasis added). A defendant cannot utilize post-conviction relief proceedings in order to attack matters finally adjudicated on their merits on direct appeal. State v. Tison (Raymond), 142 Ariz. 454, 690 P.2d 755 (1984), vacated on other grounds, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). We find...

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62 practice notes
  • Poyson v. Ryan, No. 10–99005.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 2, 2014
    ...of the drugs, that defendant could not appreciate the wrongfulness of his conduct or conform his conduct to the law”); State v. Wallace, 160 Ariz. 424, 773 P.2d 983, 986 (1989) (en banc) (“A difficult family background, in and of itself, is not a mitigating circumstance.”). Arizona's causal......
  • McKinney v. Ryan, No. 09–99018.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 16, 2013
    ...an effect or impact on his behavior that was beyond the defendant's control.’ ” Id. at 1363 (emphasis added) (quoting State v. Wallace, 160 Ariz. 424, 773 P.2d 983, 986 (1989)). McKinney argues that the Arizona Supreme Court's citation to Ross demonstrates that it held the mitigation eviden......
  • Walden v. Shinn, No. 08-99012
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 12, 2021
    ...Walden did "not explain how this had anything at all to do with the rapes and the murder." Id. (citing State v. Wallace , 160 Ariz. 424, 773 P.2d 983, 986 (1989), for the rule that "[a] difficult family background is a relevant mitigating circumstance if a defendant can show ......
  • Hurles v. Ryan, No. 08–99032.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • January 18, 2013
    ...and his conduct at the time of the crime, thus, the mental health evidence presented at sentencing proved worthless. State v. Wallace, 160 Ariz. 424, 773 P.2d 983 (1989) (en banc) (“A difficult family background is a relevant mitigating circumstance if a defendant can show that something in......
  • Request a trial to view additional results
62 cases
  • Poyson v. Ryan, No. 10–99005.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 2, 2014
    ...of the drugs, that defendant could not appreciate the wrongfulness of his conduct or conform his conduct to the law”); State v. Wallace, 160 Ariz. 424, 773 P.2d 983, 986 (1989) (en banc) (“A difficult family background, in and of itself, is not a mitigating circumstance.”). Arizona's causal......
  • McKinney v. Ryan, No. 09–99018.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 16, 2013
    ...an effect or impact on his behavior that was beyond the defendant's control.’ ” Id. at 1363 (emphasis added) (quoting State v. Wallace, 160 Ariz. 424, 773 P.2d 983, 986 (1989)). McKinney argues that the Arizona Supreme Court's citation to Ross demonstrates that it held the mitigation eviden......
  • Walden v. Shinn, No. 08-99012
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 12, 2021
    ...Walden did "not explain how this had anything at all to do with the rapes and the murder." Id. (citing State v. Wallace , 160 Ariz. 424, 773 P.2d 983, 986 (1989), for the rule that "[a] difficult family background is a relevant mitigating circumstance if a defendant can show ......
  • Hurles v. Ryan, No. 08–99032.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • January 18, 2013
    ...and his conduct at the time of the crime, thus, the mental health evidence presented at sentencing proved worthless. State v. Wallace, 160 Ariz. 424, 773 P.2d 983 (1989) (en banc) (“A difficult family background is a relevant mitigating circumstance if a defendant can show that something in......
  • Request a trial to view additional results

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