United States District Court, D. Arizona
DEATH
PENALTY CASE
ORDER
Neil
V. Wake Senior United States District Judge.
Table
of Contents
I.
BACKGROUND
............................................................................................
II.
AEDPA
...........................................................................................................
3
III.
DISCUSSION
.................................................................................................
3
A.
Claims 1 and 2
.......................................................................................
4
1.
Claim 1
........................................................................................
4
2.
Claim 2
........................................................................................
7
B.
Unexhausted, Defaulted Claims
........................................................... 8
C.
Exhausted Claims
.................................................................................
9
1.
Claim 11
.....................................................................................
9
2.
Claim 20
.....................................................................................
11
3.
Claim 24 (in part)
.......................................................................
12
a.
Claim 24(A)(2)
...................................................................
12
b.
Claim 24(A)(5)
...................................................................
13
c.
Claim 24(G)
........................................................................
14
d.
Claim 24(H)
........................................................................
16
e.
Claim 24(N)
........................................................................
17
D.
Ineffective Assistance of Counsel Claims
........................................... 18
1.
Claim 25: Ineffective assistance of trial counsel
....................... 19
a.
Trial counsel repeated various prejudicial deficiencies
throughout their representation
.......................................... 21
b.
Trial counsel performed deficiently and prejudicially in
investigating, presenting, and litigating Roseberry's
case before trial
..........................................................................
30
c.
Trial counsel performed deficiently and prejudicially during
jury selection
...........................................................
32
d.
Trial counsel performed deficiently and prejudicially during
the guilt/innocence phase of Roseberry's trial. 36
e.
Trial counsel performed deficiently and prejudicially during
the sentencing phases of Roseberry's trial .............
42
3(a)
Evidence presented at sentencing ...........................
43
3(b)
New Evidence
......................................................... 45
3(c)
Analysis
...................................................................
47
3(d)
Conclusion
..............................................................
51
f.
Conclusion
..........................................................................
53
2.
Claim 26: Ineffective assistance of appellate counsel
............... 54
a.
Causal-nexus and Enmund/Tison claims
............................ 55
b.
Trial court errors
................................................................
56
c.
Failure to challenge Arizona's death penalty statute
......... 57
d.
Failure with respect to the record and the case file
............ 58
e.
Appellate counsel performed ineffectively throughout his
representation
.....................................................................
58
3.
Claim 28: ineffective assistance of PCR counsel
...................... 58
E.
Claims Challenging Arizona's Death Penalty Statute
......................... 59
1.
Claim 29
.....................................................................................
59
2.
Claim 30
.....................................................................................
59
3.
Claim 31
.....................................................................................
59
4.
Claim 32
.....................................................................................
60
5.
Claim 33
.....................................................................................
60
6.
Claim 34
.....................................................................................
60
7.
Claim 35
.....................................................................................
61
8.
Claim 36
.....................................................................................
62
9.
Claim 37
.....................................................................................
62
10.
Claim 38
.....................................................................................
63
11.
Claim 39
.....................................................................................
63
IV.
CERTIFICATE OF APPELABILITY
.......................................................... 63
V.
CONCLUSION
..............................................................................................
64
Before
the Court is the Petition for Writ of Habeas Corpus filed by
Homer Roseberry, an Arizona death row inmate. (Doc. 32.)
Respondents filed an answer to the petition and Roseberry
filed a reply. (Docs. 45, 49.) For the reasons set forth
below, and based on the Court's review of the briefings
and the entire record herein, the petition is denied.
I.
BACKGROUND
The
Arizona Supreme Court, in State v. Roseberry, 210
Ariz. 360, 363, 111 P.3d 402, 405 (2005), summarized the
facts underlying Roseberry's convictions and sentences as
follows.
In
1997, Roseberry and his wife, Diane, met members of a
marijuana-smuggling ring known as the Pembertons. In late
1998 and early 1999, Roseberry was paid by the Pembertons to
transport marijuana in his motorhome from Arizona to
Michigan.
In
early October of 2000, Roseberry agreed to transport more
than 1, 000 pounds of marijuana. When Roseberry arrived in
Phoenix to pick up the load, the Pembertons informed him that
Fred Fottler would accompany him on the trip. Several large
duffle bags of marijuana were then loaded into the motorhome.
On
October 20, 2000, Roseberry set off from Phoenix. Pursuant to
a scheme he devised with his friend Charles Dvoracek,
Dvoracek traveled to Wickenburg, Arizona, where he was
supposed to intercept and “steal” the motorhome
and marijuana while Roseberry and Fottler were eating at a
Denny's restaurant. In the early morning hours of October
21, 2000, Dvoracek parked his truck on the side of the road
and waited for the motorhome to stop at Denny's. Instead
of stopping at the restaurant, however, Roseberry drove back
onto the highway and continued north toward his home in
Nevada.
Dvoracek
followed the motorhome, which Roseberry soon pulled over onto
the shoulder of the road. As Dvoracek pulled in behind, he
heard two pops. Roseberry stepped out of the motorhome and
told Dvoracek that he had “shot the guy” the
Pembertons had sent to accompany him on the drug run.
Roseberry
shot Fottler in the back of the head. Fottler was still
making gurgling noises, so Roseberry returned to the
motorhome and shot him again. Roseberry and Dvoracek then
wrapped Fottler's body in a blanket and dumped it into a
gully on the side of the road.
As
Roseberry drove through Arizona, he threw his gun out the
window of the motorhome. Roseberry and Dvoracek stopped in
Kingman, Arizona, to remove other evidence of the crime. They
took a blood-stained sheet from the motorhome and threw it
over a fence. They also buried Fottler's wallet and moved
one of the duffle bags of marijuana from the motorhome to
Dvoracek's truck so Dvoracek could sell the drugs to
raise money in case it became necessary to bail Roseberry out
of jail.
They
arrived at Roseberry's home in Henderson, Nevada, on
October 21, 2000, and put the motorhome and drugs into
storage. Later that day, Roseberry confided to his wife that
he killed Fottler so he could steal the marijuana and sell it
himself. Roseberry told her that his story was going to be
that “some Mexicans” with guns were in the
motorhome and had killed Fottler while Roseberry was out of
the vehicle.
Diane
Roseberry called her brother, Otis Bowman, and asked him to
fly in from Indiana, which he did on October 22, 2000. Two
drug dealers flew in with Bowman. They agreed to purchase
about 300 pounds of marijuana, which Bowman later transported
to Ohio in Roseberry's motorhome. Roseberry and Dvoracek
split the money from the sale.
Fottler's
body was soon discovered. Investigative leads from United
States Customs agents led Yavapai County Deputy Sheriffs to
Roseberry, whose motorhome the customs agents had observed
while surveilling a Tucson stash house.
Roseberry
was tried and convicted of first-degree murder and drug
offenses. The jury then determined that the pecuniary gain
aggravating factor, A.R.S. § 13-703(F)(5), had been
proved. In the penalty phase, held six months later before
the same jury, Roseberry presented mitigation evidence in
support of five statutory and five non-statutory mitigating
circumstances. The jury determined that the mitigation
evidence was not sufficiently substantial to warrant leniency
and returned a verdict of death for the murder. The court
sentenced Roseberry to death.
On
direct appeal, the Arizona Supreme Court affirmed the
convictions and sentences. Roseberry, 210 Ariz. 360,
111 P.3d 402. Roseberry filed a petition for post-conviction
relief (“PCR”) in April 2012. The trial court
denied the petition and the Arizona Supreme Court denied
Roseberry's petition for review. State v. Roseberry
(Roseberry II), 237 Ariz. 507, 353 P.3d 847 (2015).
On
December 22, 2015, Roseberry filed a sealed petition for writ
of habeas corpus in this Court. (Doc. 23.) He filed an
unsealed petition on August 8, 2016. (Doc. 32.) On January
20, 2018, the Court denied in part and granted in part
Roseberry's request for evidentiary development. (Doc.
70.)
II.
AEDPA
Federal
habeas claims are analyzed under the framework of the
Antiterrorism and Effective Death Penalty Act
(“AEDPA”). Under the AEDPA, a petitioner is not
entitled to habeas relief on any claim adjudicated on the
merits in state court unless the state court's
adjudication (1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established federal law or (2) resulted in a decision that
was based on an unreasonable determination of the facts in
light of the evidence presented in state court. 28 U.S.C.
§ 2254(d).
The
Supreme Court has emphasized that “an
unreasonable application of federal law is different
from an incorrect application of federal law.”
Williams v. Taylor, 529 U.S. 362, 410 (2000). Under
§ 2254(d), “[a] state court's determination
that a claim lacks merit precludes federal habeas relief so
long as ‘fairminded jurists could disagree' on the
correctness of the state court's decision.”
Harrington v. Richter, 562 U.S. 86, 101 (2011). The
burden is on the petitioner to show “there was no
reasonable basis for the state court to deny relief.”
Id. at 98.
III.
DISCUSSION
Roseberry's
petition lists 47 claims.[1] Some of the claims contain as many as
50 subclaims. All told, Roseberry alleges that his state
court proceedings were plagued by more than 150 separate
constitutional violations. He exhausted 30 of these claims in
state court.
A.
Claims 1 and 2
In
Claim 1, Roseberry alleges that his rights were violated by
the trial court's erroneous instruction that the jury
could not consider mitigating evidence if Roseberry failed to
prove a causal connection between the evidence and the crime.
(Doc. 32 at 41.) In Claim 2, Roseberry alleges that the trial
court unconstitutionally “usurp[ed] the jury's role
to make the Enmund/Tison finding.”
(Id. at 53.)
Roseberry
did not appropriately raise these claims on appeal in state
court. He contends that the ineffective performance of
appellate counsel excuses their default.[2] (Doc. 32 at 41,
53.) The Court will deny the claims as meritless,
irrespective of their procedural status. See 28
U.S.C. § 2254(b)(2).
1.
Claim 1
The
trial court instructed the jury at sentencing that if
Roseberry “fails to prove causation between a proposed
mitigating circumstance and the crime, the circumstance
cannot be considered mitigating.” (RT 6/5/03, p.m., at
6-7.) This instruction was in error. The sentencer in a
capital case may “not be precluded from considering,
as a mitigating factor, any aspect of a
defendant's character or record and any of the
circumstances of the offense that the defendant proffers as a
basis for a sentence less than death.” Eddings v.
Oklahoma, 455 U.S. 104, 110 (1982) (quoting Lockett
v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion));
see Tennard v. Dretke, 542 U.S. 274, 283 (2004)
(finding unconstitutional a screening test that required a
causal nexus between mitigating evidence and the offense).
Respondents
argue that this error was corrected by the Arizona Supreme
Court's independent review of Roseberry's
sentence.[3] (Doc. 45 at 24.) The Court agrees. On
direct appeal, the Arizona Supreme Court reviewed the
aggravating and mitigating factors and concluded that
“the evidence of mitigation is not sufficiently
substantial to call for leniency.” Roseberry,
210 Ariz. at 374, 111 P.3d at 416. The court described the
mitigating circumstances as “either weak or
non-existent.” Id.
Furthermore,
on review of the PCR court's ruling denying relief on
Roseberry's claim of ineffective assistance of appellate
counsel, the Arizona Supreme Court “clarif[ied] that
our independent review of Roseberry's death sentence
considered all the mitigation evidence presented, without
requiring a causal connection to the crimes, and we found it
not sufficiently substantial to call for leniency.”
Roseberry II, 237 Ariz. at 508, 353 P.3d at 848.
With respect to the erroneous jury instruction, the court
explained:
As to mitigation, Roseberry was not precluded from presenting
any evidence. At the penalty phase trial, he presented
evidence of five statutory and five non-statutory mitigating
factors. The five statutory mitigating factors presented were
causally connected to the crime. . . . The erroneous
instruction would not have prevented the jury from
considering these mitigating factors because of their close
causal connection to the crimes.
Roseberry also presented evidence of five non-statutory
mitigating factors. . . . This Court considered all
mitigation evidence presented without regard to its
connection to the crime (except as it might have affected the
weight afforded to the evidence) and concluded on independent
review that the mitigation evidence was not sufficiently
substantial to warrant leniency. Roseberry, 210
Ariz. at 373-74 ¶¶ 77-79, 111 P.3d at 415-16.
Id. at 510, 353 P.3d at 850. The court concluded
that “any deficiency in appellate counsel's
performance was cured by this Court's independent
review.” Id.
This
type of independent reweighing performed by the Arizona
Supreme Court is constitutionally permissible in cases of
capital sentencing error. See Clemons v.
Mississippi, 494 U.S. 750, 753-54 (1990) (holding that
appellate courts are able to fully consider mitigating
evidence and are constitutionally permitted to affirm a death
sentence based on independent re-weighing despite any error
at sentencing); Richmond v. Lewis, 506 U.S. 40, 49
(1992) (holding that a state appellate court can cure a
sentencing error in a capital case when “the state
appellate court . . . actually perform[s] a new sentencing
calculus”); see also Styers v. Ryan, 811 F.3d
292 (9th Cir. 2015) (affirming independent review by Arizona
Supreme Court after Eddings error). Moreover,
contrary to Roseberry's argument, Eddings error
is not structural, and is subject to harmless-error review.
McKinney v. Ryan, 813 F.3d 798, 821 (9th Cir. 2015).
Roseberry
argues that the Arizona Supreme Court's independent
review incorporated causal-nexus error. Citing
McKinney, 813 F.3d at 813, Roseberry asserts that
“[d]espite the Arizona Supreme Court's token
statement otherwise (ten years later), at the time of Mr.
Roseberry's direct appeal in 2005 (when the court
conducted its ‘independent review'), the Arizona
Supreme Court regularly applied its own causal-nexus
requirements.” (Doc. 32 at 47.)
In
Greenway v. Ryan, 866 F.3d 1094, 1095-96 (9th Cir.
2017), cert. denied, 138 S.Ct. 2625, the court
explained, “We said in McKinney that the
Arizona courts had ‘consistently' applied the
causal-nexus test. . . . We did not say, however, that
Arizona had always applied it.” See Apelt v.
Ryan, 878 F.3d 800, 839-40 (9th Cir. 2017), cert.
denied, ___ S.Ct. ___, 2019 WL 1172280; Martinez v.
Ryan, 926 F.3d 1215, 1234 (9th Cir. 2019).
In
Roseberry's case, there is no indication that the Arizona
Supreme Court applied a casual-nexus test. The opinion
“on its face . . . does not expressly exclude any
mitigation evidence or claim on the ground that it lacked
causal relationship to the commission of the crime.”
Greenway, 866 F.3d at 1097. The court “did not
reject any mitigating factor, as a matter of law, on the
theory that it was not related to the commission of the
crime, ” id., or use any of the language found
to be problematic in McKinney's discussion of
cases where the Arizona Supreme Court improperly applied a
causal-nexus test to mitigating evidence. McKinney,
813 F.3d at 813-17, 824-26. Roseberry's contention that
the Arizona Supreme Court's independent review was
tainted by causal-nexus error is unsupported.
Finally,
contrary to Roseberry's argument, the independent review
carried out the Arizona Supreme Court did not violate
Ring v. Arizona, 536 U.S. 584 (2002). Ring
held that Sixth Amendment required that a jury, not a judge,
find the aggravating circumstance necessary for imposition of
death penalty. Id. at 609. Here, a jury found that
the pecuniary gain aggravating factor had been proved, making
Roseberry eligible for a death sentence under Arizona law.
The instructional error did not implicate the holding in
Ring.
The
independent review carried out by the Arizona Supreme Court
cured the causal-nexus instructional error. Claim 1 is
denied.
2.
Claim 2
The
jury convicted Roseberry of first-degree murder but did not
come to a unanimous decision regarding the theory of
first-degree murder, with 10 jurors finding that the State
had proven only felony murder. (ROA 163.)
Under
Tison v. Arizona, 481 U.S. 137 (1987), and
Enmund v. Florida, 458 U.S. 782 (1982), the trier of
fact, in death penalty cases based on felony-murder, is
required to make a finding that the defendant was a major
participant in the felony committed and was recklessly
indifferent to human life. Tison, 481 U.S. at 158.
In Roseberry's case, the trial court made that finding,
contrary to Arizona law.[4] (ROA 213.)
As
Respondents note, the United States Supreme Court has never
held that the Enmund/Tison determination must be
made by the jury. A finding of the requisite culpability may
be made by a jury, the trial judge, or an appellate court.
Cabana v. Bullock, 474 U.S. 376, 392 (1986)
(“[T]he Eighth Amendment does not require that a jury
make the findings required by Enmund.”),
overruled on other grounds by Pope v. Illinois, 481
U.S. 497 (1987). Roseberry's federal constitutional
rights were not violated.
In
addition, Roseberry was not prejudiced when the trial court
made the Enmund/Tison finding. The evidence was
overwhelming, as the trial court found (ROA 213), that it was
Roseberry who shot and killed Fottler. See also
Roseberry, 210 Ariz. at 369, 111 P.3d at 411 (“The
jury found beyond a reasonable doubt that Roseberry was
motivated to kill Fottler by the desire for pecuniary gain,
and that finding is well supported.”); Roseberry
II, 237 Ariz. at 510, 353 P.3d at 850 (“[T]he
evidence was overwhelming that Roseberry killed Fottler so
that he could steal the load of marijuana.”). Claim 2
is denied.
B.
Unexhausted, Defaulted Claims
Roseberry
did not raise the following claims in state court: Claims 3,
4, 6-10, 12- 17, 19, 21, 22, 24 (in part), 27, and 40-47. The
claims are procedurally defaulted. Roseberry contends their
default is excused by the ineffective assistance of appellate
or PCR counsel.
Martinez
v. Ryan, 566 U.S. 1 (2012), held that
“[i]nadequate assistance of counsel at initial-review
collateral proceedings may establish cause for a
prisoner's procedural default of a claim of ineffective
assistance at trial.” 566 U.S. at 8. Martinez
applies only to claims of ineffective assistance of trial
counsel; it has not been expanded to other types of claims.
See Pizzuto v. Ramirez, 783 F.3d 1171, 1177 (9th
Cir. 2015) (explaining that the Ninth Circuit has “not
allowed petitioners to substantially expand the scope of
Martinez beyond the circumstances present in
Martinez”); Hunton v. Sinclair, 732
F.3d 1124, 1126- 27 (9th Cir. 2013) (denying petitioner's
argument that Martinez permitted the resuscitation
of a p rocedurally defaulted Brady claim, holding
that only the Supreme Court could expand the application of
Martinez to other areas); see also Davila v.
Davis, 137 S.Ct. 2058, 2062- 63 (2017) (explaining that
the Martinez exception does not apply to claims of
ineffective assistance of appellate counsel).
None of
these defaulted claims alleges ineffective assistance of
trial counsel. Therefore, the failure of PCR counsel to raise
the claims does not excuse their default under
Martinez. In addition, before ineffective assistance
of appellate counsel may be used as cause to excuse a
procedural default, the particular ineffective assistance
allegation must first be exhausted in state court as an
independent claim.[5] See Edwards v. Carpenter, 529
U.S. 446, 453 (2000) (“an
ineffective-assistance-of-counsel claim asserted as cause for
the procedural default of another claim can itself be
procedurally defaulted”); Murray v. Carrier,
477 U.S. 478, 489-90 (1986) (explaining that counsel's
ineffectiveness in failing to preserve a claim for review in
state court can excuse a procedural default only if that
ineffectiveness itself constitutes an independent
constitutional claim); Tacho v. Martinez, 862 F.2d
1376, 1381 (9th Cir. 1988).
Roseberry
did not raise these allegations of ineffective assistance of
appellate counsel in his PCR petition. Therefore, the failure
of appellate counsel to raise these claims does not excuse
their default.
Claims
3, 4, 6-10, 12-17, 19, 21, 22, 24 (in part), 27, and 40-47
remain procedurally defaulted and are barred from federal
review.[6]
C.
Exhausted Claims
Claims
11, 20, and parts of Claim 24 were denied on the merits by
the Arizona Supreme Court on direct appeal.
1.
Claim 11
In
Claim 11, Roseberry alleges that “[o]n information and
belief, jurors failed to consider any of the mitigating
circumstances proven by a preponderance of the
evidence.” (Doc. 32 at 81.) In support of this
allegation, Roseberry argues that the jury was improperly
instructed. (Doc. 32 at 81-83; see Doc. 49 at
45-49.) He also asserts that the jurors did not understand
the concept of mitigation because of trial counsel's poor
presentation and that some jurors were not open to
considering mitigation because of counsel's poor
performance during jury selection. (Id.)
The
Arizona Supreme Court denied this claim. Roseberry,
210 Ariz. at 373, 111 P.3d at 415. The court first rejected
Roseberry's argument “that because the trial judge
found the three mitigating factors-lack of prior convictions,
medical problems, and childhood difficulties-when sentencing
Roseberry for the drug offenses, the jury must have failed to
consider these factors for the murder offense.” The
court explained:
Roseberry does not say why he believes the jury did not
consider any mitigating evidence. Because there is no special
verdict on mitigation, we cannot tell whether the jury failed
to find the mitigating factors, or whether it did find some
or all of them to exist, but concluded that they did not
outweigh the aggravating factor of pecuniary gain. . . . That
the judge may have found certain mitigating factors does not
mean that the jury had to find the same factors, as long as
the jury's findings were supported by reasonable
evidence. Roseberry has not shown that any jury finding was
unsupported, nor has he shown any failure by the jury to
perform its duty. Indeed, he has not shown that the jury did
not find the same factors the trial judge found.
Id. (footnote omitted). The court then explained
that the jurors were properly instructed:
[T]he record shows that they were comprehensively instructed
to consider all of the evidence presented at the trial,
including “factors in fairness and mercy [that] may
support a sentence other than death.” We presume that
the jury followed those instructions.
Id. (citations omitted).
Finally,
the court noted that “the penalty verdict form, signed
by the jury foreman and read in open court, states that the
jury ‘considered all the facts and circumstances of
this case.'” Id.
Roseberry
does not attempt to argue that the Arizona Supreme
Court's decision was contrary to or an unreasonable
application of clearly established law. (See Doc. 31
at 81- 83.) As the court found, there was no basis to
conclude the jurors did not consider all the evidence at
sentencing, especially when the verdict form said that they
did. See Richardson v. Marsh, 481 U.S. 200, 211
(1987) (explaining that jurors are presumed to follow their
instructions). Roseberry fails to meet his burden of showing
“there was no reasonable basis for the state court to
deny relief.” Richter, 562 U.S. at 98.
Moreover,
as already noted, any error was corrected by the independent
reweighing carried out by the Arizona Supreme Court. Claim 11
is denied.
2.
Claim 20
Roseberry
alleges that there was insufficient evidence to prove the
pecuniary gain aggravating factor. (Doc. 32 at 99.) The
Arizona Supreme Court denied this claim, holding that,
“Reasonable evidence clearly supports the jury's
finding that the receipt of pecuniary gain served as a
motive, cause, or impetus for the murder of Fottler.”
Roseberry, 210 Ariz. at 369, 111 P.3d at 411. The
court explained:
[T]he evidence showed that Fottler was killed so that
Roseberry could steal and sell the marijuana. . . . Roseberry
had admitted during the trial that he started transporting
marijuana for the Pembertons because he needed the money.
Roseberry also told his wife and Dvoracek that he was going
to make a lot of money by selling the marijuana himself after
getting rid of Fottler.
The pecuniary gain motive is further illustrated by the
evidence that Roseberry and his co-conspirators wasted no
time in setting up a deal to sell some of the marijuana.
Indeed, they called Bowman the very day Fottler was killed.
Later, Roseberry and Dvoracek arranged to have Berkowitz
transport marijuana to Ohio, and they split the proceeds of
those sales.
. . . Indeed, it is difficult to imagine any other reason for
Roseberry to kill Fottler. Roseberry admitted that he had met
Fottler only once before the ill-fated drug run, and that
meeting lasted just a few minutes. There was no evidence of
animus toward Fottler and no evidence that hostility erupted
between the two men during their motorhome trip.
Id.
Habeas
review of a state court's application of an aggravating
factor “is limited, at most, to determining whether the
state court's finding was so arbitrary or capricious as
to constitute an independent due process or Eighth Amendment
violation.” Lewis v. Jeffers, 497 U.S. 764,
780 (1990). In making that determination, the reviewing court
must inquire “whether, after viewing the evidence in
the light most favorable to the prosecution, any
rational trier of fact could have found” that the
factor had been satisfied. Id. at 781 (citing
Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
A
finding that a murder was motivated by pecuniary gain for
purposes of § 13- 703(F)(5) must be supported by
evidence that pecuniary gain was the impetus, not merely the
result, of the murder. See Moormann v. Schriro, 426
F.3d 1044, 1054 (9th Cir. 2005); see also State v.
Cañez, 202 Ariz. 133, 159, 42 P.3d 564, 590
(2002) (killing the victim and sole witness of a robbery is
evidence of an intent to facilitate escape or hinder
detection and provides sufficient evidence that the catalyst
for the robbery was pecuniary gain), supplemented by
205 Ariz. 620, 74 P.3d 932 (2003), and abrogation on
other grounds recognized by McKinney, 813 F.3d at
815-26. Killing for the purpose of financial gain is
sufficient to establish the aggravator. See State v.
Walton, 159 Ariz. 571, 588, 769 P.2d 1017, 1034 (1989).
A
rational trier of fact could have determined, as the jury,
the trial court, and the Arizona Supreme Court did, that
Roseberry was motivated to murder Fottler by the desire for
pecuniary gain. Roseberry suggests the possibility of other
motives for the murder, such as his desire to protect his
wife and family. (Doc. 32 at 101.) The existence of a
less-persuasive alternative motive is not sufficient to show
that no ...