42
Opinion of the Court
taken by Corella, petitioner, or both, and these two then drove away with Erwin. Either petitioner or Corella was driving, and whoever it was drove the car over Crummett twice. Crummett suffered injuries to his head and trunk, and died.
The State of Arizona charged petitioner with robbery and first degree murder. Erwin testified at the jury trial that petitioner drove the car over Crummett, but admitted that she had been intoxicated by heroin at the time. A defense witness stated that Erwin previously had identified Corella as the driver. Neither Corella nor petitioner took the stand, although the prosecution did introduce a postarrest statement by petitioner in which he acknowledged robbing Crummett but claimed that Corella was the driver. There was medical testimony that a car had crushed Crummett's head, killing him, and that the injuries to his trunk, also vehicular, took place at least 30 seconds later.
Petitioner was convicted of both robbery and first degree murder. The jury was instructed as to the elements of felony murder as well as premeditated murder; the murder conviction was returned by a general verdict. Judge Roylston held the penalty hearing required by Ariz. Rev. Stat. Ann. § 13-703 (1989), then codified as § 13-454, and sentenced petitioner to death for the murder and 15-20 years' imprisonment for the robbery. The judge found two statutory aggravating factors: that petitioner had a prior felony conviction involving the use or threat of violence on another person, § 13-703(F)(2) (an armed kidnaping), and that petitioner "committed the offense in an especially heinous, cruel or depraved manner," § 13-703(F)(6) ((F)(6) factor). Specifically, Judge Roylston's written order stated that "the Defendant did commit the offense in an especially heinous and cruel manner." App. 44. There was no explicit finding about the identity of the driver of the vehicle.
Petitioner unsuccessfully sought postconviction relief in the trial court, attaching two affidavits by persons who
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