Shortly after midnight on August 22, 1983, Smith entered the Low Cost Market in Yuma, went to cash register No. 5 and requested Kool cigarettes, paying with a $5 bill.

When the transaction was rung up and the cash drawer opened, Smith pointed a pistol at Charles Pray, the 57-year-old cashier, and demanded the money.

When Pray turned and called out the name of a fellow employee, Smith raised the pistol and fired one .22 caliber bullet through the base of Pray's head, severing the spinal cord. Smith walked around the counter and removed the paper money from the cash register and left.

Two women outside the store watched Smith walk to his car, followed him from the parking lot, and called the police with his license number. Smith was arrested within minutes of the shooting.

PROCEEDINGS

    Presiding Judge: William W. Nabours
    Prosecutor: Tim Holtzen
    Start of Trial: January 10, 1984
    Verdict: January 19, 1984
    Sentencing: February 17, 1984

Aggravating Circumstances: 

    Prior convictions punishable by life imprisonment
    Prior convictions involving violence
    Grave risk of death to others (struck on appeal)
    Pecuniary gain
    Especially heinous/cruel/depraved (struck on appeal)

Mitigating Circumstances:

    None

PUBLISHED OPINIONS

    State v. Smith (Bernard), 146 Ariz. 491, 707 P.2d 289 (1985).
    Smith v. Stewart, 140 F.3d 1263 (9th Cit. 1998).

  

State v. Bernard Smith, 146 Ariz. 491, 707 P.2d 289 (1985)

PROCEDURAL POSTURE:

Defendant was convicted in Superior Court (Yuma) of first-degree murder and armed robbery and was sentenced to death for the murder. This is defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(1) (Prior Life or Death Felony) - UPHELD
The defendant had been convicted of three prior armed robberies in Arizona, which were on appeal at the time of his trial for this murder. Under Arizona law, the defendant had received a mandatory life sentence for each of those convictions. The Court reiterated that until a conviction is set aside, it should count as a conviction under this aggravating circumstance.

(F)(2) (Prior Violent Felony) - UPHELD
The defendant was previously convicted in Arizona of three counts of armed robbery. The Court took judicial notice of the fact that armed robbery is a violent felony committed against another person.

(F)(3) (Grave Risk of Death) - REVERSED
The murderous act itself must put others in a zone of danger. The defendant entered a store and shot the cashier to obtain money in the register. Although there were other people in the store at the time of the shooting the murderous at itself did not place them within the zone of danger. The defendant shot only at the victim; the shooting was not random and indiscriminate, but purposeful. The defendant pointed his gun at other people in the parking lot and told them to go. The Court found that this activity did not pose a grave risk of death to them.

(F)(5) (Pecuniary Gain) - UPHELD
The impetus for this murder was the expectation of pecuniary gain. Smith went into the Low Cost Market to purchase cigarettes. After paying for the cigarettes, he told the clerk to give him all the money in the cash register. When the clerk did not comply immediately and called for the manager, Smith shot the clerk, took the money from the cash register and left the store. Smith committed the murder "solely for the purpose of gaining access to the cash register, which was in the victim's control." Smith, 146 Ariz. at 503. Smith also claimed error in the trial judge's failure to specifically find that the (F)(5) aggravating circumstance was established beyond a reasonable doubt. The Court concluded that, although it is true that the state must prove the existence of aggravating circumstances beyond a reasonable doubt, this burden had been met by the state at trial in this case, and the lack of a specific, separate finding by the trial judge was not error in this case. The Court noted that Smith was convicted of armed robbery of the clerk at the convenience store and that, under the facts of this case, but certainly not of all robberies, implicit in the finding by the jury that he committed armed robbery was a finding beyond a reasonable doubt that Smith had committed the murder for pecuniary gain.

(F)(6) (Heinous, Cruel or Depraved) - REVERSED

Cruel: Reversed.
Knew or Reason to Know that Victim Would Suffer: Not found. The evidence of cruelty was the pain and mental anguish of the victim during the two weeks after the shooting and before the victim's death. However, the Court said that the state must show that the defendant either intended or reasonably foresaw that the victim would suffer as a result of the defendant's acts. The Court noted that the defendant shot the victim in the head, which seems to show an intent to kill immediately, not an intent to prolong suffering. See State v. Adamson, 136 Ariz. 250, 665 P.2d 972, cert. denied, 464 U.S. 865, 104 S. Ct. 204, 78 L. Ed. 2d 178 (1983); State v. Harding, 141 Ariz. 492, 687 P.2d 1247 (1984).

Heinous or Depraved: Reversed.
Gratuitous Violence: Not found. Defendant shot victim once and inflicted no further violence.
Mutilation: Not found. The Court stated the defendant did not mutilate the victim.
Relishing: Not found. "That defendant's actions may have been cold and deliberate demonstrates not heinousness or depravity but the element of intent, which established the mens rea necessary for the crime of first degree murder but is of no consequence in the death sentencing determination." 146 Ariz. at 504.

MITIGATING CIRCUMSTANCES:

The Court found no mitigating circumstances sufficient to call for leniency. The Court found the defendant's age (30 years old at the time of the murder) was not a mitigating circumstance.

JUDGMENT: