Facts:

On the night of February 24, 1999, Charles Ellison and Richard Finch entered the Kingman home of Joseph Boucher and Lillian Boucher, ages 79 and 73, bound and asphyxiated them, and burglarized the house.

Within days, Finch and Ellison were separately arrested. They each gave statements admitting their presence at the crimes but each claimed that he had acted under duress from the other with respect to the murders.

Ellison told the police he did not intend to kill anyone, it was Finch’s idea to “hit” the house, and he did not know how Finch had picked the Bouchers’ house; however, he admitted being somewhat familiar with the area because his parents lived around there. With Finch’s cooperation, the police recovered several items stolen from the Bouchers’ residence.

On March 4, 1999, Ellison and Finch were indicted for the murders and first-degree burglary. The State sought the death penalty for each defendant. Judge Robert R. Moon severed their trials. In September 2000, a jury convicted Finch on the murder and burglary charges. In March 2001, Judge Moon sentenced Finch to natural life imprisonment due to mitigating factors.

Ellison was not tried until January 2002, with Judge Moon presiding over his trial. During the trial, the Bouchers’ daughter testified that Ellison had worked on her parents’ house and another house two doors down from her parents. Ellison did not testify; however, defense counsel argued that Ellison had intended only to commit burglary and that he had tied up the victims and held a pillow over Mr. Boucher only after Finch threatened him with a gun. The jury convicted Ellison on the murder and burglary charges, specifically finding him guilty of both premeditated and felony murder of the Bouchers and that he had either killed, intended to kill, or acted with reckless indifference.

Before Ellison was sentenced, the Supreme Court decided Ring v. Arizona, 526 U.S. 584
(2002) (Ring II). The legislature then amended Arizona’s statutes to provide for jury findings of aggravating and mitigating circumstances and jury sentencing. 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, § 3 (codified at Ariz. Rev. Stat. (“A.R.S.”) § 13-703.01 (Supp. 2003)).

A newly-impaneled jury heard the sentencing phase of Ellison’s trial in January and February, 2004. This jury sentenced Ellison to death for each murder, after finding six aggravators: 1) previous serious felony conviction; 2) pecuniary gain; 3) especially cruel; 4) murder committed while on parole; 5) multiple homicides; and 6) victims more than 70 years old. Judge Moon imposed an aggravated sentence of twelve and one-half years for the burglary conviction.

Charles D. Ellison