Date of Birth: May 1, 1968
Defendant: Hispanic
Victim: Caucasian

Sentence vacated May 20, 2002

On the afternoon of June 30, 1988, Herrera and his three sons, William Jr., Mickel and Ruben, were drinking beer with Mickel's girlfriend, Mary Cardenas, near a canal in south Phoenix.

Deputy Sheriff Vernon Marconnet drove up in his patrol car and asked the group for identification. William Herrera refused, and argued with and pushed the deputy. Deputy Marconnet put Mr. Herrera in the rear of the patrol car and called for backup on his portable radio.

William Jr. and Mickel began struggling with the deputy while Ruben let his father out of the patrol car. Mr. Herrera joined the fight and Mickel managed to take the deputy's revolver from him.

Mickel ordered the deputy to lie on the ground and the deputy complied. William Jr. and his father then urged Mickel to shoot Deputy Marconnet. Mickel fired the revolver once, hitting the deputy in the head and killing him.

Ruben entered into a plea agreement and received a 10-year prison sentence.

PROCEEDINGS

Presiding Judge: Norman Hall
Prosecutor: Noel Levy
Start of Trial: September 5, 1989
Verdict: October 5, 1989
Sentencing: December 21, 1989

Aggravating Circumstances:

    Especially heinous/cruel/depraved

Mitigating Circumstances:

    Age of the defendant (20 years old)

PROCEDURAL POSTURE: The defendant was convicted in Superior Court (Maricopa) of kidnapping and first-degree felony murder and was sentenced to death for the murder. This is defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

(F)(6) (Heinous, Cruel or Depraved) - UPHELD
Defendant did not actually kill the victim, but he did order his sons to do so. The Court found that the victim's death was the result intended by defendant, and that his participation in the murder was substantial and intentional. Assessment of aggravating circumstances was still appropriate in his case, though the aggravators are based upon his son's conduct. The Court held, however, that evidence of aggravating circumstances must come from defendant's own trial or aggravation/mitigation hearing. The Court found no reversible error, though, in the fact that the evidence of cruelty came from the son's trial.

Cruel: Upheld.
Mental Anguish: Found. The victim was a police officer who was questioning defendants when they attacked him. The victim was forced after a struggle to lie on the ground helpless as his own gun was used to shoot him. The Court found that the victim suffered mental anguish and "that defendant was actively engaged in causing that pain and anguish." The Court found that the victim shielded himself from the gun with his hands and "heard defendant command his son to `Shoot him.'" The Court further found defendant's intent for the victim to be killed by his son was "manifestly clear by [his] statements and manner at the time [the victim] was killed." Further, defendant's participation in the murder was "substantial and intentional."
Physical Pain: Found. The Court determined that defendant actively engaged in inflicting physical pain on the victim. The victim was physically overpowered by defendant and his sons, was forced to lie on the ground, received a painful gash in his forehead, and was struck by defendant's knee.

Heinous or Depraved: Not addressed.

MITIGATING CIRCUMSTANCES:

The Court found that there were no mitigating circumstances in this case sufficient to call for leniency. The Court found the defendant failed to prove by a preponderance of the evidence the existence of the following as mitigating circumstances:

(G)(3) Minor Participation

JUDGMENT: Convictions and sentences affirmed.

Comment: The reader may also want to see the companion cases of co-defendants. State v. Herrera, 176 Ariz. 21, 859 P.2d 131 (1993), cert. denied, 510 U.S. 951, 114 S. Ct. 398, 126 L. Ed. 2d 346 (1993); State v. Herrera, 174 Ariz. 387, 850 P.2d 100 (1993).

State v. William Herrera, Jr., 176 Ariz. 21, 859 P.2d 131 (1993)

PROCEDURAL POSTURE: Defendant was convicted in Superior Court (Maricopa) of first-degree felony murder, aggravated robbery, and kidnapping. Defendant was sentenced to death for the murder. This is defendant's automatic, direct appeal to the Arizona Supreme Court.

AGGRAVATING CIRCUMSTANCES:

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

Cruel: Upheld.
Mental Anguish: Found. Defendant threw the victims police radio at his head causing a deep gash in the victim's forehead. Lying on the ground, the victim put his hands over his face while defendant instructed his brother to shoot the officer. The victim was in this situation for at least eighteen seconds and possible up to two or three minutes, according to testimony, while begging for his life. The testimony was corroborated by physical evidence of powder burns on the victim's hands, which appeared to have been held in front of his face in a defensive posture.
Physical Pain: Found. The gash on the victim's head subjected the victim to physical pain.

Heinous or Depraved: Not addressed.

MITIGATING CIRCUMSTANCES:

The Court found that the following mitigating circumstance existed, but was not sufficiently substantial to call for leniency:

Age [20 years at time of crime]
Impairment [from Alcohol]

The Court found the defendant failed to prove by a preponderance of the evidence the existence of the following as mitigating circumstances:

(G)(1) Significant Impairment [from Alcohol]
(G)(3) Minor Participation

JUDGMENT: Convictions and sentences affirmed.

Comment: The reader may also want to see the companion cases of co-defendants. State v. Herrera, 176 Ariz. 9, 859 P.2d 119 (1993), cert. denied, 510 U.S. 966, 114 S. Ct. 446, 126 L. Ed. 379 (1993); State v. Herrera, 174 Ariz. 387, 850 P.2d 100 (1993).