Supreme Court of Arizona

INMATE 042891 MCCRAY FRANK, D

On May 21, 1987, the victim, Chestene Cummins, was at home preparing to leave on a trip to California with her boyfriend. She had taken the day off work to run errands and pack.

McCray somehow gained access to her apartment, most likely while in the neighborhood committing burglaries. When the victim’s boyfriend arrived home from work, he found her body laying in the bedroom.

She had been sexually assaulted, beaten and strangled to death. The physical evidence demonstrated that the victim had put up a significant struggle during the assault.

Law enforcement officers were unable to solve the crime at the time, but they preserved in evidence a sexual assault swab test kit and the cord used to strangle the victim.

In 2000, a Phoenix Police Department cold case detective submitted the evidence for DNA analysis at the Arizona Department of Public Safety Crime Lab. The DPS lab technicians were able to identify McCray from semen through a CODIS hit.

McCray’s DNA profile had been entered into the CODIS database from a previous conviction for sexual assault on another young woman subsequent to the murder. McCray’s DNA was also confirmed on the cord used to strangle the victim.

PROCEEDINGS

Presiding Judge: Hon. Douglas L. Rayes
Prosecutor: Vince Imbordino
Defense Counsel: Bruce Peterson & Timothy Agan
Start of Trial: October 17, 2005
Verdict: November 14, 2005
Sentencing: November 29, 2005

Aggravating Circumstances

Especially heinous, cruel or depraved
Prior conviction for a serious offense

PUBLISHED OPINIONS

[Direct Appeal pending before the Arizona Supreme Court]

Frank McCray – white, age 28 

Sentenced to death in Maricopa County, Arizona 

By:  A jury 

Date of Crime:  1987 

Prosecution’s case/defense response:  McCray raped and strangled 23-year-old Chestene “Tina” Ramsey Cummins.  McCray was serving an 18-year prison sentence for a 1992 sexual assault and kidnapping when DNA from the murder of Cummins was matched to McCray.  McCray had also been convicted of rape in 1980. 

Prosecutor(s):  unknown

Defense lawyer(s):  unknown 

Sources:  The Arizona Republic (Phoenix) 11/7/2001, 12/11/2005, 12/15/2005 LEXIS USPAPR file; The Arizona Republic 11/30/2005.

State v. (Frank) McCray, 218 Ariz. 252, 183 P.3d 503 (2008)

(Death penalty upheld) Jury Trial/Indep. Review

PROCEDURAL POSTURE:  McCray was convicted by a Maricopa County Superior Court jury of first-degree felony murder committed in 1987. The jury found the state had proved the prior violent crime aggravator (A.R.S. §13-751(F)(2)(1978 & Supp. 1987)), and the cruel, heinous and depraved aggravator (A.R.S. §13-751(F)(2)), and determined that McCray should be sentenced to death. Direct appeal of death sentence with independent review.

AGGRAVATING CIRCUMSTANCES:

(F)(2) (PRIOR CONVICTION OF VIOLENT CRIME) – UPHELD
McCray’s 1993 conviction for a 1992 sexual assault with a dangerous enhancement qualified as a (F)(2) prior violent crime aggravator. Before July 16, 1993, this aggravator provided “[t]he defendant was previously convicted of a felony in the United States involving the use or threat of violence on another person.” To determine if the prior offense involved the threat or use of violence, the court considers the specific statutory subsection under which the defendant was convicted, even if other subsections of the same statute may not qualify for the aggravator. The court also considers the fact that the prior conviction included an enhancement for dangerousness because it is analogous to focusing on the particular statutory subsection underlying the prior conviction. The court concluded that a sexual assault involving the use or exhibition of a deadly weapon or dangerous instrument is necessarily one that involves the use or threat of violence.

(F)(6) (ESPECIALLY HEINOUS, CRUEL OR DEPRAVED) – UPHELD
Especially Cruel: The court found that this aggravator was proved beyond a reasonable doubt. The evidence showed McCray forced his way into the victim’s apartment, physically assaulted her, raped her, and strangled her with a cord. The medical examiner testified that the victim probably died one to five minutes after the strangulation began, and he concluded from both the nature of her injuries and the condition of the apartment that a struggle probably occurred. The court found that the victim was conscious during a substantial part of the “murder transaction” and that she suffered intense physical pain and mental anguish during that time. McCray should have known that attacking, raping and strangling the victim would cause her severe physical and mental pain.

MITIGATING CIRCUMSTANCES:

Difficult family history: Accorded less weight because McCray was 28 when he murdered the victim and did not show a causal connection with the crime.

Mental health problems: Also accorded little weight because McCray presented evidence only of an undiagnosed mental illness and failed to establish that it caused the crime or inhibited his ability to appreciate the wrongfulness of his conduct or conform his conduct to the law. He did not offer any expert testimony that he suffered from any mental illness, but only testimony from family and other witnesses about his behavior.

Drug use: Also given minimal weight because there was no evidence that McCray was using drugs near the time of the murder.

The Court found that the mitigation was not sufficiently substantial to call for leniency.

JUDGMENT:  Conviction and death sentence affirmed.

Frank D. McCray