SUPREME COURT OF ARIZONA

En Banc

STATE OF ARIZONA, ) Arizona Supreme Court 

 ) No. CR-05-0149-AP 

 Appellee, ) 

 ) Pima County 

 v. ) Superior Court 

 ) No. CR-12590 

JAMES GRANVIL WALLACE, ) 

 ) 

 Appellant. ) 

 ) O P I N I O N

_________________________________ ) 

Appeal from the Superior Court in Pima County 

The Honorable Virginia C. Kelly, Judge

DEATH SENTENCES VACATED; REMANDED FOR RESENTENCING PROCEEDINGS 

ON TWO COUNTS; LIFE SENTENCE IMPOSED ON ONE COUNT

________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix

 By Kent E. Cattani, Chief Counsel, 

 Capital Litigation Section

 Lacey Stover Gard, Assistant Attorney General Tucson

Attorneys for State of Arizona

ARIZONA CAPITAL REPRESENTATION PROJECT Tucson

 By Jennifer Bedier 

And

LAW OFFICE OF CARLA G. RYAN Tucson

 By Carla G. Ryan 

Attorneys for James Granvil Wallace

________________________________________________________________

H U R W I T Z, Justice 

¶1 James Granvil Wallace pleaded guilty to three counts 

of first-degree murder and was sentenced to death on each count. 

This is an automatic appeal from those sentences. See Ariz. R. 
2 

Crim. P. 31.2(b). We have jurisdiction under Article 6, Section 

5(3) of the Arizona Constitution and A.R.S. § 13-4031 (2001). 

I. 

¶2 Wallace lived with Susan Insalaco, his girlfriend, and 

her two children, sixteen-year-old Anna and twelve-year-old 

Gabriel, in Susan’s home in Pima County. During their on-againoff-again relationship, Wallace and Susan fought about his 

drinking and drug use. On January 31, 1984, Wallace came home 

drunk, and Susan told him to move out. The next day, Susan left 

for work, and Anna and Gabriel left for school. Wallace woke up 

around 10:00 a.m., but did not leave the house. 

¶3 When Anna returned from school around 2:45 p.m., 

Wallace was hiding behind the front door with a small wooden 

baseball bat. He struck Anna in the head from behind, and she 

fell to the ground, but continued breathing and moaning. He 

struck her in the head ten to twelve more times. Anna was still 

alive; Wallace then dragged her into the bathroom and hit her 

until the bat broke. He then drove the broken bat into her 

throat until the bat hit the floor.

¶4 Wallace got a pipe wrench to kill Gabriel because he 

“didn’t want him to suffer like [Anna].” Gabriel arrived around 

3:00 p.m. and walked into his bedroom. Wallace followed and hit 

Gabriel in the head with the wrench. Gabriel fell to the floor, 

and Wallace hit him in the head ten to twelve more times. 
3 

¶5 After killing Gabriel, Wallace retrieved Susan’s .22-

caliber handgun from a closet and loaded it in order to commit 

suicide, but could not bring himself to do so. Susan came home 

from work around 5:00 p.m. After she set groceries down in the 

kitchen, Wallace hit her in the head with the pipe wrench. She 

fell, and Wallace hit her three or four more times. Wallace 

told the police that he did not use the gun to kill Susan 

because the neighbors might hear the noise.

¶6 Wallace grabbed some clothing and took about ten 

dollars from Susan’s purse. He then drove to a friend’s 

apartment, where he spent the night. Wallace told the friend 

about the murders the next morning, February 2, 1984. 

¶7 Wallace then called the Tucson police and reported, “I 

just killed three people and I want you to come get me.” The 

police picked up Wallace outside the friend’s apartment shortly 

thereafter. In a series of statements, Wallace admitted to the 

murders, but could not explain why he committed them. 

II. 

¶8 Wallace pleaded guilty to three counts of first-degree 

murder and two counts of armed robbery. In 1985, a superior 

court judge found that each murder was committed in an 

especially heinous, cruel, or depraved manner. A.R.S. § 13-
4 

703(F)(6) (1984).1 He also found that Susan was murdered for 

pecuniary gain. A.R.S. § 13-703(F)(5). The judge found one 

mitigating circumstance, “genuine remorse,” A.R.S. § 13-703(G), 

but concluded it was not sufficiently substantial to call for 

leniency and sentenced Wallace to death for each murder. 

Wallace received concurrent twenty-one-year sentences for the 

armed robberies. 

¶9 On appeal, this Court vacated the armed robbery 

convictions, State v. Wallace (Wallace I), 151 Ariz. 362, 366, 

728 P.2d 232, 236 (1986), and set aside the pecuniary gain 

aggravator, id. at 368, 728 P.2d at 238. The Court also found 

that the cruelty prong of the (F)(6) aggravator had not been 

established, but held that the murders were gratuitously violent 

and therefore especially heinous and depraved. Id. at 367, 728 

P.2d at 237. The death sentences for the murders of Anna and 

Gabriel were affirmed; the case was remanded to the superior 

court for resentencing for Susan’s murder. Id. at 370, 728 P.2d 

at 240. 

¶10 On remand, the court again sentenced Wallace to death 

for Susan’s murder. Wallace filed a petition for postconviction relief, alleging, among other things, ineffective 

 

1

 We cite to statutes in effect at the time Wallace committed 

the crimes unless otherwise indicated. 
5 

assistance of counsel. Ariz. R. Crim. P. 32. The trial court 

dismissed the Rule 32 petition. 

¶11 The direct appeal of the death sentence for Susan’s 

murder was consolidated with review of the denial of Rule 32 

relief. State v. Wallace (Wallace II), 160 Ariz. 424, 425, 773 

P.2d 983, 984 (1989). This Court upheld the dismissal of the 

Rule 32 petition, id. at 426, 773 P.2d at 985, and affirmed the 

death sentence, id. at 428, 773 P.2d at 987. 

¶12 Wallace filed a petition for a writ of habeas corpus 

in federal district court, which denied relief. On appeal, the 

Ninth Circuit remanded for an evidentiary hearing, holding that 

Wallace had made a prima facie showing of ineffective assistance 

of counsel at the penalty phase of his sentencing. Wallace v. 

Stewart (Wallace III), 184 F.3d 1112, 1117-18 (9th Cir. 1999). 

On remand, the district court found that Wallace had received 

ineffective assistance of counsel and ordered new sentencing 

proceedings. 

¶13 A sentencing trial was held before a jury in March 

2005.2 The jury found that Wallace committed the murders in an 

especially heinous and depraved manner and that evidence of 

 

2

 In the wake of Ring v. Arizona, 536 U.S. 584 (2002), 

legislation was enacted providing for a jury trial as to both 

the existence of capital aggravating circumstances and the 

appropriate sentence. 2002 Ariz. Sess. Laws, ch. 1, § 3 (5th 

Spec. Sess.); see State v. Ring, 204 Ariz. 534, 545 ¶ 13, 65 

P.3d 915, 926 (2003). 
6 

mitigation was insufficient to warrant leniency. He was again 

sentenced to death on each of the three counts. 

III. 

¶14 Wallace raises a number of issues on appeal. We focus 

initially on his contention that the superior court erred in 

instructing the jury on gratuitous violence. 

A. 

¶15 In the aggravation phase, the jury was instructed, 

over Wallace’s objection, that “[i]n deciding whether the 

defendant inflicted gratuitous violence, you may consider 

whether the defendant had available less violent alternatives to 

cause death.” We determine de novo whether a jury instruction 

correctly states the law. State v. Tucker, 215 Ariz. 298, 310 

¶ 27, 160 P.3d 177, 189 (2007). 

1. 

¶16 In Wallace I, this Court said, 

We believe . . . that [Wallace’s] actions clearly 

amount to “gratuitous violence.” Had defendant’s 

intent been merely to kill these people, less violent 

alternatives were readily available to him. 

Specifically, defendant admits to having had a loaded 

gun with him that afternoon. He deliberately chose 

not to use it, however, because the noise would alert 

neighbors. 

151 Ariz. at 367-68, 728 P.2d at 237-38 (internal citation 

omitted). This language was repeated virtually verbatim in 

Wallace II. 160 Ariz. at 427-28, 773 P.2d at 986-87. 
7 

¶17 Only one Arizona case other than Wallace I and II

directly addresses whether gratuitous violence can be premised 

on the availability of a less violent means of causing death. 

In State v. Styers, the prosecution alleged that the murder was 

gratuitously violent because the defendant used hypervelocity 

bullets. 177 Ariz. 104, 115, 865 P.2d 765, 776 (1993). This 

Court rejected the argument, “find[ing] no evidence that 

defendant used these particular bullets because he wanted or 

intended to inflict greater damage to the victim.” Id. Thus, 

no case other than Wallace I and II has relied upon the less 

violent means theory to support a finding of gratuitous 

violence.3

2. 

¶18 The instruction in this case allowed the jury to find 

gratuitous violence simply because a less violent means of 

murder was in some way “available.” The instruction did not 

require proof that the defendant intentionally chose one murder 

 

3

 In State v. Rossi, in finding a murder especially heinous 

and depraved, this Court noted that the defendant “used special 

bullets which he knew were designed to inflict greater tissue 

damage on a human body.” 146 Ariz. 359, 365, 706 P.2d 371, 377 

(1985). The Court did not indicate in that case, however, that 

the (F)(6) aggravator was premised on gratuitous violence. 

Rather, the opinion noted that the defendant later gave three of 

the spent bullets to a friend and bragged about the murder, id., 

facts that would seem more relevant to the issue of relishing. 

See State v. Gretzler, 135 Ariz. 42, 52, 659 P.2d 1, 11 (1983) 

(stating that a defendant’s relishing of the murder can support 

a finding that it was especially heinous or depraved). 
8 

weapon over another. Thus, the jury could have found the (F)(6) 

aggravator because the gun was in the house at the time the 

victims were murdered, without regard to whether Wallace thought 

about using it. We have recently emphasized that “[h]einousness 

and depravity refer to the mental state and attitude of the 

perpetrator.” State v. Bocharski, ___ Ariz. ___, ___ ¶ 83, ___ 

P.3d ___, ___, 2008 WL 3166304 (Aug. 8, 2008) (quoting State v. 

Jones, 205 Ariz. 445, 449 ¶ 15, 72 P.3d 1264, 1268 (2003)). 

This state of mind cannot be established without proof that the 

defendant at least considered and then rejected the “less 

violent” alternative. The jury here was not so instructed. 

¶19 Moreover, the instruction given below did not require 

that the defendant intend to inflict greater violence by 

forgoing the use of an alternative weapon. We have long 

stressed that “the statutory concepts of heinous and depraved 

involve a killer’s vile state of mind at the time of the 

murder.” State v. Gretzler, 135 Ariz. 42, 51, 659 P.2d 1, 10 

(1983). The requirement in Styers that the defendant must 

intend to inflict greater violence by intentionally choosing one 

weapon over another is aimed at proof of precisely such a state 

of mind. The instruction here, in contrast, would allow a 

finding of the (F)(6) aggravator without such a showing and thus 

was erroneous under our case law defining gratuitous violence. 
9 

3. 

¶20 Because Wallace objected to the erroneous instruction, 

we review for harmless error. State v. Henderson, 210 Ariz. 

561, 567 ¶ 18, 115 P.3d 601, 607 (2005). Under this standard, 

the State must “prove beyond a reasonable doubt that the error 

did not contribute to or affect the verdict.” Id.

¶21 The State has not met this burden. The challenged 

instruction played a significant role in the State’s closing 

argument and rebuttal. The prosecutor repeatedly focused on the 

instruction, asking the jury to find gratuitous violence because 

Wallace could have killed each victim with “[o]ne shot to the 

head.” See State v. Anthony, ___ Ariz. ___, ___ ¶ 40, ___ P.3d 

___, ___, 2008 WL 2875341 (July 28, 2008) (declining to find 

harmless error when allegation of prior bad act was repeated 

theme of closing). 

¶22 Nor has the State demonstrated beyond a reasonable 

doubt that the challenged instruction did not affect the jury 

verdicts. The State presented no evidence that Wallace thought 

about using the gun to murder Anna or Gabriel, let alone that he 

chose other weapons in order to inflict greater injury upon 

them. Thus, under the Styers standard, the challenged 

instruction was prejudicial. 
10 

¶23 As to Susan, Wallace admitted that he considered using 

the gun, but said he rejected it not to inflict greater injury, 

but rather to avoid alerting neighbors. Thus, a jury could have 

concluded that Wallace did not intend to cause greater injury by 

using the pipe wrench, even if that were the end result. Under 

Styers, we therefore cannot find the error harmless. See State 

v. Ring, 204 Ariz. 534, 560 ¶ 79, 65 P.3d 915, 941 (2003) 

(defining harmless error as “those instances in which no 

reasonable jury could find that the state failed to prove [the 

relevant aggravating circumstance] beyond a reasonable doubt”). 

4. 

¶24 In any event, we believe that a “less violent 

alternative” instruction is not appropriate in gratuitous 

violence cases. The determination of whether one potential 

murder weapon is “less violent” than another is fraught with 

conceptual peril; the violence that attends a murder committed 

with any particular modality usually depends on the manner in 

which the weapon is used rather than the nature of the weapon. 

It is not clear, for example, whether a single blow to the head 

with a pipe wrench or a baseball bat is more or less violent 

than a gunshot. The essential issue in gratuitous violence 

cases is whether “the defendant continued to inflict violence 

after he knew or should have known that a fatal action had 

occurred.” Bocharski, ___ Ariz. at ___ ¶ 87, ___ P.3d at ___. 
11 

The defendant’s use of a particular weapon over another 

available alternative does not establish this state of mind. 

5. 

¶25 Each of Wallace’s death sentences was based on the 

same aggravating circumstance - that he committed the murders in 

an especially heinous and depraved manner. A.R.S. § 13-

703(F)(6).4 The State alleged three factors to support its 

allegation that the murders were especially heinous or depraved: 

gratuitous violence, the senselessness of the crimes, and the 

helplessness of the victims. See Gretzler, 135 Ariz. at 52, 659 

P.2d at 11 (listing factors that establish heinousness and 

depravity). But senselessness and helplessness, without more, 

generally do not render a killing especially heinous or 

depraved. E.g., State v. Murdaugh, 209 Ariz. 19, 33 ¶ 67, 97 

P.3d 844, 858 (2004); State v. Cañez, 202 Ariz. 133, 162 ¶ 109, 

 

4

 Were the crimes committed today, the multiple homicides 

aggravator could also be alleged for each murder. See A.R.S. 

§ 13-703(F)(8) (Supp. 2007) (allowing death penalty when 

“defendant has been convicted of one or more other homicides 

. . . that were committed during the commission of the 

offense”). The murder of Gabriel could also be aggravated 

because he was less than fifteen years old when killed. See

A.R.S. § 13-703(F)(9) (Supp. 2007) (allowing death penalty when 

“defendant was an adult at the time the offense was committed 

. . . and the murdered person was under fifteen years of age”). 

However, these aggravating circumstances were adopted by the 

legislature after Wallace committed the murders, 1985 Ariz. 

Sess. Laws, ch. 364, § 8 (1st Reg. Sess.); 1984 Ariz. Sess. 

Laws, ch. 66, § 1 (2nd Reg. Sess.), and cannot serve in this 

case to make Wallace death-eligible, State v. Correll, 148 Ariz. 

468, 482, 715 P.2d 721, 735 (1986). 
12 

42 P.3d 564, 593 (2002); State v. Barreras, 181 Ariz. 516, 523, 

892 P.2d 852, 859 (1995).5 Our conclusion that the jury was 

improperly instructed on the issue of gratuitous violence 

therefore requires that we vacate the three death sentences.

III. 

¶26 Because the erroneous “less violent alternative” 

instruction requires that we remand for resentencing, it is not 

necessary for us to address Wallace’s other arguments seeking a 

new sentencing proceeding. We therefore turn to Wallace’s 

argument that capital sentences are not warranted because the 

State failed to present sufficient evidence that the murders 

were committed with gratuitous violence and thus were especially 

heinous or depraved.6 See Ariz. R. Crim. P. 20(a) (requiring 

trial court to “enter a judgment that an aggravating 

 

5

 Wallace does not seriously contest that the murders were 

senseless and the victims helpless. 

6

 When this Court first considered Wallace’s sentences, it 

concluded that the aggravator had been proved as to each murder. 

Wallace I, 151 Ariz. at 368, 728 P.2d at 238; Wallace II, 160 

Ariz. at 427-28, 773 P.2d at 986-87. But the practical effect 

of the district court’s order granting a new sentencing trial 

was to nullify our earlier conclusions on aggravation, 

mitigation, and the propriety of the death sentences. Cf. State 

v. Moody, 208 Ariz. 424, 439 ¶ 26, 94 P.3d 1119, 1134 (2004) 

(stating that, for double jeopardy purposes, “[w]hen a case is 

reversed for any reason but insufficient evidence, the original 

conviction has been nullified and the slate wiped clean” 

(quoting Bullington v. Missouri, 451 U.S. 430, 442 (1981)) 

(internal quotation marks omitted)). 
13 

circumstance was not proven if there is no substantial evidence 

to warrant the allegation”).7 

¶27 In reviewing a jury’s finding of an aggravating 

circumstance for sufficiency of the evidence, we take the facts 

in the light most favorable to the prosecution and ask whether 

substantial evidence supports the verdict. See State v. Roque, 

213 Ariz. 193, 218 ¶ 93, 141 P.3d 368, 393 (2006). “Substantial 

evidence is such proof that reasonable persons could accept as 

adequate and sufficient to support a conclusion of defendant’s 

guilt beyond a reasonable doubt.” Id. (internal quotation marks 

and citation omitted). 

A. 

¶28 Recognizing that “our prior cases have not been 

entirely consistent in describing the showing needed to 

establish gratuitous violence,” we attempted in Bocharski to 

clarify the principles governing this theory of heinousness and 

depravity. ___ Ariz. at ___ ¶ 85, ___ P.3d at ___. We stressed 

that to prove gratuitous violence, the State must first show 

 

7

 For murders committed before August 1, 2002, this Court 

independently reviews the trial court’s findings of aggravating 

circumstances, mitigation, and the propriety of a death 

sentence. A.R.S. § 13-703.04(A) (Supp. 2007). When we find no 

reversible error in the aggravation phase, we often subsume 

claims that the evidence was insufficient to support the finding 

of an aggravator in our independent review. See, e.g., State v. 

Anderson, 210 Ariz. 327, 354 ¶ 119 & n.21, 111 P.3d 369, 396 & 

n.21 (2005). However, because we have vacated the three death 

sentences imposed on Wallace, this is not an occasion for 

independent review. 
14 

that the defendant “inflicted more violence than that necessary 

to kill.” Id. at ___ ¶ 86, ___ P.3d at ___. Gratuitous 

violence requires a specific mental state: “The state must also 

show that the defendant continued to inflict violence after he 

knew or should have known that a fatal action had occurred.” 

Id. at ___ ¶ 87, ___ P.3d at ___. 

¶29 We applied these principles in Bocharski to a murder 

involving twenty-four knife wounds. Id. at ___ ¶ 86, ___ P.3d 

at ___. Eight of these wounds penetrated deeply into the 

victim’s face and head. Id. at ___ ¶ 86, ___ P.3d at ___. The 

medical examiner testified that at least one of the eight wounds 

was fatal, and that the fatal wound probably occurred before 

additional blows were struck. Id. at ___ ¶ 86, ___ P.3d at ___. 

On that record, we concluded that Bocharski had used more 

violence than was necessary to kill. Id. at ___ ¶ 86, ___ P.3d 

at ___. 

¶30 We were unable, however, to conclude that the State 

had sufficiently proved the required mental state. Id. at ___ 

¶ 91, ___ P.3d at ___. We noted first that, although the 

medical examiner had opined about the likely timing of the fatal 

wound, the expert was unable to conclusively determine the 

sequence of the wounds. Id. at ___ ¶ 88, ___ P.3d at ___. 

Moreover, the medical examiner’s testimony demonstrated that the 

victim was alive when each of the wounds was inflicted. Id. at 
15 

___ ¶ 88, ___ P.3d at ___. This “uncertainty about the timing 

of the fatal wound” made it “difficult to conclude . . . that 

Bocharski knew or should have known that he had already struck a 

fatal wound yet continued to attack the victim.” Id. at ___ 

¶ 88, ___ P.3d at ___. 

¶31 We also stressed in Bocharski that the knife injuries 

occurred in rapid succession – “all the injuries were likely 

inflicted within a minute,” id. at ___ ¶ 89, ___ P.3d at ___ – 

and involved a single weapon. Id. at ___ ¶ 90, ___ P.3d at ___. 

We contrasted those facts with prior decisions finding 

gratuitous violence, cases involving prolonged assaults and 

multiple weapons, circumstances that allowed an inference that 

the defendant possessed the requisite mental state. Id. at ___ 

¶¶ 89-90, ___ P.3d at ___. We concluded that “[b]ecause 

Bocharski used only a knife to inflict the wounds and completed 

his attack very rapidly, we find it unlikely he knew or should 

have known he had inflicted a fatal wound but continued 

nonetheless to inflict more violence.” Id. at ___ ¶ 90, ___ 

P.3d at ___. 

1. 

¶32 Under the standard enunciated in Bocharski, we 

conclude that there was sufficient evidence to submit the issue 

of gratuitous violence to the jury with respect to the murder of 

Anna. She was struck over the head with a baseball bat until 
16 

her skull was crushed. The assault began in the living room of 

the home; it continued after Wallace dragged Anna into the 

bathroom, where he struck her with the bat until it broke and 

then shoved the remaining jagged edge through her throat. 

¶33 The medical examiner testified that Anna died from 

head injuries. Thus, Wallace’s final act was not necessary to 

kill her. Moreover, the length and savagery of the attack would 

allow a properly instructed jury to infer that Wallace either 

knew or should have known that he had inflicted sufficient 

violence to kill, but nonetheless continued the attack. 

¶34 We reach a similar conclusion with respect to the 

murder of Gabriel. The attack involved ten to twelve blows with 

a pipe wrench. The result of the attack was horrific – not only 

was Gabriel’s skull crushed, his brain was exposed and extruded, 

and brain matter was found on the floor at the crime scene. 

Although the medical examiner was unable to conclusively 

determine which blow was fatal or the order of the injuries, the 

nature of the attack and its results support an inference that 

Wallace either knew or should have known he had struck enough 

blows to kill yet continued his attack. 

¶35 Whether the State can prove this aggravating 

circumstance on remand beyond a reasonable doubt is not the 

issue before us; we conclude only that the evidence warranted 
17 

submission of the (F)(6) aggravator to the jury with respect to 

the murders of Anna and Gabriel. 

2. 

¶36 We cannot conclude, however, that the issue of 

gratuitous violence was properly submitted to the jury with 

respect to the murder of Susan. The attack involved four or 

five blows to the head with the pipe wrench over a relatively 

brief period. As in Bocharski, the blows were apparently struck 

in rapid succession with the same implement that caused death. 

¶37 The medical examiner, although suggesting that any of 

the blows that struck Susan “might have” been fatal, was unable 

to opine as to which blow was fatal, let alone whether 

sufficient injury to kill had already been inflicted before the 

final blow. But even if we assume that to be the case, the 

evidence would not allow a jury reasonably to conclude that 

Wallace possessed the requisite mental state. Although the 

assault on Susan was brutal and reprehensible, it “came in an 

attempt . . . to kill the victim, not to engage in violence 

beyond that necessary to kill.” State v. Anderson, 210 Ariz. 

327, 355 ¶ 123, 111 P.3d 369, 397 (2005). We conclude that the 

State did not present sufficient evidence to prove the defendant 

had the required mental state. 
18 

B.

¶38 At the time Wallace murdered Susan, the penalty for 

first-degree murder was “death or imprisonment . . . for life, 

without possibility of parole [for] twenty-five calendar years.” 

A.R.S. § 13-703(A) (1984).8

 Because we have concluded that the 

sole aggravating circumstance alleged should not have been 

submitted to the jury for Susan’s murder, Wallace is not 

eligible for the death penalty on that count, and we must reduce 

his sentence to life in prison. We order that this sentence be 

served consecutively to the sentences imposed on remand for the 

murders of Anna and Gabriel. 

IV. 

¶39 For the reasons above, we (1) vacate the three death 

sentences imposed on Wallace; (2) remand for new sentencing 

proceedings for the murders of Anna and Gabriel; and (3) order 

that Wallace be sentenced to life imprisonment pursuant to 

A.R.S. § 13-703(A) (1984) for the murder of Susan, such sentence 

to be served consecutively to the sentences imposed on remand 

for the other two murders. 

 _______________________________________

 Andrew D. Hurwitz, Justice

 

8

 The current statute provides an additional sentencing 

option for crimes committed after its enactment – so-called 

“natural life” - under which the defendant is “not eligible for 

commutation, parole, work furlough, work release or release from 

confinement on any basis.” A.R.S. § 13-703(A) (Supp. 2007). 
19 

CONCURRING:

_______________________________________

Ruth V. McGregor, Chief Justice

_______________________________________

Rebecca White Berch, Vice Chief Justice

_______________________________________

Michael D. Ryan, Justice

_______________________________________ 

Donn Kessler, Judge∗

 

∗

 Justice W. Scott Bales recused himself from this case. 

Pursuant to Article 6, Section 3 of the Arizona Constitution, 

the Honorable Donn Kessler, Judge of the Arizona Court of 

Appeals, Division One, was designated to sit in this matter.