Judge Samour: The burden of proof is on the prosecution to prove all elements of the aggravating factor beyond a reasonable doubt.
Judge Samour refers to Nathan Dunlap case - where court ruled against a challenge to the grave risk of death aggravator.
Judge Samour rules the jury has to find gunman knowingly created a grave risk of death to another person in addition to the people killed who are covered under the first degree murder charges.
The defense doesn't want the jury to decide on two counts per victim - first degree murder and the aggravating charge of extreme indifference.
Richard Orman agrees the gunman could be found guilty of an aggravator on one murder charge and not another, but says based on the evidence, it seems unlikely.