State v. Greene

ZLAKET, Chief Justice,

dissenting.

¶ 64 In State v. Watson, 129 Ariz. 60, 63 , 628 P.2d 943, 946 (1981), this court plainly stated:

We believe Godfrey v. Georgia, [ 446 U.S. 420 , 100 S.Ct. 1759 , 64 L.Ed.2d 398 (1980) ], mandates that the death penalty should be reserved for only the most aggravating of circumstances, circumstances that are so shocking or repugnant that the murder stands out above the norm of first degree murders, or the background of the defendant sets him apart from the usual murderer.

In my opinion, there is nothing about Beau John Greene or his crime that meets this constitutional standard.

¶ 65 It is sad, but true, that the tragic and reprehensible killing of Professor Johnson is not much different from other “robbery gone awry” murders that come to us. Moreover, there has been no clear showing that the defendant rises above “the norm” of other similarly convicted offenders. I am persuaded that had this court not so inadvisedly elected to abandon proportionality reviews in capital cases, see State v. Salazar, 173 Ariz. 399, 417 , 844 P.2d 566, 584 (1992), the inconsistency and arbitrariness of this death penalty would instantly become obvious.

¶ 66 “The United States Constitution demands that imposition of a death sentence be based upon some principled distinction.” State v. Mata, 185 Ariz. 319, 323 , 916 P.2d 1035, 1039 (1996), cert. denied, 518 U.S. 1045 , 117 S.Ct. 20 , 135 L.Ed.2d 1114 (1996). Aggravating circumstances must “rationally distinguish between those individuals for whom death is an appropriate sanction and those for whom it is not.” Spaziano v. Florida, 468 U.S. 447, 460 , 104 S.Ct. 3154, 3162 , 82 L.Ed.2d 340 (1984); see also Arave v. Creech, 507 U.S. 463, 474 , 113 S.Ct. 1534, 1542 , 123 L.Ed.2d 188 (1993) (“[A] State’s capital sentencing scheme also must ‘genuinely narrow the class of persons eligible for the death penalty.’ ”) (quoting Zant v. Stephens, 462. U.S. 862, 877, 103 S.Ct. 2733, 2742 , 77 *445 L.Ed.2d 235 (1983)). Put differently, constitutionally permissible aggravators must “reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Zant, 462 U.S. at 877 , 103 S.Ct. at 2742 (1983), quoted in Romano v. Oklahoma, 512 U.S. 1, 7 , 114 S.Ct. 2004, 2009 , 129 L.Ed.2d 1 (1994).

¶ 67 The majority admits that the trial court’s (F)(6) finding is unsustainable. That leaves (F)(5), “pecuniary gain,” as the sole aggravator in this matter. In recent years, we have acknowledged that statutory aggravating factors are not entitled to the same weight in every case. For example, we have stated that because there are varying degrees of cruelty, heinousness and depravity, the (F)(6) aggravator may be accorded greater or lesser significance when weighed against available mitigation in a given situation. See, e.g., State v. Miller, 186 Ariz. 314, 327-28 , 921 P.2d 1151, 1164-65 (1996) (affirming the trial court’s holding that four mitigators were outweighed by a single aggravator of heinous, cruel or depraved), cert. denied, 519 U.S. 1152 , 117 S.Ct. 1088 , 137 L.Ed.2d 221 (1997); State v. Barreras, 181 Ariz. 516, 521 , 892 P.2d 852, 857 (1995) (stating that the weighing process “requires an evaluation of the strength and quality of both the aggravating and mitigating evidence”); State v. Gulhrandson, 184 Ariz. 46, 71 , 906 P.2d 579, 604 (1995) (holding that, because the killing was “particularly gruesome, brutal, and protracted,” the “finding of gratuitous violence [was] entitled to great weight”). While the foregoing principle is logical, the subjectivity inherent in its application tends to expose the fragile constitutional underpinnings of our capital sentencing scheme. Nowhere is this more obvious than in our treatment of the “pecuniary gain” aggravator.

¶ 68 The details of murder are never pleasant. Most, in fact, are quite detestable. It cannot be doubted, however, that some homicides are worse than others. The same may be said of killers — as with all human beings, no two are exactly alike. The determination of who shall live and who shall die must be based on something more definite and predictable than the visceral reaction to a particular crime and/or defendant. Viewing the facts of the instant case in the context of our capital jurisprudence, I struggle to make sense of this death sentence. I worry that it may have been precipitated in part by the prominence of the victim in his community, as well as insulting and inflammatory remarks made by the defendant long after the crime. These are matters that do not constitute aggravating circumstances under our capital sentencing laws.

¶ 69 I agree that the facts here support the (F)(5) aggravator as we now interpret it, even though there was once considerable disagreement as to its meaning. 1 However, just as there are varying degrees of cruelty, heinousness and depravity, not all killings for pecuniary gain are the same. Consequently, they should not be given the same weight in the sentencing calculus. I believe our case law plainly reflects this principle.

¶ 70 Although (F)(5) is present in many capital senteneings, it is uncommonly seen as the sole aggravator. An examination of those few instances where trial courts have sentenced defendants to death based on this solitary factor is instructive. In State v. Stevens, 158 Ariz. 595 , 764 P.2d 724 (1988), having found that drags and alcohol contributed to the defendant’s conduct, we reduced his sentence to life. In three other cases, where we affirmed the death sentences, there are striking similarities. In State v. White, 168 Ariz. 500, 503-04 , 815 P.2d 869, 872-73 (1991) the defendant and his girlfriend conspired to kill her husband to obtain life insurance proceeds. At a predetermined time, the defendant drove to the victim’s *446 house and, using a potato-silencer on his gun, shot and killed him. Id. The Defendant and his girlfriend later discussed collecting the insurance money. In State v. Willoughby, 181 Ariz. 530, 533-34 , 892 P.2d 1319, 1322-23 (1995), the defendant convinced his wife to take out large insurance policies naming him as the beneficiary. After numerous meetings, he and his girlfriend agreed upon an elaborate and detañed murder plan that they later executed. Id. at 534 , 892 P.2d at 1323. Shortly after killing his wife, the defendant filed insurance claims. In State v. Spears, 184 Ariz. 277 , 908 P.2d 1062 (1996), cert. denied, — U.S. —, 117 S.Ct. 393 , 136 L.Ed.2d 308 (1996), the victim considered the defendant to be her boyfriend. Relying on this, he devised a plan to take her money and vehicle. Id. at 282, 908 P.2d at 1067 . The victim took a leave of absence from work, apparently believing she was taking a trip with the defendant. During this “trip,” she obtained substantial cash advances, purchased things for him, and signed over her vehicle title. Her body was found in the desert with a gunshot wound to the back of the head. Id. at 283 , 908 P.2d at 1068 .

¶ 71 In affirming the sentences in these cases, we emphasized the carefully conceived and meticulously prepared plans. For example, in Willoughby we said:

This Wiling was not just the result of momentary premeditation but of Defendant’s deliberate, carefully conceived, meticulously planned, and cold-blooded scheme to kiñ, rather than divorce, his unsuspecting wife. In this respect it was very much like the cold and callous contract killing that may have prompted the promulgation of § 13-703(F)(5).

181 Ariz. at 549, 892 P.2d at 1338; see also White, 168 Ariz. at 516 , 815 P.2d at 885 (stating that “there is a difference between the taking of human life with exacting, premeditated coolness, as here, and the hasty, impulsive taking of life that evolves from other criminal activity”); Spears, 184 Ariz. at 295 , 908 P.2d at 1080 (“This premeditated murder of the prey was carefuñy planned and calculated for the lucre which resulted.”).

¶ 72 In the present matter, there is no evidence of substantial planning. Greene’s decision to kiñ may have been “as instantaneous as successive thoughts of the mind,” State v. Eastlack, 180 Ariz. 243, 259 , 883 P.2d 999, 1015 (1994), or it may have developed over the course of an hour or two. We simply cannot know. It is clear, however, that even the most generous reading of the state’s evidence fails to uncover planning or scheming remotely comparable to that in the above cases.

¶ 73 We have at times reduced death sentences to life where, as here, the trial court identified multiple aggravators, but on review all were eliminated except the pecuniary gain factor. See State v. Rockwell, 161 Ariz. 5 , 775 P.2d 1069 (1989) (defendant Wiled an employee at a truck stop during a robbery); State v. Graham, 135 Ariz. 209 , 660 P.2d 460 (1983) (defendant took a rifle to victim’s house intending to rob, and Wiled victim when he answered the door). In State v. Marlow, 163 Ariz. 65, 72 , 786 P.2d 395, 402 (1989), we upheld two of three aggravators, including pecuniary gain, but weighed them only once because they were based on the same facts. We then reduced the sentence.

¶74 Where death sentences have been affirmed, the facts are generañy worse than those presented here. As we noted in State v. McKinney, “[w]e have encountered pecuniary gain as the sole aggravator in other cases in which the death penalty was not imposed, but the quality of [Defendant] Hedlund’s conduct in this case certainly gives great weight to the aggravating circumstance.” 185 Ariz. 567, 584 , 917 P.2d 1214, 1231 (1996) (citations omitted), cert. denied, — U.S. —, 117 S.Ct. 310 , 136 L.Ed.2d 226 (1996). That conduct involved two murders committed during a carefully planned burglary spree in which “[t]he possibhity of murder was discussed and recognized as being a fully acceptable contingency.” Id.; see also State v. Hensley, 142 Ariz. 598 , 691 P.2d 689 (1984) (planned robbery involving a double murder to eliminate witnesses).

¶ 75 Once the weight of each aggravator and mitigator has been assessed, we are obligated to balance the factors against each other to decide whether leniency is appropriate. See Karen L. Hinse, Note, Appellate Review of Death Sentences: An Analysis of *447 the Impact of Clemons v. Mississippi in Arizona, 34 Ariz. L.Rev. 141, 142 n. 11 (1992). As previously indicated, our cases have stated unequivocally that “[w]e will not uphold imposition of the death penalty unless either the murder or the defendant differs from the norm of first degree murders or defendants.” State v. Fierro, 166 Ariz. 539, 548 , 804 P.2d 72, 81 (1990); see also Spears, 184 Ariz. at 295 , 908 P.2d at 1080 . Furthermore, we have long “adhere[d] to the principle that ‘where there is a doubt whether the death penalty should be imposed, we will resolve that doubt in favor of a life sentence.’ ” Marlow, 163 Ariz. at 72 , 786 P.2d at 402 (quoting Rockwell, 161 Ariz. at 16 , 775 P.2d at 1080 ). In the present case, it seems to me that these principles are honored only in their breach.

¶76 In Gregg v. Georgia, the Supreme Court noted the two social purposes purportedly served by capital punishment: “retribution and deterrence of capital crimes by prospective offenders.” 428 U.S. 153, 183 , 96 S.Ct. 2909, 2929-30 , 49 L.Ed.2d 859 (1976). In Enmund v. Florida, the Court stated that unless the death penalty “measurably contributes to one or both of these goals, it ‘is nothing more than the purposeless and needless imposition of pain and suffering,’ and hence an unconstitutional punishment.” 458 U.S. . 782, 798, 102 S.Ct. 3368, 3377 , 73 L.Ed.2d 1140 (1982) (quoting Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866 , 53 L.Ed.2d 982 (1977)). Stated differently, “[w]hat ‘reasonably justifies]’ selection of a particular subgroup of defendants is that these defendants, or their crimes, are the “worst’ murderers or murders, meaning the most deserving of retribution, or the most deterrable.” Bruce S. Ledewitz, The New Role of Statutory Aggravating Circumstances in American Death Penalty Law, 22 Duq. L.Rev, 317, 355 (1984) (alteration in original) (citing Zant ¶. Stephens, 462 U.S. 862 , 877 n. 15, 103 S.Ct. 2733 , 2742 n. 15, 77 L.Ed.2d 235 (1983)).

¶77 Arizona’s F(5) aggravator arguably reflects both “a concern with retribution” and “a deterrence rationale.” Charles A. Pulaski, Jr., Capital Sentencing in Arizona: A Critical Evaluation, 1984 Ariz. St. L.J. 1 , 47. But what is it about Defendant Greene or this crime that makes him, among all murderers, “most deserving of retribution?” Ledewitz, supra, at 355. The majority does not tell us. It merely asserts, without support in my opinion, that “[w]e have a very strong (F)(5) here.” Supra, at ¶ 60. As previously noted, trial court sentencing practices over the last decade, as well as our own precedent, suggest the contrary. Because we have no indication that substantial planning was involved in this case, no relationship of trust or confidence between the perpetrator and his victim, and few other details surrounding the crime that were proven beyond a reasonable doubt, I conclude that this aggravator must lie toward the weaker end of the spectrum.

¶ 78 As for deterrence, the majority admits that Greene was hungry, without a place to stay, and withdrawing from a recent methamphetamine binge when he killed Mr. Johnson. It is difficult to imagine' the death penalty having much deterrent effect on someone so situated. See Pulaski, supra, at 47 (arguing that judges should assess whether “imposing the death penalty would significantly advance the legislative goals implicit in those statutory aggravating circumstances present in the defendant’s ease”); Gregg, 428 U.S. at 185 , 96 S.Ct. at 2931 (noting “that there are murderers ... for whom the threat of death has little or no deterrent effect”).

¶ 79 The majority considers nine circumstances as possible nonstatutory mitigation: 1) drug use and withdrawal, 2) dysfunctional family history, 3) lack of felony criminal record, 4) educational achievement, 5) good marriage and productive life, 6) positive influence on step-brother, 7) the effect of execution on Greene’s children, 8) remorse, and 9) capability for rehabilitation. It rejects items 1, 2, 5, 6, 8 and 9 altogether, despite the fact that the trial judge expressly found at least two of them (1 and 6) to be mitigating. It acknowledges the presence of items 3, 4 and 7, but describes them as “relatively trivial.” Supra, at ¶ 60. It accords “little weight” to Greene’s criminal history, which is innocuous compared to that of most capital defendants. Supra, at ¶ 52.

¶ 80 In contrast, I agree with the trial judge that items 1 and 6 have been proven. *448 I share the majority’s conclusion that items 3, 4 and 7 are present, but place considerably more weight on the defendant’s lack of a serious criminal record. In my mind, when this mitigation is collectively considered and balanced against the solitary, relatively weak (F)(5) aggravator, there is considerable doubt as to whether a death sentence is appropriate. See Marlow, 163 Ariz. at 72 , 786 P.2d at 402 .

¶ 81 While I am offended by Greene’s letters and agree that they do not support his claim of remorse, I choose not to overemphasize them. Experience and common sense tell us that attitudes expressed in prison may be precipitated by a panoply of motives, influences, pressures and circumstances foreign to the outside world. While we might hope that incarceration spurs killers to openly express remorse, we ought not be shocked when it fails to do so.

¶ 82 No one can deny that evaluating the quality and strength of aggravation and mitigation involves a degree of subjectivity. See State v. Barreras, 181 Ariz. 516, 521 , 892 P.2d 852, 857 (1995). However, in order to protect the weighing process from “the same unguided, emotional results denounced since Furman [v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972)],” State v. White, 168 Ariz. 500, 524 , 815 P.2d 869, 893 (1991) (Corcoran, J., concurring), we must attempt to manage our subjective inclinations so that arbitrary rulings are avoided. See id. at 523 , 815 P.2d at 892 (“If the sentencing judge has no right ... to consider his or her own subjective belief as to the appropriateness of a penalty, we have no greater authority to do so on appeal.”). Our precedent is indispensable in this regard, see Pulaski, supra, at 46 (“One source of guidance is the prior decisions of the Arizona Supreme Court.”), and I believe it compels only one result. Although I feel the utmost compassion for the victim and his survivors, and genuinely despise the crime committed by this defendant, I honestly do not believe there is any principled basis under our law upon which to execute him. I would reduce his sentence to life without any possibility of parole.

KLEINSCHMIDT, J., concurs.

Justice Stanley G. Feldman did not participate in the determination of this matter. Pursuant to Ariz. Const, art. VI, § 3, the Honorable Thomas C. Kleinschmidt, Judge of the Arizona Court of Appeals, Division One, was designated to sit in his stead.

. Former Chief Justice Frank X. Gordon believed that the legislature "intended [(F)(5)] only to include the situation where defendant is a hired killer.” State v. Clark, 126 Ariz. 428, 437, 616 P.2d 888, 897 (1980) (Gordon, J., concurring). Thus, "[b]y extending the meaning of [ (F)(5) ] to the instant case, the majority has included a killing in the perpetration of a robbery as an aggravating circumstance. The Legislature, had it so intended, could have accomplished this result with more precise, specific language.” Id.; see also State v. Willoughby, 181 Ariz. 530, 549, 892 P.2d 1319, 1338 (1995) (noting that a concern for contract killings "may have prompted the promulgation of § 13 — 703(F)(5)”).