State v. Ring

MARTONE, Justice,

concurring in the judgment.

¶ 66 While I join the court in affirming the convictions and sentences, I write separately to explain why I do not join part B(l) and paragraph 48 of part B(2) of the court’s opinion.

I.

¶ 67 In part B(l), the court says “we must acknowledge that both cases [Jones and Ap- *285 prendí] raise some question about the continued viability of Walton.” Ante, ¶ 40. The court goes on to say it must explain Arizona’s death penalty scheme because of the “unclear language of the Court’s Apprendi and Jones opinions.” Id. But Apprendi was quite express in distinguishing Walton. The opinion states that “this Court has previously considered and rejected the argument that the principles guiding our decision today render invalid state capital sentencing schemes requiring judges, after a jury verdict holding a defendant guilty of a capital crime, to find specific aggravating factors before imposing a sentence of death.” Apprendi v. New Jersey, 530 U.S. 466, 496 , 120 S.Ct. 2348, 2366 , 147 L.Ed.2d 435 (2000). The Court noted that the judge does not determine the existence of a factor which makes a crime a capital offense. Rather, the statute itself defines first degree murder as a capital offense. The jury finds the defendant guilty of all of the elements of first degree murder. “[I]t may be left to the judge to decide whether that maximum penalty, rather than a lesser one, ought to be imposed.” Id., 120 S.Ct. at 2366 (citation omitted).

¶ 68 The majority seizes upon language in the Apprendi dissent to question Walton. But the dissent in Apprendi was not a challenge to Walton. Instead, it was a challenge to the majority holding in Apprendi The Apprendi dissent acknowledged that the Ap-prendí majority likely held “that the Constitution requires that a fact be submitted to a jury and proved beyond a reasonable doubt only if that fact, as a formal matter, extends the range of punishment beyond the prescribed statutory maximum." 530 U.S. at 540 , 120 S.Ct. at 2389 (O’Connor, J., dissenting) (emphasis in original). Justice O’Connor noted that because A.R.S. § 13-1105(0 “itself authorizes both life imprisonment and the death penalty,” id., 120 S.Ct. at 2389 , the statute authorizes the maximum penalty of death in a formal sense.

¶ 69 In this case, Ring’s punishment was not above the statutory range allowed by the jury’s guilty verdict. Death is plainly within the statutory range of a guilty verdict for first degree murder. A.R.S. § 13-1105(C). Such a verdict is essential to a finding that a defendant is death eligible. Only first degree murder is a capital offense. One cannot be sentenced to death without such a verdict. The jury must find all the elements of the charge under Apprendi and the Sixth Amendment. The factual findings in aggravation and mitigation made by the trial court are not elements of the charge triable by jury under the Sixth Amendment, but rather, capital sentencing limitations driven by the Eighth Amendment. Walton v. Arizona, 497 U.S. 639, 648 , 110 S.Ct. 3047, 3054-55 , 111 L.Ed.2d 511 (1990). 1

*286 II.

¶ 70 In Cabana v. Bullock, 474 U.S. 376 , 106 S.Ct. 689 , 88 L.Ed.2d 704 (1986), the Court made it clear that Enmund/Tison findings may be made by the trial court and even an appellate court, rather than a jury. And yet, without explanation, the majority says that it is relevant that “[wjithout Greenham’s testimony at the sentencing hearing, we conclude that the evidence admitted at trial failed to prove, beyond a reasonable doubt, that Defendant was a major participant in the armed robbery or that he actually murdered Magoch.” Ante, ¶ 48. I do not understand the relevance of any of the observations made in paragraph 48 of the majority’s opinion. It would have been enough to say that the trial court’s Enmund/Tison finding was supported by the evidence. The presence of paragraph 48 in the majority opinion, together with its discussion of Apprendi , suggests that the majority not only believes that Apprendi may affect Walton , but that Ap-prendi may affect Cabana . Yet Apprendi makes no mention of Cabana , and Ring does not raise the issue here. I would not reach out to comment on issues not presented.

. The Court explained in Walton :

Walton also suggests that in Florida aggravating factors are only sentencing "considerations” while in Arizona they are “elements of the offense." But as we observed in Poland v. Arizona[, 476 U.S. 147 , 106 S.Ct. 1749 , 90 L.Ed.2d 123 (1986)], an Arizona capital punishment case: "Aggravating circumstances are not separate penalties or offenses, but are 'standards to guide the making of [the] choice’ between the alternative verdicts of death and life imprisonment. Thus, under Arizona’s capital sentencing scheme, the judge's finding of any particular aggravating circumstance does not of itself 'convict’ a defendant (i.e., require the death penalty), and the failure to find any particular aggravating circumstance does not 'acquit' a defendant (i.e., preclude the death penalty).” Our holding in Cabana v. Bullock, provides further support for our conclusion. Cabana held that an appellate court could constitutionally make the Enmund v. Florida finding — that the defendant killed, attempted to kill, or intended to kill — in the first instance. We noted that “Enmund, ‘does not affect the state’s definition of any substantive offense, even a capital offense,’ ” and that "while the Eighth Amendment prohibits the execution of such defendants, it does not supply a new element of the crime of capital murder that must be found by the jury.” Enmund only places "a substantive limitation on sentencing, and like other such limits it need not be enforced by the jury.” If the Constitution does not require that the Enmund finding be proved as an element of the offense of capital murder, and does not require a jury to make that finding, we cannot conclude that a State is required to denominate aggravating circumstances "elements” of the offense or permit only a jury to determine the existence of such circumstances.

We thus conclude that the Arizona capital sentencing scheme does not violate the Sixth Amendment.

497 U.S. at 648-49 , 110 S.Ct. at 3054-55 (citations omitted).