Petition for Writ of Certiorari — Beau John Greene, Petitioner v. Arizona

Supreme Court briefSep 11, 2023

Ask Donna

What actually matters in this document.

Text

No. ___________

IN THE SUPREME COURT OF THE UNITED STATES

Beau John Greene, Petitioner,

vs.

State of Arizona, Respondent.

**CAPITAL CASE**

ON PETITION FOR WRIT OF CERTIORARI

TO THE ARIZONA SUPREME COURT

PETITION APPENDIX

Julie Hall

Counsel of Record

779 S. Cody Loop Rd

Oracle, AZ 85623-6121

(520) 609-2415

JulieSHall@hotmail.com

Counsel for Petitioner Greene

PETITION APPENDIX

Appendix A: State v. Greene, 527 P.3d 322 (Ariz. 2023)......................................... A001

Appendix B: State v. Greene, No. CR-21-0082-PC (Ariz.), Dkt. 30 ........................ A024

Appendix C: State v. Greene, No. CR-21-0082-PC (Ariz.), Dkt. 28 ........................ A025

Appendix D: State v. Greene, No. CR-21-0082-PC (Ariz.), Dkt. 23 ........................ A034

Appendix E: State v. Greene, No. CR48730 (Pima County Super. Ct. 2021)......... A039

Appendix F: Greene v. Arizona, 526 U.S. 1120 (1999) (mem.) ............................... A052

Appendix G: State v. Greene, 967 P.2d 106 (Ariz. 1998) ........................................ A053

State v. Greene, 255 Ariz. 37 (2023)

A001

94 Arizona Cases Digest 22, 527 P.3d 322

255 Ariz. 37

Supreme Court of Arizona.

[6] death sentence was not disproportionate to crime, and

thus did not violate Eighth Amendment prohibition against

excessive punishments;

STATE of Arizona, Plaintiff/Petitioner,

Beau John GREENE, Defendant/Respondent.

[7] defendant was not entitled to relief from death sentence

under rule authorizing relief when sentence “as imposed is not

authorized by law”;

No. CR-21-0082-PC

Filed April 14, 2023

[8] defendant was not entitled to relief under provision of rule

when “there has been a significant change in the law that, if

applicable to the defendant's case, would probably overturn

the defendant's judgment or sentence”; and

Synopsis

Background: After convictions and death sentence for firstdegree murder, robbery, and related crimes were affirmed

in relevant on direct appeal,

192 Ariz. 431, 967 P.2d

106, Supreme Court review of denial of first petition for

postconviction relief was denied, defendant filed successive

petition for postconviction, challenging constitutionality of

death sentence in light of amendment to statutory aggravating

factor found by jury that he committed murder for pecuniary

gain, which limited its application to cases involving murderfor-hire, without consideration of defendant's subjective

intent. The Superior Court, Pima County, No. CR048730-001,

Wayne E. Yehling, J., granted petition and vacated death

sentence. State's petition for review was granted.

[9] defendant did not show by clear and convincing evidence

that no reasonable jury would find him to be death-eligible in

aggravation phase of trial, as basis for relief.

Reversed.

Procedural Posture(s): Appellate Review; Post-Conviction

Review.

West Headnotes (35)

[1]

[2]

[4] death penalty for first-degree murder still served

penological goal of deterrence after amendment;

[5] death penalty advanced penological goal of retribution

after amendment;

Criminal Law

Review De Novo

On appeal from the superior court's ruling on

a petition for postconviction relief, the superior

court's legal conclusions are reviewed de novo.

[2] conviction for robbery committed contemporaneously

with killing fell within scope of statutory aggravating factor

when “defendant was previously convicted … for serious

offenses committed on the same occasion as the homicide”;

[3] defendant failed to demonstrate evolving community

standards of decency precluding imposition of death penalty

in such cases;

Post-conviction relief

An appellate court reviews a superior court's

ruling on a postconviction relief petition for

an abuse of discretion, which occurs if the

postconviction court makes an error of law.

Holdings: The Supreme Court, Montgomery, J., held that:

[1] amendment to statutory aggravating factor for murder

committed for pecuniary gain did not apply retroactively on

postconviction review;

Criminal Law

[3]

Criminal Law

Change in the law

Sentencing and Punishment

Effect of

amendment or other modification

Legislative amendment to statutory aggravating

factor for murder committed for pecuniary gain,

which effectively limited jury's consideration of

pecuniary gain factor to cases involving murderfor-hire and did not encompass defendant's

subjective intent, did not apply retroactively on

State v. Greene, 255 Ariz. 37 (2023)

A002

94 Arizona Cases Digest 22, 527 P.3d 322

postconviction review of death sentence based

on jury's finding of “murder for pecuniary gain”

aggravator, under statute in effect at time of

crime, where amended statute contained no

explicit language indicating retroactivity, and

retroactivity was not referenced in any bill

draft, summary, or analysis.

Ann. § 13-751(F)(3);

13-703(F)(5) (1995).

[4]

Criminal Law

[5]

Sentence and punishment

[8]

Ariz. Rev. Stat. Ann. §

subjective intent for killing.

Ann. § 13-751(F)(3).

[9]

Ariz. Rev. Stat.

homicide.”

(2).

Ariz. Rev. Stat. Ann. § 13-751(F)

Sentencing and Punishment

Prohibition

Scope of

An assessment of contemporary values

concerning the infliction of a challenged

sanction is relevant to the application of the

Eighth Amendment's prohibition against cruel

and unusual punishment, and these Eighth

Amendment judgments should not be, or appear

to be, merely the subjective views of individual

Justices, but should be informed by objective

factors to the maximum possible extent. U.S.

Const. Amend. 8.

Killing

Sentencing and Punishment

while committing other offense or in course of

criminal conduct

Defendant's conviction for robbery committed

contemporaneously with killing fell within scope

of statutory aggravating factor that supported

imposition of death sentence when “defendant

was previously convicted … for serious offenses

committed on the same occasion as the

Sentencing and

Punishment

Proportionality

Whether punishment is excessive and

disproportionate to the offense, in violation

of the Eighth Amendment, is determined

not by standards that prevailed when Eighth

Amendment was adopted in 1791 but by

norms that currently prevail; such norms are

derived from evolving standards of decency that

mark progress of maturing society. U.S. Const.

Amend. 8.

Personal or

Amendment to statutory aggravating factor

for murder committed with expectation of

pecuniary gain, as ground for imposition of death

penalty, essentially limited jury's consideration

of aggravating factor to cases involving murderfor-hire and did not encompass defendant's own

[6]

The Eighth Amendment, applicable to the states

through the Fourteenth Amendment, proscribes

all excessive punishments, as well as cruel and

unusual punishments that may or may not be

excessive, and punishment for the crime must be

proportionate to the offense to comport with this

constitutional guarantee. U.S. Const. Amends. 8,

14.

Ariz. Rev. Stat. Ann. §

Sentencing and Punishment

pecuniary gain

Sentencing and

Punishment

Excessiveness and

Proportionality of Sentence

Sentencing and

Punishment

Proportionality

Ariz. Rev. Stat.

A death-sentenced defendant's argument that

his conduct is no longer subject to the death

penalty based on the legislative elimination

of the statutory aggravating factor upon

which the death sentence is based necessitates

consideration of the entirety of the aggravating

circumstances.

13-751(F).

[7]

[10]

Sentencing and

Punishment

Proportionality

State v. Greene, 255 Ariz. 37 (2023)

A003

94 Arizona Cases Digest 22, 527 P.3d 322

imposition of the death penalty, for purposes

of determining whether a particular defendant's

death sentence violates the Eighth Amendment,

is the legislation enacted by the country's

legislatures. U.S. Const. Amend. 8.

Whether punishment is disproportionate to the

offense, in violation of the Eighth Amendment,

ultimately depends on court's own understanding

of sentence's purpose, which includes death

sentence's purpose. U.S. Const. Amend. 8.

[11]

Sentencing and

Punishment

Proportionality in general

[14]

Sentencing and Punishment

pecuniary gain

Death sentence is unconstitutional under Eighth

Amendment if both evolved societal standards

of decency demonstrate consensus against

punishment and court's independent judgment

concludes that sentence is not proportionate to

crime. U.S. Const. Amend. 8.

[12]

Personal or

Sentencing and Punishment

Killing

while committing other offense or in course of

criminal conduct

Postconviction amendment to statutory

aggravating factor for murder committed with

expectation of pecuniary gain, which essentially

limited jury's consideration of aggravating factor

to cases involving murder-for-hire and did not

consider defendant's own subjective intent for

killing, did not reflect evolving community

standard of decency precluding imposition of

death penalty, in violation of Eighth Amendment

prohibition against excessive punishments, for

defendant whose conduct also fell within scope

of statutory aggravating factor if defendant was

also convicted of serious offense committed

contemporaneously with murder, specifically

robbery. U.S. Const. Amend. 8;

Stat. Ann. § 13-751(F)(2), (3);

Ann. § 13-703(F)(5) (1995).

[13]

[15]

Sentencing and Punishment

Death

penalty as cruel or unusual punishment

When considering evolving standards of decency

and constitutionality of imposing death sentence,

response of juries reflected in their sentencing

decisions in capital cases are to be consulted.

U.S. Const. Amend. 8.

Ariz. Rev. Stat.

The clearest and most reliable objective

indication of a national consensus concerning

Ariz. Rev. Stat. Ann. § 13-751(F)(3);

Ariz. Rev. Stat. Ann. § 13-703(F)(5) (1995).

Ariz. Rev.

Sentencing and Punishment

Death

penalty as cruel or unusual punishment

Personal or

Number of jury decisions in past 20 years

considering pre-amended statutory aggravating

factor of murder for pecuniary gain did

not show evolving community standard of

decency that jury considered death penalty based

on aggravator to violate Eighth Amendment

prohibition against excessive punishment, in

light of amendment that limited aggravator

to cases involving murder for hire and did

not consider defendant's subjective intent at

time of killing; neither defendant nor State

presented evidence of capital cases based solely

on “pecuniary gain” aggravator when jury did

not impose death sentence, there was no evidence

regarding number of failed prosecutions under

circumstances in which juries rejected “murder

for pecuniary gain” aggravator, and other valid

reasons existed to explain why there limited

number of death sentences based on “murder for

pecuniary gain” aggravator. U.S. Const. Amend.

Sentencing and Punishment

Effect of

amendment or other modification

Sentencing and Punishment

pecuniary gain

Sentencing and Punishment

Effect of

amendment or other modification

[16]

Sentencing and Punishment

Effect of

amendment or other modification

State v. Greene, 255 Ariz. 37 (2023)

A004

94 Arizona Cases Digest 22, 527 P.3d 322

Sentencing and Punishment

pecuniary gain

Sentencing and Punishment

pecuniary gain

Personal or

Judgment of prosecutors on pre-amended

version of statutory aggravating factor found

by jury when murder was committed with

expectation of pecuniary gain did not

demonstrate evolving standards of decency

precluding imposition death penalty based on

aggravator, in violation of Eighth Amendment

prohibition against excessive punishment, after

aggravator was amended to limit its application

to cases involving murder-for-hire and did not

consider defendant's subjective intent, absent any

evidence on views of prosecutors or amount of

prosecutorial discretion in seeking death penalty

based on aggravator. U.S. Const. Amend. 8;

Ariz. Rev. Stat. Ann. § 13-751(F)(3);

Rev. Stat. Ann. § 13-703(F)(5) (1995).

[17]

Ariz.

factors. U.S. Const. Amend. 8;

Stat. Ann. § 13-751(F)(3);

Ann. § 13-703(F)(5) (1995).

Personal or

Other states' repeals or restrictions on imposition

of death penalty did not demonstrate evolving

standards of decency precluding imposition

death penalty in Arizona cases involving

murder committed for pecuniary gain, in alleged

violation of Eighth Amendment prohibition

against excessive punishment, based on preamended version of statutory “murder for

pecuniary gain” aggravating factor in effect at

time of killing, after aggravator was amended to

limit its application to cases involving murderfor-hire without consideration of defendant's

subjective intent; Arizona legislature did not

repeal death penalty for murders committed in

manner similar to defendant's killing of victim,

i.e., in course of robbery. U.S. Const. Amend.

Ariz. Rev. Stat. Ann. § 13-751(F)(2), (3);

Ariz. Rev. Stat. Ann. § 13-703(F)(5) (1995).

[18]

Judicial decisions in states where death penalty

or statutory aggravating factors were repealed,

holding that execution of sentence imposed

pre-repeal would violate Eighth Amendment

prohibition against excessive punishment or

analogous state laws did not reflect evolving

community standard of decency to prohibit

imposition of death sentence based on preamended version of statutory aggravating factor

that murder was committed for pecuniary

gain, after statute was amended to limit its

application to cases involving murder-for-hire

and eliminated consideration of defendant's

subjective intent, where state legislature did not

outright repeal death penalty or preclude its

application in cases involving same conduct as

defendant's, and some states had affirmed death

sentences imposed pre-repeal of aggravating

Sentencing and Punishment

Effect of

amendment or other modification

Sentencing and Punishment

pecuniary gain

Sentencing and Punishment

Effect of

amendment or other modification

Personal or

[19]

Ariz. Rev.

Ariz. Rev. Stat.

Death

Sentencing and Punishment

penalty as cruel or unusual punishment

Although the judgments of legislatures, juries,

and prosecutors weigh heavily in the balance

as to whether evolving community standards

precludes application of the death penalty, in

alleged violation of the Eighth Amendment

prohibition against excessive punishment it is for

the Supreme Court ultimately to judge whether

the Eighth Amendment permits imposition of the

death penalty. U.S. Const. Amend. 8.

[20]

Sentencing and

Punishment

Proportionality in general

In exercising its independent judgment on the

issue whether the imposition of the death

penalty is disproportionate to the offense, and

therefore impermissibly excessive, in violation

of the Eighth Amendment, the Supreme Court

considers whether the defendant's sentence

State v. Greene, 255 Ariz. 37 (2023)

A005

94 Arizona Cases Digest 22, 527 P.3d 322

Death sentence has deterrent value, for

purposes of determining whether it advances

penological goals, and therefore whether it is

disproportionate to offense, in alleged violation

of Eighth Amendment prohibition against

excessive punishments, if it would deter other

persons from committing same crime as one

defendant committed. U.S. Const. Amend. 8.

serves the penological purposes of the death

penalty. U.S. Const. Amend. 8.

[21]

Sentencing and Punishment

Death

penalty as cruel or unusual punishment

Sentencing and Punishment

Deterrence

Sentencing and Punishment

Retribution

Death penalty is appropriate sanction when

it advances penological goals of deterrence

and retribution; otherwise, it is nothing more

than purposeless and needless imposition of

pain and suffering, in violation of Eighth

Amendment prohibition against cruel and

unusual punishment. U.S. Const. Amend. 8.

[22]

Sentencing and Punishment

Effect of

amendment or other modification

Sentencing and Punishment

pecuniary gain

[24]

[25]

Personal or

[23]

Sentencing and Punishment

Deterrence

Sentencing and

Punishment

Proportionality in general

Sentencing and Punishment

Death

penalty as cruel or unusual punishment

Sentencing and Punishment

circumstances in general

Aggravating

Penological goal of retribution does not

necessarily justify imposition of the death

penalty for every first degree murder, for

purposes of determining whether death sentence

would violate Eighth Amendment prohibition

against cruel and unusual punishment; rather,

the decision that capital punishment may be

the appropriate sanction in extreme cases is an

expression of the community's belief that certain

crimes are themselves so grievous an affront

to humanity that the only adequate response

may be the penalty of death, and therefore, the

death penalty must be limited to those offenders

who commit a narrow category of the most

serious crimes and whose extreme culpability

makes them the most deserving of execution.

U.S. Const. Amend. 8.

Ariz. Rev. Stat. Ann. §

13-751(F)(2), (3);

Ariz. Rev. Stat. Ann. §

13-703(F)(5) (1995).

Retribution

Retribution, as a penological goal, serves to

punish perpetrator and gives voice to moral

outrage experienced by victim and society at

large; it reflects society's and victim's interests in

seeing that offender is repaid for hurt he caused.

Death penalty for first-degree murder still served

penological goal of deterrence after amendment

to statutory aggravating factor that murder was

committed for pecuniary gain, which limited

its application to cases involving murder-forhire and did not encompass consideration of

defendant's subjective intent, for purposes of

determining whether death sentence imposed

based on jury's finding of murder for pecuniary

gain under pre-amended version of aggravator

violated Eighth Amendment prohibition against

excessive punishments, where legislature did

not repeal statutory aggravator when “defendant

was previously convicted … for serious offenses

committed on the same occasion as the

homicide,” specifically, in defendant's case,

murder committed in course of robbery. U.S.

Const. Amend. 8;

Sentencing and Punishment

[26]

Sentencing and Punishment

Effect of

amendment or other modification

Sentencing and Punishment

Retribution

Sentencing and Punishment

pecuniary gain

Personal or

State v. Greene, 255 Ariz. 37 (2023)

A006

94 Arizona Cases Digest 22, 527 P.3d 322

Death penalty for first-degree murder advanced

penological goal of retribution following

amendment to statutory aggravating factor that

murder was committed for pecuniary gain, which

limited its application to cases involving murderfor-hire and did not encompass consideration

of defendant's subjective intent, for purposes

of determining whether death sentence imposed

based on jury's finding of murder for

pecuniary gain under pre-amended version

of aggravator violated Eighth Amendment

prohibition against excessive punishments,

where, aside from defendant's motive for killing,

he remained subject to death penalty based on

statutory aggravator for murder committed when

“defendant was previously convicted … for

serious offenses committed on the same occasion

as the homicide,” specifically, in defendant's

case, murder committed in course of robbery.

[27]

U.S. Const. Amend. 8;

Ariz. Rev. Stat. Ann.

§ 13-751(F)(2), (3);

13-703(F)(5) (1995).

Ariz. Rev. Stat. Ann. §

Ariz. Rev. Stat. Ann. § 13-703(F)(5) (1995).

[28]

[29]

Courts

Construction and application of

rules in general

The court interprets rules of procedure by their

plain meaning and reads them in conjunction

with each other and harmonize them whenever

possible.

[30]

Criminal Law

Sentence and punishment

Defendant was not entitled to relief from death

sentence under rule authorizing relief when

sentence violated United States or Arizona

constitutions, after statutory aggravating factor

found by jury, that murder was committed

for pecuniary gain, was amended to limit its

application to cases involving murder-for-hire

and did not consider defendant's subjective

intent, where sentence imposed based on

statutory aggravator in effect at time of crime was

constitutional under both federal and Arizona

constitutions. U.S. Const. Amend. 8; Ariz. Const.

Personal or

Sentencing and Punishment

Killing

while committing other offense or in course of

criminal conduct

Sentence of death for first-degree murder

committed during course of robbery was

not disproportionate to crime, and thus did

not violate Eighth Amendment prohibition

against excessive punishments, based on finding

by jury of statutory aggravating factor that

murder was committed for pecuniary gain, after

statutory aggravator was amended to limited

its application to cases involving murder-forhire and did not encompass consideration of

defendant's subjective intent, where murder

was committed during course of robbery, and

thus, facts of killing would support finding on

statutory aggravator that killing was committed

when “defendant was previously convicted …

for serious offenses committed on the same

occasion as the homicide.” U.S. Const. Amend.

Construction and application of

Courts

rules in general

The Supreme Court interprets court rules

according to the principles of statutory

construction.

Sentencing and Punishment

Effect of

amendment or other modification

Sentencing and Punishment

pecuniary gain

Ariz. Rev. Stat. Ann. § 13-751(F)(2), (3);

art. 2, § 15;

Ariz. Rev. Stat. Ann. § 13-751(F)

(3);

Ariz. Rev. Stat. Ann. § 13-703(F)(5)

(1995); Ariz. R. Crim. P. 32.1(a).

[31]

Criminal Law

Sentence and punishment

Defendant was not entitled to relief from

imposition of death sentence under criminal rule

authorizing relief when sentence “as imposed

is not authorized by law,” based on defendant's

assertion that death sentence was no longer

authorized by law after statutory aggravating

factor found by jury that murder was committed

for pecuniary gain was amended to limit its

State v. Greene, 255 Ariz. 37 (2023)

A007

94 Arizona Cases Digest 22, 527 P.3d 322

application to cases involving murder-for-hire

and did not consider defendant's subjective

intent, where defendant's death sentence was

lawful under statutory scheme in effect at time of

killing.

[34]

Ariz. Rev. Stat. Ann. § 13-751(F)(3);

Criminal Law

Sentence and punishment

Criminal rule authorizing relief from sentence

imposed that was “not authorized by law” was

not limited to sentences imposed for term of

years, but encompassed defendant's challenge

to death sentence; rule explicitly stated that

defendant could file notice of request for

postconviction relief “in any case in which the

defendant was sentenced to death.” Ariz. R.

Crim. P. 32.1(c).

[33]

Criminal Law

Change in the law

Criminal Law

Sentence and punishment

Defendant was not entitled to relief from death

sentence for first-degree murder under criminal

rule authorizing relief from sentence when “there

has been a significant change in the law that,

if applicable to the defendant's case, would

probably overturn the defendant's judgment or

sentence,” based on postconviction amendment

to statutory aggravating factor that jury had

found, that murder was committed for pecuniary

gain, which amendment limited application of

aggravator to cases involving murder-for-hire

and did not consider defendant's subjective

intent; amended aggravator did not apply

retroactively, and therefore, was not “applicable

to the defendant's case,” and in any case, death

sentence remained constitutional under both

Eighth Amendment and Arizona Constitution,

given that murder committed during course of

robbery satisfied statutory aggravator that he was

convicted of serious crime committed at same

time of murder. U.S. Const. Amend. 8; Ariz.

Const. art. 2, § 15;

Change in the law

Criminal Law

Sentence and punishment

Defendant was not entitled relief from death

sentence for first-degree murder under criminal

rule authorizing relief upon showing “by

clear and convincing evidence that the facts

underlying the claim would be sufficient to

establish … that no reasonable fact-finder

would find the defendant eligible for the

death penalty in an aggravation phase” of

trial, based on postconviction amendment to

statutory aggravating factor found by jury that

murder was committed for pecuniary gain, which

amendment limited application of aggravator

to cases involving murder-for-hire and did not

consider defendant's subjective intent, where

amendment did not apply retroactively to

defendant's sentence, and therefore, any jury

considering defendant's eligibility for death

penalty would do so under statutes in effect at

time of crime, and defendant did not present clear

and convincing evidence addressing sufficiency

Ariz. Rev. Stat. Ann. § 13-703(F)(5) (1995);

Ariz. R. Crim. P. 32.1(c).

[32]

Criminal Law

of facts to support aggravator.

Ariz. Rev. Stat.

Ariz. Rev. Stat. Ann. §

Ann. § 13-751(F)(3);

13-703(F)(5) (1995); Ariz. R. Crim. P. 32.1(h).

[35]

Criminal Law

Sentence and punishment

Under rule authorizing relief from death sentence

when defendant demonstrates “by clear and

convincing evidence that facts underlying the

claim would be sufficient to establish … that no

reasonable jury would find the defendant eligible

for the death penalty in an aggravation phase,”

“clear and convincing evidence” concerned

facts that addressed proof of aggravating

circumstance; relief could not be based on legal

insufficiency concerning imposition of sentence

of death in general. Ariz. R. Crim. P. 32.1(h).

Ariz. Rev. Stat. Ann.

Ariz. Rev. Stat. Ann. §

§ 13-751(F)(2), (3);

13-703(F)(5) (1995); Ariz. R. Crim. P. 32.1(g).

State v. Greene, 255 Ariz. 37 (2023)

A008

94 Arizona Cases Digest 22, 527 P.3d 322

*327 On Review from the Superior Court in Pima

County, The Honorable Wayne E. Yehling, Judge, No.

CR048730-001. REVERSED

Attorneys and Law Firms

Kristin K. Mayes, Arizona Attorney General, Jeffrey L.

Sparks, Chief Counsel, Ginger Jarvis (argued), Assistant

Attorney General, Phoenix, Attorneys for State of Arizona

Todd Jackson (argued), Meighan LaFata, Jackson & Oden,

PLLC, Tucson, Attorneys for Beau John Greene

Mikel Steinfeld, Arizona Attorneys for Criminal Justice,

Phoenix, Attorney for Amicus Curiae Arizona Attorneys for

Criminal Justice

JUSTICE MONTGOMERY authored the Opinion of the

Court, in which CHIEF JUSTICE BRUTINEL, VICE CHIEF

JUSTICE TIMMER, and JUSTICES BOLICK and KING

joined.

Church, where he had given an organ recital.

Id. On the

night of the murder, “Greene and Johnson crossed paths, but

Id. ¶ 4. Four days later,

the record does not tell us how.”

Johnson's body was discovered “lying face down in a wash.”

Id. ¶ 2.

¶3 After dumping Johnson's body in the wash, Greene stole

his car and wallet and embarked on a “spending spree using

Johnson's cash and credit cards.” Id. ¶ 8. Greene purchased

“clothes, food, camping gear, a scope and air rifle, and a VCR

(which he later traded for methamphetamine)” while feigning

injury to his hand to “explain any discrepancies between his

signature and those on the credit cards.”

Id.

¶4 A jury convicted Greene of first degree murder—felony

and premeditated—robbery, kidnapping, theft, and six counts

of forgery.

Id. at 434–35 ¶ 1, 967 P.2d at 109-10. The

trial court sentenced him to death for the murder of Johnson

based on two aggravating circumstances: (1) the murder

Justices John R. Lopez IV and James P. Beene are

recused from this case.

was committed for pecuniary gain, A.R.S. § 13–703(F)(5)

(1996); and (2) the murder was committed in an especially

heinous or depraved manner,

Opinion

Id. at 439 ¶¶ 32–33, 967 P.2d at 114.

JUSTICE MONTGOMERY, Opinion of the Court:

*328 ¶1 We consider in this case whether legislative

amendments to

A.R.S. § 13-751(F)(5), enacted in 2019,

provide a basis for post-conviction relief (“PCR”) under

Arizona Rule of Criminal Procedure 32.1(a), (c), (g), and

(h) for a sentence of death imposed in 1996. Because the

amendments are prospective only and the 1996 sentence

is constitutional under the United States and Arizona

Constitutions, we hold they do not provide a basis for relief.

I. HISTORICAL BACKGROUND

A. Murder, Conviction, and Sentence

¶2 Beau John Greene murdered University of Arizona music

professor Roy Johnson on February 28, 1995, beating him to

death in Johnson's car and then abandoning his body in the

desert. State v. Greene, 192 Ariz. 431, 435 ¶¶ 2, 5, 967 P.2d

106 (1998). Johnson's wife had expected him home before

10:00 p.m., but he never returned. Id. ¶ 2. He was last seen

the evening of the 28th leaving the Green Valley Presbyterian

§ 13–703(F)(6) (1996). 1

Citations to statutes and rules are to current

versions that have not been materially altered

unless otherwise noted. In 2008,

§ 13-703 was

amended and renumbered as

§ 13-751. 2008

Ariz. Sess. Laws ch. 301, §§ 26, 38 (2d Reg. Sess.).

B. Direct Appeal

¶5 This Court affirmed Greene's convictions on direct appeal

for first degree murder, robbery, theft, and forgery, and

affirmed his death sentence. Id. at 435 ¶ 1, 967 P.2d at 110.

As to the robbery count, the Court considered whether the trial

court erred in denying Greene's motion for a directed verdict.

Id. at 436 ¶ 12, 967 P.2d at 111-12. Greene argued there

was “no direct evidence that he intended to take the victim's

property at the time he used force.”

Id. at 437 ¶ 13, 967

P.2d at 112. This Court noted, though, that “[a]fter stealing

Johnson's car, and within hours after killing him, he began

spending Johnson's money and using his credit cards.”

Id.

State v. Greene, 255 Ariz. 37 (2023)

A009

94 Arizona Cases Digest 22, 527 P.3d 322

¶ 14. Therefore, in conjunction with the evidence at the crime

scene, the Court concluded that “[a] rational trier of fact could

have found beyond a reasonable doubt that Greene's use of

force against Johnson was accompanied by an intent to take

Johnson's property.”

Id. ¶ 15.

¶6 The Court reversed the kidnapping conviction because

there was no evidence that *329 “Greene, while in the

car, knowingly restrained Johnson before bludgeoning him,

or whether he simply chose to strike him at an opportune

moment.” Id. ¶¶ 17–18; A.R.S. § 13-1304(A)(3) (requiring

that a defendant knowingly restrain a victim with intent to

“[i]nflict death, physical injury or a sexual offense ..., or to

otherwise aid in the commission of a felony” for a kidnapping

conviction).

¶7 The Court likewise reversed the trial court's finding that the

murder was especially heinous or depraved under the (F)(6)

aggravating circumstance based on “relishing, senselessness,

and helplessness” because there was insufficient evidence that

“Greene relished the murder beyond a reasonable doubt” at

the exact moment he murdered Johnson.

Id. at 440–41 ¶¶

33, 42, 967 P.2d at 114-16. The Court therefore concluded that

“[a]bsent a finding of relishing, the (F)(6) aggravator cannot

stand, because senselessness and helplessness, without more,

are ordinarily insufficient to prove heinousness or depravity.”

Id. at 441 ¶ 42, 967 P.2d at 116.

¶8 With respect to the (F)(5) pecuniary gain aggravating

circumstance, the Court observed that “Greene's actions

after the murder also demonstrate[d] a pecuniary motive.”

Id. at 439 ¶ 30, 967 P.2d at 114. The Court recounted

evidence of “Greene's admitted need for money, drugs, and

transportation.”

Id. ¶ 29. Combined with the evidence

that Greene “had [Johnson's] wallet with him when he left

the wash immediately following the murder,” it was clear

that Greene “intended to profit from the murder no later

than the moment he picked up the object to kill Johnson.”

Id. ¶¶ 28–29, 32. Therefore, “[t]he evidence support[ed]

beyond a reasonable doubt a finding that Greene, coming off

of methamphetamine and penniless, killed Johnson to obtain

cash or credit cards.”

C. First PCR Petition

Id. ¶ 32.

¶9 Greene filed his first PCR petition in August 2000.

He raised several claims of ineffective assistance of

counsel, sought reevaluation of his death sentence, presented

impeachment evidence regarding Johnson's wife, and argued

that he was entitled to have a jury sentence him. The superior

court held an evidentiary hearing. Greene recounted that after

Johnson drove them to a church parking lot, Greene left the

car and put on a lead-lined “handmade ‘sap’ glove,” 2 before

returning to the car and beating Johnson to death with it, rather

than his fists as he testified at trial. The court denied the PCR

petition in January of 2003.

According to Greene, the glove was “[a] thinner

glove inside a larger welding-type glove, a great big

glove. And inside was [sic] little pouches of lead

shot that had been sewn into the back of the smaller

leather glove, and then the larger glove was sewn

over that to hold everything into place.”

¶10 This Court denied Greene's petition for review of that

decision on December 5, 2003, and issued a warrant for

his execution on January 14, 2004. Greene's execution was

subsequently stayed on December 8, 2008, pending federal

habeas review. 3

Greene's habeas proceedings continue in federal

court. See Greene v. Shinn, No. CV-03-00605TUC-JCH, 2021 WL 3602857, at *28 (D. Ariz.

Aug. 13, 2021) (denying relief in part and granting

relief in part based on finding that Arizona Supreme

Court used an unconstitutional causal nexus test

to assess Greene's mitigation evidence) (appeal

stayed pending these proceedings).

D. Successive PCR Petition

¶11 On May 26, 2020, Greene filed this successive PCR

petition in the superior court. Greene argued that he was

entitled to relief under Rule 32.1(a), (c), (g), and (h) because

his death sentence was now unconstitutional under the

United States and Arizona Constitutions as a consequence

of the 2019 legislative amendments to the (F)(5) aggravating

circumstance. The State argued in response that Greene was

not entitled to any relief because the amendments were

prospective only and therefore inapplicable to his sentence

and that no legal basis existed to render his sentence

unconstitutional. 4 Following *330 an evidentiary hearing,

the superior court granted Greene the relief he sought for each

claim under Rule 32.1 and vacated his sentence of death.

State v. Greene, 255 Ariz. 37 (2023)

A010

94 Arizona Cases Digest 22, 527 P.3d 322

The State also offered arguments concerning

timeliness and preclusion. However, at oral

argument the State acknowledged, without

conceding the point, that it was not challenging the

superior court's rulings concerning the timeliness

or preclusion of Greene's claims. As the State has

abandoned this argument, we do not address it

further.

¶12 We granted review to address whether Rule 32.1(a), (c),

(g) or (h) permit relief when the legislature made a prospective

change to the definition of a capital aggravating circumstance.

We have jurisdiction pursuant to article 6, section 5(3) of the

Arizona Constitution and

A.R.S. §§ 13-4031 and 13-4239.

II. ANALYSIS

¶13 The State argues that because the (F)(5) amendments are

not retroactive and there is no basis on which to find Greene's

sentence is unconstitutional, he is not entitled to any of the

relief he seeks and the superior court erred in ruling otherwise.

Greene argues that the superior court was correct in granting

relief under Rule 32.1(a), (c), (g), and (h) because the (F)(5)

amendments reflect a determination by the legislature that a

murder committed for pecuniary gain does not demonstrate

the extreme culpability justifying the imposition of a death

sentence. Therefore, he argues that to carry out his sentence

now when his criminal conduct is no longer subject to capital

punishment would violate the United States and Arizona

Constitutions pursuant to the Eighth Amendment and article

2, section 15, respectively. Thus, Greene asserts that the

amendments to (F)(5) are applicable to his sentence.

A. Aggravating Circumstances And The 2019

Amendments To (F)(5)

¶16 For a defendant to qualify for capital punishment, a

jury must unanimously find that the state has established the

existence of one or more aggravating circumstances listed at

§ 13-751(F) during the aggravation phase of a capital trial.

A.R.S. § 13-752(E) (“If the trier of fact unanimously finds

no aggravating circumstances, the court shall then determine

whether to impose a sentence of life or natural life ....”);

State v. Thompson, 252 Ariz. 279, 295 ¶ 53, 502 P.3d 437,

453 (2022) (“[T]he death penalty cannot be imposed in

the absence of aggravating circumstances.”). The state must

prove the existence of an aggravating circumstance beyond

a reasonable doubt.

A.R.S. § 13-751(B). If one or more

aggravating circumstances are proven, the matter proceeds to

the penalty phase.

A.R.S. § 13-752(F).

¶17 During the penalty phase, the jury “shall take into

account the aggravating and mitigating circumstances that

have been proven, and if it unanimously determines that

there are no mitigating circumstances sufficiently substantial

to call for leniency,” the jury “shall impose a sentence of

death.” 5

A.R.S. §§ 13-751(E), -752(H); see also

State

v. Prince, 226 Ariz. 516, 526 ¶ 16, 250 P.3d 1145, 1155

(2011) (discussing the “jury's duty to ‘assess whether to

impose the death penalty based upon each juror's individual,

qualitative evaluation of the facts of the case, the severity

of the aggravating factors, and the quality of any mitigating

evidence.’ ” (quoting State ex rel. Thomas v. Granville, 211

Ariz. 468, 472 ¶ 17, 123 P.3d 662, 666 (2005)).

If the jury unanimously determines that a sentence

of death is not appropriate, the court imposes a

[1] [2] ¶14 We review a superior court's ruling on a PCR

petition for an abuse of discretion, which occurs if the court

sentence of either life or natural life.

A.R.S. §

makes an error of law. State v. Pandeli, 242 Ariz. 175, 180 ¶

13-752(H).

4, 394 P.3d 2, 7 (2017). A superior court's legal conclusions

¶18 In 2019, the Arizona Legislature narrowed the statutory

are reviewed de novo. State v. Miller, 251 Ariz. 99, 102 ¶ 8,

aggravating circumstances that a jury may consider in

485 P.3d 554, 557 (2021).

determining whether to impose a sentence of death by

¶15 Because each party's arguments and the analysis of the

superior court are premised on the legislature's amendment

of the former (F)(5) aggravating circumstance, we begin by

reviewing the role of aggravating circumstances in capital

cases and the specific amendments in question.

amending several provisions of

§ 13-751(F). 2019 Ariz.

Sess. Laws ch. 63, § 1 (1st Reg. Sess.). The amendments

did not alter the first two aggravating circumstances,

13-751(F)(1) (prior conviction of another offense punishable

by life imprisonment or death) *331 and

§ 13-751(F)

(2) (serious offense). However, three were completely

State v. Greene, 255 Ariz. 37 (2023)

A011

94 Arizona Cases Digest 22, 527 P.3d 322

eliminated:

§ 13-751(F)(3) (grave risk of death to another

person);

§ 13-751(F)(13) (murder committed in cold

and calculated manner); and

§ 13-751(F)(14) (use of

a stun gun). Id. With respect to

§ 13-751(F)(5), the

legislature amended its language, combined it with the

13-751(F)(4) aggravating circumstance, and renumbered the

new provision as

§ 13-751(F)(3). Id. The remaining

aggravating circumstances were only renumbered. Id.

¶19 Before 2019, (F)(4) read: “The defendant procured

the commission of the offense by payment, or promise

A.R.S. §

of payment, of anything of pecuniary value.”

13-751(F)(4) (2018). The (F)(5) aggravating circumstance

read: “The defendant committed the offense as consideration

for the receipt, or in expectation of the receipt, of anything

of pecuniary value.”

§ 13-751(F)(5) (2018). The new (F)

(3) reads: “The defendant procured the commission of the

offense by payment, or promise of payment, of anything of

pecuniary value, or the defendant committed the offense as a

result of payment, or a promise of payment, of anything of

pecuniary value.” Thus, the legislature effectively limited a

jury's consideration of a pecuniary gain motive for murder to

circumstances of a murder-for-hire.

B. Retroactivity Of (F)(5) Amendments And Greene's

Conduct

1. Retroactivity 6

Greene does not directly challenge the lack of an

express statement of retroactivity but rather argues

that the amendments are retroactive based on a

violation of the Eighth Amendment. We address

this argument at Part II.C.

[3] ¶20 The State argues that the legislature did not make

the amendments to (F)(5) retroactive. Statutes are retroactive

only if “expressly declared therein,” subject to an exception

for procedural changes not applicable here. A.R.S. § 1-244;

State v. Fell, 210 Ariz. 554, 560 ¶¶ 21–23, 115 P.3d 594,

600 (2005) (finding changes to sentencing circumstances a

substantive change to the law requiring an express declaration

of retroactivity). While acknowledging this requirement, the

superior court nevertheless concluded that “[t]he [l]egislature

intended explicitly for defendants affected by the repeal of the

aggravating circumstances outlined in S.B. 1314 to resolve

their claims through the post-conviction relief process.”

¶21 The court based this conclusion on the following

exchange between legislators:

Representative Rodriguez asked, “If there's a discussion

about these not being persuasive, why are we not being

asked to make this change retroactive, to eliminate these

in past cases where they have been used?” In response

to the question, Chairperson John Allen stated, “But Mr.

Rodriguez, it doesn't preclude them from suing over it.

You know, asking for relief, though usually, the courts

don't apply it that way.” Upon hearing this statement,

Representative Rodriguez pointed to Chairperson Allen

and nodded in agreement.

Hearing on S.B. 1314 Before the H. Comm. on the Judiciary,

54th Leg., 1st Reg. Sess. (Ariz. 2019). However, such a

limited exchange between two representatives in a committee

hearing is not sufficient to establish that the legislature

intended to make the amendments retroactive. See Barlow v.

Jones, 37 Ariz. 396, 399, 294 P. 1106 (1930) (“A legislative

enactment cannot be amended or changed either by the

insertion or the elimination of words to conform with an

intent proven by the testimony of the members of the enacting

body.”); see also

Tucson Gas & Elec. Co. v. Schantz, 5

Ariz. App. 511, 514, 428 P.2d 686 (1967) (stating that “the

testimony or opinions of individual members of the legislative

body are not admissible” for discerning legislative intent);

Arizona Citizens Clean Elections Comm'n v. Brain, 234

Ariz. 322, 325 ¶ 12, 322 P.3d 139, 142 (2014) (observing

that “a legislator, lobbyist, or other interested party lacks

competence to testify about legislative intent in passing a

law”).

¶22 Significantly, the bill as signed into law does not contain

a retroactive-application clause—nor was there any effort to

add one at any step in the legislative process. Furthermore,

retroactivity is not referenced in any bill draft, summary,

or analysis for

§ 13-751(F). Compare 2009 Ariz. Sess.

Laws, ch. *332 190, § 1 (1st Reg. Sess.) (providing that the

law “applies retroactively to all cases in which the defendant

did not plead guilty or no contest and that, as of April 24,

2006, had not been submitted to the fact finder to render a

verdict”), with 2019 Ariz. Sess. Laws ch. 63, § 1 (1st Reg.

Sess.) (lacking any retroactivity clause). Thus, despite the

colloquy relied on by the superior court, the amendments to

(F)(5) are not retroactively applicable to cases preceding the

State v. Greene, 255 Ariz. 37 (2023)

A012

94 Arizona Cases Digest 22, 527 P.3d 322

2019 enactment. See, e.g.,

Hayes v. Cont'l Ins. Co., 178

Ariz. 264, 270, 872 P.2d 668, 674 (1994) (declining to find a

preemptive intent in the absence of explicit language required

for preemption given that “the legislature is well aware of the

words of art that should be used to accomplish such a result”).

The court erred in concluding otherwise.

2. The (F)(5) amendments, Greene's motive, and his

criminal conduct

[4] ¶23 The State argues that because the (F)(3) aggravating

circumstance still addresses pecuniary gain, the amendments

to (F)(5) did not eliminate pecuniary gain from consideration

as to whether to impose a sentence of death. The State also

observes that Greene's criminal conduct remains subject to the

(F)(2) (serious offense) aggravating circumstance, which the

superior court did not consider in its analysis. 7 Regardless

of any express statement of retroactivity, Greene argues that

because the amendment to the former (F)(5) aggravating

circumstance eliminated the basis for which his sentence of

death was imposed, the legislature “abolished” the application

of the death penalty to his criminal conduct. The superior

court agreed with Greene and found “that the reasoning in

the [l]egislative record including the reasons for the proposed

legislation was to narrow the applicability and imposition of

the death penalty in which [Greene], under the [l]egislature's

narrowing, is no longer eligible for the death penalty.” 8

The State did not raise this particular point until

its response to an amicus brief before this Court.

Nonetheless, Greene's broad argument that his

conduct is no longer subject to the death penalty

necessitates consideration of the entirety of the

aggravating circumstances in

§ 13-751(F).

The superior court also considered what it

characterized as legislators’ concerns about “how

their actions contributed to complying with the

constitutional mandate of Hidalgo.” However,

there is no such “constitutional mandate” provided

by Hidalgo. The language cited by the court is in a

dissent to a denial by the Supreme Court of a writ of

certiorari. Hidalgo v. Arizona, ––– U.S. ––––, 138

S. Ct. 1054, 200 L.Ed.2d 496 (2018).

326, 523 P.3d 393, 397 ¶ 13 (2023) (“[W]e ‘interpret

statutory language in view of the entire text, considering the

context and related statutes on the same subject’ ” (quoting

Molera v. Hobbs, 250 Ariz. 13, 24 ¶ 34, 474 P.3d

667, 678 (2020)). As discussed, the amendments to (F)

(5) narrowed a jury's consideration of a murder motivated

by the expectation of pecuniary gain to murder-for-hire

scenarios. See Part II.A ¶ 19. Thus, although the State

accurately notes that the legislature did not completely

eliminate the consideration of pecuniary gain from Arizona's

set of aggravating circumstances, Greene is correct that

the legislature did eliminate a jury's ability to consider

his own motive for murdering Johnson. However, the

2019 amendments did not change the (F)(2) aggravating

circumstance, which considers whether “[t]he defendant has

been or was previously convicted ... for serious offenses

committed on the same occasion as the homicide.” Thus, a

robbery committed contemporaneously with a murder—the

exact criminal conduct Greene engaged in—remains subject

to a jury's consideration of whether to impose the death

penalty.

¶25 Informing our analysis of the nature and effect of the (F)

(5) amendments with respect to Greene's sentence of death

is the fact that the legislature amended (F)(2) in 2003 to

address the use of contemporaneous serious offenses effected

by this Court's ruling in

State v. Rutledge, 205 Ariz. 7,

66 P.3d 50 (2003), supplemented

State v. Rutledge, 206

Ariz. 172, 76 P.3d 443, superseded by statute, 2003 Ariz.

Sess. Laws ch. 255, § 1 (1st Reg. Sess.), as recognized in

*333 State v. Nordstrom, 230 Ariz. 110, 118 ¶ 35, 280

P.3d 1244, 1252 (2012) (observing that amendment to (F)(2)

aggravating circumstance “evidently was intended to displace

our ruling in

State v. Rutledge”). In the supplemental

opinion, this Court stated that a “conviction for a ‘serious

offense’ occurring simultaneously with a murder conviction

cannot be used for (F)(2) purposes under the [pre-2003]

version of [§] 13-703(F)(2).”

Rutledge, 206 Ariz. at 178

¶ 25, 76 P.3d at 449. In amending (F)(2), the legislature

made it explicitly clear that contemporaneous serious offenses

could be considered, providing that: “The defendant has been

or was previously convicted of a serious offense, whether

preparatory or completed. Convictions for serious offenses

committed on the same occasion as the homicide, ... shall

[5]

[6] ¶24 Greene's argument requires us to carefully

be treated as a serious offense ....” 2003 Ariz. Sess. Laws

evaluate what the legislature did and did not do in amending

ch. 255, § 1 (1st Reg. Sess.) (emphasis added). Thus, after

§ 13-751(F) as a whole. See State v. Ewer, 254 Ariz.

the 2003 amendment to (F)(2) until the 2019 amendments

State v. Greene, 255 Ariz. 37 (2023)

A013

94 Arizona Cases Digest 22, 527 P.3d 322

to (F)(5), the state could allege as aggravating circumstances

a murder committed contemporaneously with a robbery and

a murder motived by the expectation of pecuniary gain for

murders committed like Greene's.

¶26 Consequently, the overall effect of the 2019 amendments

to (F)(5) with respect to Greene's criminal conduct is that

although a jury can no longer consider Greene's motive for

robbing and murdering Johnson, a jury can still consider

his actual conduct of robbing and murdering Johnson. So,

if Greene committed the same murder today, he would still

be eligible for the death penalty, albeit under a different

aggravating circumstance. Greene is therefore incorrect in

concluding that the legislature “abolished” the death penalty

for his criminal conduct and the superior court erred in

concluding likewise.

[8] [9] ¶29 Under the Supreme Court's Eighth Amendment

jurisprudence, whether a punishment is excessive and

disproportionate is “determined not by the standards that

prevailed when the Eighth Amendment was adopted in 1791

but by the norms that ‘currently prevail.’ ”

Kennedy,

Atkins, 536

554 U.S. at 419, 128 S.Ct. 2641 (quoting

U.S. at 311, 122 S.Ct. 2242). Such norms are derived

from “evolving standards of decency that mark the progress

of a maturing society.”

Trop v. Dulles, 356 U.S. 86,

99–101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (considering

“whether denationalization is a cruel and unusual punishment

within the meaning of the Eighth Amendment” in case

involving desertion during wartime). “Thus, an assessment

of contemporary values concerning the infliction of a

challenged sanction is relevant to the application of the

C. Eighth Amendment

¶27 The State argues that Greene's sentence was

constitutional when imposed and there is no basis for

concluding today that it violates the Eighth Amendment.

Greene argues, and the superior court found, that his sentence

is unconstitutional under the Eighth Amendment because

the legislature's narrowing of the pecuniary gain aggravating

circumstance demonstrates a judgment that his criminal

conduct is no longer deserving of capital punishment.

Therefore, he asserts that his sentence is in violation of

contemporary standards of decency and to carry it out would

also be contrary to a national consensus against imposing

punishment after a repeal of the death penalty.

Eighth Amendment.”

Gregg v. Georgia, 428 U.S. 153,

173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). “Furthermore,

these Eighth Amendment judgments should *334 not be,

or appear to be, merely the subjective views of individual

Justices; judgment should be informed by objective factors to

[7] ¶28 “The Eighth Amendment, applicable to the states

through the Fourteenth Amendment ... proscribes ‘all

excessive punishments, as well as cruel and unusual

juries);

Enmund v. Florida, 458 U.S. 782, 789–96, 102

S.Ct. 3368, 73 L.Ed.2d 1140 (1982) (legislatures, juries,

punishments that may or may not be excessive.’ ” Kennedy

v. Louisiana, 554 U.S. 407, 419, 128 S.Ct. 2641, 171

L.Ed.2d 525 (2008) (quoting

Atkins v. Virginia, 536 U.S.

304, 311 n.7, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002)).

Punishment for the crime must be proportionate to the offense

to comport with this constitutional guarantee. Montgomery

v. Louisiana, 577 U.S. 190, 206, 136 S.Ct. 718, 193

L.Ed.2d 599 (2016) (“Protection against disproportionate

punishment is the central substantive guarantee of the Eighth

Amendment ....”); see also

Weems v. United States, 217

U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910) (“[I]t is

a precept of justice that punishment for crime should be

graduated and proportioned to offense.”).

the maximum possible extent.” Coker v. Georgia, 433 U.S.

584, 592, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977).

[10] ¶30 In previous cases, the Supreme Court has

considered four categories of data for Eighth Amendment

consensus assessments: (1) legislative actions; (2) opinions of

juries; (3) judgment of prosecutors; and (4) historical practice.

See, e.g.,

id. at 593–97, 97 S.Ct. 2861 (legislatures and

and prosecutors);

Atkins, 536 U.S. at 313–17, 122 S.Ct.

2242 (legislatures);

Roper v. Simmons, 543 U.S. 551,

560–68, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (legislatures

and historical practice);

Kennedy, 554 U.S. at 422-34,

128 S.Ct. 2641 (legislatures, juries, and historical practice).

Nonetheless, any consensus demonstrated by the preceding

is not necessarily controlling.

Kennedy, 554 U.S. at 421,

128 S.Ct. 2641 (stating that “[c]onsensus is not dispositive”).

Whether a punishment is disproportionate ultimately depends

on “the Court's own understanding and interpretation of the

Eighth Amendment's text, history, meaning, and purpose,”

which includes whether the death sentence would fulfill a

penological purpose.

Id. at 421, 441, 128 S.Ct. 2641.

State v. Greene, 255 Ariz. 37 (2023)

A014

94 Arizona Cases Digest 22, 527 P.3d 322

[11] ¶31 In sum, a death sentence is unconstitutional under

the Eighth Amendment if both (1) evolved societal standards

of decency demonstrate a consensus against the punishment

and (2) the court's independent judgment concludes that the

sentence is not proportionate to the crime.

S.Ct. 2641.

Id. at 446, 128

1. Consensus against Greene's punishment

¶32 The State argues no consensus exists against executing a

defendant for the (F)(5) aggravating circumstance. Greene's

argument, though, is that there is a consensus against

executing a defendant whose criminal conduct no longer

justifies the imposition of the death penalty. In granting

Greene the relief he sought, the superior court concluded that

“there is a national consensus against executing defendants

for a crime that is no longer eligible of the death penalty.” We

consider each category of information set forth by Greene and

the sources of information relied on by the superior court in

turn.

a. Legislative action

[12] ¶33 The State argues that because the legislature

retained consideration of pecuniary gain in the current (F)

(3) aggravating circumstance and that Greene's conduct

is still subject to capital punishment under the (F)(2)

aggravating circumstance, the legislature's actions do not

establish an evolved community standard against Greene's

punishment. Greene argues that the repeal of the pecuniary

gain circumstance as applicable to his crime reflects a

judgment by the legislature that his criminal conduct does not

demonstrate the extreme culpability justifying the imposition

of a sentence of death. Greene therefore argues that this

judgment reflects a standard of decency precluding his

punishment. The superior court likewise found that the

actions of the legislature, combined with information about

juries, established a community standard against executing

a defendant “convicted of murder solely for pecuniary gain,

except in cases of murder-for-hire.”

[13] ¶34 As reiterated in

Atkins, the “clearest and

most reliable” objective indication of a national consensus

concerning imposition of the death penalty is “the legislation

enacted by the country's legislatures.”

122 S.Ct. 2242 (quoting

536 U.S. at 312,

Penry v. Lynaugh, 492 U.S.

302, 331, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989)). In

cases where the Supreme Court concluded that legislative

action established a standard of decency precluding capital

punishment, legislatures categorically limited the imposition

of the death penalty for defendants who lacked the requisite

intent to kill their victim or who had specific physical or

mental characteristics that diminished their moral culpability.

See

Coker, 433 U.S. at 592–93, 97 S.Ct. 2861 (finding

that “[a]t no time in the last 50 years have a majority of the

States authorized death as a punishment for rape” to conclude

*335 that death penalty for rape of an adult woman where

victim is not killed is “forbidden by the Eighth Amendment as

cruel and unusual punishment”); Enmund, 458 U.S. at 792,

801, 102 S.Ct. 3368 (finding that “only a small minority of

jurisdictions—eight—allow the death penalty to be imposed

solely because the defendant somehow participated in a

robbery in the course of which a murder was committed” to

hold the Eighth Amendment prohibited sentence of death for

a defendant who “did not commit and had no intention of

committing or causing” deaths of robbery victims); Atkins,

536 U.S. at 317–21, 122 S.Ct. 2242 (concluding there was a

“consensus unquestionably reflect[ing] widespread judgment

about the relative culpability of mentally retarded offenders”

and therefore the Eighth Amendment prohibited the death

penalty for such defendants);

Roper, 543 U.S. at 568,

125 S.Ct. 1183 (holding that because “[a] majority of States

have rejected the imposition of the death penalty on juvenile

offenders under 18,” the Eighth Amendment now prohibits

it, as well);

Kennedy, 554 U.S. at 413, 423, 128 S.Ct.

2641 (noting that forty-four states did not provide for capital

punishment in cases of rape to hold the Eighth Amendment

prohibited sentence of death for raping a child under twelve

because defendant did not kill nor intend to kill the victim);