Petition for Writ of Certiorari — Ring v. Arizona

No. O01- 01 4 88 SEP 8 2003

IN THE

Supreme Court of the United States

TIMOTHY STUART RING,

Petitioner,

v.

STATE OF ARIZONA,

Respondent.

On PETITION FOR A Writ OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF ARIZONA

PETITION FOR A WRIT OF CERTIORARI

Anprew D. Hurwitz *

JOHN A. STOOKEY

DANIEL L. KAPLAN

OsBorn MALEDON, P.A.

Attorneys for Petitioner

The Phoenix Plaza

2929 North Central Avenue

Phoenix, AZ 85012

* Counsel of Record (602) 640-9000

169404 ce

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

i

CAPITAL CASE

QUESTION PRESENTED

Walton v. Arizona, 497 U.S. 639 (1990), held that

Arizona’s capital sentencing statute, which assigns solely

to the trial judge the responsibility for making the findings

of fact which are necessary to subject a defendant to a death

sentence, does not contravene the Sixth Amendment’s jury-

trial right as made applicable to the States through the

Fourteenth Amendment’s Due Process Clause.

The question presented is whether Walton should be

overruled in light of this Court’s subsequent holding, in

Apprendi v. New Jersey, 530 U.S. 466 (2000), that “for a

legislature to remove from the jury the assessment of facts

that increase the prescribed range of penalties to which a

criminal defendant is exposed” (id. at 490 (internal quotation

marks omitted)) violates the defendant’s Sixth Amendment

right to a jury trial.

il

TABLE OF CONTENTS

Page

Question Presented .... cent e ete e eee e teen eens 1

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Table of Cited Authorities ...........ccceveee: ili

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Statement of Jurisdiction ..........cceceeesees l

Constitutional and Statutory Provisions Involved ... l

PED Sip évckisictivectecdases 2

Reasons for Granting the Writ ................. 8

ED 6.5 600s ccccessetedasvesesseuduenes 19

il

TABLE OF CITED AUTHORITIES

Page

Cases: |

Apprendi v. New Jersey, 530 U.S. 466 (2000) ... passim

Capano v. State, A.2d_,__,2001 WL 980939

GiGe, Bam, TA BOED occcccccccscceencens 12, 15, 17

Dickens v. Arizona, No. 01-5474 (filed July 23, 2001)

s ceceeeeesceceseenseanneeneneneee 19

Duncan v. Louisiana, 391 U.S. 145 (1968) ....... 18

Hoffman v. Arave, 236 F.3d 523 (9th Cir. 2001),

petition for cert. filed, 69 U.S.L.W. 3763 (US.

REE Da SEED Vecccscunceseacesesnl 10, 11, 13, 15

Hoskins v. Arizona, No. 00-9744 (filed Apr. 30,

BOGED cccccccoschcenesdeanecenesee 19

Indiana v. Barker, No. 49G05-9308-CF-09544

(Marion, Ind. Superior Court Sep. 10,2001) ... 12

Jones v. United States, 526 U.S. 227 (1999) ......

seacaedeseeneenaenntee 5, 6, 9, 10, 14, 15, 18

McMillan v- Pennsylvania, 477 U.S. 79 (1986) ... 16

Mills v. Moore, 786 So. 2d 532 (Fla.), cert. denied,

528 BH. CR, TITS GRGSED cccccccccccnccesceses 12, 15

iv

Cited Authorities

Page

People v. Kaczmarek, 741 N.E.2d 1131 (Ill. App.

SD i ccveedcoddsededcnsctescessoecesese 11,15

People v. Ochoa, 110 Cal. Rptr. 2d 324 (Cal. 2001)

(inde RaedawenssShadbndebesevisceeees 15

Rodriguez de Quijas v. Shearson/American Express,

Inc., 490 U.S. 477 (1989) .. -. 2.2 eee ee eee 15

United States v. Aguayo-Delgado, 220 F.3d 926 (8th

Cir.), cert. denied, 531 U.S. 1026 (2000) ...... 17

United States v. Mendoza, 464 U.S. 154(1984)... 14

United States v. Nordby, 225 F.3d 1053 (9th Cir.

TE sebedecdeceeesneusteuseesececeoeces 17

United States v. Promise, 255 F.3d 150 (4th Cir.

DED. wécnoncececesouseéasescesccceces 10, 13, 17

United States v. Rebmann, 226 F.3d 521 (6th Cir.

ED cccuccdesscennescocacosccecoceceses 16

Walton v. Arizona, 497 U.S. 639 (1990) ........ passim

United States Constitution:

Sixth Amendment ............... i, 1, 2, 5, 6, 7, 17, 18

v

Cited Authorities

Page

Statutes:

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nS boned ececusscnuedeiednens 4

DT 265 dececeégentaccudéecewets 3,4

a ee 3

EE Se ne 3

EE 3

ey DED 0 doe cdbevcccesdvcsevecde 3

a ed 3

TS ee 3,5

ABS. § 13-TEOIP MG) ... ccc ccc ccc cc cccccces 3

ond vdh cbedududeececeuece 3

vi

Cited Authorities

Page

A.R.S. § 13-703(F\8) ...... 6 ee ee ee eee eee 3

A.RB.S. § 13-TOBIP GD) .. nce cccccccccccccccces 3

A.R.S. § 13-703(F)10) .. 2... 2 ee eee ee eee 3

ABS. © UD-TEBRD) 2. ccccccccccccccscccccecs 4

A.R.S. § 13-703(G\ 1) sen cuoeeseouseessneueds 4

A.R.S. § 13-703(GM(2) .. oe ee eee ee ee ees 4

A.R.S. § 13-703(GM(3) ... 2. eee eee ee eee eee 4

A.R.S. § 13-703(G)4) «2 6 ee ee eee eee -

ABS. © 13-TEBAMS) .nccccccccccccccccccess -

ABS. © UD-LIGHIAMA) «0c cccccccccccccsccees 2

ABS. © ID-D9GBEE) 2. cccccccccccccccccccess 3

Ala. Code Ann. § 13A-5-43, 13A-5-45, 13A-5-46

TE REM LEELA EE CEI - 42

Colo. Rev. Stat. Ann. § 16-11-103 (West 2001)... 12

Del. Code Ann. tit. 11, § 4209 (West 2000) ...... 12

Fla. Stat. Ann. § 921.141 (West 2000) .......... 12

vil

Cited Authorities

Idaho Code § 19-2515 (West 2001)

Ind. Code Ann. § 35-50-2-9 (West 2001)

“es ee © # © ©

Mont. Code Ann. §§ 46-18-301 — 46-18-306 (West

2001)

ll a

2001)

Rule:

Sup. Ct. R. 10(a)

Other Authority:

Margery M. Koosed, Averting Mistaken Executions

By Adopting The Model Penal Code's Exclusion

Of Death In The Presence Of Lingering Doubt,

21 N. Ill. U. L. Rev. 41 (2001)

12

12

14

13

vill

TABLE OF APPENDICES

Page

Appendix A — Opinion Of The Supreme Court Of

The State Of Arizona Dated June 20, 2001 ..... la

Appendix B — Special Verdict (Count I) Of The

Superior Court Of The State Of Arizona In And

For The County Of Maricopa Dated And Filed

October 29, 1997 .... cc ccccccccccccecccces 45a

Appendix C — Relevant Statutes ...........---. 54a

l

Petitioner, Timothy Stuart Ring, respectfully requests

that a writ of certiorari issue to review the judgment of the

Supreme Court of the State of Arizona in this case.

OPINIONS BELOW

The opinion of the Arizona Supreme Court (Pet. App. la-

44a) is reported at 25 P.3d 1139 (Ariz. 2001). The judgment of

the Superior Court of Maricopa County (Pet. App. 45a-53a), is

unreported.

STATEMENT OF JURISDICTION

The judgment of the Arizona Supreme Court was entered

on June 20, 2001. The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution

provides:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein

the crime shall have been committed, which

district shall have been previously ascertained by

law, and to be informed of the nature and cause

of the accusation; to be confronted with the

witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and

to have the Assistance of Counsel for his defence.

2

Section 1 of the Fourteenth Amendment to the United

States Constitution provides:

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the state wherein they reside. No State shall make

_ or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States; nor shall any State deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction

the equal protection of the laws.

The relevant provisions of Arizona law are set forth in

the appendix to this petition at Pet. App. 54a-61a.

STATEMENT OF THE CASE

This case presents the question of whether the Sixth

Amendment right to a jury determination of facts that

increase the available range of punishment for criminal

defendants subject to a term of imprisonment applies as well

to defendants subject to the penalty of death. The Supreme

Court of Arizona held that it does not, explaining that it was

constrained to so hold by this Court’s decision in Walton v.

Arizona, 497 U.S. 639 (1990).

A. Arizona’s Criminal Code defines the crime of first

degree murder to include participation in the commission of

a robbery “in the course of and in furtherance of” which a

person is killed. Arizona Revised Statutes (“A.R.S.”) § 13-

1105(A)(2). The statutory maximum sentence that may be

imposed, based upon the jury’s finding of the facts

3

constituting the crime of first degree murder, is life

imprisonment. A.R.S. §§ 13-1105(C), 13-703; Pet. App. at

7a, 8a, 25a-26a.

Arizona’s statutes further provide, however, that after

the jury returns a verdict of guilt of the crime of first degree

murder, the judge must conduct a “separate sentencing

hearing” — in the absence of the jury — on the basis of

which he or she may find facts increasing the maximum

available punishment to a sentence of death. A.R.S. § 13-

703(B) (“The hearing shall be conducted before the court

alone. The court alone shall make all factual determinations

required by this section or the constitution of the United

States or this state.”); Pet. App. at 7a, 8a, 25a-26a.

Specifically, the judge may find that certain facts treated as

“aggravating circumstances” are present. A.R.S. § 13-

703(E), (F).' The judge “shall” impose a sentence of death

upon finding one or more of these facts, unless the judge

also finds mitigating circumstances “sufficiently substantial

1. Aggravating facts include (i) that the defendant committed a

previous offense (A.R.S. § 13-703(F)(1), (F)(2)), (ii) that the defendant

knowingly created a grave risk of death to persons other than the

decedent (A.R.S. § 13-703(F)(3)), (iii) that the defendant procured the

commission of the offense by payment (A.R.S. § 13-703(F)(4)), (iv) that

the defendant committed the offense in expectation of the receipt of

anything of pecuniary value (A.R.S. § 13-703(F)(5)), (v) that the

defendant committed the offense in an especially heinous, cruel or

depraved manner (A.R.S. § 13-703(F)(6)), (vi) that the defendant

committed the offense while incarcerated or on parole (A.R.S. § 13-

703(F)(7)), (vii) that the defendant has been convicted of other

homicides committed during the commission of the offense in question

(A.R.S. § 13-703(F)(8)), (viii) that the defendant was an adult at the

time of the offense and the victim was under fifteen or over seventy

(A.R.S. § 13-703(F)(9)), and (ix) that the victim was an on duty peace

officer (A.R.S. § 13-703(F)(10)).

4

to call for leniency.” A.R.S. § 13-703(E).? At the conclusion of

the “separate sentencing hearing,” the judge returns a “special

verdict” setting forth factual findings with regard to any

aggravating or mitigating facts. A.R.S. § 13-703(D). These

findings determine whether the defendant will be sentenced to

death. A.R.S. § 13-703(A), (B), (E).

B. Petitioner Timothy Stuart Ring was — with

icipat®»1g, along with two others, in the robbery of an armored

oa a at 2a-7a. A jury found Ring guilty of first degree

felony murder, based on circumstantial evidence pertaining to

his participation in the robbery and the fact that the van’s driver

had been shot and killed. Pet. App. at 7a. The maximum statutory

penalty for which Ring was eligible, on the basis of the jury’s

finding that he was guilty of this crime, was life imprisonment.

A.R.S. § 13-703; Pet. App. at 7a, 8a, 25a-26a.

The judge who presided over Ring’s trial then conducted

the required nonjury “separate sentencing hearing” to determine

whether facts justifying the imposition of the death penalty were

present. A.R.S. § 13-703(B); Pet. App. at 7a. An accomplice to

the charged crime testified at the hearing, pursuant to a

plea bargain arranged after the jury’s verdict was received.

Pet. App. at 7a-8a. The accomplice — who did not testify at

Ring’s trial — asserted at the sentencing hearing that Ring led

2. Mitigating circumstances include (i) a significant impairment

of the defendant's capacity to appreciate the wrongfulness of his

conduct (A.R.S. § 13-703(G)(1)), (ii) unusual and substantial duress

(A.R.S. § 13-703(G)(2)), (iii) the defendant’s relatively minor role in

the offense (A.R.S. § 13-703(G)(3)), (iv) the unforeseeability to the

defendant of the death (A.R.S. § 13-703(G)(4)), (v) the defendant's

age (A.R.S. § 13-703(G)(5)), and any other factors proffered by the

defendant or the State “which are relevant in determining whether to

impose a sentence less than death” (A.R.S. § 13-703(G)).

5

the planning of the robbery, shot the armored van’s driver,

and subsequently asked to be “congratulated” on his shot.

Pet. App. at 8a.

After the sentencing hearing, the judge returned his

“special verdict.” Pet. App. at 45a-53a. The judge found that

Ring led the planning of the robbery, Pet. App. at 47a, and

that the killing of the armored van’s driver was done in the

expectation of receiving something of pecuniary value,

A.R.S. § 13-703(F)(5); Pet. App. at 48a-49a. Relying on

the accomplice’s testimony at the sentencing hearing,

see Pet. App. at 26a, 28a-30a, 47a, 49a-50a, the judge also

found that Ring shot and killed the armored van’s driver,

and that he subsequently asked to be “congratulated” on his

shot — establishing (the judge found) that he had acted in a

“heinous” and “depraved” manner. Pet. App. at 49a-50a.

These judge-made findings rendered Ring eligible for a

sentence of death, which the judge then proceeded to impose.

Pet. App. at 53a.’

C. Ring appealed to the Supreme Court of Arizona,

arguing (inter alia) that Arizona’s capital sentencing scheme

violates the Sixth and Fourteenth Amendment principles

articulated in Jones v. United States, 526 U.S. 227 (1999),

and Apprendi v. New Jersey, 530 U.S. 466 (2000). Ring

3. The judge acknowledged that Ring’s “minimal criminal record”

was a mitigating circumstance weighing against the imposition of the

death penalty, but found this factor insufficiently substantial to call for

leniency. Pet. App. at 52a-53a. The Arizona Supreme Court rejected

the judgé’s finding of heinousness or depravity, see Pet. App. at 29a-

33a, but affirmed his finding that the crime was committed for pecuniary

gain, see Pet. App. at 33a-34a.

6

argued that these decisions established that a State sentencing

scheme that removes from the jury the role of finding facts

that increase the prescribed range of penalties to which a

criminal defendant is exposed violates the right to a jury

trial guaranteed by the Sixth Amend:..cnt, as made applicable

to the States by the Fourteenth Amendment. Because

Arizona’s capital sentencing scheme removed from his jury

the role of finding the facts necessary to increase the

maximum penalty to which he could be exposed from life

imprisonment to the penalty of death, Ring argued, the

application of the scheme to him violated his Fourteenth

Amendment rights. The State countered that Walton v.

Arizona, 497 U.S. 639 (1990), a pre-Apprendi decision

holding that Arizona’s capital sentencing scheme was

constitutional, was “still the controlling authority on point.”

Pet. App. at 23a.

The Arizona Supreme Court agreed with the State’s

contention that “neither Jones nor Apprendi overruled

Walton,” but noted that both cases nevertheless “raise[d]

some question about the continued viability of Walton.”

Pet. App. at 23a. In light of what it viewed as “unclear

language” in the Apprendi and Jones decisions, the court

proceeded to set forth a “further explication” of the “practical

operation of Arizona’s death penalty scheme, as applied

under the peculiar facts of the present case.” Pet. App. at

23a-24a.

The court began by describing the Sixth Amendment

standards set forth in Jones and Apprendi. In Jones, the court

observed, this Court stated that “ ‘diminishment of the jury’s

significance by removing control over facts determining a

statutory sentencing range’ would violate the Sixth

Amendment.” Pet. App. at 24a (quoting Jones, 526 U.S. at

7

248). Likewise in Apprendi, the court noted, this Court held

that “ “Other than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.’” Pet. App. at 24a (quoting

Apprendi, 530 U.S. at 490).

The court then noted that the Apprendi majority’s

rationale for concluding that these Sixth Amendment

principles would not invalidate “a capital sentencing scheme

like Arizona’s” was that Arizona’s scheme “merely

‘requir[es] judges, after a jury verdict holding a defendant

guilty of a capital crime, to find specific aggravating factors

before imposing a sentence of death,’” and does not

““permit[] a judge to determine the existence of a factor

which makes a crime a capital offense.’ ” Pet. App. at 24a

(quoting Apprendi, 530 U.S. at 496-97). The court observed

that Justice O’Connor, in her dissent in Apprendi, found the

majority’s distinction of Walton “ ‘baffling, to

say the least,’” insofar as its premise — that in Arizona

“ “the jury makes all of the findings necessary to expose the

defendant to a death sentence’ ” — was “ ‘demonstrably

untrue.” ” Pet. App. at 25a (quoting Apprendi, 530 U.S. at

538 (O’Connor, J., dissenting)).

The court then confirmed that Arizona’s capital

sentencing scheme, as exemplified in Ring’s case, was

“precisely as described in Justice O’Connor’s dissent—

[Ring’s] death sentence required the judge’s factual

findings.” Pet. App. at 26a. The court explained that under

Arizona law, “[t}he range of punishment allowed by law on

the basis of the verdict alone” is life imprisonment, and that

“[i]t is only after a subsequent adversarial sentencing hearing,

8

at which the judge alone acts as the finder of the necessary

statutory factual elements, that a defendant may be sentenced

to death.” Pet. App. at 25a (citing A.R.S. § 13-703(B)); see

also Pet. App. at 26a (“when the state seeks the death penalty,

a separate evidentiary hearing, without a jury, must be held;

the death sentence becomes possible only after the trial judge

makes a factual finding that at least one aggravating factor

is present”).

0 Mire offered this “explication” (Pet. App. at 24a) of

Arizona’s capital sentencing scheme, the court again

acknowledged that this Court has thus far refrained from

overruling Walton. Pet. App. at 26a. The court observed that

it was therefore bound to “conclude that Walton is still the

controlling authority,” and accordingly was required to reject

Ring’s constitutional challenge to Arizona’s scheme.

Pet. App. at 27a.‘

REASONS FOR GRANTING THE WRIT

This Court’s recent decisions place the continued

viability of Walton in grave doubt. A number of State and

federal courts have echoed Justice O’Connor’s Apprendi

dissent in noting the irreconcilability of Walton and

Apprendi, but have felt bound to follow Walton until this

Court revisits it. There can be no serious question that this

4. One Justice declined to join this portion of the court’s

opinion. Pet. App. at 41a-43a (Martone, J., concurring in the

judgment). He stated that the majority was wrong “to question

Walton” (Pet. App. at 41a) because Arizona’s capital sentencing

statute authorized the penalty of death on the basis of the jury’s

verdict “in a formal sense” (Pet. App. at 42a), and thus was consistent

with the principles underlying Apprendi.

9

issue, which goes to the constitutionality of the capital

sentencing schemes currently in place in nine States, is one

of substantial public importance. Nor can it be suggested

that any purpose would be served by deferring consideration

of the question squarely presented here for a future Term,

since the question of whether Walton must be overruled

cannot “percolate” in, or become the subject of conflicts

among, State and federal courts that are duty-bound to apply

Walton until this Court overrules it. Walton must and should

be reexamined promptly, and the present case is an

appropriate vehicle for this reexamination to be undertaken.

- 1. Every member of this Court has either authored or

joined opinions that state or suggest that Walton’s holding

is undermined by this Court’s more recent decisions,’ suggest

that Walton should be reconsidered in light of the principles

articulated in these decisions,° or note that Walton was based

on the rationale that Arizona's capital sentencing statute does

5. Apprendi, 530 U.S. at 538 (O'Connor, J., joined by

Rehnquist, C.J., Kennedy, and Breyer, JJ., dissenting) (“If the Court

does not intend to overrule Walton, one would be hard pressed to

tell from the opinion it issues today”); Jones, 526 U.S. at 272

(Kennedy, J., joined by Rehnquist, C.J., O’Connor, and Breyer, JJ.,

dissenting) (stating that the constitutional rule identified in Jones

and subsequently adopted in Apprendi cast doubt on the continued

viability of Walton, and noting that Walton was “a better candidate”

than Jones itself for the application of that rule).

6. See Apprendi, 530 U.S. at 523 (Thomas, J., concurring)

(stating that Walton's continued viability in light of the constitutional

mandate recognized by Justice Thomas in joining the Apprendi

majority was “a question for another day”); Jones, 526 U.S. at 253

(Stevens, J., concurring) (stating that Walton should be reconsidered

“in due course” in light of the constitutional principles identified in

Jones and subsequently adopted in Apprendi).

10

not authorize the judge to make findings of fact that increase

the maximum sentence to which a defendant is exposed’ —

a rationale that the Arizona Supreme Court has now

authoritatively rejected. See Pet. App. at 25a (“[t}he range

of punishment allowed by law on the basis of the verdict

alone is life imprisonment with the possibiiity of parole or

imprisonment for ‘natural life’ without the possibility of

release”); id. at 26a (“the death sentence becomes possibie

only after the trial judge makes a factual finding that at least

one aggravating factor is present”); id. at 26a (“[Ring’s] death

sentence required the judge’s factual findings”).

Furthermore, a number of State and federal courts,

including the Arizona Supreme Court in this case, have noted

the irreconcilability of Walton and Apprendi. Pet. App. at

23a (“While the state is correct in noting that neither Jones

nor Apprendi overruled Walton, we must acknowledge that

both cases raise some question about the continued viability

of Walton”), United States v. Promise, 255 F.3d 150, 159-

60 (4th Cir. 2001) (en banc) (characterizing the continued

authority of Walton in light of Apprendi as “perplexing, if

not ‘baffling’ ” and a “conundrum”) (quoting Apprendi, 530

U.S. at 538 (O’Connor, J., dissenting)); Hoffman v. Arave,

236 F.3d 523, 542 (9th Cir. 2001), petition for cert. filed, 69

U.S.L.W. 3763 (U.S. May 23, 2001) (No. 00-1775) (noting

7. Jones, 526 U.S. at 251 (opinion for the Court authored by

Souter, J., and joined by Stevens, Scalia, Thomas, and Ginsburg,

JJ.) (to distinguish Walton, majority undertakes a “careful reading

of Walton's rationale,” finding that the Walton majority

“characterized the finding of aggravating facts falling within the

traditional scope of capital sentencing as a choice between a greater

and a lesser penalty, not as a process of raising the ceiling of the

sentencing range available”).

that Apprendi “may raise some doubt about Walton”); People

v. Kaczmarek, 741 N.E.2d 1131, 1142 (Ill. App. 2000)

(“while it appears Apprendi extends greater constitutional

protections to noncapital, rather than capital defendants, the

Court has endorsed this precise principle, and we are in no

position to secondguess that decision here”). Indeed, one

federal circuit judge found this irreconcilability so intolerable

that he refused to consider Walton authoritative, reasoning

that the Apprendi Court failed to articulate a “majority

position about the continued viability of Walton.” Hoffman,

236 F.3d at 547 (Pregerson, J., concurring separately).

It is plain that the continued viability of Walton is in

grave doubt, and that this doubt will persist and intensify

until this Court reexamines that decision. Such doubts about

the viability of one of this Court’s precedents might be

tolerable if it pertained to a relatively unimportant question,

or one as to which a prompt resolution was not necessary,

but the question presented here emphatically does not fall in

these categories.

2. The question at issue here implicates constitutional

protections that this Court has characterized as “of surpassing

importance.” Apprendi, 530 U.S. at 476. Indeed, it involves

the precise issue that this Court identified as “of importance

generally in the administration of the death penalty” when it

determined to grant certiorari in Walton itself. Walton, 497

U.S. at 647. Moreover, the question of Walton’s continued

viability directly governs the constitutionality of the capital

sentencing schemes in effect not only in Arizona, but also in

12

Montana.’ Idaho,’ Nebraska,'® Colorado,'' Florida,"

Alabama," Indiana,"* and Delaware.”

8. Mont. Code Ann. §§ 46-18-301 ~ 46-18-306 (West 2001) (death

sentence may be imposed if judge finds one or more aggravating

circumstances after sentencing hearing held before judge alone).

9. Idaho Code § 19-2515 (West 2001) (same).

10. Neb. Rev. Stat. Ann. §§ 29-2520 — 29-2524 (West 2001)

(death sentence may be imposed if either tral yudge, or panel of three

judges, finds sufficient aggravating circumstances after sentencing

proceeding held before judge or panel alone).

11. Colo. Rev. Stat. Ann. § 16-11-103 (West Fae pe anes

death may be imposed if panel of three judges finds at one

aggravating factor after sentencing hearing held before panel alone).

12. Fla. Stat. Ann. § 921. pee te a neem on death may

be if finds, after recerving advisory jury

et circumstances); see Mills v. Moore, 786 So. 2d

$32, 537 (Fla.), cert. denied, 121 S. Ct. 1752 (2001) (“Because Apprendi

did not overrule Walton, the basic scheme in Florida is not overruled

either”).

13. Ala. Code Ann. § 13A-5-43, 13A-5-45, 13A-5-46 (West 2001)

(same).

14. Ind. Code Ann. § 35-50-2-9 (West 2001) (same); cf Indiana

v. Barker, No. 49G05-9308-CF-09544 (Marion, Ind. Superior Court

Sep. 10, 2001) (holding, without citation to Walton, that Indiana’s capital

sentencing scheme violates the constitutional principles announced in

Apprendi).

15. Del. Code Ann. tit. 11, § 4209 (West 2000) (same); see Capano

v. State, A2d_, ,2001 WL 980939, at *72 (Del. Aug. 10, 2001)

(noting that by distinguishing Walton, the Apprendi mayonty left intact

the lune of precedent holding constitutional! “death penalty statutes like

that in Delaware”).

13

3. A reexamination of Walton should be undertaken

promptly. Putting off the resolution of this important question

for a future Term would unnecessarily extenuate the burdens

of doubt and lack of guidance that the tenuousness of

Walton's continued viability imposes upon legislatures,

courts, and capital defendants.

As long as Walton remains unexamined by this Court,

every death sentence imposed, and every death sentence

carried out, pursuant to the capital sentencing schemes of

Arizona, the eight other States enumerated above, and any

other States that may determine to implement similar

schemes, will be under a heavy cloud of constitutional doubt.

And during this period of uncertainty all of the State and

federal legislatures will be deprived of crucial guidance in

determining whether and how to modify their capital

sentencing statutes. Cf, Margery M. Koosed, Averting

Mistaken Executions By Adopting The Model Penal Code's

Exclusion Of Death In The Presence Of Lingering Doubt,

21 N. Ill. U. L. Rev. 41, 101 (2001) (noting that a “period of

uncertainty” will endure until the Court revisits Walton).

State and federal courts will be burdened as well, in that

they will continue to face the daunting tasks of trying to

reconcile fundamentally irreconcilable decisions, and of

trying to discern principled and coherent boundaries between

the spheres in which each of these precedents should govern.

Cf. Promise, 255 F.3d at 160 (“It is for the Supreme Court . . .

to resolve this conundrum”); Hoffman, 236 F.3d at 542-47

(panel split with regard to continued viability of Walton).

Until Walton is reexamined, moreover, an irrational

disjunction between the constitutional legitimacy of judge-

made factual findings affecting the length of a defendant’s

imprisonment, as compared to the legitimacy of such findings

14

ing the decision to impose a sentence of death, will be

Senatin persist. See Apprendi, 530 U.S. at 537 (O’Connor,

J., dissenting) (“If a State can remove from the jury a factual

determination that makes the difference between life and

death, as Walton holds that it can, it is inconceivable why a

State cannot do the same with respect to a factual

determination that results in only a 10-year increase in es

maximum sentence to which a defendant is exposed );

Jones, 526 U.S. at 272 (Kennedy, J., dissenting) ( If it is

constitutionally impermissible to allow a judge s finding to

increase the maximum punishment for carjacking by 10

years, it is not clear why a judge’s finding may increase the

maximum punishment for murder from imprisonment

to death”); Brief of the United States in Apprendi v. New

Jersey, No. 99-478, 2000 WL 194804, at *24 (Feb. 14, —

(“It would be a strange constitutional regime that permi

[judges to make findings essential before a defendant may

be sentenced to death], yet precluded a legislature from

specifying a statutory enhancement factor that raised the

sentencing range available to a judge in imposing a term 0

imprisonment”). Arbitrary or unreasonable legal distinctions

are no more tolerable when found in this Court’s decisional

law than they are when present in statutes enacted by

legislatures. Indeed, they may be less so, insofar as citizens

are powerless to use democratic processes to remove them.

Stenn af Go Goamnee Gas aamietinss commu See

i granting of certiorari are present to counterbalance

sane ethan csnsemn, Tete tonst conse ia whidh@he Cou

can wait for the issue to “percolate” or for a conflict to

develop. United States v. Mendoza, 464 U.S. 154, 160 (1984);

Sup. Ct. R. 10(a). This Court has directed the State and

federal courts to refrain from treating one of its precedents

as implicitly overruled by its subsequent decisions, however

15

thoroughly the precedent may have been undermined by the

Court’s more recent decisions. Rodriguez de Quijas v.

Shearson/American Express, Inc., 490 U.S. 477, 484 (1989).

Courts have obeyed this directive, continuing to treat Walton

as authoritatively establishing the constitutionality of State

capital sentencing schemes in which judges are required to

find specific aggravating factors before imposing a sentence

of death. See Pet. App. at 26a-27a; Hoffman, 236 F.3d at

542; Capano v. State, _A2d__, _, 2001 WL 980939, at

*72 (Del. Aug. 10, 2001); Mills v. Moore, 786 So. 2d 532,

537 (Fla.), cert. denied, 121 S. Ct. 1752 (2001); People v.

Ochoa, 110 Cal. Rptr. 2d 324, 361 (Cal. 2001); Kaczmarek,

741 N.E.2d at 1142. Because State and inferior federal courts

must continue to “leav[e] to this Court the prerogative of

overruling its own decisions” (Rodriguez de Quijas, 490 U.S.

at 484), no percolation or conflict is possible.

4. The doubts that the members of this Court and other

courts have articulated with regard to Walton’s continued

viability provide a sufficient basis for granting certiorari.

But it is worthwhile to note as well that these doubts are

well-justified.

Apprendi held that with the exception of the fact of prior

conviction, every finding of fact that raises the maximum

punishment to which a defendant may be subjected must be

made by a jury. See Apprendi, 530 U.S. at 490 (with the

exception of the fact of prior conviction, “we endorse the

statement of the rule set forth in the concurring opinions in

[Jones]: ‘(I]t is unconstitutional for a legislature to remove

from the jury the assessment of facts that increase the

prescribed range of penalties to which a criminal defendant

is exposed’ ”) (quoting Jones, 526 U.S. at 252-53 (opinion

of Stevens, J.)) (emphasis added); accord id. at 482-83

16

(noting the “novelty of a legislative scheme that removes

the jury from the determination of a fact that, if found,

exposes the criminal defendant to a penalty exceeding the

maximum he would receive if punished according to the facts

reflected in the jury verdict alone”).'* See also United States

v. Rebmann, 226 F.3d 521, 524 (6th Cir. 2000) (“Our duty,

in light of this clear dictate from the Court [in Apprendi], is

16. See also id. at 482 n.9 (rejecting dissenters’ reliance on

precedent that did not suggest that a judge may impose “a more

severe sentence than the maximum authorized by the facts found by

the jury” (emphasis added), and quoting a passage from a book

stating that the judge may not exceed “the statutory maximum”

as recognizing “precisely this same limitation”); id. at 483 n.10

(“The judge’s role in sentencing is constrained at its outer limits by

the facts alleged in the indictment and found by the jury”) (emphases

added); id. at 476 (describing the portion of New Jersey’s hate crime

law that provided for an increased maximum sentence on the basis

of the defendant’s motive for selecting his victims as identifying a

separate “act[]” being singled out for punishment, regardless of the

State’s labeling it as a “ ‘sentence enhancement’ ”); id. at 480 (noting

that the traditional common law practice required that, when the

circumstances under which a criminal act was committed authorized

a higher punishment, those circumstances were required to be

included in the indictment as elements of the offense charged);

id. at 487 n.13 (limiting the holding of McMillan v. Pennsylvania,

477 U.S. 79 (1986), to cases that do not involve the imposition of a

sentence more severe than the “statutory maximum for the offense

established by the jury's verdict”) (emphasis added); id. at 489 n.15

(noting that at common law the indictment was required to contain

“an allegation of every fact which is legally essential to the

punishment to be inflicted”) (emphasis added, internal quotation

marks omitted); id. at 490 n.16 (distinguishing mitigating facts on

the ground that they do not give rise to deprivations of liberty or

stigma exceeding the deprivations “authorized by the jury verdict

according to statute” and those that “accompany([] the jury verdict

alone”).

Li

17

to examine whether the sentencing factor in this case was

factual determination, and whether that yen tg

increased the maximum penalty for the crime charged in th

indictment”); United States v. Nordby, 225 F.3d 1053 1059

te Cir. 2000) (“Apprendi makes clear that the ‘prescribed

oe maximum’ refers simply to the punishment to which

the defendant is exposed solely under the facts found by the

jury ); United States v. Aguayo-Delgado, 220 F.3d 926, 933

(8th Cir.), cert. denied, 531 U.S. 1026 (2000) (“A fact other

than prior conviction, that increases the maximum

punishment for an offense is the ‘functional equivalent of

an element of a greater offense than the one covered by the

jury's verdict’ ”) (quoting Apprendi, 530 U.S. at 494 n. 19)!’

The Arizona Supreme Court itati

established that Arizona’s wend eeeumeramiees

contravenes this Sixth Amendment mandate. The court ~

plain that, like the statute struck down in Apprendi ena

capital sentencing scheme provides that the celia

17. ButseeCapano, _A.2dat &n.509, 2001

P - ~ _ &n.509, WL 980939,

dstandast have erties ist Ge Sans daphne

a of a certain maximum renee dig sot red

ms findings of fact necessary to imposition of that maximum cansiahs

Promise, 255 F.2d at 181, 168-82 (Luttig, J., concurring in the

judgment) (acknowledging that the “tenor,” ~via d-tomg

principles, and “much of the ... critical language” of A a

unmistakably” require that all facts that increase a deteteaste

won — progam to ~} jury beyond a reasonable doubt *

, olding of Apprendi can be construed ,

narrowly); Pet. App. at 41a-43a (Martone, J Ses bn te

—— (arguing that Apprendi does not bar a shiptantiaies

¢ lacts necessary to the imposition of a sentence of death as “

as the statute defining the crime “

of death in a formal —_ authorizes the maximum penalty

18

penalty to which a criminal defendant is exposed may be

increased on the basis of factual findings made unilaterally

by a judge. Indeed, in light of the court’s opinion, the primary

distinction remaining between Apprendi and the instant case

is that in Apprendi the Sixth Amendment issue pertained to

a ten-year increment in the defendant’s prospective prison —

sentence, whereas here the Sixth Amendment question is

literally one of life or death. If anything, the “reluctance to

entrust plenary powers over the life and liberty of the citizen

to one judge” that underlies the Sixth Amendment’s jury trial

right is more pronounced, not less so, when the judge’s

factual findings determine whether the defendant will live

or die. Duncan v. Louisiana, 391 U.S. 145, 156 (1968).

Although it nevertheless was constrained to apply

Walton in light of its continued authority, the court made

plain that Walton rests on a mistaken construction of Arizona

law. Indeed, the Arizona Supreme Court’s opinion appears

to have been designed specifically to give this Court an

authoritative statement of Arizona law it that may use in

reconsidering Walton, and thus implicitly to urge this Court

do so. The court observed that Walton rested on the

assumption that Arizona’s statutes did not “ ‘permit[] a judge

to determine the existence of a factor which makes a crime a

capital offense’ ” (Pet. App. at 24a (quoting Apprendi, 530

U.S. at 497); cf. Jones, 526 U.S. at 251), and authoritatively

declared this premise to be incorrect. Pet. App. at 26a (“the

death sentence becomes possible only after the trial judge

makes a factual finding that at least one aggravating factor

is present”). Thus, whatever basis the Walton Court’s

construction of Arizona law may have had when that case

was decided, the foundation of that decision is now fully

eroded.

19

For these reasons, and in light of the confusion,

uncertainty, and unfairness that the continued authority of

Walton creates, we ask the Court to take this opportunity to

reconsider Walton in light of the important constitutional

principles announced in Apprendi v. New Jersey."*

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

ANDREW D. Hurwitz *

JOHN A. STOOKEY

Danie L. KAPLAN

OSBORN MALEDON, P.A.

Attorneys for Petitioner

The Phoenix Plaza

2929 North Central Avenue

Phoenix, AZ 85012

(602) 640-9000

* Counsel of Record

18. We are aware of two other pending petitions for certiorari

presenting this question. See Petitions for Certiorari in Hoskins v.

Arizona, No. 00-9744 (filed Apr. 30, 2001), and Di

: , , ck 1

No. 01-5474 (filed July 23, 2001). ee

APPENDIX

APPENDIX A — OPINION OF THE SUPREME

COURT OF THE STATE OF ARIZONA

DATED JUNE 20, 2001

IN THE SUPREME COURT OF THE

STATE OF ARIZONA

En Banc

Supreme Court No. CR-97-0428-AP

Maricopa County No. CR95-01754(A)

STATE OF ARIZONA,

OPINION

June 20, 2001

Appeal from the Superior Court in Maricopa County

The Honorable Gregory H. Martin, Judge

2a

Appendix A

FELDMAN, Justice.

41 On December 6, 1996, a jury found Defendant, Timothy

Stuart Ring, guilty of first-degree murder, conspiracy to

commit armed robbery, armed robbery, burglary, and theft.

Defendant was sentenced to terms of imprisonment for the

robbery, burglary, theft, and conspiracy convictions. Because

the trial judge sentenced Defendant to death for the murder,

direct appeal to this court is automatic. A.R.S. § 13-703.01.

We have jurisdiction pursuant to Arizona Constitution article

VI, § 5.3, A.R.S. § 13-4031, and Arizona Rules of Criminal

Procedure 31.2.b.

FACTS AND PROCEDURAL HISTORY

42 At approximately 2:00 p.m. on November 28, 1994, a

Wells Fargo armored van servicing Dillard’s department

store at Arrowhead Mall was reported missing by Dave Moss,

the van’s “hopper.”' At approximately 6:30 p.m. that same

day, a Maricopa County Sheriffs deputy discovered the

missing van in the parking lot of a Sun City church. All of

the van’s doors were locked, the engine was running, and a

body was slumped over on the passenger side. The body was

that of the van’s driver, John Magoch, who had been killed

by a gunshot wound to the head.

43 Wells Fargo determined that its losses from the robbery

totaled $833,798.12, of which $562,877.91 was in cash.

Although no eyewitnesses to the crime came forward, one

1. “Hopper” is the slang term for a street messenger, which 1s

the armored-car employee who enters businesses to collect/deliver

money while the driver stays inside the armored vehicle.

3a

Appendix A

person riding his bicycle in Sun City on the afternoon of the

robbery claimed to have seen a white van, followed by a red

pick-up truck, run a stop sign. This witness stated that one

man was driving the red truck while two people were in the

van. Another witness also saw a white van followed by ared

pick-up truck. Although she remembered one man driving

the van, she testified that either two or three men were in the

red truck.

44 Through information provided by an informant, the

Glendale Police Department contacted Judy Espinoza, who

believed that her boyfriend James Greenham and a friend of

Greenham’s named “Tim” may have been involved in the

robbery. “Tim” later turned out to be Defendant — Timothy

Ring. Glendale Police interviewed Espinoza on December

30, 1994. Espinoza stated that when she heard about the

robbery on the radio, she remembered that a week before

Greenham had asked her what she would do “if he hit an

Armored car.” State’s Exhibit # 33, at 2. Espinoza also

remembered that, although Greenham had been staying with

her, he was not at home on the night of the robbery and during

that week he was “very stressed out.” /d. at 3. In addition,

shortly after the robbery, Greenham handed Espinoza a bag

of rolled coins totaling approximately $250 and gave

Espinoza’s mother $800 in cash to pay bills. Finally,

Espinoza informed the police that Greenham’s friend Tim

owned a red truck. About a week before the interview with

police, Greenham had stopped dating Espinoza and had

moved out of her home.

95 While conducting surveillance of Greenham, the police

noticed that he appeared to be riding a new motorcycle.

da

Appendix A

ne calls to motorcycle dealerships revealed that,

aan 1994, Greenham and Defendan t made large _

purchases at Metro Motor Sports. Specifically, ome

bought two ATVs and a motorcycle from the eee ip -

$7,500 and $7,300, respectively. Over the next sev sr

Defendant and Greenham both made many more expensiv

purchases, all of them cash transactions. Wiretaps - —

telephones belonging to Defendant and Greenham —

January 9, 1995. On January 21, 1995, ne sg

William Ferguson and discussed Greenham $ purc os

new truck, the trouble this caused with Greenham s - —- "

and what impact that trouble might have on their p os Bre

north.” State’s Exhibit # 49A, at 11. In that call, De ee

threatened to “cut off’ Greenham’s supply, as = a.

“both his and mine.” Jd. The two also talke a —

disappearing for two years after “up north ogo coun

reuniting in Las Vegas. Jd. at 14. Four days later, Ferg -

bought a new motorcycle for $8,700 cash, paying in fifty

and one-hundred dollar bills. :

q6 On January 26, 1995, Greenham called any to

and entered the following code: 20*2000*04. He fol a

that call with another code: 50*5000*04. In — a

between Defendant and Ferguson, Defendant had encore

to Greenham as “zero four.” Later that day, Defendant ~a

Greenham, “The two pages you sent ... those are , =

requests, is that right?” To which Greenham responded,

“Yeah.” State’s Exhibit # 52A.

q7 As part of the investigation of Defendant, arrangements

were made with Waste Management Company to perform :

“trash cover,” enabling investigators to sort through an

Sa

Appendix A

survey Defendant’s waste. During this process, police

acquired two notecards, written by Defendant, with addresses

of businesses serviced by Loomis Armored Cars, as well as

numbers corresponding to Loomis trucks. Defendant was

employed by Loomis in 1988-89 and, at trial, claimed that

the notecards pertained to his employment at that time.

18 The police then attempted to generate discussion between

the conspirators about the robbery. On January 31, 1995,

the police issued a news release that was aired on local

television stations. Defendant called Greenham at

approximately 10:30 that evening and left a message on

Greenham’s answering machine to “remind me to talk to you

tomorrow and tell you what was on the news tonight. Very

important, and also fairly good.” State’s Exhibit # 55A. A

few days later, Detective Tom Clayton from the Glendale

Police Department left his business card on the door of

Greenham’s residence, requesting that Greenham call and

“refer to lead 176.” In response, Greenham made an

emotional, panicked telephone call to Defendant. Greenham

also apparently called his ex-wife, who was so concerned

about his well-being that she asked Phoenix Police to visit

Greenham’s apartment to check on him. Coincidentally,

Defendant stopped by Greenham’s apartment at the same

time. Defendant later discussed this incident with Ferguson,

telling him “I don’t know what to think of it. Uhm, his house

is clean. Mine, on the other hand, contains a very large bag.”

State’s Exhibit # 70A, at 7. Later that same day, Defendant

also said, “it doesn’t really make a whole lot of sense, because

given the information that they do have, both public and what

I’ve been able to ascertain privately . . . if they were gonna

come after somebody, it would be me.” State’s Exhibit

6a

Appendix A

# 71A, at 10-11. Ferguson ended the call by saying that he

would “keep a suitcase packed.” /d. at 17.

49 On February 14, 1995, the police again attempted

to generate conversation by airing a “Silent Witness”

re-enactment on the local news that contained several

deliberately incorrect details about the robbery and murder.

Defendant called Ferguson at 10:51 p.m. to talk about the

broadcast. Ferguson claimed to have “laughed my ass off”

and said he was “not real worried at all now.” State’s Exhibit

# 80A, at 3. Defendant stated that “there’s only one thing

that slightly concerns me,” and asked, “What if push comes

to shove down the months and they ask for hair and fibers,

so forth, and it happens to somehow .. . .” /d. at 4. Later in

the conversation, Defendant said, “there was a couple of in

continuities (sic) to their story... . They showed a suppressed

revolver of all things.” Jd. at 25.

410 Two days later, on February 16, 1995, a search warrant

was served on Defendant’s residence. Police found a

homemade sound suppressor attached to a Ruger 1022 rifle’

barrel behind the hot water heater in a corner of Defendant's

garage. Also in the garage, inside a storage cabinet, police

discovered a green duffel bag with Defendant's name on it.

The bag contained bundles of United States currency totaling

$271,681. Defendant also had $1,040 in a headboard in the

master bedroom. In a notebook found in the same headboard,

2. At trial, however, the state was unable to connect this

weapon to the crime. The bullet that killed Magoch was not

recovered, and the pathologist who performed the autopsy could

not testify conclusively as to the type of weapon or caliber of bullet

that caused Magoch’s lethal wound.

7a

~

Appendix A

police discovered a post-it note that had the number

575,995 "on it. Below the number was the word “splits,”

with the three letters “F,” “Y,” and “T,” and numbers below

the letters totaling 575,995, which is remarkably similar to

the total cash amount taken in the robbery. An expert testified

that this note was written by Defendant. Greenham’s friends

often called him “Yoda”; thus, argued the state, the “Y”

represented Greenham, the “F” was for Ferguson and the

T” stood for Defendant. A search warrant served on

Ferguson’s residence also turned up $62,601. Approximatel

$200 was found at Greenham’s apartment. ;

{11 In his own defense, Defendant claimed to hav

more than $100,000 as a confidential informant for nh

However, an agent for that agency testified that Defendant

was only paid a total of $458. In addition, Defendant testified

that his income included money made as a bounty hunter

and gunsmith. However, Defendant only made $3,500

working for Don’s Bail Bonds in 1993 and while workin

one month for A-1 Bail Bonds in 1994 was paid $1,600. .

412 Based on this circumstantial evidence. a j

Defendant guilty of felony murder for af Ant

As required by statute, the trial judge conducted a special

sentencing hearing. A.R.S. § 13-703.B. Under the Arizona

system, this hearing is conducted without a jury — the judge

makes the factual findings that determine whether the

defendant is to be sentenced to life imprisonment or death

/d. Pursuant to a plea bargain’ arranged after Defendant’s

3. Greenham pled guilt

y to second-degree murder and t

counts of armed robbery. At the time of the hearing, Greenham had

yet to be sentenced, but expected to be imprisoned for 27.5 years

8a

Appendix A

jury verdict was received, Greenham testified at the

sentencing hearing. Greenham admitted that he, Ferguson,

and Defendant planned and executed the robbery. Greenham

also testified that Defendant was the “leader because he laid

out all the tactics,” that Defendant shot the driver with a

“Ruger ... twenty-two rifle,” and that, the day after the

shooting, Defendant wanted to be “congratulate[d]” on his

“shot.” Reporter’s Transcript (“R.T.”), October 19, 1997, at

39, 44-45, 60.

413 In his special verdict, the trial judge found that

Defendant “is the one who killed Mr. Magoch.” Special

Verdict, filed October 29, 1997, at 2. In addition, the judge

determined that Defendant “was a major participant in the

armed robbery of Mr. Magoch that resulted in him being

killed and that the Defendant’s conduct exhibited a reckless

disregard for human life.” Jd. Finding the statutory

aggravating circumstances of A.R.S. § 13-703.F.5 and 6

present, the judge stated that Defendant committed the

offense “in expectation of the receipt of anything of

pecuniary value” and “in an especially heinous, cruel ox

depraved manner.” /d. at 3. These findings made Defendant

eligible for a death sentence. A.R.S. § 13-703.F.5 & 6. While

not finding the existence of any enumerated mitigating

factors, the judge did acknowledge that Defendant's

“minimal criminal record” was a mitigating factor. The judge

then determined that the mitigating evidence, when weighed

against the aggravating evidence, was insufficient to call for

leniency and sentenced Defendant to death for the murder.

9a

Appendix A

DISCUSSION

A. Trial issues

1. Suppression of wiretap evidence

414 The collection of wiretap evidence is governed by A.R.S.

§§ 13-3001 — 13-3019. Defendant argues that, because normal

investigative techniques were not exhausted, the affidavit

supporting the necessity for electronic surveillance was

deficient. In addition, Defendant claims that minimization

requirements were not met. Thus, according to Defendant,

the trial judge abused his discretion by not granting his

motion to suppress. We review the denial of a motion to

suppress for an abuse of discretion. State v. Atwood, 171

Ariz. 576, 603, 832 P.2d 593, 620 (1992).

a. Necessity

415 To satisfy the necessity requirement, an affidavit must

state facts from which the judge may conclude that traditional

methods have been tried and failed or are unlikely to succeed.

A.R.S. § 13-3010.C.3; State v. Hale, 131 Ariz. 444, 447,

641 P.2d 1288, 1291 (1982). Conclusory statements or

boilerplate recitations of difficulties inherent in any

investigation do not satisfy the necessity requirement. /d. at

447, 641 P.2d at 1291. An affidavit in support of a wiretap

order should be evaluated “in a commonsense and realistic,

rather than a hypertechnical, manner.” /d. at 446, 641 P.2d

at 1230. The necessity requirement also “is to be interpreted

in a commonsense fashion with an eye toward the

practicalities of investigative work.” Jd. at 447, 641 P.2d

10a

Appendix A

at 1231. Wiretaps should neither be “routinely used as the

first step in criminal investigations” nor issued “in situations

where conventional investigative techniques would be

adequate to uncover the crime.” Jd. However, a wiretap does

not have to be used “only as a last resort.” Jd.

416 Defendant claims that the state failed to exhaust normal

investigative techniques before seeking electronic

surveillance. Specifically, Defendant asserts that the state

did not attempt to use undercover operations, informants,

surveillance, or trash searches. While it is theoretically

possible that other investigative techniques may have been

successful, not all surveillance strategies must be exhausted

before a wiretap application is appropriately granted. State

v. Politte, 136 Ariz. 117, 129, 664 P.2d 661, 673 (App. 1982).

(1) The affidavit

417 Applying the foregoing principles to this case, we note

first that when presenting the affidavit, the state submitted a

detailed explanation of how other investigative procedures

“have been tried and have failed, reasonably appear to be

unlikely to succeed if tried, or are too dangerous to employ.”

Affidavit in Support of Application for Interception, January

8, 1995, at 17. As for surveillance, not only was it

unsuccessful when used to monitor the activities of co-

conspirator Greenham (who drove erratically and appeared

to be watching for following vehicles) but, the affidavit

alleged, the effectiveness of surveillance as an investigative

tool would be limited because it “can only confirm meetings

of people” and “does not provide the physical/verbal

evidence needed for prosecution of the case.” Jd. at 8.

lla

Appendix A ‘

According to the affidavit, the use of informants would be

unsuccessful because “[bJoth Ring and Greenham are very

selective on who they deal with and both are known to be

‘street smart’ and will not openly discuss aspects of the case.”

Id. The only possible informant, Judy Espinoza, no longer

had contact with Greenham and had resisted Defendant’s

attempts to contact her out of fear that she would be killed if

it was suspected or discovered that she was providing

information to the police. The state also felt that, because of

Defendant’s habit of carrying a firearm, it would be

dangerous to attempt to introduce an informant.

418 The affidavit went on to state that, although considered,

undercover operations were rejected because of Defendant’s

prior training as a police officer, familiarity with undercover

operations, and current contacts with law enforcement

agencies. Pen registers, which trap and trace the numbers

dialed and received from certain telecommunications

equipment, were employed to gather evidence against

Defendant. But, like surveillance, their effectiveness was

limited, as they simply established that contacts were made

without revealing the content of the communications.

A grand jury investigation was ruled out because it would

likely not provide sufficient evidence to support a successful

prosecution, would necessitate granting immunity to one of

the co-conspirators, and would perhaps allow co-conspirators

to flee the state, retaliate against witnesses, or destroy

potential evidence.

419 Although the state conceded that probable cause for a

search warrant of Defendant’s home existed at the time of

the wiretap application, its affidavit alleged that not all

12a

Appendix A

co-conspirators had been identified; locations of much of

the evidence also had not been deduced. In addition,

execution of a search warrant would have prematurely alerted

other conspirators and, because the stolen money had not

been marked, it was believed that any money recovered

would not be able to be conclusively traced to the robbery.

The affidavit noted that all of the “very little physical

evidence” collected at the crime scene, as well as leads

procured from potential witnesses, had been exhausted.

Interviewing Defendant or Greenham was discounted as it

would alert them to their status as suspects and provide them

time to conceal and destroy evidence, give them reason to

flee, or allow them to retaliate against witnesses.

420 As demonstrated by these numerous and detailed facts,

the affidavit in this case fully complied with the necessity

requirement. The order authorizing the wiretap was therefore

proper.

(2) Hearing on motion to suppress

{21 At the hearing on Defendant’s motion to suppress the

wiretap evidence, Defendant-also argued that it was

unreasonable to allow the wiretap until trash covers were

completed and the use of informants had failed. Defendant

even offered the following people as possible infiltrators:

1) Judy Espinoza, an ex-girlfriend of Greenham and the

person who initially implicated Defendant; 2) Michael

Sanders, an acquaintance of Defendant and a possible suspect

in the robbery; 3) Brian Robbins, who had previously

participated in another armed robbery with Defendant,

Greenham, and Sanders; and 4) James Gonzales, a former

associate of Defendant in his bounty-hunting enterprise.

l3a

Appendix A

422 When ruling against the motion, the trial judge

addressed each of these arguments specifically. He found a

trash cover to be “a risky venture with little probability of

success.” Minute Entry (“M.E.”), October 18, 1996, at 3.

The judge found that Espinoza was an “unreasonable” option

because she “was afraid of [Defendant] and had effectively

cut off all ties with both [Defendant] and Greenham.” /d.

at 2. The judge considered Sanders to be similarly unsuitable

because he was on federal probation, had prior felony

convictions, demanded a weapon if he met with Defendant,

and told police he would, if he perceived danger, “take out”

Defendant with a “preemptive strike.” /d. The judge also

found Defendant’s arguments regarding Robbins and

Gonzales “equally unconvincing.” /d. at 3. Robbins could

not pass a polygraph examination and asked for immunity

for another armed robbery. Gonzales had been “kicked out

of the group” months before and had not been in contact

with Defendant since that time. /d.

923 Based on these well-articulated reasons, and considering

the detail of the affidavit, the judge did not abuse his

discretion in denying Defendant’s motion to suppress on

necessity grounds.

b. Minimization

424 Our statute requires that wiretaps be “conducted in such

a way as to minimize interception of communications not

otherwise subject to interception.” A.R.S. § 13-3010.D.6.

In determining whether monitoring agents comply with these

minimization requirements, Arizona has followed the

standard articulated in Scott v. United States, 436 U.S. 128,

l4a

Appendix A

98 S.Ct. 1717 (1978). State v. Olea, 139 Ariz. 280, 285, 678

P.2d 465, 470 (App. 1983). That standard requires an

“objective assessment of the reasonableness of the

monitoring agents’ actions in light of all of the facts and

circumstances confronting them at the time.” Jd. According

to Olea, the following three factors should be considered in

determining the objective reasonableness of the minimization

attempt: 1) the investigation’s nature and scope, 2) the

government’s reasonable expectations of the conversations’

character, and 3) the extent of judicial supervision over the

surveillance. /d.

425 Here, the wiretaps were instituted with the intent of

uncovering the scope of the conspiracy, more specific details

about the crime, and the location of valuable, as-yet-to-be-

discovered evidence, as well as preventing furtherance of

the conspiracy and identifying the third conspirator. The

request was based on expectations that “persons involved in

a criminal conspiracy use telephones” toward such ends and

that one potential informant had already heard Defendant

“use the phone to talk about the incident.” Affidavit in

Support of Application for Interception, January 8, 1995, at

22-23. A detailed “Wire Interception Minimization

Guidelines” was read and signed by every agent involved in

the monitoring. These guidelines gave specific instructions

to the monitoring agents on how to legally perform their

duties, including when to terminate calls that could possibly

fall under a privilege. Approximately every ten days the

officers in charge of minimization submitted detailed,

extensive reports to the judge who issued both the initial

and continuing orders for communication interceptions

These reports detailed the number of calls intercepted, with

lSa

Appendix A

a summary of the times and types of calls intercepted, as

well as any malfunctions or other problems encountered. The

reports also detailed both the evidence acquired and what

was still being sought. In addition, the reports articulated

the reasons for continued interception.

{26 The facts establish careful investigative work. Although

Defendant cites a few specific instances of non-minimization

to support his claim that this case constitutes a significant

violation of the minimization requirements, we must look to

the totality of the circumstances to determine the

reasonableness of the state’s minimization attempts. Olea,

139 Ariz. at 285, 678 P.2d at 470. After analyzing the

objective reasonableness of the monitor’s actions within the

context of the facts of this case, we agree with the trial judge

when he stated:

The contention that all the wiretaps must be

suppressed because the monitors did not

adequately minimize interception of the calls is

without merit. The overwhelming number of calls

were very short thus precluding any minimization.

Additionally, the members of this group

consistently jumped from topic to topic during

their conversations. Moreover, the extent of the

organization, and the possible involvement of

others such as [Defendant’s] wife, greatly

hampered any reasonable and consistent effort to

minimize interception of phone calls. Finally,

under all of the circumstances, the police

exercised reasonable efforts to minimize

interception of non-relevant or privileged calls.

16a

Appendix A

M.E., October 18, 1996, at 4. We conclude that the judge

did not abuse his discretion in denying Defendant’s motion

to suppress.

2. Third-party defense evidence

427 Defendant argues that the trial judge’s rulings

prohibiting the introduction of evidence that a third party,

Michael Sanders, committed the crime were errors requiring

reversal. Again, we review the trial judge’s decisions for

abuse of discretion. State v. Tankersley, 191 Ariz. 359, 369

q{ 37, 956 P.2d 486, 496 4 37 (1998).

928 Although a defendant may introduce evidence that

shows that another person committed the crime for which

the defendant is charged, the trial judge may exclude such

evidence if it “simply affords a possible ground of suspicion

against another.” Jd. at ¥ 38 (quoting State v. Oliver, 169

Ariz. 589, 590, 821 P.2d 250, 251 (App. 1991)). For third-

party defens »vidence to be admitted at trial, the defendant

must demonstrate that the evidence has an “inherent

tendency” to connect the third party to the “actual

commission” of the crime. /d.; see also State v. Fulminante,

161 Ariz. 237, 252, 778 P.2d 602, 617 (1988).

429 Before trial, the state filed a motion to preclude

Defendant from introducing evidence that anyone other than

Defendant, Greenham, and Ferguson committed the charged

crimes. Defendant’s response challenged the motion as being

“overly broad,” “burdensome,” and “highly prejudicial” to

Defendant because granting the motion “would leave

Defendant without a defense.” Defendant’s Response to

17a

Appendix A

State’s Motion to Preclude Third Party 404(B) Evidence and

Defense, filed July 25, 1996, at 4, 8-9. Defendant then filed

a supplement to his response, including an offer of proof, in

which he asserted that evidence existed that other persons

not named as defendants participated in and/or committed

the alleged criminal offenses. Specifically, Defendant

claimed that Sanders “precisely described” the manner in

which the robbery and murder were committed, was an hour

late to work on the day of the crimes, met with a detective

from the Glendale Police Department seeking immunity from

both the present and additional crimes in exchange for

information, admitted that he would have “no problem”

killing someone under the “right” circumstances, and was a

convicted felon with a prior violent criminal history. In

addition, Defendant asserted that the police maintained

surveillance of Sanders for the specific purpose of

determining the extent of Sanders’ involvement in the crimes

even after Defendant and his co-conspirators were arrested.

730 After taking the motion under advisement, the trial judge

granted the state’s request to preclude evidence that Sanders

committed the crime. The judge noted that “the evidence

shows Sanders may have been involved in the planning of

the armed robbery. However, the evidence does not have an

inherent tendency to connect Sanders with the commission

of the offense.” M.E., October 18, 1996, at 10. In addition,

the judge stated that “[w]Jithout more specifics, it is difficult

to determine what evidence [Defendant] wishes to present.”

Id.

431 While cross-examining one of the state’s witnesses,

Defendant asked the witness whether he was “personally

18a

Appendix A

familiar” with Michael Sanders. The state objected and, out

of the presence of the jury, Defendant stated that “as long as

the defense can make the nexus,” he was allowed to “go into

that area.” R.T., November 19, 1996, at 84. Defendant was

apparently attempting to elicit evidence that a witness

remembered seeing a man who resembled Sanders in the

vicinity of the van two route stops before the scene of the

crime. The trial judge reminded Defendant that he must

“prove the connection” between Sanders and either the

planning or commission of the crimes, as well as present it

to the court “out of the presence of the jury,” before he would

allow the evidence to be admitted. Pressed by Defendant,

the judge described the type of necessary “nexus” as follows:

If [Defendant can] show that [Sanders]

participated in the planning and talk about the

robbery and then you have, you have what is

arguably his identification at the scene, or as the

cars are being driven away, I| said I think in my

mind, that may be enough to prove the connection,

or the nexus for you to pursue the defense and to

argue it to that jury. :

Id. at 94. Defendant did not attempt to assert the third-party

defense again during the remainder of the trial.

432 Arguably, Defendant’s evidence regarding Sanders was

relevant to establish that Sanders was involved in the

planning of the crimes. But while the evidence Defendant

claims he may have produced about Sanders might implicate

Sanders as a participant in the planning of the crimes, it would

not have exculpated Defendant for his role in both planning

19a

Appendix A

and committing the crimes. Based on this important

distinction, there was no abuse in the trial judge’s decision

to reject the third-party defense evidence. Because

implicating Sanders would not tend to exculpate Defendant,

we conclude that even if it was error to preclude the evidence

regarding Sanders, the error did not, beyond a reasonable

doubt, contribute to or affect the verdict. State v. Fulminante,

193 Ariz. 485, 500 4 49, 975 P.2d 75, 90 ¥ 49 (1999).

Therefore, given the facts of this case, any error is harmless.

Id.

3. New trial motion

433 Defendant claims that the trial judge abused his

discretion when he denied Defendant’s new trial motion.

Defendant specifically argues that a new trial should have

been granted based on the FBI’s failure to provide

Defendant’s entire FBI file and the state’s failure to disclose

both a witness’ pre-hypnotic videotape testimony and

evidence supporting Defendant’s third-party defense. Only

the first ofthese three issues was raised in Defendant’s timely

new trial motion. Ariz.R.Crim. P. 24.1.b (“A motion for new

trial shall be made no later than 10 days after the verdict has

been rendered.”). Several claims, including the other two

issues argued by Defendant here, were raised in subsequent

untimely new trial motions.‘ The trial court has no jurisdiction

4. The verdicts in Defendant's case were rendered on December

6, 1996. Defendant timely filed a new trial motion by December 16,

1996. Almost a year later, on September 15, 1997, Defendant filed

a “supplemental” motion for new trial. Both the next day, and two

days after that, Defendant again filed supplemental new trial motions.

(Cont'd)

20a

Appendix A

to grant a new trial motion if it is not made within ten days

after the verdict. State v. Hickle, 129 Ariz. 330, 332, 631

P.2d 112, 114 (1981). Because the trial judge did not have

jurisdiction to consider Defendant’s claims raised in an

untimely new trial motion, those redundant claims will not

be addressed by this court on appeal. Of course, Defendant

can raise these claims in post-conviction relief proceedings

pursuant to Ariz.R.Crim.P. 32.1 et seq. See Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963). Therefore,

only the first issue needs to be examined: Whether the trial

judge should have granted a new trial based on the fact that

Defendant did not receive his entire FBI file.

934 In making this argument, Defendant relies on

Ariz.R.Crim.P. 24.1.C.5, which states that the trial judge may

grant a new trial when “[flor any other reason not due to the

defendant’s own fault the defendant has not received a fair

and impartial trial.” Defendant claims that, without the entire

file, he was unable to support his claim that the money found

in his home was compensation for his work as an FBI

informant or to refute the trial testimony of an FBI agent

that Defendant was never paid substantial amounts of money

as an informant.

435 Defendant bases his argument on a discrepancy between

the size of the file forwarded to him before trial from the

(Cont'd)

Labeling untimely motions as supplemental does not enable a party

to avoid the time restrictions imposed by procedural rules —

especially those rules, such as Ariz.R.Crim.P. 24.1.b, that confer

jurisdiction on the trial court. State v. Hickle, 129 Ariz. 330, 332,

631 P.2d 112, 114 (1981).

2la

Appendix A

FBI, which was approximately 20-25 pages, and trial

testimony from an FBI agent that Defendant’s file is “about

two inches thick.” R.T., October 9, 1997, at 5; R.T.,

December 4, 1996, at 3@ First, we must recognize that the

FBI agent may have inadvertently misstated or simply

overestimated the size of Defendant’s file. If, however,

Defendant is correct about the actual size of his file, then he

has failed to demonstrate that his receipt of only a portion of

his FBI file was due to anyone’s fault but his own. Upon

receipt of what was to Defendant an obviously incomplete

file (which Defendant would have realized when information

about the activities he claims should have been in the file

was discovered missing), Defendant should have acted to

procure the entire file. Instead, Defendant apparently waited

until trial and used the alleged discrepancy to argue that the

FBI was unwilling to proffer the entire file as part of a more

general cover-up or conspiracy theory. Unsuccessful with

that argument, Defendant waited until filing a new trial

motion to complain that, based on no fault of his own, he

did not receive the entire FBI file and the incomplete

disclosure precluded him from properly procuring a defense.

Based on this reasoning, Defendant has not satisfied the

necessary requirement that he have no responsibility in the

alleged trial taint. See Ariz.R.Crim.P. 24.1.C.5. In addition,

trial testimony demonstrated that it would be unlikely that

the FBI file would corroborate Defendant’s claims.*

436 Attrial, Agent Michael Fain of the FBI’s Phoenix office

testified that the total amount given to Defendant for his

5. Our disposition of this issue does not preclude Defendant

from raising it as a Brady claim in post-conviction relief proceedings

pursuant to Ariz.R.Crim.P. 32.1. See supra ¥ 33.

22a

Appendix A

services as an informant was $485. Fain also testified that

he was the only individual, and the Phoenix office the only

office, to have “administrative control” of any informant

operating in the Phoenix area. R.T., November 20, 1996, at

47. Thus, according to Fain’s testimony, no other FBI agent

would have paid Defendant to work as an informant.

437 Defendant later took the stand and controverted Fain’s

testimony. Defendant claimed that he performed many

services for the FBI and was paid “a total of about a hundred

and five thousand dollars,” all of which was paid in cash.

R.T., December 12, 1996, at 162. On cross-examination,

Defendant stated that “the majority of the income” he made

from the FBI, including the $105,000, was not paid through

Agent Fain but by an Agent Dan Steel. Defendant claimed

to have been paid $35,000, $45,000, and $25,000 by Agent

Steel for three separate assignments in Mexico. Although

many of Defendant’s prior, documented meetings with the

FBI included the presence of other persons, Defendant

claimed .o have completed his Mexico assignments with

anonymous contacts and to have always met with Agent Steel

alone.

438 To rebut this testimony the state called Special Agent

Mark Tanner, an assistant special agent in charge of Phoenix.

Tanner described the process implemented to pay informants,

which included issuing checks to agents (who in turn cash

the checks and pay the informants in cash), returning receipts

for payment, and acquiring permission from headquarters

for any amount in excess of $20,000. Tanner testified that it

would not be possible for an agent to get money without

following the procedure. Tanner also denied that Defendant

23a

Appendix A

was ever paid in excess of $20,000. Finally, Tanner told the

jury that he had never known an Agent Dan Steel, that an

agent with that name did not work in the Phoenix division,

and, to his knowledge, no agent by that name had ever visited

Phoenix.

439 Defendant’s alleged inability to access his entire FBI

file did not render his trial so unfair as to require the granting

of a new trial. Therefore, the trial judge did not abuse his

discretion in denying Defendant’s new trial motion.

B. Sentencing issues

1. Constitutional challenge

140 Defendant argues that, in light of the United States

Supreme Court’s decisions in Jones v. United States, 526 —

U.S. 227, 119 S.Ct. 1215 (1999), and Apprendi v. New Jersey,

530 U.S. 466, 120 S.Ct. 2348 (2000), Arizona’s capital

sentencing scheme violates the Sixth and Fourteenth

Amendments to the United States Constitution. In response

to Defendant’s claims, the state counters that Walton v.

Arizona, 497 U.S. 639, 110 S.Ct. 3047 (1990), which

approved Arizona’s present judge-sentencing procedure for

capital cases, is still the controlling authority on point. While

the state is correct in noting that neither Jones nor Apprendi

overruled Walton, we must acknowledge that both cases raise

some question about the continued viability of Walton. Of

course, it could also be said that because a majority of the

Court refused to expressly overrule Walton, the apparent

scope of Apprendi and Jones is not as broad as some of the

language of the two opinions suggests. The unclear language

24a

Appendix A

of the Court’s Apprendi and Jones opinions makes either of

these interpretations reasonable and, therefore, we believe

the practical operation of Arizona’s death penalty scheme,

as applied under the peculiar facts of the present case,

requires some further explication.

941 The background is this: While upholding a federal

carjacking statute, the Jones Court reasoned that

“diminishment of the jury’s significance by removing control

over facts determining a statutory sentencing range” would

violate the Sixth Amendment. 526 U.S. at 248, 119 S.Ct. at

1226. Apprendi, a case involving the charge of unlawful

possession of a firearm, presented the question of whether

proof of a so-called hate crime motive was a sentencing factor

or an element of the crime. 530 U.S. at 471, 120 S.Ct. at

2352. In Apprendi, the majority held, “Other than the fact of

a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.”

Id. at 490, 120 S.Ct. at 2362-63. The majority, citing Walton,

went on to reject the argument that Apprendi might

jeopardize a capital sentencing scheme like Arizona’s by

describing such a scheme as a system that merely “requir(es]

judges, after a jury verdict holding a defendant guilty of a

capital crime, to find specific aggravating factors before

imposing a sentence of death,” and not as a system that

“permits a judge to determine the existence of a factor which

makes a crime a capital offense.” Jd. at 496-97, 120 S.Ct. at

2366 (internal citation omitted). In dissent, Justice O’ Connor

challenged the majority’s rationale as follows:

25a

Appendix A

The distinction of Walton offered by the Court

today is baffling, to say the least. The key to that

distinction is the Court’s claim that, in Arizona,

the jury makes all of the findings necessary to

expose the defendant to a death sentence. As

explained above, that claim is demonstrably

untrue. A defendant convicted of first-degree

murder in Arizona cannot receive a death sentence

unless a judge makes the factual determination

that a statutory aggravating factor exists. Without

that critical finding, the maximum sentence to

which the defendant is exposed is life

imprisonment, and not the death penalty. ... . If

the Court does not intend to overrule Walton, one

would be hard pressed to tell from the opinion it

issues today.

Id. at 538, 120 S.Ct. at 2388 (citations and internal quotations

omitted).

942 In Arizona, a defendant cannot be put to death solely

on the basis of a jury’s verdict, regardless of the jury’s factual

findings. The range of punishment allowed by law on the

basis of the verdict alone is life imprisonment with the

possibility of parole or imprisonment for “natural life”

without the possibility of release. A.R.S. § 13-703.A-E. It is

only after a subsequent adversarial sentencing hearing, at

which the judge alone acts as the finder of the necessary

statutory factual elements, that a defendant may be sentenced

to death. A.R.S. § 13-703.B (“The hearing shall be conducted

before the court alone. The court alone shall make all factual

determinations required by this section or the constitution

26a

Appendix A

of the United States or this state.”). And even then a death

sentence may not legally be imposed by the trial judge unless

at least one aggravating factor is found to exist beyond a

reasonable doubt. State v. Gretzler, 135 Ariz. 42, 54, 659

P.2d 1, 13 (1983); see also A.R.S. § 13-703.E (“the court

.. . Shall impose a sentence of death if the court finds one or

more of the aggravating circumstances enumerated”). Thus,

when the state seeks the death penalty, a separate evidentiary

hearing, without a jury, must be held; the death sentence

becomes possible only after the trial judge makes a factual

finding that at least one aggravating factor is present. The

judge makes that finding on the basis of the evidence

presented at trial and any other evidence presented at the

aggravation/mitigation hearing. A.R.S. § 13-703.C. If the

judge finds an aggravating circumstance, he must then

proceed to determine if there are any mitigating

circumstances. A.R.S. § 13-703.E. If the judge finds

mitigating circumstances, he must then weigh them against

the aggravators and decide by “special verdict” whether a

death sentence is appropriate. A.R.S. § 13-703.D & E.

943 Therefore, the present case is precisely as described in

Justice O’Connor’s dissent — Defendant’s death sentence

required the judge’s factual findings. Specifically, the trial

judge in this case made the necessary factual finding to

support the aggravating circumstance that the killing was

heinous and depraved. See A.R.S. § 13-703.F.6. That finding

was based solely on Greenham’s testimony at the separate

sentencing hearing and was never heard by the jury.

944 We recognize that the United States Supreme

Court has explicitly refrained from overruling Walton.

27a

Appendix A

See, e.g., Apprendi, 530 U.S. at 496, 120 S.Ct. at 2366

(“[T]his 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.”’) (citing Walton, 497 U.S. at

647-49, 110 S.Ct. at 3054-55); Jones, 526 U.S. at 250, 119

S.Ct. at 1228. Although Defendant argues that Walton cannot

stand after Apprendi, we are bound by the Supremacy Clause

in such matters. Thus, we must conclude that Walton is still

the controlling authority and that the Arizona death-penalty

scheme has not been held unconstitutional under either

Apprendi or Jones. Putting aside Defendant’s constitutional

challenge to Arizona’s death penalty scheme, we turn to the

other sentencing issues he raises.

2. Actual killer/Enmund-Tison finding

{45 Defendant claims that the trial judge erred in finding

that Defendant killed Magoch because the “sole proof”

supporting such a finding was the testimony of Greenham, a

person who lacked credibility. For the same reasons,

Defendant also claims that insufficient evidence existed to

support the trial judge’s Enmund/Tison finding. See Enmund

v. Florida, 458 U.S. 782, 102 S.Ct. 3368 (1982); Tison v.

Arizona, 481 U.S. 137, 107 S.Ct. 1676 (1987).

146 Only six of the twelve jurors found Defendant guilty of

premeditated murder. However, the jury unanimously found

Defendant guilty of felony murder. Because Defendant was

convicted of only felony murder, we must ascertain whether

28a

Appendix A

he is death eligible. In Enmund, the United States Supreme

Court held that a felony murder defendant could receive the

death penalty only if he actually killed, attempted to kill, or

intended to kill. 458 U.S. at 797, 102 S.Ct. at 3376. The

Court’s subsequent decision in Jison expanded this rule,

allowing capital punishment when the defendant was a major

participant in the underlying felony and acted with reckless

indifference to human life. 481 U.S. at 157-58, 107 S.Ct. at

1688.

447 In his special verdict, the trial judge here found that:

the Defendant is the one who killed Mr. Magoch.

The evidence also clearly established beyond a

reasonable doubt that the Defendant was a major

participant in the armed robbery of Mr. Magoch

that resulted in him being killed and that the

Defendant’s conduct exhibited a reckless

disregard for human life.

Special Verdict, at 2.

448 Without 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. The presence of $270,000 in Defendant’s

garage, scraps of paper written by Defendant regarding other

armored car routes and “splits” of money, and intercepted

phone calls between Defendant, Ferguson, and Greenham

only proved that Defendant helped plan the robbery. None

of it, however, linked Defendant to the act of killing Magoch.

29a

Appendix A

In addition, although there was evidence that Defendant's

truck may have been used in the robbery, no trial evidence

ever placed Defendant at the scene. A rifle with an attached

homemade silencer was recovered from Defendant’s garage;

yet that weapon was never conclusively connected to the

murder. Although the trial evidence established Defendant’s

participation in planning the robbery and his further

participation in concealing the proceeds from the crime, it

provided almost nothing about why Magoch was killed or

who carried out the murder. There also was no evidence at

trial to establish even reckless indifference. For all we know

from the trial evidence, Defendant did not participate in, plan,

or even expect the killing. This lack of evidence no doubt

explains why the jury found Defendant guilty of felony, but

not premeditated, murder.

49 When imposing sentence in a capital case, the trial judge

does not rely exclusively on the evidence admitted at trial

but also takes into consideration the evidence presented at

the sentencing hearing. A.R.S. § 13-703.E. Given Greenham’s

testimony that he, Ferguson, and Defendant “planned on

robbing an armored car,” that Defendant had “taken the role

as leader,” and Defendant “shot Mr. Magoch,” the trial

judge’s finding is supported. R.T., October 19, 1997,

at 38-40.

3. Aggravating factors

a. Heinousness and depravity

450 Defendant challenges the trial judge’s finding of the

aggravating circumstance that Defendant murdered Magoch

30a

Appendix A

in a heinous or depraved manner. A.R.S. § 13-703.F.6. At

the sentencing hearing Greenham stated that when he,

Defendant, and Ferguson met the day after the robbery to

count the stolen money, the three were in a “pretty happy

mood” because they “had all the money.” R.T., October 9,

1997, at 59. In addition, although Greenham said he was

“distraught because Mr. Magoch was dead,” he testified that

Defendant stated in an “offhand” manner, “you guys are

forgetting something .. . you’re forgetting to congratulate

me on my shot.” It is exclusively from this testimony that

the trial judge based his finding that Defendant “did not

appreciate the seriousness of his conduct,” “took great liking

or enjoyment in his actions,” displayed “an abhorrent lack

of regard for human life,” and “seemed to savor or enjoy the

murder.” Special Verdict, at 4. In short, the judge believed

Defendant “relished” the murder. Although the judge noted

that he was “mindful in determining the facts as to this

statutory aggravating circumstance” that Greenham’s

“credibility as a witness is an issue” and that Greenham’s

“statement is uncorroborated,” he nonetheless “resolve([d]

that Mr. Greenham is credible.” /d. at 3. Relishing a victim’s

death is one of the enumerated Gretzler factors that will

support a finding of heinousness or depravity. 135 Ariz. at

52, 659 P.2d at 11.

951 Defendant argues that uncorroborated testimony from

an accomplice that he celebrated is insufficient evidence to

support a finding of relishing. See Siate v. Smith, 138 Ariz.

79, 86, 673 P.2d 17, 24 (1983). Even assuming Greenham’s

testimony was credible, Defendant says the statements

attributed to him merely demonstrate that he is a callous

individual, indifferent to human life, who was impressed with

3la

Appendix A

his marksmanship. Defendant was a promising competitive

shooter, had extensive firearms training, and even assisted

as a firearms instructor for correctional officers. Therefore,

Defendant argues, his comment was merely an expression

of pride over his marksmanship.

452 The analysis of heinousness and depravity “focus[es]

on the defendant’s mental state and attitude as reflected by

his words and actions.” State v. Brewer, 170 Ariz. 486, 502,

826 P.2d 783, 799 (1992). In addition, post-murder behavior

is relevant when it provides evidence of the killer’s state of

mind at the time of the offense. State v. Greene, 192 Ariz.

431, 440 ¥ 39, 967 P.2d 106, 115 4 39 (1998). Although a

perpetrator’s cold and deliberate actions may establish the

requisite intent for the crime of first-degree murder, they do

not demonstrate heinousness or depravity and are of no

consequence in making the sentencing decision. State v.

Smith, 146 Ariz. 491, 504, 707 P.2d 289, 302 (1985).

Statements suggesting indifference constitute relishing only

when they indicate that the killer savored or enjoyed the

murder. Greene, 192 Ariz. at 440-41 4 39, 967 P.2d at

115-16 4 39.

953 Although Defendant’s statements reflect a calculated

plan to kill, satisfaction over the apparent success of his plan,

and an extreme callousness or lack of remorse after the

murder, the evidence does not support a finding that

Defendant actually relished the act of murdering Magoch.

Thus, the statements do not demonstrate that Defendant’s

state of mind during the time of the offense was heinous or

depraved.

32a

Appendix A

454 The state argues that because the armored car could have

been robbed without killing Magoch, the murder was

senseless and we can independently uphold the trial judge’s

finding of depravity and heinousness based on the

senselessness of the crime. The murder of a victim when it

was unnecessary to carry out the robbery may be senseless.

State v. Medina, 193 Ariz. 504, 514 4 39, 975 P.2d 94, 104

4 39 (1999). The state asserts that Defendant could have

seized the armored van without killing Magoch, whom the

state claims was standing outside the van. However, there

was no testimony offered at trial that supported this argument

except that Magoch, who was a smoker, had a tendency to

open the van’s driver-side door for ventilation while he

smoked because the windows in the van did not roll down.

Indeed, no trial testimony substantiated the state’s theory

that this was the situation at the time the armored van was

taken. In contrast, Greenham testified at the sentencing

hearing that, on the day of the robbery, Magoch had “opened

his door about six to eight inches” to smoke a cigarette. R.T.,

October 9, 1997, at 45. According to Greenham, Magoch

was turned sideways in his seat with the van door slightly

open, only his head was outside of the van, and his feet were

resting on “the little van ledge.” Jd. at 78. In such

circumstances, it is possible the perpetrators believed that,

absent a potentially protracted and boisterous struggle,

successfully subduing Magoch or gaining access to the

vehicle was improbable without killing him first. While none

of these grisly speculations justify or mitigate the crime, they

do illustrate that the entire inquiry is pointless. Any murder

is senseless in its brutality and finality. Yet not all murders

are senseless as this term is used to distinguish those first-

degree murders that deserve a death sentence and those that

33a

Appendix A

do not. We classify the senselessness of Magoch’s death in

this case as one of the latter.

455 Finally, senselessness alone cannot support a heinous/

depraved finding. State v. Lee, 189 Ariz. 590, 605-06, 944

P.2d 1204, 1219-20 (1997). Indeed, in previous robbery cases

in which we have upheld a death sentence based on

senselessness, senselessness has been present as a

makeweight in combination with other aspects of

heinousness and depravity. See, e.g., Medina, 193 Ariz. at

5144 41, 975 P.2d at 104 4 41 (relishing, gratuitous violence,

and helplessness); State v. Hyde, 186 Ariz. 252, 282, 921

P.2d 655, 685 (1996) (helplessness and gratuitous violence);

State v. Jackson, 186 Ariz. 20, 30, 918 P.2d 1038, 1048

(1996) (helplessness and relishing); State v. Runningeagle,

176 Ariz. 59, 65, 859 P.2d 169, 175 (1993) (helplessness

and relishing); State v. Spencer, 176 Ariz. 36, 43, 859 P.2d

146, 153 (1993) (needless mutilation of victim); State v.

Comer, 165 Ariz. 413, 429, 799 P.2d 333, 349 (1990)

(relishing, gratuitous violence, and helplessness); State v.

Correll, 148 Ariz. 468, 481, 715 P.2d 721, 734 (1986)

(gratuitous violence and helplessness).

156 We conclude that the evidence in this case does not

support a finding of depravity or heinousness beyond a

reasonable doubt. Therefore, the trial judge’s finding of the

heinous and depraved factor is disapproved.

b. Pecuniary gain

457 To prove pecuniary gain as an aggravating factor the

state must demonstrate that the motivation for the murder

34a

Appendix A

was the expectation of financial gain. State v. Trostle, 191

Ariz. 4, 17-18, 951 P.2d 869, 882-83 (1997). Here, killing

Magoch was for no other comprehensible reason than to

facilitate the robbery. When making his finding in the special

verdict, the trial judge stated:

The evidence clearly shows beyond a reasonable

doubt that Mr. Magoch was killed in order to

obtain the approximately one-half million dollars

in cash in the armored car. Taking the cash from

the armored car was the motive and reason for

Mr. Magoch’s murder and not just the result.

Special Verdict, at 3. Under the facts of this case, including

Greenham’s testimony, the trial judge’s finding is “clearly

warranted.” Cf. State v. Poland, 144 Ariz. 388, 406, 698 P.2d

183, 201 (1985). Therefore, the trial judge’s application of

the pecuniary gain aggravating factor is supported.

458 Defendant claims, in both his brief and again at oral

argument, that A.R.S. § 13-703.F 4 and 5 make the buying

and selling of murder an aggravating factor and that one

should not be put to death for the “common sin of greed.”

Arguably, there once was “considerable disagreement” as

to the meaning of subsection F.5. Greene, 192 Ariz. at 445

q 69 n.1, 967 P.2d at 120 4 69 n.1 (Zlaket, C.J., dissenting).

However, this court has long interpreted F.5 to include any

murder in which pecuniary gain was a motive, cause, or impetus

and not merely the result of the killing. State v. Kayer, 194

Ariz. 423, 433 4 32, 984 P.2d 31, 41 4 32 (1999). In addition,

we do not consider the planned robbery and murder of an

armored car driver to be simply a result of the “common sin

of greed.” Defendant’s argument is without merit.

35a

Appendix A

4. Mitigating factors

a. Lack of prior criminal history

459 In his special verdict, the trial judge did not find the

presence of any statutory mitigating circumstances and

determined that only one unenumerated mitigating

circumstance existed: Defendant’s minimal criminal record.

Apparently, neither Defendant nor his attorney presented

much mitigating evidence to the court because, as

Defendant’s attorney explained during the sentencing

hearing, it was believed that:

The sole issue in this case is going to be for the

Court to determine whether or not the State has

proven [Defendant’s] participation and the extent

of that participation beyond a reasonable doubt;

i.e., did he or did he not personally kill John

Magoch in this case.

R.T., October 20, 1997, at 7. Addressing this issue in his

special verdict, the trial judge noted:

This Court rejects that the Defendant has proved

by a preponderance of the evidence that Mr.

Greenham, and not the Defendant, was the shooter

or that the Defendant was not at the scene of the

robbery/murder regardless of who else may have

been present and shot Mr. Magoch.

Special Verdict, at 5.

36a

Appendix A

460 On appeal, Defendant argues that the judge failed to

give sufficient weight to Defendant’s minimal criminal

record, especially in light of Defendant’s previous work as

a bounty hunter, police and correctional officer, and

confidential informant. Although Defendant does not have

any prior felony convictions, he does have two prior

misdemeanor convictions for carrying a concealed weapon

and impersonating a public servant arising out of a bounty-

hunting incident in 1993. In addition, Defendant’s

employment as a police officer was less than exemplary. The

chief of the police department at which Defendant was

employed for approximately a year stated that Defendant was

fired for insubordination when he refused to respond to a

homicide scene in favor of engaging in a high-speed chase.

As for Defendant’s experiences as a correctional officer,

bounty hunter, and confidential informant, it is difficult to

imagine how these jobs serve as mitigating circumstances.

Instead, because Defendant abused his law-enforcement

experience and contacts before and after the crimes — to

plan and execute the murder, as well as to attempt to avoid

capture — these facts, even if mitigating, are entitled to

minimal weight.

b. Other possible mitigation evidence

461 Because Defendant claims to have not participated in

the crime at all, the statutory mitigating circumstance of

minor participation is inapplicable. A.R.S. § 13-703.G.3.

Nevertheless, the evidence would not support such a finding.

Although Defendant continues to insist on his complete

innocence, when a defendant is found guilty beyond a

reasonable doubt, unsupported and unfounded claims of

37a

Appendix A

actual innocence do not constitute mitigation for sentencing

purposes. State v. Amaya-Ruiz, 166 Ariz. 152, 179, 800 P.2d

1260, 1287 (1990). Even if residual doubt is a mitigating

circumstance, on this record we are left with no residual

doubt about Defendant’s guilt. In addition, no other evidence

exists in the record to merit leniency.

5. Independent reweighing

$62 We have determined that the trial judge incorrectly

found the aggravating factor of heinousness and depravity.

See supra 4 56. When the trial judge errs in aggravation or

mitigation findings, remand is generally not appropriate

unless the judge wrongly excluded evidence or the record

does not adequately reflect all of the relevant facts. A.R.S.

§ 13-703.01.C. Neither situation is present here. In his special

verdict, the trial judge added the following:

The Court specifically notes that had the State

proved beyond a reasonable doubt only [the]

statutory aggravating circumstance [of pecuniary

gain] that there remains still no mitigating

circumstances sufficiently substantial to call for

leniency. This was a cold-blooded, very calculated

and preineditated murder to facilitate the robbery

of thousands and thousands of dollars. The

evidence is overwhelming that the Defendant was

a principal, chief participant in the whole scheme.

Special Verdict, at 5-6.

163 We have previously upheld the death penalty in a case

in which pecuniary gain was the only aggravating

38a

Appendix A

circumstance. See State v. Hensley, 142 Ariz. 598, 603-04,

691 P.2d 689, 694-95 (1984) (defendant was sentenced to

death after shooting three people in the course of robbing a

bar; only mitigating circumstance was that defendant had

obtained a G.E.D.). After our independent review, we

conclude that even crediting Defendant’s minimal criminal!

record, the mitigating evidence is not sufficient to call for

leniency in light of the facts of this case. This murder was

not the result of sudden impulse or loss of control nor a

robbery gone bad but a planned, ruthless robbery and killing.

C. Alleged constitutional defects raised to avoid

preclusion

464 Defendant brings numerous constitutional challenges

to Arizona’s death penalty scheme to avoid potential

procedural default and preserve review. We have previously

addressed the challenges as follows:

Requirement that mitigating circumstances be

proven by a preponderance of the evidence

improperly precludes certain mitigating facts,

rejected in State v. White, 194 Ariz. 344, 355

q 49, 982 P.2d 819, 830 ¢ 49 (1999).

Arizona’s death penalty statute is unconstitutional

on its face and as applied, rejected in id.; State v.

Schackart, 190 Ariz. 238, 260, 947 P.2d 315, 337

(1997); but see supra Fj 40-44.

Arizona’s death penalty statute is unconstitutional

because it requires death when, in the absence of

39a

Appendix A

any mitigating circumstances, only one

aggravating circumstance is found, rejected in

State v. Van Adams, 194 Ariz. 408, 422 9 55, 984

P.2d 16, 30 4 55 (1999).

Arizona's death penalty statute is unconstitutional

because defendants do not have an opportunity

to death qualify the sentencing judge, rejected in

White, 194 Ariz. at 355 4 49, 982 P.2d at 830

4 49.

Arizona’s death penalty statute fails to provide

proper guidance to the sentencing judge, rejected

in Van Adams, 194 Ariz. at 422 9 55, 984 P.2d at

30 4 5S.

Arizona’s death penalty statute is unconstitutional

as it requires a defendant to prove that his life

should be spared, rejected in id. at 423 4 55, 984

P.2d at 31 4 55.

Arizona’s death penalty statute is unconstitutional

as it fails to sufficiently channel the sentencing

judge’s discretion, rejected in id.

Arizona’s death penalty statute is unconstitutional

because it fails to require the state to prove that a

sentence of death is appropriate, rejected in id.

The lack of proportionality review is a due process

violation, rejected in id.

40a

Appendix A

Arizona’s death penalty statute is unconstitutional

because it does not require the sentencing judge

to find that aggravating circumstances outweigh

mitigating circumstances beyond a reasonable

doubt, rejected in White, 194 Ariz. at 355 4 49,

982 P.2d at 830 ¥ 49.

Arizona’s death penalty statute is unconstitutional

because it fails to provide a defendant the means

to voir dire the sentencing judge, rejected in

id. at 356 J 49, 982 P.2d at 831 4 49.

CONCLUSION

965 For the foregoing reasons, we affirm Defendant's

convictions and sentences.

STANLEY G. FELDMAN, Justice

CONCURRING:

THOMAS A. ZLAKET, Chief Justice

CHARLES E. JONES, Vice Chief Justice

RUTH V. McGREGOR, Justice

4la

Appendix A

MARTONE, Justice, concurring in the judgment.

466 While I join the court in affirming the convictions and

sentences, I write separately to explain why I do not join

part B(1) and paragraph 48 of part B(2) of the court’s opinion.

I.

167 In part B(1), the court says “we must acknowledge that

both cases [Jones and Apprendi] 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.” /d. 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 (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.” /d., 120 S.Ct.

at 2366 (citation omitted).

768 The majority seizes upon language in the Apprendi

dissent to question Walton. But the dissent in Apprendi was

42a

Appendix A

not a challenge to Walton. Instead, it was a challenge to the

majority holding in Apprendi. The Apprendi dissent

acknowledged that the Apprendi 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(C)

“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.

"469 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 (1990).'

1. The Court explained in Walton:

Walton also suggests that in Florida aggravating

factors are only sentencing “considerations” while in

(Cont'd)

43a

Appendix A

(Cont'd)

Arizona they are “elements of the offense.” But as we

observed in Poland v. Arizona, 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

Anzona’'s capital sentencing scheme, the judge's finding

of any particular aggravating circumstance does not of

itself ‘convict’ a defendant (i.¢., 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

p ‘ved 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 1s required to denomuinate aggravating

circumstances “elements” of the offense or permit only a

jury to determine the existence of such circumstances.

We thus conclude that the Anzona capital sentencing

scheme does not violate the Sixth Amendment.

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

44a

Appendix A

Il.

970 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

“{w]ithout 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 Apprendi 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.

FREDERICK J. MARTONE, Justice

45a

APPENDIX B — SPECIAL VERDICT (COUNT I) OF

THE SUPERIOR COURT OF THE STATE OF

ARIZONA IN AND FOR THE COUNTY OF MARICOPA

DATED AND FILED OCTOBER 239, 1997

IN THE SUPERIOR COURT OF THE

STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

No. CR 95-01754

STATE OF ARIZONA,

Plaintiff,

vs.

TIMOTHY STUART RING

Defendant.

SPECIAL VERDICT

(Count I)

Based upon the evidence adduced at the trial and the

sentencing hearing and a review of the presentence report

and the Court’s file this Court now renders this Special

Verdict as to Count I, Murder in the First Degree.

The Defendant was found guilty of Count I, Murder in

the First Degree, by a jury on December 6, 1996. The victim

was John Magoch.

46a

Appendix B

This Court conducted an aggravation/mitigation

sentencing hearing pursuant to ARS Section 13-703(B) on

October 9 and 20, 1997. Both the State and the Defendant

were given the opportunity to present evidence and argument

concerning the existence or nonexistence of the aggravating

and mitigating circumstances included in ARS Sections

13-703(F) and (G); and both parties were given the

opportunity to present any other relevant mitigating

circumstances not specifically included in subsection (G) for

the Court’s consideration.

All the material in the presentence report has been

disclosed to the Defendant’s attorney and to the prosecution.

ENMUND.-TISON FINDINGS

The State charged the Defendant in Count I with Murder

in the First Degree alleging that the Defendant knowing that

his conduct would cause death, with premeditation, caused

the death of Mr. Magoch. The State also alleged,

alternatively, that the Defendant acting either alone or with

one or more other persons committed or attempted to commit

the crime of armed robbery and in the course of and in

furtherance of this crime or immediate flight from this crime

the Defendant or another person caused the death of Mr.

Magoch. All twelve members of the jury voted the Defendant

guilty of felony murder. Six members also voted the

Defendant guilty of premeditated murder. .

For the Court to impose a death sentence in this case the

Court must first find beyond a reasonable doubt that the

Defendant was the killer, or that the Defendant intended to

47a

Appendix B

kill or attempted to kill, or that the Defendant was a major

participant in the armed robbery that led to the killing and

exhibited a reckless disregard or indifference for human life.

The Court finds beyond a reasonable doubt based upon

the evidence adduced at trial and at the aggravation/

mitigation sentencing hearing that the Defendant is the one

who killed Mr. Magoch. The evidence also clearly establishes

beyond a reasonable doubt that the Defendant was a major

participant in the armed robbery of Mr. Magoch that resulted

in him being killed and that the Defendant’s conduct

exhibited a reckless disregard for human life.

The facts as established by the evidence are that the

Defendant was the mastermind of this criminal scheme —

the person who planned and directed the robbery and shot

Mr. Magoch. Many thousands of dollars in cash was taken

from the armored car which Mr. Magoch drove. Approximately

$270,000 in cash was found in the Defendant’s garage.

Written paper evidence in the Defendant’s handwriting was

found which included the “splits” note and index cards with

addresses, times, and other armored car numbers written on

them. The wiretap conversations also disclose that the

Defendant was involved in the robbery. Mr. Greenham, a

co-defendant, has testified at the aggravation/mitigation

sentencing hearing that the Defendant is the one who shot

and killed Mr. Magoch. Finally, the Court agrees with the

State that the crime of armed robbery, and especially this

armed robbery, is unquestionably a crime which carries with

it a grave risk of death. -

48a

Appendix B

Accordingly, this Court concludes that the death penalty

remains at this point in the analysis a legal sentence for the

Court to impose on Count !.

AGGRAVATION-STATUTORY

(1) The Court finds that the State has not proved the

existence of statutory aggravating circumstance (F)(1), that

is, that the Defendant has been convicted of another offense

in the United States for which under Arizona law a sentence

of life imprisonment or death was imposable.

(2) The Court finds that the State has not proved the

existence of statutory aggravating circumstance (F)(2), that

is, that the Defendant was previously convicted of a serious

offense, whether preparatory or completed.

(3) The Court finds that the state has not proved the

existence of statutory aggravating circumstance (F)(3), that

is, that in the commission of the offense the Defendant

knowingly created a grave risk of death to another person or

persons in addition to the victim of the offense.

(4) The Court finds that the State has not proved the

existence of statutory aggravating circumstance (F)(4), that

is, that the Defendant procured the commission of the offense

by payment, or promise of payment, of anything of pecuniary

value.

(5) As to statutory aggravating circumstance (F)(5), the

Court finds beyond a reasonable doubt that the Defendant

committed the offense in expectation of the receipt of

anything of pecuniary value.

49a

Appendix B

The evidence clearly shows beyond a reasonable doubt

that Mr. Magoch was killed in order to obtain the approximately

one-half million dollars in cash in the armored car. Taking

the cash from the armored car was the motive and reason for

Mr. Magoch’s murder and not just the result.

(6) As to statutory aggravating circumstance (F)(6), the

Court finds beyond a reasonable doubt that the Defendant

committed the offense in an especially heinous, cruel or

depraved manner.

For purposes of the application of this aggravating

circumstance Arizona law provides that “cruelty” is the pain

and suffering of the victim experienced prior to death,

including mental distress. The terms “heinous” and

“depraved” focus upon a defendant’s state of mind at the

time of the offense. The statute is phrased in the disjunctive

and if any one of the three factors is found the circumstance

is satisfied.

When determining whether a crime is especially heinous

or depraved within the meaning of this statutory aggravating

circumstance considerations include whether the perpetrator

relished the murder. At the aggravation/mitigation sentencing

hearing Mr. Greenham testified that the Defendant, while

they were counting ihe loot taken from the robbery of Mr.

Magoch, said to his confederates “you guys are forgetting

something — you’re forgetting to congratulate me on my

shot”. All the evidence shows beyond a reasonable doubt

that this Defendant did not appreciate the seriousness of his

conduct in shooting Mr. Magoch and by his statement in the

presence of Mr. Greenham, in fact, took great liking or

50a

Appendix B

enjoyment in his actions. The Court is mindful in determining

the facts as to this statutory aggravating circumstance as well

as in making its Enmund-Tison findings that Mr. Greenham’s

credibility as a witness is an issue and that Mr. Greenham’s

testimony regarding the statement is uncorroborated. The

Court has had occasion to observe Mr. Greenham while

testifying and accordingly to assess his believability

concerning whether the Defendant in fact made the statement

attributed to him above. The Court has considered Mr.

Greenham’s demeanor while testifying along with all the

other evidence in the case and resolves that Mr. Greenham

is credible regarding the Defendant being the shooter and

the Defendant’s statement. The statement — “you guys are

forgetting something — you’re forgetting to congratulate me

on my shot” — shows an abhorrent lack of regard for human

life and that the Defendant seemed to savor or enjoy the

murder of Mr. Magoch.

(7) The Court finds that the State has not proved the

existence of aggravating circumstance (F)(7), that is, that

the Defendant committed the offense while in the custody

of or on authorized or unauthorized release from the state

department of corrections, a law enforcement agency or a

county or city jail.

(8) The Court finds that the State has not proved the

existence of aggravating circumstance (F)(8), that is, that

the Defendant has been convicted of one or more other

homicides as defined in ARS Sec. 13-1101, which were

committed during the commission of the offense.

Sla

Appendix B

(9) The Court finds that the State has not proved the

existence of aggravating circumstance (F)(9), that is, that

the Defendant was an adult at the time the offense was

committed or was tried as an adult and the victim was under

fifteen years of age or was seventy years of age or older.

(10) The Court finds that the State has not proved the

existence of statutory aggravating circumstance (F)(10), that

is, that the murdered individual was an on duty peace officer

who was killed in the course of performing his official duties

and the Defendant knew, or should have known, that the

victim was a peace officer.

MITIGATION-STATUTORY

(1) The Court finds that statutory mitigating

circumstance (G)(1), that is, that the Defendant’s capacity

to appreciate the wrongfulness of his conduct or to conform

his conduct to the requirements of law was significantly

impaired, but not so impaired as to constitute a defense to

prosecution has not been proved by a preponderance of the

evidence and does not exist.

(2) The Court finds that statutory mitigating

circumstance (G)(2), that is, that the Defendant was under

unusual and substantial duress, although not such as to

constitute a defense to prosecution has not been proved by a

preponderance of the evidence and does not exist.

(3) The Court finds that statutory mitigating

circumstance (G)(3), that is, that the Defendant was legally

accountable for the conduct of another under the provisions

52a

Appendix B

of ARS Section 13-303, but his participation was relatively

minor, although not so minor as to constitute a defense to

prosecution has not been proved by a preponderance of the

evidence and does not exist.

(4) The Court finds that statutory mitigating

circumstance (G)(4), that is, that the Defendant could not

reasonably have foreseen that his conduct in the course of

the commission of the offense for which the Defendant was

convicted would cause, or would create a grave risk of

causing, death to another person has not been proved by a

preponderance of the evidence and does not exist.

(5) The Court finds that statutory mitigating

circumstance (G)(5), that is, whether the Defendant’s age at

the time of the offense is a mitigating circumstance has not

been proved by a preponderance of the evidence and does

not exist.

MITIGATION-NONSTATUTORY

The Court finds that the Defendant’s minimal criminal

record is a nonstatutory mitigating circumstance.

Beyond that, the Defendant has not proven the existence

of any other nonstatutory mitigating circumstances by a

preponderance of the evidence and accordingly none exist.

This Court rejects that the Defendant has proved by a

preponderance of the evidence that Mr. Greenham, and not

the Defendant, was the shooter or that the Defendant was

not at the scene of the robbery/murder regardless of who

else may have been present and shot Mr. Magoch.

53a

Appendix B

The Court has now weighed the aggravating and

mitigating circumstances found to exist. This Court has

considered statutory aggravating circumstances (F)(5) and

(F)(6) which were proved beyond a reasonable doubt and

found to exist and concludes that there are no mitigating

circumstances sufficiently substantial to call for leniency.

The Court specifically notes that had the State proved beyond

a reasonable doubt only statutory aggravating circumstance

(F)(S) that there remains still no mitigating circumstances

sufficiently substantial to call for leniency. This was a

cold-blooded, very calculated and premeditated murder to

facilitate the robbery of thousands and thousands of dollars.

The evidence is overwhelming that the Defendant was a

principal, chief participant in the whole scheme.

Accordingly, as to Count I, Murder in the First Degree,

it is the judgment and sentence of the court that the defendant,

Timothy Stuart Ring, be sentenced to death in the manner

set forth in ARS Sec. 13-704.

Dated this 29th day of October, 1997.

s/ Gregory H. Martin

The Hon. Gregory H. Martin

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APPENDIX C — RELEVANT STATUTES

A.R.S. § 13-703

§ 13-703. Sentence of death or life imprisonment;

aggravating and mitigating circumstances;

definitions

A. A person guilty of first degree murder as defined in

§ 13-1105 shall suffer death or imprisonment in the custody

of the state department of corrections for life as determined

and in accordance with the procedures provided in

subsections B through G of this section. If the court imposes

a life sentence, the court may order that the defendant not be

released on any basis for the remainder of the defendant’s

natural life. An order sentencing the defendant to natural

life is not subject to commutation or parole, work furlough

or work release. If the court does not sentence the defendant

to natural life, the defendant shall not be released on any

basis until the completion of the service of twenty-five

calendar years if the victim was fifteen or more years of age

and thirty-five years if the victim was under fifteen years of

age.

B. When a defendant is found guilty of or pleads guilty

to first degree murder as defined in § 13-1105, the judge

who presided at the trial or before whom the guilty plea was

entered, or any other judge in the event of the death,

resignation, incapacity or disqualification of the judge who

presided at the trial or before whom the guilty plea was

entered, shall conduct a separate sentencing hearing to

determine the existence or nonexistence of the circumstances

included in subsections F and G of this section, for the

purpose of determining the sentence to be imposed.

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Appendix C

The hearing shall be conducted before the court alone. The

court alone shall make all factual determinations required

by this section or the constitution of the United States or

this state.

C. In the sentencing hearing the court shall disclose to

the defendant or defendant’s counsel all material contained

in any presentence report, if one has been prepared, except

such material as the court determines is required to be

withheld for the protection of human life. A victim may

submit a written victim impact statement, an audio or video

tape statement or make an oral impact statement to the

probation officer preparing the presentenice report for the

probation officer’s use in preparing the presentence report.

The probation officer shall consider and include in the

presentence report the victim impact information regarding

the murdered person and the economical, physical and

psychological impact of the murder on the victim and other

family members. Any presentence information withheld from

the defendant shall not be considered in determining the

existence or nonexistence of the circumstances included in

subsection F or G of this section. Any information relevant

to any mitigating circumstances included in subsection G of

this section may be presented by either the prosecution or

the defendant, regardless of its admissibility under the rules

governing admission of evidence at criminal trials, but the

admissibility of information relevant to any of the

aggravating circumstances set forth in subsection F of this

section shall be governed by the rules of evidence at criminal

trials. Evidence admitted at the trial, relating to such

aggravating or mitigating circumstances, shall be considered

without reintroducing it at the sentencing proceeding.

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Appendix C

The victim has the right to be present and to testify at the

hearing. The victim may present information about the

murdered person and the impact of the murder on the victim

and other family members. The prosecution and the defendant

shall be permitted to rebut any information received at the

hearing and shall be given fair opportunity to present

argument as to the adequacy of the information to establish

the existence of any of the circumstances included in

subsections F and G of this section. The burden of

establishing the existence of any of the circumstances set

forth in subsection F of this section is on the prosecution.

The burden of establishing the existence of the circumstances

included in subsection G of this section is on the defendant.

D. The court shall return a special verdict setting forth

its findings as to the existence or nonexistence of each of

the circumstances set forth in subsection F of this section

and as to the existence of any of the circumstances included

in subsection G of this section. In evaluating the mitigating

circumstances, the court shall consider any information

presented by the victim regarding the murdered person and

the impact of the murder on the victim and other family

members. The court shall not consider any recommendation

made by the victim regarding the sentence to be imposed.

E. In determining whether to impose a sentence of death

or life imprisonment, the court shall take into account the

aggravating and mitigating circumstances included in

subsections F and G of this section and shall impose a

sentence of death if the court finds ofie or more of the

aggravating circumstances enumerated in subsection F of this

section and that there are no mitigating circumstances

sufficiently substantial to call for leniency.

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Appendix C

F. the court shall consider the following aggravating

circumstances:

1. The defendant has been convicted of another offense

in the United States for which under Arizona law a sentence

of life imprisonment or death was imposable.

2. The defendant was previously convicted of a serious

offense, whether preparatoiy or completed.

3. In the commission of the offense the defendant

knowingly created a grave risk of death to another person or

persons in addition to the person murdered during the

commission of the offense.

4. The defendant procured the commission of the

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

pecuniary value.

5. The defendant committed the offense as consideration

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

of pecuniary value.

6. The defendant committed the offense in an especially

heinous, cruel or depraved manner.

7. The defendant committed the offense while in the

custody of or on authorized or unauthorized release from

the state department of corrections, a law enforcement agency

or a county or city jail.

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Appendix C

8. The defendant has been convicted of one or more

other homicides, as defined in § 13-1101, which were

committed during the commission of the offense.

9. The defendant was an adult at the time the offense

was committed or was tried as an adult and the murdered

person was under fifteen years of age or was seventy years

of age or older.

10. The murdered person was an on duty peace officer

who was killed in the course of performing his official duties

and the defendant knew, or should have known, that the

murdered person was a peace officer.

G. The court shall consider as mitigating circumstances

any factors proffered by the defendant or the state which are

relevant in determining whether to impose a sentence less

than death, including any aspect of the defendant’s character,

propensities or record and any of the circumstances of the

offense, including but not limited to the following:

1. The defendant’s capacity to appreciate the

wrongfulness of his conduct or to conform his conduct to

the requirements of law was significantly impaired, but not

so impaired as to constitute a defense to prosecution.

2. The defendant was under unusual and substantia.

duress, although not such as to constitute a defense to

prosecution.

3. The defendant was legally accountable for the

conduct of another under the provisions of § 13-303, but his

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Appendix C

participation was relatively minor, although not so minor as

to constitute a defense to prosecution.

4. The defendant could not reasonably have foreseen

that his conduct in the course of the commission of the

offense for which the defendant was convicted would cause,

or would create a grave risk of causing, death to another

person.

5. The defendant’s age.

H. As used in this section:

1. “Serious offense” means any of the following

offenses if committed in this state or any offense committed

outside this state that if committed in this state would

constitute one of the following offenses:

(a) First degree murder.

(b) Second degree murder. —

(c) Manslaughter.

(d) Aggravated -assault resulting in serious physical

injury or committed by the use, threatened use or exhibition

of a deadly weapon or dangerous instrument.

(e) Sexual assault.

(f) Any dangerous crime against children.

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Appendix C

(g) Arson of an occupied structure.

(h) Robbery.

(i) Burglary in the first degree.

(j) Kidnapping.

(k) Sexual conduct with a minor under fifteen years of

age.

2. “Victim” means the murdered person’s spouse,

parent, child or other lawful representative, except if the

spouse, parent, child or other lawful representative is in

custody for an offense or is the accused.

A.R.S. § 13-1105

§ 13-1105. First degree murder; classification

A. A person commits first degree murder if:

1. Intending or knowing that the person’s conduct will

cause death, the person causes the death of another with

premeditation.

2. Acting either alone or with one or more other persons

the person commits or attempts to commit sexual conduct

with a minor under § 13-1405, sexual assault under

§ 13-1406, molestation of a child under § 13-1410, marijuana

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Appendix C

offenses under § 13-3405, subsection A, paragraph 4,

dangerous drug offenses under § 13- 3407, subsection A,

paragraphs 4 and 7, narcotics offenses under § 13-3408,

subsection A, paragraph 7 that equal or exceed the statutory

threshold amount for each offense or combination of

offenses, involving or using minors in drug offenses under

§ 13-3409, kidnapping under § 13-1304, burglary under

§ 13-1506, 13-1507 or 13-1508, arson under § 13-1703 or

13-1704, robbery under § 13-1902, 13-1903 or 13-1904,

escape under § 13-2503 or 13-2504, child abuse under

§ 13- 3623, subsection A, paragraph 1, or unlawful flight

- from a pursuing law enforcement vehicle under § 28-622.01

and in the course of and in furtherance of the offense or

immediate flight from the offense, the person or another

person causes the death of any person.

3. Intending or knowing that the person’s conduct will

cause death to a law enforcement officer, the person causes

the death of a law enforcement officer who is in the line of

duty.

B. Homicide, as prescribed in subsection A, paragraph 2

of this section, requires no specific mental state other than

what is required for the commission of any of the enumerated

felonies.

C. First degree murder is a class 1 felony and is

punishable by death or life imprisonment as provided by

§ 13-703.