Opposition Brief — Arizona v. Pandeli, AKA Florian

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No. 03-15

In The

SUPREME COURT OF THE UNITED STATES

October Term, 2002

STATE OF ARIZONA, Petitioner,

Vv.

DARREL PETER PANDELI, AKA DARREL PETER FLORIAN, Respondent.

Brief in Opposition to

Petition for a Writ of Certiorari to the

Supreme Court of Arizona

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

Julie S. Hall

Az. Bar No. 017252

9387 N. Painted Sky Dr.

Tucson, AZ 85743

(520) 744-8994

Counsel of Record for Petitioner

Pursuant to Rule 39, Rules of the Supreme Court, Respondent, Darrel Pandeli,

hereby moves for leave to proceed in forma pauperis in the above-captioned action on

the ground that he lacks sufficient funds to pay ‘or fees and expenses.

Respondent is incarcerated under sentence of death in the Arizona State Prison

in Florence, Arizona. Attached is Mr. Pandeli’s declaration regarding his financial

Status. Mr. Pandeli was found indigent by the Arizona state courts. He has previously

been found indigent by this Court. Pandeli v. Arizona, 536 U.S. 953, 122 S.Ct. 2654

(2002)(Mem). For these reasons, Respondent asks this Court grant this motion and

allow him to proceed in forma pauperis.

Secemloer

Respectfully submitted this iay of Jy, 2003.

Zn

Julie S. Hall

9887 N. Painted Sky Dr.

on, Arizona 85743

Attorney for Mr. Pandeli

DECLARATION

|, Darrel Peter Pandeli, swear under penalty of perjury that | am the Respondent

in the above-entitled cause, that in support of my motion to proceed without being

required to prepay fees, costs, or give security therefor, | state that because of my

poverty | am unable to pay the costs of said case or to give security therefor; and that |

believe | am entitled to redress.

| further swear:

1. That | am not currently employed, nor have | been employed since | was

incarcerated by the State of Arizona as a prisoner at the Arizona State Prison.

2. That within the last twelve months | have not received any income from

any business, profession or self-employment, nor do | receive any interest, dividends,

or other source of income.

2. That | have no checking or savings account and the only cash with which

| am possessed is that which is within my prison account, which is of a minimal amount.

4. That | do not own any real estate, nor do | own any stocks, bonds, notes,

automobiles, or other property of any value and | have no liquid assets whatsoever

except as set forth in the preceding paragraph.

5. That | have no one who is dependent upon me for support.

| understand that a false statement or answer to any of the questions in this

declaration will subject me to penalties for perjury.

truco Bnthe

Darrel Peter Pandeli

No. 03-15

In The

SUPREME COURT OF THE UNITED STATES

October Term, 2002

STATE OF ARIZONA, Petitioner,

Vv.

DARREL PETER PANDELI, AKA DARREL PETER FLORIAN, Respondent.

Brief in Opposition to

Petition for a Writ of Certiorari to the

Supreme Court of Arizona

Julie S. Hall

Arizona Bar No. 017252

9387 N. Painted Sky Dr.

Tucson, AZ 85743

(520) 744-8994

Counsel of Record for Petitioner

CAPITAL CASE

QUESTIONS PRESENTED FOR REVIEW

Respondent believes that, if certiorari were granted, this case would present the

following questions:

' Whether this Court has jurisdiction to review the Arizona Supreme Court's

state law based criminal procedure decision below.

a Whether the Arizona Supreme Court violates federal law by choosing to

order resentencings in capital cases in which constitutional error occurred at the

sentencing phase, an alternative left open to the States by this Court's decision in

Clemons v. Mississippi, 494 U.S. 738 (1990). —-

3. Whether a complete denial of the right to jury trial on sentence enhancing

factors, recognized by this Court's decision in Ring v. Anzona, 536 U.S. 584 (2002), is

structural error that cannot be held harmless.

4. Whether the right to a jury determination of sentence enhancement

factors recognized by this Court in Ring v. Anzona, 536 U.S. 584 (2002), extends to

eligibility factors that involve convictions for other criminal conduct.

5. Whether the right to a jury determination of sentence enhancement factors

recognized by this Court in Ring v. Anzona, 536 U.S. 584 (2002), applies to eligibility

factors that involve a balancing and qualitative assessment of aggravating

circumstances.

6. Whether judge only capital sentencing violates the Sixth, Eighth or

Fourteenth Amendments.

7. Whether resentencing is still required where the unconstitutional finding

of one aggravating factor was not, and could not be, deemed harmiess.

8. Whether the Eighth Amendment principles of Lockett v. Ohio, 438 U.S.

586 (1978), and Eddings v. Oklahoma, 455 U.S. 104 (1982), permit state courts to

disregard evidence of mitigating circumstances because they were arguably not shown,

by a preponderance of the evidence, to have caused the crime.

9. Whether, consistent with the Sixth, Eighth, and Fourteenth Amendments,

the Arizona Supreme Court could have reaffirmed petitioner's death sentence without

allowing the merits of his individual case to be argued or presented in any fashion.

TABLE OF CONTENTS

Gueetions Pepeeted ... «....-cccurcsccsedesnevecheweesestee0 bes eeueveyees i

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PTT eee 1

Constitutional Provisions and Statutes Involved ............... eee eee eee 1

Semmnrarlt CE Gre GOO jw nw cn ec ccc ccceunsssncsetsesseeusseunneeeeeeeee 1

Reseons for Denying We VR... . 6. cece cere csr essa rebereseseneens 10

TABLE OF AUTHORITIES

FEDERAL CASES

Almandarez-Torres v. United States, 523 U.S. 224 (1998) ......... 18, 19

Apprendi v. New Jersey, 530 U.S. 466 (2000) ...........0.0000. 18, 19

Arizona v. Evans, 514 U5. 1(1995) ... ce ccc cc ee cee eceuceeveees 13

Arizona v. Fulminante, 499 U.S. 279 (1991) oo... 2.0. cee cee eeueeee 17

Atkins v. Virginia, 536 U.S. 304 (2002) .........cc cee ceeeeeeeuees 21

Boyd v. French, 147 F.3d 319 (4th Cir. 1998)... 0.0... e cece eee. 27

eet Mane GUSTS. FIG CIMUTD osc s occ cvaccecossccnceeeas 24

Cabana v. Bullock, 474 U.S. 376 (1986)... .. cee ceeceeceeceueees 21

Chauffeurs, Teamsters and Helpers, Local No. 391 v. Terry, 494 U.S. 558 (1990) 34

Clemons v. Mississippi, 494 U.S. 738 (1990) ............-.2005- 12, 13,

15, 16

Coleman v. Thompson, 501 U.S. 722 (1991) 2... 0... 0... 2. eee eee ee 13

Eddings v. Oklahoma, 455 U.S. 104 (1982) .................... 24, 25,

26, 28,

29, 30

Enmund v. Florida, 458 U.S. 782 (1982) ......... 0... cee eee eee 21

ee aes MO Gh. SET COMED a <vneseeuwevaseeusnduceaceke 33

Glasser v. United States, 315 U.S. 60 (1942) .......0.00...0.... 32, 34

Girpee ¥, Gootwnn, 428 U.S. 153 CIDTE) 2... ccc ccc cc ccccvcccscccs 20

Holloway v. Arkansas, 435 U.S. 475 (1978) .. 0.0... cece eee eee 33

Leacnett vy. Obin, 438 U.S. SOG-CIDTE) 2... ccc cece cccscccns 25, 26,

29, 30

iv

Mickens v. Taylor, 122 S. Ct. 1237 (2002) ........... 0. eee ener

Mile Witte SIS US, IST OIGODD oasis cs ccvesccncesccscocesss 33

Pandeli v. Arizona, 536 U.S. 953 (2002)... 0.2... eee e eee eee 10

Penry v. Johnson, 532 U.S. 782 (2001)... 0... cece eee eee ee eee 31

Penry v. Lynaugh, 492 U.S. 302 (1989) 2.0.2.0... eee eee eee eee 24, 25,

29

Penson v, Ohio, 488'U.S. 75 (1988) ...... cece cece cence eee neeees 34

Ring v. Arizona, 536 U.S. 584 (2002) .. 22... 2. cece ee eee eee passim

iene Ce GURUS GICIID nnn cccesnscaucccsvsdessceenss 17

Santosky v. Kramer, 455 U.S. 745 (1982)... 06... eee eee eee eee 24

Sraziano v. Florida, 468 U.S. 447 (1984) 2.2... 0... cece eee eee ees 21

Strickland v. Washington, 466 U.S. 668 (1984) 2.0.2.6... 6c eee ees 33

Walton v. Arizona, 497 U.S. 639 (1990)... 2.20.6... eee. Wi Kicws 18, 28

Williams (Terry) v. Taylor, 120 S.Ct.. 1495 (2000) .............005. 24

Wright v. Cowan, 149 F. Supp. 2d 523 (C.D.IIL,2001) ............... 27

STATE CASES

TS @, ) 8 4, &. |, Perrrrre rr TTT Tree

Buttrum v. State, 293 S.E.2d 334 (Ga. 1982) ...... 0... eee eee eee

Coleman vy. State, 741 N.E.2d 697 (Ind. 2000) .........-......0000-

Guthrie v. State, 689 So. 2d 948 (Ala.Cr.App. 1996) ....... 2.2...

State v. Bible, 858 P.2d 1152 (1993) 2.2... ec eee eee eee eee ees

State v. Brookover, 601 P.2d 1322 (Ariz. 1979) ..............00005-

State v. Hoskins, 14 P.3d 997 (Ariz. 2000) ............0.005. 24, 27, 28

State v. Laird, 186 Ariz. 203, 920 P.2d 769 (1996) .............055. 27

State v. Mann, 188 Ariz. 220, 934 P.2d 784 (1997); ............0008, 27

State v. Mauro, 766 P.2d 59 (Ariz. 1988) ............. 2. cece ee eee 14

State v. McKinney, 185 Ariz. 567, 917 P.2d 1214 (1996) ............. 27

State v. Murray (Robert), 184 Ariz. 9, 906 P.2d 542 (1995) ........... 27

Siate v. Pandeli, 26 P.3d 1136, 1149 (2001)(Pandelil) ......... 8, 10, 26

State v. Pandeli, 65 P.3d 950 (Ariz. 2003)(Pandeli IT) ............ 10, 12

State v. Raglin, 699 N.E.2d 482 (Ohio 1998) ............... 2.2 ene 27

State v. Richmond, 886 P.2d 1329 (1994) ......... 0. cee ee eee, 12, 22

State v. Ring, 65 P.3d 915, 933-936 (Ariz. 2003) Ring ITF)... ..... passim

State v. Ross, 180 Ariz. 598, 886 P.2d 1354 (1994) ................. 27

State v. Sansing, 26 P.23d 1118 (Ariz. 2001) ...................0.. 27

State v. Sharp, 193 Ariz. 414, 973 P.2d 1171 (1999) ................ 27

State v. Valencia, 645 P.2d 239 (Ariz. 1982) ................025. 2, 14

State v. Van Adams, 984 P.2d 16 (Ariz. 1999) ...................2.. 13

ES TE, PO Pe PPR CUSIOD ce ccccccccecccssccesoss 19, 27

Tedder v. State, 322 So. 2d 908 (Fla.1975) ............ cece ee eee 21

State v. Martinez, 64 P.3d 256 (Colo. 2003) ...............0.00000. 15

STATE STATUTES

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MISCELLANEOUS

A Broken System, Part II: Why there is so much error in capital cases, and what can be

done about it (visited Sept. 26, 2002) ......... 5. cece eee eee eee 16

Phyllis L. Crocker, Childhood Abuse and Adult Murder: Implications For The Death

Penalty, 77 N.C. L. Rev. 1143, 1185 (1999) ....... cece eee eceees 25

JURISDICTION

Respondent agrees that this Court has jurisdiction over this certiorari petition,

though not over some of the state law questions the petition seeks to raise.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

In addition to those set forth in the petition, this case involves the Tenth

Amendment to the Constitution of the United States, which provides:

The powers not delegated to the United States by the Constitution, nor

prohibited by it to the States, are reserved to the states respectively, or to

the people.

This case also involves A.R.S. §§ 13-703 and 13-703.01, copies of which are set forth

as Appendices A and B, respectively.

STATEMENT OF THE CASE

1. Arizona Capital Punishment Law After Ring v. Arizona

Immediately after this Court's Ring decision, the Arizona legislature was

convened in special session to enact a new death sentencing statute. That statute was

expressly made applicable to all cases in which direct appeal had not been finally

resolved. 2002 Ariz. SEss. Laws, 5" S.S., Ch.1, § 7(A). The statute provided for a jury

determination of all issues relating to guilt and sentence: defendant's guilt of first

degree murder, the presence of aggravating circumstances, and the existence of

sufficient mitigating circumstances to outweigh the aggravating circumstances. A.R.S.

§ 13-703.01.

Shortly thereafter, the Arizona Supreme Court consolidated all capital cases

before it on direct appeal, including Mr. Pandeli’s, for argument in Ring. In its decision

in that case, the court determined that contrary to the defendants’ arguments, violations

of Ring's jury trial right could be held harmless. State v. Ring, 65 P.3d 915, 933-936

(Ariz. 2003)(Ring Jif). The court held that a sentence could be affirmed on the theory

that the error was harmless, if and only if the court could conclude, that “no reasonable

jury would have failed to find the factor established beyond a reasonable doubt” and

“that no rational trier of fact would determine that the mitigating circumstances were

sufficiently substantial to call for leniency.” /d. at 946. This standard is substantially

the same as Arizona's pre-Ring law regarding other forms of constitutional error in

capital sentencing decisions by judges. State v. Valencia, 645 P.2d 239, 241 (Ariz.

1982)(refusing to affirm death sentence “[w]here there is a doubt whether the death

sentence should be imposed”). However, it had another basis as well: the Arizona

Supreme Court's determination that the legislature's intent would be frustrated if

different sentencers evaluated the presence and strength of aggravation and

mitigation. Ring III, 65 P.3d at 943; see also State v. Bible, 858 P.2d 1152, 1212

(1993)(expressing strong preference for remand where there is error in a capital

sentence because fairness and accuracy are promoted by single factfinder who can

consider all evidence).

2. Respondent's Case.

A. Mr. Pandeli’s Childhood

Darrel Pandeli was victimized sexually both by men and women throughout his

entire childhood. He was first sexually abused when he was about five years old, by a

male friend of the family who, having asked Mr. Pandeli’s mother to marry him, became

a father figure to Mr. Pandeli. Reporter's Transcript (herein after “RT”) 5/14/98 at 88.

Mr. Pandeli’s older brother walked in on this assault and subsequently participated. Id.

When he was around nine years old, Mr. Pandeli was also violently sodomized, both

ee

” 2

—

orally and anally, after being attacked at knifepoint. Id. at 89, RT 6/5/98 at 46. Mr.

Pandeli was also molested when he was a child by at least two different adult women.

RT 4/30/98 at 65-8. A thirty year old female neighbor raped Mr. Pandeli, who was

twelve at the time. RT 5/14/98 at 94. The family characterized this traumatic event as

an “affair,” and not as a molestation. Id. Mr. Pandeli was raped repeatedly when he

was about fourteen or fifteen years old. RT 4/30/98 at 61, 141; RT 5/14/98 at 47. The

perpetrator forced Mr. Pandeli to submit to sodomy by threatening him with a bat, a

crowbar, or a knife. RT 5/14/98 at 93. Mr. Pandeli was raised in an environment of

familial instability, which traumatized and confused him as to his sexuality and sexual

identity. RT 4/30/98 at 56, RT 5/1/98 at 107. Mr. Pandeli’s mother frequently switched

sexual partners and preferences. RT 4/30/98 at 53; 5/5/98 at 8, 22, 25. When Mr.

Pandeli was sixteen years old, he survived financially by selling his body on the streets.

RT 4/30/98 at 103; RT 5/14/98 at 112. Because Mr. Pandeli was mentally deficient and

had no place else to go, around the time of the crime he lived with a man with whom he

traded housing and other assistance for sex. RT 5/14/98 at 46. Mr. Pandeli had been

afraid all of his life, and when he was eventually arrested, jail was the safest place he

had ever been. Id. at 73, 116.

Mr. Pandeli was parentless virtually his entire life. His alcoholic and physically

abusive father abandoned the family when Mr. Pandeli was young, and his mother, who

suffered from depression, was frequently absent and always unstable, making her

unable to care for her children. Id. at 34, 51, 62-9, 76; RT 4/30/98 at 21. The one time

Mr. Pandeli’s father agreed to take care of Mr. Pandeli, when Mr. Pandeli was twelve

years old, Mr. Pandeli’s father threw him into a wall, which had a nail in it. RT 5/14/98

at 56. Their utter abdication of parental responsibility nana Mr. Pandeli’s mental

a

deficiencies, and left Mr. Pandeli vulnerable to the sexual victimization which he

suffered at the hands of others throughout his childhood. Id. at 28, 52, 74.

Mr. Pandeli attempted suicide on at least six separate occasions, including when

he was merely ten years old. Id. at 34, 40, 43, RT 6/5/98 at 13. From his early

childhood, Mr. Pandeli has suffered from mental illness, serious neurological

dysfunction, disordered thought processes, ADHD, and lack of perspective, yet his

mother’s own disorders prevented her from persisting in seeking medical care for him.

RT 5/1/98 at 35, RT 5/14/98 at 30. He was given Benadryl and Ritalin between the

ages of five and six for behavior modification, but received no other mental health

treatment for his illnesses. RT 4/30/98 at 24; 5/5/98 at 44; 5/14/98 at 31-2. He was

placed in classes especially reserved for the mentally ill and mentally disabled, due to

his unsound mental health and persistent learning disabilities. RT 4/30/98 at 23, RT

5/5/98 at 38, RT 5/14/98 at 20. Despite his constant attendance at school until the 11”

grade, Mr. Pandeli failed virtually every class he ever took. He could not read or write

until he learned. in jail after his arrest in this case. RT 4/30/98 at 141; RT 5/14/98 at 23,

47.

Several members of Mr. Pandeli’s family also battle extraordinary mental health

problems. RT 4/30/98 at 93, RT 5/14/98 at 36. Both his brother and mother have

diagnosed mental illness, and suffered from severe depression, yet were unable to

seek medical assistance. Mr. Pandeli’s father, uncle and grandfather, like Mr. Pandeli,

have significant histories of suicide attempts. RT 5/14/98 at 37-8.

Mr. Pandeli has a strong genetic tendency toward alcoholism, as his biological

father, both grandfathers, and brother were all alcoholics. Id. at 36, 78. Mr. Pandeli

was also seriously addicted to alcohol since the age of twelve. Id. at 81. For a period

of three years, Mr. Pandeli consumed approximately two cases of beer per week. Mr.

Pandeli’s struggle with substance addiction began at age six, when his ten-year old

brother gave him drugs. Id. at 39; RT 4/30/98 at 38, 137. He found when he began to

use drugs and get high he was not as afraid for his safety. RT 5/14/98 at 58. Among

the drugs Mr. Pandeli used throughout the majority of his life for self-medication were

marijuana, alcohol, cocaine, methamphetamine, crystal methamphetamine, LSD, PCP,

uppers, downers, ecstasy, heroin, and barbiturates. RT 5/1/98 at 33, RT 5/14/98 at 7-

9, 79. At the time of the crime, Mr. Pandeli was using large amounts of alcohol and

drugs, which were extremely debilitating to his already-impaired cognitive functioning.

RT 5/14/98 at 82-3.

B. The Crime

Holly ller was a prostitute who, on the night of her death, had alcohol and

cocaine in her blood, as well as fresh needle marks on her body. RT 6/30/97 at 90,

127-8. Ms. lier was hitchhiking that night. Mr. Pandeli offered to give Ms. ller a ride in

his van, and she accepted. Mr. Pandeli picked her up because he wanted to have

intercourse with her, not because he wanted to harm her. Mr. Pandeli, too, was

severely impaired by drugs and alcohol, having used crystal methamphetamine and

alcohol both prior to and during the time he and Ms. ller were together. RT 5/14/98 at

83-4, 164; RT 6/5/98 at 22. Mr. Pandeli and Ms. ller stopped at a park near his

residence where she agreed to have sexual intercourse in exchange for twenty dollars.

They both went into the back of the van and disrobed. He put on a condom and

attempted intercourse. He was unable to perform sexually, and because of his

paranoia and history of sexual abuse, perceived this as a threat and became

frightened. RT 5/14/98 at 108, 110. Mr. Pandeli asked for his money back. Ms. lier

aiaaeeineeaeaatanirialiaaiatenaniaiaiiiaeaiceinnateiiateell

became furious and pulled a knife on him. RT 6/5/98 at 63. Due to his fear of being

raped at knifepoint, Mr. Pandeli became terrified and “lost it.” Id. at 63. Ms. ller was

killed during the ensuing struggle, in the midst of which Mr. Pandeli hallucinated,

believing that his girlfriend had entered Ms. ller’s body and became her. RT 5/1/98 at

29. There was no evidence of sexual trauma to Ms. ller’s body. Id. at 151. A used

condom was found which contained no semen. Three days after Ms. ller’s death, Mr.

Pandeli gave a statement to police implicating himself in the incident.

C. The Capital Trial and Sentencing

Mr. Pandeli was convicted of premeditated first-degree murder on July 2, 1997.

After the jury finding of guilt, the trial judge alone conducted a separate factfinding

hearing to determine the existence or non-existence of aggravating and mitigating

circumstances, anid whether Mr. Pandeli should live or die. See A.R.S. § 13-

703(B)(1997).

i. The Mitigating Evidence

Psychiatrist Dr. Donald Stonefeld, M.D., diagnosed Mr. Pandeli as suffering from

paranoid schizophrenia and post-traumatic stress disorder (PTSD) both prior to and at

the time of Ms. ller’s death. RT 5/1/98 at 10, 42, 65. Psychological testing reflected

Mr. Pandeli’s serious psychopathology possibly indicative of psychotic symptoms and

behavior. Id. at 15. Dr. Stonefeld found that Mr. Pandeli’s mental illnesses interfered

with his perceptions of reality. Id. at 51. Mr. Pandeli was prone to delusional thinking

and hallucinations, and was likely to be autistic and have fragmented, tangential, and

bizarre thought processes. Id. at 16. Mr. Pandeli hallucinated during Ms. ller’s death,

believing that his girlfriend entered Ms. Iler’s body and became her. Id. at 29. The

drugs and alcohol Mr. Pandeli ingested the night of the crime not only exacerbated his

mental deficiency, but diminished his ability to control his behavior. Id. at 33, 65-6,

109. Mr. Pandeli’s schizophrenia and loss of control resulted in Ms. Iler’s death and

the removal of her nipples after her death. Id. at 87, 102. Many factors caused his

involuntary actions: fear of being raped, panic at being unable to perform sexually, and

panic over his fear of being homosexual. RT 6/5/98 at 63; RT 5/1/98 at 41, 107; RT

5/14/98 at 106-110. The PTSD Mr. Pandeli suffered stemmed from the violent,

repeated sexual abuse Mr. Pandeli suffered throughout his childhood.

Dr. Stonefeld testified that Mr. Pandeli’s chaotic and violent childhood, including

repeated sexual victimization and his mother’s hyper-sexuality, caused pathological

confusion as to his sexuality and identity. Psychological testing revealed that Mr.

Pandeli did not suffer from antisocial personality disorder. RT 5/1/98 at 25. Dr.

Stonefeld formed these conclusions after spending many hours over a course of three

years gathering critical social history information from both Mr. Pandeli and Mr.

Pandeli’s mitigation specialist. Id. at 8.

Based upon the evidence, Dr. Stonefeld concluded beyond a reasonable

medical certainty that Mr. Pandeli’s paranoid schizophrenia, compounded by

intoxication and substance abuse, would have substantially impaired his capacity to

appreciate the wrongfulness of his conduct or to conform his conduct to the

requirements of the law at the time of the incident. Id. at 65-6, 72, 109. Mr. Pandeli’s

impaired perception of reality was apparent since his childhood. Id. at 72. The

mitigation specialist additionally confirmed that Mr. Pandeli was impaired on the night

of the crime from his extensive substance abuse coupled with his traumatic childhood.

RT 5/14/98 at 164, 168.

The state’s psychologist, Michael Bayless, Ph.D, testified tha: Mr. Pandeli likely

suffered from antisocial personality disorder with symptomatology of related cluster

disorder such as histrionic, narcissistic, or borderline personality disorder. RT 6/5/98 at

3. Dr. Bayless observed characteristics in Mr. Pandeli that were consistent with male

child sexual abuse survivors or individuals with paranoid schizophrenia. Id. at 24, 69.

Nonetheless, Dr. Bayless opined that Mr. Pandeli was able to appreciate the

wrongfulness of his conduct at the time of the crime, based on evidence that Mr.

Pandeli attempted to eliminate evidence after the crime and initially denied involvement

in the offense when questioned by police three days leter. RT 6/4/98 at 95. Dr.

Bayless disagreed with Dr. Stonefeld’s diagnosis of paranoid schizophrenia, asserting

that paranoid schizophrenia is “fully incompatible with someone like Pandeli who

maintains an active social life and exhibits his ability to interact and make eye contact

with others.” State v. Pandeli, 26 P.3d 1136, 1149 (2001)(Pandeli !); RT 6/4/98 at 76-8.

Dr. Bayless additionally opposed the diagnosis of paranoid schizophrenia because Mr.

Pandeli only reported experiencing hallucinations when he was using drugs. RT 6/5/98

at 19. Dr. Bayless also claimed that Mr. Pandeli did not suffer from PTSD because Mr.

Pandeli did not seem continually anxious or stressed when questioned by police

several days after the offense. RT 6/4/98 at 65. Dr. Bayless came to these

conclusions after spending approximately two hours with Mr. Pandeli.

ii. The Aggravating Factors

The judge, acting alone without the input of the jury, found two aggravating

circumstances: that Mr. Pandeli had previously been convicted of a serious offense, as

set forth in A.R.S. § 13-703(F)(2), and that the offense was committed in an especially

heinous and depraved manner, as set forth in A.R.S. § 13-703(F)(6). The judge based

the latter finding on the injuries to Ms. ller’s body and the removal of portions of Ms.

ller’s breasts, which it characterized as gratuitous violence and mutilation. Special

Verdict [hereinafter “SV"] at 2.

| iii. The Judge's Sentencing Decision

The defense proved by a preponderance of the evidence a wealth of mitigating

mental health and familial history evidence, including several instances of childhood

sexual abuse; neglectful parents; personality disorders; a sexual history wrought with

confusion, fear, and despair; lifetime addiction to drugs and alcohol; abuse of drugs

and alcohol the night of the crime; learning disabilities; probable mental disabilities;

and repeated suicide attempts. SV at 6. The judge, however, concluded none of this

evidence, when considered separately and collectively, was linked to the crime, and

therefore merited no weight. SV at 6-7. The judge discounted evidence of Mr.

Pandeli’s childhood abuse, saying there was no evidence of consistent, ongoing sexual

abuse and that Mr. Pandeli’s family life was not as bad as some other, unidentified,

capital defendants. SV at 7. The judge refused to find Mr. Pandeli could be

rehabilitated, claiming personality disorders made Mr. Pandeli predisposed to act in

ways harmful to others, even while acknowledging that Mr. Pandeli had not presented

any problems while incarcerated for much of the previous five years. SV at 8; RT

7/15/98 at 23.

The judge then made the unilateral decision to impose the death penalty, as

Arizona's sentencing statute then authorized. SV at 9; see also A.R.S. § 13-703(E).

D. The Direct Appeal

Considering the information never heard by any juror, the Arizona Supreme

Court upheld the trial court’s finding of the two aggravating circumstances. The Court

also upheld the trial court’s refusal to find a causal connection between Mr. Pandeli’s

social history and mental health evidence and his behavior at the time of the crime.

Pandeli |, 26 P.3d at 1150. The Court based this decision on a credibility choice

between the state and defense experts in testimony never presented to the jury.

E. Pandeli Il

Following this Court's grant of Mr. Pandeli’s petition for writ of certioran, Pandeli

v. Anzona, 536 U.S. 953 (2002)(Mem), the Arizcna Supreme Court reconsidered his

case in light of Ring v. Arizona, 536 U.S. 584 (2002) (Ring //). State v. Pandeli, 65 P.3d

950 (Ariz. 2003)(Pandeli I). After finding exempt from Ring /I the trial court's finding of

the prior conviction aggravating factor, the Court commented that “the State can make

a strong argument that no reasonable jury could fail to find the F.6 factor.” Pandeli II,

65 P.3d at 953. It did not decide this question, however, because it concluded it was

required to reverse the case regardless based on its consideration of mitigating

evidence and the sentencing calculus.

The court could not “say, beyond a reasonable doubt, that a reasonable jury

hearing the same evidence as did the judge would have assessed the defense expert's

testimony as did the judge and would have failed to find mental impairment, a statutory

mitigating circumstance.” /d (citation omitted). Because “[a] different finding of

mitigating circumstances could affect the determination whether the mitigating

circumstances are ‘sufficiently substantial to call for leniency,” /d (citation omitted), as

a matter of law, the court vacated the sentence of death and remanded for jury findings

on each of those elements of the crime of capital murder. Petitioner now asks this

Court to reverse that decision.

REASONS FOR DENYING THE WRIT

10

I. THE ARIZONA SUPREME COURT'S DECISION BELOW RESTS ON AN

INTERPRETATION OF STATE PROCEDURAL LAW, AND REACHES A

RESULT THIS COURT SAID WAS PERMISSIBLE IN CLEMONS V.

MISSISSIPPI.

The state’s real dispute is not with the Arizona Supreme Court's application of

their holdings in Ring II! to the decision in Pandeli I]. The state actually seeks review of

the holdings in State v. Ring, 65 P.3d 915 (Ariz. 2003)(Ring //)). But the state did not

seek either reconsideration of that decision in the Arizona Supreme Court, issued the

same day as the decision attacked here, or certiorari review in this Court; instead

electing to challenge that decision indirectly in Mr. Pandeli’s case. Nevertheless, it is

to Ring Iii that this Court must look to examine the basis for the outcome here. Doing

so, it is apparent the state court acted weil within its prerogative in both cases.

In Ring lil, the Arizona Supreme Court held that the existence of one aggravating

factor which is exempt from Ring II, implicit in a jury's verdict, or supported by

overwhelming or uncontroverted evidence, does not end that court’s harmless error

inquiry. The court explained that “the procedures urged by the State [to end the

harmless error inquiry after the finding of one aggravator is deemed harmless] do not

reflect any sentencing procedure ever adopted by our legislature." Ring ///, 65 P.3d at

943. The court went on to describe the consistency of Arizona’s statutory capital

sentencing scheme that has always "assigned to the same fact-finder the responsibility

for considering both aggravating and mitigating factors, as well as for determining

whether the mitigating factors, when compared with the aggravators, call for leniency.”

Id. The court explained “[t]he process involved in determining whether mitigating

factors prohibit imposing the death penalty plays an important part in Arizona's capital

sentencing scheme. [It refused to] speculate about how the State's proposal would

impact this essential process." /d. The court then cited to Johnson v. Nevada, 59 P.3d

11

450 (Nev. 2002), holding that Ring // as applied to Nevada law requires a jury to

reweigh mitigating and aggravating factors. /d. The court held the same result

obtained here.

The court later discussed the need to have a jury decide mitigating

circumstances under Arizona law: “Arizona's statutes require more than the presence

of one or more statutorily defined aggravating factors to impose the death penalty.” /d.

at 946. Citing Arizona's statute, the court concluded: "[bjecause a trier of fact must

determine whether mitigating circumstances call for leniency, we will affirm a capital

sentence only if we conclude, beyond a reasonable doubt, that no rational trier of fact

would determine that the mitigating circumstances were sufficiently substantial to call

for leniency.” /d. In Respondent's case, the court specifically referred to the state law

discussion in Ring III, also citing the Arizona statute at issue, A.R.S. § 13-703. Pandeli

Il, 65 P.3d at 953.

This result is permissible under this Court's jurisprudence and dictated by the

nature of Arizona's capital sentencing scheme. Arizona is a weighing state. See State

v. Richmond, 886 P.2d 1329 (1994). In Clemons, this Court held that, when

constitutional error occurred in a capital sentencing, appellate courts in weighing states

could conduct harmless error review, but also could remand for resentencing. Clemons

v. Mississippi, 494 U.S. 738, 754 (1990)(decision to reweigh or remand “is for state

appellate courts. . to make.”)(footnote omitted). As explained above, the Arizona

Supreme Court has decided, in deference to the Arizona legislature's policy of requiring

pure jury sentencing, it should remand in all cases where it cannot say beyond a

reasonable doubt that no reasonable jury would have imposed death. That is clearly a

permissible choice under Clemons.

12

In fact, Respondent argued below that it is the only constitutionaliy permissible

choice, as this sort of error is not properly subject to harmless error review. See

Argument II.A. Although the Arizona Supreme Court held otherwise, its determination

of the form that that harmless error review should take and the result that review should

have in cases such as Respondent's, was reasonable and well within the parameters

set by this Court in Clemons.

This Court does not sit to review such decisions of state law, state criminal

procedure and state sentencing policy. See Sup.Ct. R. 10; Coleman v. Thompson, 501

U.S. 722, 730 (1991)(“if resolution of a federal question cannot affect the judgment,

there is nothing for th[is] Court to do.”). This Court has given its guidance regarding

the Sixth Amendment in Ring //. It now should “give state judges a clear{ ] opportunity

to develop state jurisprudence unimpeded by federal interference.” Anzona v. Evans,

514 U.S. 1, 7 (1995), quoting Michigan v. Long, 463 U.S. 1032, 1041 (1983). Even if

this Court were to review the state law decision in this case, however, it would find that

the Arizona Supreme Court's decision is a sensible one and is true to the legislative

intent that was the Arizona Supreme Court's guide. Arizona has always viewed capital

sentencing as something that involves qualitative as well as quantitative

determinations. State v. Van Adams, 984 P.2d 16, 29 (Ariz. 1999)(noting that

supporting evidence of cruelty “affects the strength of the cruelty factor, not its

existence"), citing State v. McKinney, 917 P.2d 1214, 1225 (Ariz. 1996) (when

conducting an independent review of the evidence, consideration is given to the

"quality and the strength” of the aggravating and mitigating factors). The court has long

recognized that Arizona's capital sentencing statute “does not require that the number

of aggravating circumstances be weighed against the number of mitigating

13

circumstances.” State v. Mauro, 766 P.2d 59, 81 (Ariz. 1988); State v. Brookover, 601

P.2d 1322, 1326 (Ariz. 1979)(“One mitigating circumstance. . .may be ‘sufficiently

substantial’ to outweigh two aggravating circumstances."). The court has explained:

We do not believe the legislature intended the court to play a numbers

game and automatically apply the death penalty when the number of

aggravating circumstances found exceeded the number of mitigating

circumstances found, any more than it intended to require life

imprisonment when the number of mitigating circumstances found

exceeded the number of aggravating circumstances found.

State v. Valencia, 645 P.2d 239, 241 (Ariz. 1982). For this reason, as the Arizona

Supreme Court noted, the Arizona legislature has always felt it appropriate to put all

decisions relating to capital sentencing—aggravation, mitigation, and penalty—in the

hands of a single sentencer, who can bring the same qualitative judgment to the

assessment of aggravation, mitigation and penalty. Ring ///, 65 P.3d at 943.

This case shows why that approach makes sense. The mitigating evidence

adduced in this case and found credible by the Arizona Supreme Court went both to the

severity of both aggravating factors alleged, as well as the magnitude of the mitigation.

The mitigating evidence and information regarding the defendant's mental state and

history adduced below went both to the severity and weight to be given to the two

aggravating circumstances as well as the mitigation to be weighed against them. Both

aggravating facts were directly related to the defendant's background and disorders.

The "heinousness" based on “mutilation” is directly attributable to the Respondent's

mental illness, and background of victimization by severe sexua! abuse. So is the

“second” homicide, which occurred as a result of the same disabling forces. To view

those aggravating facis in isolation and without the truer picture provided by the life

history information would be to fail to fully assess their weight, as well as their identity

and number, which Arizona requires. To arificially divide up the task of assessing

14

|

aggravation and mitigation in light of such background facts would increase the chance

of error and arbitrariness in capital decision making. That no doubt is why the Arizona

legislature felt it appropriate to put the sentencing decision in the hands of a single

sentencer, under both statutory regimes. And that no doubt is why the Arizona

Supreme Court decided to follow that state legislative dictate in this case and the

others it reviewed after Ring /I.

In any event, Arizona's decision to do that does not offend or contravene

anything in the federal constitution, or this Court's applicable decisions. To the

contrary, it is a choice specifically left open to the states by Clemons, and by Ring II.

Ring II, 536 U.S. at 609, n.7. The exercise of that choice does not call for certiorari

review by this Court.

Petitioner emphasizes the different results obtained by several state courts in

applying Ring I! to individual state sentencing schemes. This result, however, obtains

because each state sentencing scheme is unique, and each state’s law must be

applied to that scheme in light of state policy and practice. As noted in Ring III, the

Nevada Supreme Court's decision on this issue was controlled by Nevada law."

Similarly, in Woldt v. Martinez, the Colorado Supreme Court held that Colorado's

“three-judge panel capital sentencing statute. . .is unconstitutional on its face under

Ring’ but that defendants sentenced under that statute were entitled to resentencings

“under Colorado law.]” 64 P.3d 256, 262 (Colo. 2003). The court cited to Colorado law

'The court held: “Nevada statutory law requires two distinct findings to render a

defendant death-eligible: “The jury or the panel of judges may impose a sentence of death only if

it finds at least one aggravating circumstance and further finds that there are no mitigating

circumstances sufficient to outweigh the aggravating circumstance or circumstances found.’ This

second finding regarding mitigating circumstances is necessary to authorize the death penalty in

Nevada, and we conclude that it is in part a factual determination, not merely discretionary

weighing.” Johnson v. State, 59 P.3d at 460 (italics in original)(footnote omitted).

15

interpreting the Colorado death penalty statute in determining which jury findings were

eligibility findings. /d, at 264 (quoting People v. Dunlap, 975 P.2d 723 (Colo. 1999).

The legal landscape developing after Ring // may not be homogenous, but it is

not in conflict. Each state has interpreted this Court’s decision according to their state

capital punishment laws and, as long as those decisions do not violate the

requirements of Ring // and were left open to them in Clemons, that is all this Court

requires.

The state complains that twenty-six capital cases will be affected by this

decision. However, of the 31 cases on direct appeal when Ring // was announced,

seven have been resolved on grounds other than Ring //, and in an additional three

cases similar to Mr. Pandeli's, the time for filing cert has already run without a petition

from the state. At this rate, only this and a handful of other cases would be affected

were this court to accept, wholesale, Arizona's arguments in this petition. Even then,

given historical error rates in Arizona, the sentences in most of those cases would be

eventually reversed in later proceedings. See James S. Liebman, et. al., A Broken

System, Part Il: Why there is so much error in capital cases, and what can be done

about it (visited Sept. 26, 2002), http:/Avwww.law.columbia.edu/brokensystem2>. Rather

than delay capital proceedings in Arizona for yet another year, fairness and judicial

economy favor allowing the jury resentencings that the Arizona courts have ordered

under the new statutory procedures the Arizona legislature has prescribed, to begin.

HI. THE ARIZONA SUPREME COURT'S DISPOSITION OF THIS CASE CAN AND

SHOULD BE AFFIRMED ON OTHER GROUNDS.

if certiorari were granted, this Court would have to consider wnether the Arizona

Sup: ine Court's decision is correct for other reasons that were argued to it, but not

necessarily adopted by it before considering relief on the grounds urged by Petitioner.

16

There are a number of such reasons which should lead this Court to affirm the decision

below. Arizona v. Fulminante, 499 U.S. 279, 282 (1991)(decision may be affirmed on

grounds other than those stated by lower court).’

A. Denial of the Jury Trial Right Guaranteed by Ring is Structural Error That -

Should Not be Subject to Harmless Error Review.

This Court has held that unlike “an error in the trial process itself . . . structural

defects in the constitution of the trial mechanism” can never be harmless. Anzona v.

Fulminante, 499 U.S. 279, 309-310 (1991). Thus, this Court has refused to find

harmless error when the right to jury trial has been “altogether denied,” because in

such a case “the wrong entity judged the defendant guilty.” Rose v. Clark, 478 U.S.

570, 578 (1986).

That is precisely the case here. The error was not one by the trial judge, or in

the trial process, but rather in the statutory structure governing capital sentencing -a

Classic “structural defect in the constitution of the trial mechanism” — that “altogether

denied” capital defendants their Sixth Amendment right to have eligibility |

determinations made by a jury beyond a reasonable doubt. The Arizona statute

assigned to the “wrong entity” — the judge — the job of determining the defendant's guilt

as to those determinations. As the two Ring II/ dissenters recognized, harmless error

review in cases like this “puts the [appellate court] in the position of speculating about

one of the great unknowables-what a non-existent jury would have done.” Ring III, 65

P.3d at 948 (Feldman, J., concurring in part and dissenting in part). Harmless error

Because Respondent is not seeking to change the judgment below, which

properly ordered a full sentencing retrial, he has not filed a formal cross petition raising

these issues, but would seek to have them considered in the event certiorari were

granted. See ROBERT L. STERN, ET. AL, SUPREME COURT PRACTICE, at 363-364 (7 ed.

1993). -

17

analysis cannot apply in such a case.

B. The Jury Trial Right Recognized in Ring Properly Applies to Aggravating

Factors Involving Convictions for Other Criminal Conduct: Almandarez-

Torres Should be Overruled.

As Justice Thomas’ concurrence in Apprendi v. New Jersey, 530 U.S. 466

(2000) shows, this Court's decision in Almandarez-Torres v. United States, 523 U.S.

224 (1998), suffered from the same constitutional error as Walton v. Anzona, 497 U.S.

639 (1990). Petitioner argues that the prior conviction aggravating circumstance found

by the trial judge should have determined the outcome here because it exempts the

case from the decision in Ring II. Thus, if certiorari were granted here, the case will

necessarily present the threshold question of whether, in light of the history reviewed

there and in Ring, this Court should overrule Almendarez- Torres.

The Arizona Supreme Court relied on Almendarez-Torres in finding the trial

judge’s determination of the prior conviction aggravating factor harmless. This is

problematic for several reasons. First, it misapprehends the holding in Almendarez-

Torres. As Apprendi noted, the defendant in Almendarez-Torres pleaded guilty, and in

so doing, both waived his right to jury trial and admitted the previous felony convictions.

Thus, the case before this Court only dealt with the sufficiency of the underlying

indictment under the Fifth Amendment, and presented “no question concerning the right

to a jury trial.” Apprendi, 530 U.S. at 488. That question was presented in Ring /I,

where this Court held that “[c]apital defendants . . . are entitled to a jury determination

of any fact on which the legislature conditions an increase in their maximum

punishment.” Ring //, 122 S. Ct. at 2432 (emphasis added). The fact of prior conviction

squarely meets that description. See also Apprendi, 530 U.S. at 487, 489-90 (holding

that even assuming arguendo that Almenderez-Torres was correctly decided, it is “at

18

best an exceptional departure” from the rule announced in Jones and Apprenci).

Moreover, Justice Thomas, voting with a five-member majority in Almendarez-

Torres, repudiated his vote less than a year later, making clear that he now regards

Almendarez-Torres as wrongly decided. See Apprendi, 530 U.S. at 518-21 (Thomas,

J., concurring). Thus, it is plain that a five-Justice majority of this Court no longer

adheres to that decision.

Third, even if Almendarez-Torres remains applicable in the application of Ring //

in some states, it’s logic does not apply in Arizona. The statute at issue in Almendarez-

Torres was a recidivist statute. This distinction compelled the result in that case

because recidivism is “a traditional, if not the most traditional, basis for a sentencing

court's increasing an offender's sentence,” 523 U.S. at 243 (citations omitted), and

thus was not an element of the offense in question. Id, at 243-244. Arizona,

conversely, elected in the capital context to make prior convictions not a penalty for

recidivism, but an element of the crime of capital murder as much as any other

aggravating factor listed in A.R.S. § 13-703(f). As that court has explained on

numerous occasions:

Our death penalty statute is not a recidivist or enhancement statute used

to warn convicted criminals or encourage reform. . .. The purpose of the

aggravation/mitigation hearing is to determine the character and

propensities of the defendant. . .. That a defendant has been found guilty

of another offense for which life is imposable is directly relevant to this

determination. . ..

State v. Walden, 905 P.2d 974, 994-995 (1995)(citations omitted). Therefore, Arizona’s

death sentencing statute explicitly treats prior convictions as elements of the crime of

capital murder, not as recidivist penalty enhancements, and thus does not fall within the

narrow exception carved out in Almendarez-Torres, but falls squarely within the

mandate of Ring //. Thus, even if this Court were to grant the petition for writ of cert

and reverse the opinion of the Arizona Supreme Court, Mr. Pandeli would still be

entitled to re-sentencing under Arizona law.

C. The Jury Trial Right Recognized in Ring Properly Applies to the

Aggravation/Mitigation Balance in States Which Make That Assessment

an Eligibility Factor.

Although this Court did not reach the question in Ring //, the Arizona Supreme

Court's analysis of the weighing question is also correct under federal law. The rule of

Ring II is this: “[cJapital defendants. . .are entitled to a jury determination of any fact on

which the legislature conditions an increase in their maximum punishment.” 536 U.S.

at 588. Put in context, if a state conditions a sentence of death on the fact that

mitigating factors do not outweigh aggravating factors, a jury determination is required.

Arizona has done precisely that. The weighing finding in Arizona is not, and never has

been, a siage at which the factfinder selects whether or not the defendant should

receive death. In fact, until and unless the weighing factor is found, a defendant is

categorically excluded from receiving the death penalty. Ring // requires that the jury

verdict “reflect” the facts the jury found beyond a reasonable doubt “necessary to put .

. [the capital defendant] to death.” Ring //, 536 U.S. at 609. Because the weighing

calculus is a necessary factor in an Arizona death sentence, it must be found by a jury

beyond a reasonable doubt.

A consensus has developed among all but two death sentencing states that this

factor must be determined by a jury, indicating almost total acceptance that the

weighing fact is indeed an element of capital murder. This broad recognition in all

relevant states that weighing is an element of the crime of capital murder adds force to

Justice Breyer’s concurring opinion in Ring //, and merits further review by this Court.

20

D. The Logic of Ring Il, and Developments Since Ring Il, Make it arent

That Judge Only Capital Sentencing is Unconstitutional Under the Sixth,

Eighth and Fourteenth Amendments, and Spaziano and Cabana Should

be Overruled.

The Constitution requires special safeguards in capital cases. Gregg v.

Georgia, 428 U.S. 153 (1976). In addition to all of the reasons set forth in Justice

Breyer’s concurring opinion in Ring II, the evidence of legislative and judicial

agreement since Ring // that the weighing of aggravating and mitigating circumstances

is an element of the crime of capital murder demonstrates juries must make the ultimate

sentencing decision. If this Court grants Arizona’s request for cert review, this Court

should also consider that evolving standards of decency require Spaziano v. Flonda,

468 U.S. 447 (1984), be overruled on that basis.

Considering statutes enacted both before and after Ring //, 36 states have now

given sentencing authority to juries. Only Montana and Nebraska fail to do so. MONT.

CODE ANN. § 46-18-301; NEB. REV. STAT. § 29-2521. All but three of the 36 states

make juries' determinations of sentence controlling.* This is an overwhelming

indication that jury sentencing is required by the Eighth Amendment and is an

established part of due process. See Atkins v. Virginia, 536 U.S. 304, 314-315

(2002)(discussing 18 states which prohibit execution of the mentally retarded in judging

evolving standard of decency by legislative decision), Enmund v. Florida, 458 U.S. 782,

789 (1982)(noting that only eight states permitted death sentences in cases where

*Only in Florida, Alabama, and Delaware do judges retain sentencing authority after the

jury’s decision is reached. FLA. STAT. CH. § 921.141; ALA. CODE § 13A-5-47 (1975); DEL. CODE

ANN. Tit. 11, § 4209. In Florida, the jury’s sentence determination must be considered and given

great weight. Tedder v. State, 322 So.2d 908, 910 (Fla.1975). Alabama requires the sentencing

judge to consider the jury’s recommendation of sentence before making its decision. ALA. CODE

§ 13A-5-47 (1975).

21

defendant participated in underlying felony but did not attempt or intend to kill). Given

the nearly unanimous enactment of jury sentencing by state legislatures, Justice

Breyer’s dissent in Ring Il is correct. Spaziano v. Fionda, 468 U.S. 447 (1984), and

Cabana v. Bullock, 474 U.S. 376 (1986), shouid be overruled and these questions, too,

will necessarily be included in the issues presented by this case, if certiorari is granted

here.

E. The Arizona Supreme Court Did Not, and Could Not, Find the Denial of a Jury

Trial on Heinousness to Be Harmless,

The Court did not, as Petitioner contends, hold the finding of the especially

cruel, heinous, and depraved aggravating circumstance harmless beyond a reasonable

doubt. The Court commented that “the State can make a strong argument that no

reasonable jury could fail to find the F.6 factor.” Pandeli [/, at 953. It did not need to

decide this question, however, because the court could not “say, beyond a reasonable

doubt, that a reasonable jury hearing the same evidence as did the judge would have. .

failed to find mental impairment, a statutory mitigating circumstance.” /d (citation

omitted). Because “[a] different finding of mitigating circumstances could affect the

determination whether the mitigating circumstances are ‘sufficiently substantial to call

for leniency,” /d (citation omitted), the court was required to remand for jury findings on

each of those elements of the crime of capital murder. It therefore did not rule on the

harmlessness of the especially cruel, heinous, or depraved aggravating factor.

The court could not have determined this finding by the trial judge, rather than a

jury, was harmless. Mr. Pandeli’s social history is tragically replete with the sexual

abuse he suffered as a child. He was repeatedly traumatized by adult strangers, and

even by those who had a responsibility to Keep him safe. A reasonable juror could

have found this compelling social history evidence rebutted the aggravating evidence

22

——

of mutilation and gratuitous violence. In Arizona, a finding of mutilation—and hence the

finding of the especially cruel, heinous, and depraved aggravating factor in this

case—requires a determination that the killer had in mind the purpose of mutilating the

body of the deceased. State v. Richmond (Ill), 886 P.2d 1329, 1336 (1993)(finding of

mutilation requires some demonstration that the defendant acted with a “separate

purpose to mutilate the corpse”), quoting State v. Richmond (II), 666 P.2d 57, 68

(1983). A reasonable juror could have found that the damage to the victim's body was

not a result of an intent to mutilate the corpse, but a tragic reaction to the trauma still

haunting Mr. Pandeli. Similarly, a reasonable juror could have found the aggravating

factor's gratuitous violence aspect unsupported by the thoughts and actions of this

gravely damaged and impaired individual. As a result, even if the Arizona Supreme

Court had adopted the state's interpretation of the statute regarding the balancing of

aggravating and mitigating circumstances, the court would not have upheld Mr.

Pandeli’s death sentence.

The rule of Ring I! does not require a jury determination of “one fact” or “the first

fact” but “any fact.” Ring //, 536 U.S. at 589. Thus, a finding that the prior conviction

aggravating factor was exempt from Ring // did not end the inquiry because the court

was still required to consider the second aggravating factor, which was also a fact

which increased the range of Mr. Pandeli’s punishment to death. Even if the Arizona

Supreme Court improperly held Arizona law requires a remand for a jury determination

regarding the relative weight of the aggravating and mitigating factors, remand was still

necessary for the determination of this aggravating factor.

Fr. The Arizona Courts Violated Lockett v. Ohio and Eddings v. Oklahoma By

Disregarding Mitigating Evidence Where It Is Not Shown To Cause The

Defendant's Conduct At The Time Of The Crime.

23

=

1. Evidence of a Traumatic Family and Developmental History Is Relevant

Mitigating Evidence.

This Court has repeatedly stressed the important and unquestionably mitigating

nature of evidence that a capital defendant suffered from childhcod abuse, even when

the evidence is completely unrelated to the crime for which the defendant is sentenced.

Eddings v. Oklahoma, 455 U.S. 104, 115 (1982)(“There can be no doubt that evidence

of a turbulent family history, [and] of beatings by a harsh father ... is particularly

relevant [to mitigation].”); Penry v. Lynaugh, 492 U.S. 302, 322 (1989)(evidence of

childhood abuse is relevant to a capital defendant's “moral culpability” and jurors must

be allowed to consider that evidence in assessing punishment); Burger v. Kemp, 483

U.S. 776, 789, n.7 (1987)(there is “no doubt” that evidence of a defendant's

“exceptionally unhappy and unstable childhood” is “relevant mitigating evidence”). This

Court finds evidence of childhood abuse relevant and undeniably mitigating. And this

Court does not restrict the consideration of mitigating factors to only those shown to

have caused defendants’ actions at the time of the crime. See Williams (Terry) v.

Taylor, 120 S.C. 1495, 1512-1514 (2000)(reversing for defense counsel's failure to

investigate and present evidence that documented childhood abuse). Evidence of

childhood abuse must be considered as non-statutory mitigation, even if that evidence

does not provide a legal excuse from criminal responsibility. Eddings, 455 U.S. at 114.

Obviously, extensive childhood abuse and neglect damages one’s emotional

health. “It defies reason and common experience to suggest that a youngster coming

out of [a horrific environment] was largely unaffected and should be held accountable

as any functioning adult.” State v. Hoskins, 14 P.3d at 1031 (Zlaket, C.J., dissenting).

As Chief Justice Rehnquist recognized, "A stable, loving homelife is essential to a

child's physical, emotional, and spiritual well-being. It requires no citation of authority

24

to assert that children who are abused in their youth generally face extraordinary

problems developing into responsible, productive citizens." Santosky v. Kramer, 455

U.S. 745 (1982). Although medical science is not yet fully capable of quantifying and

tracing the causal relationship between such abuse and criminal behavior, medical

literature does reveal how childhood physical abuse may have long-term negative

repercussions for the defendant's ability to make appropriate judgments, to understand

the consequences of his actions, and to control his behavior. Phyllis L. Crocker,

Childhood Abuse and Adult Murder: Implications For The Death Penalty, 77 N.C.L.REV

1143, 1185 (1999). Medical literature shows that sexual abuse is extraordinarily

destructive to a child’s psyche, especially for young males, in whom sexual abuse

causes the most emotional and psychological distress, intense fear, anxiety, and

stress. RT 5/14/98 at 86-7.

A sentencer must not be precluded from considering a capital defendant's

proffered mitigating evidence of “any aspect of defendant’s character, or record, and

any of the circumstances of the offense” in all but the rarest of cases. Lockett v. Ohio,

438 U.S. 586, 604 (1978). Evolving standards of decency and “the fundamental _

respect for humanity underlying the Eighth Amendment” require individualized

sentencing “as a constitutionally indispensable part of inflicting the death penalty.”

Eddings v. Oklahoma, 455 U.S. at 114, quoting Woodson v. North Carolina, 428 U.S.

280, 304 (1976). Evidence of childhood abuse is relevant in sentencing because

“defendants who commit criminal acts that are attributable to a disadvantaged

background, or to emotional and mental problems, may be less culpable” than others.

Penry, 492 U.S. 302, 319 (1989), quoting Califomia v. Brown, 497 U.S. 538, 545 (1987)

(O'Connor, J., concurring).

The sentencing body must have a vehicle for assessing the mitigating nature of

the evidence that reflected on the defendant's personal culpability to determine what

sentence is warranted. Penry, 492 U.S. at 322. “Just as the State may not by statute

preclude the sentencer from considering any mitigating factor, neither may the

sentencer refuse to consider, as a matter of law, any relevant mitigating evidence.”

Eddings, 455 U.S. at 114. Although courts “may determine the weight to be given

relevant mitigating evidence[,]" they “may not give it no weight by excluding such

evidence from their consideration.” /d., 455 U.S. at 115. Restricting consideration of

mitigation creates a risk of an inappropriately severe sentence. Lockett, 438 U.S. at

605. Since “the qualitative difference between death and other penalties calls for a

greater degree of reliability when the death sentence is imposed,” /d. at 604, states

must be able to consider the mitigating evidence of childhood abuse without having to

first find a causal connection between the abuse and the crime. Since it is mitigation,

the sentencer should include it in the weighing process.

2. The Arizona Courts Flatly Refuse to Recognize This Court's Prior

Holdings ‘hat a Traumati inging Is Mitigating Evi ’

Mr. Pandeli's horrific childhood and resulting emotional troubles were clearly

established in a court of law by a preponderance of the evidence. The Arizona

Supreme Court agreed that Mr. Pandeli was subject to repeated sodomy throughout his

childhood, had a neglectful mother and absent father, attempted suicide several times,

had learning disabilities and unsound mental health, was forced to sell his body on the

streets, and had a sexual history wrought with violence and confusion. Pandeli |, 26

P.3d at 1147-1150. Although the Arizona Supreme Court found Mr. Pandeli’s proffered

evidence of his “family and developmental history” and “mental/emotional health”

credible, it refused to consider this evidence as mitigation because there was no causal

26

connection between his abysmal childhood and his appreciation of the wrongfulness of

the conduct or ability to control his conduct. /d., 26 P.3d at 1150-51.

Courts in other jurisdictions have faithfully followed this Court’s precedent and

determine that evidence of a traumatic upbringing is mitigating.* Arizona, however,

regularly dismisses uncontroverted evidence of childhood abuse as irrelevant in the

absence of proof that it somehow caused the crime. The Arizona Supreme Court has

historically restricted its consideration of mitigation where a defendant proves that he

suffered an abusive childhood. The Court repeatedly refuses to consider evidence of a

dysfunctional family as mitigation without a causal connection to the defendant's ability

to perceive, comprehend, or control his actions. See State v. Sansing, 26 P.23d 1118,

1131 (2001); State v. Hoskins, 14 P.3d 997, 1023 (2000); State v. Sharp, 193 Ariz. 414,

973 P.2d 1171 (1999); State v. Mann, 188 Ariz. 220, 231, 934 P.2d 784, 795 (1997);

State v. McKinney, 185 Ariz. 567, 587, 917 P.2d 1214, 1233 (1996); State v. Laird, 186

Ariz. 203, 920 P.2d 769 (1996); State v. Murray (Robert), 184 Ariz. 9, 906 P.2d. 542

(1995); State v. Walden, 183 Ariz. 595, 905 P.2d 974 (1995); State v. Ross, 180 Ariz.

598, 886 P.2d 1354 (1994), cert. denied, 516 U.S. 878 (1995). Sentencing judges are

prevented, as a matter of Arizona law, from considering proven evidence of a difficult

upbringing unless a causal connection is established.

‘See Wright v. Cowan, 149 F.Supp.2d 523, 527-38 (C.D.II1.,2001) (traumatic childhood is

mitigating); Boyd v. French, 147 F.3d 319, 325 (4* Cir. 1998) (troubled upbringing entitled is

mitigating); Blanco v. State, 706 So.2d 7, 10-11 (Fla. 1997) (impoverished childhood is

mitigating); State v. Raglin, 699 N.E.2d 482, 497 (Ohio 1998) (difficult childhood can be entitled

to meaningful weight); Guthrie v. State, 689 So.2d 948 (Ala.Cr.App. 1996) (finding as

nonstatutory mitigation that defendant’s childhood was “not all that it could have been”);

Coleman v. State, 741 N.E.2d 697 (Ind. 2000} (“difficult childhood” was entitled to some

mitigating weight), Buttrum v. State, 293 S.E.2d 334 (Ga. 1982)(deprived childhood is

mitigating).

A dysfunctional family background or difficult childhood can be mitigating

only if the defendant can establish that early experiences, however

negative, affected later criminal behavior in ways that were beyond his

control. Thus, family dysfunction ... can be mitigating only when actual

causation is demonstrated between early abuses suffered and the

defendant's subsequent acts.

Hoskins, 14 P.3d at 1021. “The factual circumstances of defendant's childhood, though

extremely difficult, do not translate into relevant mitigation of his premeditated crimes.”

Id. (emphasis added).

The Arizona statute challenged herein, A.R.S. § 13-703, was found over 10

years ago in Walton v. Arizona to be constitutional because Mr. Walton was “not

complaining that the Arizona statute or practice excludes from consideration any

particular type of mitigating evidence,” but instead was challenging the burden of proof

by which mitigation should be considered. 497 U.S. 639, 649 (1990). This Court

expressly stated that it “has refused to countenance state-imposed restrictions on what

mitigating circumstances may be considered in deciding whether to impose the death

penalty.” /d. “A state may not preclude by statute, nor may a sentencer refuse to

consider, any relevant mitigating evidence.” Eddings, 455 U.S. at 114.

Since Walton, however, the Arizona Supreme Court has repeatedly excluded an

entire category of mitigating evidence offered by capital defendants: mitigating factors

that could not be or were not proven to have caused the crime. Arizona courts are not

able to consider a difficult childhood as mitigation, statutory or non-statutory, unless the

causal connection is established; thus, entire types of mitigation are preciuded in

violation of the rule set forth in Walton.

This Court found such practice impermissible, where “the sentencing judge did

not evaluate the evidence and find it wanting as a matter of fact; rather he found that as

a matter of law he was unable to even consider the evidence.” Eddings, 455 U.S. at

28

113. A categorical denial of credible evidence of a traumatic childhood because it did

not cause the crime is tantamount to denying that evidence as a matter of law. There is

a valid distinction between merely disbelieving evidence which a defendant offers and

precluding consideration of that mitigating evidence altogether when it is proven. The

latter approach, which Arizona takes, is unconstitutional.

After all mitigating evidence is allowed in for consideration, then federal law

allows states to structure their consideration of mitigating factors. For example, if a

state decided to give more weight to the mitigating factor of age than to the mitigating

factor of good behavior in prison, it could do so. Here, there was no "vehicle," under

Arizona law, for the sentencing court to "express[] its ‘reasoned moral response" to the

mitigating evidence. See Penry |, 492 U.S. at 328, and Eddings, 455 U.S. 104. A

sentencing scheme that preciudes individualized sentencing “excludes from

consideration in fixing the ultimate punishment of death the possibility of

compassionate or mitigating factors stemming from the diverse frailties of mankind.”

492 U.S. at 304. Thus, the causal connection requirement, which excludes relevant

evidence and deems it irrelevant, is a direct violation of the Eighth Amendment

protections carved out in Lockett, Eddings, and their progeny.

3. Even If a Causal Connection Were Constitutionally Permissible, Such

Connection Was Demonstrated In This Case.

The unrelenting sexual abuse perpetrated upon Mr. Pandeli was but one of the

constellation of traumas to which Mr. Pandeli was subjected all his life. Prior to the age

of seven, Mr. Pandeli suffered assault, neglect, drug and alcohol addiction, serious

learning disabilities, and an extraordinarily dysfunctional upbringing. RT 5/14/98 at 47-

50. It is reasonable to assume that where an intoxicated, addicted, mentally ill,

learning disabled, traumatized victim of childhood sexual abuse, who is prone to

29

hallucinations, perceives a threat from a sexual situation, his history will affect his

actions. A causal connection is patently obvious from the facts: a boy who was

repeatedly sodomized, forcibly raped at knifepoint, and molested by older women then

turns into a mentally ill man who, in the midst of a sexual situation that induces a

hallucinogenic panic, removes a portion of the victim's breasts from her body. Even

though a qualified medical professional explicitly stated the obvious, that Mr. Pandeli’s

horrific childhood affected his capacity to control or comprehend his actions on the

night of the crime, the Arizona Supreme Court refused to find a causal connection. As

shown from Mr. Pandeli’s case, Arizona's requirement that such a relationship be

proved thus effectively prevents the sentencer from considering such evidence at all in

most cases. If Certiorari should be granted here, Arizona's gross and systemic

disregard of the teachings of Lockett and Eddings should be corrected.

G. Respondent Was Denied His Right to Counsel When the Arizona Supreme

Court Consolidated His Case with 30 Others and Appointed One Lawyer to Brief

and Argue for All Defendants.

Following this Court’s remand of Respondent's case to the Arizona Supreme

Court for consideration in light of Ring //, the Arizona Supreme Court consolidated

Respondent's case with those of thirty other capital defendants then pending direct

appeal. The Court further ordered that one “lead counsel” would be responsible for all

briefing and argument before that Court. Although Respondent objected repeatedly to

this process, he was forced to accept representation by one lawyer, counsel for

Timothy Ring. As a result, Respondent was not able to present all of the arguments

entitling him to relief. By compelling him to accept conflicted counsel and forcing him to

rely on the truncated and over-generalized arguments that resulted, Respondent was

deprived of effective representation under the Sixth Amendment.

30

Arizona requires that “[a] judge shall accord to every person who has a legal

interest in a proceeding, or that person's lawyer, the right to be heard according to law.”

Ariz. R. Sup.Ct. 81, Canon 3.B(7). The ethical requirement that a court must allow a

defendant the right to be heard was more compelling here, for the requirement fulfills

the constitutional mandate for the enactment of capital sentencing statutes by the

states. To pass constitutional muster, a capital sentencing scheme must allow for an

individualized determination of death-worthiness that includes a full consideration of

any mitigating circumstances, and that weighs the appropriateness of the death

sentence for the person and the crime.

For it is only when the jury is given a “vehicle for expressing

its ‘reasoned moral response’ to that evidence in rendering

its sentencing decision,” that we can be sure that the jury

“has treated the defendant as a ‘uniquely individual human

being’ and has made a reliable determination that death is

the appropriate sentence.”

Penry v. Johnson, 532 U.S. 782, 797 (2001)(internal citations omitted).

By adopting the consolidation strategy, the vast majority of the thirty-one

defendants were not heard. Not only were the procedural postures of the defendant's

cases varied,° but at least seven different aggravators were at issue, in some cases

singly and in others in combination. By allowing the filing of only one brief, and the

argument of only one lawyer — and that a lawyer totally unfamiliar and incapable of

becoming familiar with the specific facts and legal issues pertinent to most of the

appellants’ crucial arguments — it was impossible for the court to be adequately

informed on the issues before it. This precluded an application of law to the facts of an

individual’s case.

-_

-_

* The procedural postures of the consolidated case ranged from appellants who had not

even filed their appellate briefs to appellants whose appeals had been decided, and remanded by

this Court after certiorari review.

31

ell

PEUI ASS SRE

SSRN Gra EI aT ACTIN ROT NET

The reality of the consolidation orders was this: regardless of which counsel

attempted the impossible task of effectively drafting and filing the brief, no counsel

could be selected who represented a client on every issue involved. Thus, of

necessity, on numerous issues, clients did not receive the critical ingredient of

undivided loyalty and diligent and zealous advocacy to which each was entitied. Yet,

given that this was the only brief the court considered on behalf of Respondent on

these life and death issues, his counsel had no alternative but to include Respondent

on the brief despite serious concerns about arguments and facts included in, and

omitted from, the brief.

The conflict was magnified at oral argument. The court allowed one forty-five

minute argument by one counsel on the varying issues, only a few of which affected all

Appellants and most of which affected only some, but not other, Appellants. Although

any oral argument requires counsel to choose what issues on which to focus, this case

presented additional, insurmountable obstacles to the counsel who attempted to

represent all of the Appellants, including those whose best interests diverged from

arguing counsel's client.° Arguing counsel had an obligation to select issues to argue

that would not harm his client or any other appellant in the consolidated group. Of

course, that could not be done. Even if it could, counsel would necessarily have .

violated his duty of loyalty and zealous representation to the individual client to

represent only the client's interests, and not serve two, much less thirty, other masters

°For example, arguing counsel’s client, Timothy Ring, was convicted of one, and only one,

aggravating factor: pecuniary gain. Respondent was convicted of two aggravating factors: prior

conviction and especially cruel, heinous, and depraved. Mr. Ring’s case, then, did not even

present several issues critical to Respondent: 1) whether prior conviction aggravating factors are

exempt from Ring I]; 2) whether a finding of one aggravating factor which arguably does not

violate Ring I] ends a court’s inquiry; and 3) whether the especially cruel, heinous, and depraved

finding by a judge can ever be harmless.

32

with varying and conflicting interests. See Glasser v. United States, 315 U.S. 60, 75

(1942). In the final analysis, the consolidation procedure allowed no Appellant to

receive what the constitution requires: an effective counsel who “play[s] the role of an

active advocate, rather than a mere friend of the court,” Evitts v. Lucey, 469 U.S. 387,

394 ( 1985), and who observes a duty of "zealous and loyal representation,” Nix v.

Whiteside, 475 U.S. 157, 188 (1986). And the most insidious element of the harm is

that it is most apparent in what is not apparent at all, hidden from view by the sin of

omission. As this Court explained in Holloway v. Arkansas, 435 U.S. 475, 489-490

(1978): “Joint representation of conflicting interests is suspect because of what it tends

to prevent the attorney from doing.”

In Strickland v. Washington, 466 U.S. 668, 685 (1984), this Court explained that

a fair trial depended upon adversarial testing, and that adversarial testing in turn

depended upon effective counsel:

That a person who happens to be a lawyer is present at trial

alongside the accused, however, is not enough to satisfy the

constitutional command. The Sixth Amendment recognizes the

right to the assistance of counsel because it envisions

counsel's playing a role that is critical to the ability of the

adversarial system to produce just results. An accused is

entitled to be assisted by an attorney, whether retained or

appointed, who plays the role necessary to ensure that the trial

is fair.

Id. This Court also defined what counsel was expected to bring to the court on behalf

of his client:

Representation of a criminal defendant entails certain basic duties.

Counsel's function is to assist the defendant, and hence counsel owes the

client a duty of loyalty, a duty to avoid conflicts of interest. From counsel's

function as assistant to the defendant derive the overarching duty to

advocate the defendant's cause and the more particular duties to consult

with the defendant on important decisions and to keep the defendant

informed of important developments in the course of the prosecution.

33

Counsel also has a duty to bring to bear such skill and knowledge as will

render the trial a reliable adversarial testing process.

Id. at 688. Here, by asking one lawyer to write and speak on behalf of all thirty-one, the

court promoted precisely the opposite: conflicted counsel who was put into a position

where he could not advocate any single appellant's cause, and was placed under

restrictions of time and space so that he could not utilize his skill and knowledge on

behalf of each appellant. Unable to advance arguments that reflected effective counsel

to each appellant, his representation of all was per se ineffective.

These concerns are no less vital on appeal. Penson v. Ohio, 488 U.S. 75, 86-88

(1988). Itis the responsibility of the appellate court to ensure that counsel's

representation “be untrammeled and unimpaired by a court order requiring that one

lawyer should simultaneously represent conflicting interests.” Glasser v. United States,

315 U.S. at 70. See also, Chauffeurs, Teamsters and Helpers, Local No. 391 v. Terry,

494 U.S. 558, 586 (1990) (Kennedy, J., dissenting) ("[T]he lawyer's duty of loyalty long

has precluded the representation of conflicting interests."). The conflict and its

consequences were presented repeatedly to the court, which in turn ignored the

conflict, presumptively undermining the adversarial process. Mickens v. Taylor, 122

S.Ct. 1237, 1241-1242 (2002)(quoting Holloway, 435 U.S. at 488, 490 (1978) (“The

presumption was justified because joint representation of conflicting interests is

inherently suspect, and because counsel's conflicting obligations to multiple

defendants ‘effectively seal his lips on crucial matters’ and make it difficult to measure

the precise harm arising from counsel's errors.”); see also Glasser, 315 U.S. at 71

34

(“instead of jealously guarding Glasser’'s rights, the court may fairly be said to be

responsible foi creating a situation which resulted in the impairment of those rights.) A

cert grant which might result in a remand to the Arizona Supreme Court should address

this issue of whether Respondent was denied his right to counsel on appeal due to the

conflict.

CONCLUSION

Because the Arizona Supreme Court's decision rests on state law, and because

the disposition of the case this petition challenges is correct for a number of reasons in

addition to those adopted by the Arizona Supreme Court, the petition for certiorari

should be denied. If the petition is granted, the Arizona Supreme Court's decision

should be affirmed for all the reasons set out above.

Respectfully submitted,

LSA

Juke S. Hall

Attorney for Respondent

nomena

CERTIFICATE OF SERVICE

| hereby certify that on this 2nd day of September, 2003, one copy of the attached

document was deposited in the United States mailbox, first-class postage prepaid,

and addressed to counsel for the State of Arizona, Mr. Kent Cattani, Office of the

Attorney General, 1275 West Washington, Phoenix, AZ 85007. | further certify that

all parties required to be served have been served.

lic S. Hash

S. Hall

re ona Bar No. 017252

9387 N. Painted Sky Dr.

Tucson, AZ 85743

(520) 744-8994

Counsel of Record for Petitioner

APPENDIX A

A.R.S. § 13-703. Sentence of death or life imprisonment, aggravating and mitigating

circumstances; definition

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 or natural life as

determined and in accordance with the procedures provided in section 13-703.01. A defendant

who is sentenced to natural life is not eligible for commutation, parole, work furlough, work

release or release from confinement on any basis. If the defendant is sentenced to life, the

defendant shall not be released on any basis until the completion of the service of twenty-five

calendar years if the murdered person was fifteen or more years of age and thirty-five years if the

murdered person was under fifteen years of age.

B. At the aggravation phase of the sentencing proceeding that is held pursuant to § 13-703.01, 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 applicable to criminal trials.

The burden of establishing the existence of any of the aggravating circumstances set forth in

subsection F of this section is on the prosecution. The prosecution must prove the existence of the

aggravating circumstances beyond a reasonable doubt.

C. At the penalty phase of the sentencing proceeding that is held pursuant to § 13-703.01, the

prosecution or the defendant may present any information that is relevant to any of the mitigating

circumstances included in subsection G of this section, regardless of its admissibility under the

rules governing admission of evidence at criminal trials. The burden of establishing the existence

of the mitigating circumstances included in subsection G of this section is on the defendant. The

defendant must prove the existence of the mitigating circumstances by a preponderance of the

evidence. If the trier of fact is a jury, the jurors do not have to agree unanimously that a mitigating

circumstance has been proven to exist. Each juror may consider any mitigating circumstance

found by that juror in determining the appropriate penalty.

D. Evidence that is admitted at the trial and that relates to any aggravating or mitigating

circumstances shall be deemed admitted as evidence at a sentencing proceeding if the trier of fact

considering that evidence is the same trier of fact that determined the defendant's guilt. The

prosecution and the defendant shall be permitted to rebut any information received at the

aggravation or penalty phase of the sentencing proceeding and shall be given fair opportunity to

present argument as to whether the information is sufficient to establish the existence of any of the

circumstances included in subsections F and G of this section.

E. In determining. whether to impose a sentence of death or life imprisonment, the trier of fact

shall take into account the aggravating and mitigating circumstances that have been proven. The

trier of fact shall impose a sentence of death if the trier of fact finds one or more of the

aggravating circumstances enumerated in subsection F of this section and then determines that

there are no mitigating circumstances sufficiently substantial to call for leniency.

F. The trier of fact 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 preparatory 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.

8. The defendant has been convicted of one or more other homicides, as defined in § 13-1101,

that 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

the officer's official duties and the defendant knew, or should have known, that the murdered

person was a peace officer.

G. The trier of fact shall consider as mitigating circumstances any factors proffered by the

defendant or the state that 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 substantial 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 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. For the purposes of this section,

"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:

1. First degree murder.

2. Second degree murder.

3. Manslaughter.

4. Aggravated assault resulting in serious physical injury or committed by the use, threatened use

or exhibition of a deadly weapon or dangerous instrument.

5. Sexual assault.

6. Any dangerous crime against children.

7. Arson of an occupied structure.

8. Robbery.

9. Burglary in the first degree.

10. Kidnapping.

11. Sexual conduct with a minor under fifteen years of age.

APPENDIX B

Page |!

AZ ST § 13-703.01

A.R.S. § 13-703.01

ARIZONA REVISED STATUTES ANNOTATED

TITLE 13. CRIMINAL CODE

CHAPTER 7. IMPRISONMENT

Copr. © West Group 2002. All rights reserved.

Current through End of the Forty-Fifth Legislature,

Second Regular and Fifth Special Sessions (2002)

§ 13-703.0i. Sentences of death or life imprisonment; imposition; sentencing proceedings; definitions

A. If the state has filed a notice of intent to seek the death penalty and the defendant is convicted of first degree

murder, the trier of fact at the sentencing proceeding shall determine whether to impose a sentence of death. If the state

has not filed a notice of intent to seek the death penalty and the defendant is convicted of first degree murder, the court

shall determine whether to impose a sentence of life or natural life.

B. Before trial, the prosecution shall notice one or more of the aggravating circumstances under § 13-703, subsection

P.

C. If the trier of fact finds the defendant guilty of first degree murder, the trier of fact shall then immediately determine

whether one or more alleged aggravating circumstances have been proven. This proceeding is the aggravation phase

of the sentencing proceeding.

D. If the trier of fact finds that one or more of the alleged aggravating circumstances have been proven, the trier of

fact shall then immediately determine whether the death penalty should be imposed. This proceeding is the penalty

phase of the sentencing proceeding.

E. At the aggravation phase, the trier of fact shall make a special finding on whether each alleged aggravating

circumstance has been’ proven based on the evidence that was presented at the trial or at the aggravation phase. Ifthe

trier of fact is a jury, a unanimous verdict is required to find that the aggravating circumstance has been proven. If

the trier of fact unanimously finds that an aggravating circumstance has not been proven, the defendant is entitled to

a special finding that the aggravating circumstance has not been proven. If the trier of fact unanimously finds no

aggravating circumstances, the court shall then determine whether to impose a sentence of life or natural life on the

defendant.

F. The penalty phase shall be held intmediately after the trier of fact finds at the aggravation phase that one or more

of the aggravating circumstances under § 13-703, subsection F have been proven. A finding by the trier of fact that

any of the remaining aggravating circumstances alleged has not been proven or the inability of the trier of fact to agree

on the issue of whether any of the remaining aggravating circumstances alleged has been proven shall not prevent the

holding of the penalty phase.

G. At the penalty phase, the defendant and the state may present any evidence that is relevant to the determination

of whether there is mitigation that is sufficiently substantial to cal! for leniency. In order for the trier of fact to make

this determination, the state may present any evidence that demonstrates that the defendant should not be shown

leniency.

H. The trier of fact shall determine unanimously whether death is the appropriate sentence. If the trier of fact is a jury

and the jury unanimously determines that the death penalty is not appropriate, the court shall determine whether to

Copr. © West 2002 No Claim to Orig. U.S. Govt. Works

Page 2

impose a sentence of life or natural life.

I. If the trier of fact at any prior phase of the trial is the same trier of fact at the subsequent phase, any evidence that

was presented at any prior phase of the trial shall be deemed admitted as evidence at any subsequent phase of the trial.

J. At the aggravation phase, iF the trier of fact is a jury, the jury is unable to reach a verdict on any of the alleged

aggravating circumstances and the jury has not found that at least one of the alleged aggravating circumstances has

been proven, the court shall dismiss the jury and shall impanel a new jury. The new jury shall not retry the issue of

the defendant's guilt or the issue regarding any of the aggravating circumstances tat the first jury found not proved

by unanimous verdict. If the new jury is unable to reach a unanimous verdict, the court shall impose a sentence of life

or natural life on the defendant.

K. At the penalty phase, if the trier of fact is a jury and the jury is unable to reach a verdict, the court shall dismiss

the jury and shall impanel a new jury. The new jury shall not retry the issue of the defendant's guilt or the issue

regarding any of the aggravating circumstances that the first jury found by unanimous verdict to be proved or not

proved. If the new jury is unable to reach a unanimous verdict, the court shall impose a sentence of life or naturai life

on the defendant.

L. If the jury that rendered a verdict of guilty is not the jury first impaneled for the aggravation phase, the jury

impaneled in the aggravation phase shall not retry the issue of the defendant's guilt. If the jury impaneled in the

aggravation phase is unable to reach a verdict on any of the alleged aggravating circumstances and the jury has sot

found that at least one of the alleged aggravating circumstances has been proven, the court shall dismiss the jury and

shall impanel a new jury. The new jury shall not retry the issue of the defendant's guilt or the issue regarding any of

the aggravating circumstances that the first jury found not proved by unanimous verdict. If the new jury is unable to

reach a unanimous verdict, the court shall impose a sentence of life or natural life on the defendant.

M. Alternate jurors who are impaneled for the trial in a case in which the offense is punishable by death shall not be

excused from the case until the completion of the sentencing proceeding.

N. If the sentence of a person who was sentenced to death is overturned, the person shall be resentenced pursuant to

this section by a jury that is specifically impaneled for this purpose as if the original sentencing had not occurred.

O. In any case that requires sentencing or resentencing in which the defendant has been convicted of an offense that

is punishable by death and in which the trier of fact was a judge or a jury that has since been discharged, the defendant

shall be sentenced or resentenced pursuant to this section by a jury that is specifically impaneled for this purpose.

P. The trier of fact shall make all factual determinations required by this section or the constitution of the United States

or this state to impose a death sentence.

Q. Subject to the provisions of § 13-703, subsection B, a victim has the right to be present at the aggravation phase

and to present any information that is relevant to the proceeding. A victim has the right to be present and to present

information at the penalty phase. At the penalty phase, the victim may present information about the murdered person

and the impact of the murder on the victim and other family members and may submit a victim impact statement in

any format to the trier of fact.

R. For the purposes of this section:

1. "Trier of fact” means a jury unless the defendant and the state waive a jury, in which case the trier of fact shall be

the court.

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.

Copr. © West 2002 No Claim to Orig. U.S. Govt. Works

-

APPENDIX C

Page |

26 P.3d 1136

(Cite as: 200 Ariz. 365, 26 P.3d 1136)

Supreme Court of Arizona.

STATE of Arizona, Appellee,

Vv.

Darrel Peter PANDELI, aka Darrel Peter Florian, Appellant.

No. CR 98-0376-AP.

July 17, 2001.

Defendant was convicted in Superior Court, Maricopa County, No. CR-98-0376- AP, Gregory H. Martin, J., of first

degree murder, and sentenced to death. Defendant appealed. The Supreme Court, Jones, Vice C.J., held that: (1)

defendant was not entitled to offer his confession as a statement against interest without taking the stand to testify; (2)

trial court was warranted in omitting instruction on manslaughter; (3) victim's murder was committed in an especially

heinous, cruel or depraved manner; (4) defendant failed to establish that he was incapable of appreciating wrongfulness

of his conduct, or that he could not conform his conduct to requirements of law; and (5) mitigating factors failed to

provide sufficient reason to call for leniency.

Affirmed.

West Headnotes

{1) Criminal Law © 1153(1)

LLOKLIS 301) Most Cited C ses

Supreme Court reviews a trial judge's refusal to admit defendant's confession for abuse of discretion; decisions to

exclude such evidence remain within the sound discretion of the trial court and will be reversed on appeal only upon

a showing of clear, prejudicial abuse, such that the prejudice was sufficient to create a reasonable doubt about whether

the verdict might have been different had the error not been committed.

{2) Criminal Law ©417(15)

LORS 715) Most Cited Cases

To admit statement against declarant's interest offered to exculpate accused, (1) the declarant must be unavailable,

(2) the statement must be against the declarant's interest, and (3) there must be corroborating evidence that indicates

the statement's trustworthiness; all three requirements must be satisfied. 17A <2 S Rules offi Rule sobby

{3} Criminal Law © 417(15)

Lihd! “(1 S) Most Cited Cases

If a non-defendant declarant asserts the Fifth Amendment privilege against self-incrimination, he is deemed

unavailable as a witness for purposes of statement against interest exception to hearsay rule. | SC \ Const Amend

[4) Criminal Law €517(7)

RSI) Most Cited Cases

Murder defendant was not entitled to offer his confession as a statement against interest without taking the stand to

testify, defendant was not “unavailable” as contemplated by rule governing evidence of statement against interest, since

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defendant had ability to compel himself to testify, but chose, instead, to avoid cross-examination by asserting Fifth

Amendment privilege against self-incrimination. | SC \ Const Amend 3; ITA ARS Rules of Fuid Rule

SO4 DIG).

[5] Criminal Law ©517(7)

LOkS 17) Most Cited Cases

When a defendant proffers his own confession for exculpatory purposes, the statement constitutes inadmissible hearsay

not in compliance with Rule governing admission of statements against interest. 17A \ RS Rules of Frid Rule

U4 D) 3 ).

{o} Criminal Law €>419(2.20)

LLORS 192 20) Most Cyted Cases

Murder defendant's statement that he felt angered and threatened by the victim failed to qualify as present state of mind

evidence as exception to hearsay rule, given that the statement was given to police two days after the murder, and it

described nothing more than asserted memory of past events, rather than present feeling or future intent. 17A \ RS

Rules of Evid. Rule 803(3).

{°] Criminal Law 1173.3

LORI” 33 Most Cited Cases

(Formerly 203k341)

By convicting defendant of first-degree murder and ignoring lesser-included offenses of second-degree murder, jury

necessarily rejected all lesser-included crimes, and thus, trial court was warranted in omitting instruction on

manslaughter, and any error was harmless.

[8] Sentencing and Punishment 1788(5)

SSOHBRITSS( 3) Most Cited Causes

Independent review by the Supreme Court of aggravation and mitigation findings of the trial court ensures that a death

penalty is not imposed arbitrarily, is reserved for exceptional cases which satisfy statutory aggravation standards, and

is the appropriate sanction for the crime in question.

{°| Sentencing and Punishment © 1788(5)

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The Supreme Court will review the record in a capital murder case to determine the presence or absence of aggravating

and mitigating circumstances, as well as the weight to be accorded each circumstance.

{10} Sentencing and Punishment ©1771

SOHAIL Most Cited Cases

Aggravating circumstances must be proven beyond a reasonable doubt in order to support imposition of the death

sentence, although both statutory and non- statutory mitigating circumstances may be proven by a preponderance of

the evidence.

| 11) Semtencing and Punishment >1788(5)

SOHKIT SS. 8) Most Cited Cases

When mitigation evidence on independent review by the Supreme Court of a death sentence is conflicting and entails

considerations of credibility, the Court will accord deference to the trial court's conclusions, but will be independently

responsible for weighing al! factors to determine ultimately whether proven mitigating circumstances, measured

separately or cumulatively, are sufficient to outweigh aggravating circumstances established on the record.

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[12] Sentencing and Punishment 1756

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[12} Sentencing and Punishment ©1757

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Rules of evidence governing admissibility differ as between aggravating and mitigating circumstances in determination

of whether death sentence will be imposed; information relevant to any mitigating circumstances may be presented by

either the prosecution or the defendant, regardless of its admissibility under the rules governing admission of evidence

at criminal trials, however, the admissibility of information relevant to any aggravating circumstance shall be governed

by the rules of evidence. APS § | >-71)3, subd. C (2000).

[13] Sentencing and Punishment ©1652

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A court cannot impose death penalty unless it finds that the State has proved at least one aggravating factor. \ 2S

S 13-703, subd. F (2000).

[14] Sentencing and Punishment 1705

SSOHKITOS Most € ited Cases

[14] Sentencing and Punishment ©1771

SSOHKI" "1 Most Cited Causes

Aggravating circumstance consisting of a previous conviction of a serious offense was established beyond a reasonable

doubt at defendant's sentencing hearing for first-degree murder, where state presented unchallenged, second- degree

murder conviction of defendant. \ RS 3 | 3-05, subd. F, par. 2 (2000).

{15} Sentencing and Punishment ©1633

SSUHK LOS Most Cited Cases

Date of the crime for which a death sentence was given is the date used to evaluate whether the new version of statute

governing aggravating circumstance of previous conviction of a serious offense applies. \ 2 Ss | °-~\)*, subd. F, par.

2 (2000).

{16} Sentencing and Punishment 1684

SSUHKIOSS Most Cited Causes

To find that a murder fits within statutory aggravating circumstance as especially heinous, cruel or depraved, so as to

warrant death sentence, the State must prove that the crime was committed in a manner that places it above the norm

for first degree murcer, and because the statute is worded in the disjunctive, any one of three elements--heinousness,

cruelty, or depravity-is independently sufficient. \ RS : | °-7\)%, subd. F, par. 6 (2000).

[17] Sentencing and Punishment ©1684

SSOHKRIONS Most Cred Cases

For purposes of applying statute governing aggravating circumstance for murder committed in an especially heinous,

cruel or depraved manner, so as to warrant death sentence, unlike cruelty, which focuses on a victim's mental suffering

and physical pain, heinousness and depravity pertain to the killer's state of mind during and immediately following

the murder, as evidenced by his words or conduct. - & S_: | °-~\)*, subd. F, par. 6 (2000).

LIS} Semtencing and Punishment (1684

SOHR LOSS Most Cited Cases

Maiming a victim beyond the point necessary to fulfill a defendant's criminal purpose, or beyond the point necessary

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tokill, constitutes gratuitous violence so as to establish heinousness and depravity aggravating circumstance warranting

death penalty.

[19] Sentencing and Punishment ©1684

SSOHKLOSS Most Cited Cases

Evidence that defendant attempted to strangulate victim, and that he struck her with enough blows to fracture her

sternum, far exceeded that necessary to show that defendant merely intended to retrieve money paid to victim or to take

her life, which was accomplished with a single knife slash to the throat, thus, showing that defendant acted with

gratuitous violence, and supporting finding ofheinousness and depravity as aggravating circumstance warranting death

penalty. \ RSs 13-703, subd. F, par. 6 (2000).

[20] Sentencing and Punishment ©1684

SSOHKIOSS Most Cited Cases

"Mutilation" as an element of heinousness and depravity is an act distinct from the killing itself that includes the

purposeful severing of body parts. \ R.'S_s 13-703, subd. F, par. 6 (2000).

[21] Semtencing and Punishment ©1684

SSOHKLOS4 Most Cited Cases

A finding of mutilation requires some demonstration that the defendant acted with a separate purpose to mutilate the

corpse.

[22] Sentencing and Punishment 1684

SSOHKIOS4S Most Cited Cases

Evidence that defendant excised parts of both breasts after the death due to anger was sufficient to show that defendant

mutilated the victim, so as to support finding of heinousness and depravity as aggravating circumstance warranting

death penalty. \ RS 3 | °-"0)3, subd. F, par. 6 (2000).

[23] Sentencing and Punishment €1788(5)

SSOHBITSN(S) Most Cited Cases

On review of a death sentence, the Supreme Court will assess both statutory and non-statutory mitigating factors; the

former includes significant mental impairment, while the latter, includes any facet of defendant's character,

propensities or record, and any other circumstances of the offense.

[24] Sentencing and Punishment €1757

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The purpose of mitigation evidence is to permit the court to determine whether a sentence less severe than death is

appropriate; if evidence of mitigation fails to meet the relevant statutory standard, the court must then consider whether

it may constitute non-statutory mitigation.

[25] Sentencing and Punishment 1658

SSOHRIOSS Most Cited Causes

[25] Semtencing and Punishment 1757

SSOHKI"S~ Most Cited Cises

Although the court in capital murder case must consider all relevant evidence offered in mitigation at sentencing, not

all proffered evidence must be found by the court to be mitigating, and even if mitigating, such evidence may deserve

no more than slight or nominal weight.

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[26] Sentencing and Punishment ©1661

SSOHK LOOT Most Cited Cases

[26] Sentencing and Punishment 1771

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The existence of mitigating circumstances is subject to a preponderance of the evidence standard; the court has

discretion to determine how much weight, if any, to give each factor.

[27] Sentencing and Punishment €=>1709

SS0HKI7U9 Most Cited Cases

To qualify for a finding of significant impairment to establish statutory mitigating circumstance at sentencing in a

capital murder case, a defendant must demonstrate that his capacity to appreciate the wrongfulness of his conduct or

to conform his conduct to the requirements of law was significantly impaired; proof of incapacity as to either

component will establish mitigation.

[28] Sentencing and Punishment ©1709

SSOHKIT09 Most Cited Cases

A diagnosed mental illness may establish a mitigating sentencing factor of incapacity to appreciate wrongfulness of

conduct, or to conform his conduct to the requirements of law, in capital case. \ R.S_ 1 °-"0)5, subd. G, par. 1 (2000).

[29] Sentencing and Punishment ©1772

SSOHKRIATT? Most Cited Cases

In determining the existence of significant impairment mitigation in capital murder case, the trial judge has broad

discretion in evaluating the weight and credibility of expert mental health evidence. \ R.S_3 1-05, subd. G, par.

1 (2000).

[30] Sentencing and Punishment ©1789(8)

SSOHKIT S898) Most Cited Cases

When mitigation evidence in capital murder case conflicts and entails considerations of credibility, Supreme Court will

give substantial deference to the trial court's determinations. \ 2 3: ii-"i', subd. G, par. | (2000).

[31] Sentencing and Punishment ©1709

SSOHKIT09 Most Cited Cases

Capital murder defendant failed to establish at sentencing that he was incapable of appreciating wrongfulness of his

conduct, or that he could not conform his conduct to requirements of law, so as to establish statutory mitigating

circumstance ofa significant impairment; although defendant's mental health expert concluded that defendant suffered

from paranoid schizophrenia and post traumatic stress disorder (PTSD), state's psychological expert rejected those

diagnoses, in part, because defendant maintained an active social life and exhibited ability to interact with others and,

at most, exhibited traits of a person with an antisocial personality disorder, while defendant's initial denial of his

involvement in the crime and attempt to eliminate evidence showed his understanding of the wrongfulness of his

actions. \ RS _s 13-703, subd. G, par. 1 (2000).

[32] Sentencing and Punishment <—1788(5)

SSOHKIT SRS) Most Cited Cases

Even if a psychological disorder does not rise to the level of mental disease or defect originally contemplated as a

statutory mitigating circumstance in capital murder case, the Supreme Court will continue to assess the evidence to

determine whether non-statutory mitigation may be sufficient to warrant a reduction in sentence, and will also

determine whether the required causal nexus exists between any mental or personality disorder and the defendant's

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criminal acts.

[33] Sentencing and Punishment €1788(5)

SSOHKITS8(S) Most Cited Cases

Supreme Court's primary task when assessing evidence of mental disorder in capital murder case is to determine its

mitigating weight.

[34] Sentencing and Punishment ©1709

SSOHKITO9 Most Cited Cases

A nexus is established by evidence, testimonial or otherwise, connecting defendant's mental or personality disorder with

his capital crime.

[35] Sentencing and Punishment 1709

SSUHKIL709 Most Cited Cases

Evidence, though conflicting, was insufficient to find a nexus between defendant's personality disorder, as a

non-statutory mitigating circumstance, and crime of capital murder, where state's psychological expert rejected

defendant's expert's diagnosis and opinion of causal link, stating unequivocally that the defendant was neither

experiencing paranoid delusions, nor was schizophrenia or any other mental disorder a factor which caused the crime

to occur, but rather, defendant was in control of his actions and fully understood what he was doing.

[36] Sentencing and Punishment ©1685

SSOHKLOSS Most Cited Cases

When a jury verdict finding defendant guilty beyond a reasonable doubt is supported by very strong evidence, trial court

may refuse to find the nonstatutory mitigating circumstance of residual doubt, even where the verdict is grounded in

circumstantial evidence.

[37] Sentencing and Punishment ©1685

SSOHKILOSS Most Cited Cases

No evidentiary basis existed for finding nonstatutory mitigating circumstance of residual doubt in capital murder case,

where victim was beaten and strangled before the killing, affording defendant an opportunity to consider what he was

doing, and no forensic evidence reflected a struggle between victim and defendant, as defendant had claimed.

[38] Sentencing and Punishment 1718

SSOHKIT IS Most Cited Cases

Potential for rehabilitation during a life sentence may constitute a mitigating circumstence in a capital murder case.

[39] Sentencing and Punishment 1718

SSOHRIT LS Most Cited Cases

Defendant's potential for permanent rehabilitation, even if mitigating, could be accorded only the slightest weight,

given that defendant's incarceration had been spent in administrative segregation where te has had fewer opportunities

to interact with others.

[40] Sentencing and Punishment ©1721

SSOHKI- 21 Most Cited Cases

Evidence at sentencing hearing that capital murder defendant had been a model prisoner and had not been involved

in difficulties or altercations while in prison and had adjusted to his incarceration was of minimal weight as a

nonstatutory mitigating circumstance.

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[41] Sentencing and Punishment 1721

SSOHKIT IL Most Cited Cases

Good conduct during pretrial and presentence incarceration may be, but is not always, mitigating at sentencing in

capital murder case.

[42] Sentencing and Punishment ©1721

SSOHKI OL Most Cited Cases

Uncontradicted evidence at the sentencing hearing establishing that capital murder defendant taught himself to read

and write while incarcerated was entitled only to minimal mitigation.

[43] Sentencing and Punishment ©1715

SSOHRIT LS Most Cited Cases

Evidence offered by capital murder defendant that defendant had contracted hepatitis C, which would shorten his life

did not qualify as a nonstatutory mitigating circumstance.

[44] Sentencing and Punishment 1704

2SOHKITO4 Most Cited Cases

Fact that prior murder committed by defendant occurred more than a year earlier was not entitled to any weight in

mitigation at sentencing for capital murder.

[45] Sentencing and Punishment ©1719

SSOHRIT LY Most Cited Cases

Capital murder defendant's cooperation with the police through forensic testing did not qualify as a nonstatutory

mitigating circumstance, where such cooperation occurred only when defendant believed his guilt was discoverable,

after he had already sought to hide or destroy evidence, evade detection, and had denied knowledge of the crime.

[40] Sentencing and Punishment ©1719

SSOHKITLY Most Cited Cases

Admission of guilt and cooperation with the police in a capital murder case can be a mitigating circumstance at

sentencing.

[47] Sentencing and Punishment ©1718

SSUOHKIT ES Most Cited Cases

Remorse over the killings of defendant's two victims was established as a mitigator, where defendant expressed regret

over the pain brought upon victim's families, and defendant's remorse appeared genuine and mitigating.

[48] Sentencing and Punishment ©1718

SAOHRITES Most Cited Cases

Genuine remorse may constitute non-statutory mitigation at sentencing for committing a capital crime.

[49] Sentencing and Punishment 1721

SSGHKI- 21 Most Cited Cases

Capital murder defendant's religious faith, found after conviction and incarceration, was entitled only to slight

mitigating weight.

[50] Sentencing and Punishment ©1721

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SSOHKL721 Most Cited Cases

New-found religious faith may be considered non-statutory mitigation. ~

[51] Sentencing and Punishment ©1702

SSOHKLTO2 Most Cited Cases

Capital murder defendant was not entitled to have evidence of general good character considered as a nonstatutory

mitigating circumstance, though prior to the two murders, defendant had no trouble with the law, given that the two

murders were committed just over one year apart.

[52] Sentencing and Punishment €1702

SSOHKI702 Most Cited Cases

[52] Sentencing and Punishment ©1704

SSOHKI704 Most Cited Cases

Evidence of no prior crimes, as well as evidence of general good character may be mitigating circumstance in capital

murder case.

[53] Sentencing and Punishment 58

SS0HKSS8 Most Cited Cases

Aggravating and mitigating circumstances are evaluated both separately and cumulatively by the sentencing court;

when at least one aggravator is found and one or more mitigators is established, the Supreme Court must decide

whether the mitigation is sufficiently substantial to call for a reduction in sentence.

[54] Sentencing and Punishment ©1684

SSOHKLOS4 Most Cited Cases

[54] Sentencing and Punishment ©1700

SS0HKIT00 Most Cited Cases

Mitigating factors, viewed separately or cumulatively, such as capital murder defendant's potential for rehabilitation,

adaption to incarceration, remorse, and religious faith, failed to provide sufficient reason to call for leniency in light

of his prior murder of another victim, as well as the especially heinous, cruel or depraved nature of the most recent

murder, where defendant attempted to strangle victim, and struck her with enough blows to fracture her sternum, before

killing her with a knife, and subsequently mutilating her body. \ RSs 13-703, subd. F, pars. 2, 6 (2000).

##1141*370_ Janet Napolitano, Attorney General, by Paul J \ic\iurdic, Criminal Appeals Chief Counsel and Kent

F_Catiani, Assistant Attorney General, Phoenix, Attorneys for Appellee.

} Douglas MeVus, Phoenix, Attorney for Appellant.

OPINION

JONES, Vice Chief Justice. F

{ | Defendant Darrel Peter Pandeli (defendant) was convicted by a jury of first degree murder and was sentenced to

death by the trial judge. The case is before us on direct review, pursuant to Rules 26 |S and 312 of the Anivona Rules

of Criminal Procedure. We have jurisdiction pursuant to arch VES 3) of the \nvone Constitution and Arizona

Revised Statutes (A.R.S.) §§ 13-4031 (1989) and 13-703.01 (Supp.1999).

PROCEDURAL HISTORY

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| 2 The State charged defendant with two counts of premeditated murder: count one for the murder of Teresa

Humphreys and count two for the murder of Holly Iler. Humphreys was murdered more than a year before Iler. The

two counts were severed for trial.

4 3 In February 1996, a jury convicted defendant of second degree murder for the Humphreys death. The trial court

sentenced him to twenty years in prison. Defendant appealed the conviction, and the court of appeals affirmed. This

appeal pertains exclusively to the conviction and sentence in the Iler case.

4 4 Defendant's trial for the Iler murder commenced in June 1997. At the close of the State's case, defense counsel

moved for a directed verdict on premeditated murder, arguing that no evidence of premeditation existed and asking

the trial court to allow the jury to consider only second degree murder and its lesser-included offenses. The trial court

denied the motion. Defendant did not testify, and defense counsel presented no evidence because defendant did not

contest the allegation that he killed Iler. He challenged only the element of premeditation in connection with the

murder charge.

45 The jury, instructed on both first and second degree murder, returned its verdict July 2, 1997, convicting defendant

of first degree murder. The sentencing hearing lasted eight days. The trial court heard testimony and argument on

all sentencing issues and, on July 15, 1998, handed down its Special Verdict sentencing defendant to death.

FACTS

4 6 On September 23, 1993, defendant and his friend, Mark Cowan, went to a bar in Phoenix where they consumed

beer. After the bar trip, the two proceeded to a K Mart store where Cowan purchased a shirt. Cowan changed his

clothes and left his shirt, shoes, and deodorant in the defendant's van. They then met defendant's brother Chris

Pandeli and another friend at a restaurant at the Arizona Center in Phoenix and remained there for several hours. At

about 10:15 p.m., Chris and Cowan left for another bar. Defendant stayed at the Arizona Center. At approximately

11:45 p.m., defendant again met Chris and Cowan and asked his brother to give Cowan a ride home. Cowan slept

at Chris’ apartment that night.

47 At about 2:00 a.m., defendant's roommate, Louis Russo, arrived home and found defendant cleaning his van and

washing his clothing. Defendant had removed the mattress from his van. Russo testified that defendant told him he

was cleaning the van because someone spilled a strawberry soda inside and that defendant appeared sober but upset,

excited, and stressed.

4 8 The next morning, Holly Iler's nude body was found in an alley near the defendant's residence. Among other

injuries, her throat had been slashed and the areolae and nipple parts of her breasts excised.

**1142 *371 49 The same morning, Cowan asked Chris to take him to defendant's house to retrieve his clothing from:

the van. They arrived at about 7:30 a.m. and found the defendant outside. Still tired, Cowan asked defendant if he

could sleep in the van, and defendant permitted him to do so. After approximately ninety minutes, defendant woke

Cowan and told him the police were investigating the death of a woman whose body was found down the street.

Cowan drifted back to sleep, but defendant woke him again and asked whether Cowan knew what an RV van marked

"Phoenix Mobile Command” would be doing at a crime scene. Cowan told defendant he presumed it was a mobile

crime laboratory. Defendant then asked Cowan if the police had the ability to detect tire tracks or identify other types

of tracks, and Cowan responded that the police could take impressions and pictures of tracks.

{ 10 Shortly thereafter, defendant and Cowan left to run errands. When defendant dropped Cowan off at a motel,

he gave Cowan his clothing from the van, but the shirt and one sock were missing. After showering at the motel,

Cowan noticed red spots on his shoes and deodorant stick that were not present when he left them in defendant's van

the night before. Cowan became suspicious that defendant was somehow involved in the death of the woman whose

body had been discovered and watched for television reports of the crime. When he saw a report describing the victim,

his suspicion heightened because the description resembled a woman with whom defendant had socialized the night

before at the Arizona Center. Though it was not the same woman, Cowan thought it might be.

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q 11 That evening, the defendant, Cowan, Chris, and two other friends went to several bars. During the evening,

Cowan noticed that defendant appeared subdued and quiet, more than was normally the case. Cowan returned to the

motel at the end of the evening. The following morning, Cowan's suspicions of defendant's involvement in the

woman's death caused him to call Silent Witness, an evidence gathering arm of the Phoenix Police Department. The

police came to question Cowan, who surrendered his shoes and deodorant stick to them for testing the red spots. The

soles of Cowan's shoes matched prints found near the victim's body in the alley. Additionally, preliminary testing

found the red spots on the shoes to be consistent with the victim's blood. Based on these facts, police obtained a search

warrant for the defendant's residence and van and took him into custody.

{ 12 Police detectives questioned defendant after giving him the \/)./c JFN\!| warning. He initially denied

involvement in the murder. When questioned about the blood on Cowan's shoes, defendant told detectives that he

walked outside early that morning and saw the body. He said he looked at the body and touched and moved it to see

if any marks were on the victim's back. Defendant denied killing Iler and attributed the blood on his shoes to the

morning contact with her body. He stated that he did not tell anyone about the body because he did not want to be

blamed for the death. Defendant admitted removing and taking a ring and other items from the body.

FNL. Viranda ve irizona, 384 US. 436, 86 S.Ct 1602. 16 L.Ed 2d 694 (1966),

413 A detective explained to the defendant that the police have equipment to detect traces of blood in a van that has

been cleaned and on clothing that has been washed At that point, defendant ceased his denials and stated that he

wanted to confess the truth. He told the detective that he offered Iler a ride and she accepted. They stopped at a park

near his residence where she agreed to have sexual intercourse in exchange for twenty dollars. He used a condom and

attempted intercourse, but was unable to perform. He stopped trying and asked her to return his money.

{ 14 Defendant claimed that Iler then became upset and pulled a knife. They struggled. He hit her in the chest four

or five times and in the head three or four times, then slit her throat with a knife. After the killing, he amputated parts

of her breasts, dumped the body in the alley, and placed her clothing in a nearby garbage container; he then returned

to his residence and cleaned the van. Defendant admitted mutilating **1143 *372 Iler's breasts after she was dead.

He said he did it because he was angry. He first claimed to have thrown the excised breast parts into the garbage

container, but later confessed to flushing them through the toilet in his residence. After confessing the Iler murder,

defendant also confessed to having committed the earlier murder of Teresa Humphreys.

4 15 Police searched defendant's residence and van and located a Swiss Army knife, keys, a blood-stained rope, and

a “fanny pack" purse that belonged to Iler. Police also obtained from a nearby garbage container, identified by the

defendant, bedding, a T-shirt, a sock, and a condom.

4 16 Prior to trial, the State moved in limine, pursuant to Rule 404(b) Anvona Rules of Evidence, to admit portions

of defendant's confession, including parts relating to Humphreys’ killing. The trial court denied the motion, ruling

that evidence pertaining to Humphreys‘ murder was inadmissible. Consequently, the State determined not to use any

of defendant's confession in its case-in-chief, indicating during a bench conference that no part of the confession would

be offered because the prosecution did not wish "to open the door" to some exculpatory statements.

{17 Defense counsel filed a trial memorandum requesting that the court rule defendant's entire confession admissible

as hearsay exceptions under Rules 80°53) and SO by) Arona Rules of Pvidgnce. The Siate objected. The trial

court sustained the State's objection and excluded the confession.

DISCUSSION

I. TRIAL ISSUES

A. ADMISSIBILITY OF DEFENDANT'S CONFESSION

LL 4 18 We review the trial judge's refusal to admit defendant's confession for abuse of discretion. \)

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133 Any 2b 27 734 Pld 863 569 (1987). Decisions to exclude such evidence remain within the sound

discretion of the trial court and will be reversed on appeal only upon a showing of clear, prejudicial abuse. \' :

fo JOS Are 388, 387 873 PG 1307 13809 App 1994). "The prejudice must be sufficient to create a reasonable

doubt about whether the verdict might have been different had the error not been committed.” |)

q 19 The statement, offered by the defendant to exculpate, was an out- of-court declaration and was thus inadmissible

hearsay unless it fits within a recognized exception tothe rule. \ii) R Fuid SUlis). This court has aay neue

that the trustworthiness of a defendant’ s gy out-of- court statement was “highly suspect.” ;

138 Any “9 84073 Pld 1732 ess). Defendant advanced two possible hearsay exceptions which we

address i in turn.

1. RULE 804-Statement Against Interest

q 20 Rule 804: by) reads:

The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(3) Statement against interest.... A statement tending to expose the declarant to criminal liability and offered to

exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of

the statement. (Emphasis added.)

{2 ),3) § 21 The rule sets forth three requirements for admissibility: (1) the declarant must be unavailable; (2) the

statement must be against the declarant's interest; and (3)there must be corroborating evidence that indicates the

cee epenenry myer All three must be satisfied. S70) J/ory 176 Anz S00, 373 803 P 2d Sol 867 193s

see also! (roy d (33 Any at)” 34 P 2d at So” [FN] Ifa non-defendant declarant asserts **1144 *373 the Fifth

healed cdbaapanaiis self- incrimination, he is deemed unavailable as a witness. Sees) 189 Ary

S$) 54 “os PIG TILL LIS oss) (defendant successfully sought admission of roommate's statements pursuant to

Rule S04; by 3) after roommate asserted Fifth Amendment privilege).

EN2 The State correctly asserts that the "! |). test” should apply only to cases in which someone other

than the defendant is the declarant because a defendant's “self-serving” statements are always “highly

suspect." The express wording of the rule is consistent with this argument since it refers with particularity

to any statement which tends to “expose the declarant" and at the same time “exculpate[s] the accused...."

Under this wording, the declarant must be one person and the accused another. Where the declarant and the

“accused are one and the same, the admissibility requirements of Rule Sv }.by 3) are not met.

|4| 4 22 Here, the defendant is the declarant seeking admission of his own statements to police without taking the

stand to testify. The State contends the defendant cannot refuse to testify and yet offer his own hearsay statements for

the record. "When offered by the defendant, his out-of-court declarations are not subject to cross-examination by the

prosecution. Therefore, such statements are appropriately inadmissible unless offered, not to prove the truth of their

content,” but for some other admissible purpose. (oy) (yy IS Va App SES Fd Og WS toed)

(finding reliability of out-of-court statement as “the princigal rationale underlying the hearsay rule").

LS{ § 23 "Unavailability” means that the party seeking admission of the statement cannot compel the declarant to

testify. Defendant is not "unavailable" to himself and has the ability and the right to testify. Should he decline by

asserting his Fifth Amendment privilege, he may not then seek to introduce his statement to police yet at the same time

avoid cross-examination under oath and impeachment. The trial court correctly ruled that when a defendant proffers

his own confession for exculpatory purposes, the statement constitutes inadmissible hearsay not in compliance with

Rule 804 63).

2. RULE 803-State of Mind

jo] {24 For a hearsay statement to be admissible under the Rule XU +. *) exception, it must be "[a] statement of the _

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declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design,

mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact

remembered or believed.” Ariz_R_Evid_ 803, 3) (emphasis added). Defendant's statement to police two days after the

crime, that he felt threatened by the victim, fails to qualify as present “state of mind” under this hearsay exception

because the statement described a prior mental state, not.a present mindset. Siare v Barger, 1o7 Anz 563, 566, 810

P 2d 191, 194 (App 1990) (emphasis added).

4 25 In State» Fulminante, this court held that “the statement must describe declarant's presen* feeling or future

intention rather than look backward, describing declarant's past memory or belief about another's conduct.” //_ 193

Anz 485, 498, 975 P 2d 75. 85* 32(1999). The statement must be directed solely at the declarant's present state of

mind. rather than constitute a narrative of prior factual events that created an earlier state of mind. /c/_

{ 26 Defendant's statements that he and the victim disrobed in the back of the van, that he became angry when he

could not perform sexually and the victim refused to return the money, that she pulled a knife and defendant took it

from her, and that he excised breast parts because of his anger described neither present feeling nor future intent. The

statements contain nothing more than asserted memory of past events and fail to meet the requirements of Rule 80 3,3).

The trial court did not abuse its discretion in excluding the confession as inadmissible hearsay pursuant to Ari/ona

Rule of Evidence 80 Lc).

B. REFUSAL TO GRANT THE MANSLAUGHTER INSTRUCTION

1°) 427 Defendant claims the jury should have been instructed on the lesser-included offense of manslaughter. The

court must instruct the jury on every lesser-included offense to the offense charged, provided that the evidence supports

the instruction. Siate v_tmaya-Riz 166 Anz, 152, 174, 800 P_2d 1260, 12824990). The trial court in Amuva-Rwiz

instructed the jury, as here, on first and second degree murder but, in the absence of supporting evidence, refused to

give the requested manslaughter instruction. We **1145 *374 held that when the court gives the jury proper first and

second degree murder instructions, but refuses manslaughter, and the defendant is convir’ «i of first degrée rather than

second degree murder, any error is harmless. /:/ The jury, by implication, has rejec’.a all lesser-included crimes.

See 1/. (citing Nrate y Oruz 138 Anz 528, 764 P2d 13 (1988)); see also State vy ickers, 189 Ariz. 332. S42. 708

Pod 1177, L187 (1989) (any error in failing to give manslaughter instruction cured by first degree murder conviction

while rejecting second degree); S’afev !i fie, 144 Ariz 245, 247, 697 P 2d 328, 330 (1985) ("[F]inding defendant

guilty of the highest offense, to ine exclusion of the immediately lesser- included offense, second degree murder, the

jury necessarily rejected all other lesser-included offenses."). In the instant case, any error was harmless.

Il. SENTENCING ISSUES

{8jJ9] J 28 In determining the appropriateness of a death sentence, we independently review the aggravation and

mitigation findings of the trial court. ARS. § 13-703, 01; A) 2001); see, e.g., State v Auver, 194 Ariz. 423, 432-33,

US4 P 2d 51 40-41 * 2811999). Independent review by this court ensures that the death penalty is not imposed

arbitrarily, is reserved for exceptional cases which satisfy statutory aggravation standards, and is the appropriate

sanction for the crime in question. Siafe v_/i/7e TS Ariz, $49, 006, 8S8 P_ 2d 1152, 1209; 1993). The court reviews

the record to determine the presence or absence of aggravating and mitigating circumstances, as well as the weight to

be accorded each circumstance. Sule v /o/ion, 182 Ariz, 290, 312, 89 P 2d 830, 852 (1995) (presence or absence

of factors); Stife Ramirez 18 Anz 116, 128, 871 P 2d 237, 249 (1994) (weight given to factors).

LiOjiti| ¥ 29 Aggravating circumstances must be proven beyond a reasonable doubt. Avner 194 Anz at 433. 984

P 2d at 41 * 28 (citing State y Brewer, VO Anz 486, 800, 826 P2d 783. 797 (1992)). Both statutory and

non-statutory mitigating circumstances may be proven by a preponderance of the evidence. Siiife J yer/ 19 Any

SRR SUS OS) P 2d 1274 1286 © 30 (1998) (citing Brewer 170 Ariz at S04, 826 Pd at 801) When mitigation

evidence is conflicting and entails considerations of credibility, we accord deference to the trial court's conclusions.

Mate ve loskins, 199 Anz 127 149, 14 P 3d 997 OPO © 97 (24) (citing Srafe yA i/he 177 Ariz LIS, 128. 868

Pp 2g °°) "89 1095). But we are independently responsible for weighing all factors to determine ultimately whether _

proven mitigating circumstances, measured separately or cumulatively, are sufficient to outweigh aggravating

circumstances established on the record. Avon 194 Any at $33. O84 P dat dl #8.

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{12} 4 30 The rules of evidence governing admissibility differ as between aggravating and mitigating circumstances.

"[I]n formation relevant to any mitigating circumstances ... may be presented by either the prosecution or the defendant,

regardless of its admissibility under the rules governing admission of evidence at criminal trials..." A R.S_$ 13-703(C)

(2001). However, “the admissibility of information relevant to any ... aggravating circumstance ... shall be governed

by the rules of evidence.” /d.

A. AGGRAVATING FACTORS

[13] 4 31 A court cannot impose the death penalty unless it finds that the State has proved at least one aggravating

factor under A.R.S_§ 13-703(F). State v Spreitz, 190 Ariz, 129, 147, 945 P.2d 1260, 1278 (1997). At trial, the State

advanced two: (1) previous conviction of a serious crime, A.R.S. § 13-703(F)(2); and (2) the murder was especially

heinous, cruel, or depraved, A.R.S_§ 13-703(F)(6). The trial court found each factor beyond a reasonable doubt.

1. ALR.S. § 13-703(F)(2): Previous Conviction of a Serious Offense

[14}{15] | 32 The legislature amended the (F)(2) aggravating factor, effective April 1993. The date of the crime for

which the death sentence was given is the date used to evaluate whether the new version applies. Because the Iler

murder occurred in September 1993, the amended version of (F)\(2) is applicable. Kayer, 194 Ariz. at 433. 984 P.2d

at 41 © 30; **1146*375 Stare Vv Rienhardt, 190 Anz. 579, 589, 951 P_2d 454, 464 (1997). Amended §.13-703(F (2)

reads: Aggravation is established where "{t]he defendant was previously convicted of a serious offense, whether

preparatory or completed." Second degree murder is a "serious offense.” ARS S$ 13-703(H)1)(b) (2001).

133 Defendant was convicted of second degree murder in the killing of Teresa Humphreys. The conviction qualifies

under the statute as a previous conviction of a serious offense. The State established at sentencing that the defendant

committed second degree murder, and the defendant does not challenge this finding. We therefore hold the (F)(2)

aggravating circumstance was established beyond a reasonable doubt.

2. ARS. § 13-703(F)(6): Especially Heinous, Cruel or Depraved

{iG} ¥ 34 Section 13-703(F (6) reads: "The defendant committed the offense in an especially heinous, cruel or

depraved manner.” To find that a murder fits within this provision, the State must prove that the crime was committed

(198%). Because the statute is worded in the disjunctive, any one of three elements--heinousness, cruelty, or

depravity--is independently sufficient. Srate v_\fedina, 193 Ariz, 504, 513, 975 P 2d 94. 103 © 33 (1999).

135 The State alleged that ali three elements of (F)(6) had been established. The trial court did not find especial

cruelty because of the absence of defensive wounds or other evidence of consciousness of the victim.

{1°} 4 36 Unlike cruelty, which focuses on the victim's mental suffering and physical pain, heinousness and depravity

pertain to the killer's state of mind during and immediately following the murder, as evidenced by his words or conduct.

Medina, 193 Anz. at S13, 975 P.2d at 103 £35. This court has previously defined depraved as "marked by

debasement, corruption, perversion or deterioration,” and heinous as "hatefully or shockingly evil: grossly bad.”

Cretzler, 135 Anz at 51, 659 P_2d at 10 (citing State v Anapp, 14 Ariz, 531, $43, 562 Pd 704. 716 (1977)).

a. Gratuitous Violence

[18] 437 The trial court concluded both heinousness and depravity were proven beyond a reasonable doubt by evidence

of defendant's gratuitous violence. We agree. Maiming a victim beyond the point necessary to fulfill a defendant's

criminal purpose, see Sfate v_ Ceya, 126 Ariz 35, 40, 612 P_2d 491, 496 (1980), or beyond the point necessary to kill,

constitutes gratuitous violence. Kienhardt_ 190 Anz_at 5%), 951 P 2d at 465, Accordingly, this court has held that

bruises to a victim's legs and arms, scraping and cutting injuries to the neck, chest, and breast, a head wound,

strangulation, and two deep slashes to the throat demonstrate a defendant's “attempt to inflict unnecessary and

gratuitous violence beyond that required to kill" the victim. Srate v_ Walden 183 Ariz. 895, 619. 905 P 2d 974. 998

(1995).

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[19] 4 33 Here, the cause of death was a single, deep knife slash to the victim's throat. Yet, forensic evidence

established that defendant also struck the victim on the head several times and delivered enough blows to her chest to

fracture the sternum. In addition, petechial hemorrhages in the victim's eyes and a ligature mark around her neck

demonstrated an attempt at strangulation prior to her death. Defendant contends that because these injuries occurred

prior to death, they evince nothing more than a struggle between the victim and defendant and demonstrate that all

such injuries were necessary to kill. This claim, however, is at odds with the physical evidence.

{ 39 Forensic evidence established that these were not defensive wounds and that a struggle, as claimed by the

defendant, was not likely to have occurred. Whether his objective was merely to retrieve money previously paid or

actually to take the victim's life, the violence to her body far exceeded thet necessary to accomplish either goal.

Gratuitous violence was established beyond a reasonable doubt. This finding alone is sufficient to constitute the (F 6)

aggravating circumstance.

b. Mutilation

120]{21] ¥ 40 Mutilation, also a form of heinousness and depravity, "is an act distinct **1147 *376 from the killing

itself that includes the purposeful severing of body parts.” State v_ Doerr, 193 Ariz. 56, 68. 969 P_2d 1168. 1180 © 55

(1998). A finding of mutilation requires some demonstration that the defendant acted with a “separate purpose to

mutilate the corpse.” Srate v. Richmond (1), 180 Ariz. 573, 580, 886 P.2d 1329. 1336 (1994). In Doerr, this court

held that defendant's amputation of part of the victim's left breast and the attempted removal of parts of the right breast

established mutilation. 193 Ariz. at 68, 969 P.2d at 1180 © 55,

[22] 4 41 The defendant here admittedly excised parts of both breasts after the death. This constitutes body

mutilation. Because he claims these actions were done in anger, the defendant himself separated his motivation to

kilt from his motivation to mutilate. The evidence is sufficient to prove the (F)(6) factor beyond a reasonable doubt.

Moreover, the defendant concedes in the opening brief that his acts of mutilation establish the (F)(6) factor.

B. MITIGATING FACTORS

4 42 The mitigation statute reads in pertinent part:

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.

ARS. § 13-703(G)(1) (2001).

{23]/24][25] ¥ 43 We assess both statutory and non-statutory mitigating factors. The former includes significant

mental impairment, urged by the defendant. The latter, also urged by the defendant, includes any facet of defendant's

character, propensities or record, and any other circumstances of the offense. The purpose of mitigation evidence is

to permit the court to determine whether a sentence less severe than death is appropriate. See State. Gulbrandson.

184 Ariz. 46. 69. 906 P.2d 579, 602 (1998); State v. Gonzales, 181 Aric. 502. 514. 892 P 2d 838. 850 (1995); State

v Hood, 180 Anz_53_ 70, 881 P.2d 1158, 1175 (1994). If evidence of mitigation fails to meet the relevant statutory

standard, the court must then consider whether it may constitute non-statutory mitigation. State v_ Gallegos (1), 178

Anz. 1, 22.870 P 2d 1097, 1118 (1994). Although the court must consider all relevant evidence offered in mitigation,

not all proffered evidence must be found by the court to be mitigating, and even if mitigating, such evidence may

deserve no more than slight or nominal weight. Stare v_\/urray, 184 Ariz. 9, 38.906 P_2d 542. 571 (1995): Gonzales

181 Anz at 515, 892 P_2d at 851 (court required to do no more than consider all evidence offered in mitigation).

126] 4 44 The existence of mitigating circumstances is subject to a preponderance of the evidence standard. \tufe v

Dickens, 187 Ariz. 1, 24, 926 P.2d 468, 491 (1996); State v. Laird. 186 Ariz. 203. 207-408. 920 P 2d 769. 773-74

(1996). The court has discretion to determine how much weight, if any, to give each factor. State. Towers. 186 Ariz

168. 189,920 P.2d 290, 311 (1996); State v. Jones, 185 Ariz. 471. 489. 917 P. 2d 200. 218 (1996).

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q 45 At sentencing, the trial court concluded that defendant's mitigation evidence failed to outweigh the two

aggravating factors associated with Iler's murder. Such evidence was thus not sufficiently substantial to call for

leniency, and defendant challenges these findings.

1. STATUTORY MITIGATION

a. Significant Impairment--A.R-S. § 13-703(G)(1)

[27] 4 46 To qualify for a finding of (G1) significant impairment, a defendant must demonstrate that his "capacity

to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly

impaired." Auyer, 194 Ariz. at 437, 984 P 2d at 45 © 48 (quoting **1148 *377 ARS § 13-703(G)(1) (emphasis

added)). Because this factor is phrased disjunctively, proof of incapacity as to either component will establish

mitigation. \/urray, 184 Anz. at 40-41, 906 P 2d at 573-74.

[28] 4 47 A diagnosed mental illness may establish the (G){1) factor. See Auer, 194 Ariz at 437. 984 P 2d at 45 £

49,

[29][30] | 48 In determining the existence of (G)(1) mitigation, the trial judge has broad discretion in evaluating the

weight and credibility of expert mental health evidence. Doerr, 193 Ariz, at 69, 969 P 2d at LIR1£ 64, State v

{cKinney J), 185 Ariz, 567, 879, 917 P.2d 1214, 1226 (1996). When mitigation evidence conflicts and entails

considerations of credibility, we give substantial deference to the trial court's determinations. See //oskins_ 199 Anz

at 149, 14 P.3d at 1019 © 97 (citing \/i/ke at 128, 865 P2d at 789).

[31] 4 49 The trial court heard testimony from psychiatric experts for the defendant and the State, as well as from

mitigation investigators Mary Duran and Nora Shaw. Defendant's expert, Donald F. Stonefeld, M.D., diagnosed the

defendant as suffering from paranoid schizophrenia both prior to and at the time of the killing. He testified that the

defendant also suffered from post traumatic stress disorder (PTSD). According to Stonefeld, defendant's Minnesota

Multiphasic Personality Inventory (MMPI) test results suggested serious psychopathology with a possible indication

of psychotic symptoms and behavior.

4 50 Defendant's family has a history of mental health problems. Moreover, he may have had disordered thought

processes in early childhood and suffered from lack of judgment and perspective. Stonefeld testified that defendant's

mental illness precludes him from normal perceptions of reality. Additionally, at the time of the killing, defendant

had used drugs and alcohol that exacerbated his mental deficiency. His drug use began at age eight.

4 51 Stonefeld opined that defendant's home environment caused confusion as to his sexuality and sexual identity

because his mother frequently switched sexual partners and preferences. Defendant's sexual identity was further

confused by several occasions of sexual abuse, both by men and women during childhood. Defendant's history of sexual

abuse was corroborated by his brother. Defendant's mother also suffered depression and low self-esteem and exhibited

self-absorbed and neglectful behavior patterns toward defendant and his siblings. Defendant claims to have

hallucinated during the killing and maintains that his enraged conduct resulted from the fear of either sexual inability

or possible homosexuality.

q 52 Defendant was first sexually abused between the ages of four and five. At nine or ten years, he was sodomized.

Two occasions of sexual molestation during his childhood were perpetrated by adult women. Again at age fifteen,

defendant was sodomized several times. All incidents of sexual abuse were perpetrated by strangers or acquaintances,

not by family members. By the age of sixteen, defendant supported himself financially by “hustling” on the streets.

4 53 Defendant's father was absent and his mother was neglectful, which generated a pattern of thinking by defendant

that he could act without consequence. He acted in an unruly manner as a young child and was placed on Ritalin

between the ages of five and six for behavioral problems, but he received no further treatment for these difficulties.

He attempted suicide several times, including once at age ten. Defendant was placed in special education classes due

to his mental health and disabilities.

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q 54 Stonefeld further opined that the circumstances of the killing demonstrated a lack of control. Defendant

perceived his victim as a threat in this sexual situation and, because of his paranoia, believed he was in danger.

4 55 Based on this evidence, Stonefeld concluded that defendant's paranoid schizophrenia would have substantially

impaired his capacity to appreciate the wrongfulness of his conduct and to conform his conduct to the requirements

of law. Stonefeld further concluded that symptoms of the impairment had been apparent since childhood.

4 56 The trial court also heard testimony from the State's psychological expert, Michael *378 **1149 Brad Bayless,

Ph.D., who contradicted Stonefeld's diagnosis and opinions. Bayless opined that "Pandeli was fully aware of his

behavior at the time of the offense. He was able to appreciate the wrongfulness of his conduct, and clearly understood

the nature and quality of his act." Bayless based this opinion on proof that defendant initially denied involvement in

the crime and attempted to eliminate evidence by cleaning his van, washing clothing, and discarding items because

—_—————he understood the wrongfulness of his actions.

4 57 Bayless rejected the diagnosis of paranoid schizophrenia because he disagreed with Stonefeld's interpretation of

defendant's MMPI and because, in his opinion, defendant did not meet all of the applicable criteria listed in The

American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994), the “bible”

of psychological diagnosis. According to Bayless, paranoid schizophrenia is fully incompatible with someone like

Pandeli who maintains an active social life and exhibits the ability to interact and make eye contact with others.

4 58 Bayless further rejected Stonefeld's diagnosis of PTSD, citing the absence of sufficient indicia. He testified that

PTSD is not an “on and off" phenomenon but rather a condition which would grow more prominent if untreated.

Bayless testified that he observed no evidence of the disorder. Instead, Bayless indicated that defendant exhibited

certain traits of narcissistic and anti-social personality disorder, but Bayless stopped short of diagnosing anti-social

personality disorder because defendant failed to exhibit all the appropriate criteria.

4 59 The trial court evaluated the competing mental health evidence, as well as all other (G)(1) evidence presented,

including the facts of the crime and the defendant's confession. The court stated in its Special Verdict:

Dr. Bayless, without hesitation and unequivocally, dismissed Dr. Stonefeld's opinion. He said that the Defendant

was not a paranoid schizophrenic nor was he suffering from post traumatic stress disorder. In Dr. Bayless' view this

Defendant exhibits many of the traits of a person who suffers from an antisocial personality disorder--but nothing

more.

Special Verdict at 4. Ultimately, the court determined by a preponderance of the evidence that the mental illnesses

or disorders, testified to by Stonefeld, did not exist. Additionally, the trial court relied on defendant's attempt to cover

up the killing, and his demeanor before and after the crime, in finding that he clearly appreciated the wrongfulness

of his conduct.

4 60 The trial court's function is to assess the credibility of the expert testimony. See Doerr, 193 Anz. at69_969 P 2d

at LI81* 64. The court's conclusion that defendant does not suffer from a mental illness, but at most, a personality

disorder, requires significant deference from this court. See \ /i/ke, 177 Ariz. at 128. 865 P. 2d at 789. This court has

previously held that a defendant's conduct before and after the crime--such as lying about the crime, retrieving

_—belongings before fleeing, and participating in conduct as to avoid capture and prosecution--will support a finding that

_— the defendant was not impaired at the time of the offense. See Jones. 185 Amz. at 489. 917 P.2d at 218. Upon

reviewing the medical and other evidence, we conclude the defendant failed to establish the (G1) statutory mitigator.

2. NON STATUTORY MITIGATION

a. Family and Developmental History, Mental/Emotional Health

[32){33] 4 61 Following the decision in /ockett \ Olio, 438 US 586, 98 S.Ct 2954, 57 L_Ed 2d 973 (1978), this

court acknowledged that "even ifa disorder does not rise to the level of mental disease or defect originally contemplated

in (G1), the inquiry is not over.” Stare v Jrosile, 191 Anz. 4, 20, 951 P 2d 869, 685 (1997). The court will continue

to assess the evidence to determine whether non-statutory mitigation may be sufficient to warrant a reduction in

sentence. /d. (citing Stare v \f/c\/urtrey, 136 Anz 93, 102, 664 P 2d 637, 646 (1983)). In addition, the court will

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determine whether the required causal nexus exists between any mental or personality disorder and the defendant's

#379 **1150 criminal acts. fos.) 19% Aue at iid U4 dat bo? Lit Our primary task when assessing

evidence of mental disorder is to determine its mitigating weight. 0)... 19 i Anis ot 20-21 SAP Add i dS -do.

{ 62 The trial court reconsidered (G)(1) mitigation evidence for non-statutory mitigation and found that though

defendant's proven developmental history, family background, and mental and emotional condition might otherwise

constitute non-statutory mitigation, such circumstances merited no weight because causation was not established.

There was no link between the dysfunction in defendant's life and his crime:

The Court now determines that the Defendant has proven by a preponderance of the evidence that his family

background, his overali developmental history and his mental and/or emotional health through the years to the

present as found and described by the Court immediately above are non-statutory mitigating circumstances, though

these circumstances are not near [sic] as compelling as represented and argued by the Defendant. Without a doubt,

this Defendant had tough and formidable challenges to contend with in his childhood and adolescent years. /n the

end, however, when the Court considers these factors separately and collectively, it is unable to make the link from

them to the unspeakable criminal conduct in this murder and they are, therefore, weighed accordingly with any other

non-statutory mitigating circumstances against the aggravating circumstances proven beyond a reasonabie doubt and

already found to exist.

Special Verdict at 7 (emphasis added).

{54} 4.63 A nexus is established by evidence, testimonial or otherwise, connecting defendant's mental or personality

disorder with his crime. See frusile. LY Anz at 19-20, 951 P 2d ai 884-55 (psychiatric testimony that "defendant's

traumatic upbringing and resulting mental disturbance influenced his criminal actions"). [Mm //v savin. we stated that

a nexus finding requires credible expert testimony based on reasoned medical and psychological analysis, that as

between the mental disorder or dysfunctional family history and the actual crime, the former must be a cause of the

latter. ivy Anz. 127. i532 nd, i4 Psd 997, i022 nd.

[35] 4 64 Here, defendant proffered evidence of several instances of sexual abuse perpetrated by both adult women and

men, a neglectful mother, and personality disorders, all of which were accepted as evidence of mitigation by the trial

court. Additionally, defendant produced evidence that his own sexual history and identity were wrought with violence

and confusion. The trial court accepted this evidence within the umbrella of family and developmental history and

mental condition evidence.

4 65 Stonefeld opined that defendant's mental disorders affected his actions on the night of the murder. However,

Bayless countered both Stonefeld's diagnosis and opinion of causal link, stating unequivocally that the defendant was

neither experiencing paranoid delusions, nor was schizophrenia or any other mental disorder a factor which caused

this crime to occur. Defendant was in control of his actions and fully understood what he was doing. The trial court

accepted Bayless as the more credible expert and concluded that the required nexus, clearly and simply, did not exist

between defendant's personality disorder and the crime.

4 66 We hold on this record that the defendant failed under the preponderance standard to prove the existence of a

causal nexus and, consequently, failed to establish this non-statutory mitigator.

b. Residual Doubt

[30] 4 67 Defendant contends residual doubt exists as to the jury's finding of premeditation and that the trial court

erred in refusing to invoke residual doubt as a mitigating factor. We have previously explained our approach to this

issue, holding that when a jury verdict “finding defendant guilty beyond a reasonable doubi is supported by very strong

evidence, the trial court properly refused to find the nonstatutory mitigating circumstance of residual doubt.” yiu/e

Spears, 184 Ariz. 277. 295, 908 P_2d 1062. 1080 (1996), cert. denied, 519 US 907. 1i7 S.Ct 393, Lio L_Ed 2d 508

(2000) The same **1151 *380 is true, even where the verdict is grounded in circumstantial evidence. See Niule

Anvood, 171 Anz. 576, 653, 832 P 2d 593, 670 (1992).

[37] 4 68 Here, relying on his confession, which was properly admitted for sentencing purposes, defendant argues that

the victim enraged him by pulling a knife and struggling with him and that he reacted by killing her. Evidence

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introduced at trial does not support this argument. No forensic evidence reflected a struggle between victim and

defendant. No evidence except defendant's confession demonstrated enragement. The victim was beaten and

strangled before the killing, affording defendant an opportunity to consider what he was doing. Moreover, this was

a repeat crime. Defendant had previously killed another female, also by slitting her throat. His exculpatory claims

si were not credible, and substantial evidence enabled the jury to find premeditation beyond a reasonable doubt.

4 69 We have not heretofore invoked residual doubt as a mitigating circumstance. See staics Harrod “oP sd to

vols. Even were we to do so, this record has no evidentiary basis for residual doubt.

c. Rehabilitation

ae 0] 14 70 The potential for rehabilitation during a life sentence may constitute a mitigating circumstance. See

ESS Arie 245 939 74) PB Od 1 Y93 10? 1 0es), This court has held that the “ability to function well

an oreeneel environment” may constitute mitigation. . ie 19k Adiga) U1 Sal nl,

4 71 Here, the defendant has lived in custody for several years without incident, his MMPI results indicate controlled

environments are positive for him, his personality disorders are treatable, he has expressed remorse, he has acquired

religious faith, and he has educated himself by learning to read in prison. Indeed, the trial court found that defendant's

good behavior as a prisoner, as well as his efforts to learn to read and become a minister, constituted non-statutory

mitigation.

{ 72 His incarceration, however, has been spent in administrative segregation, where he has had fewer opportunities

to interact with others. We find that defendant's potential for permanent rehabilitation, even where mitigating, can

be accorded only the slightest weight, insufficient, even in concert with other mitigation evidence, to bring about a

changed result. y

d. Defendant has Adapted to Incarceration

4 t+ 1) 973 Good conduct during pretrial and emauaned incarceration may be, but is not always, — nad

Spears. 184 Anz. at 294 908 /P 2dat 1079." s IR? Ariz, AOS 524 ROS cP 2d Nb 75 9 :

Defendant presented evidence at the sentencing hearing that he has been a model prisoner. He has not been sto sah

in difficulties or altercations while in prison and has adjusted to his incarceration. This evidence was found to be

minimally mitigating. We agree.

e. Educational Advancements Since Incarce: ation

4>| 474 Evidence of educational achievement has been considered nominally mitigating. See \” fesyler, 142

Arye SUS od oo} Pad os) US ist). ~~ Uncontradicted evidence at the sentencing elie established that

defendant taught himsel

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