# Opposition Brief — Arizona v. Pandeli, AKA Florian > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1767%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2003 - **Citation:** 540 U.S. 962 ## Text ni et Supreme Coust’. a 20 Bib i wb SEP 2 > 2005 OFFICE OF THE CLERK rs 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 fe ee Snr r rr rr rr rrr rr rer re iii Tate CR ANOTEOD Cg vnc cc cave ese vevvensutecesnsennss6etenetseeeeees iv 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 . 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 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) SSOHKITSN(S) Most Cited Cases 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. Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 3 [12] Sentencing and Punishment 1756 SSOHKE So Most Cited Cases [12} Sentencing and Punishment ©1757 SSOHKIS~ Most Cited Cases 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 SSGHKILGS2 Most Cited Cases 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 Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 4 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 SSOHKI $7 Most Cited Cases 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. Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 5 [26] Sentencing and Punishment ©1661 SSOHK LOOT Most Cited Cases [26] Sentencing and Punishment 1771 SSGHKRIT TL Most Cited Cases 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 | 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 himself to read and write while incarcerated. These advancements are entitled only to minimal mitigation. f. Poor Health L431 475 We have held that a defendant's oveeweny illness is not relevant to the question of leniency. -_ wo Ni Se 4S SSUP Od to TSS |05. The defendant offered mitigating evidence that he contracted hepatitis C, which will shorten his life, and the trial court found that defendant established this fact by a preponderance of the evidence. However, it found the illness to be minimally mitigating. We disagree. The evidence is not mitigating. **1152 *381 g. Timing of Prior Murder and Circumstances of Present Offense 14+) {76 Defendant claims that the timing of the Humphreys killing and the circumstances of the present killing should be considered mitigating. However, little argument is presented on the "timing" factor, and the argument, such as it is, is unclear. We assume defendant is referring to the fact the Humphreys murder occurred more than a year Copr. © West 2003 No Claim to Orig. U.S. Govt. Works | Page 19 earlier. We accord this fact no weight in mitigation. h. Cooperation with Law Enforcement Personnel sj) 40) 977 Admission of guilt and cooperation with the police can be a mitigating circumstance. DXo Nn Sd Se Pod LES Tint ives). Defendant requests that his cooperation with the police and his confession be considered mitigating. However, defendant did not cooperate with police, evidenced by the fact that he sought to hide or destroy evidence, evade detection, and initially denied knowledge of the crime. Only when he believed his guilt was discoverable through forensic testing did he attempt to help himself by confessing. This form of cooperation will not serve as mitigation. i. Genuine Remorse — +" |) 45) 4 78 Genuine remorse may constitute non-statutory mitigat on. [XS Ary S43 48-4o oP 2d oso Toot-o2 1900) (defendant eventually cooperated with police and expressed remorse at the sentencing hearing). _ A i a oS NP od to) The defendant expressed remorse over the killings of both Humphreys and Iler and expressed regret over the pain brought upon their families. The trial court found defendant's remorse genuine and mitigating. His expressions of remorse during the confession and at sentencing appear authentic. We conclude defendant established remorse as a mitigator by a preponderance of the evidence. j. Religious Faith sot se| 979 New-found religious faith may be considered non-statutory mitigation. See Pos An Nop oy FN Pod beso joos | tov) (defendant found religion in prison and ministered to other inmates); i4> Xn it Soe EP Od SS N+ (becoming religious, showing remorse, and being a placid priscner was mitigating) Defendant sought religious affiliation while incarcerated. We find this form of religious faith, found after conviction and incarceration, entitled only to slight mitigating weight. - k. Overull Good Prior Character {51 }{52| 4 80 Evidence of no prior crimes may be mitigating. SIS) Ani at 8 SUN PP 3d it 4 (lack of prior felony convictions may constitute non-statutory mitigation). Evidence of general good character may be mitigating. See > ISS Ar, Box SSd ood Pd ds 4S feos). Prior to the two murders, defendant had no trouble with the law. However, in light of the two murders committed just over one year apart, any argument of overall good character must be rejected. C. WEIGHING CIRCUMSTANCES ‘,981 Aggravating and mitigatin g circumstances are evaluated both separately and cumulatively. pS Any tio TAi SPP od 237 252 004). When ai least one aggravator is found and one or more mitigators i is established, this court must decide whether the mitigation is anssieiiia’ substantial to call for a reduction in sentence. BS. Ari Oo 7) »P Od } Bar re NY " (54) 982 The trial court found \ 2 s 3: i 3-7"): b 2) (prier conviction of serious crime) and (F)6) (heinous, cruel or depraved) aggravation beyond a reasonable doubt and concluded that the mitigating circumstances, viewed separately or together, were insufficient to call for leniency. "This was a savagely cruel, coldblooded, and very brutal first degree murder that, when considered with the fact that the Defendant murdered the victim in Count | by also slitting her throat, warrants the severest sanction.” Special Verdict at 9. **1153 *382 4 83 After thorough review, we conclude that all mitigating factors, viewed separately or cumulatively, fail to provide sufficient reason to call for leniency in light of the prior murder of Humphreys, as well as the brutal circumstances of the Iler murder and the subsequent mutilation of her body. III. ISSUES RAISED TO PREVENT PRECLUSION Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 20 4 84 Defendant makes additional arguments to prevent preclusion. None of the arguments will assist him. This court has previously considered and rejected each. 4 85 1. The Arizona death sentencing procedure is unconstitutional because it denies the right to trial by jury on all sentencing issues. See rong 497 US 639) HOS Cr od TIL Fd 2d SEL os) but see S! HO Ariz 207 278-279 OS P Rd EY TSO S Lt 40-44 200 Ly regarding the issue raised under SOLS fou Dos Cr 24s UL Edd 2d 43 8 uo), and related cases. 4 86 2. Arizona's sentencing procedure requires proof of mitigating circumstances by a preponderance of the evidence, which improperly precludes the sentencing court from considering some mitigating evidence. b4 Ariz at 38s US) P 2d at 830 * 4° (statutory requirement of proving mitigation by preponderance of the evidence does not obviate consideration of all mitigating facts). 4 87 3. The sentencing statute is facially invalid as irrational and as cruel and unusual punishment. »' ytd Ving $32 488 SOD Pd 192 218 1993) (Arizona death statute not cruel and unusual on its face). 488 4. The sentencing statute violates defendant's right to individualized punishment by requiring imposition of death when one aggravating circumstance is found with no mitigating factors. See joy IS? Any atl S90 P dat 830), { 89 5. The sentencing statute fails to provide defendant with an opportunity to death qualify the sentencing judge. See Gulhrandson V4 Ariz_at 72, 906 P 2d atous, { 90 6. The sentencing statute fails to provide objective standards to guide the sentencing court in weighing aggravating and mitigating circumstances, places the burden of proof of mitigation impermissibly on the defendant, fails to channel the sentencing discretion of the court by failing to narrow the class of persons eligible for the death penalty, and fails to require the State to prove that a death sentence is appropriate. ce 104 Ariz at 335 98? Pd ua SO 49, 4 91 7. The statute violates due pre of law by not requiring a proportionality review. See». .'. icaur_ | Liz 399 $16 844 Pd Sou 383 2: (proportionality review not constitutionally required). 4 92 8. The statute fails to require the sentencing court to find bes a reasonable doubt that aggravating circumstances outweigh the accumulated mitigating circumstances. » - IS? Ariz at S16 898 Pd at 408, { 93 9. The statute reise to provide a procedure by which to evaluate the impartiality of the sentencing judge. Py Ariz it S86 S2 P Od it S31 £ 49 (no provision necessary for voir dire examination of the sentencing court). CONCLUSION { 94 Defendant's conviction of first degree murder is founded on substantial evidence. The State proved two aggravating circumstances beyond a reasonable doubt: (F)(2), the defendant committed a prior serious offense, and (F)(6), this murder was especially heinous, cruel or depraved. Defendant failed to prove the existence of the (G1) statutory mitigating circumstance. Though defendant proved that his family and developmental history presented great difficulty and that he suffers mental and emotional difficulties, he failed to establish the requisite causal nexus between these circumstances and the Iler murder. He did establish that he has been a good prisoner, has made educational progress since incarceration, possesses genuine remorse, and has gained religious faith. We have considered and weighed all mitigating factors separately and cumulatively. That analysis leads us to conclude that the mitigation is insufficient to reduce the sentence. We therefore affirm both the conviction of **1154 *383 first degree murder and the capital sentence imposed by the trial court. CONCURRING: THOMAS A. ZLAKET, Chief Justice, $1 \N\LEY GG FELDALAN, Justice FREDERICK | \IARTONE, Justice, RUTH \ MCGREGOR. Justice. Copr. © West 2003 No Claim to Orig. U.S. Govt. Works --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1767%3A2. Public record. Not legal advice.