Petition for Writ of Certiorari — Arizona v. Tucker

Se ooreme Ceurnt, U.S.

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03 200A 4 2003

No.

IN THE

SUPREME COURT OF THE UNITED STATES

STATE OF ARIZONA

PETITIONER,

“Vs- 7

EUGENE ROBERT TUCKER

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI

TO THE ARIZONA SUPREME COURT

PETITION FOR WRIT OF CERTIORARI

TERRY GODDARD

-ATTORNEY GENERAL

KENT E. CATTANI

CHIEF COUNSEL

CAPITAL LITIGATION SECTION

DAWN M. NORTHUP

ASSISTANT ATTORNEY GENERAL

(COUNSEL OF RECORD)

1275 WEST WASHINGTON

PHOENIX, ARIZONA 85007-2997

TELEPHONE: (602) 542-4686

ATTORNEYS FOR PETITIONER

ri

QUESTION PRESENTED FOR REVIEW

Did the Arizona Supreme Court err by holding that this Court’s

decision in Ring v. Arizona, 536 U.S. 584 (2002) requires not only a

jury determination of an aggravating factor rendering the defendant

eligible for the death penalty, but also a jury determination of the

mitigating circumstances and whether the mitigating circumstances are

sufficiently substantial to warrant leniency?

TABLE OF CONTENTS

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THERE IS A CONFLICT AMONG THE STATES

REGARDING WHETHER, UNDER RING V. ARIZONA, THE

SIXTH AMENDMENT JURY TRIAL RIGHT IN CAPITAL

CASE SENTENCING PROCEEDINGS EXTENDS BEYOND

THE RIGHT TO A JURY DETERMINATION OF AN

AGGRAVATING CIRCUMSTANCE THAT RENDERS THE

DEFENDANT ELIGIBLE FOR THE DEATH PENALTY. ...

Il.

THE ARIZONA SUPREME COURT ERRED BY FINDING

THAT RING V. ARIZONA ESTABLISHES A_ SIXTH

AMENDMENT RIGHT TO HAVE A JURY ASSESS

WHETHER MITIGATING CIRCUMSTANCES EXIST AND

WHETHER THE MITIGATING CIRCUMSTANCES ARE

SUFFICIENT TO WARRANT LENIENCY.

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TABLE OF AUTHORITIES

CASES PAGE

Almendarez-Torres v. United States, 523 U.S. 224 (1998) .. 4,9, 12

Apprendi v. New Jersey, 530 U.S. 466 (2002) ...... 6, 8-11, 13, 15

Bottoson v. Moore, 833 So.2d 693 (Fla. 2002) ................ 8

Brice v. Delaware, 815 A.2d 314 (Del. 2003) .............. 7, i3

Clemons v. Mississippi, 494 U.S. 738, 108 L.Ed.2d 725 (1990) .. 13

Ex parte Hodges v. State, 2003 WL 1145451,

FO ee Oe EE ch aha ne wen eg es ee es aioe ee 8

Ex parte Waldrop, 2002 WL 1001194 (Ala. Nov. 22, 2002) ...... 8

Harris v. United States, 122 S. Ct. 2406 (2002) ............... 14

Johnson v. Nevada, 59 P.3d 450 (Nev. 2002) .................. 7

Jones (Nathaniel) v. United States, 526 U.S. 227 (1999) .... 11,14

Lee v. State, 2003 WL 21480428 (Ala. 2903) ................. 8

Proffitt v. Florida, 428 U.S. 242, 49 L.Ed.2d 913 (1976) ....... 13

Ring v. Arizona, 536 U.S. 584 (2002) (Ring II) .. 1-9, 12, 13, 15, 16

State v. Gales, 658 N.W.2d 604 (Neb. 2003) .................. 8

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

State v. Pandeli, U. S. Supreme Court No. 03-15,

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State v. Ring, 204 Anz. 534, 65 P.3d 915 (Ariz. 2003)

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State v. Ring, 25 P.3d 1139 (Ariz. 2001) (Ring I .............. )

State v. Torres, 58 P.3d 214 (Okla. 2002) .................... 8

State v. Tucker, 68 P.3d 110 (Ariz. 2003) .......... i ae Pe

United States v. Cotton, 535 U.S. 625 (2002) ................ 15

United States v. Harris, 536 U.S. 545 (2002) ................. 14

Walton v. Arizona, 497 U.S. 639 (1990) ..................... 9

Williams v. New York, 337 U.S. 241, 93 L. Ed. 1337 (1949) ... 1l

Woldt v. Colorado, 64 P.3d 256 (Col. 2003) .................. 7

Wrinkles v. State, 776 N.E.2d 905 (Ind. 2002) ................ 8

Zant v. Stephens, 462 U.S. 862 (1983) ...............0000e, 14

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CONSTITUTIONAL PROVISIONS

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STATUTES

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RULES

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OPINION BELOW

On May 5, 2003, the Arizona Supreme Court vacated Eugene

Tucker’s death sentence and remanded for resentencing based upon its

finding that Ring v. Arizona, 536 U.S. 584 (2002) (Ring II), requires

that a jury determine the existence of mitigating circumstances and

whether the mitigating circumstances are sufficiently substantial to

warrant leniency. State v. Tucker, 68 P.3d 110, JJ 53-54, 67-68 (Anz.

2003). (Appendix A.)

The Arizona Supreme Court applied a harmless error analysis in

its determination that no Ring IJ error occurred with respect to two

aggravating circumstances. The court’s analysis regarding mitigation

and Ring II error is based on an interim decision rendered in

consolidated proceedings involving this case and the other Arizona

cases pending on direct appeal at the time Ring IJ was decided. State

v. Ring, 204 Anz. 534, 65 P.3d 915 (Ariz. 2003) (Ring III) (Appendix

B). Applying Ring III, the court concluded that Tucker committed

multiple homicides during a continuous course of criminal conduct and

that no reasonable jury could have concluded otherwise. Jd. at {J

65-66. The Arizona Supreme Court also found there was

overwhelming evidence that one of the victims (AnnMarie Merchant)

suffered physically prior to being murdered and “no reasonable jury

could have found the murder of AnnMarie was anything but especially

cruel.” Jd. at {J 60-61. With respect to the other two victims, the

Arizona Supreme Court found that Ring I/ error was not harmless as to

one of the aggravating circumstances because the court could not

conclude that a jury would have found the murders especially heinous

and depraved. Id. at {¥ 63-64. Although the Arizona Supreme Court

found two aggravating circumstances rendering Tucker eligible for the

death penalty for all three murders, the court held that Ring JI error

occurred because it could not conclude whether a reasonable jury would

have found the same mitigating circumstances as the trial court and

whether “a jury would have assessed the mitigating evidence as did the

trial judge.” Jd. at J§ 67-68. Accordingly, the court remanded

Tucker’s case to the trial court for resentencing. Jd. at JJ 69.

STATEMENT OF JURISDICTION

Petitioners respectfully request that a Writ of Certiorari issue to

review the decision of the Arizona Supreme Court that vacated

Tucker’s sentence and remanded the case for resentencing. The

Arizona Supreme Court issued its decision on May 5, 2003. Petitioners

timely filed the petition for writ of certiorari within 90 days of that

decision. This Court has jurisdiction pursuant to United States

Constitution Article Il, Section 2; 28 U.S.C. § 1257(a); and Supreme

Court Rule 10.

PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution provides:

In all criminal prosecutions, the accused shall enjoy

the nght to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed; which district shall have

been previously ascertained by law, and to be

informed of the nature and cause of the accusation;

to be confronted with the witnesses against him; to

have compulsory process for obtaining witnesses in

his favor, and to have the assistance of counsel for

his defense.

Section | of the Fourteenth Amendment to the United States

Constitution provides, in pertinent part:

No State shall make or enforce any law which shall

. .. deprive any person of life, liberty, or property

without due process of law. . . .

ee

STATEMENT OF THE CASE

On November 1, 1999, a state grand jury indicted Tucker for the

murders of AnnMarie Merchant, her brother, Roscoe Merchant, and her

brother’s girlfriend, Cindy Richards. Tucker was also charged with

sexual assault, kidnapping, and burglary. A jury convicted Tucker of

all charges. The trial court sentenced Tucker to death for each of the

murders and to aggravated terms of imprisonment for the non-capital

convictions.

AnnManre Merchant and Tucker had a relationship for nearly a

year before the murders. AnnMarie lived with her brother Roscoe

Merchant and Roscoe’s girlfriend, Cindy Richards. The relationship

between AnnMarie and Tucker deteriorated, and on July 15, 1999,

Tucker went to AnnMarie’s apartment and murdered her, Roscoe, and

Cindy. Tucker shot Roscoe and Cindy in the head while they were

sleeping in bed. Cindy’s seven-month-old son was lying in a nearby

crib, but was unharmed.

Tucker and AnnMarie engaged in a tremendous struggle in

AnnMarie’s room. When police officers found AnnMarie, she was

lying face down on the floor in her bedroom. Her hands appeared to

have been handcuffed behind her back and there were ligature marks on

her wrists consistent with having been handcuffed. There were also

ligature marks around AnnMane’s neck. AnnMarie’s mouth was

covered with duct tape.

AnnMarie sustained massive blunt force trauma injuries, primarily

to the back of her head. She was also shot under her chin at close range

and again behind her left ear.

|

Before killing AnnMarie, Tucker sexually assaultedher. AnnMarie

had extensive bruising around her vagina and anus, which was not |

consistent with consensual sex. Semen found on AnnMarie’s left inner

thigh and on her t-shirt matched Tucker’s DNA profile in all 14 loci.

ET Wh en aD ser) me

The State alleged that Tucker committed multiple homicides under

A.R.S. § 13-—703(F)(8); that the murders were committed in an

.especially cruel, heinous, and depraved manner (A.R.S. § 13-703(F)(6));

and that Tucker created a grave risk of death to another person, pursuant

to A.R.S. § 13-—703(F)(3), by leaving baby Anthony alone after the

murders. The trial court found that AnnMarie’s murder was especially

cruel, heinous, and depraved, and that Richard’s and Cindy’s murders

were especially heinous and depraved. The trial court also found that

Tucker committed multiple homicides, and that Tucker created a grave

risk of death to Anthony Richards by leaving him helpless in his crib

after the murders.

Tucker proffered good character, lack of prior criminal history,

potential for rehabilitation, and age (18) as mitigating circumstances.

The trial court found Tucker’s age and lack of prior criminal history as

mitigating circumstances. The trial court weighed the aggravating and

mitigating circumstances and found that the mitigating circumstances

were not sufficiently substantial to warrant leniency.

Following this Court’s decision in Ring IJ, the Arizona Supreme

Court consolidated this case with other death penalty cases that were

pending on direct appeal to address the applicability of Ring I/ to those

cases.

On April 3, 2003, the Arizona Supreme Court issued a ruling in the

consolidated case, holding, among other things, that (1) capital sentences

imposed under Arizona’s prior capital sentencing scheme are subject to

review for harmless error; (2) under Ring I] and Almendarez-Torres v.

United States, 523 U.S. 224 (1998), the Sixth Amendment does not

afford capital defendants the right to have a jury decide whether the State

has.established an aggravating circumstance based on the defendant’s

pnor convictions; and (3) Ring IJ requires a jury determination of

mitigating circumstances and the weighing and balancing of aggravating

and mitigating circumstances. Thus, the court held there must be a

harmless error analysis of findings regarding the existence of mitigation

and whether mitigation is sufficient to warrant leniency. State v. Ring,

204 Aniz. 534, at FJ 50, 63, 88-89, 65 P.3d 915.

On May 5, 2003, the Arizona Supreme Court applied those holdings

to the instant case, vacating Tucker’s death sentence and remanding the

case for resentencing. Tucker, 68 P.3d 110 at J 67-68. The Arizona

Supreme Court found that one of the aggravating circumstances at issue

(multiple homicides) was established beyond a reasonable doubt and that

no reasonable jury could conclude otherwise. Id. at {J 65-66. The court

also found another aggravating circumstance (especially cruel) had been

established beyond a reasonable doubt as to AnnMarie’s murder and that

no reasonable jury could have found otherwise. Jd. at [§ 60-61. The

trial court found that Cindy Richards’ and Roscoe Merchant’s murders

were especially heinous and depraved, but the Arizona Supreme Court

vacated that finding because it could not conclude that a reasonable jury

would have concluded the same. Jd. at J] 63-64. After finding Ring II

error was harmless with regard to two aggravating circumstances, the

Arizona Supreme Court remanded the case for resentencing based on its

view that Ring IJ error occurred because the trial judge, not the jury,

made findings regarding the mitigating circumstances proffered by

Tucker and determined that the mitigating circumstances were not

sufficiently substantial to warrant leniency. Id. at [J 67-68.

REASON WHY THE WRIT SHOULD ISSUE

There is aconflict among the states regarding how to apply Ring II.

The Arizona, Nevada, and Colorado Supreme Courts have broadly

interpreted Ring JI error to include the determination of mitigating

circumstances and the weighing and balancing of aggravation and

mitigation. That conclusion conflicts with rulings from courts in

Delaware, Nebraska, Oklahoma, Alabama, Indiana, and Florida. This

Court should accept review to clarify this confusion regarding the

application of Ring II.

Ring II should not be interpreted to require a jury, rather than a

judge, to find every aggravating circumstance, but only an aggravating

circumstance that renders a defendant eligible for the death penalty.

Likewise, Ring IJ should not be interpreted as establishing a Sixth

Amendment right to have a jury determine whether mitigating

circumstances exist and whether mitigation is sufficiently substantial to

warrant leniency. In Ring II, this Court noted that the issue presented

was very narrow—whether an aggravating factor that makes a defendant

death eligible may be found by the judge, or whether the Sixth

Amendment’s jury trial guarantee applies to that finding. Ring I] was

based on this Court’s decision in Apprendi v. New Jersey, 530 U.S. 466

(2002), that the jury trial guarantee extends to any fact that increases the

sentencing range. In Arizona, a finding of at least one aggravating

circumstance necessarily increases the sentencing range to include a

possible death sentence. Thus, a jury finding (or a finding of harmless

error) regarding the existence of at least one aggravating circumstance

extends the sentencing range to include a possible death sentence and

therefore satisfies Ring II.

Finally, the Arizona Supreme Court’s ruling affects not only the

instant case, but 26 other Arizona cases that were pending on direct

review at the time this Court decided Ring IJ. The State of Arizona has

filed a petition for writ of certiorari in State v. Pandeli, U. S. Supreme

Court No. 03-15, filed June 27, 2003, and anticipates that petitions will

be filed in other similarly situated cases as the Arizona Supreme Court

issues rulings reflecting a harmless error analysis under Ring II. This

Court should accept review in these cases to avert unwarranted

resentencing proceedings, with their concomitant costs to the State and

to victims, in those cases.

ARGUMENTS

I.

THERE IS A CONFLICT AMONG THE STATES

REGARDING WHETHER, UNDER RING V. ARIZONA,

THE SIXTH AMENDMENT JURY TRIAL RIGHT IN

CAPITAL CASE SENTENCING PROCEEDINGS

EXTENDS BEYOND THE RIGHT TO A _ JURY

DETERMINATION OF AN AGGRAVATING

CIRCUMSTANCE THAT RENDERS THE DEFENDANT

ELIGIBLE FOR THE DEATH PENALTY.

State courts have reached conflicting conclusions regarding the

scope of Ring IJ. The Arizona Supreme Court held in the instant case

that under Ring IJ, there is a Sixth Amendment night to a jury

determination of whether mitigating circumstances exist and whether

those circumstances are sufficiently substantial to warrant leniency.

Tucker, 68 P.3d 110, at § 67. The Colorado Supreme Court recently

reached the same conclusion in Woldt v. Colorado, 64 P.3d 256, 265-66

(Col. 2003), as did the Nevada Supreme Court in Johnson v. Nevada, 59

P.3d 450, 460 (Nev. 2002).

In contrast, the Delaware Supreme Court recently ruled that Ring II

does not extend to the weighing phase of the capital sentencing process;

once a jury finds a statutory aggravating circumstance that renders the

defendant death eligibie, a sentencing judge may weigh aggravating and

mitigating circumstances. Brice v. Delaware, 815 A.2d 314, 322

(Del. 2003). The Delaware court expressly rejected the argument that

Ring II requires the jury to find “every fact” relied on by the sentencing

judge in imposing death. 815 A.2d, at 321-22. The Nebraska Supreme

Court has similarly ruled that Ring IJ does not afford capital defendants

the nght to have a jury weigh and balance aggravating and mitigating

circumstances; those determinations fall outside the jury’s “eligibility”

decision and instead are part of the “selection decision,” which can be

performed by a judge without violating the Sixth Amendment. Srate v.

Gales, 658 N.W.2d 604 (Neb. 2003).

Alabama, Oklahoma, Florida, and Indiana courts have similarly

rejected the notion that Ring IJ requires that a jury weigh aggravating

and mitigating circumstances. In Lee v. State, 2003 WL 21480428 Ala.

Crim. App. June 27, 2003), the Alabama Court of Criminal Appeals held

that, because the jury convicted Lee of the capital offenses of robbery-

murder, it necessarily found the existence of the statutory aggravating

circumstance (committing a murder while engaged in the commission

of a robbery or attempted robbery). Jd. at 50. The court concluded that

Ring II was satisfied because a jury, not the judge, determined the

existence of an aggravating circumstance rendering Lee death eligible.

Id. The Alabama court expressly rejected Lee’s argument that Ring Il

also requires the jury to weigh the aggravating and mitigating

circumstances. Jd. (citing Ex parte Waldrop, 2002 WL 1001194 (Ala.

Nov. 22, 2002)); see also Ex parte Hodges v. State, 2003 WL 1145451,

*6, *7 (Ala. Mar. 14, 2003) (upholding judicial-override provision;

because the defendant was eligible for the death penalty when the jury

found that he committed the murder while he was engaged in a robbery,

the subsequent determination by the trial court that the especially

heinous, atrocious, or cruel factor was established and that aggravating

circumstances outweighed the mitigating circumstances did not

implicate Ring II or Apprendi); State v. Torres, 58 P.3d 214 (Crim. App.

Okla. 2002) (rejecting claim that Ring II precludes an appellate court

from reweighing the evidence of aggravating and mitigating

circumstances after invalidating an aggravating circumstance:

“Oklahoma’s provision that jurors make the factual finding of an

aggravating circumstance beyond a reasonable doubt is all that Ring [II]

requires.”); Bottoson v. Moore, 833 So.2d 693 (Fla. 2002) (per cunam

opinion analyzing effect of Ring IJ on Florida statutory scheme and

denying post-conviction relief based on Ring II; two Justices concurred

only because one of the four aggravators found in connection with the

murder was Bottoson’s prior conviction of a crime involving the threat

of violence—an aggravator that need not be found by the jury under

Almendarez-Torres);,; Wrinkles v. State, 776 N.E.2d 905, 907-08 (Ind.

2002) (multiple murders aggravating circumstance implicit in jury’s

verdict; therefore Ring II is not implicated).

Given the clear conflict in the way state courts have interpreted this

Court’s Sixth Amendment analysis in Ring II, this Court should

accept certiorari review to provide guidance and clarity.

Il.

- THE ARIZONA SUPREME COURT ERRED BY FINDING

THAT RING V. ARIZONA ESTABLISHES A SIXTH

AMENDMENT RIGHT TO HAVE A JURY ASSESS

WHETHER MITIGATING CIRCUMSTANCES EXIST AND

WHETHER THE MITIGATING CIRCUMSTANCES ARE

SUFFICIENT TO WARRANT LENIENCY.

In Ring II, this Court held that Arizona’s death penalty sentencing

statute offended the Sixth Amendment to the extent it required a judge,

rather than a jury, to determine the presence or absence of an aggravating

circumstance that renders a first-degree murder defendant eligible for the

death penalty. Based on Apprendi’s holding that, other than the fact of

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

the prescribed statutory maximum must be submitted to a jury, this

Court overruled Walton v. Arizona, 497 U.S. 639 (1990), in which this

Court had rejected the same Sixth Amendment challenge to Arizona’s

statute (A.R.S. § 13-703). Ring II, 536 U.S. at 609.

The Arizona Supreme Court has interpreted Ring II too broadly.

This Court’s analysis in Ring II focused on whether a finding that an

aggravating factor existed increased the range of sentence the defendant

faced. See 536 U.S. at 602. The Arizona Supreme Court had indicated

in State v. Ring, 25 P.3d 1139, 1151 (Anz. 2001) (Ring J), that “the

death sentence becomes possible only after the trial judge makes a

factual finding that at least one aggravating factor is present.”

(Emphasis added.)

=

,

4

Relying on the Arizona Supreme Court’s interpretation of Arizona

law, this Court found that Arizona’s first-degree murder statute

authorized a maximum penalty of death “only in a formal sense.” This

Court stated:

A defendant convicted of first-degree murder in Arizona

cannot receive a death sentence unless a judge makes the

factual determination that a statutory aggravating factor

exists. Without that critical finding, the maximum sentence to

which the defendant is exposed is life imprisonment, and not

the death penalty.

Based solely on the jury’s verdict finding Ring guilty of first-

degree felony murder, the maximum punishment he could

have received was life imprisonment. This was so because, in

Arizona, a “death sentence may not legally be imposed... -

unless at least one aggravating factor is found to exist beyond

a reasonable doubt.”

536 U.S. at 596 (internal quotes omitted, emphasis added). This Court

thus held that “the required finding [of an aggravated circumstance]

expose[d] [Ring] to a greater punishment than that authorized by the

jury’s guilty verdict.” 536 U.S. at 604 (quoting Apprendi, 530 U.S. at

494).

Apprendi similarly focused on whether a court could impose a

sentence beyond the range authorized by the jury’s verdict. Apprendi

pled guilty to possession of a firearm for an unlawful purpose, a crime

designated in New Jersey’s substantive criminal statute as a second-

degree offense, punishable under New Jersey’s felony sentencing statute

by a 5 to 10-year prison term. Apprendi, 530 U.S. at 468-70. The

charging instrument made no reference to a third New Jersey statute

aimed at hate crime, which enhanced the sentencing range from the

second-degree to first-degree level (from 10 to 20 years) upon a finding

by the sentencing court (by a preponderance of the evidence) that the

defendant committed the crime with a racially biased purpose. /d. at

10

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i

469. The New Jersey trial court made such a finding and imposed a 12-

year sentence, which two state appellate courts subsequently upheld. Jd.

at 471.

This Court determined that Apprendi had a constitutional night to

a jury finding on the issue of racial bias, and held that enhancement

under New Jersey’s hate crime statute violated the Sixth Amendment

right to a jury trial because it effectively convicted Apprendi of a greater,

uncharged offense. Jd. at 475-76, 494 n.19. Confirming a principle

previously set forth in Jones (Nathaniel) v. United States, 526 U.S. 227

(1999), this Court stated:

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

the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a

reasonable doubt. ... “[I]t is unconstitutional for a legislature

to remove from the jury the assessment of facts that increase

the prescribed range of penalties to which acriminal defendant

is exposed.”

Apprendi, 530 US. at 490 (citing Jones, 526 U.S. at 252-53). This

Court was careful to point out, however, that not every factual

determination relating to sentencing need be found by a jury:

We should be clear that nothing in this [common-law]

history suggests that it is impermissible for judges to exercise

discretion—taking into consideration various factors relating

both to offense and offender—in imposing a judgment within

the range prescribed by statute. We have often noted that

judges in this country have long exercised discretion of this

nature in imposing sentence within statutory limits in the

individual case. See e.g., Williams v. New York, 337 U.S. 241,

246, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949) ....

530 U.S. at 481 (emphasis in original).

11

In the consolidated proceedings conducted by the Arizona Supreme

Court following Ring II, the State argued that the court should uphold

capital sentences imposed under Arizona’s disapproved, former statute

in three circumstances: (1) where the jury implicitly found one

aggravating factor, (2) where the trial judge found one factor established

by overwhelming and essentially uncontroverted evidence, or (3) wiiere

the aggravator was outside the purview of Ring IJ. Any one of these

findings renders the defendant “death eligible” based on the presence of

one aggravating factor. The State posited that nothing in Ring II

prevents a trial judge from finding additional aggravating circumstances,

; as well as finding mitigating circumstances and balancing them against

the aggravating circumstances.

The Arizona Supreme Court rejected the State’s argument. The

court acknowledged that “[a] narrow reading of Ring I] may permit a

judge to decide the existence of additional aggravating factors,” but

nevertheless concluded that Ring IJ requires a jury to consider all

aggravating factors urged by the State. The Arizona Supreme Court

further noted that the death penalty could not have been imposed under

the statute in place when the defendants, including Tucker, were

sentenced unless the trial court, acting as the sentencer, concluded that

mitigating factors were not sufficiently substantial to call for leniency.

} The court thus held that an analysis of Ring II error includes a

| determination of the mitigating circumstances and whether those

circumstances outweigh the aggravating circumstances. Ring III, 65

H P.3d 915, J 88-89, Tucker, 68 P.3d 110, J¥ 67-68; see also State v.

Pandeli, 65 P.3d 950, {10 (Ariz. 2003).

POY erate NO

Sabb RSs

The Arizona Supreme Court’s expansive reading of Ring II is

unwarranted given the narrow scope of the issue addressed in Ring II:

Ring’s claim is tightly delineated: He contends only that the

Sixth Amendment required jury findings on the aggravating

circumstances asserted against him. No aggravating

circumstance related to past convictions in his case; Ring

therefore does not challenge Almendarez-Torres v. United

States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998),

12

Ee

which held that the fact of prior conviction may be found by

the judge even if it increases the statutory maximum sentence.

He makes no Sixth Amendment claim with respect to

mitigating circumstances. See Apprendi v. New Jersey, 530

U.S. 466, 490-491, n. 16, 120 S.Ct. 2348, 147 L.Ed.2d 435

(2000) (noting “the distinction the Court has often recognized

between facts in aggravation of punishment and facts in

mitigation” (citation omitted)). Nor does he argue that the

Sixth~Amendment required the jury to make the ultimate

determination whether to impose the death penalty. See

Proffitt v. Florida, 428 U.S. 242, 252, 96 S.Ct. 2960, 49

L.Ed.2d 913 (1976) (plurality opinion) ("[I]}t has never [been]

suggested that jury sentencing is constitutionally required.").

He does not question the Arizona Supreme Court's authority

to reweigh the aggravating and mitigating circumstances after

that court struck one aggravator. See Clemons v. Mississippi,

494 U.S. 738, 745, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990).

536 U.S. at 597 n.4. Furthermore, both Ring II and Apprendi focused

exclusively on a Sixth Amendment requirement that the jury make

factual findings that set the outer limits of the sentencing range. Neither

case established a Sixth Amendment basis for requiring a jury tu make

the ultimate sentencing decision; such a requirement was urged only by

Justice Breyer in a concurring opinion. Ring II, 536 U.S. at 614 (J.

Breyer, concurring based on his belief that the Eighth Amendment

mandates jury sentencing in capital cases). Thus, when a state court

finds that an aggravating circumstance is outside the purview of Ring II,

or that Ring II error relating to one aggravating circumstance is

harmless, that finding satisfies the Sixth Amendment requirements set

forth in Ring IJ and Appren.w See Brice v. Delaware, 815 A.2d, at

321-22 (Ring II requires only that a jury find the existence of an

aggravating circumstance necessary for imposition of the death penalty).

(Emphasis added.) /

In the present case, the Anzona Supreme Court expressly found that

there was no Ring II error with regard to the multiple homicides

aggravator (applicable to all three victims) or the especially cruel

13

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me ai enh We Ne BARES Be wf ont Nl Malem

aggravator relating to AnnMarie’s murder. Tucker, 68 P.3d 110, {1

60-61, 65-66. Those findings satisfied Ring IJ, and there was no need

for an analysis of whether error relating to the lack of a jury finding

regarding a second aggravator or the weighing of aggravation and

mitigation was harmless.

This Court’s decision in United States v. Harris, 536 U.S. 545

(2002), decided the same day as Ring II, supports the conclusion that the

finding of any one aggravating circumstance satisfies the Sixth

Amendment requirement set forth in Ring IJ. In Harris, this Court

rejected a claim that the Sixth Amendment requires a jury finding of a

fact (the defendant brandished a gun during the commission of the

offense) increasing the statutory minimum sentence. 536 U.S. at 554.

This Court observed that, unlike a statutory factor that increases the

maximum penalty for the defendant’s crime, a statutory factor setting a

mandatory minimum “ha{s] an effect on the defendant’s sentence that is

more consistent with traditional understandings about how sentencing

factors operate; the required findings constrain, rather than extend, the

sentencing judge’s discretion.” Jd. This Court further noted that the

brandishing statute “does not authorize the judge to impose ‘steeply

higher penalties’ —or higher penalties at all—once the facts in question

are found.” Jd.

This Court also reiterated its pronouncement in Jones that “[iJt is

not, of course, that anyone today would claim that every fact with a

bearing on sentencing must be found by a jury; we have resolved that

general issue and have no intention of questioning its resolution.”

Harris, 536 U.S. at 558 (citing Jones, 526 U.S. at 248). This Court then

held that “[jJudicial factfinding in the course of selecting a sentence

within the authorized range does not implicate the indictment, jury-trial,

and reasonable-doubt components of the Fifth and Sixth Amendments.”

Id.

In the present case, findings regarding mitigation likewise operated

to “constrain, rather than extend, the sentencing judge’s discretion.”

Once the sentencing range included a possible death sentence based on

the presence of at least one statutory aggravating circumstance, there was

14

no Ring Il/Apprendi error when the trial or appellate court balanced

aggravating and mitigating circumstances. See also Zant v. Stephens,

462 U.S. 862 (1983) (holding that in a state where aggravating

circumstances serve only to make a defendant eligible for the death

penalty and not to determine the punishment, the invalidation of one

aggravating circumsiance does not necessarily require an appellate court

to vacate a death sentence and remand to a jury).

Finally, Ring I] error should be narrowly interpreted because it does

not go to the fairness or reliability of the sentencing process. The

sentencing error in Ring II and in the instant case was that a fair and

impartial judge, rather than a fair and impartial jury, determined the

existence of aggravating circumstances under A.R.S. § 13-703. The

error at issue did not implicate the fundamental fairness of the process,

and there is not a compelling basis for broadening this Court’s holding

in Ring II beyond the scope of that decision.

In United States v. Cotton, 535 U.S. 625, 632-34 (2002), this Court

noted the injustice that would result if a sentence were to be reversed on

error that “did not seriously affect the faimess, integnty, or public

reputation of judicial proceedings.” Such an injustice will occur in the

instant case if a resentencing proceeding is required. Given the Anzona

Supreme Court’s conclusion that no Ring // error arose from the finding

of the pnor conviction aggravator and that the evidence relating to the

second aggravator (special cruelty, heinousness, or depravity) was

overwhelming and essentially uncontroverted, there is no inherent

unfairness to the defendant in ending the harmless error inquiry there.

The real threat to the “fairness, integrity, and public reputation of

judicial proceedings” would be to require a resentenci.g in this case

notwithstanding a finding of harmlessness as to aggravating factors that

set the outer limits of the sentencing range to include a possible death

sentence.

.

7

¢

SB A eon tA ae ONS.

ah ic Caan te Bs hes toc

CONCLUSION

There is a conflict among the states regarding whether, under Ring

II, the Sixth Amendment jury tral guarantee is satisfied in a capital case

when there is a jury finding (or a finding of harmless error) relating to

the existence of an aggravating circumstance that makes the defendant

eligible for the death penalty. This Court should accept certioran review

to address that conflict and to reject the Anzona Supreme Court’s

finding that the Sixth Amendment requires a jury finding regarding

every aggravating circumstance in a capital case and a jury determination

of whether mitigating circumstances exist and whether the mitigation

outweighs aggravation. Accordingly, and based on the foregoing

authority and arguments, the State of Anzona respectfully requests that

this Court grant the petition for writ of certiorari.

Respectfully submitted,

TERRY GODDARD

Attorney General

KENT E. CATTANI

Chief Counsel

Capital Litigation Section

DAWN M. NORTHUP

Assistant Attorney General

(Counsel of Record)

Attorneys for PETITIONER

CRMO1-0223

114488

16

APPENDIX A

[Filed May 5, 2003]

IN THE SUPREME COURT OF ARIZONA

STATE OF ARIZONA, ) Supreme Court

) No. CR 01-0091-AP

Appellee, )

) Maricopa County

v. ) Superior Court

) No. CR1999-015292

EUGENE ROBERT TUCKER )

) OPINION

Appellant. )

)

Appeal from the Superior Court in Maricopa County

The Honorable Michael D. Jones, Judge

CONVICTIONS AND ALL SENTENCES EXCEPT

SENTENCES OF DEATH AFFIRMED AND DEATH

SENTENCES REMANDED FOR RESENTENCING

Janet Napolitano, Former Attorney General Phoenix

Terry Goddard, Attorney General

By: KentE. Cattani, Chief Counsel,

Capital Litigation Section

and: Dawn M. Northup, Assistant Attorney General

Robert L. Ellman, Assistant Attorney General

James P. Beene, Assistant Attorney General

John P. Todd, Assistant Attorney General

Bruce N. Ferg, Assistant Attorney General Tucson

Attorneys for Appellee

James J. Haas, Maricopa County Public Defender Phoenix

By: Christopher V. Johns, Deputy Public Defender

A- 1

James H. Kemper, Deputy Public Defender

Attorneys for Appellant

RYAN, Justice

G1 Eugene Robert Tucker was convicted of three counts of first degree

murder for the July 15, 1999, deaths of AnnMarie Merchant, Roscoe

Merchant, and Cindy Richards. Tucker was also found guilty of sexual

assault, kidnapping, and burglary in the first degree. He was sentenced

to death fox each of the first degree murder counts. Tucker received the

following sentences for his other crimes: Twenty-five years to life for

the sexual assault conviction, twenty-one years for the kidnapping

conviction, and twenty-one years for the burglary conviction. These

sentences were ordered to be served consecutively.

42 Appeal to this court is mandatory and automatic when a trial court

imposes a sentence of death. Ariz. R. Crim. P. 26.15 and 31.2(b). This

court has jurisdiction under Article 6, Section 5(3), of the Anzona

Constitution and Arizona Revised Statutes ("A.R.S.") section 13-4031

(2001).

I. BACKGROUND’

q3 AnnMarie Merchant and Roscoe Merchant were sister and brother.

Cindy Richards was Roscoe’s girlfriend. Tucker hada relationship with

AnnMarie for nearly a year before her death. He had known Roscoe for

slightly longer. Tucker and AnnMarie had engaged in sexual

intercourse at least twice. Tucker also had visited the apartment where

the murders took place on a number of occasions.

94 AnnMarie often spoke on the telephone to family and friends. She

was in regular contact with her aunt, Hope Bares, with whom she had ~

' On appeal, the court views the facts presented in the trial below in a light

most favorable to sustaining the verdict. State v. Gallegos, 178 Ariz. 1, 9, 870 P.2d

1097, 1105 (1994).

A-2

a close relationship. AnnMarie spoke almost daily with her cousin,

Cassandra Barnes, Hope’s daughter, with whom she also had a close

relationship.

q5 On the evening of July 15, 1999, after a number of telephone calls

to the Merchant apartment went unanswered, Hope’s husband called the

police. When police arrived at the apartment, they found AnnMarie’s

body face down with her hands behind her back. Her mouth was

covered by duct tape. She was dressed in only a gray tee-shirt and bra.

A pair of jeans was found near her body. Physical evidence obtained

from AnnMarie’s body included semen residue on her left inner thigh

and on the front of her tee-shirt. Testing of these semen samples

resulted in a fourteen-point match with Tucker’s DNA.’

46 Police found a single fingerprint belonging to Tucker at the crime

scene. It was located on the handle of the refrigerator door.

47 During a search of the Tucker home, the police recovered a roll of

duct tape. Tests on the roll of tape did not disclose any biological

material linked to AnnMarie. A side-by-side comparison of the tape

found on AnnMarie’s body and the tape found at the Tucker home

indicated some similarities, but not a conclusive match.

48 Ligature marks on AnnMarie’s wrists indicated that she may have

been handcuffed. Three pairs of handcuffs were recovered during the

search of Tucker’s home. The medical examiner did not compare the

seized handcuffs to the marks on AnnMarie’s wnists. All three pairs of

handcuffs were tested for the presence of biological material, but none

was found linking the handcuffs to AnnMarie. At trial, Tucker testified

that he had the handcuffs because he was taking law enforcement

classes in school.

q9 AnnMarie’s body had a ligature mark around the neck. The medical

examiner testified it could have been made by a length of telephone

Testimony indicated that only identical twins would share all fourteen

points in the DNA test result.

A- 3

\

\

\

\

\

cord found near the body. The medical examiner indicated that the

ligature mark was made before AnnMarie’s death. |

410 AnnMarie was bludgeoned several times on the top and back of her

head by a blunt instrument. A broken glass table top and the general

disarray of the room indicated an intense struggle took place. The

medical examiner believed that the weapon used/to inflict the head

wounds was cylindrical and one-quarter to one-half inch in diameter.

A search of the crime scene, the surrounding area, and the Tucker home

yielded no object matching those dimensions that contained any

biological material that came from AnnMane.

411 AnnMarie had bruising around her vagina and anus. The medical

examiner testified that the extent of the bruising was not anormal result

of sex. She opined that the victim had been made to suffer based on the

depth of the bruising.

412 AnnMarie suffered two gunshot wounds to the head. The shots

were fired at close range. The medical examiner found that the cause of

AnnMarie’s death was two gunshot wounds, blunt force trauma, and

strangulation. She indicated these were all contributing factors and

could not isolate any one of them as the cause of death.

413 Roscoe’s and Cindy’s bodies were found in a separate bedroom

lying in their bed. Each had a single gunshot wound to the head. Cindy

also had a "through and through" gunshot wound to her thumb. The

medical examiner could not determine whether Roscoe and Cindy were

awake or asleep when they were shot. Cindy’s seven month-old son

was found unharmed lying nearby in his crib. |

{14 The State’s ballistics expert testified that the slugs recovered from

all the victims were from .38 caliber bullets. The lands and grooves on

one of the slugs indicated it most likely was fired from a Colt weapon.

No gun was found at or near the crime scene matching that description.

A search of Tucker’s home turned up only a Smith & Wesson .357

caliber handgun.

rr

415 The ballistics expert testified that the weapon found in Tucker’s

home was not the murder weapon. Police found a number of different

types of .38 caliber bullets in the Tucker home. The State presented

evidence that .38 caliber bullets can be fired from a .357 gun. But

because no shell casings were found at the crime scene, police could

not make a comparison with the bullets found in Tucker’s home.

Furthermore, the type of bullet that killed all three victims was different

from any of the types of bullets found in the Tucker home.

9/16 At trial, Tucker contended that the physical evidence found at the

crime scene, his fingerprint and semen, could be explained by his prior

visits to the apartment and prior sexual contact with AnnMarie. He

testified that he had cooperated with the police by voluntarily agreeing

to be interviewed and giving a blood sample. He attempted to counter

the State’s theory that he murdered the victims because of AnnMarie’s

rejection of his sexual advances by claiming the relationship had ended

by mutual agreement and that he had another girlfriend at the time.

However, Tucker did not know this girlfriend’s last name or her

telephone number, and he could not remember when they started seeing

each other.

4/17 Tucker also raised an alibi defense. His mother claimed that he was

home helping her with yard work at the time the murders took place.

Mrs. Tucker testified that she had taken the day off from work

specifically to do yard work and that Tucker was home with her all day.

His father testified that Tucker was doing yard work with his mother

when he arrived home from work in the afternoon on the day of the

murders. Dennis Hall, a postal carrier, testified that he saw Mrs. Tucker

and a young man who resembled Tucker doing yard work on the day of

the murders.

418 The jury found Tucker guilty on all counts. Following the verdict,

the court held an aggravation and mitigation hearing. The State proved

three aggravating factors: (1) Tucker knowingly created a grave risk of |

death to Cindy’s baby by killing all of his care givers and leaving him )

alone in the house, A.R.S.'§ 13-703(F)(3) (2001); (2) the murder of

AnnMarie was especially cruel, and all the murders were heinous and

A-5

depraved, A.R.S. § 13- 703(F)(6); and (3) Tucker had been convicted

of other homicides that were committed during the commission of the

offense, A.R.S. §13-703(F)(8). Tucker claimed his young age, A.R.S.

§ 13-703(G)(5), rehabilitation potential, good character, and lack of

prior criminal history as mitigating factors. See A.R.S. § 13-703(G).

The court found Tucker’s age and lack of criminal history to be

mitigating factors, but rejected Tucker’s claims of good character and

rehabilitation potential as mitigating factors. The court found the

aggravating factors outweighed the mitigating factors and sentenced

Tucker to death on all three first degree murder counts.

II. Discussion

A.

419 Tucker claims that the trial court should have disqualified his trial

counsel, Greg Clark, because of a conflict of interest. He contends that

Clark had an actual conflict of interest that prevented him from

pursuing a third-party defense that would have implicated a former

client of Clark.

{20 Well before the trial, the State filed a motion to determine counsel.

The motion alleged that Clark might have a conflict because he had

represented Patrick Kozakiewicz, a potential witness in Tucker’s case.

Kozakiewicz and Tucker knew each other. During police interviews,

Tucker indicated that Kozakiewicz knew, and did not like, Roscoe. The

State’s motion also stated that Kozakiewicz, during recorded jailhouse

telephone conversations, told his family that he planned to testify

against Tucker in this case. Additionally, Kozakiewicz told family

members that Clark was going to arrange for a plea bargain in exchange

for his testimony. Tucker claims that this evidence shows that Clark

had a conflict of interest that prevented him from pursuing Kozakiewicz

as a third-party defendant.

{21 At a hearing on the matter, Clark stated that he had withdrawn

from representation of Kozakiewicz immediately after the State filed its

motion to determine counsel.’ Clark had represented Kozakiewicz in

two matters unrelated to this case: a probation violation and a charge

that Kozakiewicz possessed contraband while he was in jail on the

probation violation. Clark avowed that he had only two bref

conversations with Kozakiewicz and that Tucker’s name was never

mentioned. He equivocated as to whether he would pursue a third-party

defense involving Kozakiewicz.

q[22 The trial court found no actual or potential conflict of interest. The

court further found that the potential conflict was fully disclosed to

Tucker and that in agreeing to keep Clark as his counsel, he waived any

violation of his Sixth Amendment rights.* Tucker argues the trial

court’s refusal to disqualify Clark led to structural error requiring anew

trial.

423 Generally, cases in which courts have found structural error

involve a deprivation of counsel entirely, or denial of access to counsel

> Clark’s Notice of Association in this case was filed on March 1, 2000.

The State filed a Motion for Determination of Counsel on March 21, 2000. The next

day Clark filed a Motion to Withdraw from his representation of Kozakiewicz, which

he says was granted on March 23, 2000. Thus, Clark was counsel of record for both

Tucker and Kozakiewicz for only three weeks, a little more than five months before

Tucker’s case came to trial on August 29, 2000.

* The trial court based its finding of waiver on the following exchange:

THE COURT: Mr. Tucker, you understand that the issue is the State is

asking me to determine whether or not Mr. Clark will continue as your

attorney in this case. Do you have a position you would like to tell they [sic]

about whether you would like Mr. Clark to continue or not based upon a

potential conflict with the witness Mr. Sakovitz [sic].

THE DEFENDANT: No, sir, I don’t.

THE COURT: You are okay with Mr. Clark continuing then?

THE DEFENDANT: Oh, yes.

THE COURT: Do you want Mr. Clark to continue?

THE DEFENDANT: Yes.

We do not address the issue of waiver in this case because at oral argument the State

conceded that, on this record, the evidence that Tucker waived his Sixth Amendment

rights is inadequate.

A- 7

at a critical stage in the trial process. Mickens v. Taylor, 535 U.S. 162,

__., 122 S. Ct. 1237, 1240-41 (2002) (citing cases). The Sixth

Amendment violation claimed in this case does not rise to that level.

Rather, Tucker’s challenge is that the trial court improperly refused to

disqualify defense counsel. We review a trial court’s decision on the

disqualification of counsel for abuse of discretion. State v. Jones, 185

Anz. 471, 482, 917 P.2d 200, 211 (1996) (citing Okeani v.- Superior

Court, 178 Ariz. 180, 181, 871 P.2d 727, 728 (App. 1993)).

4/24 In Jones, this court examined whether the trial court wrongly

refused to grant a withdrawal motion by defense counsel. The motion

was filed because the State disclosed as a potential witness a former

client of defense counsel for Jones. 185 Ariz. at 482, 917 P.2d at 211.

The court found no error because neither party called the witness at

trial. Jd. Thus, no conflict of interest developed. Jd. The court further

held that if Jones was "arguing that defense counsel’s decision not to

call [the witness] to testify was ineffective assistance of counsel, he

must do so in a proceeding for post-conviction relief." Jd.

{25 Because Kozakeiwicz was not called as a witness in this case, no

conflict of interest actually arose. However, Tucker argues that

Kozakeiwicz was not called as a witness because Clark chose not to

investigate the possibility of naming Kozakeiwicz as a third-party

defendant because of a conflict of interest. Tucker claims that despite

Kozakeiwicz being an obvious third-party defendant, Clark avoided

investigating the defense because the ethical rules prevented him from

doing so.

{[26 This argument presents two problems. First, there is no record of

why Clark did not pursue a third-party defense. He may not have

pursued the defense because of the potential ethical concerns of

implicating a former client. On the other hand, he may not have

pursued such a defense because he and his client decided that the

* The witness might have corroborated Jones’s self-defense claim as to one

victim, and his claim that someone else killed the other victim. Jones, 185 Ariz. at

482,917 P.2d at 211.

A- 8

evidence would not have supported the defense.® Why Clark did not

pursue a third-party defense can only be developed at an evidentiary

hearing in a post-conviction relief proceeding. See id. at 482-83, 917

P.2d at 211-12 (citing State v. Carver, 160 Anz. 167, 175, 771 P.2d

1382, 1390 (1989)); see also State v. Spreitz, 202 Ariz. 1, 3, J 9, 39

P.3d 525, 527 (2002) ("We reiterate that ineffective assistance of

counsel claims are to be brought during Rule 32 proceedings. Any such

claims improvidently raised in a direct appeal, henceforth, will not be

addressed by appellate courts regardless of merit."). To that extent,

Jones controls the resolution of this issue.

4/27 The second reason Tucker’s argument fails on this record is that

the evidence supporting a third-party defense is not so-compelling that

we can conclude, as a matter of law, that Clark’s failure to pursue the

defense demonstrates that he was laboring under an actual conflict of

interest that had an adverse effect on his performance.

4/28 In Arizona, to have a viable third-party defense, the defendant must

establish that the evidence of third-party responsibility is relevant and

admissible under Arizona Rules of Evidence 401, 402, and 403. State

v. Gibson, 202 Ariz. 321, 323- 24, Jf 15-16, 44 P.3d 1001, 1003-04

(2002). To be relevant, evidence must tend to prove or disprove a fact

that is of consequence to the case. Ariz. R. Evid. 401. The fact of

consequence is the identity of the killer of AnnMarie and Roscoe

Merchant and Cindy Richards. Evidence that Kozakiewicz could have

been the killer would be relevant to that issue. In Gibson, this court

stated that for evidence related to a third-party defense to be relevant it

"need only tend to create a reasonable doubt as to the defendant’s

guilt." 202 Ariz. at 324, J 16, 44 P.3d at 1004.

429 The evidence Tucker offers that Kozakiewicz might be the killer

is the following: He knew all of the victims in this case; he did not like

® Before trial, the trial court ordered that fingerprints be retaken from

Kozakeiwicz. Apparently, the results of comparisons of his prints with latent prints

from the crime scene were negative because the parties entered into a stipulation

regarding identification of the latent prints found at the crime scene.

A-9

Roscoe; he did not like blacks;’ he had spoken derogatorily of Roscoe

and blacks in general; he had access to guns; he gave Tucker one of his

three sets of handcuffs; and he had pled guilty to another murder that

occurred two months before the murders in this case.

430 Tucker cites State v. Prion, 203 Ariz. 157, 52 P.3d 189 (2002), as

Supporting the proposition that "evidence [that] consisted of the

defendant and another person being acquainted" was sufficiently

relevant to mest the Gibson standard. We disagree for two reasons.

First, Tucker misconstrues the holding in Prion. Second, the evidence

in Prion was far more extensive than that presented in this case. See

203 Aniz. at 161, J 23, 52 P.3d at 193.

{31 Prion held that evidence that another person committed the crimes

is admissible if it "supports the notion that [the third-party] had the

opportunity and motive to commit this crime." Jd. at 161, ] 24, 52 P.3d

at 193 (emphasis added). The evidence in Prion consisted in part of the

following: The third-party defendant was a co-worker of the victim at

a restaurant; on the day the victim disappeared he had rented a new

apartment that was close to both a night club where he also worked and

the location at which the victim’s car was found after her

disappearance; he was working at the night club the night the victim

disappeared; and the doorman at the night club said the victim was let

into the club on the night she disappeared specifically to see the third-

party defendant. Jd. at 161, J 23, 52 P.3d at 193.

432 The evidence Tucker offers only minimally indicates that

Kozakiewicz had motive, albeit the same-motive as perhaps dozens of

other people who were acquainted with the Merchant family. But,

unlike in Prion, Tucker does not point to any evidence showing that

Kozakiewicz had the opportunity to kill the Merchants. Without some

evidence tending to connect Kozakiewicz to the crime scene, Tucker’s

speculation that Kozakiewicz might have been the killer is arguably

irrelevant, and therefore would likely have been found inadmissible.

” Tucker is black and AnnMarie and Roscoe were bi-racial (black and

white).

A- 10

433 Accordingly, Tucker’s claim that his nght to the assistance of

conflict-free counsel, see Von Moltke v. Gillies, 332 U.S. 708, 725

(1948), was violated is not supported by this record. He has not shown

that Clark labored under an actual conflict of interest, and he has not

shown that Clark’s decision not to pursue a third-party defense was

motivated by concerns of violating the ethical rules. Thus, any claim

that Clark was ineffective in not calling Kozakiewicz to testify or

investigating him in the first instance must be presented ‘n a petition for

post-conviction relief. Spreitz, 202 Anz. at 3,9 9, 39 P.3d at 527. The

trial court therefore did not abuse its discretion in denying the State’s

motion to determine counsel.

434 Tucker next argues that even if the conflict of interest did not nse

to the level of a Sixth Amendment violation, this court should remand

for a new trial because of the appearance of impropriety. See Gomez v.

Superior Court, 149 Ariz. 223, 225-26, 717 P.2d 902, 904-05 (1986).

435 In Gomez, we held that while the appearance of impropriety was

no longer a standard in the Arizona Rules of Professional Conduct, it

still remains a valid claim for purposes of disqualification of an

attorney. Id. We listed four factors for consideration when

disqualification of an attorney is sought on the basis of the appearance

of impropriety:

(1) whether the motion is being made for the purpose[]

of harassing the defendant, (2) whether the party

bringing the motion will] be damaged in some way if the

motion is not granted, (3) whether there are any

alternative solutions, or is the proposed solution the

least damaging possible under the circumstances, and -

(4) whether the possibility of public suspicion will

outweigh any benefits that might accrue due to

continued representation.

Id. at 226, 717 P.2d at 905 (citing Alexander v. Superior Court, 141

Ariz. 157, 165, 685 P.2d 1309, 1317 (1984).

A- 11

am

{36 Tucker’s only argument here focuses on the fourth factor. He

contends that Clark’s decision to forgo a third-party defense because it

would implicate a former client engenders "public mockery of our

criminal justice system, especially when it comes to lawyers

representing capital clients." This argument presupposes that Tucker

had a viable third-party defense. But as discussed above, the record

does not support that presupposition. Thus, this argument fails.

{37 Finally, Tucker argues that the doctrine of judicial estoppel should

prohibit the State from taking a position on appeal that is contrary to

the position it asserted at trial. This court has held that to establish a

claim for the application of judicial estoppel, "(1) the parties must be

the same, (2) the question involved must be the same, and (3) the party

asserting the inconsistent position must have been successful in the

prior judicial proceeding." State v. Towery, 186 Ariz. 168, 182, 920

P.2d 290, 304 (1996) (citation omitted). Tucker fails to note that while

the parties and the issue are the same, the State was not successful in

asserting its position in te trial court. The State asserted that Clark’s

conflict of interest in this case was so serious that it could not be

waived and thus Clark could not serve as Tucker’s counsel. The State’s

motion was denied. As such, the State is not estopped from asserting its

position on appeal.

B.

{38 Tucker argues that the trial court erred in admitting testimony from

Cassandra Barnes (Cassie) regarding a telephone conversation she had

with AnnMarie on July 13, 1999. Specifically, Tucker objects to the

admission of Cassie’s testimony that AnnMarie told her in that

conversation that Tucker was upset with her and verbally abusive

toward her.* Cassie testified that AnnMarie called her that evening and

sounded as though she was upset and crying. AnnMarie told her that

she had "just got[ten] off the phone" with Tucker, that he had asked her

to come to his house, and when she had refused, he got upset and called

her names.

> Tucker admittedly called AnnMarie “worthless” and a “‘fat-ass.”

A- 12

439 After a hearing on this issue, the court admitted Cassie’s testimony

about AnnMarie’s statements from not only the July 13th conversation,

but also two other statements from a July 14th conversation. The court

relied upon three different exceptions to the rule against hearsay:

present sense impression, Ariz. R. Evid. 803(1); excited utterance, Ariz.

R. Evid. 803(2); and state of mind, Ariz. R. Evid. 803(3).

440 The July 14 conversation included a statement by AnnMarie that

Tucker was upset with her, as well as a statement that she wanted

nothing more to do with Tucker.’ Tucker does not contest the admission

of the two statements from the July 14 conversation. Rather, Tucker

contends that the court erred in admitting the statements from the July

13 conversation that he was upset with AnnMarie and had called her

names. He claims that it was error to admit the statements under any

exception to the rule against hearsay.

9/41 The Arizona Rules of Evidence define hearsay as "a statement,

other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter asserted."

Ariz. R. Evid. 801(c). To be admissible, a court must find that the out-

of-court statement fits within one of the many exceptions to the rule

against hearsay. State v. Bass, 198 Ariz. 571, 577, J 20, 12 P.3d 796,

802 (2000). We review admissions of evidence under exceptions to the

rule against hearsay for abuse of discretion. State v. Robinson, 165

Ariz. 51, 56, 796 P.2d 853, 858 (1990); State v. Adamson, 136 Ariz.

250, 255, 665 P.2d 972, 977 (1983)(citation omitted). We conclude that

the trial court did not abuse its discretion in admitting the statement

* During the July 14 conversation, while Cassie was talking to AnnMarie,

AnnMarie received a call on the other line. She used call waiting to take the other call

while Cassie waited on the other line. When AnnMarie returned to the line to talk to

Cassie, she said that Tucker had been the caller on the other line and that he had been

upset with her and that she wanted nothing more to do with him. The court admitted

AnnMarie’s statements that Tucker was upset with her under the present sense

impression and excited utterance exceptions to the rule against hearsay. See Ariz. R.

Evid. 803(1) & (2). The court admitted AnnMarie’s statement that she wanted

nothing more to do with Tucker as a statement of her then existing state of mind. See

Ariz. R. Evid. 803(3).

A- 13

——————————————————

under

Rule 803(1). Thus, we find it unnecessary to decide whether the

statement was admissible under Rule 803(2) or 803(3).

4/42 Rule 803(1), Ariz. R. Evid., defines a present sense impression as

"[a] statement describing or explaining an event or condition made

while the declarant was perceiving the event or condition, or

immediately thereafter." The theory behind this exception "is that

substantial contemporaneity cf event and statement negative the

likelihood of deliberate or conscious misrepresentation." Joseph M.

Livermore et al., Arizona Practice: Law of Evidence 346 (4th ed.

2000)(citation omitted); see also 5 Weinstein’s Federal Evidence §

803.03[1] (2d ed. 2002) (noting that present sense impressions are

“highly trustworthy because: 1. the statement is simultaneous with the

event, thus, there is no memory problem; 2. there is little or no time for

calculated misstatement; and 3. the statement is usually made to one

who has equal opportunity to observe and check misstatements").

Statements of present sense impressions are deemed reliable because

they are made close in time to the events they describe. See Livermore

et al., supra, at 346. The more time that elapses between the event and

the statement, the stronger the possibility that a declarant will attempt,

either consciously or subconsciously, to alter his or her description of

the event. See id. We assume, as a general matter, that when the

declarant has had little time to reflect on the event she has perceived,

her statement will be spontaneous and therefore reliable. See id.

[43 The present sense impression exception has three requirements.

State v. Romanosky, 162 Ariz. 217, 222 n.5, 782 P.2d 693, 698 n.5

(1989). The statement must describe an event or condition, that was

perceived by the declarant, and the statement must be made

immediately after the event. Jd.

{144 There is no dispute that AnnMarie’s statements to Cassie describe

an event that AnnMarie perceived. The issue here is the lapse of time

between the perception and the statement. Specifically, Tucker argues

that AnnMarie did not make her statement to Cassie "immediate}y"

after she perceived Tucker’s statement, as is required by Rule 803(1).

A- 14

While Cassie testified that, in the July 13 conversation, AnnMarie said,

"she had just hung up" with Tucker, Cassie admitted she did not know

exactly when Tucker and AnnMarie spoke that day.

445 The phrase "just hung up" could have a variety of meanings. To

some it might denote a lapse of mere seconds, and to others the passage

of a longer time. Rule 803(1) requires some degree of cohtemporaneity

between the event and the statement. How much contemporaneity has

never been specified because every case is decided on its individual

facts. See Livermore et al., supra, at 346 (citing cases). The

admissibility of such statements must be judged on the totality of the

circumstances. State v. Barnes, 124 Ariz. 586, 589-90, 606 P.2d 802,

805-06 (1980).

4/46 That Cassie could not say that AnnMarie’s statements were made

"immediately" after her conversation with Tucker does not necessarily

make the statemerits inadmissible. Trial courts have some latitude in

finding whether a statement was made immediately after the event. See,

e.g., United States v. Parker, 936 F.2d 950, 954 (7th Cir. 1991)

(holding railroad worker's statement to police, made after he had

walked approximately 100 feet, admissible as a present sense

impression); United States v. Blakey, 607 F.2d 779, 786 (7th Cir. 1979)

(holding statement made twenty-three minutes after event admissible

as a present sense impression), overruled on other grounds, Idaho v.

Wright, 497 U.S. 805 (1990). We agree with Tucker that the dictionary

definitions of the terms "just" and "immediate" differ slightly.

However, while "just hung up" may denote a variety of time frames, the

phrase normally denotes a short period of time.

447 The trial court observe Cassie while she testified during the

hearing. Thus, it was in a better position than are we to find that Cassie

would have understood what AnnMarie meant by "just hung up."

Accordingly, we cannot say the trial court abused its discretion in

determining that, in this instance, "just hung up" implied the sort of

contemporaneity required by Arizona Rule of Evidence 803(1).

C.

A- 15

4/48 Tucker contends that the United States Supreme Court’s decision

in Apprendi v. New Jersey, 530 U.S. 466 (2000), overruled the holding

in Schad v. Arizona, 501 U.S. 624 (1991). Schad held that jury

unanimity is not required on which theory of first degree murder the

jury convicted. Jd. @ 645.

[49 The State offered alternative theories on which the jury could have

found Tucker guilty of the first degree murder of AnnMarie. The jury

could have found either that Tucker had committed first degree murder

by premeditation, or that he had committed felony murder. Because

there were alternative theories, the court gave the jury a verdict form

that required them to record how many jurors voted for each alternative.

All twelve members of the jury found Tucker guilty of premeditated

murder. However, only eleven jurors voted in favor of felony murder.

Tucker argues that because the jury was not unanimous on the felony

murder theory, his sentence as to that murder count must be vacated.

{50 There is only a single crime of first degrée murder. State v. Arnett,

158 Anz. 15, 19, 760 P.2d 1064, 1068 (1988). Felony murder is not a

separate offense, id., as Tucker appears to argue. That felony murder

and premeditated murder contain different elements does not make

them different crimes, rather they are simply two forms of first degree

murder. Jd.

{51 Tucker's argument that Apprendi overrules the holding in Schad

is meritless. Schad held that jurors need not be unanimous as to a single

theory of murder so long as they all agree that first degree murder was

committed, whether by premeditation or felony murder. 501 U.S. at

645. Here the jury unanimously found Tucker guilty of premeditated

murder. Thus, it is a moot point that only eleven jurors also found

Tucker guilty of first degree murder by way of felony-murder. Even if

Apprendi did have some effect on the holding in Schad, it is of no

consequence here because Tucker was unanimously found guilty of

first degree murder on a theory of premeditation.

D.

{52 Tucker raises a number of sentencing issues in this case. We

A- 16

address only one of them because we conclude that based on our

determination of that issue Tucker must be resentenced. Because

Tucker will be resentenced, all other sentencing issues he raises are

moot.

453 Tucker argues that he was deprived of his Sixth Amendment right

to a jury trial on the question of his capital sentence. In Ring v. Arizona,

536 U.S. 584, 609 (2002) (Ring IJ), the United States Supreme Court

held that Arizona’s capital sentencing scheme violated the right to a

jury trial guaranteed by the Sixth Amendment to the United States

Constitution. The Court declared that "[c]apital defendants, no less than

non-capital defendants . . . are entitled to a jury determination of any

fact on which the legislature conditions an increase in their maximum

punishment." Jd. at 589. The Court reversed our decision in State v.

Ring, 200 Ariz. 267, 25 P.3d 1139 (2001) (Ring I), and remanded for

further proceedings consistent with its decision. Ring II, 536 U.S. at

609.

954 Following the Supreme Court’s Ring IT decision, we consolidated

all death penalty cases in which this court had not yet issued a direct

appeal mandate, including Tucker’s, to determine whether Ring II

required this court to reverse or vacate the defendants’ death sentences.

In State v. Ring, __ Ariz. ___, ___, J 53, 65 P.3d 915, 936 (2003)

(Ring III), we concluded that we will examine a death sentence imposed

under Arizona’s superseded capital sentencing statute for harmless

error. See A.R.S. § 13-703, amended by 2002 Ariz. Sess. Laws, Sth

Spec. Sess., ch. 1, § 1.

455 In Tucker’s case, the trial court found three aggravating factors: (1)

"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," A.R.S. § 13-

703(F)(3); (2) "The defendant committed the offense in an especially

heinous, cruel or depraved manner," A.R.S. § 13-703(F)(6); and (3)

"The defendant has been convicted of one or more other homicides, as

defined in § 13-1101, which were committed during the commission of

the offense," A.R.S. § 13-703(F)(8). Based on our decision in Ring III,

A- 17

ee

none of the aggravating factors found in Tucker’s case fall outside the

Ring II mandate. See Ring III, ____ Ariz. at__, J 54-86, 65 P.3d at

936-42. Therefore, we must analyze each of Tucker’s aggravating

factors for harmless error. To determine whether allowing the trial

judge, rather than a jury, to find the presence of the aggravating factors

was harmless error we must find, beyond a reasonable doubt, that no

reasonable jury could have come to a different conclusion than the trial

judge. See State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191

(1993) (discussing harmless error).

{56 The trial court based its finding of the (F)(3) aggravator on the fact

that Tucker had killed all the members of the Merchant household and

left Cindy’s infant son alone in his crib with no means of caring for

himself. The court found that because the crib was near the head of the

bed in which Roscoe and Cindy were killed, Tucker must have known

of the infant’s presence and should have known that leaving the infant

alone in the house created a grave risk of death to the child. We

conclude the error here was not harmless.

{57 The statute requires the fact finder to determine that the defendant

“knowingly created a grave risk of death." A.R.S. §13-703(F)(3). While

we believe a reasonable jury could have inferred that Tucker knew the

child was in the room, we cannot say that any reasonable jury would

also have found that Tucker knowingly placed the baby in danger of

death, or indeed that he knew that leaving the child alone created a

grave risk of death.

458 In past cases involving this aggravator, this court has found a

defendant created a grave risk of death to bystanders by firing a gun

indiscriminately or setting fire to a building the defendant knew was

occupied. See, e.g., State v. Vickers, 159 Ariz. 532, 546, 768 P.2d 1177,

1191 (1989) (setting fire to an inmate in his cell, thus endangering

nearby inmates trapped in their cells); State v. McMurtrey, 151 Ariz.

105, 108, 726 P.2d 202, 205 (1986) (shooting victims in a crowded

bar); State v. Ortiz, 131 Ariz. 195, 209, 639 P.2d 1020, 1034 (1982)

(setting fire to the victim’s house while her children were inside); State

v. Doss, 116 Ariz. 156, 163, 568 P.2d 1054, 1061 (1977) (shooting a

A- 18

victim in a crowded gymnasium). Generally, our decisions have held

that a third party must be in the zone of danger during the murderous

attack to be placed at grave risk of death. State v. Wood, 180 Ariz. 53,

69, 881 P.2d 1158, 1174 (1994). Here, the infant’s life was placed in

danger as a result of Tucker’s crimes, but there was no evidence

introduced that the infant was in any danger during the attacks.

459 The State’s theory of grave danger in this case appears to be based

on the fact that an infant left alone creates a risk the infant will die of

dehydration or perhaps heat stroke.’° For Tucker’s actions to have been

knowing, there would have to be some evidence that Tucker knew the

child would be left alone for a very long time. We find nothing in the

record to support that conclusion. Thus, we cannot conclude beyond a

reasonable doubt that any reasonable jury would have found either that

Tucker knowingly placed the infant at grave risk of death, or

alternatively, that the risk of death to the child was present during

Tucker’s murderous attacks on the other three victims.

460 The (F)(6) aggravator was found with respect to each of the

victims. As to AnnMarie, the court found her murder was especially

crue]. Because the (F)(6) aggravator is phrased "in the disjunctive, a

finding of either cruelty or heinouness/depravity will suffice to

establish this factor." State v. Djerf, 191 Ariz. 583, 595, ¥ 44, 959 P.2d

1274, 1286 (1998). "A murder is especially cruel if the victim

consciously suffers physical or mental anguish.” Jd. at 595, J 45, 959

P.2d at 1286 (citation omitted). And such suffering must be reasonably

foreseeable. Id.

461 The evidence in this case showed that AnnMarie was raped, beaten,

strangled, and then shot. The police testified that the disarray of the

room and the various locations of blood spatter patterns and blood

pools indicated there was a prolonged struggie in the room. While the

medical examiner could not be certain about AnnMarie’s state of

10 There was also some mention of the fact that the door to the apartment

was left open. While theoretically this placed the life of the child at risk we find it

difficult to say that created a grave risk of death.

A- 19

consciousness during the attack, that she had been handcuffed at some

‘point during her ordeal indicates she was conscious for at least some

period as there would be little point in subduing an unconscious victim.

The extent of AnnMarie’s injuries indicates that she suffered

physically. And the circumstances of her murder clearly demonstrate

that it was reasonably foreseeable she would suffer. Accordingly, we

conclude that no reasonable jury could have found the murder of

AnnMarie was anything but especially cruel.

4/62 The trial court also found the murder of AnnMarie was heinous and

depraved. Because we have found harmless the Ring II error that the

murder of AnnMarie was especially cruel, it is unnecessary for us to

reach the question of whether her murder was also heinous and

depraved. Id. at 595, J 44, 959 P.2d at 1286.

{163 The trial court found the murders of Roscoe and Cindy were

heinous and depraved because of the helplessness of the victims. The

trial court theorized that they were killed for the purpose of witness

elimination. In Djerf, we stated there are five factors that may indicate

a murder was heinous or depraved. 191 Ariz. at 597, J 53, 959 P.2d at

1288. The factors include: "(1) relishing the murder, (2) inflicting

gratuitous violence, (3) victim mutilation, (4) senselessness of the

crime, and (5) helplessness of the victim." Jd. (citations omitted). In

State v. King, 180 Ariz. 268, 285, 883 P.2d 1024, 1041 (1994), we held

that the (F)(6) aggravator cannot be sustained solely on the basis that

a defendant killed to eliminate witnesses. We concluded that witness

elimination could be a factor in finding that a murder was heinous and

depraved, but it could not be the only factor. Jd.

{164 The purpose of aggravating factors is to distinguish murders that

are beyond the norm of first degree killings. See id. at 287, 883 P.2d at

1043. While any murder is tragic and senseless in its own way, it is

debatable whether the execution style murder of two sleeping victims

is heinous and depraved. Thus, we cannot find beyond a reasonable

doubt that no jury could have found the murders of Roscoe and Cindy

were anything but heinous and depraved

A- 20

4/65 Finally, the trial court found the (F)(8) aggravator in this case

because Tucker committed multiple homicides in connection with his

crimes. As we said in Ring III, this aggravator is subject to harmless

error analysis. __ Ariz. at __, JJ 80-82, 65 P.3d at 941-42. But it is

not enough that the jury found the defendant guilty of multiple

homicides. The (F)(8) aggravating factor is only properly applicable

when there is evidence that all the killings took place during "a

continuous course of criminal conduct." State v. Rogovich, 188 Ariz.

38, 45, 932 P.2d 794, 801 (1997). The fact-finder must determine that

there was a "temporal, spatial, and motivational relationship[] between

the capital homicide and the collateral [homicide]." Jd. (quoting State

v. Lavers, 168 Ariz. 376, 393, 814 P.2d 333, 350 (1991)).

4/66 The murders in this case all occurred in the same apartment, which

clearly indicates a spatial relationship. The State theorized Roscoe and

Cindy were killed to eliminate them as possible witnesses. While a jury

may have found Tucker’s motivation was something different, it is

difficult to imagine a motive for the killings unrelated to the murder of

AnnMarie. Based on the evidence offered at trial, any error as to the

(F)(8) aggravator was harmless because we believe that no reasonable

jury could have found differently than the trial judge.

4/67 Our inquiry must also consider whether reversible error occurred

with respect to the mitigating circumstances. Ring III,___ Ariz. at____,

q 89, , § 104, 65 P.3d at 943, 946. As discussed earlier, Tucker

presented as mitigating factors his age, rehabilitation potential, good

character, and lack of prior criminal history. The trial court found

Tucker’s age and Jack of prior criminal history to be mitigating factors.

But on this record, we cannot conclude that a reasonable jury would not

also have found as mitigating factors Tucker’s good character and

rehabilitation potential. Tucker presented evidence on these factors

through testimony from his mother. While the tnal court implicitly

found the witness unbelievable, a jury could reach an opposite

conclusion. Thus, we cannot say that if a jury heard the same evidence

as the trial judge, it would reach the same conclusions with respect to

the mitigating factors.

A- 21

468 In sum, while the error as to some of the aggravating factors found

by the trial court was harmless, we cannot say beyond a reasonable

doubt that a jury, presented with the same evidence, would have found

that the (F)(3) aggravator or the (F)(6) aggravator as to Roscoe and

Cindy had been proven beyond a reasonable doubt. Nor on this record

can we Say that a jury would have assessed the mitigating evidence as

did the tral judge. Therefore, we must remand this case for

resentencing under A.R.S. sections 13-703 and -703.01 (Supp. 2002).

Ill. CONCLUSION

69 For the foregoing reasons, we affirm Tucker’s convictions on the

three counts of first degree murder and his convictions and sentences

on the non-capital offenses. We remand Tucker’s death sentences for

resentencing. |

Michael D. Ryan, Justice

CONCURRING:

Ruth V. McGregor, Vice Chief Justice

Rebecca White Berch, Justice

Robert J. Corcoran, Justice (Retired)*

Jones, C.J., concurring in part, dissenting in part:

470 I concur in all aspects of today’s opinion pertaining to Tucker’s

convictions and sentences with the sole exception that I dissent from

the majority’s use of harmless error analysis of capital sentencing

determinations made by the trial judge in the absence of the jury. In the

aftermath of the Supreme Court’s decision in Ring v. Arizona, 536 U.S.

584, 122 S. Ct. 2428 (2002) (Ring ID, it is my view that the absence of

the jury in the sentencing phase of a capital trial amounts to structural

error. The nght to jury trial is fundamental. Where a judge, not a jury

determines sentencing issues, a violation of the Sixth Amendment of

the Constitution of the United States, requiring trial by an impartial

A- 22

jury, has occurred. I would remand the case for resentencing, simply on

the basis of the Sixth Amendment violation. See State v. Ring, ___

Anz. __, __, {J 105-14, 65 P.3d 915, 946-48 (2003) (Feldman, J.,

concurring in part, dissenting in part) (Ring IJ).

}

Charles E. Jones, Chief Justice

* Due to a vacancy on the court, Retired Justice Corcoran was

designated to sit on this case pursuant to Article 6, Section 3, of the

Arizona Constitution.

A- 23

APPENDIX B

[Filed April 3, 2003]

SUPREME COURT OF ARIZONA

En Banc

)

STATE OF ARIZONA, ) Amnzona Supreme Court

) No. CR-97-0428-AP

Appellee, )

) Maricopa County Superior

V. ) Court

) No. CR-95-01754(A)

TIMOTHY STUART RING, )

) CONSOLIDATED WITH

Appellant. )

)

)

STATE OF ARIZONA, ) Arizona Supreme Court

) No. CR-99-0536-AP

Appellee, )

) Maricopa County Superior

V. ) Court

) No. CR-96-04691

ANTOIN JONES, )

) CONSOLIDATED WITH

Appellant. ) -

)

)

STATE OF ARIZONA, ) Arizona Supreme Court

) No. CR-99-0439-AP

: Appellee, )

) Pima County Superior

V. ) Court

) No. CR-58016

DANNY N. MONTANO, )

) CONSOLIDATED WITH

)

Appellant.

STATE OF ARIZONA,

Appellee,

V.

WAYNE BENOIT PRINCE,

Appellant.

STATE OF ARIZONA,

Appellee,

V.

MICHAEL GENE BLAKLEY,

Appellant.

STATE OF ARIZONA,

Appellee,

V.

HENRY WILLIAM HALL,

Appellant.

ee ee ee eee

Arizona Supreme Court

No. CR-00-0328-AP

Maricopa County Superior

Court

No. CR 98-04885

CONSOLIDATED WITH

Arizona Supreme Court

No. CR-00-0360-AP

Mohave County Superior

Court

No. CR-98-838

CONSOLIDATED WITH

Arizona Supreme Court

No. CR-00-0447-AP

Maricopa County Superior

Court

No. CR1997-011695

CONSOLIDATED WITH

uA Ste

STATE OF ARIZONA,

Appellee,

V.

SHAWN RYAN GRELL,

Appellant.

STATE OF ARIZONA,

Appellee,

v.

JAMES EDWARD DAVOLT, 0,

Appellant.

STATE OF ARIZONA,

Appellee,

V.

LEROY D. CROPPER,

Appellant.

?

ee ee Nee Nt Nt eet Net Nt Set Ne Nae Net a St Se Ne ee Nae Na Sa Ne ee ee Net Nee Ser rte Net Se Nee Ne See ee Ne Se Ne

Arizona Supreme Court

No. CR-01-0275-AP

Maricopa County Superior

Court

No. CR1999-095294

CONSOLIDATED WITH

Arizona Supreme Court

No. CR-00-0508-AP

Mohave County Superior

Court

No. CR-98-1243

CONSOLIDATED WITH

Arizona Supreme Court

No. CR-00-0544-AP

Maricopa County Superior

Court

No. CR97-03949

CONSOLIDATED WITH

STATE OF ARIZONA, Arizona Supreme Court

No. CR-00-0595-AP

)

)

Appellee, )

) Pima County Superior

V. ) Court

) No. CR-61846

SHAD DANIEL ARMSTRONG, _)

) CONSOLIDATED WITH

Appellant. )

)

)

)

STATE OF ARIZONA, ) Arizona Supreme Court

) No. CR-01-0091-AP

Appellee, )

) Maricopa County Superior

V. ) Court

) No. CR1999-015293

EUGENE ROBERT TUCKER, )

) CONSOLIDATED WITH

Appellant. )

)

)

STATE OF ARIZONA, ) Arizona Supreme Court

) No. CR-01-0100-AP

Appellee, )

) Pima County Superior

V. ) Court

) No. CR-64663

KAJORNSAK PRASERTPHONG, _)

‘ ) CONSOLIDATED WITH

Appellant. )

)

)

)

STATE OF ARIZONA, ) Arizona Supreme Court

)

No. CR-01-0103-AP

Appellee,

v.

CHRISTOPHER BO HUERSTEL,

Appellant.

STATE OF ARIZONA,

Appellee,

V.

SHERMAN LEE RUTLEDGE,

Appellant.

STATE OF ARIZONA,

Appellee,

V.

CHRISTOPHER GEORGE

THEODORE LAMAR,

Appellant.

STATE OF ARIZONA,

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

Pima County Superior

Court

No. CR-64663

CONSOLIDATED WITH

Arizona Supreme Court

No. CR-01-0129-AP

Maricopa County Superior

Court

No. CR1997-05555

Arizona Supreme Court

No. CR-01-0270-AP

Maricopa County Superior

Court

No. CR1996-011714

CONSOLIDATED WITH

Arizona Supreme Court

No. CR-01-0421-AP

a

Appellee,

Maricopa County Superior

Court

No. CR1995-006472

V.

MICHAEL JOE MURDAUGH (A),

)

)

)

)

)

) CONSOLIDATED WITH

Appellant. )

)

)

)

STATE OF ARIZONA, ) Anzona Supreme Court

) No. CR-02-0042-AP

Appellee, )

) Maricopa County Supenor

V. ) Court

) No. CR-1999-003536

BRIAN JEFFREY DANN, )

) CONSOLIDATED WITH

Appellant. )

)

)

)

STATE OF ARIZONA, ) Anzona Supreme Court

) No. CR-02-0044-AP

Appellee, )

) Pima County Supenor

V. ) Court

) No. CR-43804

ROBERT JOE MOODY, )

) CONSOLIDATED WITH

Appellant. )

)

)

)

STATE OF ARIZONA, ) Arizona Supreme Court

) No. CR-99-0296-AP

Appellee, )

V. ;

KEITH ROYAL PHILLIPS,

Appellant.

STATE OF ARIZONA,

Appellee,

V.

MARCUS LASALLE FINCH,

Appellant.

STATE OF ARIZONA,

Appellee,

V.

JOHN EDWARD SANSING,

Appellant.

STATE OF ARIZONA,

Appellee,

Pima County Superior :

Court

No. CR-61452

CONSOLIDATED WITH

Arizona Supreme Court

No. CR-99-0551-AP

Pima County Superior

Court

No. CR-61452

CONSOLIDATED WITH

Arizona Supreme Court

No. CR-99-0438-AP

Maricopa County Superior

Court

No. CR-98-003520

CONSOLIDATED WITH

Arizona Supreme Court

No. CR-98-0289-AP

Maricopa County Superior

v.

JAMES CORNELL HARROD,

Appellant.

STATE OF ARIZONA,

Appellee,

V.

DARREL PETER PANDELI aka

DARREL PETER FLORIAN,

Appellant.

STATE OF ARIZONA,

Appellee,

V.

SCOTT ALAN LEHR,

Appellant.

STATE OF ARIZONA,

Appellee,

Nee Ne eee eee Se”

Court

No. CR-95-09046

CONSOLIDATED WITH

Arizona Supreme Court

No. CR-98-0376-AP

Maricopa County Superior

Court

No. CR-93-08116

CONSOLIDATED WITH

Arizona Supreme Court

No. CR-97-0317-AP

Maricopa County Superior

Court

No. CR 92-05731

~ CONSOLIDATED WITH

Arizona Supreme Court

No. CR-98-0488-AP

Pinal County Superior

Court

No. CR-96-021235

Pima County Superior

Court

; ) No. CR-55947

SCOTT DOUGLAS NORDSTROM.)

)

Appellant. )

) OPINION

ve

)

ARTURO ANDA CANEZ, )

) CONSOLIDATED WITH

Appellant. )

)

)

)

STATE OF ARIZONA, ) Arizona Supreme Court

) No. CR-97-0349-AP

Appellee, )

) Maricopa County Superior

V. ) Court

) Nos. CR-94-11396

AARON SCOTT HOSKINS, ) and CR-94-11397

) (Consolidated)

)

Appellant. ) CONSOLIDATED WITH

)

)

)

STATE OF ARIZONA, ) Arizona Supreme Court

) No. CR-98-0278-AP

Appellee, )

)

)

Appeal from the Superior Court of Maricopa County

No. CR-95-01754(A)

The Honorable Gregory H. Martin, Judge

Janet A. Napolitano, Arizona Attorney General Phoenix

B-9

by Kent E. Cattani, Chief Counsel,

Capital Litigation Section

and _— Robert L. Ellman, Assistant Attorney General

and James P. Beene, Assistant Attorney General

and John P. Todd, Assistant Attorney General

and _ Bruce M. Ferg, Assistant Attorney General Tucson

Attorneys for State of Arizona

Osborn Maledon, P.A. Phoenix

by Andrew D. Hurwitz

and John A. Stookey

and Daniel L. Kaplan

Attorneys for Timothy Stuart Ring

Drinker Biddle & Reath, L.L.P. Philadelphia

by’ —_ Lawrence J. Fox

and

Quarles & Brady Streich Lang, L.L.P. Phoenix

by Edward F. Novak

Attorneys for Amici Curiae Legal Ethicists and

The Stein Center for Law and Ethics

Appeal from the Superior Court of Maricopa County

No. CR-96-04691

The Honorable Stephen A. Gerst, Judge

Janet A. Napolitano, Arizona Attorney General Phoenix

by Kent E. Cattani, Chief Counsel,

Capital Litigation Section

and Robert L. Ellman, Assistant Attorney General

and James P. Beene, Assistant Attorney General

and John P. Todd, Assistant Attorney General

and Bruce M. Ferg, Assistant Attorney General Tucson

Attorneys for State of Anzona

B-10

James J. Haas, Maricopa County Public Defender Phoenix

by Stephen R. Collins

and Edward F. McGee

Attorneys for Antoin Jones

Appeal from the Superior Court of Pima County

No. CR-58016

The Honorable Deborah J. S. Ward, Judge Pro Tempore _

Janet A. Napolitano, Arizona Attorney General Phoenix

by Kent E. Cattani, Chief Counsel,

Capital Litigation Section

and Robert L. Ellman, Assistant Attorney General

and James P. Beene, Assistant Attorney General

and John P. Todd, Assistant Attorney General

and Bruce M. Ferg, Assistant Attorney General Tucson

Attomeys for State of Arizona

Law Offices of Carla Ryan Tucson

by Carla Ryan

Attorneys for Danny N. Montafio

Appeal from the Superior Court of Maricopa County

No. CR 98-04885

The Honorable Michael R. McVey, Judge

Janet A. Napolitano, Arizona Attorney General Phoenix

by Kent E. Cattani, Chief Counsel,

Capital Litigation Section

and Robert L. Ellman, Assistant Attorney General

and James P. Beene, Assistant Attorney General

and John P. Todd, Assistant Attorney General

and Bruce M. Ferg, Assistant Attorney General Tucson

B- 11

Attorneys for State of Anzona

James J. Haas, Maricopa County Public Defender Phoenix

by James L. Edgar

and = Charles R. Krull

Attorneys for Wayne Benoit Prince

Appeal from the Superior Court of Mohave County

No. CR-98-838

The Honorable Steven F. Conn, Judge

Janet A. Napolitano, Arizona Attorney General Phoenix

by Kent E. Cattani, Chief Counsel,

Capital Litigation Section

and _Robert L. Ellman, Assistant Attorney General

and James P. Beene, Assistant Attorney General

and John P. Todd, Assistant Attorney General

and _ Bruce M. Ferg, Assistant Attorney General Tucson

Attorneys for State of Arizona

Baran Law Office, Ltd. Overgaard ,

by J. Conrad Baran

Attorney for Michael Gene Blakley

Appeal from the Superior Court of Maricopa County

No. CR1997-011695

The Honorable Thomas W. O’ Toole, Judge

Janet A. Napolitano, Arizona Attorney General Phoenix

by Kent E. Cattani, Chief Counsel,

Capital Litigation Section

and Robert L. Ellman, Assistant Attorney General

and James P. Beene, Assistant Attorney General

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and John P. Todd, Assistant Attorney General

and Bruce M. Ferg, Assistant Attorney General Tucson

Attorneys for State of Anizona

Thomas A. Gorman Flagstaff

Attorney for Henry William Hall -

Appeal from the Superior Court of Maricopa County

No. CR1999-095294

The Honorable Barbara M. Jarrett, Judge

Janet A. Napolitano, Arizona Attorney General Phoenix

by Kent E. Cattani, Chief Counsel,

Capital Litigation Section

and _ Robert L. Ellman, Assistant Attorney General

and James P. Beene, Assistant Attorney General

and John P. Todd, Assistant Attorney General

and __ Bruce M. Ferg, Assistant Attorney General Tucson

Attorneys for State of Arizona

Shughart Thomson Kilroy Goodwin Raup, P.C. Phoenix

by Rudolph J. Gerber

and

James J. Haas, Maricopa County Public Defender Phoenix

by James R. Rummage

and Lawrence S. Matthew

Attorneys for Shawn Ryan Grell

Appeal from the Superior Court of Mohave County

| No. CR-98-1243

The Honorable Steven F. Conn, Judge

Janet A. Napolitano, Arizona Attorney General Phoenix

B-13 -

by Kent E. Cattani, Chief Counsel,

Capital Litigation Section

and Robert L. Ellman, Assistant Attorney General

and James P. Beene, Assistant Attorney General

and John P. Todd, Assistant Attorney General

and _ Bruce M. Ferg, Assistant Attorney General Tucson

Attorneys for State of Anzona

Julie Hall Tucson

and

Arizona Capital Representation Project Tucson

by Jennifer Bedier

Attorneys for James Edward Davolt, II

Appeal from the Superior Court of Maricopa County

No. CR97-03949

The Honorable David R. Cole, Judge

Janet A. Napolitano, Arizona Attorney General Phoenix

by Kent E. Cattani, Chief Counsel,

Capital Litigation Section

and _ Robert L. Ellman, Assistant Attorney General

and James P. Beene, Assistant Attorney General

and John P. Todd, Assistant Attorney General

and ___ Bruce M. Ferg, Assistant Attorney General Tucson

Attorneys for State of Anizona

Thomas A. Gorman Flagstaff

and

David I. Goldberg Flagstaff

Attorneys for Leroy D. Cropper |

Appeal from the Superior Court of Pima County

No. CR-61846

B- 14

The Honorable Howard Hantman, Judge

Janet A. Napolitano, Arizona Attorney General Phoenix

by Kent E. Cattani, Chief Counsel,

Capital Litigation Section

and __ Robert L. Ellman, Assistant Attorney General

and James P. Beene, Assistant Attorney General

and JohnP. Todd, Assistant Attorney General

and _ Bruce M. Ferg, Assistant Attorney General Tucson

Attorneys for State of Arizona

Law Offices of Harriette P. Levitt Tucson

by Harriette P. Levitt

Attorneys for Shad Daniel Armstrong

Appeal from the Superior Court of Maricopa County

No. CR1999-015293

The Honorable Michael D. Jones, Judge

Janet A. Napolitano, Arizona Attorney General Phoenix

by Kent E. Cattani, Chief Counsel,

Capital Litigation Section

and Robert L. Ellman, Assistant Attorney General

and James P. Beene, Assistant Attorney General

and JohnP. Todd, Assistant Attorney General

and Bruce M. Ferg, Assistant Attorney General Tucson

Attorneys for State of Arizona

James J. Haas, Maricopa County Public Defender Phoenix

by Christopher V. Johns

and James H. Kemper

Attorneys for Eugene Robert Tucker

Appeal from the Superior Court of Pima County

No. CR-64663

The Honorable Michael Brown, Judge

Janet A. Napolitano, Arizona Attorney General Phoenix

by Kent E. Cattani, Chief Counsel,

Capital Litigation Section

and __ Robert L. Ellman, Assistant Attorney General

and James P. Beene, Assistant Attorney General

and John P. Todd, Assistant Attorney General

and Bruce M. Ferg, Assistant Attorney General Tucson

Attorneys for State of Anzona

Susan A. Kettlewell, Pima County Public Defender Tucson

by Rebecca A. McLean

and Lon J. Lefferts

Attorneys for Kajornsak Prasertphong

Appeal from the Superior Court of Pima County

No. CR-64663

The Honorable Michael Brown, Judge

Janet A. Napolitano, Arizona Attorney General Phoenix

by Kent E. Cattani, Chief Counsel,

Capital Litigation Section

and __ Robert L. Ellman, Assistant Attorney General

and James P. Beene, Assistant Attorney General

and John P. Todd, Assistant Attorney General

and Bruce M. Ferg, Assistant Attorney General Tucson

Attorneys for State of Arizona

Law Offices of Williamson & Young, P.C. Tucson

by S. Jonathan Young

Attorney for Christopher Bo Huerstel

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Appeal from the Superior Court of Maricopa County

No. CR1997-05555

The Honorable Frank T. Galati, Judge

Janet A. Napolitano, Arizona Attorney General Phoenix

by Kent E. Cattani, Chief Counsel, i

Capital Litigation Section

and __ Robert L. Ellman, Assistant Attorney General

and James P. Beene, Assistant Attorney General

‘and John P. Todd, Assistant Attorney General

and Bruce M. Ferg, Assistant Attomey General Tucson

Attorneys for State of Arizona”

Robert Doyle Phoenix

Attorney for Sherman Lee Rutledge

Appeal from the Superior Court of Maricopa County

No. CR1996-011714

The Honorable Stephen A. Gerst, Judge

Janet A. Napolitano, Arizona Attorney General Phoenix

by Kent E. Cattani, Chief Counsel,

Capital Litigation Section

and _ Robert L. Ellman, Assistant Attorney General

and James P. Beene, Assistant Attorney General

and John P. Todd, Assistant Attorney General

and _ Bruce M. Ferg, Assistant Attorney General Tucson

Attorneys for State of Arizona

Susan Sherwin, Maricopa County

Office of Legal Advocate Phoenix

by Brent Graham

Attorneys for Christopher George Theodore Lamar

B-17

Appeal from the Superior Court of Maricopa County

No. CR1995-006472

The Honorable Sherry Hutt, Judge

Janet A. Napolitano, Arizona Attorney General Phoenix

by Kent E. Cattani, Chief Counsel,

Capital Litigation Section

and _ Robert L. Ellman, Assistant Attorney General

and James P. Beene, Assistant Attorney General

and John P. Todd, Assistant Attorney General

and _ Bruce M. Ferg, Assistant Attorney General Tucson

Attorneys for State of Arizona

Michael S. Reeves Phoenix

Attorney for Michael Joe Murdaugh

Appeal from the Superior Court of Maricopa County

No. CR 1999-003536

The Honorable H. Jeffrey Coker, Judge

Janet A. Napolitano, Arizona Attorney General Phoenix

by Kent E. Cattani, Chief Counsel,

Capital Litigation Section

and _ Robert L. Ellman, Assistant Attorney General

and James P. Beene, Assistant Attorney General

and John P. Todd, Assistant Attorney General

and Bruce M. Ferg, Assistant Attorney General Tucson

Attorneys for State of Arizona

Susan Sherwin, Maricopa County

Office of Legal Advocate Phoenix

by Brent Graham

and

Shughart Thomson Kilroy Goodwin Raup, P.C. Phoenix

by Rudolph J. Gerber

Attorneys for Brian Jeffrey Dann

Appeal from the Superior Court of Pima County

No. CR-43894

The Honorable Michael Cruikshank, J udge

-

Janet A. Napolitano, Arizona Attorney General Phoenix

by Kent E. Cattani, Chief Counsel,

Capital Litigation Section

and _ Robert L. Ellman, Assistant Attorney General

and James P. Beene, Assistant Attorney General

and John P. Todd, Assistant Attorney General

and _ Bruce M. Ferg, Assistant Attorney General Tucson

Attorneys for State of Arizona

Susan A. Kettlewell, Pima County Public Defender Tucson

by Frank P. Leto

and__— Brian X. Metcalf

Attomeys for Robert Joe Moody

Appeal from the Superior Court of Pima County

No. CR-61452

The Honorable Bernardo P. Velasco, J udge

Janet A. Napolitano, Arizona Attorney General Phoenix

by Kent E. Cattani, Chief Counsel,

Capital Litigation Section

and __ Robert L. Ellman, Assistant Attorney General

and James P. Beene, Assistant Attomey General

and John P. Todd, Assistant Attorney General

and —_ Bruce M. Ferg, Assistant Attorney General Tucson

B-19

Se ee ee

Attorneys for State of Arizona

Susan A. Kettlewell, Pima County Public Defender Tucson

by John F. Palumbo

and Rebecca A. McLean

Attorneys for Keith Royal Phillips

Appeal from the Superior Court of Pima County

No. CR-61452

The Honorable Bernardo P. Velasco, Judge

Janet A. Napolitano, Anzona Attorney General Phoenix

by Kent E. Cattani, Chief Counsel,

‘Capital Litigation Section

and Robert L. Ellman, Assistant Attorney General

and James P. Beene, Assistant Attorney General

and John P. Todd, Assistant Attorney General

and __‘— Bruce M. Ferg, Assistant Attorney General Tucson

Attomeys for State of Arizona

Law Offices of Williamson & Young, P.C. Tucson

by S. Jonathan Young

Attorneys for Marcus LaSalle Finch

Appeal from the Superior Court of Maricopa County

No. CR 98-003520

The Honorable Ronald S. Reinstein, Judge

Janet A. Napolitano, Arizona Attorney General Phoenix

by Kent E. Cattani, Chief Counsel,

_ Capital Litigation Section

and _ Robert L. Ellman, Assistant Attorney General

and James P. Beene, Assistant Attorney General

B - 20

and John P. Todd, Assistant Attorney General

and__ Bruce M. Ferg, Assistant Attorney General Tucson

Attorneys for State of Arizona

James J. Haas, Maricopa County Public Defender Phoenix

by Terry J. Adams

and = Spencer D. Heffel

Attomeys for John Edward Sansing

Appeal from the Superior Court of Maricopa County

No. CR-95-09046

The Honorable Ronald S. Reinstein, Judge

Janet A. Napolitano, Arizona Attorney General Phoenix

by Kent E. Cattani, Chief Counsel,

Capital Litigation Section

and _ Robert L. Ellman, Assistant Attorney General

and James P. Beene, Assistant Attorney General

and John P. Todd, Assistant Attorney General

and __ Bruce M. Ferg, Assistant Attorney General Tucson

Attorneys for State of Arizona

James J. Haas, Maricopa County Public Defender Phoenix

by Christopher V. Johns

and James H. Kemper

Attorneys for James Cornell Harrod

Appeal from the Superior Court of Maricepa County

No. CR-93-08116

The Honorable Gregory H. Martin, Judge

Janet A. Napolitano, Arizona Attorney General Phoenix

by Kent E. Cattani, Chief Counsel,

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Capital Litigation Section

and _ Robert L. Ellman, Assistant Attorney General

and James P. Beene, Assistant Attorney General

and John P. Todd, Assistant Attorney General

and __ Bruce M. Ferg, Assistant Attorney General Tucson

Attorneys for State of Anizona

\

Julie Hall Tucson

and

Anzona Capital Representation Project Tucson

by Jennifer Bedier

Attorneys for Darre] Peter Pandeli aka

Darrel Peter Florian

Appeal from the Superior Court of Maricopa County

No. CR 92-05731

The Honorable Stephen A. Gerst, Judge

Janet A. Napolitano, Arizona Attorney General Phoenix

by Kent E. Cattani, Chief Counsel,

Capital Litigation Section

and _ Robert L. Ellman, Assistant Attorney General

and James P. Beene, Assistant Attorney General

and John P. Todd, Assistant Attorney General

and Bruce M. Ferg, Assistant Attorney General Tucson

Attomeys for State of Anzona

Stephen M. Johnson Phoenix

Attorney for Scott Alan Lehr

Appeal from the Superior Court of Pinal County

No. CR-96-021235

The Honorable Boyd T. Johnson, Judge

B - 22

Janet A. Napolitano, Arizona Attorney General Phoenix

by Kent E. Cattani, Chief Counsel,

Capital Litigation Section

and Robert L. Ellman, Assistant Attorney General

and James P. Beene, Assistant Attorney General

and John P. Todd, Assistant Attorney General

and__— Bruce M. Ferg, Assistant Attorney General Tucson

Attorneys for State of Arizona

Thomas J. Phalen Phoenix

and

Tara K. Allen Tempe

Attorneys for Arturo Anda Cafiez

Appeal from the Superior Court of Maricopa County

Nos. CR-94-11396 and CR-94-11397 (Consolidated)

The Honorable Jeffrey A. Hotham, Judge

Janet A. Napolitano, Arizona Attorney General Phoenix

by Kent E. Cattani, Chief Counsel,

Capital Litigation Section

and _ Robert L. Ellman, Assistant Attorney General

and James P. Beene, Assistant Attorney General

and John P. Todd, Assistant Attorney General

and __— Bruce M. Ferg, Assistant Attorney General Tucson

Attorneys for State of Arizona

Denise Young Tucson

and

Arizona Capital Representation Project Tucson

by Jennifer Bedier

Attorneys for Aaron Scott Hoskins

Appeal from the Superior Court of Pima County

No. CR-55947

The Honorable Michael Cruikshank, Judge Pro Tempore

Janet A. Napolitano, Arizona Attorney General Phoenix

by Kent E. Cattani, Chief Counsel,

Capital Litigation Section

and _ _ Robert L. Ellman, Assistant Attorney General

and James P. Beene, Assistant Attorney General

and John P. Todd, Assistant Attorney General

and __s Bruce M.. Ferg, Assistant Attorney General Tucson

Attorneys for State of Arizona

Law Office of David Alan Darby Tucson

by David Alan Darby ~

Attorney for Scott Douglas Nordstrom

McGREG OR, Vice Chief Justice

G1 This case comes to us on remand from the United States Supreme

Court, Ring v. Arizona, 536 U.S. 584, __, 122 S. Ct. 2428, 2443

(2002) (Ring II). We have jurisdiction pursuant to the Arizona

Constitution, Article VI, Section 5.3.

I.

Facts and Procedural History.

q2 On December 6, 1996, a jury convicted Timothy Stuart Ring of first

degree murder, conspiracy to commit armed robbery, armed robbery,

burglary and theft. Under Arizona law at the time of Ring’s sentencing,

capital sentencing followed the procedure set forth at Arizona Revised

Statutes (A.R.S.) section 13-703 (Supp. 1996). As required by A.R.S.

section 13-703.B, the trial court conducted a sentencing hearing to

consider aggravating and mitigating circumstances. The court could

consider only those aggravating factors identified by statute, but could

B - 24

consider any possible mitigating factor.’ A.R.S. § 13-703.F—G,

amended by 2002 Ariz. Sess. Laws, Sth Spec. Sess., ch. 1, § 1. After the

hearing, the court found two aggravating factors: Ring committed the

murder for pecuniary gain, A.R.S. section 13-703.F.5, and “in an

especially heinous, cruel or depraved manner,” A.R.S. section 13-

703.F.6. State v. Ring, 200 Ariz. 267, 272 J 13, 25 P.3d 1139, 1144

(2001) (Ring I). The trial court concluded that the mitigating

circumstance of Ring’s minimal criminal record was not “sufficiently

substantial to call for leniency” and sentenced Ring to death. Jd. at 273

q 13, 25 P.3d at 1145; see A.R.S. § 13-703.E, amended by 2002 Ariz.

Sess. Laws, 5th Spec. Sess., ch. 1, § 1.

{3 Ring subsequently filed a direct appeal to this court seeking review

of multiple trial and sentencing issues, including a Sixth Amendment

challenge to Arizona’s capital sentencing procedure. The Sixth

Amendment right to a jury trial, Ring argued, requires a jury, rather

than a judge, to find the aggravating factors set forth at section 13-

703.F. Ring I, 200 Ariz. at 278 J 40, 25 P.3d at 1150. This court

affirmed Ring’s first degree murder conviction and death sentence. Jd.

at 284 ¥ 65, 25 P.3d at 1156. Guided by the United States Supreme

Court’s decision in Walton v. Arizona, 497 U.S. 639, 110 S. Ct. 3047

(1990), we held Anizona’s capital sentencing procedure did not violate

the Sixth Amendment of the United States Constitution. Ring J, 200

Amiz. at 279-80 ¥ 44, 25 P.3d at 1151-52.

{4 Ring petitioned the United States Supreme Court to accept

' The state must prove aggravating factors beyond a reasonable doubt.

A.R.S. § 13-703.B (Supp. 2002); State v. Spreitz, 190 Ariz. 129, 147,945 P.2d 1260,

1278 (1997). Mitigating factors must be proved by a preponderance of the evidence.

A.R.S. § 13-703.C; State v. Pandeli, 200 Ariz. 365, 376 J 44, 26 P.3d 1136, 1147

(2001). Except for one brief period, aggravating circumstances have been codified at

A.R.S. section 13-703.F since the legislature enacted judge-based sentencing.

Following the 2001 Arizona Legislative Session, these aggravating circumstances are

listed under A.R.S. section 13-703.G. 2001 Ariz. Sess. Laws ch. 260, § 1. The

legislature redesignated aggravating circumstances under. subsection .F in its post-

Ring II amendments. 2002 Ariz. Sess. Laws, 5th Spec. Sess.,ch.1.§1.

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certiorari. The Court granted review and held that Anzona’s capital

sentencing scheme violated the Sixth Amendment nght to a jury trial,

overruling Walton and applying the approach of Apprendi v. New

Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). Ring IJ, 536 U.S. at___,

122 S. Ct. at 2443. The Supreme Court remanded the matter for

disposition in light of Ring II.

q5 At the time of the Ring IJ decision, thirty-one defendants sentenced

to death had matters pending on direct appeal before this court. On June

27, 2002, we entered an order consolidating all thirty-one death penalty

cases then on direct appeal. State v. Ring, Order No. CR-97-0428-AP

(June 27, 2002).

46 All defendants in this consolidated case either pled guilty to or were

convicted by a jury of first degree premeditated or felony murder. Trial

judges sentenced all defendants to death under a now-superseded

version of A.R.S. section 13-703, under which a judge considered

aggravating and mitigating evidence. This court must now examine the

impact of Ring IT on the death sentences of those defendants before us.

To assist the court, and after consultation with counsel for the State and

the defendants, we ordered the parties to brief the issues discussed

below. We reserved to each defendant the nght to further brief

sentencing issues, if necessary. This opinion addresses those issues

raised in the consolidated appeal. The court will address each

defendant’s sentencing issues in a separate opinion.

II.

Historical Overview of Capital Punishment in Arizona.

4/7 Under Arizona’s first penal code, a person convicted of first degree

murder received either a death or prison sentence.” Revised Statutes of

Arizona, Penal Code § 173 (1913). The jury, exercising its discretion,

decided which punishment to impose. Jd. In 1918, voters approved an

initiative measure giving the trial judge authority to sentence a person

to death for first degree murder in cases in which the defendant pled

guilty. 1919 Ariz. Sess. Laws, Initiative & Referendum Measures 17,

18. In those cases, the trial court exercised the same discretion as did a

jury. Thus, until the early 1970s, Arizona imposed the death penalty for

first degree murder at the sole discretion of the jury or court. E.g., Ariz.

Code § 43-2903 (1939); Ariz. Code § 4585 (1928); State v. McGee, 91

Ariz. 101, 111-12, 370 P.2d 261, 268 (1962) (“The determination of

punishment is wholly within the discretion of the jury upon their

consideration of all aspects of the case.”), superseded by statute as

stated in State v. Lopez, 163 Ariz. 108, 115, 786 P.2d 959, 966 (1990);

Hernandez v. State, 43 Ariz. 424, 429, 32 P.2d 18, 20 (1934) (“[T]he

question of punishment in first degree murder cases is wholly within

the jury’s discretion . .. .”). No statutory standards guided the

determination of punishment.

q8 In 1972, however, the United States Supreme Court decided

Furman v. Georgia and held that standardless death sentencing

procedures violate the Eighth Amendment’s prohibition of cruel and

unusual punishment. 408 U.S. 238, 239-40, 92 S. Ct. 2726, 2727 (1972)

(per curiam). According to Justice Stewart, complete jury discretion led

to arbitrary and capricious imposition of the death sentence; given

strikingly similar crimes, some defendants received a death sentence

and others did not. Jd. at 309-10, 92 S. Ct. at 2762 (Stewart, J.,

concurring).

{9 Following the Furman decision, the Arizona Legislature enacted a

new capital sentencing scheme. 1973 Ariz. Sess. Laws ch. 138. The

legislation divided a capital first degree murder trial into two phases: a

* In addition to first degree murder, offenses punishable by death included

treason, Revised Statutes of Arizona, Pena! Code section 33 (1913), train robbery, id.

sections 435, 438, and deadly assault by a felon serving a life sentence, id. section

220.

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ae

guilt phase and a sentencing phase. Upon a jury conviction of or a

guilty plea to first degree murder, the statutes required the trial court to

hold a sentencing hearing at which the state and defendant presented

evidence of statutorily defined aggravating and mitigating factors.’ Jd.

§ 5. The trial court could impose the death sentence if it found at least

one aggravating circumstance and “no mitigating circumstances

sufficiently substantial to call for leniency.” Jd.

410 Three years later, in Gregg v. Georgia, the Supreme Court upheld

Georgia’s revised sentencing scheme against a claim that the death

penalty was per se unconstitutional. 428 U.S. 153, 169, 96 S. Ct. 2909,

2923 (1976). The Georgia statute resembled Arizona’s, except that,

under Georgia law, the same jury heard both the guilt and sentencing

phases. See id. at 164 & n.9, 96S. Ct. at 2921 & n.9.

G11 The Supreme Court reviewed Anizona’s judge-only sentencing in

Walton. The Court rejected an argument that the Sixth Amendment

night to a jury tnal required a jury, not a judge, to find the facts

presented at the sentencing hearing. Walton, 497 U.S. at 649, 110S. Ct.

at 3055. In Apprendi, a non-capital case decided ten years later, the

Court held that “[o]ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” 530 U.S. at 490, 120 S. Ct. at 2362-63. Although Justice

O’Connor’s Apprendi dissent questioned whether Walton could survive

the Apprendi ruling, id. at 537, 120 S. Ct. at 2387-88 (O’Connor, J.,

dissenting), the majority distinguished capital cases as “not controlling”

authority. Jd. at 496-97, 120 S. Ct. at 2366.

> In 1978, the Supreme Court held unconstitutional those death penalty

sentencing statutes limiting the types of mitigating evidence a defendant can

introduce. Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 2964-65 (1978); Bell

v. Ohio, 438 U.S. 637, 642, 98 S. Ct. 2977, 2980-81 (1978). This court subsequently

hald unconstitutional Arizona’s exclusion of nonstatutory mitigating circumstances.

State v. Watson, 120 Ariz. 441, 445, 586 P.2d 1253, 1257 (1978). In 1979, the

izona Legislature amended the mitigating circumstances statute to conform with

these decisions. 1979 Ariz. Sess. Laws ch. 144, § 1.

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~

912 Finally, in Ring IJ, the Supreme Court expressly overruled Walton

in favor of Apprendi’s Sixth Amendment approach. 536 U.S. at ___.,

122 S. Ct. at 2443. According to the Court, “[b]ecause Arizona’s

enumerated aggravating factors operate as the functional equivalent of

an element of a greater offense, the Sixth Amendment requires that they

be found by a jury.” Jd. (quoting Apprendi, 530 U.S. at 494 n.19, 120

S. Ct. at 2365 n.19). “Capital defendants, no less than non-capital

defendants,” the Court concluded, “are entitled to a jury determination

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

maximum punishment.” Jd. at ___, 122 S. Ct. at 2432. Thus, any fact

necessary to enhance the defendant’s sentence beyond that authorized

by the jury’s guilty verdict must be found by the jury.

413 Following the Supreme Court’s announcement of the Ring II

decision, Governor Jane Dee Hull called a special legislative session to

revise Arizona’s capital sentencing provisions. On August 1, 2002, the

legislature passed and Governor Hull signed into law Senate Bill

(“S.B.”) 1001, containing several revisions intended to conform

Arizona law to the Ring IJ mandate. S.B. 1001, 45th Leg., Sth Spec.

Sess. (Ariz. 2002). Under Arizona’s amended sentencing procedure, the

jury serving during the guilt phase of the trial also serves as the trier of

fact during the sentencing phase. A.R.S. § 13-703.01.C-.D (Supp.

2002). Specifically, the jury will find and consider the effect of

aggravating and mitigating circumstances and decide whether the

defendant should receive a sentence of death. Jd. § 13-703.01.D.

414 To determine whether we should vacate defendants’ death

sentences and either reduce to a life sentence or remand for

resentencing under Arizona’s revised procedure, we consider the

following issues.

Ill.

Does the Ex Post Facto Clause Prohibit Resentencing Under

Arizona’s Amended Capital Sentencing Procedure?

415 The defendants argue that resentencing under A.R.S. sections 13-

703 and 13-703.01 (Supp. 2002) (the new sentencing statutes) would

constitute an ex post facto violation under the United States

Constitution, Article I, Section 10, Clause 1, and the Anzona

Constitution, Article II, Section 25. We disagree.”

4116 The ex post facto doctrine prohibits a state from “retroactively

alter[ing] the definition of crimes or increas[ing] the punishment for

criminal acts.” Collins v. Youngblood, 497 U.S. 37, 43, 110 S. Ct. 2715,

2719 (1990). In Dobbert v. Florida, the Supreme Court held that ex

post facto prohibitions reach only those legislative enactments that

affect substantive cnminal law. 432 U.S. 282, 292,97 S. Ct. 2290, 2298

(1977). Likewise, we recently held that, under the United States and

Arizona Constitutions, “[a]n ex post facto law is one that increases the

punishment or aggravates any cnme previously committed.” Zuther v.

State, 199 Ariz. 104, 111 J 26, 14 P.3d 295, 302 (2000) (holding

legislative amendment changing statutory computation of prisoner “gate

money” not an ex post facto law because legislative purpose was not

punitive).

417 In Dobbert, the Supreme Court restated the categories of laws

constituting substantive changes to cnmuinal law:

[A]ny statute which punishes as a crime an act

previously committed, which was innocent when done;

which makes more burdensome the punishment for a

crime, after its commission, or which deprives one

charged with crime of any defense available according

to law at the time when the act was committed, is

prohibited as ex post facto.

432 US. at 292, 97 S. Ct. at 2298 (quoting Beazell v. Ohio, 269 U.S.

167, 169-70, 46 S. Ct. 68, 68 (1925)). Thus, a legislative act affecting

changes in criminal procedure, including procedural changes that

disadvantage a defendant, generally does not violate the Ex Post Facto

Clause. Collins, 497 U.S. at 45, 110 S. Ct. at 2720 (“[Procedural] refers

=

* In State v. Noble, we held that we will interpret the state Ex Post Facto

Clause in accord with federal precedent. 171 Ariz. 171, 173, 829 P.2d 1217, 1219

(1992). We find no reason to deviate from Noble.

B - 30

to changes in the procedures by which a criminal case is adjudicated,

as opposed to changes in the substantive law of cnmes.”); State v.

Mendoza, 170 Ariz. 184, 193, 823 P.2d 51, 60 (1992) (“A defendant

has no vested right in any particular mode of procedure.”).

418 The question before us, then, is whether Arizona’s new sentencing

statutes worked a substantive or procedural change in the law as it

existed when these murders took place. We regard three decisions as

particularly instructive.

419 In Dobbert, the defendant argued that his death sentence violated

the Ex Post Facto Clause. Dobbert killed his children in 1972. At that

time, Florida mandated a death sentence for capital felony convictions

unless the jury, in its discretion, recommended mercy to the judge.

Dobbert, 432 U.S. at 287, 97 S. Ct. at 2295. Shortly after Dobbert

murdered his children, the Supreme Court decided Furman v. Georgia,

striking down the Georgia death sentencing statute as unconstitutional.

Id. at 288, 97 S. Ct. at 2296. A month later, in Donaldson v. Sack, the

Florida Supreme Court held the Florida death sentencing statute

unconstitutional under Furman. 265 So. 2d 499, 501 (Fla. 1972). Later

that year, the Florida Legislature amended the state’s capital sentencing

procedure to comply with Furman and Donaldson. Dobbert, 432 U.S.

at 288, 97 S. Ct. at 2296. Dobbert was then tned and sentenced to death

under the state’s new law. Id. at 284,97 S. Ct. at 2294.

{20 Dobbert failed to persuade the Supreme Court that sentencing him

under the amended procedures violated the Ex Post Facto Clause. The

Court first limited ex post facto violations to those occurring when a

statute makes criminal a previously innocent act, aggravates a crime

previously committed, provides greater punishment, or changes the

quantum of proof needed to convict a defendant. Jd. at 292, 97 S. Ct. at

2298 (quoting Beazell, 269 U.S. at 169-70, 46 S. Ct. at 68). None of

those categories applied to the Florida statute. Instead, the Court

concluded, the statutory change between the two sentencing methods

was “clearly procedural,” and “[t]he new statute simply altered the

methods employed in determining whether the death penalty was to be

imposed; there was no change in the quantum of punishment attached

B - 31

0 See ee

to the crime.” Jd. at 293-94, 97 S. Ct. at 2298.

21 The Supreme Court also rejected an Ex Post Facto Clause

challenge in Collins v. Youngblood, a non-death penalty case. The jury

had imposed a prison sentence and a fine, the latter not authorized by

law. 497 U.S. at 39, 110 S. Ct. at 2717. The Texas Court of Criminal

Appeals reformed the sentence under a statute enacted after the

defendant’s criminal act took place. Jd. at 40, 110 S. Ct. at 2718. The

Supreme Court held that applying the sentence reform statute in the

defendant’s case did not violate the Ex Post Facto Clause because

although the Sixth Amendment nght to a jury tral is substantial, “‘it is

not a nght that has anything to do with the definition of crimes,

defenses, or punishments.” Jd. at 51-52, 110 S. Ct. at 2724 (overruling

Thompson v. Utah, 170 U.S. 343, 18 S. Ct. 620 (1898)).

422 In State v. Correll, in contrast, we found a violation of the Ex Post

_ Facto Clause. 148 Ariz. 468, 482, 715 P.2d 721, 735 (1986), rev’d in

part on other grounds by Correll v. Stewart, 137 F.3d 1404 (9th Cir.

1998). A jury convicted the defendant of three counts of first degree

murder. After the murders, but before sentencing, the legislature

amended A.R.S. section 13-703.F to add multiple homicide convictions

as an aggravating circumstance. We held that retroactively applying the

new aggravating circumstance constituted a substantive change to

capital murder and disadvantaged the defendant. Jd. This change

affected the substantive nature of the crime and sentencing by adding

a new element that, if present, permitted the defendant to receive a

more severe punishment than that available at the time of the crime.°

423 These cases clearly indicate not only that ex post facto principles

generally do not bar applying procedural changes to criminal

proceedings, but also that the general framework of a state’s statutory

capital sentencing scheme is procedural in nature. As Collins

established, rights secured by the Sixth Amendment jury trial nght, the

° The Supreme Court’s holding that aggravating factors serve as the

functional equivalent of elements of the first degree murder offense makes this

conclusion even more evident. Ring //, 536 U.S. at__, 122 S. Ct. at 2443.

B - 32

right at issue here, are inherently procedural. 497 U.S. at 51, 110 S. Ct.

at 2724. Under the holding of Dobbert, Arizona’s change in the

statutory method for imposing capital punishment is clearly procedural:

The new sentencing statutes alter the method used to determine whether

the death penalty will be imposed but make no change to the

punishment attached to first degree murder. The new sentencing

statutes added no new element, or functional equivalent of an element,

to first degree murder.® Correll, 148 Ariz. at 481-82, 715 P.2d at 734-

35. Hence, the changes to the state’s capital sentencing procedures do

not resemble the type of after-the-fact legislative evil contemplated by

contemporary understandings of the ex post facto doctrine.

424 Even a procedural change amounts to an ex post facto violation,

however, when it affects “matters of substance, by depriving a

defendant of substantial protections with which the existing law

surrounds the person accused of crime, or arbitrarily infringing upon

substantial personal rights.” Collins, 497 U.S. at 45, 110 S. Ct. at 2720

(quoting Beazell, 269 U.S. at 171, 46 S. Ct. at 69; Malloy v. South

Carolina, 237 U.S. 180, 183, 35 S. Ct. 507, 508 (1915); and Duncan v.

Missouri, 152 U.S. 377, 382-83, 14 S. Ct. 570, 572 (1894)) (internal

quotation marks omitted). The change involved here does not affect the

substantive matters of the defendants’ prosecutions. See id. Under the

new sentencing statutes, to obtain a death sentence, the state must prove

the same aggravating circumstances required by the former statute and

must prove them beyond a reasonable doubt. The only difference is that

a jury, rather than a judge, decides whether the state has proved its case.

The new sentencing statutes do not place the defendants in jeopardy of

any greater punishment than that already imposed under the superseded

statutes. Accordingly, applying the new sentencing statutes does not

violate the federal or state Ex Post Facto Clause.

IV.

Does the Double Jeopardy Clause Prohibit Resentencing Under

6 SB. 1001 made only technical and conforming changes to the aggravating

circumstance list. 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, § 1.

B - 33

Arizona’s Amended Capital Sentencing Procedure?

425 The defendants argue that the double jeopardy provisions of the

United States and Arizona Constitutions’ preclude resentencing under

the new sentencing statutes. We hold that they do not.

426 Double jeopardy prevents the government from prosecuting an

in dividual more than once for the same offense. Green v. United States,

355 U.S. 184, 187, 78 S. Ct. 221, 223 (1957). According to the

Supreme Court:

The underlying idea . . . is that the State with all its

resources and power should not be allowed to make

repeated attempts to convict an individual for an alleged

offense, thereby subjecting him to embarrassment,

expense and ordeal and compelling him to live in a

continuing state of anxiety and insecurity, as well as

enhancing the-possibility that even though innocent he

may be found guilty.

Id. at 187-88, 78 S. Ct. at 223; see also Sattazahn v. Pennsylvania, ___

U.S.___,__; 123 S. Ct. 732, 745-46 (2003) (reaffirming principle that

the underlying purpose of the Double Jeopardy Ciause is to prohibit

repeated attempts by the state to convict, thereby exposing a defendant

to embarrassmeiit, expense, and the ordeal of another proceeding).

{27 Double jeopardy principles generally do not apply to sentencing

proceedings. United States v. DiFrancesco, 449 U.S. 117, 132, 101 S.

Ct. 426, 435 (1980). Capital sentencing proceedings, however, provide

an exception to the general rule. The penalty phase of a capital tral

resembles an ordinary tnal proceeding in which the sentencing

authority chooses “between two alternatives together with standards to

guide [its] decision, [and] the prosecution undert[akes] the burden of

’ “(N]or shall any person be subject for the same offense to be twice put in

jeopardy of life or limb . . . .” U.S. Const. amend. V. _

“No person shall . . . be twice put in jeopardy for the same offense.” Ariz.

Const. art. II, § 10.

establishing facts beyond a reasonable doubt.” Monge v. California,

524 U.S. 721, 730, 118 S. Ct. 2246, 2251 (1998) (discussing Bullington

v. Missouri, 451 U.S. 430, 101 S. Ct. 1852 (1981)); see Arizona v.

Rumsey, 467 U.S. 203, 212, 104 S. Ct. 2305, 2310 (1984) (holding

double jeopardy applies to the penalty phase of capital trial because the

penalty phase “proceeding is like a trial”). Therefore, we must

determine whether resentencing the defendants under Arizona’s new

sentencing statutes violates the prohibition against double jeopardy.

A.

Resentencing Does Not Increase Sentences.

428 The defendants argue that because Arizona’s former law

prescribing judge sentencing was unconstitutional, the most severe

penalty they could have received for first degree murder at the original

sentencing was life or natural life in prison. They assert that, under

superseded section 13-703, a convicted murderer could not receive the

death penalty because that punishment conceptually did not exist.

Therefore, they argue, a resentencing proceeding under the new

sentencing statutes would expose them to a more severe penalty than

was originally available and thus constitutes double jeopardy. The

defendants rely upon decisions from two state intermediate appellate

courts, California v. Harvey, 142 Cal. Rptr. 887 (App. 1978), and State

v. Choate, 151 Ariz. 57, 725 P.2d 764 (App. 1986).

q29 In Harvey, a jury convicted Harvey of several counts, including

first degree murder of a police officer. 142 Cal. Rptr. at 888. After

Harvey’s sentencing, the California Supreme Court declared the state’s

capital sentencing statute unconstitutional because it failed to bring

mitigating evidence into the sentencing calculus. Id. at 890-91; see

Rockwell v. Superior Court, 556 P.2d 1101, 1116 (Cal. 1976). While

Harvey’s appeal was pending, the California Legislature amended the

state’s capital sentencing scheme. Harvey, 142 Cal. Rptr. at 890-91.

The state argued that Harvey should be resentenced under the new

“statute. Id. The appellate court disagreed, holding that resentencing

would violate double jeopardy because, when the state supreme court

B - 35

held the former capital sentencing scheme unconstitutional, “that

declaration automatically reduced appellant’s sentence to life

imprisonment.” Jd. at 891.

430 Similarly, in Choate, the Arizona Court of Appeals held that

double jeopardy prevented resentencing of a defendant on a dangerous-

nature sentencing issue. 151 Anz. at 58, 725 P.2d at 765. A jury

convicted Choate of second degree murder and aggravated assault. Jd.

at 57, 725 P.2d at 764. The court of appeals vacated the dangerous-

nature sentence for the second degree murder conviction because that

issue was not determined by a jury. Jd. On remand, the trial judge

ordered a new jury to convene to determine whether Choate should

receive the dangerous-nature sentence. Jd. Choate appealed that order.

The court of appeals concluded that, because the trial judge mistakenly

dismissed the jury without submitting the dangerous nature charge in

the first case, permitting a new jury to consider the enhancement

allegation would constitute double jeopardy. Id. at 58, 725 P.2d at 765.

431 The Supreme Court addressed this very issue in Dobbert, however,

and reached a different conclusion. Dobbert made the same argument

that the defendants make here. The Florida Supreme Court declared the

death penalty statute in effect at the time of his murders

unconstitutional. Therefore, Dobbert argued, he could not receive a

death sentence because “at the time he murdered his children there was

no death penalty ‘in effect’ in Florida.” 432 U.S. at 297, 97 S. Ct. at

2300. The Supreme Court rejected this argument, holding that double

jeopardy did not attach because a statute, albeit unconstitutional,

permitting capital punishment for first degree murder existed at the

time of the crimes. Jd. at 298, 97 S. Ct. at 2300. That statute placed the

defendant on notice that he faced capital punishment if he were

convicted. Id.

932 The Harvey court distinguished Dobbert by noting that Dobbert

was ultimately sentenced under a constitutional statute, whereas Harvey

was not. 142 Cal. Rptr. at 890. We do not find the distinction

persuasive, however, because it does not affect the Supreme Court’s

Dobbertanalysis. There the Court discounted the defendant’s “sophistic

B - 36

argument” because the more important consideration was that the

state’s first degree murder sentencing policy provided a death sentence

even though the procedures for imposing that sentence later were found

unconstitutional. Dobbert, 432 U.S. at 297-98, 97 S. Ct. at 2300

(quoting Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S.

371, 374, 60 S. Ct. 317, 318 (1940)); see also Knapp v. Cardwell, 667

F.2d 1253, 1264 & n.9 (9th Cir. 1982) (rejecting argument that death

sentence is automatically reduced “to life imprisonment immediately

upon invalidation of the state’s death penalty law’’). In short, the Court

rejected the defendants’ argument in Dobbert.

433 The basic issue we must resolve is not whether a death sentence

metaphysically existed when the defendants were sentenced, but rather

whether any defendant was “acquitted” at his original trial of whatever

findings were necessary to impose a death sentence. While a defendant

can be resentenced following an appellate reversal of his or her original

sentence, the Double Jeopardy Clause prohibits imposing any sentence

of which the defendant was either actually or impliedly “acquitted” in

the first instance. Rumsey, 467 U.S. at 211, 104 S. Ct. at 2310;

Bullington, 451 U.S. at 437, 445, 101 S. Ct. at 1857, 1861; Peak v.

Acuna, 203 Anz. 83,__ J 8, 50 P.3d 833, 835 (2002) (stating implied

acquittal exists where appellate court reverses conviction for

insufficiency of evidence and double jeopardy precludes retrial). Thus,

a defendant cannot be sentenced to death at a subsequent sentencing

proceeding if “the sentencer or reviewing court has decided that the

prosecution has not proved its case that the death penalty is

appropriate.” Poland v. Arizona, 476 U.S. 147, 155, 106 S. Ct. 1749,

1755 (1986) (internal quotation marks omitted).

{34 The Supreme Court has thoroughly treated and established the

legal principle that applies here. In State v. Rumsey, a jury convicted the

defendant of first degree murder. 130 Ariz. 427, 636 P.2d 1209 (1981).

During the sentencing phase of the trial, the judge, misinterpreting the

pecuiiary gain aggravating circumstance as applying only to a murder

for hire, found no aggravating circumstances and sentenced the

defendant to life in prison. Jd. at 431-32, 636 P.2d at 1213-14. On

appeal, we held that the pecuniary gain aggravating circumstance

B - 37

included any murder committed for financial gain and remanded the

matter for resentencing. Jd. at 431, 636 P.2d at 1213. On remand, the

judge determined that the pecuniary gain circumstance existed and

sentenced the defendant to death. State v. Rumsey, 136 Ariz. 166, 168,

665 P.2d 48, 50 (1983). We reviewed the case on direct appeal and held

that Rumsey’s death sentence violated the Double Jeopardy Clause

because the life sentence imposed at his first trial implicitly acquitted

him of the death sentence, and that Rumsey was “entitled to finality” on

that issue. Jd. at 175, 665 P.2d at 57.

435 The Supreme Court granted certiorari and affirmed. It held that a

capital defendant cannot receive the death penalty on resentencing if he

originally had been sentenced to life in prison. Rumsey, 467 U.S. at

212, 104 S. Ct. at 2310. The Court explained that “an acquittal on the

merits by the sole decisionmaker in the proceeding is final and bars

retrial on the same charge.” Jd. at 211, 104 S. Ct. at 2310. Thus, the

Supreme Court’s Rumsey decision speaks to situations in which the

defendant originally received a sentence other than death.

436 In a similar case in which the defendant originally received a

capital sentence, however, the Supreme Court ruled differently. In

Poland v. Arizona, the Court held that capital defendants sentenced to

death at their original sentencing proceeding and whose sentences were

vacated on appeal can be resentenced to death on remand. 476 US. at

151, 106 S. Ct. at 1753. Both of the Poland brothers received death

sentences following their first degree murder convictions. State v.

Poland, 132 Ariz. 269, 273, 645 P.2d 784, 788 (1982). During the

sentencing phase, the judge failed to find the pecuniary gain

aggravating circumstance because, like the trial judge in Rumsey, he

misunderstood that circumstance as applying only to a murder for hire.

Id. at 285-86, 645 P.2d at 800-01. The judge did, however, find the

“especially heinous, cruel or depraved” statutory aggravating factor and

sentenced the defendants to death. Jd. at 285, 645 P.2d at 800. On

appeal, this court held that the evidence adduced during the sentencing

proceeding did not support a finding of a heinous, cruel or depraved

murder. Jd. at 285, 645 P.2d at 800. We also restated that a killing need

not be a murder for hire to qualify for the pecuniary gain aggravator. Jd.

B - 38

at 286, 645 P.2d at 801. On remand, the judge again sentenced both

Polands to death. State v. Poland (Patrick), 144 Ariz. 388, 392, 698

P.2d 183, 187 (1985); State v. Poland (Michael), 144 Ariz. 412, 414,

698 P.2d 207, 209 (1985). We again reviewed and affirmed the

Polands’ sentences on direct appeal and held that the evidence,

although insufficient to support a finding of cruelty, did support a

finding of pecuniary gain motive. Poland (Patrick), 144 Ariz. at 407,

698 P.2d at 202; Poland (Michael), 144 Ariz. at 416, 698 P.2d at 211.

{37 On certiorari, the Supreme Court distinguished the Polands’ case

from Rumsey, and that distinction was critical. In Poland, both

defendants originally received capital sentences. Unlike the judge in

Rumsey’s trial, no fact-finder had “acquitted” the Polands of capital

murder by imposing a prison sentence at the first sentencing

proceeding. Poland, 476 U.S. at 156-57, 106 S. Ct. at 1756. On

resentencing, then, the defendants did not face sentencing on a charge

of which they had been previously “acquitted” for double jeopardy

purposes. Jd. at 157, 106 S. Ct. at 1756. Therefore, jeopardy did not

attach and double jeopardy did not bar the subsequent death sentences.

Id.

{38 Like the defendants in Poland, the defendants on direct appeal all

received death sentences at their original trials. The fact-finder made

those findings necessary to impose a death sentence. In no sense has a

fact-finder concluded that the state failed to prove aggravating

circumstances beyond a reasonable doubt. On remand, no defendant can

receive a sentence greater than that which already has been imposed.

Accordingly, we hold that jeopardy has not attached.

B.

Resentencing Does Not Supplement the Original Jury Verdict.

{39 The defendants alsc argue that resentencing violates double

jeopardy because further jury proceedings supplement the original jury

verdict, thereby violating each defendant’s constitutional “right to have

his trial completed by a particular tribunal.” Wade v. Hunter, 336 U.S.

B - 39

684, 689, 69 S. Ct. 834, 837 (1949). Although completing a defendant’s

trial with the same judge or jurors is ideal, a defendant holds no

absolute right to such an arrangement. In fact, in Wade v. Hunter, the

Supreme Court affirmed a military conviction in which the charges

were dropped from one court-martial proceeding and re-instituted in

another to accommodate witnesses. Jd. at 687-88, 69 S. Ct. at 836.

According to the Supreme Court:

The double-jeopardy provision of the Fifth Amendment

. .. does not mean that every time a defendant is put to

trial before a competent tribunal he is entitled to go free

if the trial fails to end in a final judgment. Such a rule

would create an insuperable obstacle to the

administration of justice in many cases in which there is

no semblance of the type of oppressive practices at

which the double-jeopardy prohibition is aimed. There

may be unforeseeable circumstances that arise during a

trial making its completion impossible, such as the

failure of a jury to agree on a verdict. In such event the

purpose of law to protect society from those guilty of

crimes frequently would be frustrated by denying courts

power to put the defendant to trial again.

Id. at 688-89, 69 S. Ct. at 837.

440 The ability to resentence a capital defendant by a different set of

jurors is implicit in double jeopardy cases decided by the Supreme

Court in a death penalty context. See Rumsey, 467 U.S. at 211, 104S.

Ct. at 2310; Wade, 336 U.S. at 688-89, 69 S. Ct. at 837.° A capital

defendant whose onginal sentence is vacated on appeal can be

resentenced to death so long as the defendant has not been “acquitted”

of the death sentence. E.g., Sattazahn,___ U.S. at__, 123 S. Ct. at

738; Poland, 476 U.S. at 151, 106 S. Ct. at 1753.

C.

* For the most part, recalling the defendant’s original guilt phase jury also

presents logistical problems and is wholly impractical.

B - 40

The Arizona Constitution.

q41 We reach the same result under Article II, Section 10 of the

Arizona Constitution. In Pool v. Superior Court, we interpreted the

state Double Jeopardy Clause more broadly than its federal counterpart

when prosecutorial misconduct causes a mistrial. 139 Ariz. 98, 108,

677 P.2d 261, 271 (1984); accord State v. Minnitt, 203 Ariz. 431, __

J 29, 55 P.3d 774, 781 (2002). While we recognized the importance of

consistency between federal and state constitutional law, we found it

necessary to diverge from the double jeopardy standards established by

the United States Supreme Court under the federal constitution. Our

decision turned on the principle that the purpose of the Arizona Double

Jeopardy Clause includes protecting citizens from facing multiple trials

for the same offense because of prosecutorial bad faith:

In our view, therefore, the resolution of the question of

when jeopardy attaches should tum upon the concept of

enforcing the constitutional guarantee against double

jeopardy when the right to be free from multiple trials,

which that clause was meant to guarantee, would be

impaired by the prosecutor's intentional, improper

conduct. We do not agree that standards cannot be

formulated to accomplish the objectives of the clause in

situations such as this.

Pool, 139 Ariz. at 108, 677 P.2d at 271 (citation omitted).

942 The defendants do not face further jeopardy because of

prosecutorial misconduct. Moreover, we find no reason to extend the

state Double Jeopardy Clause beyond its federal counterpart under these

facts. Therefore, we conclude that applying the new sentencing statutes

does not constitute a double jeopardy violation under the Anzona

Constitution.

V.

Should Defendants Convicted of Murders Committed Before the

Natural Life Sentence Became Available Have Their Sentences

Reduced to Life if the Court Reduces Their Sentences? —

B - 41

743 In 1993, the Arizona Legislature amended A.R.S. section 13-703

to add a “natural life” sentencing option for defendants convicted of

first degree murder. 1993 Ariz. Sess. Laws ch. 153, § 1. The parties

stipulate, and we agree, that the sentence of life without the possibility

of parole for twenty-five years, rather than natural life, must apply to

those defendants sentenced under the pre-1993 statute. See, e.g., State

v. Barreras, 181 Ariz. 516, 523-24 n.7, 892 P.2d 852, 859- 60 n.7

(1995) (“The amended statute [permitting natural life sentence] is

inapplicable here, however, because this case arose before its effective

date.”). If subsequent proceedings result in life sentences, these

defendants cannot receive a natural life sentence; only asentence of life

without the possibility of parole for twenty-five yearscan apply.

VI.

Should the Court Review Sixth Amendment Ring II Error as

Structural Error or for Harmless Error?

{44 The Supreme Court struck down Arizona’s former Capital

sentencing statutes because they permitted a judge, rather than a jury,

to find aggravating factors. Ring II, 536 U.S. at__, 122 S. Ct. at 2443.

We conclude that Arizona’s failure to submit this element of Capital

murder to the jury does not constitute structural error. Consequently,

the Sixth Amendment does not require automatic reversal of a death

sentence imposed under the former sentencing statues. Neder v. United

States, 527 U.S. 1, 8, 119 S. Ct. 1827, 1833 (1999); Arizona v.

Fulminante, 499 U.S. 279, 306-07, 111 S. Ct. 1246, 1263 (1991).

Instead, we will review the defendants’ Capital seniences for harmless

error.

{45 Most errors that we consider on appeal, even those, involving

constitutional error, constitute trial errors, “which occur[] during the

presentation of the case to the jury, and which may therefore be

quantitatively assessed in the context of other evdence presented.”

Fulminante, 499 U.S. at 307-08, 111 S. Ct. at 1264.In cases involving

trial error, we consider whether the error, so assesed, was harmless

B - 42

.

ae eS ee ey

beyond a reasonable doubt. If so, we uphold the verdict entered. In a

limited number of cases, however, structural error occurs. In such

instances, we automatically reverse the guilty verdict entered. Unlike

-trial errors, structural errors “deprive defendants of “basic protections’

without which ‘a criminal trial cannot reliably serve its function as a

vehicle for determination of guilt or innocence . . . and no criminal

punishment may be regarded as fundamentally fair, ”” Neder, 527 US.

at 8-9, 119 §. Ct. at 1833 (quoting Rose v. Clark, 478 U.S. 570, 577- 78,

106 S. Ct. 3101, 3106 (1986)).

446 The Supreme Court has defined relatively few instances in which

we should regard error as structural. Those instances involve errors

such as a biased trial judge,’ complete denial of criminal defense

counsel,!° denial of access to criminal defense counsel during an

overnight trial recess,’ denial of iereeptonennaton | in criminal cases,’

defective reasonable doubt jury instructions,’ exclusion of jurors of the

defendant’s race from grand jury selection,'* excusing a juror because

of his views on capital punishment,’° and denial of a public criminal

trial.!° In all those instances, the error infected “‘the entire trial process”

from beginning to end. Neder, 527 U.S. at 8, 119 S. Ct. at 1833

(quoting Brecht v. Abrahamson, 507 U.S. 619, 630, 113 S. Ct. 1710,

1717 (1993)).

° Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437 (1927).

10 Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963).

'! Geders v. United States, 425 U.S. 80, 96 S. Ct. 1330 (1976).

~

—

2 McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944(1984).

—

w

Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078 (1993).

we

be

Vasquez v. Hillery, 474 U.S. 254, 106 S. Ct. 617 (1986).

'S Gray v. Mississippi, 481 U.S. 648, 107 S. Ct. 2045 (1987).

6 Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210 (1984).

B - 43

4/47 The Court’s Ring IJ decision turned upon the fact that aggravating

circumstances serve as the functional equivalent of an element of the

greater capital murder offense, rather than as a sentencing factor. Ring

IT, 536 U.S. at__, 122 S. Ct. at 2443. “Because Arizona’s enumerated

aggravating factors operate as the functional equivalent of an element

of a greater offense,” the Supreme Court held, “the Sixth Amendment

requires that they be found by a jury.” Jd. (emphasis added) (citation

and internal quotations omitted). The essential question, therefore, is

whether we should characterize Arizona’s failure to submit this element:

of the capital murder offense to the jury as structural or trial error.'’

448 In a decision foreshadowing Apprendi and Ring II, the Supreme

Court declined to find structural error when the trial judge failed to

submit an element of the offense to the jury. In Neder v. United States,

the Court held that the trial court’s failure to instruct the jury on the

materiality element of federal tax fraud should be reviewed as trial

error. 527 U.S. at 19-20, 119 S. Ct. at 1839. The Court distinguished an

error omitting an element of the offense in a jury instruction from

structural error: “Unlike such defects as the complete deprivation of

counsel or trial before a biased judge, an instruction that omits an

element of the offense does not necessarily render a criminal trial

fundamentally unfair or an unreliable vehicle for determining guilt or

innocence.” Jd. at 9, 119 S. Ct. at 1833. Thus, the Court concluded,

omitting an element of the offense from the jury instruction is not the

sort of error that taints the trial process itself. 7

Neder was tned before an impartial judge, under the

correct standard of proof and with the assistance of

counsel; a fairly selected, impartial jury was instructed

'7 At various times, the Court’s opinion suggests that Ring J] error should

be considered under a harmless error analysis. First, the Court declined to review the

case for harmless error, stating instead that state courts should be the first to do so.

Ring IT, 536 U.S. at___n.7, 122 S. Ct. at 2443 n.7. Second, when commenting upon

the fate of death row inmates after the Ring I/ decision, Justice O’Connor stated that

“prisoners will be unable to satisfy the standards of harmless error or plain error

review.” Id. at___, 122 S. Ct. at 2449 (O’Connor, J., dissenting). Because the Court

did not consider the issue of the appropriate standard of review, we do not regard

these statements as conclusive.

B-44

to consider all of the evidence and argument in respect

to Neder's defense against the tax charges. Of course,

the court erroneously failed to charge the jury on the

element of materiality, but that error did not render

Neder's trial "fundamentally unfair," as that term is used

in Our cases.

Id. at 9, 119 S. Ct. at 1834."

449 In a similar decision that followed Apprendi and Ring Ii, the Court

again applied the plain error test to a judge’s consideration of a factor

properly left to the jury: United States v. Cotton, $35 U.S.625,.. ize

S. Ct. 1781, 1785 (2002). Federal law makes available enhanced

penalties for drug offenses if the government proves a Statutory

threshold drug quantity. Jd. at__, 122 S. Ct. at 1783. In Cotton, the

government failed to allege in its superseding indictment the quantity

of drugs involved in the offense, as required by the enhanced penalty.

Id. Based on trial testimony, the district court found the petitioner

“responsible for at least 500 grams of cocaine base,” ten times the

amount set by statute for an enhanced penalty, and imposed the

enhanced sentence. Jd. at__, 122 S. Ct. at 1784. The Supreme Court

concluded that the district court improperly usurped the quantity finding

from the grand jury, but reviewed for plain error. Id. at _, 122 >. Cr.

at 1785-86. The Court held that the trial evidence was so

“overwhelming” and “essentially uncontroverted” that “the error did

not seriously affect the fairness, integrity, or public reputation of

judicial proceedings.” Id. at ___, 122 S. Ct. at 1786.

q50 Although Neder and Cotton did not involve a capital sentence,

their holdings that a failure to submit one element of an offense to a

jury does not infect the trial process from beginning to end apply

equally here. Under both Arizona’s superseded and current capital

sentencing schemes, a defendant's trial consists of two phases: a guilt

phase and a penalty phase. In the guilt phase, the jury decides whether

18 See also California v. Roy, 519 U.S. 2, 5-6, 117 S. Ct. 337, 339 (1996)

(holding trial judge’s failure to instruct jury on an element of accomplice liability first

degree murder was a trial error to which the harmless error test applied).

B - 45

—aeey

the defendant committed first degree or felony murder as defined by

A.R.S. section 13-1105. If the jury finds the defendant guilty beyond a

reasonable doubt, the tral continues to the penalty phase. Under the

former system, the judge found, beyond a reasonable doubt, the

ultimate element required to complete a capital murder offense: at least

one aggravating circumstance not outweighed by one or more

mitigating factors. A.R.S. § 13- 703.E. Defendants’ trials thus took

place before an impartial judge and jury, who used the correct standard

of proof. Defendants received the assistance of counsel, who were

available during all phases of their prosecution. Any error, then,

affected the submission of one element rather than the entire trial and

did not render the entire trial fundamentally unfair.'? See Neder, 527

'9 The dissent disagrees with this conclusion, arguing that the defendants

experienced a “[cJomplete denial of [the right to] trial by jury at the sentencing phase

.... Dissent, { 109. Notably, the dissent does not suggest that the defendants were

denied a trial by jury, and it could not, for the error here resulted not from denying

defendants a jury trial but from the failure to submit one element of the capital

offense to the jury for decision. A capital trial comprises just one trial, divided into

guilt and sentencing phases, and has always been understood as such, both by this

court and by the U.S. Supreme Court. See, e.g., Tuilaepa v. California, 512 U.S. 967,

971-72, 114S. Ct. 2630, 2634 (1994) (holding trier of fact must find one aggravating

circumstance at either the guilt or penalty phase); Payne v. Tennessee, 501 U.S. 808,

817, 823, 825-26, 111 S. Ct. 2597, 2604, 2607-08 (1991) (repeated references to

“guilt phase” and “penalty phase’”’ of capital trial); State v. Smith, 203 Ariz. 75,

passim, 50 P.3d 825, passim (2002) (referring to “sentencing phase” and “sentencing

hearing’’); Ring J, 200 Ariz. at 279 J 42, 25 P.3d at 1151 (referring to a “separate

evidentiary hearing”). The only courts of which we are aware that have considered

the argument that a capital trial consists of two “trials” rather than two phases of one

trial have rejected the dissent’s approach. Flamer v. Delaware, 68 F.3d 736, 758-59

(3rd Cir. 1995) (“The guilt and penalty phases of a capital trial are parts of a single

proceeding, and there is no constitutional requirement that they be treated as if they

were two entirely separate trials.””); Holland v. Mississippi, 70S So. 2d 307, 3304 61

(Miss. ' 997) (sentencing phase of a capital trial not a separate trial, but that phase of

the case that concerns sentencing).

Arizona statutes reflect the single capital trial approach accepted by our

court and the Supreme Court. Arizona law refers to the sentencing proceeding as the

capital trial’s “penalty phase.” E.g., A.R.S. § 13-703.C. In addition, former and

current capital sentencing statutes permit use at the sentencing phase of evidence

adduced during the guilt phase of the trial. Jd. §§ 13-703.C (2001), 13-703.D (Supp.

(continued...)

B - 46

U.S. at 9, 119 S. Ct. at 1833.

951 We are not the first court to reach this conclusion. Courts

implementing Apprendi and Ring have reached a consensus that

structural error does not occur when a judge fails to submit to the jury

an element of a crime, otherwise required to be found by a jury under

the Sixth Amendment.” In United States v. Matthews, the court held

“Apprendi error is susceptible to harmless error analysis.” 312 F.3d

652, 665 (Sth Cir. 2002). The Seventh Circuit Court of Appeals also

found “that errors in both the indictment and the charge to the jury are

subject to harmless-error analysis.” United States v. Dumes, 313 F.3d

372, 385 (7th Cir. 2002); accord United States v. Sanders, 247 F.3d

139, 150 (4th Cir. 2001) (citing cases from the First, Second, Fourth,

Fifth, Seventh, and Eleventh Circuits holding that harmless error

applies in Apprendi cases); Johnson v. Nevada, P.3d 450, 459-60 (Nev.

2002).”"

(...continued)

2002).

20 The one case finding structural error is Esparza v. Mitchell, a case

involving a challenge under the Eighth Amendment rather than the Sixth. In that case,

two members of the panel held the harmless error test inapplicable in a capital case

where, under Ohio law, aggravating factors were required to be charged in the

indictment but were not. 310 F.3d 414, 421 (6th Cir. 2002). The dissenting judge,

concluding that harmless error applied, outlined the seminal Supreme Court cases

defining the harmless error doctrine and concluded that the error involved did not

amount to deprivation of “basic protections without which a criminal trial cannot

reliably serve its function as a vehicle for determination of guilt or innocence.” /d. at

428 (Suhrheinrich, J., dissenting) (quoting Neder, 527 U.S. at 8-9, 119S. Ct. at 1833

(internal quotation marks omitted)).

21 In addition to these decisions involving the Sixth Amendment, federal

courts have held that Eighth Amendment violations occurring at the trial court level

are subject to harmless error analysis. See, e.g., Jones (Lewis) v. United States, 527

U.S. 373, 402-05, 119'S. Ct. 2090, 2108-10 (1999); Clemons v. Mississippi, 494 US.

738, 110 S. Ct. 1441 (1990). Most recently, the Ninth Circuit Court of Appeals held

that a death sentence imposed when an unconstitutionally vague jury instruction was

given could be reviewed for harmless error. Valerio v. Crawford, 306 F.3d 742, 756

(continued...)

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—————aaEEeeEE—ee"|

452 Those holdings comport with prior Arizona law. In State v. Styers,

we applied the fundamental error test to the trial judge’s failure to

define the “without legal authority” element of the kidnapping offense

in instructions to the jury. 177 Ariz. 104, 111-12, 865 P.2d 765, 772-73

(1993).

q53 Accordingly, we hold that Arizona’s failure to require a tnal judge

to submit the aggravating circumstance element of capital murder to a

jury does not constitute structural error. We will review the sentences

of these defendants for harmless error.

Vil.

A.

Does Ring II Apply to Aggravating Circumstances Involving

Prior Convictions?

454 Arizona law establishes two aggravating circumstances for prior

criminal convictions.” A.R.S. § 13-703.F.1-.2. The fi~ st of Arizona’s

prior conviction factors, A.R.S. séction 13- 703.F.1, applies when

“Tt]he 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.” The second, A.R.S. section 13-703.F.2, is

implicated when “[t]he defendant was previously convicted of a serious

(...continued)

(9th Cir. 2002) (““When a state trial court sentences a defendant to death based in part

on an unconstitutionally vague aggravating circurnstance, the state appellate court .

. .can find the error harmless under Chapman v. California.” (Citation omitted.)).

” The 2002 amendment did not change the F.1 and F.2 aggravating factors.

2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, § 1.

B - 48

offense, whether preparatory or completed.”” In Almendarez-Torres v.

United States, the Supreme Court held that a judge could consider prior

convictions to enhance a penalty beyond that authorized by the facts

established by the jury’s verdict. 523 U.S. 224, 226-27, 118S.Ct. 1219,

1222 (1998).

455 The State argues that Almendarez-Torres establishes an exception

to Apprendi/Ring for the two pmor conviction aggravating

circumstances. According to the State, a judge may constitutionally

determine the existence of any prior conviction. The defendants argue

23 Section 13-703.H defines “serious offense” as:

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.

A.R.S. § 13-703.H (Supp. 2002).

Before 1993, this aggravating circumstance occurred if “[t]he defendant was

previously convicted of a felony in the United States involving the use or threat of

violence on another person.” A.R.S. § 13-703.F.2 (1989), amended by 1993 Ariz.

Sess. Laws ch. 153, § 1.

B - 49

that Aunendarez-Torres is no longer good law.“ They also argue that

the F.1 and F.2 aggravating circumstances do not fit within the prior

conviction exception. Alternatively, they argue that the Arizona

Constitution’s jury trial guarantee should supplant Almendarez- Torres

| and require a jury determination of prior convictions. For the following

| reasons, we hold that Almendarez-Torres remains effective and that the

Sixth Amendment does not require a jury to determine prior

convictions under sections 13-703.F.1 and F.2.

1. Prior Conviction Aggravating Circumstance.

456 First we consider whether Arizona’s statutory aggravating

circumstance for prior convictions falls within the Almendarez-Torres

exception. In cases handed down within the past five years, the

Supreme Court consistently has stated that a statutory provision

| permitting increased penalties when a defendant has a prior conviction

operates as a sentencing enhancement and not as an element of a

criminal offense.”

457 In two Supreme Court cases, defendants challenged sentencing

enhancements when the government failed to allege the factor

24 The defendants argue that we should ignore Almendarez- Torres because

Justice Thomas allegedly has repudiated his position in that case, thereby “expressly”

invalidating the decision. In Apprendi v. New Jersey, Justice Thomas di

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