# Petition for Writ of Certiorari — Arizona v. Tucker

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1939%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 1000

## Text

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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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

é
H
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

(leer Sie wi heed rt Daa

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

B-12

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

B - 16

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,

B - 21

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.

B-25

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.

B - 27

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.

B - 28

~

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

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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.

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right at issue here, are inherently procedural. 497 U.S. at 51, 110 S. Ct.
at 2724. Under the holding of Dobb

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1939%3A1. Public record. Not legal advice.