SUPREME COURT OF ARIZONA
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-01-0270-AP
Appellee, )
)
v ) Maricopa County Superior
) Court
CHRISTOPHER GEORGE THEODORE ) No. CR1996-011714
LAMAR, )
) S U P P L E M E N T A L
Appellant. ) O P I N I O N
)
___________________________________)
Appeal from the Superior Court of Maricopa County
No. CR1996-011714
The Honorable Stephen A. Gerst
AFFIRMED IN PART; REMANDED FOR RESENTENCING
_________________________________________________________________
JANET NAPOLITANO, FORMER ARIZONA ATTORNEY GENERAL Phoenix
TERRY GODDARD, ARIZONA ATTORNEY GENERAL
By Kent E. Cattani, Chief Counsel
Capital Litigation Section
Robert L. Ellman, Assistant Attorney General
Attorneys for the State of Arizona
SUSAN M. SHERWIN, MARICOPA COUNTY Phoenix
OFFICE OF THE LEGAL ADVOCATE
By Tennie B. Martin, Formerly with Maricopa Office of
Legal Advocate
Brent E. Graham, Formerly with Maricopa County Office
of Legal Advocate
Thomas J. Dennis, Deputy Legal Advocate
Attorneys for Christopher George Theodore Lamar
_________________________________________________________________
M c G R E G O R, Chief Justice
¶1 The primary issue before us is whether reversible error
occurred when a trial judge sentenced Christopher George Theodore
Lamar to death under a procedure that violated Ring v. Arizona, 536
U.S. 584 (2002) (Ring II). In addition, we must determine whether
the imposition of an aggravated sentence for Lamar’s kidnapping
conviction violated Blakely v. Washington, ___ U.S. ___, 124 S. Ct.
2531 (2004). We exercise jurisdiction pursuant to Article VI,
Section 5.3 of the Arizona Constitution and Arizona Revised
Statutes (A.R.S.) section 13-4031 (2001). Based on our review of
the record, we cannot conclude that the Ring II violation
constituted harmless error. We find no Blakely error present in
Lamar’s non-capital, aggravated sentence for kidnapping.
I.
¶2 Lamar met and became involved with Myla Hogan in April
1996. While the two were dating, Hogan lived in a house on Eighty-
first Avenue in Peoria, Arizona, with several other people,
including Mary Keovorabouth, Ouday “Tim” Panmany, Vincent
Macchirella, Richard Valdez, and Abraham Hermosillo.
¶3 Prior to May 11, 1996, the group devised a plan to kidnap
and rob Ronald Jones. On May 11, Hogan called Jones’s pager to
invite him to lunch. When Hogan and Jones returned to the house on
Eighty-first Avenue after lunch, Lamar and the others were waiting
for Jones. Lamar punched Jones. After Jones fell to the floor,
Macchirella pointed a gun at him, and Hermosillo bound Jones’s
hands and ankles with duct tape. The group then held Jones captive
at gunpoint for several hours.
¶4 When it became dark, Lamar forced Jones into the front
passenger seat of Jones’s car. Lamar directed Macchirella to drive
to Lamar and Hermosillo’s old neighborhood. Lamar sat behind Jones
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in the car. At one point, Lamar held the gun to Jones’s head and
pulled the trigger, but the gun did not fire. Eventually, Lamar
directed Macchirella to stop the car. The three men exited the
vehicle and walked to the back of the car. Lamar then shot Jones.
The medical examiner testified that Jones suffered two gunshot
wounds to the head. Lamar and his accomplices then buried Jones’s
body and set his car on fire.1
¶5 A jury found Lamar guilty of kidnapping and first degree
murder on both premeditated and felony murder theories. Following
the jury=s guilty verdict, the trial judge conducted a sentencing
hearing to determine whether any aggravating or mitigating
circumstances existed. A.R.S. § 13-703 (2001). The judge found
beyond a reasonable doubt the presence of three aggravating
circumstances: (1) Lamar murdered Jones in expectation of the
receipt of pecuniary gain, A.R.S. § 13-703.F.5; (2) Lamar murdered
Jones in an especially heinous, cruel, or depraved manner, A.R.S. §
13-703.F.6; and (3) Lamar committed first degree murder while he
was on supervised release, A.R.S. § 13-703.F.7. The judge found
that Lamar failed to establish any statutory mitigating
circumstances, A.R.S. § 13-703.G, but found Lamar established three
non-statutory mitigating circumstances: (1) mental health issues;
(2) dysfunctional family; and (3) good character. The judge
determined that the mitigating circumstances were not sufficiently
1
See State v. Lamar, 205 Ariz. 431, 433-35 ¶¶ 3-20, 72
P.3d 831, 833-35 (2003), for a more detailed account of the facts.
3
substantial to outweigh the aggravating circumstances and therefore
sentenced Lamar to death. A.R.S. § 13-703.E.
¶6 We affirmed Lamar’s convictions on his direct appeal.
Lamar, 205 Ariz. at 442 ¶ 56, 72 P.3d at 842. This supplemental
opinion reviews only Lamar=s sentences. Lamar raises several
arguments to challenge his death sentence. We conclude that the
Ring II violation requires that Lamar must be resentenced for his
first degree murder conviction.
¶7 In light of our holding that Lamar must be resentenced,
most of the sentencing issues raised by Lamar are moot. Lamar’s
argument that the F.7 aggravating circumstance does not apply to
persons on release from federal, rather than state prison, however,
may arise at resentencing. Therefore, we address that issue.
II.
¶8 In Ring II, the United States Supreme Court held that
Arizona’s former capital sentencing scheme violated the right to a
jury trial guaranteed by the Sixth Amendment to the United States
Constitution. Ring II, 536 U.S. at 609. The Court declared that
“[c]apital defendants, no less than noncapital defendants . . . are
entitled to a jury determination of any fact on which the
legislature conditions an increase in their maximum punishment.”
Id. 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
4
609.
¶9 Following the Supreme Court’s decision, we consolidated
all death penalty cases in which this court had not yet issued a
direct appeal mandate to determine whether Ring II requires this
court to reverse or vacate the defendants’ death sentences. In
State v. Ring, 204 Ariz. 534, 555 ¶ 53, 65 P.3d 915, 936 (2003)
(Ring III), we held that we will examine a death sentence imposed
under Arizona’s superseded capital sentencing statutes for harmless
error.
III.
¶10 The State concedes that application of this court’s
decision in Ring III requires that this matter be remanded for
resentencing because we cannot conclude, beyond a reasonable doubt,
that no reasonable jury would have failed to find the F.5 factor
established or that no reasonable jury would have reached
conclusions about the mitigating factors different than those of
the trial judge.
A.
¶11 To establish the F.5 aggravating circumstance, the state
must prove that “[t]he defendant committed the offense as
consideration for the receipt, or in expectation of the receipt, of
anything of pecuniary value.” A.R.S. § 13-703.F.5 (Supp. 2003).
The pecuniary gain aggravating circumstance exists only “if the
expectation of pecuniary gain is a motive, cause, or impetus for
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the murder and not merely a result of the murder.” State v. Hyde,
186 Ariz. 252, 280, 921 P.2d 655, 683 (1996). Proving that a
defendant both robbed and murdered his victim does not satisfy the
state’s burden. See State v. Medina, 193 Ariz. 504, 513 ¶ 32, 975
P.2d 94, 103 (1999) (“The existence of an economic motive at some
point during the events surrounding a murder is not enough to
establish (F)(5).”). The state also must establish a motivating
connection between the robbery and the homicide. Id.
¶12 The trial judge found that one of the primary motivations
for the murder was the robbery of the victim and the theft of the
victim’s money or drugs. The State, while arguing that the
evidence supports the trial judge’s finding that one of Lamar’s
primary motivations was pecuniary, concedes that a reasonable
factfinder could reach a contrary conclusion. We agree that a
reasonable factfinder could find or could fail to find a pecuniary
motive. Accordingly, we conclude that the pecuniary gain finding
was not harmless error.
B.
¶13 To establish the F.7 aggravating circumstance, the state
must prove that “[t]he defendant committed the offense while . . .
[i]n the custody of or on authorized or unauthorized release from
the state department of corrections, a law enforcement agency or a
county or city jail.” A.R.S. § 13-703.F.7.a (Supp. 2003). Fred
Chilese, a supervisor from the United States Probation Department,
testified that Lamar was convicted in federal court of possession
6
with intent to distribute cocaine and that his sentence included
thirty-six months of supervised release commencing upon Lamar’s
release from the Federal Bureau of Prisons. Furthermore, the State
introduced documentary evidence to corroborate Chilese’s testimony.
Lamar was released from prison on March 21, 1996, and less than two
months later, while on supervised release, murdered Jones.
¶14 Lamar did not challenge these facts at trial or on
appeal. Lamar asserts, however, that the F.7.a aggravating factor
cannot apply to him because he was not on authorized or
unauthorized release from a state department of corrections when he
murdered Jones. We agree with Lamar that the Federal Bureau of
Prisons is not a state department of corrections, but we disagree
with Lamar’s assertion that the F.7 factor does not apply to him.
¶15 The Department of Justice controls the Federal Bureau of
Prisons. See Bureau of Prisons Act, ch. 274, 46 Stat. 325 (1930)
(“there is hereby established in the Department of Justice a Bureau
of Prisons”); see also 18 U.S.C. § 4041 (Supp. 2004) (“The Bureau
of Prisons shall be in charge of a director appointed by and
serving under the Attorney General.”); Moore v. Olson, 368 F.3d
757, 758 (7th Cir. 2004) (“The Department of Justice . . . operates
the Federal Bureau of Prisons . . . .”). The Department of Justice
qualifies as a law enforcement agency. See, e.g., United States v.
El-Sayegh, 131 F.3d 158, 163 (D.C. Cir. 1997) (referring to “the
Department of Justice or other law enforcement agencies”); United
States v. Escalante, 554 F.2d 970, 975 (9th Cir. 1977) (mentioning
7
“federal law enforcement agencies, including the Department of
Justice”); United States v. Juarez-Rodriguez, 568 F.2d 120,
124 (9th Cir. 1976) (same); Roney v. United States, 790 F. Supp.
23, 28 (D.D.C. 1992) (same). Because the Federal Bureau of Prisons
falls within the Department of Justice and because the Department
of Justice is a “law enforcement agency,” it follows that the
Federal Bureau of Prisons is a “law enforcement agency” under the
terms of A.R.S. § 13-703.F.7. We therefore reject Lamar’s legal
assertion that federal supervised release does not fall under the
purview of the F.7 aggravating factor.
¶16 Our interpretation of A.R.S. § 13-703.F.7 not only
follows the language of the statute but also effectuates
legislative intent. “In statutory interpretation the primary
principle is to determine and give effect to the legislative intent
behind the statute.” Martin v. Martin, 156 Ariz. 452, 457, 752
P.2d 1038, 1043 (1988). If we were to adopt Lamar’s reading of the
statute, then the F.7 aggravating circumstance would apply to
individuals who committed offenses while on release from a state
correctional institution but not from a federal correctional
institution. We do not think the legislature intended to punish
more severely individuals on release from state correctional
institutions than those on release from the Federal Bureau of
Prisons.
¶17 We now turn to the question of whether a jury must
determine whether the state has established the F.7 aggravating
8
factor. In Ring III, we held that the Sixth Amendment does not
require a jury to determine aggravating circumstances for prior
convictions under section 13-703.F.1 and F.2. 204 Ariz. at 556
¶ 55, 65 P.3d at 937. We did not, however, address the aggravating
circumstance for offenses committed while on release from a state
corrections department or law enforcement agency.
¶18 In reaching our decision in Ring III regarding the F.1
and F.2 aggravating circumstances, we reasoned that
[t]he characteristic of a prior conviction aggravating
circumstance that sets it apart from other circumstances
is that the original criminal proceeding, through either
a guilty plea or a verdict of guilt, established the
circumstance. No additional benefit derives from having
a jury re-find an aggravating circumstance already
established through a guilty plea or a jury verdict.
Id. at 558 ¶ 65, 65 P.3d at 939. In contast to situations
involving the F.1 and F.2 aggravating circumstances, no jury has
found the underlying facts necessary to establish the F.7
aggravating circumstance. A dispute may arise as to whether the
individual who committed the offense was in custody at the time of
the offense due to questions as to the date(s) of the offense(s) in
relationship to the date of custody or release. Thus, we hold that
the Sixth Amendment requires a jury to determine whether the
defendant committed the offense while in the custody of or on
authorized release from the state department of corrections, a law
enforcement agency, or a county or city jail.
¶19 In this case, however, Lamar did not submit any evidence
nor did he present any arguments challenging any of the underlying
9
facts regarding the F.7 aggravating circumstance. He claims only
that the statute does not apply to individuals on release from the
Federal Bureau of Prisons. In Ring III, we held that “[w]hen a
defendant simply fails to challenge an aggravating circumstance at
the penalty phase, the state retains the burden of proving the
aggravator’s existence beyond a reasonable doubt. Our inquiry then
becomes whether the state has met its burden.” Id. at 563 ¶ 94, 65
P.3d at 944 (citation omitted). Here, despite the error, we
conclude that the State has met its burden and proved beyond a
reasonable doubt that Lamar was on authorized release from the
Federal Bureau of Prisons at the time that he committed his
offense. Any error as to this factor, therefore, is harmless. Id.
at 552 ¶ 45, 65 P.3d at 933.
IV.
¶20 The trial judge found that Lamar failed to prove, by a
preponderance of the evidence, any statutory mitigating
circumstances. Lamar asserts that he presented sufficient
evidence, through expert witness testimony, to allow a reasonable
factfinder to conclude that he suffered from an impairment of brain
function that rendered him significantly impaired. A.R.S. § 13-
703.G.1.
¶21 The trial judge found that Lamar established three non-
statutory mitigating circumstances: (1) mental health issues; (2)
dysfunctional family; and (3) good character. The judge rejected
the following non-statutory mitigating circumstances: (1) residual
10
doubt; (2) acting under the influence of drugs and/or alcohol; (3)
ability to be rehabilitated; and (4) culpability of others/
sentencing disparity.
¶22 The State concedes that the record does not allow us to
conclude, beyond a reasonable doubt, that a jury would have
assessed the defense expert’s testimony and opinion similarly and
would have failed to accord more weight to the expert’s testimony.
A different finding of mitigating circumstances could affect a
factfinder’s determination whether the mitigating circumstances are
“sufficiently substantial to call for leniency.” Id. § 13-703.E.
We cannot conclude, therefore, that the Ring II error was harmless
in this case.
V.
¶23 Lamar was also convicted of kidnapping. The trial judge
made a finding of dangerousness pursuant to A.R.S. § 13-604.I
(Supp. 1996)2 and sentenced Lamar to an aggravated term of twenty-
2
Lamar does not challenge the trial judge’s finding of his
eligibility to be sentenced under A.R.S. § 13-604 (Supp. 1996). We
note, however, that the Apprendi/Blakely line of cases does not
prevent Lamar from falling within that section. A defendant is
eligible for sentencing under section 13-604.I if he is convicted
“of a class 2 or 3 felony involving discharge, use or threatening
exhibition of a deadly weapon or dangerous instrument or [is
convicted] of a class 2 or 3 felony when the intentional or knowing
infliction of serious physical injury upon another has occurred.”
A.R.S. § 13-604.I. Kidnapping is a class 2 felony. A.R.S. § 13-
1304 (1989). Serious physical injury is defined as, among other
things, “physical injury which creates a reasonable risk of death.”
A.R.S. § 13-105.34 (1989). The jury found, beyond a reasonable
doubt, that Lamar murdered the victim of his kidnapping. Thus, it
is implicit in the jury’s verdict that Lamar inflicted serious
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one years, finding seven statutory aggravating factors pursuant to
the terms of A.R.S. § 13-702 (Supp. 1996).3 In a second
supplemental brief, Lamar alleged for the first time that his non-
capital sentences were imposed in violation of the United States
Supreme Court’s decision in Blakely. In sum, Lamar argues that the
failure of a jury to find, beyond a reasonable doubt, the existence
of those aggravating factors, violated his Sixth Amendment right to
a jury trial.
¶24 In Blakely, the United States Supreme Court held that any
fact legally essential to enhance a defendant’s non-capital
sentence beyond the statutory maximum for his crime must be proven
to a jury beyond a reasonable doubt. Id. at __, 124 S. Ct. at
2543. Failure to do so violates the defendant’s Sixth Amendment
right to a jury trial. Id.
¶25 Lamar was sentenced under A.R.S. § 13-604.I, which
provides for a presumptive term of ten and one-half years. That
section also provides a maximum aggravated term of up to twenty-one
injury upon the victim of his kidnapping, see Ring v. Arizona, 204
Ariz. 534, 559-60 ¶ 74, 65 P.3d 915, 940-41 (2003), and he is
eligible for sentencing under section 13-604.I.
3
The judge found the following: that Lamar had inflicted or
threatened the infliction of serious physical injury, A.R.S. § 13-
702.C.1 (Supp. 1996), that Lamar had used or threatened to use a
deadly weapon or dangerous instrument, § 13-702.C.2, that Lamar had
committed his crime with the help of an accomplice, § 13-702.C.4,
that Lamar had committed his offense in an especially heinous,
cruel, and depraved manner, § 13-702.C.5, that Lamar had committed
the offense for pecuniary gain, § 13-702.C.6, that Lamar’s crime
caused emotional and financial harm to the victim, § 13-702.C.9,
12
years. To impose an aggravated sentence, the court must consider
A.R.S. § 13-702, subsections B, C, and D. In Lamar’s case, as
previously noted, the trial judge did just that, finding the
existence of seven aggravating factors. See supra n.3. One of
those factors falls within section 13-702.C.11, because Lamar had
been previously convicted of a felony within ten years of his
instant offense.
¶26 The United States Supreme Court affirmed in Apprendi that
the fact of a defendant’s prior conviction need not be submitted to
a jury and proven beyond a reasonable doubt. 530 U.S. 466, 489
(2000). As we recently held in State v. Martinez, ___ Ariz. ___,
___ P.3d ___ (2005), once a single Blakely-compliant or Blakely-
exempt factor has been found, the defendant is eligible for the
maximum penalty authorized under the sentencing statute. The trial
judge then is free to consider additional aggravating factors in
determining the actual sentence to impose, up to the maximum
sentence prescribed by the sentencing statute. Id. at ___ ¶ 25,
___ P.3d at ___. Here, because dangerousness was implicit in the
jury’s verdict on the first degree murder charge, the trial court
properly applied A.R.S. § 13-604.I in sentencing Lamar. Moreover,
Lamar’s prior felony conviction was sufficient to expose him to the
maximum sentence under that statute, twenty-one years, without
implicating Blakely. We hold, therefore, that the trial court did
and that Lamar had been convicted of a felony within ten years
preceding the date of this offense, § 13-702.C.11.
13
not err in imposing a twenty-one year sentence for Lamar’s
kidnapping conviction.
VI.
¶27 For the foregoing reasons, we vacate Lamar’s death
sentence and remand for resentencing under A.R.S. §§ 13-703 and 13-
703.01 (Supp. 2003). We affirm the trial court’s imposition of an
aggravated sentence for Lamar’s kidnapping conviction.
____________________________________
Ruth V. McGregor, Chief Justice
CONCURRING:
_________________________________
Rebecca White Berch, Vice Chief Justice
_________________________________
Michael D. Ryan, Justice
______________________________________
Charles E. Jones, Justice (Retired)
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