State v. Nordstrom

SUPREME COURT OF ARIZONA

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-98-0278-AP
Appellee, )
) Pima County Superior
v. ) Court
) No. CR-55947
)
SCOTT DOUGLAS NORDSTROM, )
)
Appellant. ) S U P P L E M E N T A L
) O P I N I O N
)

Appeal from the Superior Court in Pima County
No. CR-55947
The Honorable Michael Cruikshank, Judge Pro Tempore

REMANDED FOR RESENTENCING

Janet A. Napolitano, Former Arizona Attorney General
Terry Goddard, Arizona Attorney General Phoenix
By Kent E. Cattani, Chief Counsel,
Capital Litigation Section
and Robert L. Ellman, Assistant Attorney General
James P. Beene, Assistant Attorney General
John P. Todd, Assistant Attorney General
Bruce M. Ferg, Assistant Attorney General Tucson
Donna J. Lam, Assistant Attorney General Tucson
Attorneys for Appellee

LAW OFFICE OF DAVID ALAN DARBY Tucson
By David Alan Darby
Attorney for Appellant

R Y A N, Justice

¶1 The sole issue before us is whether reversible error

occurred when a trial judge sentenced Scott Nordstrom to death
under a procedure the United States Supreme Court held

unconstitutional in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428

(2002) (Ring II). Based on our review of the record, we cannot

conclude that the Ring II violation constituted harmless error.

I.

¶2 In Ring II, the United States Supreme Court held that

Arizona’s capital sentencing scheme violates the right to a jury

trial guaranteed by the Sixth Amendment to the United States

Constitution.1 Id. at 608-09, 122 S. Ct. at 2443. 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, 122 S. Ct. at 2432. 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, 122 S. Ct. at 2443.

¶3 Following the Supreme Court’s Ring II decision, we

consolidated all death penalty cases in which this court had not

yet issued a direct appeal mandate, including Nordstrom’s, to

determine whether Ring II requires us to reverse or vacate the

defendants’ death sentences. State v. Ring, 204 Ariz. 534, 545, ¶

1
The legislature amended the statute requiring judge-
sentencing in capital cases. See 2002 Ariz. Sess. Laws, 5th Spec.
Sess. ch. 1, § 1.

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14, 65 P.3d 915, 926 (2003) (Ring III). We concluded that we will

examine a death sentence imposed under Arizona’s superseded capital

sentencing statutes for harmless error.2 Id. at 555, ¶ 53, 65 P.3d

at 936.

II.

¶4 A jury convicted Nordstrom of six counts of first degree

murder, along with other charges, for events that occurred at the

Moon Smoke Shop in Tucson on May 30, 1996, and at the Firefighters’

Union Hall in Tucson on June 13, 1996. State v. Nordstrom, 200

Ariz. 229, 238-39, ¶ 12, 25 P.3d 717, 726-27 (2001). On the murder

charges, the jury unanimously convicted Nordstrom of felony murder

as to all victims. Id. In addition, the jury unanimously found

that one murder at the smoke shop and one murder at the union hall

were premeditated. Id.

2
Relying on the Ninth Circuit’s recent opinion in
Summerlin v. Stewart, No. 98-99002, 2003 WL 22038399 (9th Cir.
Sept. 2, 2003), Nordstrom argues that Ring II error is structural
and therefore not subject to harmless error review. Summerlin, in
holding that the rule announced in Ring II applied retroactively to
cases on federal habeas corpus review, concluded that a judge’s
imposition of a death sentence “cannot be subject to harmless error
analysis.” Id. at *33. We are not bound by the Ninth Circuit’s
interpretation of what the Constitution requires. See State v.
Vickers, 159 Ariz. 532, 543 n.2, 768 P.2d 1177, 1188 n.2 (1989)
(declining to follow a Ninth Circuit decision, which held Arizona’s
death penalty statute unconstitutional, because it rested on
“grounds on which different courts may reasonably hold differing
views of what the Constitution requires”); State v. Clark, 196
Ariz. 530, 533, ¶ 14, 2 P.3d 89, 92 (App. 1999) (same).
Accordingly, we decline to revisit our conclusion that Ring II
error can be reviewed for harmless error.

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¶5 The trial judge conducted a sentencing hearing to

determine whether any aggravating and mitigating circumstances

existed. The judge found beyond a reasonable doubt the presence of

three aggravating circumstances for each murder: 1) Nordstrom had

previously been convicted of another offense in the United States

for which a sentence of life imprisonment or death was imposable

under Arizona Revised Statutes (“A.R.S.”) section 13-703(F)(1)

(Supp. 1993); 2) Nordstrom committed the murders in expectation of

the receipt of pecuniary gain under A.R.S. section 13-703(F)(5);

and 3) Nordstrom had been convicted of committing multiple

homicides under A.R.S. section 13-703(F)(8). The court found no

statutory mitigating factors, and no non-statutory mitigating

factors “sufficiently substantial to call for leniency.” A.R.S. §

13-703(E). Accordingly, the trial judge sentenced Nordstrom to

death. This court affirmed Nordstrom’s convictions and death

sentences on direct review. Nordstrom, 200 Ariz. at 257, ¶ 99, 25

P.3d at 745.3

3
We noted in our opinion on direct appeal that because the
trial judge “did not make clear that the aggravator analysis
complied with the prohibition on double-counting” as to the (F)(1)
and (F)(8) factors, only one of the factors could be considered in
our independent review of Nordstrom’s death sentences. Nordstrom,
200 Ariz. at 256 n.17, 25 P.3d at 744 n.17 (citing State v. Jones,
197 Ariz. 290, 311, ¶ 65, 4 P.3d 345, 366 (2000)). We nevertheless
found that the sentence of death was appropriate. Id. at 257, ¶
98, 25 P.3d at 745.

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 III.

A.

¶6 Under A.R.S. section 13-703(F)(1), a conviction of

another offense with a possible sentence of death or life

imprisonment is an aggravating factor. In Ring III, we held that

the Sixth Amendment does not require a jury to determine the

existence of an (F)(1) factor. 204 Ariz. at 556, ¶ 55, 65 P.3d at

937; see also Sattazahn v. Pennsylvania, 537 U.S. 101, 111 (2003).

¶7 The trial judge concluded that each of the murders at

the Moon Smoke Shop satisfied the F(1) aggravating factor as to the

Firefighters’ Union Hall murders, and that the Firefighters’ Union

Hall murders satisfied the F(1) aggravating factor for the Moon

Smoke Shop murders. Other than arguing that a jury must find all

aggravating factors, an argument we rejected in Ring III, 204 Ariz.

at 552-55, ¶¶ 44-52, 65 P.3d at 933-36, Nordstrom concedes that

under our decision in Ring III, “remand for resentencing on this

aggravating factor is not required.” Accordingly, we will not

disturb the trial court’s finding that the (F)(1) aggravating

factor was proven.

B.

¶8 Commission of an offense “as consideration for the

receipt, or in expectation of the receipt, . . . of anything of

pecuniary value” is an aggravating circumstance. A.R.S. § 13-

703(F)(5). This factor exists only “if the expectation of

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pecuniary gain is a motive, cause, or impetus for the murder and

not merely a result of the murder.” State v. Hyde, 186 Ariz. 252,

280, 921 P.2d 655, 683 (1996). “Proving a taking in a robbery does

not necessarily prove the motivation for a murder.” State v.

Greenway, 170 Ariz. 155, 164, 823 P.2d 22, 31 (1991) (quoting State

v. Carriger, 141 Ariz. 142, 161, 692 P.2d 991, 1010 (1984)).

Instead, it is a highly fact-intensive inquiry requiring the state

to prove a connection between the murder and motive through direct

or circumstantial evidence. Ring III, 204 Ariz. at 560, ¶¶ 76-77,

65 P.3d at 941; State v. Cañez, 202 Ariz. 133, 159, ¶ 93, 42 P.3d

564, 590 (2002). A murder in expectation of pecuniary gain is

distinguished “from a ‘robbery gone bad’ or a robbery that occurs

close in time to a murder but that constitutes a separate event for

the purpose of an [(F)(5)] determination.” State v. Sansing, 200

Ariz. 347, 353-54, ¶ 14, 26 P.3d 1118, 1124-25 (2000).

¶9 We will find harmless error affecting this factor only if

we are convinced beyond a reasonable doubt that no reasonable jury

could fail to find that the state proved pecuniary gain beyond a

reasonable doubt. Ring III, 204 Ariz. at 560, ¶ 79, 65 P.3d at

941.

¶10 The murders at both the Moon Smoke Shop and the

Firefighters’ Union Hall occurred simultaneously with the robberies

of each establishment and therefore facilitated Nordstrom’s ability

to secure pecuniary gain. No evidence suggests any motive for the

murders but pecuniary gain. And no evidence suggests the murders

were committed as a result of a “robbery gone bad.” See Nordstrom,

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200 Ariz. at 256, ¶ 94, 25 P.3d at 744; see also State v. Jones,

197 Ariz. 290, 309, ¶ 56, 4 P.3d 345, 364 (2000) (finding on

Nordstrom’s codefendant’s direct appeal of his convictions on the

same charges that the robberies in this case were not “robberies

gone bad”).

¶11 Although Nordstrom now argues “it would be mere

speculation” for this court to find harmless error with respect to

this factor, during the sentencing hearing Nordstrom admitted that

the State proved the pecuniary gain aggravating factor beyond a

reasonable doubt.4 In Ring III, we held that when a “defendant

stipulates, confesses or admits to facts sufficient to establish an

aggravating circumstance, we will regard that factor as

established.” 204 Ariz. at 563, ¶ 93, 65 P.3d at 944. We therefore

conclude that no reasonable jury, hearing the same evidence as the

judge, could find that Nordstrom did not commit the murders for

pecuniary gain. Accordingly, any Ring II violation was harmless

beyond a reasonable doubt.

C.

¶12 An aggravating factor exists if “[t]he defendant has been

convicted of one or more other homicides . . . which were committed

4
Although Nordstrom conceded that the State proved the
pecuniary gain aggravating factor beyond a reasonable doubt, he
also stated that “if the intent of the legislature was to limit the
pecuniary gain aspect to a situation where you hire someone to kill
somebody, certainly pecuniary gain was not applicable.” He
therefore asked to preserve that issue. However, we have
previously rejected that claim. State v. Nash, 143 Ariz. 392, 401,
694 P.2d 222, 231 (1985); State v. Clark, 126 Ariz. 428, 436, 616
P.2d 888, 896 (1980).

-7-
during the commission of the offense.” A.R.S. § 13-703(F)(8). To

satisfy this factor, the state must establish “more than that the

jury convicted the defendant of first degree murder and one or more

other homicides occurring around the same time.” Ring III, 204

Ariz. at 560, ¶ 80, 65 P.3d at 941. Instead, the homicides must be

temporally, spatially, and motivationally related, taking place

during “one continuous course of criminal conduct.” State v.

Rogovich, 188 Ariz. 38, 45, 932 P.2d 794, 801 (1997) (quoting State

v. Ramirez, 178 Ariz. 116, 130, 871 P.2d 237, 251 (1994)).

¶13 “We will find harmless error affecting this factor in

those cases in which no reasonable jury could find that the state

failed to prove the [(F)(8)] factor beyond a reasonable doubt.”

Ring III, 204 Ariz. at 561, ¶ 82, 65 P.3d at 942.

¶14 The trial court found that “[e]ach of the two murders at

the Moon Smoke Shop constitutes proof of this factor as to the

other; each of the four murders at the Firefighter’s [sic] Union

Hall constitutes proof of this factor to each of the others.” The

gist of Nordstrom’s argument on this issue is that the trial court

erred in counting the felony murders “against the premeditated

murder” in finding that the (F)(8) factor had been proven.

According to Nordstrom, because he was “convicted unanimously by

the jury of only one premeditated murder in the Moon Smoke Shop and

one premeditated murder in the Firefighter’s [sic] Hall robberies,”

the remaining felony murders, both at the smoke shop and at the

union hall, should not be counted as “collateral” murders for

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purposes of (F)(8).

¶15 Nordstrom’s contention ignores the fact that “first

degree murder is only one crime regardless of whether it occurs as

a premeditated murder or a felony murder.” State v. Berndt, 138

Ariz. 41, 45, 672 P.2d 1311, 1315 (1983). Moreover, “[t]he plain

meaning of [(F)(8)] reads that if a defendant has been convicted of

one or more other homicides, and this conviction arose out of the

commission of the offense, the homicide conviction is an

aggravating factor that the State could allege and the trial judge

may find.” Greenway, 170 Ariz. at 167, 823 P.2d at 34. In

addition, the plain language of (F)(8) does not limit the “one or

more other homicides” to convictions for premeditated murder.

Thus, Nordstrom indisputedly stands convicted of “one or more other

homicides . . . that were committed during the commission of the

offense.” A.R.S. § 13-703(F)(8).

¶16 Because the armed robberies and murders at both the Moon

Smoke Shop and the Firefighters’ Union Hall were committed during

a continuous course of criminal conduct at each place, the murders

were temporally, spatially, and motivationally related. Nordstrom

does not argue otherwise. Accordingly, “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.” State v.

Tucker, ___ Ariz. ___, ¶ 66, 68 P.3d 110, 122 (2003).

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 D.

¶17 Based on our review of the record, we conclude that no

reasonable jury would have failed to find the aggravating factors

set forth in A.R.S. sections 13-703 (F)(5) or (F)(8) proven beyond

a reasonable doubt. Moreover, the (F)(1) aggravating factor falls

outside the Ring II mandate. Ring III, 204 Ariz. at 556, ¶ 55, 65

P.3d at 937. Therefore, any error with respect to the aggravating

factors was harmless beyond a reasonable doubt.

IV.

¶18 As we explained in Ring III, our harmless error inquiry

does not end with the aggravating circumstances. 204 Ariz. at 565,

¶ 104, 65 P.3d at 946. We can affirm a capital sentence only if we

can conclude beyond a reasonable doubt “that no rational trier of

fact would determine that the mitigating circumstances were

sufficiently substantial to call for leniency.” Id. Because of our

conclusion that any Ring II error as to the aggravating factors was

harmless, we must now review whether harmless error occurred with

respect to the mitigating factors. We conclude that because some

of the findings with respect to the mitigating factors rested on an

assessment of the credibility of witnesses, we must remand for

resentencing.

¶19 At the sentencing hearing, Nordstrom offered no statutory

mitigating factors. Nevertheless, the trial court examined each

statutory mitigating circumstance and found none were supported by

the evidence.

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¶20 Nordstrom offered the following non-statutory mitigating

factors: (1) difficult family and childhood background; (2) good

record of employment; (3) residual doubt as to guilt; (4) mental

health and substance abuse problems; (5) caring parent and family;

(6) no prior convictions for serious offenses; (7) artistic talent;

(8) he was a follower; and (9) successful adjustment to prison. The

trial court found Nordstrom had proven by a preponderance of the

evidence the non-statutory mitigation factors of good employment

record, and caring parents and family. But the court found that

this mitigation was “insufficient to call for leniency.”

¶21 Nordstrom now argues that a jury, hearing the same

mitigation evidence as did the trial court, could have found one or

more of the statutory mitigating factors to be proven. He also

argues that the jury could have found one or more of the non-

statutory mitigating factors not found by the trial court. He

therefore contends that this matter must be remanded for

resentencing.

¶22 The State first argues that we should revisit the portion

of Ring III that held we must also examine the harmlessness of the

mitigation findings and the weighing and balancing of aggravating

and mitigating circumstances before we can uphold a sentence of

death. The State, however, presents no new arguments or case law.

Therefore, we decline the State’s invitation to revisit Ring III’s

holding on this issue.

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¶23 The State next argues at length that any Ring III error

as to the mitigating circumstances, whether statutory or non-

statutory, was harmless. It contends “No reasonable juror would

conclude that Nordstrom’s proffered mitigation, considered

individually or cumulatively, is sufficiently substantial to call

for a sentence less than death when balanced against the

overwhelming weight of prior convictions or multiple homicides and

pecuniary gain.” Nevertheless, the State concedes that if Ring III

remains the law, this case must be remanded for resentencing.5 We

accept the State’s concession and agree that this matter must be

remanded for resentencing for the following reasons.

¶24 Nordstrom presented expert testimony that he suffered from

alcohol dependence, cannabis dependence, methamphetamine abuse, and

“two psychiatric diseases of post-traumatic stress disorder and

antisocial personality disorder.”6 In addition, his mother

testified that Nordstrom’s father and stepfather were emotionally

abusive to him, he had a learning disability, he began to abuse

5
The State filed a petition for certiorari in the United
States Supreme Court challenging this court’s position, as applied
in State v. Pandeli, that under the Supreme Court’s decision in
Ring II, an analysis of harmless error at the sentencing phase of
a capital trial must also “consider whether reversible error
occurred with respect to the mitigating circumstances.” 204 Ariz.
569, 572, ¶ 10, 65 P.3d 950, 953 (2003); see also Ring III, 204
Ariz. at 561-62, ¶¶ 87-90, 104, 65 P.3d at 942-43. The State
acknowledges that if the Supreme Court denies its petition for
certiorari, Ring III requires resentencing.
6
Nordstrom declined to offer post-traumatic stress
disorder as a mitigating factor because the diagnosis was based
upon an event that occurred after the murders.

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drugs and alcohol at a young age, and he was a follower.

¶25 The trial judge rejected this evidence because he found

no causal connection between Nordstrom’s diagnoses and the murders.

Nordstrom’s expert testified however, that there “could . . . be a

causal connection to the commission of a violent crime” and

Nordstrom’s alcohol and substance abuse, his dysfunctional and

abusive family, his “antisocial behavior,” his impulsiveness, and

his “learning problems as a child.”

¶26 We recognize that the evidence supporting Nordstrom’s

claim that the murders were causally connected to his substance

abuse and mental health problems was not particularly compelling.

But he did present evidence from an expert on this issue. Cf. State

v. Sansing, ___ Ariz. ___, ____, ¶ 26, ___ P.3d ___, ___ (2003)

(finding that “[t]ypically, in those cases in which a defendant

established statutory impairment, the defendant presented an expert

witness”).

¶27 Accordingly, we cannot conclude beyond a reasonable doubt

that a jury would not have weighed this evidence differently than

did the trial judge. And a different finding as to the mitigating

circumstances could affect the determination whether the mitigating

circumstances are “sufficiently substantial to call for leniency.”

A.R.S. § 13-703(E). Therefore, we are unable to find that the Ring

II error was harmless in this case.

V.

¶28 For the foregoing reasons, we vacate Nordstrom’s death

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sentences and remand for resentencing by a jury under A.R.S.

sections 13-703 and - 703.01 (Supp. 2002).

Michael D. Ryan, Justice

CONCURRING:

Ruth V. McGregor, Vice Chief Justice

Rebecca White Berch, Justice

J O N E S, C.J., concurring in part, dissenting in part:

¶29 I concur in the result, but I respectfully dissent from

the majority’s conclusion that harmless error analysis is

appropriate where sentencing determinations are made by the trial

judge in the absence of the jury. The right to trial by an

impartial jury is fundamental. The sentencing phase is, of itself,

a life or death matter. Where a judge, not a jury, determines all

questions pertaining to sentencing, I believe a violation of the

Sixth Amendment to the Constitution of the United States has

occurred. In the aftermath of the Supreme Court’s decision in Ring

v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002) (Ring II), the

absence of the jury in the sentencing phase of a capital trial

necessarily amounts to structural error. I would remand the case

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for resentencing, simply on the basis of the Sixth Amendment

violation. See State v. Ring, 204 Ariz. 534, 565-67, ¶¶ 105-14, 65

P.3d 915, 946-48 (2003)(Feldman, J., concurring in part, dissenting

in part) (Ring III).

Charles E. Jones, Chief Justice

Note: Justice Hurwitz took no part in the consideration or
decision of this case.

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