SUPREME COURT OF ARIZONA
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-99-0438-AP
Appellee, )
) Maricopa County Superior
v. ) Court
) No. CR-98-003520
JOHN EDWARD SANSING, )
)
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 of Maricopa County
No. CR-98-003520
The Honorable Ronald S. Reinstein, Judge
DEATH SENTENCE AFFIRMED
_________________________________________________________________
Janet A. Napolitano, Former Arizona Attorney General Phoenix
Terry Goddard, Arizona Attorney General
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 Monica B. Klapper, 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
Attorneys for John Edward Sansing
_________________________________________________________________
M c G R E G O R, Vice Chief Justice
¶1 On September 18, 1998, Sansing pled guilty to first
degree murder, kidnapping, armed robbery, and sexual assault. The
trial judge conducted a sentencing hearing to determine if any
aggravating and mitigating circumstances existed. A.R.S. § 13-
703.B (2001).1 The judge found that the State proved, beyond a
reasonable doubt, two aggravating circumstances: (1) Sansing
committed the crime in expectation of the receipt of pecuniary
gain, A.R.S. section 13-703.F.5; and (2) Sansing committed the
murder in an especially cruel, heinous, or depraved manner, A.R.S.
section 13-703.F.6. The trial judge found Sansing failed to prove
any statutory mitigating circumstances, A.R.S. section 13-703.G.,
but found Sansing established five non-statutory mitigating
circumstances: (1) impairment from the use of crack cocaine; (2)
difficult childhood; (3) acceptance of responsibility and remorse;
(4) lack of education; and (5) family support. The judge
determined that the mitigating circumstances were not sufficiently
substantial to outweigh the aggravating circumstances and therefore
sentenced Sansing to death. A.R.S. § 13-703.E.
¶2 We affirmed Sansing’s convictions and sentences on his
direct appeal. State v. Sansing, 200 Ariz. 347, 361 ¶ 47, 26 P.3d
1118, 1132 (2001). We struck the pecuniary gain finding, concurred
with the trial court’s finding of cruelty, and did not address the
question of heinousness or depravity. Id. at 356, 358 ¶¶ 24, 34,
1
The legislature has since amended A.R.S. section 13-703.
See 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, § 1.
2
26 P.3d at 1127, 1129. After independently reweighing the
aggravating and mitigating circumstances, we affirmed Sansing’s
death sentence. Id. at 360 ¶ 45, 26 P.3d at 1131.
¶3 The United States Supreme Court vacated the Sansing
judgment and remanded for further consideration in light of Ring v.
Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002) (Ring II). Sansing
v. Arizona, 536 U.S. 954, 122 S. Ct. 2654 (2002) (mem.). The only
issue before this court is whether reversible error occurred when
the trial judge sentenced John Edward Sansing to death under a
procedure that violated Ring II. We conclude that the Ring II
violation constituted harmless error.
I.
¶4 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, 122 S. Ct. at 2443. 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.” 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
¶5 Following the Supreme Court’s Ring II decision, we
consolidated all death penalty cases for which we had not yet
issued a direct appeal mandate to determine whether Ring II
requires us 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.2 “In cases in which a defendant stipulates, confesses or
admits to facts sufficient to establish an aggravating
circumstance, we will regard that factor as established.” Id. at
563 ¶ 93, 65 P.3d at 944. As we further explained, “[o]ur harmless
error inquiry then focuses on whether no reasonable jury could find
that the mitigation evidence adduced during the penalty phase is
‘sufficiently substantial to call for leniency.’” Id. (quoting
A.R.S. § 13-703.E).
2
In Summerlin v. Stewart, No. 98-99002, 2003 WL 22038399
th
(9 Cir. Sept. 2, 2003), the court held that the rule announced in
Ring II applies retroactively to cases on federal habeas review and
concluded that a judge’s imposition of a death penalty “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
that decision rested on “grounds on which different courts may
reasonably hold different 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.
4
II.
¶6 To establish the F.6 aggravating circumstance, the state
needs to prove beyond a reasonable doubt only one of the heinous,
cruel, or depraved elements. State v. Gretzler, 135 Ariz. 42, 51,
659 P.2d 1, 10 (1983). The term especially cruel refers to the
mental anguish or physical pain that the victim suffered prior to
death. State v. Trostle, 191 Ariz. 4, 18, 951 P.2d 869, 883
(1997). Heinousness and depravity encompass the “mental state and
attitude of the perpetrator as reflected in his words and actions.”
State v. Clark, 126 Ariz. 428, 436, 616 P.2d 888, 896 (1980).
A.
¶7 For the especially cruel element to exist, the trier of
fact must find beyond a reasonable doubt that “the victim
consciously experienced physical or mental pain prior to death.”
Trostle, 191 Ariz. at 18, 951 P.2d at 883. The victim, however,
does not need to be conscious for “each and every wound” inflicted
for cruelty to apply. See State v. Lopez (Lopez I), 163 Ariz. 108,
115, 786 P.2d 959, 966 (1990).
¶8 Sansing’s admissions and stipulations, coupled with
uncontroverted evidence presented at his sentencing hearing,
painted a chilling picture of the events leading to Trudy’s death.
Admitted and stipulated facts indisputably establish that he
5
murdered Trudy in an especially cruel manner.3 The testimony of
Sansing’s wife Kara and of the medical examiner provide further
evidence of the cruelty.
¶9 On February 24, 1998, Sansing called the Victory Assembly
Church to request a delivery of food for his family. When that
church could not assist him, he called the Living Springs Assembly
of God Church and made the same request. In response, Trudy
Calabrese delivered two food boxes to the Sansing home. Before
Trudy could leave, Sansing grabbed her from behind, threw her to
the floor, and bound her wrists and ankles. Using a wooden club,
Sansing then struck Trudy on the head with force sufficient to
break the club into two pieces. Sansing later dragged Trudy into
his bedroom, where he sexually assaulted her. He also stabbed her
in the abdomen three times with a kitchen knife. The medical
examiner determined the cause of death was multiple stab wounds and
blunt force head trauma.
¶10 It took Sansing approximately fifteen minutes to subdue
Trudy after first attacking her. Kara Sansing testified that Trudy
fought a great deal. The medical examiner observed defensive
3
Sansing signed a factual basis,
accompanying his guilty plea, which included admissions related to
his crimes. Sansing also signed and submitted a stipulation of
facts to the trial court. Additionally, Sansing stipulated to the
admission of videos and transcripts of police interviews of the
Sansing children, as well as statements attributed to the children
by Dr. Carol Ainley, who counseled the children after Sansing’s
arrest.
6
wounds on Trudy’s hands and wrists. Trudy begged the Sansing
children to call 9-1-1, but Sansing ordered them to watch
television. All four children told police that Trudy prayed for
help. Kara’s testimony corroborates her children’s statements.
She testified that before being struck Trudy pleaded, “God, please
help me . . . . If this is the way you want me to come home, then
I will come home.” Trudy’s defensive wounds, her pleas for help,
and her attempts to resist Sansing’s attack leave no doubt Trudy
suffered mental anguish as she contemplated her ultimate fate. See
State v. Carriger, 143 Ariz. 142, 160, 692 P.2d 991, 1009 (1984)
(inferring victim’s mental distress and uncertainty of fate from
pleas for mercy); State v. Summerlin, 138 Ariz. 426, 436, 675
P.2d 686, 696 (1983) (“Evidence of the victim’s bruised hand
indicat[es] that she attempted to ward off blows. . . . [and]
indicat[es] of physical and mental pain.”); State v. Lambright, 138
Ariz. 63, 75, 673 P.2d 1, 13 (1983) (finding the victim suffered
mental anguish because evidence showed that the victim was
abducted, sexually assaulted, and in fear for her life as shown by
her trembling and begging to be released) overruled on other
grounds by Hedlund v. Sheldon, 173 Ariz. 143, 840 P.2d 1008 (1992).
¶11 Furthermore, after binding and beating Trudy with a club,
Sansing dragged Trudy into his bedroom and, by his own admission,
raped her “while her arms and legs were bound.” Kara testified
that Trudy was conscious when Sansing raped her and that she heard
7
Trudy speak during the sexual assault. The evidence of the rape
independently establishes both mental and physical suffering. See
Summerlin, 138 Ariz. at 436, 675 P.2d at 696 (finding rape an
indication of physical and mental pain).
¶12 Sansing admitted that he struck Trudy on the head with a
club. The medical examiner testified that the blows to the head
were substantial, resulting in a tremendous amount of bleeding and
would have caused pain. Sansing also admitted stabbing Trudy in
the abdomen with a knife. The medical examiner observed three stab
wounds. The deepest stab wound measured three and three-quarter
inches and formed a criss-cross pattern, which the medical examiner
attributed to a twisting of the knife. This physical finding was
consistent with Kara Sansing’s testimony that she observed her
husband “grinding” the knife into Trudy. This wound struck both
the colon and interior vena cava, causing a hemorrhage within the
abdominal cavity. The other two wounds penetrated Trudy’s stomach,
large intestine, and kidney. The medical examiner testified that
the stab wounds would have caused pain and would not have resulted
in an immediate death. He explained several minutes had to have
elapsed for Trudy to lose the amount of blood that she did.
Accordingly, this evidence also separately establishes beyond a
reasonable doubt that Trudy endured physical pain. See State v.
Salazar, 173 Ariz. 399, 412, 844 P.2d 566, 579 (1992) (finding
murder especially cruel where victim suffered a cranial hemorrhage
8
and broken nose and was strangled with a phone cord).
¶13 Sansing argues, however, that this court cannot conclude
beyond a reasonable doubt that a jury would have found the murder
especially cruel because the evidence is inconclusive as to whether
Trudy was conscious during all portions of the attack. Sansing
relies on the medical examiner’s testimony that it would be
unlikely, although certainly possible, for Trudy to have regained
consciousness after being struck on the head.4 Kara Sansing
testified that Trudy fell unconscious after Sansing struck her on
the head with the club, but was conscious when Sansing later raped
her. Sansing contends that his wife’s testimony that she heard
Trudy speaking during the sexual assault provides the only evidence
that Trudy regained consciousness.
¶14 Sansing’s argument relies upon his mischaracterization of
the evidence. Sansing’s own admissions and stipulations establish
that Trudy was conscious during the attack. In addition, all four
Sansing children told the police that Trudy prayed for help.5
4
The State asked the medical examiner whether Trudy could
have regained consciousness after being struck with the club. The
medical examiner responded: “Is it possible, yes. I wasn’t there.
Is it possible? Yes, but I doubt it.” However, when the State
inquired if it was “medically unlikely or impossible” that Trudy
had a conversation with Sansing during the sexual assault the
medical examiner replied, “Not at all.”
5
The children’s recollections of the precise words Trudy
used varied only slightly. They reported that she said, “Please,
God, help me,” “God, just help me.” “Please, Lord, help me,” or
“God, help me. Lord, help me, please.”
9
Sansing’s ten-year old son told police that Sansing threatened
Trudy, “Make a move, I’ll hit you in the head.” Sansing’s son
observed Trudy struggling to escape and then Sansing striking her
on the head. Moreover, Sansing admitted twice that by the time he
returned from moving Trudy’s truck, which was after he struck Trudy
with the club, she had regained consciousness.6
¶15 In addition, Sansing stipulated that a reporter who
interviewed him would testify that Sansing told her that, after
raping and beating Trudy, he decided to kill her to end her
suffering. He told the reporter, “She was suffering. I wanted to
end it. . . . I wasn’t playing God. I just couldn’t handle seeing
the condition she was in.” Accordingly, Sansing’s own admissions
and stipulations establish Trudy consciously suffered, both
mentally and physically, during the attack.
¶16 Given these facts, we conclude beyond a reasonable doubt
that any reasonable jury would have found that Sansing murdered
Trudy in an especially cruel manner. The Ring II error that
resulted from allowing a judge to find this aggravating factor is
harmless error.
B.
6
In the factual basis for his guilty plea, Sansing
admitted that “[w]hen he returned [from moving Trudy’s truck], the
victim was still conscious, alive and tied up with cords.”
Additionally, in his stipulation of facts, Sansing stipulated that
“[w]hen he returned [from moving the truck], the victim had
regained consciousness.”
10
¶17 The terms especially heinous and depraved describe the
defendant’s state of mind. State v. Ceja, 126 Ariz. 35, 39, 612
P.2d 491, 495 (1980). The trier of fact considers five factors to
determine whether the defendant committed the murder in an
especially heinous or depraved manner: (1) relishing of the murder
by the defendant; (2) infliction of gratuitous violence; (3)
needless mutilation; (4) senselessness of the crime; and (5)
helplessness of the victim. Gretzler, 135 Ariz. at 52, 659 P.2d at
11. The trial judge found gratuitous violence, helplessness, and
senselessness.7
¶18 The helplessness factor may be present when a victim is
physically unable to resist the murder. See State v. Gulbrandson,
184 Ariz. 46, 69, 906 P.2d 579, 602 (1995) (finding defendant
rendered victim helpless by binding her). Gratuitous violence is
violence beyond that necessary to kill. State v. Rienhardt, 190
Ariz. 579, 590, 951 P.2d 454, 465 (1997). Helplessness by itself
is usually insufficient to find heinousness and depravity.
Gulbrandson, 184 Ariz. at 67, 906 P.2d at 600. However,
helplessness in conjunction with another Gretzler factor, such as
gratuitous violence, can establish the murder was especially
7
The trial judge’s finding of senselessness was related to
his finding that Sansing murdered Trudy in expectation of pecuniary
gain. Because we struck the pecuniary gain finding on Sansing’s
direct appeal, we do not consider the senselessness finding in this
harmless error review.
11
heinous and depraved. Id. Overwhelming and uncontroverted
evidence establishes beyond a reasonable doubt that Sansing
inflicted gratuitous violence upon Trudy, a helpless victim.
¶19 Sansing admitted that, as Trudy prepared to leave, he
“grabbed her from behind and threw her to the floor.” Sansing
restrained Trudy by driving one knee into her back and placing the
other knee on the floor. He separately bound both her wrists and
ankles with electrical cords. He then tied Trudy’s wrists and
ankles together. No reasonable jury would have failed to conclude
that Trudy was helpless to defend herself.
¶20 Admitted, stipulated, and uncontroverted facts also
establish that Sansing inflicted gratuitous violence upon Trudy.
Sansing’s ten-year-old son told the police that as Trudy struggled,
Sansing struck her on the head with the club. Sansing employed
enough force to break the club into two pieces and lacerate Trudy’s
scalp. Later, he dragged Trudy into his bedroom and raped her
“while her arms and legs were bound.” Sansing admitted “[a]t some
point the victim was blindfolded and gagged by having a sock placed
in her mouth.” He eventually stabbed her in the abdomen three
times. Trudy was found with ligatures around her neck.
¶21 Trudy suffered severe injuries from her attack. The
medical examiner observed swelling and bruises on Trudy’s forehead
and her left orbital region. Her face and lips were swollen and
her frenulum was severed, which the medical examiner attributed to
12
a blunt force trauma to the mouth. The medical examiner also
noticed a laceration near Trudy’s right ear. The ligatures were
affixed to Trudy’s neck with tension sufficient to leave two marks.
The medical examiner testified that the neck ligatures would have
decreased the oxygen flow to and from Trudy’s brain. Sansing
admitted stabbing Trudy in the abdomen. Kara Sansing observed
Sansing “grinding” the knife into Trudy. Collectively, the three
stab wounds caused blood and body fluid to enter the abdominal
cavity.
¶22 The rape, facial wounds, neck ligatures, gagging, blind-
folding, and grinding of the knife constitute violence beyond that
necessary to kill. See State v. Walden, 183 Ariz. 595, 619, 905
P.2d 974, 998 (1995) (finding bruises on arms and legs, neck and
chest injuries, head wound, slash wounds, and strangulation
gratuitous violence) rejected on other grounds by State v. Ives,
187 Ariz. 102, 927 P.2d 762 (1996); State v. Lopez (Lopez II), 175
Ariz. 407, 412, 857 P.2d 1261, 1266 (1993) (finding knife wounds to
face, sexual assault, gagging, and binding of eyes gratuitous
violence); State v. Harding, 137 Ariz. 278, 295, 670 P.2d 383, 400
(1983) (finding gagging one of the victims with socks constituted
gratuitous violence).
¶23 Given the overwhelming and uncontroverted evidence, we
conclude beyond a reasonable doubt that any reasonable jury would
have concluded that Sansing inflicted gratuitous violence upon
13
Trudy, who was rendered helpless. No reasonable jury could have
failed to find that Trudy’s murder was especially heinous.
III.
¶24 Because Sansing either admitted or stipulated to facts
that incontrovertibly established the especially cruel element, and
overwhelming and uncontroverted evidence established the heinous
nature of the murder, we now focus our harmless error inquiry on
whether the mitigating evidence was sufficiently substantial to
call for leniency. Ring III, 204 Ariz. at 563 ¶ 93, 65 P.3d at
944.
¶25 A defendant bears the burden of establishing mitigating
circumstances by a preponderance of the evidence. State v.
Dickens, 187 Ariz. 1, 24, 926 P.2d 468, 491 (1996). Sansing
offered impaired capacity due to drug ingestion and his age as the
only statutory mitigating circumstances. A.R.S. § 13-703.G.1,
.G.5. The trial court rejected both. We conclude beyond a
reasonable doubt that a jury would have found that Sansing failed
to establish any statutory mitigating circumstances.
¶26 Drug impairment can be a statutory mitigating
circumstance if “[t]he defendant’s capacity to appreciate the
wrongfulness of his conduct or to conform his conduct to the
requirements of the law was significantly impaired, but not so
impaired as to constitute a defense to prosecution.” A.R.S. § 13-
703.G.1 (emphasis added). Mere evidence of drug ingestion or
14
intoxication, however, is insufficient to establish statutory
mitigation.8 The defendant must also prove a causal nexus between
his drug use and the offense. Typically, in those cases in which
a defendant established statutory impairment, the defendant
presented an expert witness who testified that drugs or alcohol
affected the defendant’s capacity.9 Furthermore, “a defendant’s
claim of alcohol or drug impairment fails when there is evidence
that the defendant took steps to avoid prosecution shortly after
the murder, or when it appears that intoxication did not overwhelm
8
See, e.g., State v. Jones, 188 Ariz. 388, 400, 937 P.2d
310, 322 (1997) (holding defendant did not establish either
statutory or non-statutory impaired capacity because “no testimony
establishes, either because of his use of drugs or because he was
coming off of the drugs, that the defendant could not appreciate
the wrongfulness of his conduct or conform his conduct to the
law.”); State v. Jordan, 126 Ariz. 283, 290, 614 P.2d 825, 832
(1980) (explaining that defendant did not establish the G.1
mitigating circumstance because “[n]ot only is [the evidence]
inexact as to defendant’s level of intoxication at the time of the
crime, it is also devoid of any description of how defendant’s
intoxication affected his conduct, other than he was ‘mumbling.’”).
9
State v. Medina, 193 Ariz. 504, 516, 975 P.2d 94, 106
(1999)(statutory impaired capacity predicated on two expert
witnesses who testified that ingestion of alcohol, marijuana, and
paint fumes could have significantly impaired defendant’s ability
to conform his conduct to the law); State v. Ramirez, 178 Ariz.
116, 131, 871 P.2d 237, 2512 (1994) (defendant’s expert concluded
“with reasonable psychological certainty that the defendant’s
capacity . . . was significantly diminished”); State v. Stevens,
158 Ariz. 595, 599, 764 P.2d 724, 728 (1988) (finding of impaired
capacity based on two experts’ testimony regarding defendant’s
impaired capacity); State v. Graham, 135 Ariz. 209, 213 660 P.2d
460, 464 (1983) (same); Gretzler, 135 Ariz. at 57-58, 659 P.2d at
16-17 (concluding defendant’s mental capabilities were
significantly, but only partially, impaired based on “medical
testimony that this continuous use of drugs likely impaired
defendant’s volitional capabilities”).
15
the defendant’s ability to control his physical behavior.”
Rienhardt, 190 Ariz. at 591-92, 951 P.2d at 466-67.
¶27 No reasonable jury would have concluded that Sansing met
his burden to establish that his ability to control his behavior or
his capacity to appreciate the wrongfulness of his conduct was
significantly impaired. Sansing presented no expert testimony to
support his assertion that his use of cocaine impaired either his
capacity to control his conduct or his capacity to appreciate the
wrongfulness of his actions. He therefore failed entirely to show
any causal nexus between his alleged drug use and impairment.
¶28 Sansing also presented only minimal testimony about his
drug use on the day of the murder. Kara testified that Sansing
telephoned her while she was at work at approximately 1:30 p.m.
During this conversation, Sansing informed her that he had
purchased some crack cocaine. He told her that he had smoked some
of the crack but was saving the rest for her. Kara testified that
she could tell he had ingested the crack from the sound of his
voice. She testified that when she returned home from work several
hours later, Sansing was not “acting normal.” However, she also
testified that Sansing’s actions were thought out and that he was
not acting as if he were in a trance.
¶29 That evidence is insufficient to establish, by a
preponderance of the evidence, that Sansing’s capacity to control
his behavior was significantly impaired. First, Kara did not
16
quantify how much crack Sansing used. Cf. Rienhardt, 190 Ariz. at
592, 951 P.2d at 467 (relying, in part, on the defendant’s failure
to provide “even a rough estimate of his level of intoxication” to
find the defendant did not establish the G.1 factor). Moreover, no
reasonable jury would conclude that Kara’s testimony that Sansing
was not acting himself was sufficient to establish that his
capacity was significantly impaired. Cf. Jordan, 126 Ariz. at 290,
614 P.2d at 832 (“Not only is [the] testimony inexact as to
defendant’s level of intoxication at the time of the crime, it is
also devoid of any description of how defendant’s intoxication
affected his conduct, other than that he was ‘mumbling.’”).
¶30 Furthermore, Sansing’s deliberate actions refute his
impairment claim and establish that the drug use did not overwhelm
Sansing’s ability to control his conduct. Cf. State v. Poyson, 198
Ariz. 70, 80 ¶ 34, 7 P.3d 79, 89 (2000) (finding that the
defendant’s deliberate actions “belie[] the defendant’s claim of
impairment”); Rienhardt, 190 Ariz. at 592, 951 P.2d at 467
(considering the defendant’s conscious actions to refute
defendant’s claim of impairment). Kara testified that Sansing
planned to rob the person who delivered the food. Additionally,
Sansing contacted two different churches in his attempt to lure an
unsuspecting victim to his home.
¶31 Sansing’s impairment argument fails on yet another basis.
Sansing admitted and stipulated to facts that leave no doubt that
17
he attempted to avoid detection. After beating and hog-tying
Trudy, Sansing left and moved her truck away from the apartment.
When Pastor Becker called the Sansing home, inquiring about Trudy’s
whereabouts, Sansing gave him a false address and told him that
Trudy never arrived. Additionally, Sansing’s ten-year-old son told
the police Sansing washed blood from the club that he used to
strike Trudy. These steps, which can only be regarded as part of
an attempt to avoid detection, negate any possibility that a
reasonable jury would find that Sansing’s capacity to appreciate
the wrongfulness of his conduct was significantly impaired. See,
e.g., Poyson, 198 Ariz. at 80 ¶ 35, 7 P.3d at 89 (finding that
defendant’s attempt to conceal the crime indicates he could
appreciate the wrongfulness of his actions); State v. Zaragoza, 135
Ariz. 63, 71, 659 P.2d 22, 30 (1983) (“The fact that appellant
tried to dispose of evidence or instrumentalities suggests that he
did appreciate the wrongfulness of his conduct.”)
¶32 Given Sansing’s failure to present any evidence
sufficient to show significant impairment, this case differs from
State v. Hoskins, 204 Ariz. 572, 574 ¶ 7, 65 P.3d 953, 955 (2003),
and State v. Pandeli, 204 Ariz. 569, 572 ¶ 10, 65 P.3d 950, 953
(2003), in which we could not conclude, beyond a reasonable doubt,
that a reasonable jury would have failed to have found statutory
mental impairment. In both Pandeli and Hoskins, the defendants
18
presented expert testimony regarding their impairment.10 Hoskins,
204 Ariz. at 574 ¶ 7, 65 P.3d at 955; Pandeli, 204 Ariz. at 572 ¶
10, 65 P.3d at 953. Importantly, in both cases, the experts
testified that the defendants’ various disorders could have
contributed to their conduct. Hoskins, 204 Ariz. at 574 ¶ 7, 65
P.3d at 955; Pandeli, 204 Ariz. at 572 ¶ 10, 65 P.3d at 953. Thus,
both Pandeli and Hoskins met their burden of production. Because
the State refuted both Pandeli’s and Hoskins’ expert testimony, a
credibility issue existed. We could not conclude beyond a
reasonable doubt that a jury would have assessed Pandeli’s and
Hoskins’ expert testimony as did the judge and thus could not hold
the error harmless. Here, in contrast, Sansing failed to meet his
burden of production.
¶33 We further conclude beyond a reasonable doubt that any
reasonable jury would have rejected Sansing’s age as a statutory
mitigating circumstance. Sansing was thirty-one when he committed
these violent acts. He was a married man and a father of four. No
reasonable jury would have accorded his age any mitigating weight.
¶34 Sansing offered his impaired capacity, age, difficult
childhood, lack of education, acceptance of responsibility and
remorse, potential for rehabilitation/lack of future dangerousness,
10
Hoskins’ expert witness testified that he suffered from
Bipolar II disorder. 204 Ariz. at 574 ¶ 7, 65 P.3d at 955.
Pandeli’s expert testified that he suffered from paranoid
schizophrenia and post traumatic stress disorder. 204 Ariz. at 572
¶ 10, 65 P.3d at 953.
19
family support, and the victim’s family’s request that Sansing not
be sentenced to death as non-statutory mitigating circumstances.
Although the trial court did not find that Sansing was
significantly impaired within the meaning of A.R.S. section 13-
703.G.1, the court did find that Sansing’s impairment qualified as
a non-statutory mitigating circumstance. For the reasons discussed
above, see supra ¶¶ 28-31, we find beyond a reasonable doubt that
no reasonable jury could have accorded the impairment claim more
than minimal weight.
¶35 The court also considered Sansing’s difficult childhood,
acceptance of responsibility and remorse, lack of education, and
family support as a non-statutory mitigating circumstances. The
court rejected Sansing’s argument that his age, potential for
rehabilitation/lack of future dangerousness, and the victim’s
family’s sentencing request constituted non-statutory mitigating
circumstances.
¶36 We conclude beyond a reasonable doubt that a reasonable
jury would have found the mitigating non-statutory evidence not
sufficiently substantial to call for leniency. Sansing presented
evidence that his parents divorced when he was young, that he had
basically no relationship with his biological father, and that he
did not complete high school and achieved poor grades. A jury
might have concluded that Sansing established a difficult, although
not abusive, childhood and lack of education. Sansing, however,
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did not demonstrate any causal link between his crimes and his
childhood and lack of education. Therefore, a reasonable jury
could have accorded these two factors only minimal weight. We
assume, for purposes of this opinion, that a reasonable jury would
have accorded some weight to Sansing’s family’s love and support
and to the fact that he accepted responsibility for his crime.
¶37 Given the shocking circumstances of this crime, no
reasonable jury could have given more than minimal weight to
Sansing’s argument that he presents no future threat. Sansing
presented no evidence to support this claim and instead relied upon
the fact that he would be incarcerated. Moreover, no reasonable
jury could have accorded mitigating weight to the victim’s family’s
request that he be given a life sentence: A victim’s sentencing
request is not proper mitigation evidence and therefore a jury
could not have considered it. Lynn v. Reinstein, 205 Ariz. 186,
191 ¶ 17, 68 P.3d 412, 417 (2003) (A victim’s “statements regarding
sentencing . . . violate the Eighth Amendment, and therefore are
prohibited.”); Trostle, 191 Ariz. at 22, 951 P.2d at 887 (Victim’s
recommendation “is irrelevant to either the defendant’s character
or the circumstances of the crime and is therefore not proper
mitigation.”).
¶38 The evidence leaves no doubt that Sansing murdered Trudy
Calabrese in an especially cruel, heinous, or depraved manner. The
brutality of this murder clearly sets it apart from the norm of
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first degree murders. Collectively, the mitigating evidence is
minimal at most. We conclude beyond a reasonable doubt that any
reasonable jury would have concluded that the mitigating evidence
was not sufficiently substantial to call for leniency.
Accordingly, we hold the Ring II violation constituted harmless
error.
IV.
¶39 For the foregoing reasons, we affirm Sansing’s death
sentence.
____________________________________
Ruth V. McGregor, Vice Chief Justice
CONCURRING:
____________________________________
Rebecca White Berch, Justice
____________________________________
Michael D. Ryan, Justice
* Justice Hurwitz took no part in the consideration or decision of
this case.
J O N E S, Chief Justice, dissenting:
¶40 I respectfully dissent. In my view, the Ring II mandate
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is clear that this court, by reason of the Sixth Amendment, is not
free to affirm as harmless error a determination made solely by the
trial judge that sentencing aggravators call for the death penalty.
See Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002) (Ring
II).
¶41 The Supreme Court, in Apprendi v. New Jersey, a non-
capital case, observed that an enhancement factor capable of
increasing a defendant’s sentence beyond the maximum permitted
under the jury verdict operates as “the functional equivalent of an
element of a greater offense.” 530 U.S. at 494, n.19, 120 S. Ct.
2348 (2000). The Court held that the sentence enhancement violated
Apprendi’s right to a jury determination on whether he was guilty
of every element of the crime with which he was charged, beyond a
reasonable doubt. Thus, where the enhancement factor was
determined solely and uniquely by the trial judge, the Court held
a Sixth Amendment violation had occurred.
¶42 The principle was extended to capital cases in Ring II in
which the Supreme Court stated “[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.” Ring II, 536 U.S. at ___, 122 S. Ct. at
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2443 (citation omitted).
¶43 Ring II thus instructs that under the Sixth Amendment a
jury must determine an aggravator which exposes a defendant in a
capital case to a penalty exceeding the maximum he would receive if
punished according to the facts reflected in the jury verdict
alone.
¶44 Today the majority concludes, notwithstanding
Apprendi/Ring, that factual findings by the judge alone on capital
aggravators may nevertheless be allowed to stand on the basis that
the constitutional violation is harmless. I disagree. The right
to jury trial under the Sixth Amendment is fundamental, and because
total jury deprivation occurred in the phase of Sansing’s trial
that resulted in the capital sentence, the error cannot be deemed
harmless. Error of such magnitude undermines the very structure of
the process. In light of Ring II, I do not believe this court is
authorized to speculate on what a jury might have done. We cannot,
with propriety, substitute our judgment on factual issues so
critical to a defendant facing a possible death sentence.
¶45 Nor can I accept the premise, advanced by the State, that
the instant case is controlled or influenced by Neder v. United
States, 527 U.S. 1, 119 S. Ct. 827 (1999). Neder is a different
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case. There, the error stemmed from a jury instruction that failed
to provide direction on a prosecutorial issue in the government’s
substantive case. But evidence against Neder had been properly
introduced on the issue in question, and the jury did deliberate
and reach a verdict that necessarily included resolution of that
issue. Moreover, the issue appears to have been uncontested.
Accordingly, the Supreme Court found error, but reviewed it under
a harmless standard. The error was viewed and treated as
inconsequential because the jury heard all the evidence and its
determinations were predicated on a completed record. Conversely,
in the instant case, the jury neither heard the evidence in support
of the aggravating factors nor did the jury deliberate thereon or
make the ultimate factual determination that resulted in the
defendant’s capital sentence.
¶46 I would remand the case for jury resentencing, strictly
on the basis of the Sixth Amendment violation. See also State v.
Ring, 204 Ariz. 534, ___, ¶¶ 105-14, 65 P.3d 915, 946-48 (2003)
(Feldman, J., concurring in part, dissenting in part) (Ring III).
____________________________________
Charles E. Jones, Chief Justice
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