SUPREME COURT OF ARIZONA
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-01-0100-AP
Appellee, )
) Pima County
v. ) Superior Court
) No. CR-64663
KAJORNSAK PRASERTPHONG, )
)
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
The Honorable Michael Brown, Judge (Retired)
REMANDED FOR RESENTENCING
Janet A. Napolitano, Former Attorney General Phoenix
Terry Goddard, Attorney General
By: Kent E. Cattani, Chief Counsel,
Capital Litigation Section
Robert L. Ellman, Assistant Attorney General
James P. Beene, Assistant Attorney General
John P. Todd, Assistant Attorney General
Monica B. Klapper, Assistant Attorney General Phoenix
and Bruce M. Ferg, Assistant Attorney General Tucson
Attorneys for Appellee
Susan A. Kettlewell, Pima County Public Defender Tucson
By: Rebecca A. McLean, Assistant Public Defender,
Lori J. Lefferts, Assistant Public Defender
Attorneys for Appellant
R Y A N, Justice
¶1 In September 2000, a jury convicted Kajornsak
Prasertphong of three counts of first degree felony murder and
three counts of armed robbery. Following the jury’s verdict, 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 two aggravating
circumstances for each murder: 1) Prasertphong committed the
murders with the expectation of pecuniary gain, Arizona Revised
Statutes (“A.R.S.”) section 13-703(F)(5) (Supp. 2002); and 2)
Prasertphong committed multiple homicides under A.R.S. section 13-
703(F)(8). The court found no mitigating factors “sufficiently
substantial to call for leniency.” A.R.S. § 13-703(E).
Accordingly, the trial judge sentenced Prasertphong to death for
two of the murders.
¶2 This court recently affirmed Prasertphong’s convictions
on direct review. See State v. Prasertphong, ___ Ariz. ___, ¶ 98,
___ P.3d ___ (2003). However, while Prasertphong’s direct appeal
was pending, the United States Supreme Court in Ring v. Arizona,
536 U.S. 584, 609, 122 S. Ct. 2428, 2443 (2002) (Ring II), held
that Arizona’s capital sentencing scheme violated a defendant’s
Sixth Amendment right to a jury trial.1
¶3 In holding that Arizona’s capital sentencing scheme
violates the right to a jury trial guaranteed by the Sixth
Amendment to the United States Constitution, the Supreme Court
declared that “[c]apital defendants, no less than non-capital
defendants . . . are entitled to a jury determination of any fact
1
The legislature amended the statute requiring judge-
sentencing in capital cases. See 2002 Ariz. Sess. Laws, 5th Spec.
Sess. ch. 1, § 1.
2
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.
¶4 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 to determine whether Ring II
requires this court to reverse or vacate the defendants’ death
sentences. State v. Ring, 204 Ariz. 534, 544, ¶ 5, 65 P.3d 915,
925 (2003) (Ring III). In Ring III, we concluded that we will
examine a death sentence imposed under Arizona’s superseded capital
sentencing statutes for harmless error. Id. at 552, 555, ¶¶ 44,
53, 65 P.3d at 933, 936.
¶5 As a result, we ordered the parties in this case to
address the death penalty sentencing issues in supplemental briefs.
State v. Ring, Order No. CR-97-0428-AP (July 17, 2002). Those
briefs have been filed and we now examine whether the death
penalties can stand in light of Ring II. Based on our review of
the record, we cannot conclude that the Ring II violation
constituted harmless error.
¶6 A detailed account of the facts of this case is set out
in Prasertphong, ___ Ariz. at ___, ¶¶ 2 - 15, ___ P.3d at___. For
purposes of this supplemental opinion, however, the essential facts
3
established that Prasertphong and his co-defendant, Christopher
Huerstel, went to a Pizza Hut in Tucson. After eating, the two
murdered the three employees, and took a bank bag and the debit
card machine.
¶7 Because property was taken by force, the trial judge
found that the murders were committed in expectation of pecuniary
gain. See A.R.S. § 13-703(F)(5). We thus turn to whether harmless
error occurred with respect to this aggravating factor.
¶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). To establish the pecuniary gain aggravating
circumstance, the state must prove that “the expectation of
pecuniary gain [wa]s 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) (citing State v. Spencer, 176 Ariz.
36, 43, 859 P.2d 146, 153 (1993)). In other words, there must be
proof “that the murder would not have occurred but for the
defendant’s pecuniary motive.” Ring III, 204 Ariz. at 560, ¶ 75,
65 P.3d at 941 (citing State v. Harding, 137 Ariz. 278, 296-97, 670
P.2d 383, 401-02 (1983) (Gordon, V.C.J., specially concurring)).
¶9 Proving a taking in a robbery or the existence of some
economic motive at some point during the events surrounding a
murder does not necessarily prove the motivation for a murder.
4
State v. Medina, 193 Ariz. 504, 513, 975 P.2d 94, 103 (1999);
State v. Greenway, 170 Ariz. 155, 164, 823 P.2d 22, 31 (1991).
Rather, it is “a highly fact-intensive inquiry” requiring the state
to prove a “connection between the murder and motive through direct
or strong circumstantial evidence.” Ring III, 204 Ariz. at 560, ¶
76, 65 P.3d at 941 (citing State v. Cañez, 202 Ariz. 133, 159, ¶
94, 42 P.3d 564, 590 (2002)). A murder committed 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 (2001) (citing State v. McKinney, 185 Ariz. 567, 584, 917 P.2d
1214, 1231 (1996)), vacated on other grounds, 536 U.S. 954 (2002).
This court has also held that pecuniary gain is an aggravating
factor if a “murder was committed to hinder detection” of a theft
or robbery. State v. Lee, 185 Ariz. 549, 558, 917 P.2d 692, 701
(1996).
¶10 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.
¶11 The trial judge determined that the murders were
motivated by pecuniary gain because they were committed “to
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facilitate the robbery of the Pizza Hut,” a robbery that had
previously been discussed and planned by Prasertphong and Huerstel.
The court further found that “even if [Prasertphong’s] statement
that [he] personally abandoned the plan [wa]s believed,”
Prasertphong willingly participated in the killings, the robbery,
and the escape from and cover up of those crimes. Thus, the court
concluded that Prasertphong and Huerstel committed the murders for
pecuniary gain.
¶12 However, other testimony and circumstantial evidence
could support a finding that Prasertphong was unaware that Huerstel
planned to kill the Pizza Hut employees, and that Prasertphong
acted out of shock or panic after Huerstel had committed the
murders. Although Prasertphong admitted that he tried to “snap”
the neck of one of the employees, he also told the police that he
could not go through with killing the employee. Additionally, some
testimony and the ballistics evidence suggest that Huerstel was the
only shooter.
¶13 Prasertphong also contends that his only participation in
the crimes was as a “late joiner” in effort to cover up the fact
that he was present at the Pizza Hut when the murders were
committed. Although Prasertphong took the bank bag and the debit
card machine, neither he nor Huerstel touched the cash register or
the more than $340 in one victim’s pockets. Conceivably then, as
Prasertphong claims, a jury could reasonably have concluded that
6
the robbery that occurred here constituted “a separate event for
the purpose of an [(F)(5)] determination.” Sansing, 200 Ariz. at
353-54, ¶ 14, 26 P.3d at 1124-25. A jury could also find that this
was a “robbery gone bad” and thus not find the pecuniary gain
aggravating factor satisfied.
¶14 Therefore, in light of the conflicting evidence, we
cannot say, beyond a reasonable doubt, that a jury hearing the same
evidence as the trial judge would have interpreted the
circumstantial evidence or assessed the witnesses’ credibility as
did the trial judge. Consequently, we conclude that the Ring II
error as to the (F)(5) aggravating circumstance was not harmless.
¶15 Because three people were murdered, the trial court also
found that the factor set forth in A.R.S. section 13-703(F)(8) was
proven. This aggravating factor exists if “[t]he defendant has
been convicted of one or more other homicides . . . which were
committed during the commission of the offense.” Id. 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)).
7
¶16 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.
¶17 Overwhelming evidence established that the murders
occurred during a short time, at the same place, and were part of
a continuous course of criminal conduct. Nevertheless,
Prasertphong argues that the (F)(8) aggravator does not apply to
him because he “was not the killer, and did not share in Huerstel’s
motivation to kill the victims.”
¶18 As mentioned earlier, the jury convicted Prasertphong of
three counts of felony murder based on armed robbery and this court
has affirmed those convictions. The armed robbery convictions
satisfy the element of intent for the murders. A.R.S. § 13-
1105(A)(2); State v. Akins, 94 Ariz. 263, 266, 383 P.2d 180, 182
(1963). Thus, the jury verdicts established that Prasertphong
possessed the same motivation for killing the victims as did
Huerstel. Moreover, “A.R.S. § 13-703(F)(8) does not require any
mental state.” State v. Dickens, 187 Ariz. 1, 25, 926 P.2d 468,
492 (1996). Because the armed robberies and murders were committed
during a continuous course of criminal conduct, they were
temporally, spatially, and motivationally related.
¶19 Based on the evidence offered at trial, any Ring II error
as to the (F)(8) aggravator was harmless beyond a reasonable doubt
8
because we believe that no rational jury could have found
differently than the trial judge did.
¶20 Our harmless error inquiry does not end with the
aggravating circumstances. Ring III, 204 Ariz. at 563, ¶ 93, 65 P.
3d at 944. We must also consider whether reversible error occurred
with respect to the mitigating circumstances. Id. The trial judge
found Prasertphong’s age, 19 at the time of the murders, as a
statutory mitigating factor. See A.R.S. § 13-703(G)(5). The trial
court also considered as non-statutory mitigating factors
Prasertphong’s lack of a prior criminal record, the emotional abuse
he suffered as a young boy, his supportive family, his good
employment record, his good courtroom demeanor and behavior in
jail, and his assistance in saving the life of an inmate who
attempted to commit suicide. The court rejected Prasertphong’s
claims that he was a minor participant in the crimes, that he could
not foresee that his conduct would cause death, that there was
residual doubt about his participation, that he cooperated with
police, and that he felt remorse for his crimes. Based on those
findings, the court found “beyond a reasonable doubt that there are
no mitigating circumstances sufficiently substantial to call for
leniency.”
¶21 Prasertphong argues that a reasonable jury hearing the
identical evidence could reach a different conclusion. He contends
that the evidence supports his assertion that he was a minor
9
participant, that he was not the shooter, and that he cooperated
with the police. He points to physical evidence indicating that a
bullet was fired from the restroom area, suggesting that Huerstel
was the lone shooter. And the detectives corroborated
Prasertphong’s cooperation with the investigation. He also claims
that a jury could reasonably view the evidence of his troubled
childhood, his behavior in jail, and his family support differently
than did the trial judge.
¶22 The State argues that “[t]he mitigation in this case
pales in comparison to the extreme aggravation inherent in the
cold-blooded murder of 3 innocent victims for the sole purpose of
stealing money.” Nevertheless, the State concedes that under Ring
III, this case must be remanded for resentencing.2 We accept the
State’s concession because we conclude that a reasonable jury could
have viewed Prasertphong’s mitigation evidence differently than did
the trial judge and find one or more mitigating factors proven by
a preponderance of the evidence.
¶23 As we have held previously, “[a] different finding of
2
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.
10
mitigating circumstances could affect the determination whether the
mitigating circumstances are ‘sufficiently substantial to call for
leniency.’” State v. Pandeli, 204 Ariz. 569, 572, ¶ 10, 65 P.3d
950, 953 (2003) (quoting A.R.S. § 13-703(E)). Therefore, we hold
that the Ring II violation with respect to the mitigating evidence
was not harmless.
¶24 Because we cannot conclude that the sentencing procedure
in this case resulted in harmless error, we vacate Prasertphong’s
death 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:
¶25 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,
11
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
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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