SUPREME COURT OF ARIZONA
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-97-0428-AP
Appellee, )
) Maricopa County Superior
v. ) Court
) No. CR-95-01754(A)
TIMOTHY STUART RING, )
) 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
The Honorable Gregory H. Martin, Judge
REMANDED FOR RESENTENCING
Janet Napolitano, Former Attorney General Phoenix
Terry Goddard, Attorney General
by Kent E. Cattani, Chief Counsel,
Capital Litigation Section
and Robert L. Ellman
and James P. Beene
and John P. Todd
and Bruce M. Ferg Tucson
Assistant Attorneys General
Attorneys for the State of Arizona
Osborn Maledon, P.A. Phoenix
by John A. Stookey
and Larry A. Hammond
and Daniel L. Kaplan
Attorneys for Timothy Stuart Ring
M c G R E G O R, Vice Chief Justice
¶1 The only issue before us is whether reversible error
occurred when a trial judge sentenced Timothy Stuart Ring to death
under a procedure that violated the right to a jury trial under the
Sixth Amendment to the United States Constitution. See Ring v.
Arizona, 536 U.S. 584, 609 122 S. Ct. 2428, 2443 (2002) (Ring II).
We have 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 conclude
that the Sixth Amendment violation constituted prejudicial error.
I.
¶2 In Ring II, the United States Supreme Court held that
Arizona’s former capital sentencing scheme violated the Sixth
Amendment. 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 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. In State v. Ring, 204 Ariz. 534, __ ¶ 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sentence imposed under Arizona’s superseded capital sentencing
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statutes for harmless error.
II.
¶4 On November 28, 1994, Ring, aided by two others, killed
John Magoch, a Wells Fargo armored car driver, in the course of
executing a planned armored car robbery. Ring I, 200 Ariz. at 272
¶ 12, 25 P.3d at 1144.* A jury found, beyond a reasonable doubt,
that Ring committed first degree felony murder, conspiracy to
commit armed robbery, armed robbery, burglary and theft. Id. at
270 ¶ 1, 25 P.3d at 1142. After conducting the
aggravation/mitigation hearing, the judge found that the evidence
supported two aggravating circumstances: that Ring murdered Magoch
with the expectation of pecuniary gain, A.R.S. section 13-703.F.5
(Supp. 1996); and that the murder was committed in an especially
cruel, heinous or depraved manner, A.R.S. section 13-703.F.6.
¶5 The judge concluded that Ring’s minimal criminal record
was a non-statutory mitigating circumstance. He rejected two other
non-statutory mitigating circumstances: that one of the co-
conspirators, James Greenham, was the shooter and that Ring was not
at the crime scene. The judge also determined that Ring did not
establish any statutory mitigating circumstance by a preponderance
of the evidence.
¶6 On direct appeal, this court affirmed Ring’s first degree
*
For a thorough description of the facts, see Ring I, 200
Ariz. at 267-73 ¶¶ 2-13, at 1139-45.
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murder conviction and death sentence, but held the evidence did not
support the cruel, heinous or depraved finding. Ring I, 200 Ariz.
at 282 ¶ 56, 284 ¶ 65, 25 P.3d at 1154, 1156. We must now review
Ring’s death sentence for harmless error.
¶7 We will find constitutional error harmless if we
conclude, beyond a reasonable doubt, that the error did not
contribute to or affect the sentencing outcome. Ring III, 204
Ariz. at ___, ¶¶ 103-04, 65 P.3d at 946. If we conclude that
reasonable doubt exists, however, then the error is prejudicial and
the case must be remanded for a new sentencing hearing under
Arizona’s amended capital sentencing statutes. Id. at ___, ¶ 102,
65 P.3d at 946.
¶8 The pecuniary gain aggravating circumstance exists when
“[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. 2002). To establish this
aggravating circumstance, the State must prove, beyond a reasonable
doubt, that “the expectation of 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). The
State can satisfy its burden through direct or strong
circumstantial evidence. State v. Cañez, 202 Ariz. 133, 159 ¶ 91,
42 P.3d 564, 590 (2002).
¶9 As the State asserts, the evidence that Ring committed
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this murder for pecuniary gain is strong. See Ring I, 200 Ariz. at
282 ¶ 57, 25 P.3d at 1154 (“[K]illing Magoch was for no other
comprehensible reason than to facilitate the robbery.”). The trial
judge’s pecuniary gain finding constitutes harmless error, however,
only if “no reasonable jury could find that the State failed to
prove a pecuniary [motive] beyond a reasonable doubt” at the
aggravation/mitigation hearing. State v. Finch, ___ Ariz. ___, ___
¶ 8, ___ P.3d ___, ___ (2003).
¶10 Ring’s co-conspirator Greenham, who did not testify
during the guilt phase of Ring’s trial, did testify at the
aggravation/mitigation hearing pursuant to a plea agreement.
Greenham’s testimony placed Ring at the scene of the murder and
identified him as the shooter. Greenham stated that he, Ring and
William Ferguson devised a plan to rob an armored car at the
Arrowhead Mall in Phoenix. He further testified that Ring assumed
“the role as leader because he laid out all the tactics” and that
all the co-conspirators were armed during the commission of the
robbery. According to Greenham, Ring carried a pistol and a
twenty-two rifle, modified with a scope and homemade silencer.
After Magoch was killed, Greenham, followed by Ring and Ferguson in
separate vehicles, drove the armored car to a parking lot, where
the three cohorts unloaded the money and piled it into the back of
Ring’s pickup truck.
¶11 On cross-examination, the defense attacked Greenham’s
5
testimony on multiple fronts. Greenham had made prior statements
to the police identifying himself as the shooter. Greenham also
admitted that his testimony was “pay back” against Ring because
Ring threatened his life and interfered with Greenham’s
relationship with his ex-wife. The defense also questioned
Greenham about a prior statement he allegedly made claiming that
the police concocted the story disclosed through his testimony.
¶12 Greenham’s testimony was essential to the pecuniary gain
finding. After evaluating Greenham’s credibility and determining
which portions of his testimony were true, the trial court
concluded:
The evidence clearly shows beyond a reasonable doubt that
Mr. Magoch was killed in order to obtain the
approximately one-half million dollars in cash in the
armored car. Taking the cash from the armored car was
the motive and reason for Mr. Magoch’s murder and not
just the result.
Ring I, 200 Ariz. at 282 ¶ 57, 25 P.3d at 1154 (quoting Special
Verdict at 3).
¶13 Because the trial judge’s pecuniary gain factor rested
upon his evaluation of Greenham’s credibility, we cannot say beyond
a reasonable doubt that a reasonable jury considering Greenham’s
testimony would draw the same conclusions and make the same
determinations as did the trial judge. A reasonable jury could
question Greenham’s veracity and conclude that the State had not
met its burden of establishing this aggravating factor beyond a
reasonable doubt. We therefore conclude that finding the pecuniary
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gain factor was not harmless error.
¶14 Arizona law requires the State to prove at least one
aggravating circumstance in order for it to obtain a death
sentence. A.R.S. § 13-703.E. Because the failure to submit the
only aggravating circumstance alleged against Ring to the jury
constitutes prejudicial error, we need not consider Ring’s
mitigation arguments.
III.
¶15 For the foregoing reasons, we vacate Ring’s death
sentence and remand for resentencing under A.R.S. sections 13-703
and 13-703.01 (Supp. 2002).
____________________________________
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, C.J., concurring in part, dissenting in part:
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¶16 I concur in the result, but 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
for resentencing, simply on the basis of the Sixth Amendment
violation. See State v. Ring, ____ Ariz. ____, ____ ¶¶ 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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