State v. Prince

SUPREME COURT OF ARIZONA

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-00-0328-AP
Appellee, )
) Maricopa County Superior
v. ) Court
) No. CR98-04885
WAYNE BENOIT PRINCE, )
) 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. CR 98-04885
The Honorable Michael R. McVey, Judge

DEATH SENTENCE VACATED; REMANDED FOR RESENTENCING

___________________________________________________________________

Janet A. Napolitano, Arizona Attorney General Phoenix
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 Bruce M. Ferg, Assistant Attorney General Tucson
Attorneys for State of Arizona

James J. Haas, Maricopa County Public Defender Phoenix
by James L. Edgar
and Charles R. Krull
Attorneys for Wayne Benoit Prince

__________________________________________________________________

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 Wayne Benoit Prince to death
under a procedure that violated Ring v. Arizona, 536 U.S. 584, 122

S. Ct. 2428 (2002) (Ring II). 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.

I.

¶2 On March 25, 1998, Prince and his wife Christine Parker

were involved in a heated domestic dispute. Christine’s son was

asleep during the incident, but Cassandra, her thirteen-year-old

daughter, attempted to flee the apartment to summon help. Prince

was armed with a gun and threatened to kill the children,

Christine, and then himself. Eventually, the fight moved into

Cassandra’s room, where Prince held a pillow around the gun and

shot Cassandra in the head. Prince then shot Christine. Christine

survived, but Cassandra did not.1

¶3 A jury found that Prince committed the attempted murder

of Christine and the first degree murder of Cassandra. 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), amended by 2002

Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, § 1. The judge found

1
See State v. Prince, 204 Ariz. 156, 157-58 ¶¶ 2-4, 61
P.3d 450, 451-52 (2003), for a more detailed account of the facts.

2
beyond a reasonable doubt the presence of two aggravating

circumstances: (1) Prince committed the murder in an especially

heinous, cruel, or depraved manner, A.R.S. section 13-703.F.6; and

(2) Prince was an adult at the time he committed the murder and

Cassandra was under fifteen years of age, A.R.S. section 13-

703.F.9. The judge determined that the mitigating circumstances

were not “sufficiently substantial to call for leniency” and

sentenced Prince to death for the first degree murder conviction.

Id. § 13-703.E.

¶4 We affirmed Prince’s convictions and his sentence for the

attempted murder charge on his direct appeal. State v. Prince, 204

Ariz. 156, 161 ¶ 28, 61 P.3d 450, 455 (2003). This supplemental

opinion reviews only Prince’s death sentence. Prince raises

several arguments to challenge his death sentence. However, we

address only the Ring II violation because we conclude that Prince

must be resentenced. Because Prince will be resentenced, all other

sentencing issues he asserts are moot.

II.

¶5 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

3
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.

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

consolidated all death penalty cases for 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.

A.

¶7 To establish the F.6 aggravating circumstance, the state

must prove that the manner in which a defendant killed the victim

was especially heinous, cruel, or depraved. A.R.S. § 13-703.F.6.

The state needs to prove only one of the heinous, cruel, or

depraved components for this aggravating circumstance to apply.

State v. Gretzler, 135 Ariz. 42, 51, 659 P.2d 1, 10 (1983).

Cruelty refers to the victim’s mental and physical suffering,

whereas depravity concerns the “mental state and attitude of the

perpetrator as reflected in his words and actions.” State v.

4
Clark, 126 Ariz. 428, 436, 616 P.2d 888, 896 (1980). The judge

found that Cassandra’s murder was both especially cruel and

depraved.

¶8 The trial court concluded that Cassandra contemplated her

fate before being shot.2 Mental anguish encompasses a victim’s

contemplation of her ultimate fate. State v. Jackson, 186 Ariz.

20, 29, 918 P.2d 1038, 1047 (1996). Few especially cruel findings,

however, are predicated solely on an inference that the victim

contemplated his or her fate.3 Previous cases in which we have

upheld the cruelty finding, based primarily on the victim’s

contemplation, have involved other circumstances not present here,

from which the anguish can be more readily established. In some

cases, the victims witnessed their aggressors shoot or stab a loved

2
The court found the State did not establish, beyond a
reasonable doubt, that Cassandra suffered after being shot.
3
See, e.g., State v. Castaneda, 150 Ariz. 382, 393, 724
P.2d 1, 12 (1986) (cruelty based on both physical pain and victim’s
uncertainty of fate); State v. Rossi, 146 Ariz. 359, 365, 706 P.2d
371, 377 (1985) (same); State v. Gillies, 142 Ariz. 564, 569, 691
P.2d 655, 660 (1984) (circumstances establishing cruelty include
victim being raped during her eight-hour captivity, victim’s pleas
for mercy, victim being pushed from a forty-foot embankment and
being beaten to death with a rock); State v. Libberton, 141 Ariz.
132, 139-40, 685 P.2d 1284, 1291-92 (1984) (cruelty based on both
contemplation of fate and physical pain); State v. Lambright, 138
Ariz. 63, 75, 673 P.2d 1, 13 (1983) (cruelty based on victim’s fear
for her life and her sexual assault, as well as physical pain)
overruled on other grounds by Hedlund v. Sheldon, 173 Ariz. 143,
840 P.2d 1008 (1992).

5
one before they were killed or the victims pled for mercy.4 Other

cases have involved a longer, more definite period of captivity.5

In this case, no witness could quantify the length of time between

the point at which Cassandra first experienced mental anguish and

the moment that Prince shot Cassandra. The length of time during

which a victim contemplates her fate affects whether the victim’s

mental anguish is sufficient to bring a murder within that group of

murders that is especially cruel. See State v. Soto-Fong, 187

Ariz. 186, 204, 928 P.2d 610, 628 (1996) (reversing cruelty finding

because victims were killed in rapid succession without any

appreciable time to contemplate their fate). Based on this record,

we cannot conclude, beyond a reasonable doubt, that a jury hearing

the same evidence as did the judge would have interpreted the

evidence as he did and found Prince murdered Cassandra in an

especially cruel manner.

4
State v. Herrera, 176 Ariz. 21, 34, 859 P.2d 131, 144
(1993) (defendant admitted that before he shot the victim the
victim placed his hands in front of his face in a pleading position
and begged for mercy); State v. Lavers, 168 Ariz. 376, 392, 814
P.2d 333, 349 (1991) (finding that victim contemplated fate based
on victim’s statements as well as the victim witnessing the
defendant stab her mother); State v. McCall, 139 Ariz. 147, 161,
677 P.2d 920, 934 (1983) (mental anguish for some of the victims
based upon loved ones being shot within their hearing and then
waiting their turn).
5
State v. Trostle, 191 Ariz. 4, 18, 951 P.2d 869, 883
(1997) (victim pled for mercy during thirty minute drive to desert,
where victim was murdered); Jackson, 186 Ariz. at 29, 918 P.2d at
1047 (victim begged captors not to hurt her during twenty-five to
thirty-minute drive to remote desert area); State v. Miles, 186
Ariz. 10, 17, 918 P.2d 1028, 1035 (1996) (same).

6
¶9 Depravity describes 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 depraved manner: (1)

relishing 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 only two Gretzler factors

present: senselessness and helplessness. The judge found no

evidence to suggest Prince relished the murder, inflicted

gratuitous violence, or mutilated Cassandra.

¶10 “A murder is senseless when it is unnecessary for the

defendant to achieve his objective.” State v. Hyde, 186 Ariz. 252,

281, 921 P.2d 655, 684 (1996). A child who is physically unable to

resist the murder can be considered helpless. See State v. Roscoe,

145 Ariz. 212, 226, 700 P.2d 1312, 1326 (1984) (Roscoe I). The

senselessness and helplessness factors tend to reveal less about a

defendant’s state of mind, however, than do the relishing,

gratuitous violence, and mutilation factors. Hyde, 186 Ariz. at

281, 921 P.2d at 684. Therefore, senselessness and helplessness,

without the presence of other factors, are usually insufficient to

establish depravity beyond a reasonable doubt. See Trostle, 191

Ariz. at 18, 951 P.2d at 883; State v. Gulbrandson, 184 Ariz. 46,

67, 906 P.2d 579, 600 (1995). This court, however, has upheld

7
depravity findings, predicated only on senselessness and

helplessness, when a defendant murders a child with whom he

maintains a parent or caretaker relationship. State v. Milke, 177

Ariz. 118, 126, 865 P.2d 779, 787 (1993); State v. Styers, 177

Ariz. 104, 116, 865 P.2d 765, 777 (1993); State v. Lopez, 174 Ariz.

131, 144, 847 P.2d 1078, 1091 (1992).

¶11 The trial judge concluded that murdering Cassandra was

senseless because it was unnecessary to achieve Prince’s goal of

exacting revenge on Christine. The judge found that thirteen-year-

old Cassandra was unable to defend herself against Prince, who was

armed with a gun. The trial judge acknowledged that senselessness

and helplessness are generally insufficient to establish depravity

beyond a reasonable doubt. The judge concluded, however, that

senselessness and helplessness were sufficient in this case because

Prince maintained a parent-child relationship with Cassandra.

¶12 When Prince and Christine first met in May 1996,

Cassandra was living in Oregon with her grandparents. Cassandra

did not return to Arizona until Prince and Christine had been

dating for several months. Prince and Christine had been married

approximately one year at the time of the murder. The record

includes sparse evidence of the relationship between Prince and

Cassandra. A jury could find, as did the judge, that Prince had

established and maintained a parent-like status with Cassandra, but

the evidence before us of their relationship does not mandate that

8
finding. Therefore, we cannot conclude beyond a reasonable doubt

that a jury would have assessed the evidence as did the judge and

found that Prince’s state of mind was especially depraved.

B.

¶13 To establish the F.9 aggravating circumstance, the state

must prove that “[t]he defendant was an adult at the time the

offense was committed or was tried as an adult and the murdered

person was under fifteen years of age.” A.R.S. § 13-703.F.9.

Christine testified that Cassandra was born on May 16, 1984, and

was thirteen at the time of the murder. Prince conceded that the

state established that Cassandra was under the age of fifteen.

Prince testified that he was born on December 27, 1971. Prince was

twenty-six years old at the time of the crime and was tried as an

adult. Given the uncontroverted evidence, the Ring II violation

with respect to the F.9 factor was harmless.

IV.

¶14 The judge found that Prince failed to prove, by a

preponderance of the evidence, any statutory mitigating

circumstances. A.R.S. § 13-703.G. The judge found the presence of

five non-statutory mitigating circumstances: (1) Prince was under

unusual and substantial stress at the time of the murder; (2)

development of religious convictions; (3) genuine remorse; (4) good

behavior while incarcerated; and (5) family support. The judge

concluded, however, that these circumstances were not “sufficiently

9
substantial to call for leniency.” A.R.S. § 13-703.E. The defense

presented an expert who testified that Prince suffered from

Adjustment Disorder with mixed disturbance of emotions and conduct

and borderline intellectual functioning. With respect to the G.1

statutory mitigating factor, the expert testified that Prince’s

ability to conform his conduct on the night of the murder was

significantly impaired. A.R.S. § 13-703.G.1. Although the trial

judge found that testimony flawed, we cannot say, beyond a

reasonable doubt, that a jury hearing the same evidence as did the

judge would have assessed the defense expert’s testimony similarly

and would have failed to find mental impairment, a statutory

mitigating circumstance. A different finding of mitigating

circumstances could affect a fact-finder’s determination whether

the mitigating circumstances are “sufficiently substantial to call

for leniency.” A.R.S. § 13-703.E.

V.

¶15 For the foregoing reasons, we cannot conclude that the

Ring II error was harmless in this case. Accordingly, we vacate

Prince’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

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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:

¶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

11
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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