State v. Jones

SUPREME COURT OF ARIZONA

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-99-0536-AP
Appellee,)
) Maricopa County
v. ) Superior Court
) No. CR-96-04691
ANTOIN JONES, )
)
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 Maricopa County
No. CR-96-04691
The Honorable Stephen A. Gerst, 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
James P. Beene, Assistant Attorney General
John P. Todd, Assistant Attorney General
Bruce M. Ferg, Assistant Attorney General Tucson
Attorneys for Appellee

James J. Haas, Maricopa County Public Defender Phoenix
By: Stephen R. Collins, Deputy Public Defender
Edward F. McGee, Deputy Public Defender
Attorneys for Appellant Antoin Jones

R Y A N, Justice

¶1 The sole issue before us is whether reversible error

occurred when a trial judge sentenced Antoin Jones to death under

a procedure found unconstitutional in Ring v. Arizona, 536 U.S. 584

(2002) (Ring II). Based on our review of the record, we cannot
conclude that the error in this case was harmless. Therefore, we

remand for resentencing.

I.

A.

¶2 On December 16, 1997, a jury found Antoin Jones guilty of

first degree premeditated murder, kidnapping of a minor under the

age of fifteen, and two counts of sexual assault of a minor under

the age of fifteen. State v. Jones, 203 Ariz. 1, 3, ¶ 1, 49 P.3d

273, 275 (2002). The victim in this case, a twelve-year-old girl,

disappeared from a park in Glendale, Arizona on April 16, 1996.

Her body was found the next day in a dumpster behind an abandoned

bar in Phoenix. The victim’s hands were bound behind her back with

a sock, and another sock was tied around her neck. She was covered

in blood and clothed only in a t-shirt and training bra, which had

been pushed up over her breasts.

¶3 The autopsy disclosed that the victim died as a result of

blunt force trauma to the head. Her severely shattered skull had

at least nine separate injuries consistent with the curvature of a

socket wrench. She also had two stab wounds in her neck and

abrasions and scrapes on her face and chest. The victim had

additional injuries indicating she had been raped and sodomized.

¶4 Following the jury’s verdict, the trial judge conducted

a sentencing hearing on the first degree murder conviction under

former Arizona Revised Statutes (“A.R.S.”) section 13-703(B)(Supp.

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2002), amended by 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1 §

1. He found two aggravating circumstances: (1) the crime was

committed in an especially heinous, cruel, or depraved manner, and

(2) the age of the victim. See A.R.S. § 13-703(F)(6) and (9). The

trial judge found no statutory mitigating circumstances and,

although he found some non-statutory mitigating circumstances, he

concluded that the mitigating factors were not sufficiently

substantial to call for leniency. The trial judge consequently

sentenced Jones to death on the first degree murder conviction.1

B.

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

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

trial guaranteed by the Sixth Amendment to the United States

Constitution. 536 U.S. at 609. On mandatory appeal, we affirmed

Jones’ convictions and all sentences except the sentence of death.

Jones, 203 Ariz. at 13, ¶ 48, 49 P.3d at 285. We deferred all

discussion of death penalty sentencing issues in this case pending

resolution of the Ring II issue. Id. We also noted that we had

consolidated all death penalty cases in which this court had not

yet issued a direct appeal mandate, including Jones’, to determine

whether Ring II required this court to reverse or vacate the

1
Jones received the following sentences for his other
crimes: twenty-four years for the kidnapping conviction, to be
served consecutively to the death sentence; two concurrent twenty-
seven year sentences for the sexual assault convictions, to be
served consecutively to the kidnapping sentence.

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defendants’ death sentences. Id.

¶6 In State v. Ring, 204 Ariz. 534, ___, ¶ 53, 65 P.3d 915,

936 (2003) (Ring III), we concluded that we will examine a death

sentence imposed under Arizona’s superseded capital sentencing

statute for harmless error. Thus, this supplemental opinion only

addresses whether any Ring II error in this case was harmless

beyond a reasonable doubt.

II.

A. Aggravating Circumstances

1. A.R.S. § 13-703(F)(9): Age of the Victim

¶7 One of the aggravating circumstances found by the trial

judge was that the “defendant was an adult at the time the offense

was committed . . . and the murdered person was under fifteen years

of age.” A.R.S. § 13-703(F)(9). Jones did not challenge this

finding on direct appeal.

¶8 In Ring III we held that certain aggravating factors can

be implicit in a jury’s verdict. 204 Ariz. at ___, ¶ 74, 65 P.3d

at 940. Specifically, we held it is harmless error for the trial

judge to find the F(9) aggravator when “the jury convicts the

defendant of first degree murder and another crime committed

against the murder victim in which the age of the victim

constitutes a substantive element of the crime.” Id. at ___, ¶ 83,

65 P.3d at 942.

¶9 In addition to convicting Jones of first degree murder,

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the jury also convicted him of one count of kidnapping of a minor

under the age of fifteen, see A.R.S. § 13-1304(B) (1994), and two

counts of sexual assault of a minor under the age of fifteen. See

A.R.S. § 13-1406(D) (Supp. 1997). The victim’s age constituted a

substantive element of each of these crimes. Thus, a jury “already

found the necessary fact, age of the victim, through criminal

proceedings compliant with Sixth Amendment safeguards.” Ring III,

204 Ariz. at ___, ¶ 85, 63 P.3d at 942. Accordingly, the record

establishes beyond any reasonable doubt that the aggravating

circumstance of the age of the victim was proved. No reasonable

jury could have found otherwise.

2. A.R.S. § 13-703(F)(6): Especially Heinous, Cruel or
Depraved

¶10 The trial judge also found that the State proved beyond

a reasonable doubt that the “defendant committed the offense in an

especially heinous, cruel, or depraved manner.” A.R.S. § 13-

703(F)(6). The F(6) aggravator must be reviewed for harmless

error. See Ring III, 204 Ariz. at ___, ¶¶ 44-53, 65 P.3d at 933-

36. To determine if it was harmless error for a trial judge,

instead of a jury, to find an F(6) aggravator, we must find beyond

a reasonable doubt that no reasonable jury could have come to a

different conclusion than the trial judge. State v. Tucker, ___

Ariz. ___, ___, ¶ 55, 68 P.3d 110, 120 (2003) (citing State v.

Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993)).

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¶11 Jones argues that this aggravating circumstance had not

been proven beyond a reasonable doubt. He contends that neither

the medical evidence nor the testimony of his girlfriend, Vanessa

Odom, was sufficient to establish this circumstance. Because

A.R.S. section 13-703(F)(6) “is stated in the disjunctive, a

finding of either cruelty or heinousness/depravity will suffice to

establish this factor,” but all three may be found. State v.

Djerf, 191 Ariz. 583, 595, ¶ 44, 959 P.2d 1274, 1286 (1998); see

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

In this case, the court found both cruelty and heinousness or

depravity.

a. Cruelty

¶12 Cruelty refers to the mental and physical suffering of

the victim. State v. Clark, 126 Ariz. 428, 436, 616 P.2d 888, 896

(1980). To find that a victim suffered mental anguish or physical

pain, the victim must have been conscious during at least some

portion of the crime and the defendant either must have known or

should have known that the victim would suffer. State v. Trostle,

191 Ariz. 4, 18, 951 P.2d 869, 883 (1997).

¶13 In deciding whether the murder was cruel, the trial judge

principally relied on the testimony of Jones’ girlfriend regarding

her conversation with Jones shortly after the murder took place.

At trial and on direct appeal, Jones challenged the credibility of

Vanessa’s testimony. Vanessa told the police shortly after the

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crime that she knew nothing about it, but later she said she had

lied and testified that Jones had told her all of the details of

his crime. We cannot say beyond a reasonable doubt that a

reasonable jury, in determining whether the murder was cruel, would

have accorded the girlfriend’s testimony the same weight as did the

trial judge.

¶14 Nevertheless, the independent, and largely undisputed,

physical evidence in this case showed that the victim was abducted,

bound, raped, sodomized, beaten over the head at least nine times,

and stabbed twice in the neck. However, a forensic pathologist

from the medical examiner’s office was unable to fix the precise

time the victim lost consciousness, conceding it was possible she

had been rendered unconscious at the beginning of the assault.

Unlike other cases in which we have held that binding of the

victim’s hands indicated she was conscious for some portion of the

crime, there was no additional evidence of a struggle in this case.

Cf. Tucker, ___ Ariz. at ___, ¶ 61, 68 P.3d at 121-22 (ligature

marks around the victim’s wrists indicated she had been handcuffed;

disarray of room and blood spatter indicated there was a prolonged

struggle); Bible, 175 Ariz. at 604-05, 858 P.2d at 1207-08 (nine-

year-old victim’s hands “were bound tightly, leaving indentations

on her wrists observable more than three weeks later”). Even

though the physical evidence that the victim suffered is quite

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

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would have found the murder to be especially cruel. A jury could

have found that the victim lost consciousness at the beginning of

the assault and thus did not suffer physical pain or mental anguish

sufficient to support a finding that the murder was cruel.

b. Especially Heinous or Depraved

¶15 Heinousness and depravity refer to the “mental state and

attitude of the perpetrator as reflected in his words and actions.”

Clark, 126 Ariz. at 436, 616 P.2d at 896. We consider five factors

to determine whether a killing was “especially heinous or

depraved”: (1) whether the defendant apparently relished the

murder; (2) whether the defendant inflicted gratuitous violence on

the victim; (3) whether the defendant needlessly mutilated the

victim; (4) the senselessness of the crime; and (5) the

helplessness of the victim. Gretzler, 135 Ariz. at 52, 659 P.2d at

11. In addition, we have considered whether witness elimination

motivated the killing. State v. Ross, 180 Ariz. 598, 605, 886 P.2d

1354, 1361 (1994). The trial court found that the evidence showed

beyond a reasonable doubt that all of these factors, except for

mutilation of the victim, were present in this case.

(i) Gratuitous Violence

¶16 Gratuitous violence is violence “clearly beyond that

necessary to cause death.” State v. Hyde, 186 Ariz. 252, 281, 921

P.2d 655, 684 (1996). However, when the majority of injuries

result from the means used to inflict death without additional

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abuse or injury, gratuitous violence may not be established. State

v. Schackart, 190 Ariz. 238, 249, 947 P.2d 315, 326 (1997).

¶17 The victim in this case died from blunt trauma injury to

her head. The evidence indicates that the defendant struck at

least nine blows to the victim’s head, severely shattering her

skull. Bone fragments were visible in the victim’s hair and her

brain matter was exposed. The victim had been stabbed twice in the

throat and had multiple abrasions on her face and chest. In

addition, the victim was sexually assaulted, both vaginally and

anally. The physical evidence clearly establishes beyond a

reasonable doubt that the amount of violence used in this case was

greater than that necessary to kill the victim. See Hyde, 186

Ariz. at 281, 921 P.2d at 684 (finding of gratuitous violence based

in part on evidence that the victims were beaten so severely that

bone shattered, lacerating the brain and rendering parts of one

victim’s skull visible); see also State v. Doerr, 193 Ariz. 56, ,

¶¶ 56-58, 969 P.2d 1168, 1180 (1998).

(ii) Senselessness and Helplessness

¶18 A victim is helpless when he or she is unable to resist

the murder. State v. Cañez, 202 Ariz. 133, 161, ¶ 108, 42 P.3d

564, 592 (2002) (citing Hyde, 186 Ariz. at 281, 921 P.2d at 684).

At 91 pounds, 61 inches, the female victim was smaller and weaker

than Jones. He further disabled her by tying her arms behind her

back with a sock. She clearly had no chance to escape or resist

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the force Jones used against her. We have held that “[t]he killing

of a helpless child is inherently senseless and demonstrates a

disregard for human life, satisfying two of the five Gretzler

factors.” State v. Stanley, 167 Ariz. 519, 528, 809 P.2d 944, 953

(1991). The record here establishes beyond a reasonable doubt the

helplessness of the victim and the senselessness of the murder.

¶19 A finding of either helplessness or senselessness, or

both, along with at least one other Gretzler factor supports the

conclusion that an offense was heinous or depraved. Gretzler, 135

Ariz. at 52, 659 P.2d at 11. Given the combination of the

gratuitous violence inflicted, the helplessness of the victim, and

the senseless of this murder, we find beyond a reasonable doubt

that a jury would have found that this murder was heinous or

depraved based on the physical evidence.2 Therefore, we hold that

it was harmless error that a judge, rather than a jury, found the

(F)(6) aggravator in this case.

B. Mitigating Circumstances

¶20 Our inquiry does not end with a review of the aggravating

2
We note that the trial judge found the relishing and
witness elimination factors based primarily on the girlfriend’s
testimony. We cannot say beyond a reasonable doubt that a jury
would have assessed the girlfriend’s credibility in the same manner
as the judge. For this reason, we do not consider these two
factors in our harmless error review.

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factors. We must also consider whether reversible error occurred

with respect to the mitigating circumstances. Ring III, 204 Ariz.

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

sentence 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.

A. Statutory Mitigation

¶21 Jones claimed all of the statutory mitigating factors set

forth in former A.R.S. section 13-703(G).3 The trial judge

dismissed Jones’s claims that, his capacity to appreciate the

wrongfulness of his conduct or to conform his conduct to the

requirements of law was significantly impaired, A.R.S. § 13-703

(G)(1); he was under unusual or substantial duress, Id. § 13-

703(G)(2); his participation was relatively minor, Id. § 13-

703(G)(3); he could not have reasonably foreseen that his conduct

in the course of the commission of the offense for which he was

convicted would cause, or create a grave risk of causing, death to

another person, Id. § 13-703(G)(4); and his age at the time of the

offenses was a mitigating circumstance, Id. § 13-703(G)(5). On

appeal, Jones challenged the trial judge’s finding regarding the

(G)(1) mitigator.

3
Redesignated as A.R.S. § 13-703(H) by Ariz. Sess. Laws
2001, ch. 260, § 1.

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¶22 Section 13-703(G)(1) provides that a mitigating

circumstance is established when “[t]he defendant’s capacity to

appreciate the wrongfulness of his conduct or to conform his

conduct to the requirements of law was significantly impaired, but

not so impaired as to constitute a defense to prosecution.” This

mitigating circumstance is written in the disjunctive and is

established if either the capacity to appreciate the wrongfulness

of one’s conduct or the capacity to conform one’s conduct to the

requirements of the law is significantly impaired. See State v.

Stuard, 176 Ariz. 589, 609, 863 P.2d 881, 901 (1993).

¶23 Jones attempted to prove the (G)(1) mitigating factor

with testimony about his childhood from his mother, sister, and a

mitigation expert. He also presented testimony of Dr. Susan Downs

Parrish, a neuropsychologist. Dr. Parrish testified that she had

interviewed Jones and determined he had a “cognitive disorder,

[not] otherwise specified” that would “impair” his ability to

conform his conduct to the requirements of the law and “impair” his

ability to appreciate the wrongfulness of his acts. The State

countered with testimony from another neuropsychologist, Dr. James

Youngjohn. After reviewing Jones’s previous tests, video-taped

interviews, and personal letters, Dr. Youngjohn concluded that

Jones had been malingering during his examination. The trial judge

apparently accorded more weight to the State’s expert and found no

evidence of significant mental impairment for purposes of

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mitigation.

¶24 Because the judge’s finding rested so heavily on his

assessment of witness credibility, we cannot say beyond a

reasonable doubt that a reasonable jury would also conclude that

Jones failed to establish the (G)(1) statutory mitigator by a

preponderance of the evidence.

2. Non-Statutory Mitigation

¶25 Jones also presented numerous non-statutory mitigating

factors. The trial judge found that Jones had proved a number of

them by a preponderance of the evidence, including the following:

defendant’s “intellectual deficit,” biographical misfortune

including a dysfunctional family and upbringing, good character,

social immaturity, inability to take responsibility, lack of

education, cultural disorientation/alienation, difficult early teen

years and prior home life, and family ties. The trial judge found

that Jones failed to prove by a preponderance of the evidence the

mitigating factors of residual doubt, minimal participation in the

crime, lack of intent to kill, remorse, culpability of others,

outcome disparity, ability to be rehabilitated, low probability of

recidivism, and mental health issues. All of the non-statutory

mitigating factors, whether accepted or rejected by the trial

judge, depended upon an assessment of witness credibility. Under

such circumstances, we cannot conclude that the error here was

harmless beyond a reasonable doubt.

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¶26 Therefore, on this record, we are unable to conclude that

a jury faced with the same mitigating evidence, whether statutory

or non-statutory, would have come to the same conclusion as the

trial judge.

III.

¶27 Because we cannot conclude that the sentencing procedure

in this case resulted in harmless error, we vacate Jones’s death

sentence and remand for resentencing 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:

¶28 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

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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, 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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