SUPREME COURT OF ARIZONA
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-99-0296-AP
Appellee,)
) Pima County Superior Court
v. ) No. CR-61452
)
KEITH ROYAL PHILLIPS, )
) SUPPLEMENTAL OPINION
Appellant.)
)
Appeal from the Superior Court in Pima County
The Honorable Bernardo P. Velasco, Judge
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 Appellee
SUSAN A. KETTLEWELL, PIMA COUNTY PUBLIC DEFENDER Tucson
by John F. Palumbo, Assistant Public Defender
and Rebecca A. McLean, Assistant Public Defender
Attorneys for Appellant
B E R C H, Justice
¶1 Keith Phillips was sentenced to death under a procedure
found unconstitutional in Ring v. Arizona, 536 U.S. 584, 122 S. Ct.
2428 (2002) (Ring II). In Ring II, the Supreme Court held that
Arizona’s capital sentencing scheme violated the defendant’s Sixth
Amendment right to a jury trial.1 Id. at 609, 122 S. Ct. at 2443.
In doing so, the Court held that 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 remanded for further proceedings consistent with
its decision. Id. at 609, 122 S. Ct. at 2443.
¶2 On remand, we consolidated all cases, including
Phillips’, in which the death penalty had been imposed and the
mandate had not yet issued from this court, to determine whether
Ring II requires reversal or vacatur of the death sentences in
these cases. State v. Ring, Ariz. , , ¶¶ 5-6, 65 P.3d
915, 925 (2003) (Ring III). We concluded that we must review each
death sentence imposed under Arizona’s superseded capital
sentencing statutes for harmless error. Id. at , ¶ 53, 65 P.3d
at 936. This is that review in Phillips’ case.
FACTS AND PROCEDURAL HISTORY
¶3 On March 1, 1999, a jury found Keith Phillips guilty of
two counts of attempted murder, and forty-five counts of armed
robbery, kidnapping, and aggravated assault, all stemming from
three separate robberies that occurred over a sixteen-day period in
April 1998. See State v. Phillips, 202 Ariz. 427, 431, ¶ 1, 46
1
The legislature has since amended the statute requiring
judge-sentencing in capital cases. See 2002 Ariz. Sess. Laws, 5th
Spec. Sess. ch. 1, § 1.
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P.3d 1048, 1052 (2002). Phillips was also convicted of
premeditated and felony murder for a homicide committed by his
partner, Marcus Finch, during the third robbery. Id. at 431-32, ¶¶
1, 9, 46 P.3d at 1052-53. Following the jury’s verdict, the trial
judge conducted a sentencing hearing in which he found beyond a
reasonable doubt that Phillips expected pecuniary gain as the
result of the murder and that he was guilty of prior serious
offenses, aggravating circumstances rendering Phillips eligible for
the death sentence. Id. at 433, ¶ 15, 46 P.3d at 1054; Ariz. Rev.
Stat. (“A.R.S.”) § 13-703(F)(2), (F)(5) (Supp. 1998). After
reviewing the mitigating circumstances Phillips presented at the
sentencing hearing, the judge concluded “that either of the two
aggravating circumstances was sufficient in itself to outweigh the
mitigation.” Phillips, 202 Ariz. at 433, ¶ 15, 46 P.3d at 1054.
On appeal, we vacated Phillips’ conviction of premeditated murder
but affirmed all of the other convictions and sentences. Id. at
441, ¶ 83, 446 P.3d at 1062. We now review whether, in light of
Ring II and Ring III, the death sentence imposed on Phillips can
stand.
DISCUSSION
A. Aggravating Circumstances
1. Prior serious offense
¶4 Arizona law lists as an aggravating circumstance whether
“[t]he defendant was previously convicted of a serious offense,
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whether preparatory or completed.” A.R.S. § 13-703(F)(2). The
trial judge found that Phillips had been convicted of prior serious
offenses, armed robbery and aggravated assault, in 1998. Phillips,
202 Ariz. at 438-39, ¶ 57, 46 P.3d at 1059-60. Further, the judge
determined that the twenty-five convictions for armed robbery,
aggravated assault, and kidnapping committed during the first two
robberies in the series of robberies at issue also constituted
prior serious offenses.2 Id.
¶5 In Ring III, we held “that the Sixth Amendment does not
require a jury to determine prior convictions under sections 13-
703.F.1 and F.2.” Ariz. at - , ¶ 55, 65 P.3d at 936-37.
Accordingly, we will not disturb the trial judge’s finding that the
aggravating circumstance of prior serious offenses was proved,
rendering Phillips eligible for the death sentence.
2. Pecuniary gain
¶6 Arizona law makes commission of an offense “in
expectation of the receipt . . . of anything of pecuniary value”
an aggravating circumstance. A.R.S. § 13-703(F)(5). A finding of
pecuniary gain does not automatically follow each time a robbery
2
The trial judge also considered the armed robbery,
kidnapping, and aggravated assault charges from the third robbery
in his (F)(2) finding. Phillips, 202 Ariz. at 438-39, ¶ 57, 46
P.3d at 1059-60. This court held that the trial court erred in
considering the charges from the third robbery, but found the error
harmless because Phillips’ 1998 convictions as well as the
convictions from the first two robberies satisfied the (F)(2)
circumstance. Id. ¶¶ 56-57.
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results in murder; rather, the inquiry is highly fact intensive.
Ring III, Ariz. at , ¶¶ 76-77, 65 P.3d at 941.
¶7 The trial judge found that the State proved beyond a
reasonable doubt that the murder was motivated by Phillips’ desire
“to obtain money to buy drugs,” a pecuniary motive. This finding
fulfills the requirement that “the state must prove that the murder
would not have occurred but for the defendant’s pecuniary motive.”
Id. ¶ 75 (citing State v. Harding, 137 Ariz. 278, 296-97, 670 P.2d
383, 394-95 (1983)). We affirmed the pecuniary gain factor on
appeal. Phillips, 202 Ariz. at 438, ¶ 55, 46 P.3d at 1059.
¶8 Because the finding of pecuniary gain is so fact-
intensive, however, we cannot affirm a pecuniary gain finding
unless we are convinced beyond a reasonable doubt that no
reasonable jury could find that the State failed to prove pecuniary
gain beyond a reasonable doubt. See Ring III, Ariz. at , ¶¶
76-79, 65 P.3d at 941. Only in such a case will we find harmless
error regarding that factor. Id. ¶ 79.
¶9 This court has held that pecuniary gain is an aggravating
factor if “a murder was committed to hinder detection” of a
continuing robbery. State v. Lee, 185 Ariz. 549, 558, 917 P.2d
692, 701 (1996); see also State v. Rockwell, 161 Ariz. 5, 14, 775
P.2d 1069, 1078 (1989) (holding that if a witness was eliminated to
facilitate the theft, “the murder was part and parcel of the
robbery”). The trial judge determined that the murder was
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motivated by pecuniary gain because “Finch shot and killed
Hendricks during the course of that felony so he and Phillips could
successfully complete the robbery without detection.” Phillips,
202 Ariz. at 437, ¶ 44, 46 P.3d at 1058 (referencing special
verdict).
¶10 Next, the judge determined that Phillips participated in
the murder for pecuniary gain.3 Phillips, 202 Ariz. at 438, ¶ 53,
46 P.3d at 1059. The trial judge relied on evidence presented at
trial that, to get the patrons’ attention, Phillips fired his
weapon in a dangerous manner upon entering the restaurant where the
third robbery took place. This, the judge concluded, showed that
Phillips commenced the robbery “with murder in his heart or, at the
least, with indifference to human life such that death would occur
before any money was obtained.” This evidence supports the finding
of felony murder, which requires that a defendant have intended to
commit the underlying enumerated felony, and, “in furtherance of
that offense, cause[d] the death of any person.” A.R.S. § 13-
1105(A)(2) (2001). But because there was little evidence as to
Phillips’ intent and motivation regarding Finch’s killing of
Hendricks, we cannot say that a jury would be unreasonable to
conclude that Phillips’ participation in the murder was motivated
3
We bear in mind that when the trial judge was making this
determination, Phillips still stood convicted of both felony and
premeditated murder. It is impossible to say whether his analysis
would have differed had Phillips stood convicted only of felony
murder at his sentencing.
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by something other than pecuniary gain.
¶11 Finch, the shooter, killed the victim to avoid detection
and further the robbery. See Phillips, 202 Ariz. at 437, ¶ 44, 46
P.3d at 1058. The evidence is not so clear, however, that Phillips
shared Finch’s motivation. The Supreme Court has said that in a
capital case based on felony murder, the punishment must reflect
the defendant’s own culpability, not that of the person who did the
actual killing. Enmund v. Florida, 458 U.S. 782, 798, 102 S. Ct.
3368, 3377 (1982).
¶12 While on remand a jury may well conclude that Phillips
participated in the crime for pecuniary gain, we cannot say beyond
a reasonable doubt that it would so conclude. See State v.
Fulminante, 161 Ariz. 237, 245, 778 P.2d 602, 610 (1988) (holding
that the error is harmless if the court can determine, beyond a
reasonable doubt, that error did not affect the verdict).
B. Mitigating Circumstances
¶13 To sentence a defendant to death, not only must the trier
of fact find, beyond a reasonable doubt, the existence of one or
more aggravating circumstances, but it must also consider whether
any mitigating circumstances are sufficiently substantial to call
for leniency. See A.R.S. § 13-703(E) (Supp. 2002). Ring III
allows us to “affirm a capital sentence only if we conclude, beyond
a reasonable doubt, that no rational trier of fact would determine
that the mitigating circumstances were sufficiently substantial to
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call for leniency.” Ariz. at , ¶ 104, 65 P.3d at 946.
¶14 Phillips offered more than ten mitigating circumstances
for the court’s consideration. The trial judge found only two
mitigators,4 and he did not find their weight sufficient to call
for leniency. After reviewing the evidence, we cannot say that a
reasonable jury would not have found additional mitigating factors
or weighed differently the mitigating factors that were found.
Furthermore, we cannot say beyond a reasonable doubt that if a jury
had found additional mitigating circumstances or weighed the
mitigating circumstances differently, it would not have found them
“sufficiently substantial to call for leniency.” A.R.S. § 13-
703(E).
CONCLUSION
¶15 Accordingly, because we cannot say that the sentencing
procedure used here resulted in harmless error, we vacate Phillips’
death sentence and remand for resentencing under A.R.S. section 13-
703 and 13-703.01 (Supp. 2002).
Rebecca White Berch, Justice
4
The special verdict reflects that the judge found two
mitigating factors; the reported opinion reflects that one was
found. See Special Verdict at 5; Phillips, 202 Ariz. at 433, ¶ 15,
46 P.3d at 1054. We need not resolve this discrepancy because this
issue will be re-tried.
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CONCURRING:
Ruth V. McGregor, Vice Chief Justice
Michael D. Ryan, Justice
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
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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