SUPREME COURT OF ARIZONA
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-97-0317-AP
Appellee,)
) Maricopa County
v. ) Superior Court
) No. CR 92-05731
SCOTT ALAN LEHR, )
)
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,
The Honorable Stephen A. Gerst, 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
James P. Beene, Assistant Attorney General
John P. Todd, Assistant Attorney General
Bruce M. Ferg, Assistant Attorney General Tucson
Attorneys for Appellee
Stephen M. Johnson Phoenix
Attorney for Appellant
R Y A N, Justice
¶1 The sole issue before us is whether reversible error
occurred when a trial judge sentenced Scott Alan Lehr to death
under a procedure that the Supreme Court held 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.
I.
¶2 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. Id. at 609. 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.
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.
¶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, including Lehr’s, to determine
whether Ring II required this court to reverse or vacate the
defendants’ death sentences. State v. Ring, 396 Ariz. Adv. Rep.
23, 29-30, ¶ 15 (Apr. 3, 2003) (Ring III). In Ring III, we
concluded that we will examine a death sentence imposed under
Arizona’s superseded capital sentencing statute for harmless error.
Id. at 35, ¶ 54, 39, ¶ 93, 41, ¶ 104.
II.
¶4 In November 1996, Lehr was convicted of three counts of
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first degree murder, three counts of attempted first degree murder,
two counts of aggravated assault, seven counts of kidnapping,
thirteen counts of sexual assault, one count of attempted sexual
assault, four counts of sexual conduct with a minor, and four
counts of sexual assault with a child under the age of fourteen
years. State v. Lehr, 201 Ariz. 509, 512, ¶ 1, 38 P.3d 1172, 1175
(2002). On mandatory appeal, we concluded that Lehr was denied his
constitutional rights under the Sixth and Fourteenth Amendments to
the United States Constitution when the trial court limited his
cross-examination of DNA experts. Id. at 515, ¶ 16, 519, ¶ 23,
520, ¶ 43, 38 P.3d at 1178, 1179, 1183. As a result, this court
reversed as to two of the murder counts, one count of kidnapping,
and four counts of sexual assault, because the convictions for
those counts rested largely upon DNA evidence. Id. at 518-20, ¶¶
35-43, 524, ¶ 67, 38 P.3d at 1181-83, 1187. Lehr thus stands
convicted of and received the death penalty for one count of first
degree murder. See id. at 524, ¶¶ 66-67, 38 P.3d at 1186. He also
stands convicted of the remaining thirty non-capital counts. Id.
at 524, ¶ 67, 38 P.3d at 1186.
¶5 The trial court found three aggravating factors in this
case: (1) “defendant has been convicted of another offense in the
United States for which under Arizona law a sentence of life
imprisonment or death was imposable,” Ariz. Rev. Stat. (“A.R.S.”)
§ 13-703(F)(1) (2001); (2) “defendant was previously convicted of
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a serious offense,” A.R.S. § 13-703(F)(2); and (3) “defendant
committed the offense in an especially heinous, cruel or depraved
manner,” A.R.S. § 13-703(F)(6).1 In our independent review and
reweighing, we found the evidence too speculative to support a
finding that the only homicide for which Lehr stood convicted was
committed in a heinous, cruel or depraved manner. Lehr, 201 Ariz.
at 523, ¶ 63, 38 P.3d at 1186. With respect to the F(1)
aggravator, the trial court based its determination that this
aggravator existed on the two other homicides of which Lehr was
convicted in the same trial. Id. at 522-23, ¶ 60, 38 P.3d at 1185-
86. This court, having reversed those two homicide convictions,
nevertheless found that Lehr’s remaining convictions for kidnapping
and sexual assault carried with them the possibility of a life
sentence, and therefore these convictions supported the F(1)
aggravator. Id. This court also affirmed the trial court’s
finding of the F(2) aggravator based on Lehr’s convictions for
three counts of attempted first degree murder and two counts of
aggravated assault. Id. at 523, ¶ 61, 38 P.3d at 1186.
¶6 Both the F(1) and F(2) aggravating factors fall outside
the Ring II mandate. The Sixth Amendment does not require a jury
to determine the existence of either the F(1) or the F(2)
aggravating factors. Ring III, 396 Ariz. Adv. Rep. at 35, ¶ 55.
1
Arizona Revised Statutes section 13-703 was amended by 2002
Ariz. Sess. Laws, 5th Spec. Sess., Ch. 1, § 1.
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¶7 But this does not end our inquiry. We must also consider
whether reversible error occurred with respect to the mitigating
circumstances. Id. at 39, ¶ 93. The trial court found, and this
court affirmed, that Lehr failed to prove any statutory mitigating
circumstances by a preponderance of the evidence. Lehr, 201 Ariz.
at 523, ¶ 64, 38 P.3d at 1186. The trial court found the following
non-statutory mitigating factors proven by a preponderance of the
evidence: “defendant was a good father to his children, a good
husband to his wife, and a good son to his mother; he had no prior
record of criminal behavior or accusations of violence of any kind;
and he had been a model prisoner while in custody.” Id. at 523, ¶
65, 38 P.3d at 1186. However, there was additional non-statutory
mitigating evidence presented by Lehr that the trial court either
decided was not mitigating or was not proven by a preponderance of
the evidence. Id. at 523, ¶ 64, 38 P.3d at 1186. This evidence
included that imposition of the death penalty would harm Lehr’s
family, and that Lehr lacked “good childhood male role models.”
Id.
¶8 Although both remaining aggravating circumstances in this
case fall outside the Ring II mandate, we cannot conclude that no
reasonable probability exists that a jury would not have imposed
the death penalty. With the reversal of two of the murder
convictions, the sentencing calculus in this case has changed. As
a practical matter, we believe juries will accord greater weight to
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an F(1) aggravator based on other homicides as opposed to an F(1)
aggravator based on kidnapping and sexual assault. Moreover, we
cannot say that no reasonable jury would not accept the non-
statutory mitigating factors rejected by the trial judge,
particularly in light of the single murder for which Lehr now
stands convicted. As such, it is impossible for us to say just how
a jury may have balanced the aggravating and mitigating
circumstances in this case.
¶9 To find the error in this case harmless, this court would
have to determine that if a jury had made the sentencing
determination, and if that jury had been presented with a single
murder conviction rather than three, and if it had considered only
the F(1) and F(2) aggravators rather than also an F(6) aggravator,
and if it had considered the F(1) aggravator on the basis of
kidnapping and sexual assault charges rather than multiple
homicides, that jury would have found that the mitigating
circumstances were not “sufficiently substantial to call for
leniency.” A.R.S. § 13-703(E). Under these circumstances, we hold
that finding the error in this case to be harmless is too
speculative.
¶10 For the above reasons, we cannot conclude beyond a
reasonable doubt that had a jury considered the aggravating and
mitigating circumstances presented in this case it would have
reached the same conclusion as the trial judge or this court.
Accordingly, we vacate Lehr’s death sentence and remand for
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resentencing under revised 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
Jones, C.J., concurring in part, dissenting in part:
¶11 I concur in the result, but I 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 of
resentencing, simply on the basis of the Sixth Amendment violation.
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See State v. Ring, 396 Ariz. Adv. Rep. 23, 41-42, ¶¶ 105-115 (Apr.
3, 2003)(Feldman J., concurring in part, dissenting in part)(Ring
III).
Charles E. Jones, Chief Justice
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