State v. Grell

SUPREME COURT OF ARIZONA
En Banc
)
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, )
) CONSOLIDATED WITH
Appellant. )
)
__________________________________)
)
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-99-0536-AP
Appellee, )
) Maricopa County Superior
v. ) Court
) No. CR-96-04691
ANTOIN JONES, )
) CONSOLIDATED WITH
Appellant. )
)
__________________________________)
)
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-99-0439-AP
Appellee, )
) Pima County Superior
v. ) Court
) No. CR-58016
DANNY N. MONTAÑO, )
) CONSOLIDATED WITH
Appellant. )
)
__________________________________)
)
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-00-0328-AP
Appellee, )
) Maricopa County Superior
v. ) Court
) No. CR 98-04885
WAYNE BENOIT PRINCE, )
) CONSOLIDATED WITH
Appellant. )
)
__________________________________)
)
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-00-0360-AP
Appellee, )
) Mohave County Superior
v. ) Court
) No. CR-98-838
MICHAEL GENE BLAKLEY, )
) CONSOLIDATED WITH
Appellant. )
)
__________________________________)
)
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-00-0447-AP
Appellee, )
) Maricopa County Superior
v. ) Court
) No. CR1997-011695
HENRY WILLIAM HALL, )
) CONSOLIDATED WITH
Appellant. )
)
__________________________________)
)
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-01-0275-AP
Appellee, )
) Maricopa County Superior
v. ) Court
) No. CR1999-095294
SHAWN RYAN GRELL, )
) CONSOLIDATED WITH
Appellant. )
)
__________________________________)
)
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-00-0508-AP
Appellee, )
) Mohave County Superior
v. ) Court
) No. CR-98-1243
JAMES EDWARD DAVOLT, II, )
) CONSOLIDATED WITH
Appellant. )
)
__________________________________)

2
)
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-00-0544-AP
Appellee, )
) Maricopa County Superior
v. ) Court
) No. CR97-03949
LEROY D. CROPPER, )
) CONSOLIDATED WITH
Appellant. )
)
__________________________________)
)
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-00-0595-AP
Appellee, )
) Pima County Superior
v. ) Court
) No. CR-61846
SHAD DANIEL ARMSTRONG, )
) CONSOLIDATED WITH
Appellant. )
)
__________________________________)
)
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-01-0091-AP
Appellee, )
) Maricopa County Superior
v. ) Court
) No. CR1999-015293
EUGENE ROBERT TUCKER, )
) CONSOLIDATED WITH
Appellant. )
)
__________________________________)
)
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-01-0100-AP
Appellee, )
) Pima County Superior
v. ) Court
) No. CR-64663
KAJORNSAK PRASERTPHONG, )
) CONSOLIDATED WITH
Appellant. )
)
__________________________________)

3
)
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-01-0103-AP
Appellee, )
) Pima County Superior
v. ) Court
) No. CR-64663
CHRISTOPHER BO HUERSTEL, )
) CONSOLIDATED WITH
Appellant. )
)
__________________________________)
)
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-01-0129-AP
Appellee, )
) Maricopa County Superior
v. ) Court
) No. CR1997-05555
SHERMAN LEE RUTLEDGE, )
)
Appellant. )
)
__________________________________)
)
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-01-0270-AP
Appellee, )
) Maricopa County Superior
v. ) Court
) No. CR1996-011714
CHRISTOPHER GEORGE THEODORE )
LAMAR, )
) CONSOLIDATED WITH
Appellant. )
)
__________________________________)
)
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-01-0421-AP
Appellee, )
) Maricopa County Superior
v. ) Court
) No. CR1995-006472
MICHAEL JOE MURDAUGH (A), )
) CONSOLIDATED WITH
Appellant. )
)

4
__________________________________)
)
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-02-0042-AP
Appellee, )
) Maricopa County Superior
v. ) Court
) No. CR-1999-003536
BRIAN JEFFREY DANN, )
) CONSOLIDATED WITH
Appellant. )
)
__________________________________)
)
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-02-0044-AP
Appellee, )
) Pima County Superior
v. ) Court
) No. CR-43804
ROBERT JOE MOODY, )
) CONSOLIDATED WITH
Appellant. )
)
__________________________________)
)
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-99-0296-AP
Appellee, )
) Pima County Superior
v. ) Court
) No. CR-61452
KEITH ROYAL PHILLIPS, )
) CONSOLIDATED WITH
Appellant. )
)
__________________________________)
)
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-99-0551-AP
Appellee, )
) Pima County Superior
v. ) Court
) No. CR-61452
MARCUS LASALLE FINCH, )
) CONSOLIDATED WITH
Appellant. )
)

5
__________________________________)
)
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-99-0438-AP
Appellee, )
) Maricopa County Superior
v. ) Court
) No. CR-98-003520
JOHN EDWARD SANSING, )
) CONSOLIDATED WITH
Appellant. )
)
__________________________________)
)
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-98-0289-AP
Appellee, )
) Maricopa County Superior
v. ) Court
) No. CR-95-09046
JAMES CORNELL HARROD, )
) CONSOLIDATED WITH
Appellant. )
)
__________________________________)
)
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-98-0376-AP
Appellee, )
) Maricopa County Superior
v. ) Court
) No. CR-93-08116
DARREL PETER PANDELI aka DARREL )
PETER FLORIAN, )
) CONSOLIDATED WITH
Appellant. )
)
__________________________________)
)
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-97-0317-AP
Appellee, )
) Maricopa County Superior
v. ) Court
) No. CR 92-05731
SCOTT ALAN LEHR, )
) CONSOLIDATED WITH
Appellant. )

6
)
__________________________________)
)
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-98-0488-AP
Appellee, )
) Pinal County Superior
v. ) Court
) No. CR-96-021235
ARTURO ANDA CAÑEZ, )
) CONSOLIDATED WITH
Appellant. )
)
__________________________________)
)
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-97-0349-AP
Appellee, )
) Maricopa County Superior
v. ) Court
) Nos. CR-94-11396
AARON SCOTT HOSKINS, ) and CR-94-11397
) (Consolidated)
)
Appellant. ) CONSOLIDATED WITH
)
__________________________________)
)
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-98-0278-AP
Appellee, )
) Pima County Superior
v. ) Court
) No. CR-55947
SCOTT DOUGLAS NORDSTROM, )
)
Appellant. )
) O P I N I O N
__________________________________)

Appeal from the Superior Court of Maricopa County
No. CR-95-01754(A)
The Honorable Gregory H. Martin, Judge

Janet A. Napolitano, Arizona Attorney General Phoenix
by Kent E. Cattani, Chief Counsel,

7
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

Osborn Maledon, P.A. Phoenix
by Andrew D. Hurwitz
and John A. Stookey
and Daniel L. Kaplan
Attorneys for Timothy Stuart Ring

Drinker Biddle & Reath, L.L.P. Philadelphia
by Lawrence J. Fox
and
Quarles & Brady Streich Lang, L.L.P. Phoenix
by Edward F. Novak
Attorneys for Amici Curiae Legal Ethicists and
The Stein Center for Law and Ethics

Appeal from the Superior Court of Maricopa County
No. CR-96-04691
The Honorable Stephen A. Gerst, Judge

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 Stephen R. Collins
and Edward F. McGee
Attorneys for Antoin Jones

Appeal from the Superior Court of Pima County
No. CR-58016
The Honorable Deborah J. S. Ward, Judge Pro Tempore

Janet A. Napolitano, Arizona Attorney General Phoenix

8
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

Law Offices of Carla Ryan Tucson
by Carla Ryan
Attorneys for Danny N. Montaño

Appeal from the Superior Court of Maricopa County
No. CR 98-04885
The Honorable Michael R. McVey, Judge

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

Appeal from the Superior Court of Mohave County
No. CR-98-838
The Honorable Steven F. Conn, Judge

Baran Law Office, Ltd. Overgaard

9
by J. Conrad Baran
Attorney for Michael Gene Blakley

Appeal from the Superior Court of Maricopa County
No. CR1997-011695
The Honorable Thomas W. O’Toole, Judge

Thomas A. Gorman Flagstaff
Attorney for Henry William Hall

Appeal from the Superior Court of Maricopa County
No. CR1999-095294
The Honorable Barbara M. Jarrett, Judge

Shughart Thomson Kilroy Goodwin Raup, P.C. Phoenix
by Rudolph J. Gerber
and
James J. Haas, Maricopa County Public Defender Phoenix
by James R. Rummage
and Lawrence S. Matthew
Attorneys for Shawn Ryan Grell

Appeal from the Superior Court of Mohave County
No. CR-98-1243
The Honorable Steven F. Conn, Judge

10
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

Julie Hall Tucson
and
Arizona Capital Representation Project Tucson
by Jennifer Bedier
Attorneys for James Edward Davolt, II

Appeal from the Superior Court of Maricopa County
No. CR97-03949
The Honorable David R. Cole, Judge

Thomas A. Gorman Flagstaff
and
David I. Goldberg Flagstaff
Attorneys for Leroy D. Cropper

Appeal from the Superior Court of Pima County
No. CR-61846
The Honorable Howard Hantman, Judge

11
and Bruce M. Ferg, Assistant Attorney General Tucson
Attorneys for State of Arizona

Law Offices of Harriette P. Levitt Tucson
by Harriette P. Levitt
Attorneys for Shad Daniel Armstrong

Appeal from the Superior Court of Maricopa County
No. CR1999-015293
The Honorable Michael D. Jones, Judge

James J. Haas, Maricopa County Public Defender Phoenix
by Christopher V. Johns
and James H. Kemper
Attorneys for Eugene Robert Tucker

Appeal from the Superior Court of Pima County
No. CR-64663
The Honorable Michael Brown, Judge

Susan A. Kettlewell, Pima County Public Defender Tucson
by Rebecca A. McLean
and Lori J. Lefferts
Attorneys for Kajornsak Prasertphong

12
Appeal from the Superior Court of Pima County
No. CR-64663
The Honorable Michael Brown, Judge

Law Offices of Williamson & Young, P.C. Tucson
by S. Jonathan Young
Attorney for Christopher Bo Huerstel

Appeal from the Superior Court of Maricopa County
No. CR1997-05555
The Honorable Frank T. Galati, Judge

Robert Doyle Phoenix
Attorney for Sherman Lee Rutledge

Appeal from the Superior Court of Maricopa County
No. CR1996-011714
The Honorable Stephen A. Gerst, Judge

13
and Bruce M. Ferg, Assistant Attorney General Tucson
Attorneys for State of Arizona

Susan Sherwin, Maricopa County
Office of Legal Advocate Phoenix
by Brent Graham
Attorneys for Christopher George Theodore Lamar

Appeal from the Superior Court of Maricopa County
No. CR1995-006472
The Honorable Sherry Hutt, Judge

Michael S. Reeves Phoenix
Attorney for Michael Joe Murdaugh

Appeal from the Superior Court of Maricopa County
No. CR 1999-003536
The Honorable H. Jeffrey Coker, Judge

Susan Sherwin, Maricopa County
Office of Legal Advocate Phoenix
by Brent Graham
and
Shughart Thomson Kilroy Goodwin Raup, P.C. Phoenix
by Rudolph J. Gerber
Attorneys for Brian Jeffrey Dann

14
Appeal from the Superior Court of Pima County
No. CR-43804
The Honorable Michael Cruikshank, Judge

Susan A. Kettlewell, Pima County Public Defender Tucson
by Frank P. Leto
and Brian X. Metcalf
Attorneys for Robert Joe Moody

Appeal from the Superior Court of Pima County
No. CR-61452
The Honorable Bernardo P. Velasco, Judge

Susan A. Kettlewell, Pima County Public Defender Tucson
by John F. Palumbo
and Rebecca A. McLean
Attorneys for Keith Royal Phillips

Appeal from the Superior Court of Pima County
No. CR-61452
The Honorable Bernardo P. Velasco, Judge

Janet A. Napolitano, Arizona Attorney General Phoenix
by Kent E. Cattani, Chief Counsel,
Capital Litigation Section

15
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

Law Offices of Williamson & Young, P.C. Tucson
by S. Jonathan Young
Attorneys for Marcus LaSalle Finch

Appeal from the Superior Court of Maricopa County
No. CR 98-003520
The Honorable Ronald S. Reinstein, Judge

James J. Haas, Maricopa County Public Defender Phoenix
by Terry J. Adams
and Spencer D. Heffel
Attorneys for John Edward Sansing

Appeal from the Superior Court of Maricopa County
No. CR-95-09046
The Honorable Ronald S. Reinstein, Judge

James J. Haas, Maricopa County Public Defender Phoenix
by Christopher V. Johns
and James H. Kemper

16
Attorneys for James Cornell Harrod

Appeal from the Superior Court of Maricopa County
No. CR-93-08116
The Honorable Gregory H. Martin, Judge

Julie Hall Tucson
and
Arizona Capital Representation Project Tucson
by Jennifer Bedier
Attorneys for Darrel Peter Pandeli aka
Darrel Peter Florian

Appeal from the Superior Court of Maricopa County
No. CR 92-05731
The Honorable Stephen A. Gerst, Judge

Stephen M. Johnson Phoenix
Attorney for Scott Alan Lehr

Appeal from the Superior Court of Pinal County
No. CR-96-021235
The Honorable Boyd T. Johnson, Judge

17
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

Thomas J. Phalen Phoenix
and
Tara K. Allen Tempe
Attorneys for Arturo Anda Cañez

Appeal from the Superior Court of Maricopa County
Nos. CR-94-11396 and CR-94-11397 (Consolidated)
The Honorable Jeffrey A. Hotham, Judge

Denise Young Tucson
and
Arizona Capital Representation Project Tucson
by Jennifer Bedier
Attorneys for Aaron Scott Hoskins

Appeal from the Superior Court of Pima County
No. CR-55947
The Honorable Michael Cruikshank, Judge Pro Tempore

18
Attorneys for State of Arizona

Law Office of David Alan Darby Tucson
by David Alan Darby
Attorney for Scott Douglas Nordstrom

M c G R E G O R, Vice Chief Justice

¶1 This case comes to us on remand from the United States

Supreme Court, Ring v. Arizona, 536 U.S. 584, ___, 122 S. Ct. 2428,

2443 (2002) (Ring II). We have jurisdiction pursuant to the

Arizona Constitution, Article VI, Section 5.3.

Facts and Procedural History.

¶2 On December 6, 1996, a jury convicted Timothy Stuart Ring

of first degree murder, conspiracy to commit armed robbery, armed

robbery, burglary and theft. Under Arizona law at the time of

Ring’s sentencing, capital sentencing followed the procedure set

forth at Arizona Revised Statutes (A.R.S.) section 13-703 (Supp.

1996). As required by A.R.S. section 13-703.B, the trial court

conducted a sentencing hearing to consider aggravating and

mitigating circumstances. The court could consider only those

aggravating factors identified by statute, but could consider any

possible mitigating factor. 1 A.R.S. § 13-

1
The state must prove aggravating factors beyond a
reasonable doubt. A.R.S. § 13-703.B (Supp. 2002); State v.
Spreitz, 190 Ariz. 129, 147, 945 P.2d 1260, 1278 (1997).
Mitigating factors must be proved by a preponderance of the
evidence. A.R.S. § 13-703.C; State v. Pandeli, 200 Ariz. 365, 376

19
703.F–.G, amended by 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1,

§ 1. After the hearing, the court found two aggravating factors:

Ring committed the murder for pecuniary gain, A.R.S. section 13-

703.F.5, and “in an especially heinous, cruel or depraved manner,”

A.R.S. section 13-703.F.6. State v. Ring, 200 Ariz. 267, 272 ¶ 13,

25 P.3d 1139, 1144 (2001) (Ring I). The trial court concluded that

the mitigating circumstance of Ring’s minimal criminal record was

not “sufficiently substantial to call for leniency” and sentenced

Ring to death. Id. at 273 ¶ 13, 25 P.3d at 1145; see A.R.S. § 13-

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

¶3 Ring subsequently filed a direct appeal to this court

seeking review of multiple trial and sentencing issues, including

a Sixth Amendment challenge to Arizona’s capital sentencing

procedure. The Sixth Amendment right to a jury trial, Ring argued,

requires a jury, rather than a judge, to find the aggravating

factors set forth at section 13-703.F. Ring I, 200 Ariz. at 278 ¶

40, 25 P.3d at 1150. This court affirmed Ring’s first degree

murder conviction and death sentence. Id. at 284 ¶ 65, 25 P.3d at

¶ 44, 26 P.3d 1136, 1147 (2001).
Except for one brief period, aggravating circumstances have
been codified at A.R.S. section 13-703.F since the legislature
enacted judge-based sentencing. Following the 2001 Arizona
Legislative Session, these aggravating circumstances are listed
under A.R.S. section 13-703.G. 2001 Ariz. Sess. Laws ch. 260, § 1.
The legislature redesignated aggravating circumstances under
subsection .F in its post-Ring II amendments. 2002 Ariz. Sess.
Laws, 5th Spec. Sess., ch. 1, § 1.

20
1156. Guided by the United States Supreme Court’s decision in

Walton v. Arizona, 497 U.S. 639, 110 S. Ct. 3047 (1990), we held

Arizona’s capital sentencing procedure did not violate the Sixth

Amendment of the United States Constitution. Ring I, 200 Ariz. at

279-80 ¶ 44, 25 P.3d at 1151-52.

¶4 Ring petitioned the United States Supreme Court to accept

certiorari. The Court granted review and held that Arizona’s

capital sentencing scheme violated the Sixth Amendment right to a

jury trial, overruling Walton and applying the approach of Apprendi

v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). Ring II, 536

U.S. at ___, 122 S. Ct. at 2443. The Supreme Court remanded the

matter for disposition in light of Ring II.

¶5 At the time of the Ring II decision, thirty-one

defendants sentenced to death had matters pending on direct appeal

before this court. On June 27, 2002, we entered an order

consolidating all thirty-one death penalty cases then on direct

appeal. State v. Ring, Order No. CR-97-0428-AP (June 27, 2002).

¶6 All defendants in this consolidated case either pled

guilty to or were convicted by a jury of first degree premeditated

or felony murder. Trial judges sentenced all defendants to death

under a now-superseded version of A.R.S. section 13-703, under

which a judge considered aggravating and mitigating evidence. This

court must now examine the impact of Ring II on the death sentences

of those defendants before us. To assist the court, and after

21
consultation with counsel for the State and the defendants, we

ordered the parties to brief the issues discussed below. We

reserved to each defendant the right to further brief sentencing

issues, if necessary. This opinion addresses those issues raised

in the consolidated appeal. The court will address each

defendant’s sentencing issues in a separate opinion.

II.

Historical Overview of Capital Punishment in Arizona.

¶7 Under Arizona’s first penal code, a person convicted of

first degree murder received either a death or prison sentence.2

Revised Statutes of Arizona, Penal Code § 173 (1913). The jury,

exercising its discretion, decided which punishment to impose. Id.

In 1918, voters approved an initiative measure giving the trial

judge authority to sentence a person to death for first degree

murder in cases in which the defendant pled guilty. 1919 Ariz.

Sess. Laws, Initiative & Referendum Measures 17, 18. In those

cases, the trial court exercised the same discretion as did a jury.

Thus, until the early 1970s, Arizona imposed the death penalty for

first degree murder at the sole discretion of the jury or court.

E.g., Ariz. Code § 43-2903 (1939); Ariz. Code § 4585 (1928); State

v. McGee, 91 Ariz. 101, 111-12, 370 P.2d 261, 268 (1962) (“The

2
In addition to first degree murder, offenses punishable
by death included treason, Revised Statutes of Arizona, Penal Code
section 33 (1913), train robbery, id. sections 435, 438, and deadly
assault by a felon serving a life sentence, id. section 220.

22
determination of punishment is wholly within the discretion of the

jury upon their consideration of all aspects of the case.”),

superseded by statute as stated in State v. Lopez, 163 Ariz. 108,

115, 786 P.2d 959, 966 (1990); Hernandez v. State, 43 Ariz. 424,

429, 32 P.2d 18, 20 (1934) (“[T]he question of punishment in first

degree murder cases is wholly within the jury’s discretion . . .

.”). No statutory standards guided the determination of

punishment.

¶8 In 1972, however, the United States Supreme Court decided

Furman v. Georgia and held that standardless death sentencing

procedures violate the Eighth Amendment’s prohibition of cruel and

unusual punishment. 408 U.S. 238, 239-40, 92 S. Ct. 2726, 2727

(1972) (per curiam). According to Justice Stewart, complete jury

discretion led to arbitrary and capricious imposition of the death

sentence; given strikingly similar crimes, some defendants received

a death sentence and others did not. Id. at 309-10, 92 S. Ct. at

2762 (Stewart, J., concurring).

¶9 Following the Furman decision, the Arizona Legislature

enacted a new capital sentencing scheme. 1973 Ariz. Sess. Laws ch.

138. The legislation divided a capital first degree murder trial

into two phases: a guilt phase and a sentencing phase. Upon a jury

conviction of or a guilty plea to first degree murder, the statutes

required the trial court to hold a sentencing hearing at which the

state and defendant presented evidence of statutorily defined

23
aggravating and mitigating factors.3 Id. § 5. The trial court

could impose the death sentence if it found at least one

aggravating circumstance and “no mitigating circumstances

sufficiently substantial to call for leniency.” Id.

¶10 Three years later, in Gregg v. Georgia, the Supreme Court

upheld Georgia’s revised sentencing scheme against a claim that the

death penalty was per se unconstitutional. 428 U.S. 153, 169, 96

S. Ct. 2909, 2923 (1976). The Georgia statute resembled Arizona’s,

except that, under Georgia law, the same jury heard both the guilt

and sentencing phases. See id. at 164 & n.9, 96 S. Ct. at 2921 &

n.9.

¶11 The Supreme Court reviewed Arizona’s judge-only

sentencing in Walton. The Court rejected an argument that the

Sixth Amendment right to a jury trial required a jury, not a judge,

to find the facts presented at the sentencing hearing. Walton, 497

U.S. at 649, 110 S. Ct. at 3055. In Apprendi, a non-capital case

decided ten years later, the Court held that “[o]ther than the fact

of a prior conviction, any fact that increases the penalty for a

3
In 1978, the Supreme Court held unconstitutional those
death penalty sentencing statutes limiting the types of mitigating
evidence a defendant can introduce. Lockett v. Ohio, 438 U.S. 586,
604, 98 S. Ct. 2954, 2964-65 (1978); Bell v. Ohio, 438 U.S. 637,
642, 98 S. Ct. 2977, 2980-81 (1978). This court subsequently held
unconstitutional Arizona’s exclusion of non-statutory mitigating
circumstances. State v. Watson, 120 Ariz. 441, 445, 586 P.2d 1253,
1257 (1978). In 1979, the Arizona Legislature amended the
mitigating circumstances statute to conform with these decisions.
1979 Ariz. Sess. Laws ch. 144, § 1.

24
crime beyond the prescribed statutory maximum must be submitted to

a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490,

120 S. Ct. at 2362-63. Although Justice O’Connor’s Apprendi

dissent questioned whether Walton could survive the Apprendi

ruling, id. at 537, 120 S. Ct. at 2387-88 (O’Connor, J.,

dissenting), the majority distinguished capital cases as “not

controlling” authority. Id. at 496-97, 120 S. Ct. at 2366.

¶12 Finally, in Ring II, the Supreme Court expressly

overruled Walton in favor of Apprendi’s Sixth Amendment approach.

536 U.S. at ___, 122 S. Ct. at 2443. According to the Court,

“[b]ecause Arizona’s enumerated aggravating factors operate as the

functional equivalent of an element of a greater offense, the Sixth

Amendment requires that they be found by a jury.” Id. (quoting

Apprendi, 530 U.S. at 494 n.19, 120 S. Ct. at 2365 n.19). “Capital

defendants, no less than non-capital defendants,” the Court

concluded, “are entitled to a jury determination of any fact on

which the legislature conditions an increase in their maximum

punishment.” Id. at ___, 122 S. Ct. at 2432. Thus, any fact

necessary to enhance the defendant’s sentence beyond that

authorized by the jury’s guilty verdict must be found by the jury.

¶13 Following the Supreme Court’s announcement of the Ring II

decision, Governor Jane Dee Hull called a special legislative

session to revise Arizona’s capital sentencing provisions. On

August 1, 2002, the legislature passed and Governor Hull signed

25
into law Senate Bill (“S.B.”) 1001, containing several revisions

intended to conform Arizona law to the Ring II mandate. S.B. 1001,

45th Leg., 5th Spec. Sess. (Ariz. 2002). Under Arizona’s amended

sentencing procedure, the jury serving during the guilt phase of

the trial also serves as the trier of fact during the sentencing

phase. A.R.S. § 13-703.01.C–.D (Supp. 2002). Specifically, the

jury will find and consider the effect of aggravating and

mitigating circumstances and decide whether the defendant should

receive a sentence of death. Id. § 13-703.01.D.

¶14 To determine whether we should vacate defendants’ death

sentences and either reduce to a life sentence or remand for

resentencing under Arizona’s revised procedure, we consider the

following issues.

III.

Does the Ex Post Facto Clause Prohibit Resentencing Under
Arizona’s Amended Capital Sentencing Procedure?

¶15 The defendants argue that resentencing under A.R.S.

sections 13-703 and 13-703.01 (Supp. 2002) (the new sentencing

statutes) would constitute an ex post facto violation under the

United States Constitution, Article I, Section 10, Clause 1, and

the Arizona Constitution, Article II, Section 25. We disagree.4

4
In State v. Noble, we held that we will interpret the
state Ex Post Facto Clause in accord with federal precedent. 171

26
¶16 The ex post facto doctrine prohibits a state from

“retroactively alter[ing] the definition of crimes or increas[ing]

the punishment for criminal acts.” Collins v. Youngblood, 497 U.S.

37, 43, 110 S. Ct. 2715, 2719 (1990). In Dobbert v. Florida, the

Supreme Court held that ex post facto prohibitions reach only those

legislative enactments that affect substantive criminal law. 432

U.S. 282, 292, 97 S. Ct. 2290, 2298 (1977). Likewise, we recently

held that, under the United States and Arizona Constitutions, “[a]n

ex post facto law is one that increases the punishment or

aggravates any crime previously committed.” Zuther v. State, 199

Ariz. 104, 111 ¶ 26, 14 P.3d 295, 302 (2000) (holding legislative

amendment changing statutory computation of prisoner “gate money”

not an ex post facto law because legislative purpose was not

punitive).

¶17 In Dobbert, the Supreme Court restated the categories of

laws constituting substantive changes to criminal law:

[A]ny statute which punishes as a crime an act previously
committed, which was innocent when done; which makes more
burdensome the punishment for a crime, after its
commission, or which deprives one charged with crime of
any defense available according to law at the time when
the act was committed, is prohibited as ex post facto.

432 U.S. at 292, 97 S. Ct. at 2298 (quoting Beazell v. Ohio, 269

Ariz. 171, 173, 829 P.2d 1217, 1219 (1992). We find no reason to
deviate from Noble.

27
U.S. 167, 169-70, 46 S. Ct. 68, 68 (1925)). Thus, a legislative

act affecting changes in criminal procedure, including procedural

changes that disadvantage a defendant, generally does not violate

the Ex Post Facto Clause. Collins, 497 U.S. at 45, 110 S. Ct. at

2720 (“[Procedural] refers to changes in the procedures by which a

criminal case is adjudicated, as opposed to changes in the

substantive law of crimes.”); State v. Mendoza, 170 Ariz. 184, 193,

823 P.2d 51, 60 (1992) (“A defendant has no vested right in any

particular mode of procedure.”).

¶18 The question before us, then, is whether Arizona’s new

sentencing statutes worked a substantive or procedural change in

the law as it existed when these murders took place. We regard

three decisions as particularly instructive.

¶19 In Dobbert, the defendant argued that his death sentence

violated the Ex Post Facto Clause. Dobbert killed his children in

1972. At that time, Florida mandated a death sentence for capital

felony convictions unless the jury, in its discretion, recommended

mercy to the judge. Dobbert, 432 U.S. at 287, 97 S. Ct. at 2295.

Shortly after Dobbert murdered his children, the Supreme Court

decided Furman v. Georgia, striking down the Georgia death

sentencing statute as unconstitutional. Id. at 288, 97 S. Ct. at

2296. A month later, in Donaldson v. Sack, the Florida Supreme

Court held the Florida death sentencing statute unconstitutional

28
under Furman. 265 So. 2d 499, 501 (Fla. 1972). Later that year,

the Florida Legislature amended the state’s capital sentencing

procedure to comply with Furman and Donaldson. Dobbert, 432 U.S.

at 288, 97 S. Ct. at 2296. Dobbert was then tried and sentenced to

death under the state’s new law. Id. at 284, 97 S. Ct. at 2294.

¶20 Dobbert failed to persuade the Supreme Court that

sentencing him under the amended procedures violated the Ex Post

Facto Clause. The Court first limited ex post facto violations to

those occurring when a statute makes criminal a previously innocent

act, aggravates a crime previously committed, provides greater

punishment, or changes the quantum of proof needed to convict a

defendant. Id. at 292, 97 S. Ct. at 2298 (quoting Beazell, 269

U.S. at 169-70, 46 S. Ct. at 68). None of those categories applied

to the Florida statute. Instead, the Court concluded, the

statutory change between the two sentencing methods was “clearly

procedural,” and “[t]he new statute simply altered the methods

employed in determining whether the death penalty was to be

imposed; there was no change in the quantum of punishment attached

to the crime.” Id. at 293-94, 97 S. Ct. at 2298.

¶21 The Supreme Court also rejected an Ex Post Facto Clause

challenge in Collins v. Youngblood, a non-death penalty case. The

jury had imposed a prison sentence and a fine, the latter not

authorized by law. 497 U.S. at 39, 110 S. Ct. at 2717. The Texas

29
Court of Criminal Appeals reformed the sentence under a statute

enacted after the defendant’s criminal act took place. Id. at 40,

110 S. Ct. at 2718. The Supreme Court held that applying the

sentence reform statute in the defendant’s case did not violate the

Ex Post Facto Clause because although the Sixth Amendment right to

a jury trial is substantial, “it is not a right that has anything

to do with the definition of crimes, defenses, or punishments.”

Id. at 51-52, 110 S. Ct. at 2724 (overruling Thompson v. Utah, 170

U.S. 343, 18 S. Ct. 620 (1898)).

¶22 In State v. Correll, in contrast, we found a violation of

the Ex Post Facto Clause. 148 Ariz. 468, 482, 715 P.2d 721, 735

(1986), rev’d in part on other grounds by Correll v. Stewart, 137

F.3d 1404 (9th Cir. 1998). A jury convicted the defendant of three

counts of first degree murder. After the murders, but before

sentencing, the legislature amended A.R.S. section 13-703.F to add

multiple homicide convictions as an aggravating circumstance. We

held that retroactively applying the new aggravating circumstance

constituted a substantive change to capital murder and

disadvantaged the defendant. Id. This change affected the

substantive nature of the crime and sentencing by adding a new

element that, if present, permitted the defendant to receive a more

severe punishment than that available at the time of the crime.5

5
The Supreme Court’s holding that aggravating factors
serve as the functional equivalent of elements of the first degree
murder offense makes this conclusion even more evident. Ring II,
30
¶23 These cases clearly indicate not only that ex post facto

principles generally do not bar applying procedural changes to

criminal proceedings, but also that the general framework of a

state’s statutory capital sentencing scheme is procedural in

nature. As Collins established, rights secured by the Sixth

Amendment jury trial right, the right at issue here, are inherently

procedural. 497 U.S. at 51, 110 S. Ct. at 2724. Under the holding

of Dobbert, Arizona’s change in the statutory method for imposing

capital punishment is clearly procedural: The new sentencing

statutes alter the method used to determine whether the death

penalty will be imposed but make no change to the punishment

attached to first degree murder. The new sentencing statutes added

no new element, or functional equivalent of an element, to first

degree murder.6 Correll, 148 Ariz. at 481-82, 715 P.2d at 734-35.

Hence, the changes to the state’s capital sentencing procedures do

not resemble the type of after-the-fact legislative evil

contemplated by contemporary understandings of the ex post facto

doctrine.

¶24 Even a procedural change amounts to an ex post facto

violation, however, when it affects “matters of substance, by

depriving a defendant of substantial protections with which the

536 U.S. at ___, 122 S. Ct. at 2443.
6
S.B. 1001 made only technical and conforming changes to
the aggravating circumstance list. 2002 Ariz. Sess. Laws, 5th
Spec. Sess., ch. 1, § 1.
31
existing law surrounds the person accused of crime, or arbitrarily

infringing upon substantial personal rights.” Collins, 497 U.S. at

45, 110 S. Ct. at 2720 (quoting Beazell, 269 U.S. at 171, 46 S. Ct.

at 69; Malloy v. South Carolina, 237 U.S. 180, 183, 35 S. Ct. 507,

508 (1915); and Duncan v. Missouri, 152 U.S. 377, 382-83, 14 S. Ct.

570, 572 (1894)) (internal quotation marks omitted). The change

involved here does not affect the substantive matters of the

defendants’ prosecutions. See id. Under the new sentencing

statutes, to obtain a death sentence, the state must prove the same

aggravating circumstances required by the former statute and must

prove them beyond a reasonable doubt. The only difference is that

a jury, rather than a judge, decides whether the state has proved

its case. The new sentencing statutes do not place the defendants

in jeopardy of any greater punishment than that already imposed

under the superseded statutes. Accordingly, applying the new

sentencing statutes does not violate the federal or state Ex Post

Facto Clause.

IV.

Does the Double Jeopardy Clause Prohibit Resentencing Under
Arizona’s Amended Capital Sentencing Procedure?

¶25 The defendants argue that the double jeopardy provisions

of the United States and Arizona Constitutions7 preclude

7
“[N]or shall any person be subject for the same offense
to be twice put in jeopardy of life or limb . . . .” U.S. Const.
amend. V.

32
resentencing under the new sentencing statutes. We hold that they

do not.

¶26 Double jeopardy prevents the government from prosecuting

an individual more than once for the same offense. Green v. United

States, 355 U.S. 184, 187, 78 S. Ct. 221, 223 (1957). According to

the Supreme Court:

The underlying idea . . . is that the State with all its
resources and power should not be allowed to make
repeated attempts to convict an individual for an alleged
offense, thereby subjecting him to embarrassment, expense
and ordeal and compelling him to live in a continuing
state of anxiety and insecurity, as well as enhancing the
possibility that even though innocent he may be found
guilty.

Id. at 187-88, 78 S. Ct. at 223; see also Sattazahn v.

Pennsylvania, ___ U.S. ___, ___; 123 S. Ct. 732, 745-46 (2003)

(reaffirming principle that the underlying purpose of the Double

Jeopardy Clause is to prohibit repeated attempts by the state to

convict, thereby exposing a defendant to embarrassment, expense,

and the ordeal of another proceeding).

¶27 Double jeopardy principles generally do not apply to

sentencing proceedings. United States v. DiFrancesco, 449 U.S. 117,

132, 101 S. Ct. 426, 435 (1980). Capital sentencing proceedings,

however, provide an exception to the general rule. The penalty

phase of a capital trial resembles an ordinary trial proceeding in

“No person shall . . . be twice put in jeopardy for the same
offense.” Ariz. Const. art. II, § 10.

33
which the sentencing authority chooses “between two alternatives

together with standards to guide [its] decision, [and] the

prosecution undert[akes] the burden of establishing facts beyond a

reasonable doubt.” Monge v. California, 524 U.S. 721, 730, 118 S.

Ct. 2246, 2251 (1998) (discussing Bullington v. Missouri, 451 U.S.

430, 101 S. Ct. 1852 (1981)); see Arizona v. Rumsey, 467 U.S. 203,

212, 104 S. Ct. 2305, 2310 (1984) (holding double jeopardy applies

to the penalty phase of capital trial because the penalty phase

“proceeding is like a trial”). Therefore, we must determine

whether resentencing the defendants under Arizona’s new sentencing

statutes violates the prohibition against double jeopardy.

Resentencing Does Not Increase Sentences.

¶28 The defendants argue that because Arizona’s former law

prescribing judge sentencing was unconstitutional, the most severe

penalty they could have received for first degree murder at the

original sentencing was life or natural life in prison. They

assert that, under superseded section 13-703, a convicted murderer

could not receive the death penalty because that punishment

conceptually did not exist. Therefore, they argue, a resentencing

proceeding under the new sentencing statutes would expose them to

a more severe penalty than was originally available and thus

constitutes double jeopardy. The defendants rely upon decisions

from two state intermediate appellate courts, California v. Harvey,

34
142 Cal. Rptr. 887 (App. 1978), and State v. Choate, 151 Ariz. 57,

725 P.2d 764 (App. 1986).

¶29 In Harvey, a jury convicted Harvey of several counts,

including first degree murder of a police officer. 142 Cal. Rptr.

at 888. After Harvey’s sentencing, the California Supreme Court

declared the state’s capital sentencing statute unconstitutional

because it failed to bring mitigating evidence into the sentencing

calculus. Id. at 890-91; see Rockwell v. Superior Court, 556 P.2d

1101, 1116 (Cal. 1976). While Harvey’s appeal was pending, the

California Legislature amended the state’s capital sentencing

scheme. Harvey, 142 Cal. Rptr. at 890-91. The state argued that

Harvey should be resentenced under the new statute. Id. The

appellate court disagreed, holding that resentencing would violate

double jeopardy because, when the state supreme court held the

former capital sentencing scheme unconstitutional, “that

declaration automatically reduced appellant’s sentence to life

imprisonment.” Id. at 891.

¶30 Similarly, in Choate, the Arizona Court of Appeals held

that double jeopardy prevented resentencing of a defendant on a

dangerous-nature sentencing issue. 151 Ariz. at 58, 725 P.2d at

765. A jury convicted Choate of second degree murder and

aggravated assault. Id. at 57, 725 P.2d at 764. The court of

appeals vacated the dangerous-nature sentence for the second degree

murder conviction because that issue was not determined by a jury.

35
Id. On remand, the trial judge ordered a new jury to convene to

determine whether Choate should receive the dangerous-nature

sentence. Id. Choate appealed that order. The court of appeals

concluded that, because the trial judge mistakenly dismissed the

jury without submitting the dangerous-nature charge in the first

case, permitting a new jury to consider the enhancement allegation

would constitute double jeopardy. Id. at 58, 725 P.2d at 765.

¶31 The Supreme Court addressed this very issue in Dobbert,

however, and reached a different conclusion. Dobbert made the same

argument that the defendants make here. The Florida Supreme Court

declared the death penalty statute in effect at the time of his

murders unconstitutional. Therefore, Dobbert argued, he could not

receive a death sentence because “at the time he murdered his

children there was no death penalty ‘in effect’ in Florida.” 432

U.S. at 297, 97 S. Ct. at 2300. The Supreme Court rejected this

argument, holding that double jeopardy did not attach because a

statute, albeit unconstitutional, permitting capital punishment for

first degree murder existed at the time of the crimes. Id. at 298,

97 S. Ct. at 2300. That statute placed the defendant on notice that

he faced capital punishment if he were convicted. Id.

¶32 The Harvey court distinguished Dobbert by noting that

Dobbert was ultimately sentenced under a constitutional statute,

whereas Harvey was not. 142 Cal. Rptr. at 890. We do not find the

distinction persuasive, however, because it does not affect the

36
Supreme Court’s Dobbert analysis. There the Court discounted the

defendant’s “sophistic argument” because the more important

consideration was that the state’s first degree murder sentencing

policy provided a death sentence even though the procedures for

imposing that sentence later were found unconstitutional. Dobbert,

432 U.S. at 297-98, 97 S. Ct. at 2300 (quoting Chicot County

Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 374, 60 S. Ct.

317, 318 (1940)); see also Knapp v. Cardwell, 667 F.2d 1253, 1264

& n.9 (9th Cir. 1982) (rejecting argument that death sentence is

automatically reduced “to life imprisonment immediately upon

invalidation of the state’s death penalty law”). In short, the

Court rejected the defendants’ argument in Dobbert.

¶33 The basic issue we must resolve is not whether a death

sentence metaphysically existed when the defendants were sentenced,

but rather whether any defendant was “acquitted” at his original

trial of whatever findings were necessary to impose a death

sentence. While a defendant can be resentenced following an

appellate reversal of his or her original sentence, the Double

Jeopardy Clause prohibits imposing any sentence of which the

defendant was either actually or impliedly “acquitted” in the first

instance. Rumsey, 467 U.S. at 211, 104 S. Ct. at 2310; Bullington,

451 U.S. at 437, 445, 101 S. Ct. at 1857, 1861; Peak v. Acuna, 203

Ariz. 83, ___ ¶ 8, 50 P.3d 833, 835 (2002) (stating implied

acquittal exists where appellate court reverses conviction for

37
insufficiency of evidence and double jeopardy precludes retrial).

Thus, a defendant cannot be sentenced to death at a subsequent

sentencing proceeding if “the sentencer or reviewing court has

decided that the prosecution has not proved its case that the death

penalty is appropriate.” Poland v. Arizona, 476 U.S. 147, 155, 106

S. Ct. 1749, 1755 (1986) (internal quotation marks omitted).

¶34 The Supreme Court has thoroughly treated and established

the legal principle that applies here. In State v. Rumsey, a jury

convicted the defendant of first degree murder. 130 Ariz. 427, 636

P.2d 1209 (1981). During the sentencing phase of the trial, the

judge, misinterpreting the pecuniary gain aggravating circumstance

as applying only to a murder for hire, found no aggravating

circumstances and sentenced the defendant to life in prison. Id.

at 431-32, 636 P.2d at 1213-14. On appeal, we held that the

pecuniary gain aggravating circumstance included any murder

committed for financial gain and remanded the matter for

resentencing. Id. at 431, 636 P.2d at 1213. On remand, the judge

determined that the pecuniary gain circumstance existed and

sentenced the defendant to death. State v. Rumsey, 136 Ariz. 166,

168, 665 P.2d 48, 50 (1983). We reviewed the case on direct appeal

and held that Rumsey’s death sentence violated the Double Jeopardy

Clause because the life sentence imposed at his first trial

implicitly acquitted him of the death sentence, and that Rumsey was

“entitled to finality” on that issue. Id. at 175, 665 P.2d at 57.

38
¶35 The Supreme Court granted certiorari and affirmed. It

held that a capital defendant cannot receive the death penalty on

resentencing if he originally had been sentenced to life in prison.

Rumsey, 467 U.S. at 212, 104 S. Ct. at 2310. The Court explained

that “an acquittal on the merits by the sole decisionmaker in the

proceeding is final and bars retrial on the same charge.” Id. at

211, 104 S. Ct. at 2310. Thus, the Supreme Court’s Rumsey decision

speaks to situations in which the defendant originally received a

sentence other than death.

¶36 In a similar case in which the defendant originally

received a capital sentence, however, the Supreme Court ruled

differently. In Poland v. Arizona, the Court held that capital

defendants sentenced to death at their original sentencing

proceeding and whose sentences were vacated on appeal can be

resentenced to death on remand. 476 U.S. at 151, 106 S. Ct. at

1753. Both of the Poland brothers received death sentences

following their first degree murder convictions. State v. Poland,

132 Ariz. 269, 273, 645 P.2d 784, 788 (1982). During the

sentencing phase, the judge failed to find the pecuniary gain

aggravating circumstance because, like the trial judge in Rumsey,

he misunderstood that circumstance as applying only to a murder for

hire. Id. at 285-86, 645 P.2d at 800-01. The judge did, however,

find the “especially heinous, cruel or depraved” statutory

aggravating factor and sentenced the defendants to death. Id. at

39
285, 645 P.2d at 800. On appeal, this court held that the evidence

adduced during the sentencing proceeding did not support a finding

of a heinous, cruel or depraved murder. Id. at 285, 645 P.2d at

800. We also restated that a killing need not be a murder for hire

to qualify for the pecuniary gain aggravator. Id. at 286, 645 P.2d

at 801. On remand, the judge again sentenced both Polands to

death. State v. Poland (Patrick), 144 Ariz. 388, 392, 698 P.2d

183, 187 (1985); State v. Poland (Michael), 144 Ariz. 412, 414, 698

P.2d 207, 209 (1985). We again reviewed and affirmed the Polands’

sentences on direct appeal and held that the evidence, although

insufficient to support a finding of cruelty, did support a finding

of pecuniary gain motive. Poland (Patrick), 144 Ariz. at 407, 698

P.2d at 202; Poland (Michael), 144 Ariz. at 416, 698 P.2d at 211.

¶37 On certiorari, the Supreme Court distinguished the

Polands’ case from Rumsey, and that distinction was critical. In

Poland, both defendants originally received capital sentences.

Unlike the judge in Rumsey’s trial, no fact-finder had “acquitted”

the Polands of capital murder by imposing a prison sentence at the

first sentencing proceeding. Poland, 476 U.S. at 156-57, 106 S.

Ct. at 1756. On resentencing, then, the defendants did not face

sentencing on a charge of which they had been previously

“acquitted” for double jeopardy purposes. Id. at 157, 106 S. Ct.

at 1756. Therefore, jeopardy did not attach and double jeopardy

did not bar the subsequent death sentences. Id.

40
¶38 Like the defendants in Poland, the defendants on direct

appeal all received death sentences at their original trials. The

fact-finder made those findings necessary to impose a death

sentence. In no sense has a fact-finder concluded that the state

failed to prove aggravating circumstances beyond a reasonable

doubt. On remand, no defendant can receive a sentence greater than

that which already has been imposed. Accordingly, we hold that

jeopardy has not attached.

Resentencing Does Not Supplement the Original Jury Verdict.

¶39 The defendants also argue that resentencing violates

double jeopardy because further jury proceedings supplement the

original jury verdict, thereby violating each defendant’s

constitutional “right to have his trial completed by a particular

tribunal.” Wade v. Hunter, 336 U.S. 684, 689, 69 S. Ct. 834, 837

(1949). Although completing a defendant’s trial with the same

judge or jurors is ideal, a defendant holds no absolute right to

such an arrangement. In fact, in Wade v. Hunter, the Supreme Court

affirmed a military conviction in which the charges were dropped

from one court-martial proceeding and re-instituted in another to

accommodate witnesses. Id. at 687-88, 69 S. Ct. at 836. According

to the Supreme Court:

The double-jeopardy provision of the Fifth
Amendment . . . does not mean that every time a defendant
is put to trial before a competent tribunal he is

41
entitled to go free if the trial fails to end in a final
judgment. Such a rule would create an insuperable
obstacle to the administration of justice in many cases
in which there is no semblance of the type of oppressive
practices at which the double-jeopardy prohibition is
aimed. There may be unforeseeable circumstances that
arise during a trial making its completion impossible,
such as the failure of a jury to agree on a verdict. In
such event the purpose of law to protect society from
those guilty of crimes frequently would be frustrated by
denying courts power to put the defendant to trial again.

Id. at 688-89, 69 S. Ct. at 837.

¶40 The ability to resentence a capital defendant by a

different set of jurors is implicit in double jeopardy cases

decided by the Supreme Court in a death penalty context. See

Rumsey, 467 U.S. at 211, 104 S. Ct. at 2310; Wade, 336 U.S. at 688-

89, 69 S. Ct. at 837.8 A capital defendant whose original

sentence is vacated on appeal can be resentenced to death so long

as the defendant has not been “acquitted” of the death sentence.

E.g., Sattazahn, ___ U.S. at ___, 123 S. Ct. at 738; Poland, 476

U.S. at 151, 106 S. Ct. at 1753.

The Arizona Constitution.

¶41 We reach the same result under Article II, Section 10 of

the Arizona Constitution. In Pool v. Superior Court, we

interpreted the state Double Jeopardy Clause more broadly than its

8
For the most part, recalling the defendant’s original
guilt phase jury also presents logistical problems and is wholly
impractical.

42
federal counterpart when prosecutorial misconduct causes a

mistrial. 139 Ariz. 98, 108, 677 P.2d 261, 271 (1984); accord

State v. Minnitt, 203 Ariz. 431, ___ ¶ 29, 55 P.3d 774, 781 (2002).

While we recognized the importance of consistency between federal

and state constitutional law, we found it necessary to diverge from

the double jeopardy standards established by the United States

Supreme Court under the federal constitution. Our decision turned

on the principle that the purpose of the Arizona Double Jeopardy

Clause includes protecting citizens from facing multiple trials for

the same offense because of prosecutorial bad faith:

In our view, therefore, the resolution of the question of
when jeopardy attaches should turn upon the concept of
enforcing the constitutional guarantee against double
jeopardy when the right to be free from multiple trials,
which that clause was meant to guarantee, would be
impaired by the prosecutor's intentional, improper
conduct. We do not agree that standards cannot be
formulated to accomplish the objectives of the clause in
situations such as this.

Pool, 139 Ariz. at 108, 677 P.2d at 271 (citation omitted).

¶42 The defendants do not face further jeopardy because of

prosecutorial misconduct. Moreover, we find no reason to extend

the state Double Jeopardy Clause beyond its federal counterpart

under these facts. Therefore, we conclude that applying the new

sentencing statutes does not constitute a double jeopardy violation

under the Arizona Constitution.

Should Defendants Convicted of Murders Committed Before the

43
Natural Life Sentence Became Available Have Their Sentences
Reduced to Life if the Court Reduces Their Sentences?

¶43 In 1993, the Arizona Legislature amended A.R.S. section

13-703 to add a “natural life” sentencing option for defendants

convicted of first degree murder. 1993 Ariz. Sess. Laws ch. 153,

§ 1. The parties stipulate, and we agree, that the sentence of

life without the possibility of parole for twenty-five years,

rather than natural life, must apply to those defendants sentenced

under the pre-1993 statute. See, e.g., State v. Barreras, 181

Ariz. 516, 523-24 n.7, 892 P.2d 852, 859-60 n.7 (1995) (“The

amended statute [permitting natural life sentence] is inapplicable

here, however, because this case arose before its effective

date.”). If subsequent proceedings result in life sentences, these

defendants cannot receive a natural life sentence; only a sentence

of life without the possibility of parole for twenty-five years can

apply.

VI.

Should the Court Review Sixth Amendment Ring II Error as
Structural Error or for Harmless Error?

¶44 The Supreme Court struck down Arizona’s former capital

sentencing statutes because they permitted a judge, rather than a

jury, to find aggravating factors. Ring II, 536 U.S. at ___, 122

S. Ct. at 2443. We conclude that Arizona’s failure to submit this

element of capital murder to the jury does not constitute

structural error. Consequently, the Sixth Amendment does not

44
require automatic reversal of a death sentence imposed under the

former sentencing statutes. Neder v. United States, 527 U.S. 1, 8,

119 S. Ct. 1827, 1833 (1999); Arizona v. Fulminante, 499 U.S. 279,

306-07, 111 S. Ct. 1246, 1263 (1991). Instead, we will review the

defendants’ capital sentences for harmless error.

¶45 Most errors that we consider on appeal, even those

involving constitutional error, constitute trial errors, “which

occur[] during the presentation of the case to the jury, and which

may therefore be quantitatively assessed in the context of other

evidence presented.” Fulminante, 499 U.S. at 307-08, 111 S. Ct. at

1264. In cases involving trial error, we consider whether the

error, so assessed, was harmless beyond a reasonable doubt. If so,

we uphold the verdict entered. In a limited number of cases,

however, structural error occurs. In such instances, we

automatically reverse the guilty verdict entered. Unlike trial

errors, structural errors “deprive defendants of ‘basic

protections’ without which ‘a criminal trial cannot reliably serve

its function as a vehicle for determination of guilt or

innocence . . . and no criminal punishment may be regarded as

fundamentally fair.’” Neder, 527 U.S. at 8-9, 119 S. Ct. at 1833

(quoting Rose v. Clark, 478 U.S. 570, 577-78, 106 S. Ct. 3101, 3106

(1986)).

¶46 The Supreme Court has defined relatively few instances in

which we should regard error as structural. Those instances

45
involve errors such as a biased trial judge,9 complete denial of

criminal defense counsel,10 denial of access to criminal defense

counsel during an overnight trial recess,11 denial of self-

representation in criminal cases,12 defective reasonable doubt jury

instructions,13 exclusion of jurors of the defendant’s race from

grand jury selection,14 excusing a juror because of his views on

capital punishment,15 and denial of a public criminal trial.16 In

all those instances, the error infected “the entire trial process”

from beginning to end. Neder, 527 U.S. at 8, 119 S. Ct. at 1833

(quoting Brecht v. Abrahamson, 507 U.S. 619, 630, 113 S. Ct. 1710,

1717 (1993)).

¶47 The Court’s Ring II decision turned upon the fact that

aggravating circumstances serve as the functional equivalent of an

element of the greater capital murder offense, rather than as a

9
Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437 (1927).
10
Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963).

11
Geders v. United States, 425 U.S. 80, 96 S. Ct. 1330
(1976).
12
McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944 (1984).
13
Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078
(1993).
14
Vasquez v. Hillery, 474 U.S. 254, 106 S. Ct. 617 (1986).
15
Gray v. Mississippi, 481 U.S. 648, 107 S. Ct. 2045
(1987).
16
Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210 (1984).

46
sentencing factor. Ring II, 536 U.S. at ___, 122 S. Ct. at 2443.

“Because Arizona’s enumerated aggravating factors operate as the

functional equivalent of an element of a greater offense,” the

Supreme Court held, “the Sixth Amendment requires that they be

found by a jury.” Id. (emphasis added) (citation and internal

quotations omitted). The essential question, therefore, is whether

we should characterize Arizona’s failure to submit this element of

the capital murder offense to the jury as structural or trial

error.17

¶48 In a decision foreshadowing Apprendi and Ring II, the

Supreme Court declined to find structural error when the trial

judge failed to submit an element of the offense to the jury. In

Neder v. United States, the Court held that the trial court’s

failure to instruct the jury on the materiality element of federal

tax fraud should be reviewed as trial error. 527 U.S. at 19-20,

119 S. Ct. at 1839. The Court distinguished an error omitting an

element of the offense in a jury instruction from structural error:

“Unlike such defects as the complete deprivation of counsel or

17
At various times, the Court’s opinion suggests that Ring
II error should be considered under a harmless error analysis.
First, the Court declined to review the case for harmless error,
stating instead that state courts should be the first to do so.
Ring II, 536 U.S. at ___ n.7, 122 S. Ct. at 2443 n.7. Second, when
commenting upon the fate of death row inmates after the Ring II
decision, Justice O’Connor stated that “prisoners will be unable to
satisfy the standards of harmless error or plain error review.”
Id. at ___, 122 S. Ct. at 2449 (O’Connor, J., dissenting). Because
the Court did not consider the issue of the appropriate standard of
review, we do not regard these statements as conclusive.

47
trial before a biased judge, an instruction that omits an element

of the offense does not necessarily render a criminal trial

fundamentally unfair or an unreliable vehicle for determining guilt

or innocence.” Id. at 9, 119 S. Ct. at 1833. Thus, the Court

concluded, omitting an element of the offense from the jury

instruction is not the sort of error that taints the trial process

itself.

Neder was tried before an impartial judge, under the
correct standard of proof and with the assistance of
counsel; a fairly selected, impartial jury was instructed
to consider all of the evidence and argument in respect
to Neder's defense against the tax charges. Of course,
the court erroneously failed to charge the jury on the
element of materiality, but that error did not render
Neder's trial "fundamentally unfair," as that term is
used in our cases.

Id. at 9, 119 S. Ct. at 1834.18

¶49 In a similar decision that followed Apprendi and Ring II,

the Court again applied the plain error test to a judge’s

consideration of a factor properly left to the jury. United States

v. Cotton, 535 U.S. 625, ___, 122 S. Ct. 1781, 1785 (2002).

Federal law makes available enhanced penalties for drug offenses if

the government proves a statutory threshold drug quantity. Id. at

___, 122 S. Ct. at 1783. In Cotton, the government failed to

allege in its superseding indictment the quantity of drugs involved

18
See also California v. Roy, 519 U.S. 2, 5-6, 117 S. Ct.
337, 339 (1996) (holding trial judge’s failure to instruct jury on
an element of accomplice liability first degree murder was a trial
error to which the harmless error test applied).

48
in the offense, as required by the enhanced penalty. Id. Based on

trial testimony, the district court found the petitioner

“responsible for at least 500 grams of cocaine base,” ten times the

amount set by statute for an enhanced penalty, and imposed the

enhanced sentence. Id. at ___, 122 S. Ct. at 1784. The Supreme

Court concluded that the district court improperly usurped the

quantity finding from the grand jury, but reviewed for plain error.

Id. at ___, 122 S. Ct. at 1785-86. The Court held that the trial

evidence was so “overwhelming” and “essentially uncontroverted”

that “the error did not seriously affect the fairness, integrity,

or public reputation of judicial proceedings.” Id. at ___, 122 S.

Ct. at 1786.

¶50 Although Neder and Cotton did not involve a capital

sentence, their holdings that a failure to submit one element of an

offense to a jury does not infect the trial process from beginning

to end apply equally here. Under both Arizona’s superseded and

current capital sentencing schemes, a defendant’s trial consists of

two phases: a guilt phase and a penalty phase. In the guilt phase,

the jury decides whether the defendant committed first degree or

felony murder as defined by A.R.S. section 13-1105. If the jury

finds the defendant guilty beyond a reasonable doubt, the trial

continues to the penalty phase. Under the former system, the judge

found, beyond a reasonable doubt, the ultimate element required to

complete a capital murder offense: at least one aggravating

49
circumstance not outweighed by one or more mitigating factors.

A.R.S. § 13-703.E. Defendants’ trials thus took place before an

impartial judge and jury, who used the correct standard of proof.

Defendants received the assistance of counsel, who were available

during all phases of their prosecution. Any error, then, affected

the submission of one element rather than the entire trial and did

not render the entire trial fundamentally unfair.19 See Neder, 527

19
The dissent disagrees with this conclusion, arguing
that the defendants experienced a “[c]omplete denial of [the right
to] trial by jury at the sentencing phase . . . .” Dissent, ¶ 109.
Notably, the dissent does not suggest that the defendants were
denied a trial by jury, and it could not, for the error here
resulted not from denying defendants a jury trial but from the
failure to submit one element of the capital offense to the jury
for decision. A capital trial comprises just one trial, divided
into guilt and sentencing phases, and has always been understood as
such, both by this court and by the U.S. Supreme Court. See, e.g.,
Tuilaepa v. California, 512 U.S. 967, 971-72, 114 S. Ct. 2630, 2634
(1994) (holding trier of fact must find one aggravating
circumstance at either the guilt or penalty phase); Payne v.
Tennessee, 501 U.S. 808, 817, 823, 825-26, 111 S. Ct. 2597, 2604,
2607-08 (1991) (repeated references to “guilt phase” and “penalty
phase” of capital trial); State v. Smith, 203 Ariz. 75, passim, 50
P.3d 825, passim (2002) (referring to “sentencing phase” and
“sentencing hearing”); Ring I, 200 Ariz. at 279 ¶ 42, 25 P.3d at
1151 (referring to a “separate evidentiary hearing”). The only
courts of which we are aware that have considered the argument that
a capital trial consists of two “trials” rather than two phases of
one trial have rejected the dissent’s approach. Flamer v.
Delaware, 68 F.3d 736, 758-59 (3rd Cir. 1995) (“The guilt and
penalty phases of a capital trial are parts of a single proceeding,
and there is no constitutional requirement that they be treated as
if they were two entirely separate trials.”); Holland v.
Mississippi, 705 So. 2d 307, 330 ¶ 61 (Miss. 1997) (sentencing
phase of a capital trial not a separate trial, but that phase of
the case that concerns sentencing).
Arizona statutes reflect the single capital trial approach
accepted by our court and the Supreme Court. Arizona law refers to
the sentencing proceeding as the capital trial’s “penalty phase.”
E.g., A.R.S. § 13-703.C. In addition, former and current capital

50
U.S. at 9, 119 S. Ct. at 1833.

¶51 We are not the first court to reach this conclusion.

Courts implementing Apprendi and Ring have reached a consensus that

structural error does not occur when a judge fails to submit to the

jury an element of a crime, otherwise required to be found by a

jury under the Sixth Amendment.20 In United States v. Matthews, the

court held “Apprendi error is susceptible to harmless error

analysis.” 312 F.3d 652, 665 (5th Cir. 2002). The Seventh Circuit

Court of Appeals also found “that errors in both the indictment and

the charge to the jury are subject to harmless-error analysis.”

United States v. Dumes, 313 F.3d 372, 385 (7th Cir. 2002); accord

United States v. Sanders, 247 F.3d 139, 150 (4th Cir. 2001) (citing

cases from the First, Second, Fourth, Fifth, Seventh, and Eleventh

Circuits holding that harmless error applies in Apprendi cases);

sentencing statutes permit use at the sentencing phase of evidence
adduced during the guilt phase of the trial. Id. §§ 13-703.C
(2001), 13-703.D (Supp. 2002).
20
The one case finding structural error is Esparza v.
Mitchell, a case involving a challenge under the Eighth Amendment
rather than the Sixth. In that case, two members of the panel held
the harmless error test inapplicable in a capital case where, under
Ohio law, aggravating factors were required to be charged in the
indictment but were not. 310 F.3d 414, 421 (6th Cir. 2002). The
dissenting judge, concluding that harmless error applied, outlined
the seminal Supreme Court cases defining the harmless error
doctrine and concluded that the error involved did not amount to
deprivation of “basic protections without which a criminal trial
cannot reliably serve its function as a vehicle for determination
of guilt or innocence.” Id. at 428 (Suhrheinrich, J., dissenting)
(quoting Neder, 527 U.S. at 8-9, 119 S. Ct. at 1833 (internal
quotation marks omitted)).

51
Johnson v. Nevada, 59 P.3d 450, 459-60 (Nev. 2002).21

¶52 Those holdings comport with prior Arizona law. In State

v. Styers, we applied the fundamental error test to the trial

judge’s failure to define the “without legal authority” element of

the kidnapping offense in instructions to the jury. 177 Ariz. 104,

111-12, 865 P.2d 765, 772-73 (1993).

¶53 Accordingly, we hold that Arizona’s failure to require a

trial judge to submit the aggravating circumstance element of

capital murder to a jury does not constitute structural error. We

will review the sentences of these defendants for harmless error.

VII.

Does Ring II Apply to Aggravating Circumstances Involving Prior
Convictions?

¶54 Arizona law establishes two aggravating circumstances for

21
In addition to these decisions involving the Sixth
Amendment, federal courts have held that Eighth Amendment
violations occurring at the trial court level are subject to
harmless error analysis. See, e.g., Jones (Lewis) v. United
States, 527 U.S. 373, 402-05, 119 S. Ct. 2090, 2108-10 (1999);
Clemons v. Mississippi, 494 U.S. 738, 110 S. Ct. 1441 (1990). Most
recently, the Ninth Circuit Court of Appeals held that a death
sentence imposed when an unconstitutionally vague jury instruction
was given could be reviewed for harmless error. Valerio v.
Crawford, 306 F.3d 742, 756 (9th Cir. 2002) (“When a state trial
court sentences a defendant to death based in part on an
unconstitutionally vague aggravating circumstance, the state
appellate court . . . can find the error harmless under Chapman v.
California.” (Citation omitted.)).

52
prior criminal convictions.22 A.R.S. § 13-703.F.1-.2. The first

of Arizona’s prior conviction factors, A.R.S. section 13-703.F.1,

applies when “[t]he 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.” The second, A.R.S. section

13-703.F.2, is implicated when “[t]he defendant was previously

convicted of a serious offense, whether preparatory or completed.”23

In Almendarez-Torres v. United States, the Supreme Court held that

a judge could consider prior convictions to enhance a penalty

beyond that authorized by the facts established by the jury’s

22
The 2002 amendment did not change the F.1 and F.2
aggravating factors. 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch.
1, § 1.
23
Section 13-703.H defines “serious offense” as:

1. First degree murder.
2. Second degree murder.
3. Manslaughter.
4. Aggravated assault resulting in serious physical injury
or committed by the use, threatened use or exhibition of a
deadly weapon or dangerous instrument.
5. Sexual assault.
6. Any dangerous crime against children.
7. Arson of an occupied structure.
8. Robbery.
9. Burglary in the first degree.
10. Kidnapping.
11. Sexual conduct with a minor under fifteen years of age.

A.R.S. § 13-703.H (Supp. 2002).
Before 1993, this aggravating circumstance occurred if “[t]he
defendant was previously convicted of a felony in the United States
involving the use or threat of violence on another person.” A.R.S.
§ 13-703.F.2 (1989), amended by 1993 Ariz. Sess. Laws ch. 153, § 1.

53
verdict. 523 U.S. 224, 226-27, 118 S. Ct. 1219, 1222 (1998).

¶55 The State argues that Almendarez-Torres establishes an

exception to Apprendi/Ring for the two prior conviction aggravating

circumstances. According to the State, a judge may

constitutionally determine the existence of any prior conviction.

The defendants argue that Almendarez-Torres is no longer good law.24

They also argue that the F.1 and F.2 aggravating circumstances do

not fit within the prior conviction exception. Alternatively, they

argue that the Arizona Constitution’s jury trial guarantee should

supplant Almendarez-Torres and require a jury determination of

prior convictions. For the following reasons, we hold that

Almendarez-Torres remains effective and that the Sixth Amendment

does not require a jury to determine prior convictions under

sections 13-703.F.1 and F.2.

24
The defendants argue that we should ignore Almendarez-
Torres because Justice Thomas allegedly has repudiated his position
in that case, thereby “expressly” invalidating the decision. In
Apprendi v. New Jersey, Justice Thomas did express regret for
voting with the five member Almendarez-Torres majority. 530 U.S.
466, 518-21, 120 S. Ct. 2348, 2378-79 (2000).
The defendants’ supposition as to Justice Thomas’s view,
however, does not comport with the Supreme Court’s recent decision
in Sattazahn v. Pennsylvania, ___ U.S. ___, 123 S. Ct. 732 (2003).
In that case, Justice Thomas joined Justice Scalia’s separate
opinion which stated, in dicta, that “the existence of any fact
(other than a prior conviction) increas[ing] the maximum punishment
that may be imposed . . . constitutes an element [of the offense].”
Id. at ___, 123 S. Ct. at 739 (emphasis added). This language
demonstrates the dangers of vote-counting before the Court
announces its decision on a particular issue.

54
1. Prior Conviction Aggravating Circumstance.

¶56 First we consider whether Arizona’s statutory aggravating

circumstance for prior convictions falls within the Almendarez-

Torres exception. In cases handed down within the past five years,

the Supreme Court consistently has stated that a statutory

provision permitting increased penalties when a defendant has a

prior conviction operates as a sentencing enhancement and not as an

element of a criminal offense.25

¶57 In two Supreme Court cases, defendants challenged

sentencing enhancements when the government failed to allege the

factor increasing their penalty in the indictment. In Almendarez-

Torres, the Court held that a prior conviction need not be alleged

in a criminal indictment. 523 U.S. at 226-27, 118 S. Ct. at 1222.

The Court first concluded that Congress intended to use recidivism

as a sentencing factor and not as a substantive element. Id. at

230-31, 118 S. Ct. at 1226. It then noted that recidivist

provisions traditionally are used exclusively as sentencing

factors, pointing out that no federal criminal statute contains

recidivism as a statutory element. Id. at 244, 118 S. Ct. at 1231.

Enhanced penalties for repeat offenders do “not relate to the

25
The Court continuously refers to the prior conviction
enhancement as an exception to Apprendi. E.g., Sattazahn, ___ U.S.
at ___, 123 S. Ct. at 739; United States v. Cotton, 535 U.S. 625,
___, 122 S. Ct. 1781, 1783 (2002).

55
commission of the offense, but go[] to the punishment only, and

therefore . . . may be subsequently decided [by a judge].” Id. at

244, 118 S. Ct. at 1231 (quoting Graham v. West Virginia, 224 U.S.

616, 629, 32 S. Ct. 583, 588 (1912)).

¶58 In its next term, the Court decided a similar case and

reached a revised, but consistent, conclusion. In Jones v. United

States, the Court held that federal prosecutors must allege in the

indictment and prove, beyond a reasonable doubt, an element of the

federal car jacking statute the lower courts previously had

regarded as a sentencing factor. 526 U.S. 227, 229, 119 S. Ct.

1215, 1217 (1999). In Jones’s case, serious bodily injury provided

the additional element. Id. at 231, 119 S. Ct. at 1218.

Notwithstanding its decision, the Court reaffirmed that “not every

fact expanding a penalty range must be stated in a felony

indictment” and expressly distinguished sentence enhancements for

prior criminal convictions from other statutory elements because

the law traditionally regards “recidivism as a sentencing factor,

not as an element to be set out in the indictment.” Id. at 248-49,

119 S. Ct. at 1226-27. The Court appeared less concerned with the

fact that Jones involved a Sixth Amendment challenge, while

Almendarez-Torres did not, than with the fact that sentencing

enhancements for prior convictions serve a traditional penological

purpose. Id.

56
¶59 The Court revisited the prior conviction sentence

enhancement issue in Apprendi, decided one year after Jones. In

Apprendi, the Court held that a statutory provision providing an

increased penalty when a crime was motivated by “hate” involved not

a sentencing enhancer, but an element of the offense. 530 U.S. at

491-92, 120 S. Ct. at 2363. Consequently, the Sixth Amendment jury

trial right required that the jury determine the element’s

existence before the enhanced penalty could be imposed. Id. at

490, 120 S. Ct. at 2362-63 (“[A]ny fact that increases the penalty

for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.”). The

Court carefully distinguished its view that prior convictions are

not elements of an offense and structured its holding to exclude

prior convictions from its reach. Id. at 487-90, 120 S. Ct. at

2361-63.

¶60 The Apprendi Court found no need to submit the question

of prior convictions to the jury because, unlike other factors,

prior convictions already had been established through proceedings

incorporating procedural safeguards:

Both the certainty that procedural safeguards attached to
any “fact” of prior conviction, and the reality that
Almendarez-Torres did not challenge the accuracy of that
“fact” in his case, mitigated the due process and Sixth
Amendment concerns otherwise implicated in allowing a
judge to determine a “fact” increasing punishment beyond
the maximum statutory range.

57
530 U.S. at 488, 120 S. Ct. at 2362. Thus, permitting a judge to

decide the “fact” of a prior conviction does not raise Sixth

Amendment concerns; those convictions are themselves products of

Sixth Amendment-compliant proceedings.

¶61 We cannot ignore a Supreme Court decision interpreting

federal law unless the Court expressly overrules or casts

cognizable doubt on that decision. In Agostini v. Felton, the

Court stated:

We do not acknowledge, and we do not hold, that other
courts should conclude our more recent cases have, by
implication, overruled an earlier precedent. We reaffirm
that “[i]f a precedent of this Court has direct
application in a case, yet appears to rest on reasons
rejected in some other line of decisions, [the lower
court] should follow the case which directly controls,
leaving to this Court the prerogative of overruling its
own decisions.”

521 U.S. 203, 237, 117 S. Ct. 1997, 2017 (1997) (quoting Rodriguez

de Quijas v. Shearson/American Exp., Inc., 490 U.S. 477, 484, 109

S. Ct. 1917, 1921-22 (1989)); accord United States v. Gatewood, 230

F.3d 186, 192 (6th Cir. 2000); United States v. Pacheco-Zepeda, 234

F.3d 411, 414 (9th Cir. 2000) (“If the views of the Supreme Court’s

individual justices and the composition of the Court remain the

same, Almendarez-Torres may eventually be overruled.”) (citing

Apprendi, 120 S. Ct. at 2362 (“[I]t is arguable that Almendarez-

Torres was incorrectly decided, and that a logical application of

our reasoning today should apply if the recidivist issue were

58
contested.”)); State v. Harrod, 200 Ariz. 309, 318 ¶ 44, 26 P.3d

492, 501 (2001) (rejecting defendant’s argument that Apprendi

implicitly overruled Walton), vacated on other grounds by Harrod v.

Arizona, ___ U.S. ___, 122 S. Ct. 2653 (2002) (mem.). Our

constitutional system requires adherence to the rule of law

established in Almendarez-Torres unless and until the Court

unequivocally disapproves its holding. Ring I, 200 Ariz. at 279-80

¶ 44, 25 P.3d at 1151-52.

2. Lower Federal and State Appellate Courts.

¶62 Courts consistently have implemented both Apprendi and

Almendarez-Torres. In cases decided after Apprendi, many

defendants facing prior conviction sentence enhancements argued

that Apprendi had either overruled or cast doubt upon Almendarez-

Torres. Courts universally reject this argument and recognize that

the two cases can be harmonized by construing Almendarez-Torres as

the exception to Apprendi’s general rule. E.g., United States v.

Martino, 294 F.3d 346, 349 (2d Cir. 2002); United States v. Stone,

306 F.3d 241, 243 (5th Cir. 2002); Cherry v. Araneta, 203 Ariz.

532, ___ ¶ 5, 57 P.3d 391, 392-93 (App. 2002); State v. Kendall, 58

P.3d 660, 667-68 (Kan. 2002). In explaining its decision, the

Ninth Circuit Court of Appeals stated:

It is true that in Apprendi, the Court expressed
reservations about Almendarez-Torres. However, the Court
reasoned that any due process or Sixth Amendment

59
concerns—arising out of the judicial determination of a
“fact” that increased punishment beyond the statutory
maximum—were mitigated in Almendarez-Torres by “[b]oth
the certainty that procedural safeguards attached to any
‘fact’ of prior conviction, and the reality that [the
defendant] did not challenge the accuracy of that ‘fact’
in his case.” Thus, the Court in Apprendi chose not to
overrule Almendarez-Torres, and unmistakably carved out
an exception for “prior convictions” that specifically
preserved the holding of Almendarez-Torres.

Pacheco-Zepeda, 234 F.3d at 414 (citations omitted).

¶63 The Supreme Court consistently has held that legislatures

may permit a judge to impose an increased penalty based upon a

defendant’s recidivism. We therefore conclude that the Sixth

Amendment does not require a jury to find prior convictions beyond

a reasonable doubt.

3. F.1 and F.2 Prior Conviction Aggravating Factors.

¶64 Several defendants whose cases are consolidated in this

appeal received death sentences based, at least in part, upon prior

conviction findings made by a sentencing judge. Following the

teachings of Almendarez-Torres, Jones and Apprendi, we hold that

the Sixth Amendment does not require remanding these cases for

resentencing on the F.1 and F.2 circumstances.

¶65 The characteristic of a prior conviction aggravating

circumstance that sets it apart from other circumstances is that

the original criminal proceeding, through either a guilty plea or

a verdict of guilt, established the circumstance. No additional

60
benefit derives from having a jury re-find an aggravating

circumstance already established through a guilty plea or a jury

verdict. At each proceeding giving rise to the prior criminal

conviction, defendants either waived their right to a jury trial or

received a jury determination of guilt, and procedural safeguards

protected the defendant against constitutional violations.

Moreover, each defendant had an opportunity to appeal his

conviction.

¶66 The F.1 and F.2 aggravating circumstances contemplate a

more severe punishment for persons who continue to commit crimes.

Our jurisprudence traditionally has viewed recidivism as a

sentencing factor to be determined by a judge. Almendarez-Torres,

523 U.S. at 243, 118 S. Ct. at 1230. Moreover, under the pre-Ring

II capital sentencing scheme, the legislature clearly intended

prior convictions to be sentencing factors and not substantive

elements of capital murder. See, e.g., A.R.S. § 13-703.F–.G (Supp.

2001) (instructing the court to consider aggravating circumstances

when deciding which sentence to impose).

¶67 We reach a different conclusion for those defendants for

whom the trial judge found an F.2 aggravating circumstance prior to

1993. As to those defendants, determining the presence of the F.2

factor required additional fact finding; the judge needed to go

beyond the mere fact that the prior conviction existed.

61
¶68 Arizona amended the requirements for finding an F.2

factor in 1993.26 Prior to the 1993 amendment, section 13-703.F.2

permitted finding this aggravating circumstance when “[t]he

defendant was previously convicted of a felony in the United States

involving the use or threat of violence on another person.” A.R.S.

§ 13-703.F.2 (1989) (emphasis added). State law did not define

“violence” in this context. In United States v. Breitweiser, the

court pointed out:

If a recidivist statute permitted enhancement based on
proof of underlying conduct, however, factual questions
could arise as to exactly what conduct the defendant
engaged in. Typically, such factual questions are within
the province of a jury and this Court doubts that the
Supreme Court would construe Almendarez-Torres as
applying to such situations.

220 F. Supp. 2d 1374, 1379 (N.D. Ga. 2002). We agree that when an

additional finding must be made beyond the bare fact that a prior

conviction exists, the Sixth Amendment demands that a jury perform

this task. That situation can arise for defendants whose F.2

factor depended upon a finding that a prior conviction reflected a

crime involving the use or threat of violence. None of the

consolidated defendants were sentenced under such a circumstance.

Therefore, none of these cases involve a Sixth Amendment violation

based on a judge’s finding of one or more F.2 aggravating

circumstances.

26
1993 Ariz. Sess. Laws ch. 153, § 1.

62
4. The Arizona Constitution.

¶69 This court has held that the Arizona Constitution’s Sixth

Amendment analog, Article II, Section 23,27 provides substantially

the same right to a jury trial as does the Sixth Amendment. State

v. Carlson, 202 Ariz. 570, 577 ¶ 18, 48 P.3d 1180, 1187 (2002).

Nevertheless, the defendants urge us to look to the Arizona

Constitution to find a requirement that prior conviction

aggravating circumstances must be found by a jury.

¶70 They point to two decisions. The first, State v.

Carlson, rejected an argument that the Arizona constitutional right

to an impartial jury provides greater protection than does the

federal constitution against pretrial publicity affecting the jury

pool. Id. at 576-77 ¶¶ 17-18, 48 P.3d at 1186-87. We stated that

our constitution does not afford any greater protection to

defendants against pretrial media coverage than does the federal

constitution. Id. at 577 ¶ 18, 48 P.3d at 1187. The second case,

27
That provision states:

The right of trial by jury shall remain inviolate. Juries
in criminal cases in which a sentence of death or
imprisonment for thirty years or more is authorized by
law shall consist of twelve persons. In all criminal
cases the unanimous consent of the jurors shall be
necessary to render a verdict. In all other cases, the
number of jurors, not less than six, and the number
required to render a verdict, shall be specified by law.

Ariz. Const. art. II, § 23.

63
State ex rel. McDougall v. Strohson, held that Arizona’s

Constitution traditionally provides greater access to jury trials

than that required by the federal constitution. 190 Ariz. 120,

121-22, 945 P.2d 1251, 1252-53 (1997). Under the federal

constitution, only crimes punishable by more than six months in

jail must be tried by a jury. Id. at 122, 945 P.2d at 1253. In

instances in which a defendant can be sentenced to less than six

months in jail, in contrast, our constitution demands a jury trial

if “the moral quality of the act charged, and its relationship to

common law crimes” requires that a jury determine guilt.28 Id.

¶71 In relying on these decisions, the defendants overlook

the distinction between jury impartiality or jury access issues and

the Apprendi/Ring issue. The Carlson case rejected an expansive

interpretation of the Arizona Constitution because we were

unwilling to move beyond federal precedent in this area. Our

holding in Strohson means only that a defendant is entitled to a

jury trial for certain minor crimes for which the federal

constitution does not require a jury trial.

¶72 Under these facts, then, we hold that Article II, Section

28
For instance, we have held that the crimes of driving
under the influence, Rothweiler v. Superior Court, 100 Ariz. 37,
410 P.2d 479 (1966), and possession of marijuana, State ex rel.
Dean v. Dolny, 161 Ariz. 297, 778 P.2d 1193 (1989), require a jury
trial even though they are punishable by less than six months in
jail.

64
23 provides substantially the same jury trial right as does the

Sixth Amendment.

Can the Finding of an Aggravating Circumstance Be Implicit in
the Jury’s Verdict of Conviction?

¶73 We asked the parties to discuss whether any aggravating

circumstance could necessarily derive from a jury’s verdict of

conviction for first degree murder, either standing alone or when

considered in conjunction with other contemporaneous convictions.

The State argues that pecuniary gain, A.R.S. section 13-703.F.5,

other homicides committed during the commission of the offense,

A.R.S. section 13-703.F.8, and age of victim less than fifteen

years or seventy years or older, A.R.S. section 13-703.F.9, can

logically inhere in a verdict. The defendants argue that an

aggravating circumstance can never be implicit.

¶74 We hold that the pecuniary gain and multiple homicide

aggravators usually are not implicit in a jury’s verdict. However,

the age of the victim can be implicit in the verdict, if the jury

simultaneously convicts the defendant of an offense that includes

the age of the murdered victim as an element of the crime.29

1. Pecuniary Gain.

29
The 2002 amendment did not change the F.5 and F.8
aggravating circumstances. 2002 Ariz. Sess. Laws, 5th Spec. Sess.,
ch. 1, § 1. It did, however, make a technical change to the F.9
factor. Id.

65
¶75 Under A.R.S. section 13-703.F.5, an aggravating

circumstance exists when a murder is committed “as consideration

for the receipt, or in expectation of the receipt, of anything of

pecuniary value.” A.R.S. § 13-703.F.5. To establish the pecuniary

gain aggravating circumstance, the state must prove that the murder

would not have occurred but for the defendant’s pecuniary motive.

State v. Harding, 137 Ariz. 278, 296-97, 670 P.2d 283, 394-95

(1983).

¶76 Determining whether a defendant murdered his victim for

pecuniary gain requires a highly fact-intensive inquiry. The state

must establish the connection between the murder and motive through

direct or strong circumstantial evidence. State v. Cañez, 202

Ariz. 133, 159 ¶ 94, 42 P.3d 564, 590 (2002) (holding murder of

victim and only witness to robbery “is powerful circumstantial

evidence of an intent to facilitate escape” and supports finding

pecuniary motive); State v. Gillies, 135 Ariz. 500, 512, 662 P.2d

1007, 1019 (1983) (“Without some tangible evidence, or strong

circumstantial inference, it is not for the sentencing court to

conclude that because money and items were taken, the purpose of

the murder was pecuniary gain.”).

¶77 Complex fact situations require careful attention and

analysis before a fact-finder confidently can conclude that

pecuniary ends motivated the killing. When the state concurrently

66
prosecutes a capital defendant for first degree murder and, for

instance, robbery, both crimes resulting from the same occurrence,

the state does not establish the pecuniary gain factor simply by

showing that the robbery occurred. Rather, the state assumes the

additional burden of showing that pecuniary gain was “a motive,

cause, or impetus for the murder and not merely the result of the

murder.” State v. Kayer, 194 Ariz. 423, 433 ¶ 32, 984 P.2d 31, 41

(1999); see, e.g., State v. Lee, 185 Ariz. 549, 558, 917 P.2d 692,

701 (1996) (affirming pecuniary gain aggravating circumstance where

defendant killed to facilitate escape after robbery).

¶78 The pecuniary gain factor thus requires more than the

jury’s conviction of a defendant for first degree murder and

robbery or burglary. The fact-finder must draw the separate

conclusion that the defendant killed, at least in part, for

pecuniary motive. For that reason, we cannot conclude that a jury

finding of pecuniary gain inheres in its robbery or burglary

verdict.

¶79 Therefore, we will apply a harmless error analysis to the

pecuniary gain factor. In those instances in which no reasonable

jury could find that the state failed to prove a pecuniary gain

motive beyond a reasonable doubt, we will find harmless error

affecting that factor. In other instances, we will consider

whether the Ring II error requires that we remand for resentencing.

67
2. Multiple Homicides.

¶80 A.R.S. section 13-703.F.8 permits a judge to find an

aggravating circumstance if “[t]he defendant has been convicted of

one or more other homicides, as defined in § 13-1101, that were

committed during the commission of the offense.” A.R.S. § 13-

703.F.8. As with the pecuniary gain factor, this factor requires

the state to establish more than that the jury convicted the

defendant of first degree murder and one or more other homicides

occurring around the same time. Instead, all homicides must take

place during “one continuous course of criminal conduct.” State v.

Rogovich, 188 Ariz. 38, 45, 932 P.2d 794, 801 (1997) (quoting State

v. Ramirez, 178 Ariz. 116, 130, 871 P.2d 237, 251 (1994)). This

conclusion can be drawn only after the fact-finder analyzes “the

temporal, spatial, and motivational relationships between the

capital homicide and the collateral [homicide], as well

as . . . the nature of that [homicide] and the identity of its

victim.” Id. (quoting State v. Lavers, 168 Ariz. 376, 393, 814

P.2d 333, 350 (1991)).

¶81 A jury verdict convicting a defendant of two or more

homicides does not in itself establish the multiple homicide

aggravating circumstance. Without a finding that the murders are

temporally, spatially and motivationally related, the bare jury

verdict does not implicitly support the F.8 aggravator. Id.

68
¶82 We will find harmless error affecting this factor in

those cases in which no reasonable jury could find that the state

failed to prove the F.8 factor beyond a reasonable doubt. In other

instances, we will consider whether the Ring II error requires that

we remand for resentencing.

3. Age of Victim.

¶83 Under A.R.S. section 13-703.F.9, an aggravating

circumstance exists when, at the time the murder was committed,

“[t]he defendant was an adult . . . or tried as an adult and the

murdered person was under fifteen years of age or was seventy years

of age or older.” A.R.S. § 13-703.F.9. The statute is

straightforward; the ages of the offender and victim invoke the

aggravator. Medina, 193 Ariz. at 511 ¶ 23, 975 P.2d at 101

(holding this aggravating circumstance does not require further

finding that the defendant was aware of the victim’s age). The F.9

finding is implicit in the jury’s verdict if 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.

¶84 In some instances, Arizona’s criminal code defines crimes

based on the young age of the victim. For example, a person

commits child molestation “by intentionally or knowingly engaging

in or causing a person to engage in sexual contact, except sexual

69
contact with the female breast, with a child under fifteen years of

age.” A.R.S. § 13-1410.A (2001).

¶85 Because the victim’s age constitutes a substantive

element of certain criminal offenses, a conviction necessarily

reflects a jury determination that the victim was less than fifteen

years old. The jury will have already found the necessary fact,

age of the victim, through criminal proceedings compliant with

Sixth Amendment safeguards. Apprendi, 530 U.S. at 488, 120 S. Ct.

at 2362. Under these circumstances, the jury’s implicit finding of

the victim’s age satisfies the F.9 aggravating circumstance.

¶86 If the trial judge found the F.9 factor and the jury also

convicted the defendant of an age-dependent crime committed against

the murder victim, we will find any Ring II error harmless. Other

circumstances that may involve harmless error include, for example,

those instances in which the defendant stipulated to the age of the

victim or in which overwhelming evidence establishes the victim’s

age. In other instances, we will consider whether the Ring II

error requires that we remand for resentencing.

If One Aggravating Factor Was Not Subject to Ring II, Was
Implicitly Found by the Jury or it Was Otherwise Obvious that One
Aggravator Has Been Established Beyond a Reasonable Doubt, Is
There Need for Resentencing?

¶87 The State asserts that if the jury implicitly found one

70
aggravating factor or the trial judge found one factor not subject

to the Ring II analysis, we can uphold the capital sentence imposed

by the trial judge as harmless error. The argument relies upon the

fact that Arizona’s superseded sentencing scheme rendered a

defendant “death eligible” if one aggravating factor existed. Ring

I, 200 Ariz. at 279 ¶ 42, 25 P.3d at 1151. Nothing in Ring II, the

State argues, prevents a trial judge from finding the second and

succeeding aggravating factors, as well as finding mitigating

factors and balancing them against the aggravator.

¶88 A narrow reading of Ring II may permit a judge to decide

the existence of additional aggravating factors in the

circumstances described by the State. As the State contends, once

the government establishes any aggravating factor, a defendant

becomes “death eligible” in the strict sense, and establishing

additional aggravating factors does not render a defendant “more”

death eligible. In our view, however, Ring II should not be read

that narrowly. Although the Court there considered a death

sentence based upon the existence of a single aggravating factor,

we conclude that Ring II requires a jury to consider all

aggravating factors urged by the state and not either exempt from

Ring II, implicit in the jury’s verdict, or otherwise established

beyond a reasonable doubt.

¶89 Another factor leads us to conclude that we should not

71
adopt the State’s argument. As is evident, the procedures urged by

the State do not reflect any sentencing procedure ever adopted by

our legislature. In both the superseded and current capital

sentencing schemes, the legislature assigned to the same fact-

finder responsibility for considering both aggravating and

mitigating factors, as well as for determining whether the

mitigating factors, when compared with the aggravators, call for

leniency. Neither a judge, under the superseded statutes, nor the

jury, under the new statutes, can impose the death penalty unless

that entity concludes that the mitigating factors are not

sufficiently substantial to call for leniency. A.R.S. §§ 13-703.E

(Supp. 2002) and 13-703.F (Supp. 2001). The process involved in

determining whether mitigating factors prohibit imposing the death

penalty plays an important part in Arizona’s capital sentencing

scheme. We will not speculate about how the State’s proposal would

impact this essential process. Clemons v. Mississippi, 494 U.S.

738, 754, 110 S. Ct. 1441, 1451 (1990) (“In some situations, a

state appellate court may conclude that peculiarities in a case

make appellate . . . harmless error analysis extremely speculative

or impossible.”); see also Johnson v. Nevada, 59 P.3d 450 (Nev.

2002)(as applied to Nevada law, Ring II requires jury to weigh

mitigating and aggravating factors under Nevada’s statute requiring

the fact-finder to further find whether mitigating circumstances

72
are sufficient to outweigh the aggravating circumstances).

¶90 We therefore hold that the presence of one or more

aggravating factors either exempt from Ring II, inherent in the

jury’s guilty verdict, or otherwise established beyond a reasonable

doubt does not, in itself, establish that a defendant’s capital

sentence resulted from harmless error.

Does Ring II Require Resentencing if a Defendant Conceded or Did
Not Challenge the Aggravating Factors Found by the Trial Court?

¶91 The State contends that if a defendant stipulates to

facts sufficient to establish an aggravating factor or fails to

challenge one or more aggravating circumstances, that factor

stands. The failure renders error harmless and essentially

establishes overwhelming, undisputed proof of that factor’s

existence. The defendants argue that neither concession nor

failure to contest waives a defendant’s right to a jury trial on

aggravating factors. Substantial differences exist between a

defendant’s decision to concede an aggravating circumstance and a

defendant’s decision not to contest an aggravating circumstance,

and we distinguish between those situations.

¶92 In United States v. Cotton, the Supreme Court reviewed a

case in which the defendant did not contest an element responsible

for his sentence enhancement. 535 U.S. 625, 122 S. Ct. 1781

73
(2002). The issue was whether Apprendi required vacating an

enhanced sentence under a federal narcotics criminal statute when

the government failed to include in the indictment the amount of

cocaine, a fact essential to justifying the enhanced sentence. Id.

at ___, ___ n.3, 122 S. Ct. at 1783, 1786 n.3. After examining for

plain error, the Court found no reversible error under Apprendi

because the government presented overwhelming and essentially

uncontroverted evidence of the amount of cocaine base at trial.

Id. at ___ & n.3, 122 S. Ct. at 1786 & n.3; see also United States

v. Smith, 282 F.3d 758, 771-72 (9th Cir. 2002) (holding Apprendi

error harmless where defendant failed to contradict evidence

establishing drug quantity or object to jury instruction stating

threshold drug quantity need not be found); Robinson v. United

States, 129 F. Supp. 2d 627, 632 (S.D.N.Y. 2001) (holding failure

to submit drug quantity issue to jury did not prejudice defendant

when he did not challenge the amount).

¶93 In cases in which a defendant stipulates, confesses or

admits to facts sufficient to establish an aggravating

circumstance, we will regard that factor as established. Our

harmless error inquiry then focuses on whether no reasonable jury

could find that the mitigation evidence adduced during the penalty

phase is “sufficiently substantial to call for leniency.” A.R.S.

§ 13-703.E. Unless we conclude beyond a reasonable doubt that a

74
jury would impose a death sentence, we must remand the case for

resentencing. See Id. § 13-703.E; Neder v. United States, 527

U.S. 1, 19, 119 S. Ct. 1827, 1838 (1999); State v. Bible, 175 Ariz.

549, 588, 858 P.2d 1152, 1191 (1993). See infra, Section VIII.

¶94 When a defendant simply fails to challenge an aggravating

circumstance at the penalty phase, the state retains the burden of

proving the aggravator’s existence beyond a reasonable doubt. See

State v. Spreitz, 190 Ariz. 129, 147, 945 P.2d 1260, 1278 (1997).

Our inquiry then becomes whether the state has met its burden. If

reasonable doubt exists as to this factor, then we must consider

remanding for resentencing.

Can the State Raise Harmless Error if It Did Not Make That
Argument Below?

¶95 The defendants argue that the State waived its harmless

error argument by failing to raise it prior to this stage of

litigation. We disagree. Until the Supreme Court overruled Walton

v. Arizona, the State had no reason to argue that failure to obtain

jury findings as to aggravating factors constituted error at all.

Lockhart v. Fretwell, 506 U.S. 364, 369 n.2, 113 S. Ct. 838, 842

n.2 (1993) (“Harmless-error analysis is triggered only after the

reviewing court discovers that an error has been committed.”).

Only after the Court defined constitutional error in Arizona’s

75
sentencing procedure did the question whether such error was

harmless arise. We will not penalize the State for failing to

anticipate the Court’s holding in Ring II.

¶96 Moreover, the Arizona Constitution imposes an independent

obligation on the state judiciary not to reverse a case “for

technical error in pleadings or proceedings when upon the whole

case it shall appear that substantial justice has been done.”

Ariz. Const. art. VI, § 27 (2001); accord A.R.S. § 13-3987 (2001).

If error is harmless, in these or other cases, substantial justice

has been done.

Does the Sixth Amendment Require the Jury to Make Enmund-Tison
Findings in Capital Felony Murder Cases?

¶97 In cases of first degree felony murder convictions, an

Enmund-Tison finding must be made to satisfy the Eighth Amendment’s

proportionality standard. Tison v. Arizona, 481 U.S. 137, 107 S.

Ct. 1676 (1987); Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368

(1982). In Arizona, the trial judge makes this finding. See State

v. Greenway, 170 Ariz. 155, 171, 823 P.2d 22, 38 (1991). The

defendants argue that Ring II requires that Enmund-Tison findings

be made by a jury. We hold that the Sixth Amendment principles of

Apprendi/Ring do not require a jury to make Enmund-Tison findings.

¶98 The Eighth Amendment’s Cruel and Unusual Punishment

76
Clause prohibits “all punishments which by their excessive length

or severity are greatly disproportioned to the offenses charged.”30

Weems v. United States, 217 U.S. 349, 371, 30 S. Ct. 544, 551

(1910) (quoting O’Neil v. Vermont, 144 U.S. 323, 339-40, 12 S. Ct.

693, 699-700 (1892) (Field, J., dissenting)). In capital

punishment terms, the Eighth Amendment requires courts to consider

carefully death sentences imposed on defendants convicted of felony

murder. In Enmund v. Florida and Tison v. Arizona, the Supreme

Court imposed Eighth Amendment cruel and unusual punishment

restraints in capital felony murder cases. The Court held that

Eighth Amendment principles forbid a state from sentencing to death

a defendant “who aids and abets a felony in the course of which a

murder is committed by others but who does not himself kill,

attempt to kill, or intend that a killing take place or that lethal

force will be employed.” Enmund, 458 U.S. at 797, 102 S. Ct. at

3376. Five years later, in Tison, the Court refined its prior

decision by holding that “major participation in the felony

committed, combined with reckless indifference to human life, is

sufficient to satisfy the Enmund culpability requirement.” 481

30
“Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.” U.S.
Const. amend. VIII. The Eighth Amendment applies to the states
through the Due Process Clause of the Fourteenth Amendment.
Robinson v. California, 370 U.S. 660, 666, 82 S. Ct. 1417, 1420
(1962).

77
U.S. at 158, 107 S. Ct. at 1688.

¶99 The Supreme Court already has addressed the question

whether a jury must make Enmund-Tison findings. In Cabana v.

Bullock, the Court held that the federal constitution does not

require a jury to determine a defendant’s level of culpability in

capital felony murder cases. 474 U.S. 376, 385, 106 S. Ct. 689,

696 (1986). Foreshadowing its recent Sixth Amendment decisions,

the Court distinguished Enmund from the statutorily defined

elements of a substantive offense at issue in Apprendi:

[O]ur ruling in Enmund does not concern the guilt or
innocence of the defendant—it establishes no new elements
of the crime of murder that must be found by the jury.
Rather, as the Fifth Circuit itself has recognized,
Enmund “does not affect the state's definition of any
substantive offense, even a capital offense.” Enmund
holds only that the principles of proportionality
embodied in the Eighth Amendment bar imposition of the
death penalty upon a class of persons who may nonetheless
be guilty of the crime of capital murder as defined by
state law: that is, the class of murderers who did not
themselves kill, attempt to kill, or intend to kill.

Id. (citation and footnote omitted)(emphasis added).

¶100 We conclude that this distinction withstands Apprendi and

Ring II. Enmund-Tison findings affect sentencing very differently

than do findings of aggravating circumstances. Even if a jury is

satisfied that the state has established all statutory elements for

capital felony murder, including aggravating circumstances, the

judge must remove the defendant from the class of defendants

78
otherwise death-eligible if she cannot make Enmund-Tison findings.

The question is not whether the state has met its burden but

whether, given a defendant’s culpable mental state, the government

can impose capital punishment consistent with the Eighth

Amendment’s proportionality threshold. That determination involves

not a Sixth Amendment jury trial right but rather an Eighth

Amendment proportionality analysis, traditionally the prerogative

of the judge. As the Cabana Court stated:

[T]he decision whether a sentence is so disproportionate
as to violate the Eighth Amendment in any particular
case, like other questions bearing on whether a criminal
defendant’s constitutional rights have been violated, has
long been viewed as one that a trial judge or an
appellate court is fully competent to make.

Id. at 386, 106 S. Ct. at 697.

¶101 The difference between aggravating circumstances as

substantive elements of a greater offense and the Enmund-Tison

findings as a restraint on capital sentencing dictates our decision

that Apprendi/Ring does not require these findings to be made by

the jury. Id. The Sixth Amendment assigns to the jury

responsibility for determining whether all statutory criminal

elements exist. Therefore, a defendant cannot receive a particular

sentence unless a jury finds all the elements of the offense

charged. Id. at 384, 106 S. Ct. at 696 (citing Duncan v.

Louisiana, 391 U.S. 145, 88 S. Ct. 1444 (1968)). The Enmund-Tison

findings, on the other hand, operate as a judicially crafted

79
instrument used to measure proportionality between a defendant’s

criminal culpability and the sentence imposed. These two rules of

law are conceptually and constitutionally distinct. We hold that

the Sixth Amendment does not require that a jury, rather than a

judge, make Enmund-Tison findings.

VIII.

Conclusion.

¶102 Our review of aggravating circumstances will produce one

of several results. In some of these consolidated cases, our

review will not allow the conclusion, beyond a reasonable doubt,

that the error did not contribute to or affect the capital

sentence. In those cases, we must remand for resentencing.

¶103 Other cases will involve aggravators that we will regard

as established. In some of those cases, the aggravating factors

fall outside the Ring II analysis. Others will involve aggravating

factors that inhere in the jury’s verdict or to which a defendant

stipulated. In yet other instances, the evidence presented at

trial and the sentencing hearing may be sufficiently overwhelming

that we will conclude no reasonable jury would have failed to find

the factor established beyond a reasonable doubt. Even in these

instances, however, one further determination can affect our

harmless error analysis.

¶104 Arizona’s statutes require more than the presence of one

80
or more statutorily defined aggravating factors to impose the death

penalty:

In determining whether to impose a sentence of death or
life imprisonment, the trier of fact shall take into
account the aggravating and mitigating circumstances that
have been proven. The trier of fact shall impose a
sentence of death if the trier of fact finds one or more
of the aggravating circumstances enumerated in subsection
F of this section and then determines that there are no
mitigating circumstances sufficiently substantial to call
for leniency.

A.R.S. § 13-703.E (emphasis added);31 see also Id. § 13-703.01.H.

Because a trier of fact must determine whether mitigating

circumstances call for leniency, we will 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 call for leniency. If we cannot

reach that conclusion, we must find reversible error and remand the

case for resentencing. In separate opinions, we will consider

individually the sentences of these defendants, applying the

standards set forth in this opinion.

_________________________________
Ruth V. McGregor, Vice Chief Justice

31
The legislature’s post-Ring II amendments to section 13-
703 replaced “court” with “trier of fact,” referring to the jury
or, in cases of a waiver of trial by jury, the court. 2002 Ariz.
Sess. Laws, 5th Spec. Sess., ch. 1, § 1.

81
CONCURRING:

_________________________________
Rebecca White Berch, Justice

_____________________________________
Michael D. Ryan, Justice

F E L D M A N, Justice (Retired), concurring in part and dissenting
in part:

¶105 I dissent from Part VI of the majority opinion because I

cannot agree that the complete absence of the jury in the separate

capital sentencing proceeding that determines a defendant’s

eligibility for the death penalty is reviewable for harmless error.

In my view, the denial of a jury in the sentencing phase is a

defect in the fundamental mechanism of the trial and is therefore

structural error; thus the death sentence should be vacated. This

is not only required by logic but is the teaching of a long line of

our cases.

¶106 We have just recently held, for instance, that the

erroneous exclusion for cause of prospective jurors was structural

error that required reversal. State v. Anderson, 197 Ariz. 314,

324, ¶ 23, 4 P.3d 369, 379, ¶ 23 (2000). To hold otherwise and

82
review for harmless error would lead us “down a slippery slope that

could be used to justify overlooking every structural error [such

as] denial of a jury trial or the right to counsel.” Id. at 323,

¶¶ 21-22, 4 P.3d at 378, ¶¶ 21-22; see also State v. Henley, 141

Ariz. 465, 469, 687 P.2d 1220, 1224 (1984) (structural error to try

defendant to eight-person jury when constitution guaranteed twelve-

person jury for crime charged); State v. Luque, 171 Ariz. 198, 200,

829 P.2d 1244, 1246 (App. 1992) (trial to wrong number of jurors is

fundamental, structural error).

¶107 If, as we have held, it is fundamental and structural

error erroneously to exclude potential jurors or try a defendant to

an insufficient number of jurors, it is difficult to see how

deprivation of trial by jury at the capital sentencing phase can be

less erroneous. The reason is plain: it is simply impossible to

predict what a jury would have done if one had been impaneled.

State v. Smith, 197 Ariz. 333, 339-40, 4 P.3d 388, 394-95 (App.

1999). Appellate review of such error is not “like measuring the

effect of erroneous evidentiary rulings against the overall weight

of properly admitted evidence. Errors involving the composition of

the court or jury affect the legitimacy of the entire proceeding,

leaving nothing to measure or weigh and requiring reversal.”

Anderson, 197 Ariz. at 323, ¶ 22, 4 P.3d 378, ¶ 22. The error in

these cases is unlike trial errors, which can be “quantitatively

83
assessed in the context” of all the evidence. Arizona v.

Fulminante, 499 U.S. 279, 307, 111 S. Ct. 1246, 1264 (1991).

¶108 The majority concludes, however, that the failure to

submit any part of the determination of aggravating circumstances

to a jury was not structural error. Op. at ¶ 44. I cannot agree.

As the majority explains, in capital sentencing prior to Ring II,

the trial proceeded in two phases, a guilt phase and a sentencing

phase. Op. at ¶¶ 7-13. The first, before a jury, was concerned

only with the question of conviction or acquittal of the crime of

first degree murder. The second, tried to the court under

Arizona’s prior sentencing statute, was concerned only with the

issue of aggravating factors and mitigating circumstances. Each

phase was tried to different factfinders on different issues. The

Supreme Court, in these circumstances, has held that the sentencing

phase resembles a separate trial, so much so that the double

jeopardy clause applies both to the guilt phase and the sentencing

phase. See, e.g., Strickland v. Washington, 466 U.S. 668, 686-87,

104 S. Ct. 2052, 2064 (1984); Bullington v. Missouri, 451 U.S. 430,

101 S. Ct. 1852, 1862 (1981) (double jeopardy protection attaches

to capital sentencing proceeding); Arizona v. Rumsey, 467 U.S. 203,

209, 104 S. Ct. 2305, 2309 (1984) (Arizona capital sentencing

proceedings resemble a trial for purposes of the double jeopardy

clause). This was our view also. See State v. Rumsey, 136 Ariz.

84
166, 665 P.2d 48 (1983).

¶109 Complete denial of trial by jury at the sentencing phase,

therefore, would seem to preclude harmless error analysis. The

right to trial by jury is “fundamental to the American scheme of

justice.” Duncan v. Louisiana, 391 U.S. 145, 149, 88 S. Ct. 1444,

1447 (1968). The Supreme Court has now held defendants were

entitled to a jury at the sentencing phase to determine the

existence of the alleged aggravating factors but were denied that

constitutional right. Ring v. Arizona 536 U.S., , , 122 S.

Ct. 2428, 2443 (2002) (Ring II). As noted, in Arizona denial of a

jury trial is structural error. The same rule obtains in the

federal system. Sullivan v. Louisiana, 508 U.S. 275, 281-282, 113

S. Ct. 2078, 2083 (1993) (the deprivation of the right to a jury

trial unquestionably qualifies as structural error).

¶110 The majority rejects this conclusion and supports its

decision on the basis of Neder v. United States, 527 U.S. 1, 119 S.

Ct. 1927 (1999). Op. at ¶ 44. But Neder and the cases that rely

on it are cases of trial error, not error in the structure or

mechanism of the trial. Neder was tried to a jury which was

present during the entire trial. The error consisted of the trial

judge failing to instruct the jury on materiality, one of the

elements of the crime of tax fraud. The difference is that in

Neder, the jury was presented with all of the evidence, and the

85
issue of materiality was uncontested. Neder, 527 U.S. at 15, 119

S. Ct. at 1836. The Supreme Court held this was trial error,

reviewable under a harmless error analysis. Id.

¶111 The present cases are different. Unlike Neder, the error

in these cases did not occur during the presentation of the case to

the jury. Instead, the error was the complete absence of the jury

during the penalty phase of the trial. The jury in Ring’s trial

heard no evidence, nor was it asked to make findings of any kind on

the aggravating circumstances of the crime. And, even if such

evidence may have been introduced at the guilt phase, it was not

considered by a jury in the context of the death penalty. As a

consequence, a jury verdict was never returned in these cases on

the greater offense of capital murder. Thus, there is simply “no

object, so to speak, upon which harmless-error scrutiny can

operate.” Sullivan, 508 U.S. at 280, 113 S. Ct. at 2082.

¶112 To apply harmless error review in these consolidated

cases would encourage the court to speculate that reversal is not

necessary because the non-existent jury would have convicted the

defendant in any event. The court, in other words, would transform

itself into a phantom jury. The argument is not supportable.

¶113 In these consolidated cases, the majority must concede

that the jury was erroneously discharged before the trial was

completed. If this permits harmless error review, then, one must

86
suppose, we would also review for harmless error if the trial judge

directed a verdict for the state on one or more elements of the

charge, granted summary judgment on an element, or discharged the

jury after it had determined some but not all of the charges. Such

results are also unsupportable, in my view. “The Sixth Amendment

requires more than appellate speculation about a hypothetical

jury’s action, or else directed verdicts for the State would be

sustainable on appeal; it requires an actual jury finding of

guilty.” Id.

¶114 Today’s opinion puts the majority in the position of

speculating about one of the great unknowables — what a non-

existent jury would have done. We might argue about whether some

or any degree of accuracy can be obtained by such speculation, but

the argument is irrelevant. Both the state and federal

constitutions guarantee defendants the right to trial by jury — not

for one-half of the trial, not for two-thirds, four-fifths, or

nine-tenths of the trial but for the whole trial. When the jury

trial guarantee is violated, I believe structural error has

occurred. The Constitution does not then permit judges to conclude

the error was harmless; it requires the court to conclude that the

trial mechanism violated the Constitution and the result should not

be affirmed.

___________________________________
Stanley G. Feldman, Justice (Retired)

87
¶115 I concur in all but Part VI of the majority opinion and

join in Justice Feldman’s dissent as to that part.

___________________________________
Charles E. Jones, Chief Justice

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