SUPREME COURT OF ARIZONA
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-00-0595-AP
)
Appellee, ) Pima County
) Superior Court
) No. CR-61846
v. )
)
)
SHAD DANIEL ARMSTRONG, )
) SUPPLEMENTAL OPINION
)
Appellant. )
__________________________________)
Appeal from the Superior Court in Pima County
The Honorable Howard Hantman, Judge
DEATH SENTENCES VACATED; REMANDED FOR RESENTENCING
JANET A. NAPOLITANO, FORMER ARIZONA ATTORNEY GENERAL Phoenix
TERRY GODDARD, ARIZONA ATTORNEY GENERAL
by Kent E. Cattani, Chief Counsel,
Capital Litigation Section
and Robert L. Ellman, Assistant Attorney General
James P. Beene, Assistant Attorney General
John P. Todd, Assistant Attorney General
Bruce M. Ferg, Assistant Attorney General Tucson
Donna J. Lam, Assistant Attorney General
Attorneys for State of Arizona
LAW OFFICES OF HARRIETTE P. LEVITT Tucson
by Harriette P. Levitt
Attorney for Shad Daniel Armstrong
B E R C H, Justice
¶1 Shad Daniel Armstrong was sentenced to death under a
procedure found unconstitutional in Ring v. Arizona, 536 U.S.
584, 122 S. Ct. 2428 (2002) (Ring II). In Ring II, the United
States Supreme Court held that Arizona’s capital sentencing
scheme violated the defendant’s Sixth Amendment right to a jury
trial. Id. at 609, 122 S. Ct. at 2443.1 In doing so, the Court
held that defendants “are entitled to a jury determination of
any fact on which the legislature conditions an increase in
their maximum punishment.” Id. at 589, 122 S. Ct. at 2432. The
Court remanded the case for further proceedings consistent with
its decision. Id. at 609, 122 S. Ct. at 2443.
¶2 On remand, we consolidated all death penalty cases in
which this court had not yet issued a direct appeal mandate,
including Armstrong’s case, to determine whether Ring II
required reversal or vacatur of the death sentences. State v.
Ring, 204 Ariz. 534, 544, ¶¶ 5-6, 65 P.3d 915, 925 (2003) (Ring
III). We concluded that we must review each death sentence
imposed under Arizona’s superseded capital sentencing statute
for harmless error. Id. at 555, ¶ 53, 65 P.3d at 936.
¶3 We now consider whether the death sentence imposed on
Armstrong can stand in light of Ring II and Ring III.
1
The legislature has amended the capital statute so
that sentencing factors in capital cases are now tried before
juries. See 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, § 1.
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FACTS AND PROCEDURAL HISTORY
¶4 On March 10, 2000, a jury found Shad Daniel Armstrong
guilty of two counts of first degree murder and one count of
conspiracy to commit murder for the murders of his sister,
Farrah Armstrong, and her fiancé, Frank Williams. See State v.
Armstrong, ___ Ariz. ___, ___ P.3d ___ (2004), for a detailed
account of the facts of this case.
¶5 Following the jury’s verdict, the trial judge
conducted a sentencing hearing at which he found two aggravating
circumstances beyond a reasonable doubt: that Armstrong
murdered Farrah because he expected to receive something of
pecuniary value and that Armstrong had been convicted of one or
more other homicides committed during the course of the offense.
See Ariz. Rev. Stat. (“A.R.S.”) § 13-703(F)(5), (F)(8) (Supp.
1998). These findings rendered Armstrong eligible for the death
penalty. Id. § 13-703(E). The trial judge found the mitigating
circumstances Armstrong presented at the sentencing hearing
“insufficient to call for leniency” and sentenced Armstrong to
death for each murder conviction. We now review whether, in
light of Ring II and Ring III, the death sentences imposed on
Armstrong can stand.
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DISCUSSION
¶6 In Ring III, we concluded that judicial fact-finding
in the capital sentencing process may constitute harmless error
if we can conclude beyond a reasonable doubt that no reasonable
jury would fail to find the aggravating circumstance. 204 Ariz.
at 555, 565, ¶¶ 53, 103, 65 P.3d at 936, 946. In Schriro v.
Summerlin, ___ U.S. ___, ___, 124 S. Ct. 2519, 2526 (2004), the
Supreme Court held that Ring II “announced a new procedural rule
that does not apply retroactively to cases already final on
direct review.” Ring II errors thus appear to be trial errors
that may be reviewed for harmless error. We therefore examine
whether the Ring II error was harmless with respect to the
aggravating circumstances found by the trial judge in
Armstrong’s case.
A. Aggravating Circumstances
1. Pecuniary Gain
¶7 Arizona law makes the commission of a murder “for the
receipt, or in expectation of the receipt, of anything of
pecuniary value” an aggravating circumstance. A.R.S. § 13-
703(F)(5). This factor is satisfied only “if the expectation of
pecuniary gain is a motive, cause, or impetus for the murder and
not merely a result of the murder.” State v. Hyde, 186 Ariz.
252, 280, 921 P.2d 655, 683 (1996). It is not enough merely to
show that a defendant took property or money after a murder
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occurred.2 State v. Wallace, 151 Ariz. 362, 368, 728 P.2d 232,
238 (1986) (citing State v. Gillies, 135 Ariz. 500, 512, 662
P.2d 1007, 1019 (1983)). The (F)(5) inquiry is “highly fact-
intensive” and requires the State to “establish the connection
between the murder and motive through direct or strong
circumstantial evidence.” Ring III, 204 Ariz. at 560, ¶ 76, 65
P.3d at 941 (citing State v. Cañez, 202 Ariz. 133, 159, ¶ 94, 42
P.3d 564, 590 (2002)).
¶8 In this case, the trial judge found that Armstrong had
a pecuniary motive to murder Farrah.3 The trial judge found that
Armstrong’s discussions with co-conspirator David Doogan before
the murders about taking Farrah’s property, combined with
Armstrong’s deliberate actions in taking property after killing
2
Ring III cites former Vice Chief Justice Gordon’s
concurring opinion in State v. Harding, 137 Ariz. 278, 296-97,
670 P.2d 383, 401-02 (1983) (interpreting the holding of State
v. Clark, 126 Ariz. 428, 436, 616 P.2d 888, 896 (1980)), for the
proposition that the (F)(5) aggravating factor requires proof
“that the murder would not have occurred but for the defendant’s
pecuniary motive.” Ring III, 204 Ariz. at 560, ¶ 30, 65 P.3d at
941 (emphasis added). While this statement accurately
interprets Justice Gordon’s concurring opinion, the majority in
State v. Clark, the case upon which Justice Gordon relied as
authority for his position in Harding, stated only that the
(F)(5) factor should be found “if the receipt of money is
established as a cause of the murders.” 126 Ariz. at 436, 616
P.2d at 896 (emphasis added). The latter statement accurately
reflects Arizona law on this point. The but for test is not
required by A.R.S. § 13-703(F)(5) or Arizona caselaw.
3
The trial judge found no pecuniary motive for Frank’s
murder; rather, he found that “[t]he motive for the murder of
Frank Williams was the defendant’s hatred of Frank Williams.”
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Farrah and Frank, established “strong circumstantial evidence
that pecuniary gain was a motive to kill Farrah.” Armstrong
challenges both the strength and scope of this circumstantial
evidence.
¶9 We will not find harmless the finding of an (F)(5)
aggravating factor if circumstantial evidence and witness
credibility could be weighed differently by a jury than it was
by the sentencing judge. State v. Hoskins, 204 Ariz. 572, 574,
¶ 6, 65 P.3d 953, 955 (2003); State v. Rutledge, 206 Ariz. 172,
175, ¶ 14, 76 P.3d 443, 446 (2003). That Armstrong had a
pecuniary motive to murder Farrah is a plausible inference that
may be drawn from the circumstantial evidence, but it is not the
only reasonable inference that may be drawn. Because a
reasonable jury could differently assess the evidence upon which
the trial judge based his pecuniary gain finding, we cannot
conclude that the trial court’s finding of the (F)(5) factor was
harmless.
2. Multiple Homicides
¶10 Arizona law also lists as an aggravating circumstance
that “[t]he defendant has been convicted of one or more other
homicides . . . committed during the commission of the offense.”
A.R.S. § 13-703(F)(8). In Ring III, we held that when a
“defendant stipulates, confesses or admits to facts sufficient
to establish an aggravating circumstance, we will regard that
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factor as established.” 204 Ariz. at 563, ¶ 93, 65 P.3d at 944.
In this case, Armstrong conceded “that [the (F)(8)] aggravating
factors have been met by the State as a result of the jury
verdicts as to both murder counts.”
¶11 Ring III makes clear, however, that while the finding
of an (F)(8) aggravator is subject to a harmless error analysis,
the finding may not be based solely on the jury’s verdict of
guilt on multiple homicides. 204 Ariz. at 561, ¶ 81, 65 P.3d at
942. Rather, the murders must be “temporally, spatially and
motivationally related.” Id. (citing State v. Rogovich, 188
Ariz. 38, 45, 932 P.2d 794, 801 (1997)). Here, Armstrong
clearly conceded not only that there were multiple homicides in
this case, but also that the State had established the (F)(8)
aggravator. But because the language of that concession
indicates that it was based on the multiple convictions alone
and does not address the temporal, spatial, or motivational
requirements, it is possible that he did not admit “facts
sufficient to establish [the (F)(8) factor].” See id. at 563, ¶
93, 65 P.3d at 944. A thorough examination of the scope of
Armstrong’s concession is unnecessary, however, as the record
before us demonstrates a temporal, spatial, and motivational
relationship substantial enough that no reasonable jury could
fail to find the (F)(8) aggravator beyond a reasonable doubt.
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¶12 At oral argument, Armstrong’s counsel stated that the
temporal and spatial relationship was “obvious.” We agree with
this concession. This court has found a temporal relationship
between multiple homicides committed, as these were, within
moments of each other. State v. Dann, 206 Ariz. 371, 373, ¶ 9,
79 P.3d 58, 60 (2003) (finding a temporal relationship when
undisputed evidence showed that the murders occurred in a
“short, uninterrupted span of time”); see also State v. Lavers,
168 Ariz. 376, 394, 814 P.2d 333, 351 (1991) (finding a temporal
relationship existed where “the two murders were separated by
just minutes”). The evidence in the current case reveals that
Farrah and Frank were murdered within seconds of one another.
David Doogan testified that Armstrong walked into the room where
Frank and Farrah were seated, shot Frank in the chest,
immediately turned to Farrah and shot her once in the chest and
once in the head, and then turned back to Frank and shot him in
the head as well. Based on this evidence, we conclude that a
reasonable jury could not have failed to find that the murders
were temporally related.
¶13 Similarly, we have affirmed the spatial relationship
when the victims were killed in close physical proximity to each
other. Dann, 206 Ariz. at 373, ¶ 8, 79 P.3d at 60 (finding a
spatial relationship where all three victims “died in the front
room of [an] apartment, where they had been seated near one
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another”). In the current case, as in Dann, the victims were
murdered in a living room area as Farrah sat on a couch and
Frank sat next to her on a recliner. We find that a reasonable
jury could not have failed to find that the murders were
spatially related.
¶14 Finally, the motivational relationship is shown by the
substantial evidence that Armstrong killed both Farrah and Frank
to avoid having to go back to prison. The undisputed evidence
at trial was that before her murder, Farrah had indicated that
she would turn herself and Armstrong in to Oklahoma authorities
for a burglary they had committed two years earlier. David
Doogan and Rusty Medina, Armstrong’s girlfriend at the time of
the murders, both testified that Armstrong moved to Arizona
after the burglary to avoid detection, because he would “rather
die than go back to prison.” Doogan and Medina further
testified that Armstrong began planning to murder Farrah and
Frank after learning of Farrah’s intention to turn him in to
Oklahoma authorities.
¶15 As evidence of a disparity in the motives for the two
murders, Armstrong points to the trial court’s statement that
his motive for killing Frank was his “hatred of Frank.”
Although relevant to the issue of motivation, we conclude that
this statement does not dictate the determination of that factor
under Ring III’s (F)(8) analysis.
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¶16 We note initially that the trial judge made this
statement with regard to the pecuniary gain factor, not the
multiple homicide factor. He observed that Armstrong killed
Frank because he hated him and not for pecuniary gain. This
statement reflected the trial judge’s assessment of Armstrong’s
lack of pecuniary motive for killing Frank. It does not
necessarily reflect his assessment of the relationship between
Armstrong’s motive for killing Farrah and his motive for killing
Frank.
¶17 Additionally, the evidence in the record shows that
Armstrong hated Frank because he believed that Frank was
encouraging Farrah to turn him in to law-enforcement
authorities. Indeed, Doogan testified that at one point
Armstrong intended to kill only Frank so that he could exert
more influence over Farrah and prevent her from turning him in.
Consequently, even if Armstrong killed Frank because he hated
him, such motivation is inextricably intertwined with his
motivation for killing Farrah: his desire not to be pursued by
Oklahoma authorities. Cf. State v. Tucker, 205 Ariz. 157, 169,
¶ 66, 68 P.3d 110, 122 (2003) (finding the motivational element
of the (F)(8) aggravator satisfied after finding it “difficult
to imagine a motive for the killings unrelated to the murder of
[the primary victim]”).
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¶18 In Dann, we found the motivational relationship to be
satisfied if “a jury may differ as to [the defendant’s] precise
motive for killing [the other victims, but] no jury would fail
to find that his motives were related to the murder of [the
primary victim].” 206 Ariz. at 374, ¶ 10, 79 P.3d at 61. We
similarly conclude that even if a jury could differ in
determining the precise reason Armstrong murdered Frank, no
reasonable jury could find that motive to be unrelated to his
motive for the murder of Farrah.
¶19 Given the uncontroverted evidence on these points, we
conclude that no reasonable jury could have found other than
that the two murders in this case were temporally, spatially,
and motivationally related. We therefore conclude that the Ring
II error in the (F)(8) finding is harmless.
B. Mitigating Circumstances
¶20 Our harmless error inquiry does not end with an
examination of the aggravating circumstances. In Ring III, we
held that “[b]ecause 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.” 204 Ariz. at 565, ¶ 104, 65 P.3d at 946. The
State of Arizona challenged this procedure by writ of certiorari
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to the United States Supreme Court in State v. Pandeli, ___ U.S.
___, 124 S. Ct. 386 (2003). In its supplemental brief in
Armstrong’s case, the State conceded that remand on the issue of
mitigation is necessary under this court’s mitigation analysis
in Ring III and Pandeli, but asked us to stay any mandate “until
such time as the United States Supreme Court has adjudicated the
petitions for certiorari in Pandeli.” Recently, the United
States Supreme Court denied certiorari in Pandeli, id. We
therefore review the mitigation under the standard of review we
set forth in Ring III, 204 Ariz. at 565, ¶ 104, 65 P.3d at 946,
bearing in mind the State’s concession.
¶21 At his sentencing hearing, Armstrong offered nineteen
mitigating circumstances for the court’s consideration. Two of
these factors were statutory: impairment, and “unusual and
substantial duress,” A.R.S. § 13-703(G)(1), (G)(2). Seventeen
factors were non-statutory: (1) diabetes; (2) duress; (3) anti-
social personality disorder; (4) mood disorder; (5) stress; (6)
history of substance abuse; (7) troubled, abusive, or
dysfunctional family; (8) good employment history; (9) care and
support of family; (10) education and accomplishments; (11)
efforts at rehabilitation; (12) lack of previous record for
violent crime; (13) effect of death sentence on his children;
(14) record of good behavior while incarcerated; (15) lack of
future dangerousness; (16) sentence disparity between Doogan and
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Armstrong; and (17) proportionality of sentence.
¶22 The trial judge expressly did not find the (G)(1)
statutory mitigating factor and impliedly found that Armstrong
had failed to establish the (G)(2) factor. He did find,
however, that Armstrong proved seven of the non-statutory
mitigating factors offered: that Armstrong had a difficult
childhood; that he had completed his G.E.D. during previous
imprisonment; that he had made efforts at rehabilitation during
previous imprisonment; that he had no history of violence other
than the murders; that a death sentence would affect his
children; that he had behaved well while incarcerated; and that
he was a caring parent. Although the trial judge found that
Armstrong had proved these seven mitigating factors, he afforded
them “minimal weight” and determined that they were
“insufficient to call for leniency for each murder.”
¶23 Based on the conflicting evidence in this record on
these issues, we cannot conclude beyond a reasonable doubt that
no rational jury would find otherwise. After reviewing the
evidence, we cannot say that a jury would not have found
additional mitigating factors or weighed differently the
mitigating factors that were found. Furthermore, we cannot say
beyond a reasonable doubt that if a jury had found additional
mitigating circumstances or weighed the mitigating circumstances
differently, it would not have found them “sufficiently
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substantial to call for leniency.” A.R.S. § 13-703(E).
Therefore we conclude that the Ring II error was not harmless in
this case.
CONCLUSION
¶24 Although we find harmless the trial judge’s finding of
the (F)(8) aggravating circumstance, we conclude that a
reasonable jury could differ in finding the (F)(5) aggravating
circumstance, in finding and weighing the mitigating
circumstances offered by Armstrong, and in its ultimate
determination whether the death penalty should be imposed.
Consequently, we vacate Armstrong’s death sentences and remand
for resentencing.
__________________________________
Rebecca White Berch, Justice
CONCURRING:
_______________________________________
Ruth V. McGregor, Vice Chief Justice
_______________________________________
Michael D. Ryan, Justice
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J O N E S, Chief Justice, concurring in part, dissenting in
part:
¶25 I concur in the resentencing determination announced
in the Supplemental Opinion. I respectfully dissent, however,
from the notion that the denial of trial by jury on sentence
enhancement factors in violation of the Sixth Amendment is
subject to harmless error analysis by a reviewing court on
direct appeal.
¶26 The Supreme Court in Apprendi v. New Jersey, 530 U.S.
466, 494 n.19 (2000), a non-capital case, concluded that a Sixth
Amendment violation occurs when the trial judge alone determines
that sentencing enhancement factors exist, thereby increasing
the sentence beyond the maximum prescribed by statute. The
Court reasoned that such factors amount to “the functional
equivalent of an element of a greater offense than the one
covered by the jury’s guilty verdict” and that enhancement
factors under the “functional equivalency” standard must be
presented to and determined by the jury in order to satisfy the
mandate of the Sixth Amendment. Id. at 490.
¶27 Moreover, a concurring opinion in Apprendi reminds us
forcefully that the Sixth Amendment “means what it says” -- that
the right to trial by an impartial jury “has no intelligible
content unless it means that all the facts which must exist in
order to subject the defendant to a legally prescribed
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punishment must be found by the jury.” Id. at 499 (Scalia, J.)
(emphasis in original).
¶28 Two years after Apprendi, the Court extended the rule
to capital cases, holding, under Arizona’s sentencing statutes,
that enhancement facts authorizing the death penalty must be
presented to and determined by the jury. Ring v. Arizona, 536
U.S. 584 (2002) (Ring II). Ring II expressly overruled Walton
v. Arizona, 497 U.S. 639 (1990), in which, twelve years earlier,
the Court upheld Arizona’s judge sentencing scheme in capital
cases even though the procedure then in use called for the trial
judge, not the jury, to find the aggravating facts that could
result in the death sentence. The Ring II Court observed
emphatically that Walton and Apprendi were “irreconcilable,”
that the Court’s current Sixth Amendment jurisprudence “cannot
be home to both,” and that because Arizona’s statutory
aggravating factors operated as “the functional equivalent of an
element of a greater offense,” the Sixth Amendment, consistent
with Apprendi, required that they be found by the jury. 536
U.S. at 609.
¶29 The announcement of Apprendi and Ring II necessarily
signaled the inevitable arrival of related issues. For example,
would Ring II apply retroactively to cases in which the direct
appeal process had become final?; and would sentence enhancement
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findings made by the trial judge in violation of the Sixth
Amendment be subject to analysis for harmless error?
¶30 Both questions have now been raised and have provoked
the familiar debate between substance and procedure, as well as
the difference between structural error and trial error.
Matters of substance are generally subject to retroactive
application and are more likely to escape harmless error
analysis, while matters of procedure are normally not applied
retroactively and are generally subject to harmless error
analysis. Apprendi and Ring II prompt the question addressed in
the Supplemental Opinion in the instant case and in this
dissent: whether denial of the Sixth Amendment right to trial
by jury may be analyzed as procedural and thus treated as
harmless error?
¶31 Based primarily on the rationale set forth in Apprendi
and Ring II, I have posited that harmless error analysis cannot
legitimately be applied to jury denial, or at least that it
should not be so applied, for several reasons: (a) because the
constitutional sanctity of trial by jury preserves a right
“implicit in the concept of ordered liberty,” Teague v. Lane,
489 U.S. 288, 311 (1989); (b) because fact determinations
involving statutory enhancement factors form the sole basis for
the imposition of enhanced punishment, including capital
punishment; and (c) because a sentence enhancement factor
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allowing sentencing beyond the maximum has been substantively
defined as “the functional equivalent of an element of a greater
offense,” Apprendi, 530 U.S. at 494 n.19.
¶32 Given this rationale, and because both Apprendi and
Ring II are now law, it has seemed to me that when the right to
jury trial has been abridged in these circumstances, there can
be no legitimate foundation on which to perform harmless error
analysis of the evidentiary weight to be accorded aggravating
factors that resulted in an enhanced sentence, including, of
course, a capital sentence.
¶33 But in the aftermath of Apprendi and Ring II and their
progeny, the Supreme Court decided Schriro v. Summerlin, ___
U.S. ___, 124 S. Ct. 2519 (2004). Summerlin holds that Ring II
shall not be applied retroactively to cases in which the direct
appeal process is complete and the final mandate of the court
has issued.4 The Summerlin Court explicitly defines the rule
announced in Ring II as a “new procedural rule,” not a rule of
substance. Id. at ___, 124 S. Ct. at 2526. Summerlin further
states the jury guarantee does not rise to the level of a
“watershed rule of criminal procedure implicating the
fundamental fairness and accuracy of the criminal proceeding.”
4
The Supreme Court’s decision in Summerlin is fully
consistent with this court’s unanimous opinion in State v.
Towery, 204 Ariz. 386, 64 P.3d 828, cert. denied, ___ U.S. ___,
124 S. Ct. 44 (2003).
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Id. at ___, 124 S. Ct. at 2525; see also Saffle v. Parks, 494
U.S. 484 (1990); Teague v. Lane, 489 U.S. 288 (1989). I believe
the “new procedural rule” holding in Summerlin is at odds with
the substantive “functional equivalency” standard espoused in
Apprendi and Ring II.
¶34 Nevertheless, now that the Sixth Amendment right to
jury trial has been defined by Summerlin as a “new procedural
rule” limited to prospective application, it would appear my
view that erroneous jury denial is substantive and thus not
subject to harmless error analysis, is on shaky ground. The
shakiness is even more apparent in view of the recent Supreme
Court denial of certiorari in Arizona v. Sansing, 206 Ariz. 232,
77 P.3d 30 (2003), cert. denied, ___ U.S. ___ (2004), in which
this court, the dissent notwithstanding, affirmed the judge-
imposed death penalty on the basis that error in denying the
defendant’s right to trial by jury, was harmless.
¶35 Therefore, because of Summerlin and Sansing, together
with the added weight of the Supremacy Clause, I am constrained
to think the view I have advanced -- that denial of the Sixth
Amendment right to trial by jury is not susceptible to harmless
error analysis -- is, at best, on life support with little hope
of survival. I take some comfort, perhaps undeserved, in the
fact that Summerlin, as well as Apprendi and Ring II, were not
decided unanimously and that I am thus not entirely alone with
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my opinion that the right to jury trial under the Sixth
Amendment is significantly more than a new procedural rule.
¶36 Summerlin dealt with retroactivity, not harmless
error. Accordingly, the door to argument against harmless error
analysis remains ajar, albeit ever so slightly. I therefore
register my dissent on the issue, though probably for the last
time.
¶37 On remand for resentencing, a jury will consider all
aggravating and mitigating factors in Armstrong’s case. I
concur in that result.
__________________________________
Charles E. Jones
Chief Justice
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State v. Armstrong
Court: Arizona Supreme Court
Date filed: 2004-07-15
Citations: 93 P.3d 1061, 208 Ariz. 345
Copy CitationsCombined Opinion