State v. Cropper

SUPREME COURT OF ARIZONA

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-00-0544-AP
Appellee, )
) Maricopa County Superior
v. ) Court No. CR97-03949
)
LEROY D. CROPPER, )
) S U P P L E M E N T A L
Appellant. ) O P I N I O N
)
__________________________________)

Appeal from the Superior Court of Maricopa County
The Honorable David R. Cole, Judge

REMANDED FOR RESENTENCING

Janet Napolitano, Former Attorney General Phoenix
Terry Goddard, Attorney General
by Kent E. Cattani, Chief Counsel,
Capital Litigation Section
and Robert L. Ellman
and James P. Beene
and John P. Todd
and Bruce M. Ferg Tucson
Assistant Attorneys General
Attorneys for the State of Arizona

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

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

¶1 The only issue before us is whether reversible error

occurred when a trial judge sentenced Leroy D. Cropper to death

under a procedure that violated the right to a jury trial under the

Sixth Amendment to the United States Constitution. See Ring v.

Arizona, 536 U.S. 584, 609, 122 S. Ct. 2428, 2443 (2002) (Ring II).
We have jurisdiction pursuant to Article VI, Section 5.3 of the

Arizona Constitution and Arizona Revised Statutes (A.R.S.) section

13-4031 (2001). Based on our review of the record, we cannot

conclude that the Sixth Amendment violation constituted harmless

error.

I.

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

Arizona’s former capital sentencing scheme violated the Sixth

Amendment. Ring II, 536 U.S. at 609, 122 S. Ct. at 2443. The

Court declared that “[c]apital defendants, no less than non-capital

defendants . . . are entitled to a jury determination of any fact

on which the legislature conditions an increase in their maximum

punishment.” Id. at 589, 122 S. Ct. at 2432. The Court reversed

our decision in State v. Ring, 200 Ariz. 267, 25 P.3d 1139 (2001)

(Ring I), and remanded for further proceedings consistent with its

decision. Ring II, 536 U.S. at 609, 122 S. Ct. at 2443.

¶3 Following the Supreme Court’s Ring II decision, we

consolidated all death penalty cases in which this court had not

yet issued a direct appeal mandate to determine whether Ring II

requires this court to reverse or vacate the defendants’ death

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

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

sentence imposed under Arizona’s superseded capital sentencing

statutes for harmless error.

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 II.

¶4 Cropper pled guilty to first degree murder, dangerous or

deadly assault by a prisoner, and three counts of promoting prison

contraband for the murder of Arizona Department of Corrections

(ADOC) Officer Brent Lumley. Officer Lumley was murdered after he

and a fellow corrections officer, Deborah Landsperger, searched

Cropper’s cell at the Perryville State Prison.1

¶5 After entering judgment, the trial judge conducted a

sentencing hearing to determine whether any aggravating or

mitigating circumstances existed. See A.R.S. § 13-703 (Supp.

1999), amended by 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, §

1. The judge found three aggravating circumstances and two

mitigating circumstances. He found, beyond a reasonable doubt,

that Cropper had been convicted of a prior serious offense, A.R.S.

section 13-703.F.2 (Supp. 2002), that he murdered Officer Lumley in

an especially cruel manner, A.R.S. section 13-703.F.6, and that he

committed the murder while in the custody of ADOC, A.R.S. section

13-703.F.7.

¶6 Cropper presented six mitigating circumstances to the

court. The judge accepted two non-statutory mitigators: that

Cropper has a strong relationship with certain family members and

that he expressed remorse for the killing. He rejected four: that

1
For a more thorough description of the facts, see State
v. Cropper, 204 Ariz. ___, 68 P.3d 407 (2003).

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Cropper’s capacity to appreciate the wrongfulness of his conduct

and his ability to conform his conduct to the requirements of the

law were significantly impaired, A.R.S. section 13-703.G.1; that

Cropper grew up in a dysfunctional family; that he has a substance

abuse problem; and that his psychological background and

dysfunctional family contributed to his behavior. The judge

concluded that the established mitigating circumstances were not

sufficiently substantial to call for leniency and sentenced Cropper

to death.

¶7 We affirmed Cropper’s convictions on direct appeal and

ordered supplemental briefing on the issue of whether the Sixth

Amendment Ring II error was harmless. Cropper, 204 Ariz. at ___

¶ 25, 68 P.3d at 412. We will find constitutional error harmless

if we conclude, beyond a reasonable doubt, that the error did not

contribute to or affect the sentencing outcome. Ring III, 204

Ariz. at ___, ¶¶ 103-04, 65 P.3d at 946. If we conclude that

reasonable doubt exists, however, then the error is prejudicial and

the case must be remanded for a new sentencing hearing under

Arizona’s amended capital sentencing statutes. Id. at ___, ¶ 102,

65 P.3d at 946.

III.

A.

¶8 Under Arizona law, an aggravating circumstance exists

when “[t]he defendant was previously convicted of a serious

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offense, whether preparatory or completed.” A.R.S. § 13-703.F.2.

The trial judge found that Cropper had been previously convicted of

aggravated assault. Cropper, 204 Ariz. at ___ ¶¶ 11-12, 68 P.3d at

409.

¶9 In Ring III, we held “that the Sixth Amendment does not

require a jury to determine prior convictions under sections 13-

703.F.1 and F.2.” 204 Ariz. at ___ ¶ 55, 65 P.3d at 937.

Accordingly, we will not disturb the trial judge’s finding that the

prior serious conviction aggravating circumstance exists.

B.

¶10 An aggravating circumstance exists when the defendant

commits first degree murder while in the custody of ADOC. A.R.S.

§ 13-703.F.7. Because Cropper concedes this aggravating

circumstance, we recognize it as established.2 See Ring III, 204

Ariz. at ___ ¶ 93, 65 P.2d at 944.

C.

¶11 Another aggravating circumstance exists when “[t]he

defendant committed the offense in an especially heinous, cruel or

2
Although Cropper concedes that the in-custody aggravating
circumstance exists, the F.7 aggravator also can be implicit in a
verdict. Cf. Ring III, 204 Ariz. at ___ ¶ 83, 65 P.3d at 942
(holding that the age of the victim aggravating circumstance can be
implicit in a jury verdict where the defendant is simultaneously
convicted of a relevant-age-dependent crime). When a jury
simultaneously convicts a defendant of first degree murder and
deadly or dangerous assault by a prisoner, the F.7 aggravator is
implicitly established even though the aggravator itself was not
found by a jury.

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depraved manner.” A.R.S. § 13-703.F.6. The State must prove at

least one of the three components to establish this aggravator.

State v. Jeffers, 135 Ariz. 404, 429, 661 P.2d 1105, 1130 (1983).

¶12 The trial judge found that Cropper committed the murder

in an especially cruel manner. In State v. Knapp, we defined

“cruel” as “disposed to inflict pain esp. in a wanton, insensate or

vindictive manner: sadistic.” 114 Ariz. 531, 543, 562 P.2d 704,

716 (1977) (quoting Webster’s Third New Int’l Dictionary).

Physical cruelty exists when “the victim consciously experienced

physical or mental pain prior to death, and the defendant knew or

should have known that suffering would occur.” State v. Trostle,

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

¶13 At the aggravation/mitigation hearing, the State

presented testimony from Dr. Philip Keen, Chief Medical Examiner

for Maricopa and Yavapai Counties. Dr. Keen testified that Officer

Lumley was attacked from behind and stabbed six times. The knife

entered his neck and chest; the most critical entry penetrated one

of his lungs. According to Dr. Keen, Officer Lumley lived at least

five minutes after the stab wounds were inflicted and remained

conscious for at least three of those minutes. Dr. Keen further

testified that the cuts severed a group of nerves in Lumley’s body.

The nerve damage, according to Dr. Keen, would have caused

suffering. When asked if the injury would have caused a

substantial amount of pain, Dr. Keen responded, “There would be

6
some pain. Substantial? Everybody . . . has a different pain

threshold and so I don’t know how to quantitate the individual

pain.” The defense presented no credible rebuttal evidence.

¶14 In State v. Soto-Fong, we clarified the meaning of an

especially cruel murder. 187 Ariz. 186, 203-04, 928 P.2d 610, 627-

28 (1996). We held that the State had failed to produce sufficient

evidence to support the trial court’s finding of physical cruelty

because the finding was “based on the assumption that a murder is

especially cruel whenever the victim remains conscious for some

moments after being shot.” Id. at 203, 928 P.2d at 627. Although

proving the aggravator does not depend on satisfying “a bright-

line, arbitrary temporal rule,” we cautioned that finding a murder

especially cruel within the meaning of section 13-703.F.6 based on

such an assumption would frustrate the narrowing purpose of the

aggravating circumstance. Id. at 204, 928 P.2d at 628. Instead,

we concluded, “where shots, stabbings, or blows are inflicted in

quick succession, one of them leading rapidly to unconsciousness,

a finding of cruelty, without any additional supporting evidence,

is not appropriate.” Id.

¶15 Our decision in Soto-Fong developed our holding in State

v. Gretzler, 135 Ariz. 42, 659 P.2d 1 (1983), in which we had

distinguished between two groups of cases involving the cruelty

aggravator. The first group consisted of two cases in which we

sustained an F.6 finding. In Knapp, we upheld the trial court’s

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finding where the “defendant burned to death his two infant

daughters.” Id. at 51, 659 P.2d at 10, quoted in Soto-Fong, 187

Ariz. at 203, 928 P.2d at 627. Similarly, in State v. Mata, we

upheld the finding where “the killers performed successive rapes

and severe beatings on the victim prior to murdering her.” Id.,

quoted in Soto-Fong, 187 Ariz. at 203, 928 P.2d at 627.

¶16 The second Gretzler group consisted of three cases in

which we reversed or vacated the trial court’s finding of especial

cruelty because the State failed to sufficiently establish physical

suffering. In State v. Ortiz, 131 Ariz. 195, 639 P.2d 1020 (1981),

and State v. Ceja, 126 Ariz. 35, 612 P.2d 491 (1980), we overturned

the trial judge’s finding of cruelty because the evidence of the

victim’s suffering was inconclusive. Gretzler, 135 Ariz. at 51,

659 P.2d at 10, cited by Soto-Fong, 187 Ariz. at 203, 928 P.2d at

627. In State v. Bishop, 127 Ariz. 531, 622 P.2d 478 (1980), and

State v. Clark, 126 Ariz. 428, 616 P.2d 888 (1980), we held that

suffering could not have occurred because the evidence indicated

the victims died immediately after the attack. Gretzler, 135 Ariz.

at 51, 659 P.2d at 10, cited by Soto-Fong, 187 Ariz. at 203, 928

P.2d at 627.

¶17 The manner in which Officer Lumley died is neither as

patently cruel as were the deaths in Knapp and Mata nor as swift as

those in Bishop and Clark. Because Officer Lumley remained

conscious for a relatively short time, however, the State bore the

8
burden of providing some additional supporting evidence of cruelty.

Soto-Fong, 187 Ariz. at 204, 928 P.2d at 628. On this record, we

cannot hold that all reasonable juries would find the especially

cruel aggravating circumstance established beyond a reasonable

doubt. Cf. State v. Jones, ___ Ariz. ___, ___ ¶ 14, ___ P.3d ___,

___ (2003) (holding that a jury could conclude that the victim lost

consciousness immediately following the first assault); State v.

Cañez, ___ Ariz. ___, ¶ 15, ___ P.3d ___, ___ (2003) (same).

Therefore, Cropper is entitled to a jury finding on this

aggravating circumstance.

IV.

¶18 To sentence a defendant to death, not only must the trier

of fact find, beyond a reasonable doubt, the existence of one or

more aggravating circumstances, but it also must consider whether

any mitigating circumstances are sufficiently substantial to call

for leniency. See A.R.S. § 13-703.E (Supp. 2002). We may “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.”

Ring III, 204 Ariz. at ___ ¶ 104, 65 P.3d at 946.

¶19 Cropper offered several mitigating circumstances for the

court’s consideration. The trial judge found only two mitigators,

and he did not find their weight sufficiently substantial to call

for leniency.

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¶20 The defense’s main theory in mitigation was that the cell

search caused Cropper to relive childhood trauma, thereby forcing

him into a dissociative state. According to the defense, Cropper,

as a child, was severely abused by his stepmother. Cropper’s

father often witnessed the abuse and did not intervene on behalf of

his son. These past psychological traumatic experiences allegedly

matched the cell-search event closely enough to trigger Cropper’s

reaction and subsequent conduct. Therefore, Cropper became

verbally confrontational with Officer Landsperger because he

believed that she, like his stepmother, did not respect him and his

property. While it was she who allegedly disrespected his

property, Cropper held Lumley ultimately responsible because he,

like his father, should have intervened.

¶21 The defense presented the testimony of three experts,

including one neurologist, to support its theory. One of the

defense experts, Dr. Susan Parrish, was questioned about Cropper’s

dissociative state and about why Cropper would attack Officer

Lumley rather than Officer Landsperger. Dr. Parrish answered:

Leroy was in a dissociative state and was flashing back
to what happened in his childhood. Because it’s his
father that he has the hatred for. He, he doesn’t--he
does not blame his stepmother. I mean in his, in his
view, you know, there’s a principle here. This is a man,
you know, a father with a--an architect father here is
standing by and allowing an injustice, that the person
doing it is not recognizing because they have their own,
own set of problems. So it’s the person who allows this
to go on and knows that it’s wrong that is the focus of
his anger.

10
 . . . .

[E]arly on he felt very close to his father. And it’s
possible that that sense of closeness that his
father . . . from his standpoint betrayed, is what
created the foundation for such hate towards a male
authority figure. And, and sort of dismissing the role
of the female.

¶22 The State presented rebuttal evidence in the form of

testimony by psychologist Dr. Jess Miller. Dr. Miller evaluated

Cropper and concluded that he did not commit the murders in an

“altered state,” as theorized by Dr. Parrish. Instead, in Dr.

Miller’s opinion, Cropper suffers from a sociopathic personality

disorder. Dr. Miller concluded that Cropper manipulated the

psychological evaluations.

¶23 The judge rejected this mitigating circumstance because

he failed to find a causal nexus between Cropper’s childhood

experiences and Officer Lumley’s murder. After reviewing the trial

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

would do the same. Dr. Parrish testified both that Cropper

committed the murder while in a dissociative state and that his

childhood trauma caused him to enter that state. Whether or not

this theory is credible and, if so, whether a causal nexus exists

between Cropper’s early life experiences and the murder are

questions of facts that require judging the credibility and weight

of the defense’s mitigation evidence and the State’s rebuttal. We

cannot conclude, beyond a reasonable doubt, that a jury would not

have weighed differently the established mitigating circumstances

11
or found additional mitigating circumstances.

V.

¶24 For the foregoing reasons, we vacate Cropper’s death

sentence and remand for resentencing under A.R.S. sections 13-703

and 13-703.01 (Supp. 2002).

____________________________________
Ruth V. McGregor, Vice Chief Justice

CONCURRING:

_________________________________
Rebecca White Berch, Justice

_________________________________
Michael D. Ryan, Justice

* Justice Hurwitz took no part in the consideration or decision of
this case.

J O N E S, C.J., concurring in part, dissenting in part:

¶25 I concur in the result, but dissent from the majority’s

conclusion that harmless error analysis is appropriate where

sentencing determinations are made by the trial judge in the

absence of the jury. The right to trial by an impartial jury is

fundamental. The sentencing phase is, of itself, a life or death

matter. Where a judge, not a jury, determines all questions

pertaining to sentencing, I believe a violation of the Sixth

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Amendment to the Constitution of the United States has occurred.

In the aftermath of the Supreme Court’s decision in Ring v.

Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002) (Ring II), the

absence of the jury in the sentencing phase of a capital trial

necessarily amounts to structural error. I would remand the case

for resentencing, simply on the basis of the Sixth Amendment

violation. See State v. Ring, ____ Ariz. ____, ____ ¶¶ 105-14, 65

P.3d 915, 946-48 (2003) (Feldman J., concurring in part, dissenting

in part) (Ring III).

Charles E. Jones, Chief Justice

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