SUPREME COURT OF ARIZONA
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-02-0042-AP
Appellee,)
) Maricopa County
v. ) Superior Court
) No. CR 1999-003536
BRIAN JEFFREY DANN, )
)
Appellant.) SUPPLEMENTAL OPINION
)
Appeal from the Superior Court in Maricopa County
The Honorable H. Jeffrey Coker, Judge
DEATH SENTENCE 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 Jim D. Nielsen, Assistant Attorney General
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, Appellee
SUSAN M. SHERWIN, MARICOPA COUNTY OFFICE
OF THE LEGAL ADVOCATE Phoenix
by Brent E. Graham
and Consuelo M. Ohanesian
and
SHUGHART, THOMSON, KILROY, GOODWIN & RAUP, P.C. Phoenix
by Rudolph J. Gerber
Attorneys for Brian Jeffrey Dann, Appellant
________________________________________________________________
B E R C H, Justice
¶1 Brian Jeffrey Dann 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 Dann’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 in
these cases under Arizona’s superseded capital sentencing
statute for harmless error.2 Id. at 555, ¶ 53, 65 P.3d at 936.
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.
2
As we stated recently in State v. Sansing, CR-99-0438-
AP 4 n.2 (Ariz. Sept. 25, 2003),
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¶3 We now consider whether the death sentence imposed on
Dann can stand in light of Ring II and Ring III, as well as the
Supreme Court’s decision in Atkins v. Virginia, 536 U.S. 304,
122 S. Ct. 2242 (2002), which held that the Eighth Amendment of
the United States Constitution prohibits the execution of
mentally retarded persons. Id. at 321, 122 S. Ct. at 2252.
FACTS AND PROCEDURAL HISTORY
¶4 On October 1, 2001, a jury found Brian Jeffrey Dann
guilty of three counts of first degree murder and one count of
first degree burglary. Following the jury’s verdict, the trial
judge conducted a sentencing hearing in which he found one
aggravating circumstance beyond a reasonable doubt: that Dann
In Summerlin v. Stewart, 341 F.3d 1082, 1119
(9th Cir. 2003), the court held that the
rule announced in Ring II applies
retroactively to cases on federal habeas
review and concluded that a judge’s
imposition of a death penalty “cannot be
subject to harmless error analysis.” Id. at
*33. We are not bound by the Ninth
Circuit’s interpretation of what the
Constitution requires. See State v.
Vickers, 159 Ariz. 532, 543 n.2, 768 P.2d
1177, 1188 n.2 (1989) (declining to follow a
Ninth Circuit decision which held Arizona’s
death penalty statute unconstitutional
because that decision rested on “grounds on
which different courts may reasonably hold
different views of what the Constitution
requires”); State v. Clark, 196 Ariz. 530,
533, ¶ 14, 2 P.3d 89, 92 (App. 1999) (same).
Accordingly, we decline to revisit our
conclusion that Ring II error can be
reviewed for harmless error.
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had been convicted of one or more homicides that were committed
during the commission of the offense. See Ariz. Rev. Stat.
(“A.R.S.”) § 13-703(F)(8) (2001). This finding rendered Dann
eligible for the death sentence. See id. § 13-703(E). After
reviewing the mitigating circumstances Dann presented at the
sentencing hearing, the judge concluded that they were not
“sufficiently substantial to call for leniency,” and sentenced
Dann to death. On appeal we reversed Dann’s convictions for two
of the first degree premeditated murders, but affirmed one
conviction of premeditated first degree murder, three
convictions of first degree felony murder, and the conviction
and sentence for first degree burglary. State v. Dann, ___
Ariz. ___, ___, ¶ 76, 74 P.3d 231, 250 (2003). We now review
whether, in light of Ring II and Ring III, the death sentence
imposed on Dann can stand.
DISCUSSION
A. Ring II Error
¶5 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, 102-04, 65 P.3d at 936, 946. We now examine
whether the Ring II error was harmless with respect to the
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aggravating circumstance found by the trial judge in Dann’s
case.
1. Aggravating Circumstance: Multiple Homicides.
¶6 Arizona law lists as an aggravating circumstance
whether “[t]he defendant has been convicted of one or more other
homicides . . . which were committed during the commission of
the offense.” A.R.S. § 13-703(F)(8). Ring III makes clear 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, ¶¶ 81-82, 65 P.3d at 942. Rather, the murders must be
“temporally, spatially and motivationally related.” Id. ¶ 81
(citing State v. Rogovich, 188 Ariz. 38, 45, 932 P.2d 794, 801
(1997)).
¶7 In this case, as specifically prohibited by Ring III
and Rogovich, the trial judge based his finding on the fact that
the jury “found beyond a reasonable doubt that the defendant
killed three people.” We agree with Dann that this was error.
See Ring III, 204 Ariz. at 561, ¶¶ 81-82, 65 P.3d at 942 (noting
that “[w]ithout a finding that the murders are temporally,
spatially and motivationally related, the bare jury verdict does
not implicitly support the F.8 aggravator”) (citing Rogovich,
188 Ariz. at 45, 932 P.2d at 801). As we noted in Ring III,
however, we can find the error to be harmless if “no reasonable
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jury could find that the state failed to prove the F.8 factor
beyond a reasonable doubt.” Id. ¶ 82. We find that to be the
case here and therefore conclude that the error was harmless.
¶8 This court recently analyzed the temporal, spatial,
and motivational relationships necessary to support a finding of
the (F)(8) factor. See State v. Tucker, ___ Ariz. ___, ¶¶ 65-
66, 68 P.3d 110, 122 (2003); see also State v. Lavers, 168 Ariz.
376, 393-94, 814 P.2d 333, 350-51 (1991). In Tucker, the court
affirmed the trial court’s finding of a spatial relationship
because all victims were murdered within an apartment, in close
proximity to one another: two in a bedroom and the primary
victim in the adjoining area. Tucker, ___ Ariz. at ___-___,
___, ¶¶ 12-13, 65-66, 68 P.3d at 113-14, 122. It is uncontested
here that Dann’s victims were also killed in close proximity to
one another. All died in the front room of Andrew’s apartment,
where they had been seated near one another. Dann, ___ Ariz. at
___, ¶ 7, 74 P.3d at 237.
¶9 Similarly, the undisputed evidence at trial showed
that all victims were killed within moments of one another. See
id. Witness Tina Pace-Morrell, Dann’s former girlfriend,
testified that, immediately after the killings, Dann came to her
apartment and told her that he shot Andrew Parks, his intended
victim, then Shelly Parks, and then shot Eddie Payan because he
had witnessed the other killings. Id. The short, uninterrupted
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span of time in which these actions occurred satisfied the
temporal relationship required to sustain the (F)(8) factor.
See Lavers, 168 Ariz. at 394, 814 P.2d at 351 (finding a
temporal relationship existed where “the two murders were
separated by just minutes”).
¶10 Finally, the motivational requirement was shown by the
uncontroverted evidence that Dann went to the apartment
intending to kill Andrew, see Dann, ___ Ariz. at ___, ___, ¶¶ 6,
19, 74 P.3d at 237, 239, and killed Shelley and Eddie simply
because they were there, and, with respect to Eddie, simply
because he was a witness, id. ¶ 7. In Tucker, a case very
similar to this one, we found related motivation where, although
the defendant’s ex-girlfriend was the primary victim, other
victims may have been killed to eliminate witnesses. ___ Ariz.
at ___, ¶ 66, 68 P.3d at 122. We concluded that it was
“difficult to imagine a motive for the killings unrelated to the
murder of [the girlfriend]”). Id. We conclude here, as we did
in Tucker, that while a jury may differ as to Dann’s precise
motive for killing Shelly and Eddie, no jury would fail to find
that his motives were related to the murder of Andrew.
¶11 We conclude that, given the uncontroverted evidence on
these points, no jury could have found other than that the three
murders in this case were temporally, spatially, and
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motivationally related. We therefore find any error in this
finding harmless beyond a reasonable doubt.
2. Mitigating Circumstances.
¶12 Our harmless error inquiry does not end with an
examination of the aggravating circumstances. Because we can
affirm a capital sentence only if we can conclude beyond a
reasonable doubt “that no rational trier of fact would determine
that the mitigating circumstances were sufficiently substantial
to call for leniency,” we must also consider whether reversible
error occurred with respect to the mitigating circumstances.
Ring III, 204 Ariz. at 565, ¶ 104, 65 P.3d at 946.
¶13 At his sentencing hearing, Dann offered eleven
mitigating circumstances for the court’s consideration. Three
of these factors were statutory: impairment, unusual or
substantial duress, and age. A.R.S. § 13-703(G)(1), (G)(2),
(G)(5). Dann also offered eight non-statutory factors: (1)
abandonment, (2) polysubstance abuse and dependency, (3)
dysfunctional family, (4) lack of stability, (5) brain damage,
(6) psychiatric issues, (7) residual doubt, and (8) family
support. The trial judge found that Dann proved three of these
latter mitigating circumstances: substance abuse, psychiatric
issues, and family support. He gave little weight to family
support and substance abuse, however, and determined that Dann
failed to establish a significant causal connection between the
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psychiatric issues and the three murders of which he was
convicted. As a result, the trial judge concluded that the
weight of these mitigating factors was insufficient to call for
leniency.
¶14 Based on the conflicting evidence in this record on
these issues, we cannot conclude beyond a reasonable doubt that
no rational jury would find other than as the trial judge found.
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 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. Accordingly, we vacate
Dann’s death sentence and remand for resentencing.
B. Mental Retardation as an Absolute Bar to Execution
¶15 Our inquiry is not yet complete. While Dann’s case
remained on direct appeal, the Supreme Court announced that the
Eighth Amendment to the United States Constitution “‘places a
substantive restriction on the State’s power to take the life’
of a mentally retarded offender.” Atkins, 536 U.S. at 321, 122
S. Ct. at 2252 (quoting Ford v. Wainwright, 477 U.S. 399, 405,
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106 S. Ct. 2595, 2599 (1986)). Furthermore, in 2001, shortly
before the decision in Atkins was announced, the Arizona
legislature enacted a statute barring the imposition of the
death sentence on mentally retarded persons.3
¶16 Dann asserts that he should be afforded a hearing to
determine whether he is mentally retarded and, if so, whether
his retardation is so severe as to bar his execution. In
Atkins, the Court offered some guidance regarding how to
determine whether a defendant has mental retardation. The Court
noted that “clinical definitions of mental retardation require
not only subaverage intellectual functioning, but also
significant limitations in adaptive skills such as
communication, self-care, and self-direction that became
manifest before age 18.” Id. at 318, 122 S. Ct. at 2250.
¶17 We addressed the application of the standards set
forth in Atkins to our death penalty cases in State v. Grell,
205 Ariz. 57, 66 P.3d 1234 (2003). In Grell, the trial judge
sentenced a capital defendant to death after finding that the
defendant had failed to establish that he was mentally retarded.
Id. at 61, ¶ 27, 66 P.3d at 1238. Because Grell was sentenced
3
We note that as originally written, A.R.S. § 13-703.02
applied only prospectively to cases in which the State filed its
notice of intent to seek the death penalty after the effective
date of the statute. The statute was amended in 2002, however,
to apply to all capital sentencing proceedings, including
resentencing proceedings. See id. § 13-703.02(J) (Supp. 2003);
2002 Ariz. Sess. Laws 5th Spec. Sess., ch. 1, § 4.
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before the Supreme Court issued its decision in Atkins, the
trial judge had considered the mental retardation evidence from
the perspective that such evidence might establish a statutory
mitigating factor calling for leniency in sentencing, not from
the perspective that such evidence might raise an absolute bar
to execution. Id. at 63, ¶ 37, 66 P.3d at 1240. We concluded
that the Atkins decision prohibiting the execution of mentally
retarded offenders as well as Arizona’s new statute barring the
imposition of the death penalty on mentally retarded offenders
had “so changed the landscape of death penalty jurisprudence
that the trial court simply could not have applied the correct
principles during sentencing.” Id. ¶¶ 37-38. As a consequence –
and because Grell had made a showing of subaverage intellectual
functioning, deficits in adaptive functioning, and onset before
age 18 – we held that due process required that Grell’s case be
remanded for an Atkins hearing to determine whether Grell had
mental retardation. See id. ¶ 41. Our rationale in doing so
was that the trial judge’s decision not to accept mental
retardation as mitigation might differ when viewing the same
evidence as a bar to execution: “[T]he adversarial procedure by
which Grell’s mental retardation was considered differed in
nature and scope from the process created by the legislature in
A.R.S. § 13-703.02, which contemplates a more thorough
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examination by experts selected by the trial judge, in
consultation with the parties.” Id. ¶ 40.
¶18 Dann’s case differs from Grell’s, however, because
while Grell had presented extensive evidence of his retardation
at the mitigation hearing, including IQ tests placing his
intelligence in the “seventy to seventy-five” range specified by
the Supreme Court in Atkins as triggering the mental retardation
inquiry, Grell also presented expert evidence that he lacked
adaptive capacity and that his condition manifested itself
before age 18. Id. at 62, ¶¶ 31-35, 66 P.3d at 1239; see A.R.S.
§ 13-703.02(K)(2). Dann, on the other hand, presented two IQ
tests, one administered while he was in first grade, which
produced a measured IQ of 123, and a standard WAIS-III given to
Dann in preparation for his sentencing hearing, which revealed a
full scale IQ of 100.4 Neither test reveals intelligence at the
low level necessary to trigger the Atkins/Grell inquiry. Nor
has Dann shown evidence of impairment in adaptive capability or
onset before age 18.
¶19 The only evidence that Dann has offered in this
respect is (1) the 23-point drop in his IQ over three decades,
(2) that he has some degree of brain damage, and (3) that he
4
In Atkins, the Supreme Court noted that “a person
receiving [an IQ] score [on the WAIS-III] of 100 is considered
to have an average level of cognitive functioning.” 536 U.S. at
309 n.5, 122 S. Ct. at 2245 n.5.
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suffers from “an antisocial disorder that shares some aspects of
borderline personality disorder.” Dann alleges that “A.R.S. §
13-703.02 created a pretrial process by which capital defendants
are evaluated for mental defects” (emphasis added). We disagree
with Dann’s characterization of the law. Atkins, Grell, and
Cañez5 recognized the right to a hearing to determine mental
retardation, not mental defects. Mental retardation is not
curable or controllable by medication, as certain forms of
mental illness may be.
¶20 This court recently addressed whether mental
retardation hearings, pursuant to A.R.S. § 13-703.02, are
required on resentencing. See State v. Montaño, CR-99-0439-AP,
slip op. at ¶¶ 24-25 (Ariz. Oct. 21, 2003). In Montaño, the
capital defendant alleged “that his low I.Q. rendered him unable
to understand the legality of his conduct,” and presented expert
testimony that this allegation, considered along with the
defendant’s “academic history and his problems that he had when
he was younger . . . affected his ability to conform his conduct
to the law.” Id. ¶¶ 21-22. Because we could not conclude as a
matter of law from this evidence whether Montaño was mentally
retarded, we remanded the case to the trial court to determine
5
State v. Cañez, 403 Ariz. Adv. Rep. 25 (June 30,
2003).
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whether a mental retardation hearing was required under § 13-
703.02. Id. ¶ 24.
¶21 Unlike Montaño, however, Dann has offered no evidence
that raises any doubt as to whether he may be mentally retarded.
Although he presented IQ evidence, he has never alleged mental
retardation and did not offer any evidence demonstrating even
the possibility of mental retardation. He has offered no
evidence of impairment of adaptive capability or onset before
age 18. In fact the IQ evidence Dann offered showed that at the
time of sentencing his full scale IQ was 100, substantially
above the “seventy to seventy-five” range that triggers the
mental retardation inquiry. Under Atkins and § 13-703.02,
therefore, Dann’s mental ability far exceeded the threshold
necessary to trigger a mental retardation inquiry. Because we
conclude as a matter of law that Dann has not met the minimum
threshold necessary to trigger an Atkins or § 13-703.02 inquiry,
we deny his request for a hearing on the subject of mental
retardation.
C. Claims Raised to Avoid Preclusion
¶22 Dann has raised fourteen separate bases for his claim
that Arizona’s death penalty is unconstitutional. After
reviewing them, we reject each claim and affirm the
constitutionality of the death penalty in Arizona under the
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constitutions of both the United States and the State of
Arizona.
CONCLUSION
¶23 We vacate Dann’s death sentence and remand this case
for jury resentencing pursuant to A.R.S. §§ 13-703 to -703.01,
but deny Dann’s request for a hearing pursuant to Atkins or
A.R.S. § 13-703.02.
_________________________________
Rebecca White Berch, Justice
CONCURRING:
_____________________________________
Ruth V. McGregor, Vice Chief Justice
_____________________________________
Michael D. Ryan, Justice
J O N E S, C.J., concurring in part, dissenting in part:
¶24 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
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Sixth Amendment to the Constitution of the United States has
occurred. In the aftermath of the Supreme Court=s decision in
Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002) (Ring II),
the absence of the jury in the sentencing phase of a capital
trial necessarily amounts to structural error. I would remand
the case for resentencing, simply on the basis of the Sixth
Amendment violation. See State v. Ring, 204 Ariz. 534, 565-67
&& 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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