SUPREME COURT OF ARIZONA
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-99-0439-AP
Appellee, )
) Pima County Superior
v. ) Court No. CR-58016
)
)
DANNY N. MONTAÑO, )
) 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 Pima County
The Honorable Deborah J.S. Ward, Judge Pro Tempore
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
Law Office of Carla G. Ryan Tucson
by Carla G. Ryan
Attorney for Danny N. Montaño
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 Danny N. Montaño 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
1
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)
1
In Summerlin v. Stewart, 341 F.3d 1082 (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.
2
(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.
II.
¶4 A jury convicted Montaño of first degree murder and
conspiracy to commit first degree murder for the death of Raymond
Jackson. Montaño and Jackson were inmates at the Arizona State
Prison Cimmaron Unit in Tucson. On August 7, 1995, during an open
pod period, Montaño and another inmate, David Jiminez, entered
Jackson’s cell. While Jiminez held him down, Montaño stabbed
Jackson 179 times. Jackson died shortly thereafter.2
¶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, §
2
For a more thorough description of the facts, see State
v. Montaño, 204 Ariz. 413, 65 P.3d 61 (2003).
3
1. The judge found four aggravating circumstances. She found,
beyond a reasonable doubt, that Montaño had been previously
convicted of a prior offense punishable by death or life
imprisonment under Arizona law, A.R.S. section 13-703.F.1, that
Montaño had been previously convicted of a prior serious offense,
A.R.S. section 13-703.F.2, that Montaño committed the murder in an
especially cruel manner, A.R.S. section 13-703.F.6, and that the
murder was committed while Montaño was in the custody of the
Arizona Department of Corrections (ADOC), A.R.S. section 13-
703.F.7.
¶6 Montaño argued that two statutory mitigating
circumstances exist, and the judge rejected both as not proven by
a preponderance of the evidence. Montaño argued that his “capacity
to appreciate the wrongfulness of his conduct or to conform his
conduct to the requirements of law was significantly impaired, but
not so impaired as to constitute a defense to prosecution.” A.R.S.
§ 13-703.G.1. The judge held that the mitigation evidence failed
to prove a causal nexus between Montaño’s upbringing and
polysubstance abuse and his ability to conform his conduct to the
law’s requirements on the day of the murder. Montaño also argued
that he “was under unusual and substantial duress, although not
such as to constitute a defense to prosecution” when he committed
the murder. A.R.S. § 13-703.G.2. The judge concluded that the
evidence did not support Montaño’s argument that he murdered
4
Jackson because of his involvement with a prison gang. Nothing in
the record established that the gang ordered Montaño to kill
Jackson.
¶7 Montaño sought to prove thirteen non-statutory mitigating
circumstances. The trial judge found four proven by a
preponderance of the evidence: biographical misfortune-condition of
birth, learning disability in mathematics, polysubstance abuse, and
low to borderline I.Q.3 The judge rejected the following:
Attention Deficit Hyperactivity Disorder, lack of effective
intervention and treatment, the corrupt and coercive prison
reality, the victim, circumstantial evidence, preliminary hearing
testimony, prison homicide, potential outcome disparity, and the
opinions and feelings of others.
¶8 After reviewing the evidence, the judge determined that
the four established mitigators were not entitled to any mitigating
weight. She found that although Montaño was an alcoholic and drug
user as a teenager, his parents worked hard to provide a loving
family environment. The judge recognized that his “family worked
very hard to provide [him] with a safe and nurturing environment,”
and that his “family did everything they could do to try to [deter]
3
In the Special Verdict, the trial judge held that the
defense had proven the polysubstance abuse mitigating circumstance.
In a statement summarizing her mitigation findings, however, the
judge did not include polysubstance abuse as an established
mitigating circumstance. We assume that the omission is
accidental, and that the polysubstance abuse mitigating
circumstance was proven by a preponderance of the evidence.
5
the defendant’s participation in the criminal justice system.”
Concluding that there was no causal relation between Montaño’s
family life and the murder, the judge assigned no weight to the
biographical misfortune-condition of birth mitigating circumstance.
Likewise, she concluded that Montaño’s learning disability was not
causally related to the murder. The judge further held that
Montaño was not impaired by alcohol or drugs at the time of the
murder and that his low I.Q. did not impact his ability to conform
his conduct to law at the time of the murder.
¶9 The judge concluded that none of the mitigating
circumstances were sufficiently substantial to call for leniency
and sentenced Montaño to death.
¶10 We affirmed Montaño’s convictions on direct appeal and
ordered supplemental briefing on the issue of whether the Sixth
Amendment Ring II error was harmless. Montaño, 204 Ariz. at ___ ¶
85, 65 P.3d at 77. 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.
6
III.
A.
¶11 Arizona law recognizes two separate prior conviction
aggravating circumstances. These aggravators exist when either
“[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,” A.R.S. section 13-703.F.1, or
“[t]he defendant was previously convicted of a serious offense,
whether preparatory or completed,” A.R.S. § 13-703.F.2. The trial
judge found that Montaño had been previously convicted of two
counts of armed robbery in which he received two concurrent life
sentences. She also recognized Montaño’s conspiracy to commit
first degree murder conviction as a prior offense.
¶12 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.
¶13 Arizona law provides for an aggravating circumstance if
a person commits first degree murder while “in the custody
of . . . the state department of corrections.” A.R.S. § 13-
703.F.7. James Grider, an ADOC investigator, testified that
7
Montaño was an inmate on the day of the murder. The defense did
not challenge Grider’s testimony.
¶14 Indeed, Montaño conceded the in-custody aggravating
circumstance as part of his penalty phase mitigation arguments. In
Ring III, we held that “[i]n cases in which a defendant stipulates,
confesses or admits to facts sufficient to establish aggravating
circumstance, we will regard that factor as established.” 204
Ariz. at ___ ¶ 93, 65 P.3d at 944. Montaño attempted to prove
several mitigating circumstances by relying upon his status as a
prisoner. We therefore conclude that the in-custody aggravating
circumstance is established beyond a reasonable doubt.
C.
¶15 The State establishes the especially cruel aggravating
circumstance if it proves, beyond a reasonable doubt, that “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).
¶16 Jackson was stabbed 179 times. The medical examiner
testified that Jackson could have been alive anywhere between one
and three minutes or five and ten minutes after the first fatal
stab wound, depending upon which wound was inflicted first.
According to the medical examiner, Jackson would have suffered
8
shock and then lost consciousness after losing two to three pints
of blood.
¶17 Testimony elicited during cross-examination raised the
possibility that Jackson fell unconscious after receiving blows
from either Montaño or Jiminez before the stabbing began. If that
were true, Jackson would have been unconscious before blood loss
began.
¶18 The State introduced evidence indicating that screams of
pain and torture emanated from Jackson’s cell after Montaño and
Jiminez entered. While the testimony suggests that Jackson was
conscious during the stabbing, his screams also could indicate his
reaction to the fighting taking place beforehand. Given the
evidence, we cannot conclude, beyond a reasonable doubt, that all
reasonable juries would find Jackson’s death especially cruel.
¶19 We conclude that the especially cruel finding is not
harmless beyond a reasonable doubt. Whether Jackson lost
consciousness before the stabbings began or thereafter presents a
question of fact. 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).
Montaño is entitled to a jury determination of this issue.
IV.
¶20 To sentence a defendant to death, the trier of fact must
not only find, beyond a reasonable doubt, the existence of one or
9
more aggravating circumstances, but also consider whether any
mitigating circumstances are sufficiently substantial to call for
leniency. See A.R.S. § 13-703.E. 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.
¶21 Montaño’s penalty phase mitigation theory alleged that
several factors contributed to his inability to conform his conduct
to law on the day of the murder. The defense introduced three
expert witnesses claiming that Montaño’s parents, the educational
system, and the state failed to recognize certain problems he
encountered while a teenager, such as his alcohol and drug abuse.
Additionally, according to the expert testimony, Montaño’s parents
were preoccupied with an incident in which his sister was molested
by a neighbor, which diverted their attention from his problems.
Montaño also alleged that his substance abuse problems contributed
to his propensity to commit crimes and that his low I.Q. rendered
him unable to understand the legality of his conduct.
¶22 Hector Jose Fernandez Barillas, a clinical psychologist
and expert witness for the defense, examined these factors and
concluded that they impaired Montaño’s ability to appreciate the
wrongfulness of his conduct on the day of the murder:
Q. In your report you concluded that reviewing all of
this information and testing the defendant, going
10
over his academic history and his problems that he
had when he was younger, that all of this affected
his ability to conform his conduct to the law?
A. Yes.
Q. Can you -- is this your opinion?
A. Yes, it is.
Q. And this would relate to Mr. Montaño’s inability to
conform his conduct to the law at the time of the murder
he has been convicted of?
A. Yes.
¶23 If a jury had believed this expert testimony, it could
have adopted one or more of Montaño’s proffered mitigating
circumstances. Furthermore, we cannot say beyond a reasonable
doubt that no reasonable jury would have weighed differently the
established aggravating and mitigating circumstances or determined
that the mitigating circumstances were “sufficiently substantial to
call for leniency.” A.R.S. § 13-703.E. We therefore conclude that
the Sixth Amendment error was not harmless.
V.
¶24 Montaño argues that mitigation evidence presented at the
original aggravation/mitigation hearing entitles him to testing for
mental retardation under A.R.S. section 13-703.02 (Supp. 2002). We
cannot conclude, on the record before us, whether Montano suffers
from mental retardation. We need not resolve this issue, however,
because section 13-703.02 will apply at Montaño’s resentencing
proceeding.
11
¶25 In 2001, the Arizona Legislature enacted A.R.S. section
13-703.02, prohibiting the state from executing persons with mental
retardation. A first degree murder defendant afflicted with mental
retardation must be sentenced to life or natural life in prison.
A.R.S. § 13-703.02.A. Although the law as enacted applied
prospectively, the legislature, in 2002, amended the statute to
“apply to any sentencing or resentencing proceeding on any first
degree murder case that is held after the effective date of this
act.” 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1 § 7.A; State
v. Cañez, ___ Ariz. ___, ___ n.1, 74 P.3d 932, 937 n.1 (2003).
VI.
¶26 For the foregoing reasons, we vacate Montaño’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
12
J O N E S, C.J., concurring in part, dissenting in part:
¶27 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
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
13