SUPREME COURT OF ARIZONA
en banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-01-0421-AP
Appellee, )
) Maricopa County Superior
v. ) Court
) No. CR1995-006472
MICHAEL JOE MURDAUGH, )
)
Appellant. ) O P I N I O N
)
__________________________________)
Appeal from the Superior Court in Maricopa County
No. CR1995-006472
The Honorable Sherry Hutt, Judge
AFFIRMED
________________________________________________________________
Janet A. Napolitano, Former Attorney General Phoenix
Terry Goddard, Attorney General
By: Kent E. Cattani, Chief Counsel
Capital Litigation Section
and Dawn M. Northup, Assistant Attorney General
Attorneys for Appellee
Michael S. Reeves Phoenix
and
Michael G. Tafoya Phoenix
Attorneys for Appellant
________________________________________________________________
R Y A N, Justice
¶1 Michael Joe Murdaugh entered into a plea agreement
which resulted in convictions for the kidnapping, robbery, and
first degree murder of David Reynolds. The trial judge
sentenced Murdaugh to death for the first degree murder. Appeal
to this court is automatic and direct when the court imposes a
sentence of death. Ariz. Rev. Stat. (“A.R.S.”) § 13-703.04
(Supp. 2003); Ariz. R. Crim. P. 26.15, 31.2(b). The court has
jurisdiction under Article 6, Section 5(3), of the Arizona
Constitution, Arizona Revised Statutes section 13-4031 (2001),
and Arizona Rule of Criminal Procedure 31.2(b).
I.
¶2 On June 26, 1995, Murdaugh’s girlfriend, Rebecca
Rohrs, met the victim, David Reynolds, at a gas station.1 Rohrs
told Reynolds that she was looking for a job and Reynolds
indicated he might be able to help her. Rohrs gave Reynolds a
copy of her resumé and the two exchanged phone numbers. At some
point in the conversation, Reynolds offered to pay Rohrs for
oral sex. Rohrs declined his offer and went home.
¶3 When Rohrs arrived at the home she shared with
Murdaugh, she told him what happened at the gas station.
Murdaugh decided to teach Reynolds a lesson and instructed Rohrs
to contact Reynolds and invite him to the house.
¶4 Rohrs paged Reynolds and invited him to “party” with
her and her friend, Betty Gross. Reynolds returned the page and
while Rohrs was talking to him, Murdaugh stood nearby and told
1
We view the evidence in a light most favorable to
sustaining the verdicts. State v. Gallegos, 178 Ariz. 1, 9, 870
P.2d 1097, 1105 (1994) (citing State v. Atwood, 171 Ariz. 576,
596, 832 P.2d 593, 613 (1992), disapproved on other grounds by
State v. Nordstrom, 200 Ariz. 229, 241, ¶ 25, 25 P.3d 717, 729
(2001)).
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her what to say. After the call, Murdaugh and his friend, Jesse
Dezarn, left to buy methamphetamine. They instructed Rohrs and
Gross to page them as soon as Reynolds arrived. Murdaugh also
told them to make sure Reynolds did not leave before he and
Dezarn returned.
¶5 Approximately fifteen minutes after Reynolds arrived
at the house, Murdaugh and Dezarn stormed in brandishing
firearms. Murdaugh began shouting at Reynolds demanding to know
why he thought that he could treat Rohrs “like a whore.”
Murdaugh continued to yell at Reynolds while Gross and Rohrs
left the house to take anything of value out of Reynolds’
plumbing van. Reynolds remained in the house with Dezarn and
Murdaugh, both of whom continued to waive firearms. Murdaugh
ordered Reynolds to empty his pockets onto the coffee table.
Reynolds had about $200 in cash. At some point in the evening
Murdaugh took the money.
¶6 Murdaugh came out onto the porch, while Rohrs and
Gross were unloading the plumbing van, and reprimanded them for
not wearing gloves. He told them that they had left
fingerprints on everything and asked, “Do you know what I am
going to have to do now?” Murdaugh instructed Gross and Rohrs
to wipe the equipment clean of fingerprints and to place
everything back in Reynolds’ van. Reynolds likely heard the
entire exchange.
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¶7 While Rohrs and Gross were unloading the van, Murdaugh
asked Rohrs to bring him a baseball bat. Rohrs brought the bat
into the house and Murdaugh asked her if she would like to take
a swing at Reynolds’ head. Rohrs declined. Murdaugh also told
Gross to take a swing at Reynolds, but she too refused.
¶8 At about 11:30 p.m., after Rohrs, Murdaugh, Dezarn,
and Gross ate dinner, Murdaugh led Reynolds to his detached,
three bay garage. Dezarn, still armed with a firearm, walked
behind Reynolds. Inside the garage, Murdaugh ordered Reynolds
into the trunk of his Buick so that he could “figure things
out.” Throughout the night, Murdaugh, Dezarn, Gross, and Rohrs
returned to the garage to take methamphetamine.
¶9 In the early morning hours of the next day, Dezarn and
Murdaugh agreed that they needed to get rid of Reynolds’ van.
They decided to “ditch” it near Whitman Cemetery. Murdaugh led
the way in his vehicle while Dezarn followed in Reynolds’ van.
They abandoned the van on Cemetery Road and began driving back
to Murdaugh’s house. On the way, they stopped for gas in
Whitman and ran into an acquaintance named Ron Jesse. They
asked Jesse for drugs, and all three returned to Murdaugh’s
house. From there, Dezarn and Jesse left to get more
methamphetamine with the money Murdaugh took from Reynolds.
¶10 After Dezarn and Jesse returned with the drugs, they
and Murdaugh locked themselves in the garage to “shoot up.”
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While in the garage, Murdaugh told Jesse what happened to Rohrs
at the gas station and that he had Reynolds locked in the trunk.
¶11 At about 8:30 a.m., Murdaugh opened the door to the
garage and allowed Gross and Rohrs to join him, Dezarn, and
Jesse to take more drugs. Murdaugh opened the trunk to show
Jesse that Reynolds was there and Reynolds said that he needed
to go to the bathroom. Murdaugh let Reynolds out of the trunk
and took him to the corner of the garage to urinate. When
Reynolds’ back was turned, Murdaugh struck him in the head with
a nylon meat tenderizer. After Reynolds fell to the floor,
Murdaugh picked up a metal jack hammer spike and continued to
hit Reynolds in the face and head. At some point, either before
or during the attack, Murdaugh placed a green nylon bag over
Reynolds’ head. The attack caused three major crushing blows to
Reynolds’ skull resulting in his death.
¶12 After the murder, Murdaugh left Reynolds lying face
down in the garage with the bag tied over his head. He
instructed Gross and Rohrs to sprinkle horse manure over
Reynolds’ body and on the blood surrounding his body. The body
was left in this condition for the remainder of the day.
¶13 At some point after the murder Jesse attempted to
leave Murdaugh’s home. Jesse, however, was unable to leave the
property because of a locked gate. While he was waiting for
Murdaugh to unlock the gate, Murdaugh approached Jesse and
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threatened him. Murdaugh said that if Jesse told anyone about
what happened in the garage, he would “kill [Jesse] last and
peel the skin off his children.” After Murdaugh threatened
Jesse, he opened the gate and allowed him to leave.
¶14 Around the time of the murder, Murdaugh realized that
he and Dezarn had left items in Reynolds’ van that would reveal
that the van belonged to Reynolds. Murdaugh told Dezarn and
Rohrs to retrieve the items from the van. Dezarn ultimately
retrieved Reynolds’ pagers, wallet, and identification papers
and returned to Murdaugh’s house with Rohrs.
¶15 Later that evening, Murdaugh and Dezarn loaded
Reynolds’ body into the front right compartment of Murdaugh’s
horse trailer. Murdaugh told Rohrs to clean up the blood in the
garage. Murdaugh then packed to go camping and left with his
horses and his dog some time after midnight.
¶16 Once at his campsite, Murdaugh dismembered Reynolds’
body in an effort to thwart attempts to identify it. He first
cut off Reynolds’ head and hands. He then removed the finger
pads from the hands and pulled all Reynolds’ teeth. He threw
the teeth and finger pads out the window of his truck as he
drove along a forest service road leading to the site where he
buried the body. He placed the head and hands in one shallow
grave, and the torso in another. Murdaugh then returned to his
campsite. From his campsite, Murdaugh placed several calls from
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Reynolds’ cell phone to Rohrs, both at home and to her pager.
¶17 The police, who had been notified by Reynolds’ family
of his disappearance, obtained copies of Reynolds’ cell phone
records. They discovered that on June 26, Reynolds had made
several calls to his company and his girlfriend, and that he had
also called Rohrs five times. Officers contacted Rohrs on June
28, and she told them that she had Reynolds’ business card and
that she was willing to come to the Sheriff’s Office to look at
a photograph of Reynolds. Rohrs never went to the Sheriff’s
Office to make the identification. On June 29, the police
discovered that Reynolds’ cell phone had been used to make four
additional calls to Rohrs on June 28.
¶18 Also on June 29, police located Reynolds’ van on
Cemetery Road. They found Reynolds’ work boots in the van and
discovered that his cell phone was missing. They obtained
information from Reynolds’ cell phone carrier that the most
recent calls from Reynolds’ cell phone were originating from the
Flagstaff area. That same day, the police were contacted by a
resident of Whitman, Arizona, who told them that a murder had
taken place in Murdaugh’s garage behind his house. This
individual provided information that led the police to contact
Jodi Sheeler, who also had information about the murder. That
afternoon, the police interviewed Ron Jesse, who told them that
he had witnessed Reynolds’ murder.
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¶19 Meanwhile, when Murdaugh called Rohrs, she told him
that the police were tracking the calls he made with Reynolds’
cell phone. Murdaugh left his campsite and called Rohrs from a
pay phone. She told him that she had been contacted by the
police but that she had not told them anything about Reynolds.
Murdaugh broke Reynolds’ cell phone into pieces and disposed of
it, along with Reynolds’ wallet and papers, near Reynolds’ body.
Back at the campsite, Murdaugh was cleaning one of his horse’s
hooves when his knife slipped and severely cut his leg. Because
he was unable to stop the bleeding, Murdaugh went to nearby
Yavapai Regional Medical Center for treatment.
¶20 On June 30, 1995, the police obtained a search warrant
for Murdaugh’s home and garage. During the search of the
garage, they found the scene as Murdaugh had left it: there
were blood stains on the floor covered with scattered horse
manure.
¶21 In the meantime, the Maricopa County Sheriff’s Office
sent out a teletype notifying other law enforcement agencies
that they were looking for Murdaugh. The Yavapai County
Sheriff’s Office called the investigators and notified them that
Murdaugh was in the emergency room at Yavapai Regional Medical
Center. Investigators asked the Yavapai authorities to impound
Murdaugh’s vehicle and immediately headed to the medical center
to contact Murdaugh.
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¶22 When Detective Griffiths of the Maricopa County
Sheriff’s Office arrived at Yavapai Regional Medical Center, he
spoke with hospital personnel and confirmed that Murdaugh had
not been given any pain medication. He then met with Murdaugh
at approximately 8:55 p.m. on June 30, and read him the Miranda2
warnings. Murdaugh agreed to answer questions and then asked
whether his garage had been cleaned. When told that the garage
had not been cleaned, Murdaugh said, “Then you have enough to do
me in.” He then described Reynolds’ murder. In addition, he
provided Detective Griffiths with a detailed map and directions
to his campsite. He also told Detective Griffiths where to find
Reynolds’ body and personal effects. With the use of trackers,
the police were able to locate the campsite and Reynolds’ body
without referring to Murdaugh’s map. Reynolds’ body was found
by the police on July 1, 1995.
¶23 Because Reynolds’ murder bore similarities to the
murder of Douglas Eggert that had occurred earlier in 1995,
detectives asked Murdaugh if he had done anything like the
Reynolds’ murder before. Murdaugh admitted that he had also
killed Eggert by beating him to death with a meat tenderizer and
throwing the body into a canal.
II.
¶24 In July 1995, the Maricopa County Grand Jury indicted
2
See Miranda v. Arizona, 384 U.S. 436 (1966).
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Murdaugh for the following crimes: Count 1, first degree murder
of David Reynolds or, in the alternative, felony murder; Count
2, kidnapping of Reynolds; Count 3, aggravated robbery of
Reynolds; and Count 4, aggravated assault of Ron Jesse.
¶25 Later the next year, the Maricopa County Grand Jury
indicted Murdaugh for the following crimes: Count 1, kidnapping
of Douglas Eggert, and Count 2, first degree murder of Eggert.
¶26 On January 10, 2000, Murdaugh pled guilty to the
kidnapping, robbery, and first degree murder of Reynolds. On
that same day, he pled guilty to the kidnapping and first degree
murder of Eggert. In the latter case, the State and Murdaugh
agreed that Murdaugh would receive a life sentence for the
murder of Eggert. Murdaugh also acknowledged that his guilty
plea to the Eggert murder constituted a conviction for purposes
of A.R.S. § 13-703(F)(1) or (F)(2) (Supp. 1995) and would be
used as an aggravating factor in the Reynolds case.
¶27 At sentencing, the trial court found that the State
proved the following two aggravating circumstances with respect
to the Reynolds murder: 1) Murdaugh had been convicted of
another offense for which a sentence of life imprisonment or
death was imposable, see id. § 13-703(F)(1); and 2) Murdaugh
committed the murder in an especially heinous, cruel, or
depraved manner, see id. § 13-703(F)(6) (Supp. 1995). The trial
court then found the following eight non-statutory mitigating
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circumstances: 1) impairment from the use of crystal
methamphetamine at the time of the offense; 2) impairment from
chronic drug use; 3) personality disorder; 4) paranoid thoughts;
5) impact of the combination of drug use, personality disorder,
and paranoid thoughts on mental abilities; 6) cooperation with
law enforcement; 7) lack of prior criminal convictions; and
8) desire to spare his family and the victim’s family from
trial. The court determined that these mitigating circumstances
were not sufficiently substantial to outweigh the aggravating
circumstances. Therefore, the court sentenced Murdaugh to death
for the first degree murder of Reynolds. The court also
sentenced Murdaugh to twenty-one years for the kidnapping of
Reynolds and fifteen years for the robbery of Reynolds.
III.
¶28 Murdaugh raises two issues on appeal: 1) his plea was
not knowingly made because “he was not informed that he had a
Sixth Amendment right to have a jury determine his sentence;” 2)
a jury could determine that the mitigating circumstances in this
case are sufficiently substantial to call for leniency.
¶29 In addition, Murdaugh’s counsel raised two issues at
oral argument that were raised neither in the trial court nor in
Murdaugh’s brief to this court. Because these issues were
raised for the first time at oral argument, they are waived
absent fundamental error. See State v. Bolton, 182 Ariz. 290,
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297, 896 P.2d 830, 837 (1995) (“On appeal we will consider a
matter not raised below only if it is a matter of fundamental
error.”); State v. Schaaf, 169 Ariz. 323, 327, 819 P.2d 909, 913
(1991) (finding that because a defendant failed to raise in the
trial court either federal or state constitutional claims that
his right to speedy trial was violated, the defendant’s claims
were waived absent fundamental error). An error is fundamental
only if it is “of such dimensions that it cannot be said it is
possible for a defendant to have had a fair trial.” State v.
King, 158 Ariz. 419, 424, 763 P.2d 239, 244 (1988) (citations
omitted). We first address the new issues that Murdaugh raised
at oral argument.
A.
¶30 Murdaugh initially argued that the delay in this case
constitutes cruel and unusual punishment in violation of the
Eighth Amendment of the United States Constitution. In Lackey
v. Texas, the United States Supreme Court declined to review an
analogous claim, namely, that execution of a defendant after he
spent many years on death row would constitute cruel and unusual
punishment. 514 U.S. 1045, 1045 (1995). With the Court’s
denial of certiorari, Justice Stevens filed a memorandum noting
his belief that this issue should be explored further. Id. As
a result, many defendants have raised these so-called “Lackey
claims.” Lackey claims, however, have found little support in
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the courts that have addressed them. E.g., McKenzie v. Day, 57
F.3d 1461, 1466-67 (9th Cir. 1995) (finding that delay in
carrying out executions benefits inmates, allowing them to
extend their lives and perhaps obtain commutations, reversals,
or exoneration); State v. Schackart, 190 Ariz. 238, 259, 947
P.2d 315, 336 (1997) (rejecting defendant’s claim that prolonged
incarceration before execution constitutes cruel and unusual
punishment).
¶31 Murdaugh presented no authority that the delay in his
case, which mostly occurred before sentencing, violates the
Eighth Amendment. Moreover, the record shows that Murdaugh did
not object to the delay, and in fact stipulated to every
continuance of his case. See Schackart, 190 Ariz. at 259, 947
P.2d at 336 (noting that the delays in the defendant’s case were
caused by a variety of circumstances beyond the State’s control,
including numerous requests for continuances by the defendant).
B.
¶32 Murdaugh next argued that he was incompetent to enter
a guilty plea. For the following reasons, we do not agree.
¶33 The acceptance of a guilty plea waives the
constitutionally protected rights to a jury trial and to
confront one’s accusers and the privilege against self-
incrimination. Boykin v. Alabama, 395 U.S. 238, 243 (1969).
Accordingly, the trial court must determine whether the plea was
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entered voluntarily, knowingly, and intelligently and whether
the defendant was competent to enter a plea agreement. Ariz. R.
Crim. P. 17.3; Boykin, 395 U.S. at 243; State v. Djerf, 191
Ariz. 583, 594, ¶ 35, 959 P.2d 1274, 1285 (1998). The court
must also determine whether a sufficient factual basis exists to
support the plea. Ariz. R. Crim. P. 17.3. A trial court’s
determination that a defendant is competent to plead guilty will
be reviewed for abuse of discretion. Djerf, 191 Ariz. at 594, ¶
35, 959 P.2d at 1285 (citing State v. Brewer, 170 Ariz. 486,
495, 826 P.2d 783, 792 (1992)). On review, this court looks for
“reasonable evidence” to support the competency determination.
Id. “Thus, [the court considers] the facts in a light most
favorable to sustaining the trial court’s finding.” State v.
Bishop, 162 Ariz. 103, 104, 781 P.2d 581, 582 (1989) (citing
State v. Girdler, 138 Ariz. 482, 488, 675 P.2d 1301, 1307
(1983)).
¶34 In this case, the trial judge found that Murdaugh was
competent to plead guilty and that there was a sufficient
factual basis to support the plea. The judge questioned
Murdaugh directly about his agreement with the State, and
Murdaugh responded that he understood both the nature and the
consequences of his plea. He also told the judge that he was
not under the influence of alcohol at the time of the plea and
that the drugs he was taking to control anxiety and back pain
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did not impair his ability to understand the plea proceedings.
In addition, Murdaugh stated that his attorney had gone over all
the terms of the plea agreement with him and that he fully
understood the implications of the plea.
¶35 The trial judge did not inquire further into whether
Murdaugh was mentally competent to enter the plea agreement. A
year before the plea proceedings, however, Drs. Sindelar and
Scialli had evaluated Murdaugh’s competency to stand trial.
Relying on the reports prepared by these doctors, the court had
found Murdaugh competent to stand trial. Dr. Potts re-evaluated
Murdaugh approximately four months before he entered into his
plea agreements. Murdaugh’s counsel informed the court that Dr.
Potts did not recommend any further competency evaluation. From
this we can infer that Dr. Potts found Murdaugh competent to
understand the proceedings and assist in his defense. Finally,
neither Murdaugh nor his trial counsel raised any claim, either
during the change of plea or during the sentencing hearing, that
Murdaugh may have been incompetent to plead guilty.
¶36 Viewing this evidence in the light most favorable to
sustaining the trial court’s decision, reasonable evidence
supports the trial court’s finding that Murdaugh was competent
to enter a plea of guilty and that he entered the plea
knowingly, intelligently, and voluntarily.
¶37 Accordingly, we conclude that neither the delay in
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Murdaugh’s proceedings nor his claim of incompetency to plead
guilty rises to the level of fundamental error. Therefore, we
deem both claims to be waived. Bolton, 182 Ariz. 297, 896 P.2d
837.
¶38 We now address the specific issues Murdaugh raised in
his brief. We begin with Murdaugh’s claim that his guilty plea
was not knowingly made because he was not told that “he had a
Sixth Amendment right to have a jury determine his sentence.”
C.
¶39 In 2002, the United States Supreme Court held that
Arizona’s sentencing scheme, which mandated that a judge decide
whether any aggravating factors existed to support the
imposition of the death penalty, violated a defendant’s Sixth
Amendment right to trial by jury. Ring v. Arizona, 536 U.S.
584, 609 (2002) (“Ring II”). In Ring II, the Supreme Court held
that “[c]apital defendants, no less than noncapital defendants .
. . are entitled to a jury determination of any fact on which
the legislature conditions an increase in their maximum
punishment.” Id. at 589.3
¶40 Relying by analogy on Coleman v. McCormick, 874 F.2d
1280 (9th Cir. 1989) (“Coleman II”), Murdaugh argues that his
3
In response to the Ring II decision, the Arizona
legislature amended the capital sentencing scheme 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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tactical decision to plead guilty may have been different had he
known of his right to be sentenced by a jury. He therefore
contends that his guilty plea must be set aside. Murdaugh’s
argument on this point fails for three reasons.
¶41 First, at the time Murdaugh entered into his plea
agreement, there was no Sixth Amendment right to sentencing by
jury. See Ring II, 536 U.S. at 589. But even if there had been
such a right, a jury would have considered the same evidence as
did the trial judge in deciding whether to impose the death
penalty. Consequently, Murdaugh is unable to show how the
subsequent decision by the Supreme Court in Ring II affected his
tactical decision to plead guilty to first degree murder.
¶42 Second, we find Coleman inapposite. In Coleman, the
defendant was sentenced to death under Montana’s mandatory death
penalty statute, which provided that upon conviction for certain
enumerated crimes the judge must impose a sentence of death.
Coleman II, 874 F.2d at 1282 & n.1. On direct appeal, the
Montana Supreme Court declared this statute unconstitutional and
vacated Coleman’s death sentence. State v. Coleman, 579 P.2d
732, 741-42 (Mont. 1978) (“Coleman I”). On remand, Coleman was
again sentenced to death, but under Montana’s revised death
penalty statutes. Coleman II, 874 F.2d at 1285. The revised
sentencing statutes provided that upon conviction, the trial
judge would conduct a separate sentencing hearing at which the
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judge would determine whether any aggravating and mitigating
circumstances existed. Id. If the judge found at least one of
the enumerated aggravating factors and found that “there [were]
no mitigating circumstances sufficiently substantial to call for
leniency,” the judge would be required to impose a sentence of
death. Id. (quoting Mont. Code Ann. § 95-2206.10 (1977)
(current version at Mont. Code Ann. § 46-18-305 (2003))).
¶43 Because the mandatory death penalty scheme was in
place when Coleman was tried, the Ninth Circuit Court of Appeals
reasoned that Coleman’s tactical decisions at trial were aimed
solely at gaining an acquittal, “without even a hint that
evidence in the record would be considered as either mitigating
or aggravating factors.” Id. at 1289. Had Coleman known the
trial judge could later consider evidence presented at trial to
determine his sentence, he may have made different tactical
decisions. Id. The court therefore found that “[t]his due
process violation had a pervasive effect on the composition of
the trial record.” Id.
¶44 No such due process violation occurred here. Ring II
impacted only the identity of the trier of fact at sentencing,
not the process itself. In addition, at the sentencing hearing,
Murdaugh had ample opportunity to present evidence relevant to
the sentencing determination. Thus, the change brought about by
Ring II could not have had any significant impact on Murdaugh’s
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tactical decision to plead guilty. It therefore does not follow
that Murdaugh’s guilty plea must be vacated.
¶45 Third, the fact that there was a change in the law
subsequent to Murdaugh’s guilty plea does not necessarily render
his plea involuntary. In Brady v. United States, 397 U.S. 742
(1970), the Supreme Court rejected a similar claim made in a
habeas proceeding. At the time the defendant in Brady pled
guilty to kidnapping, he faced a maximum penalty of death. Id.
at 744. In his petition for writ of habeas corpus, Brady
alleged that his plea was involuntary because the death penalty
provision of the statute operated to coerce his plea.4 Id.
Brady also alleged that his counsel exerted impermissible
pressure on him, that he was induced by representations with
respect to a reduction of sentence and clemency, and that the
trial judge had not fully complied with Rule 11 of the Federal
Rules of Criminal Procedure. Id. The district court denied
Brady’s petition, finding that “[Brady’s] counsel did not put
impermissible pressure on [Brady] to plead guilty and no
representations were made with respect to a reduced sentence or
clemency.” Id. at 745. The court also found that Brady decided
to plead guilty when he learned his co-defendant had pled guilty
and “not by reason of the statute or because of any acts of the
4
By pleading guilty, Brady avoided a potential death
sentence. Brady, 397 U.S at 743.
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trial judge.” Id. (internal quotations omitted). The Tenth
Circuit Court of Appeals affirmed the denial of Brady’s
petition, finding that the district court’s findings were
supported by substantial evidence and concluding that Brady’s
“plea was voluntarily and knowingly made.” Id.
¶46 Brady filed a petition for certiorari with the Supreme
Court, claiming that because of the Court’s decision in United
States v. Jackson, 390 U.S. 570 (1968), the court of appeals
“was in error.” Brady, 397 U.S. at 745. In Jackson, the Court
held that the death penalty provision of 18 U.S.C. § 1201(a) —
the statute applicable to the charge against Brady — imposed an
impermissible burden on a defendant’s constitutional right to a
jury trial and was therefore unconstitutional. 390 U.S. at 581-
83. Notwithstanding the unconstitutionality of 18 U.S.C. §
1201(a), the Court in Brady rejected Brady’s argument that the
statute operated to coerce his plea, noting instead that his
guilty plea was likely triggered by the confession of his co-
defendant. Brady, 397 U.S. at 749. The Court then stated that
“even if we assume that Brady would not have pleaded guilty
except for the death penalty provision of § 1201(a), this
assumption merely identifies the penalty provision as a ‘but
for’ cause of his plea . . . [but] does not necessarily prove
that the plea was coerced and invalid as an involuntary act.”
Id. at 750. After considering other factors relevant to the
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voluntariness of Brady’s plea — representation by counsel,
understanding of the charges against him, and competency to
plead guilty — the Court held that there is “no requirement in
the Constitution that a defendant must be permitted [to withdraw
his guilty plea] . . . simply because it later develops . . .
that the maximum penalty then assumed applicable has been held
inapplicable in subsequent judicial decisions.” Id. at 757.
¶47 Similarly, nothing in this record indicates that
Murdaugh’s decision to plead guilty was influenced by whether a
judge or a jury would decide if he deserved to be sentenced to
death. Cf. id. (“[A] voluntary plea of guilty intelligently
made in the light of the then applicable law does not become
vulnerable because later judicial decisions indicate that the
plea rested on a faulty premise.”). Thus, Murdaugh’s claim here
is meritless.
¶48 We therefore turn to Murdaugh’s second issue: whether
his death sentence must be vacated and his case remanded for
resentencing in light of Ring II.
D.
¶49 In State v. Ring, 204 Ariz. 534, 552, 555, ¶¶ 44, 53,
65 P.3d 915, 933, 936 (2003) (“Ring III”), this court concluded
that it would examine capital sentences imposed under Arizona’s
superseded sentencing scheme for harmless error. Murdaugh first
urges this court to reconsider Ring III and find that Ring II
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error is fundamental and requires automatic reversal of his
judge-imposed death sentence. See State v. Phillips, 205 Ariz.
145, 149, ¶ 16, 67 P.3d 1228, 1232 (2003) (Jones, C.J.,
dissenting) (“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.”); Ring III, 204 Ariz. at 565, ¶ 105, 65 P.3d at 946
(Feldman, J., dissenting) (“[T]he denial of a jury in the
sentencing phase is a defect in the fundamental mechanism of the
trial and is therefore structural error.”). Murdaugh argues
that because a right to an impartial jury is a fundamental
right, a denial of jury sentencing is structural error.
¶50 This court has repeatedly rejected similar arguments
and held that Ring II error is procedural error subject to
harmless error analysis. E.g., State v. Dann, 206 Ariz. 371,
373, ¶ 5, 79 P.3d 58, 60 (2003); State v. Montaño, 206 Ariz.
296, 297, ¶ 3, 77 P.3d 1246, 1247 (2003); State v. Sansing, 206
Ariz. 232, 235, ¶ 5, 77 P.3d 30, 33 (2003), cert. denied, 124 S.
Ct. 2906 (2004); Ring III, 204 Ariz. at 552, 555, ¶¶ 44, 53, 65
P.3d at 933, 936; State v. Towery, 204 Ariz. 386, 390-91, ¶¶ 12-
13, 64 P.3d 828, 832-33 (2003); accord Schriro v. Summerlin, 124
S. Ct. 2519, 2523 (2004) (finding that the right to jury
sentencing is a procedural, not substantive, right). We thus
review Murdaugh’s sentencing for harmless error.
- 22 -
¶51 When “a defendant stipulates, confesses or admits to
facts sufficient to establish an aggravating circumstance, [the
court] will regard that factor as established.” Ring III, 204
Ariz. at 563, ¶ 93, 65 P.3d at 944. On the other hand, “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.” Id. at ¶
94. The harmless error inquiry, therefore, focuses on whether
the state has met its burden. Id. If the court concludes that
the state has not met its burden, the case must be remanded for
resentencing. Id.
1.
¶52 At the sentencing hearing, Murdaugh did not challenge
the State’s evidence relating to the following two aggravating
circumstances: 1) Murdaugh had been convicted of another
offense for which a sentence of life imprisonment or death was
imposable, see A.R.S. § 13-703(F)(1); and 2) Murdaugh committed
the murder in an especially heinous, cruel, or depraved manner,
see id. § 13-703(F)(6). And on appeal, he does not contest the
trial court’s findings relating to these circumstances.
Instead, he contends that “[t]his Court cannot conclude, beyond
a reasonable doubt, that no jury would determine that the
mitigating circumstances (and the others that could have been
found) were sufficiently substantial to call for leniency.”
- 23 -
Because Murdaugh fails to challenge any of the aggravating
circumstances, we focus our inquiry on whether the State met its
burden of proving the two aggravating factors beyond a
reasonable doubt. Ring III, 204 Ariz. at 563, ¶ 94, 65 P.3d at
944.
a.
¶53 Under Arizona law, there are two aggravating
circumstances for prior criminal convictions, A.R.S. § 13-
703(F)(1) and (F)(2). 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.” Section 13-703(F)(2)
applies when “[t]he defendant has been or was previously
convicted of a serious offense, whether preparatory or
completed.” In Murdaugh’s case, the trial judge found that the
State proved the (F)(1) aggravator beyond a reasonable doubt.
¶54 Both the (F)(1) and (F)(2) factors fall outside the
Ring II rule because they involve a legal determination that may
be made by a judge, rather than a factual determination required
to be made by a jury. Ring III, 204 Ariz. at 558, ¶ 64, 65 P.3d
at 939; see Almendarez-Torres v. United States, 523 U.S. 224,
226-27 (1998) (finding that a judge can consider prior
convictions to enhance a penalty beyond that authorized by the
facts established by the jury’s verdict). Therefore, this court
- 24 -
will not reverse the trial judge’s finding of the (F)(1)
aggravator unless there is no reasonable basis for the ruling.
See Phillips, 205 Ariz. at 147, ¶ 5, 67 P.3d at 1230 (noting
that “[i]n 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)]’” (quoting Ring III, 204 Ariz. at 556-
57, ¶ 55, 65 P.3d at 936-37)).
¶55 On the same day Murdaugh pled guilty to the first
degree murder and kidnapping of Reynolds, he also pled guilty to
the first degree murder and kidnapping of Eggert. And, as
mentioned above, Murdaugh acknowledged that his conviction for
the Eggert murder would be used as an aggravating factor in the
Reynolds case under either A.R.S. § 13-703(F)(1) or (F)(2).
Consequently, a reasonable basis exists for the trial court’s
finding that Murdaugh had a prior conviction for an offense in
which a sentence of life or death could be imposed. Therefore,
no Ring II error occurred with respect to the (F)(1) aggravator.
b.
¶56 The trial court also found that the murder was
committed in an especially heinous, cruel, or depraved manner.
See A.R.S. § 13-703(F)(6) (providing that the (F)(6) aggravator
is established if the court finds that the murder was committed
in either an especially heinous, cruel, or depraved manner).
Under Ring II, determination of the existence of the (F)(6)
- 25 -
aggravator by a judge constitutes reversible error unless this
court determines beyond a reasonable doubt that such error is
harmless. State v. Jones, 205 Ariz. 445, 448, ¶ 10, 72 P.3d
1264, 1267 (2003) (citing Ring III, 204 Ariz. at 552-55, ¶¶ 44-
53, 65 P.3d at 933-36). “To determine if it was harmless error
for a trial judge, instead of a jury, to find an F(6)
aggravator, we must find beyond a reasonable doubt that no
reasonable jury could have come to a different conclusion than
[did] the trial judge.” Id. (citing State v. Tucker, 205 Ariz.
157, 167, ¶ 55, 68 P.3d 110, 120 (2003)).
¶57 To establish the existence of the (F)(6) aggravator,
the state need prove only one of the heinous, cruel, or depraved
elements. State v. Gretzler, 135 Ariz. 42, 51, 659 P.2d 1, 10
(1983). “Especially cruel” refers to the mental anguish or
physical pain suffered by the victim before death. Sansing, 206
Ariz. at 235, ¶ 6, 77 P.3d at 33 (citing State v. Trostle, 191
Ariz. 4, 18, 951 P.2d 869, 883 (1997)); Djerf, 191 Ariz. at 595,
¶ 45, 959 P.2d at 1286. “Heinousness or depravity” refers to
the “mental state and attitude of the perpetrator as reflected
in his words and actions.” Sansing, 206 Ariz. at 235, ¶ 6, 77
P.3d at 33 (quoting State v. Clark, 126 Ariz. 428, 436, 616 P.2d
888, 896 (1980)).
¶58 Because the overwhelming and uncontested evidence
establishes beyond a reasonable doubt that Reynolds’ murder was
- 26 -
committed in an especially heinous and depraved manner, we need
only address those elements. See Gretzler, 135 Ariz. at 51, 659
P.2d at 10.
¶59 The term “heinous or depraved” is used to describe the
defendant’s state of mind. Sansing, 206 Ariz. at 237, ¶ 17, 77
P.3d at 35 (citing State v. Ceja, 126 Ariz. 35, 39, 612 P.2d
491, 495 (1980)). The court looks to a defendant’s words and
actions at or near the time of the offense to determine a
defendant’s state of mind. State v. Martinez-Villareal, 145
Ariz. 441, 451, 702 P.2d 670, 680 (1985). The term heinous has
been defined by this court as “hatefully or shockingly evil:
grossly bad.” State v. Knapp, 114 Ariz. 531, 543, 562 P.2d 704,
716 (1977) (quoting Webster’s Third New International
Dictionary). Depraved means “marked by debasement, corruption,
perversion or deterioration.” Id. (quoting Webster’s Third New
International Dictionary). To determine whether an act is
especially heinous or depraved, the court must consider the
following five factors: 1) whether the defendant relished the
murder; 2) whether the defendant inflicted gratuitous violence
on the victim; 3) whether the defendant needlessly mutilated the
victim; 4) the senselessness of the crime; and 5) the
helplessness of the victim. Sansing, 206 Ariz. at 237, ¶ 17, 77
P.3d at 35 (citing Gretzler, 135 Ariz. at 52, 659 P.2d at 11).
Not all of these factors must be present in order to find that a
- 27 -
killing was especially heinous or depraved. State v. Medrano,
173 Ariz. 393, 397-98, 844 P.2d 560, 564-65 (1992).
¶60 The trial court found that the State established
beyond a reasonable doubt that Murdaugh relished the murder, he
mutilated the victim, the murder was senseless, and the victim
was helpless.
¶61 The first factor, that a defendant relishes the
murder, “refers to the defendant’s actions or words that show
debasement or perversion.” State v. Roscoe, 184 Ariz. 484, 500,
910 P.2d 635, 651 (1996). To establish relishing, we usually
“require that the defendant say or do something, other than the
commission of the crime itself, to show he savored the murder.”
Id.; accord State v. Doerr, 193 Ariz. 56, 67-68, ¶ 54, 969 P.2d
1168, 1179-80 (1998) (finding that defendant relished murder
after defendant bragged to his cellmate about playing with the
victim’s blood); State v. Detrick, 188 Ariz. 57, 68, 932 P.2d
1328, 1339 (1997) (finding that defendant relished murder and
demonstrated an “abhorrent lack of regard for human life” based
on defendant’s statement to his co-defendant, “It’s dead, but
it’s warm. Do you want a shot at it?”); State v. Jackson, 186
Ariz. 20, 30, 918 P.2d 1038, 1048 (1996) (describing how
defendant sang a rap song both immediately after killing his
victim and then after showing a picture of the victim’s children
to his co-defendant); see Clark, 126 Ariz. at 437, 616 P.2d at
- 28 -
897 (finding depravity when defendant kept a souvenir of his
crime).
¶62 The trial court found that the “circumstances and
manner of killing” indicate that Murdaugh relished the murder of
Reynolds. The court concluded that Murdaugh reveled in the idea
of meting out his own justice and enjoyed the spectacle it
created in front of his friends. The court also found that
Murdaugh’s decision to place Reynolds in the trunk and keep him
captive overnight indicated that Murdaugh enjoyed the emotional
toll that waiting had on Reynolds. We conclude, however, that
the record does not contain sufficient evidence that Murdaugh
said or did anything, beyond the commission of the crime itself,
that manifests that he savored the murder. Consequently,
whether Murdaugh relished the murder was not proven beyond a
reasonable doubt.
¶63 Next, the trial court found that Murdaugh needlessly
mutilated Reynolds’ body. “Mutilation is an act distinct from
the killing itself that includes the purposeful severing of body
parts.” Doerr, 193 Ariz. at 68, ¶ 55, 969 P.2d at 1180.
Mutilation after death reflects a “mental state that is ‘marked
by debasement.’” State v. Vickers, 129 Ariz. 506, 515, 633 P.2d
315, 324 (1981). And, “[mutilation] alone supports the finding
of heinousness or depravity.” State v. Spencer, 176 Ariz. 36,
44, 859 P.2d 146, 154 (1993).
- 29 -
¶64 In this case, Murdaugh admitted in his confession to
Detective Griffiths that he cut off Reynolds’ head and hands,
removed Reynolds’ finger pads from his hands, and pulled all the
teeth from his head to prevent identification of his body. In
addition, Murdaugh told Detective Griffiths that he threw the
teeth and finger pads out the window of his truck and buried
Reynolds’ head and hands in one shallow grave, and his torso in
another. Indeed, when Reynolds’ body was discovered by the
Yavapai County Sheriff’s Office, Reynolds’ head and hands had
been removed from his body; his body was buried in one location
and his head and hands in another. We conclude beyond a
reasonable doubt that Murdaugh’s extensive and needless
mutilation of his victim demonstrates depravity. See State v.
Pandeli, 204 Ariz. 569, 572, ¶ 8, 65 P.3d 950, 953 (2003)
(finding that “[p]ost-mortem mutilation indicates a mental state
that is marked by debasement” (internal quotations omitted));
State v. James, 141 Ariz. 141, 147, 685 P.2d 1293, 1299 (1984)
(finding that “[t]he mode of disposing of the body itself
demonstrates a certain callousness and depravity and disregard
for the victim’s family who might never have learned of the fate
of [the victim]” (internal quotations omitted)).
¶65 The trial court also found that the murder was
senseless. “A murder is senseless when it is unnecessary for
- 30 -
the defendant to achieve his objective.” State v. Prince, 206
Ariz. 24, 27, ¶ 10, 75 P.3d 114, 117 (2003) (quoting State v.
Hyde, 186 Ariz. 252, 281, 921 P.2d 655, 684 (1996)). When
Murdaugh directed Rohrs to get Reynolds to the house, his
original intention was allegedly to teach Reynolds a lesson by
breaking his jaw. As noted by the trial court, this could have
been accomplished with one blow to Reynolds’ head. Murdering
Reynolds was not necessary to achieve Murdaugh’s stated goal of
teaching Reynolds a lesson. We thus conclude beyond a
reasonable doubt that the killing was senseless.
¶66 Finally, the trial judge found that Reynolds was
helpless. When Murdaugh and Dezarn entered the house, they were
both armed. Reynolds was unarmed and outnumbered. He sat on
the couch as Murdaugh yelled at him and watched as Murdaugh went
through his personal belongings. Reynolds was unable to resist
when Murdaugh and Dezarn marched him from the house to the
garage — he was flanked on either side by an armed captor.
Because the uncontroverted evidence established that Reynolds
was helpless and did what he was told by his armed captors,
Reynolds unquestionably was a helpless victim.
¶67 Senselessness and helplessness do not by themselves
establish that the crime was heinous or depraved unless the
state establishes additional circumstances that separate the
crime from the “norm” of first degree murders. Gretzler, 135
- 31 -
Ariz. at 52-53, 659 P.2d at 11-12. In this case, not only did
the State prove that the crime was senseless and that the victim
was helpless, it also proved with uncontested evidence that the
victim’s body was mutilated. As noted above, mutilation by
itself will establish the elements of heinousness or depravity.
Spencer, 176 Ariz. at 44, 859 P.2d at 154. Consequently, we
find beyond a reasonable doubt that the State established the
(F)(6) aggravator and that no rational jury would have found
differently.
¶68 Because the F(1) aggravating circumstance falls
outside the Ring II rule, and the Ring II error with respect to
F(6) circumstance was harmless beyond a reasonable doubt,
Murdaugh’s death penalty must stand unless a rational jury
“would determine that the mitigating circumstances were
sufficiently substantial to call for leniency.” Ring III, 204
Ariz. at 565, ¶ 104, 65 P.3d at 945. We therefore shift our
focus to whether reversible error occurred with respect to the
mitigating circumstances. Dann, 206 Ariz. at 374, ¶ 12, 79 P.3d
at 61.
2.
¶69 Murdaugh objected to the introduction of any
mitigation on his behalf. Nevertheless, Murdaugh’s trial
attorney filed a sentencing memorandum, explaining that he was
ethically bound to argue for life and against death. The trial
- 32 -
court also reasoned that it must consider mitigation and that
the State, as an officer of the court, could be compelled to
present such mitigation. As a result, the court placed the
burden on the State and ordered it to present mitigating
evidence.5
a.
¶70 In Arizona, although either the state or the defendant
may present evidence of mitigation, it is the defendant who
bears the burden of proving mitigating circumstances by a
preponderance of the evidence. A.R.S. § 13-703(C) (Supp. 1995).
A defendant may waive the presentation of mitigation if he is
legally competent to do so. See State v. Kayer, 194 Ariz. 423,
436-37, ¶¶ 44-47, 984 P.2d 31, 44-45 (1999) (finding that a
competent defendant may refuse to cooperate with the court-
appointed mitigation specialist (citing Blystone v.
Pennsylvania, 494 U.S. 299, 306 & n.4 (1990) (finding that no
constitutional violation occurred when a defendant was allowed
to waive all mitigation evidence after repeated warnings from
the judge and advice from counsel))); State v. Van Adams, 194
Ariz. 408, 422, ¶ 51, 984 P.2d 16, 30 (1999) (upholding death
sentence of defendant who waived mitigation, instructed his
5
Neither party raised the issue of whether the trial court
erred by ordering the State to assume this burden.
Consequently, we will not address the propriety of the trial
court’s order.
- 33 -
counsel not to present mitigating evidence, and instructed his
family not to cooperate with his counsel’s efforts to
investigate his background for purposes of presenting
mitigation); State v. Roscoe, 184 Ariz. at 498, 910 P.2d at 649
(upholding trial court’s grant of defendant’s pro se motion to
exclude certain portions of competency evaluation and noting
that defendant was competent to seek such exclusion without
counsel). For this court to deem a decision to waive mitigation
competent, the decision must be made voluntarily, knowingly, and
intelligently. See Djerf, 191 Ariz. at 591, ¶ 21, 594, ¶ 35,
959 P.2d at 1282, 1285 (holding that the waiver of a
constitutionally protected right must be made voluntarily,
knowingly, and intelligently).
¶71 The trial court found that Murdaugh’s decision to
waive the presentation of mitigating evidence was voluntary,
knowing, and intelligent. The court also found that Murdaugh
was competent to waive mitigation. Murdaugh does not contest
either of these findings. Consequently, we are left to decide
whether “no reasonable jury could find that the mitigation
evidence adduced during the penalty phase is ‘sufficiently
substantial to call for leniency.’” Ring III, 204 Ariz. at 563,
¶ 93, 65 P.3d at 944 (quoting A.R.S. § 13-703(E) (Supp. 2003)).
b.
- 34 -
¶72 In his sentencing memorandum, Murdaugh’s attorney
raised one mitigating factor — that Murdaugh’s ability to
appreciate the wrongfulness of his conduct was impaired by
methamphetamine use, but not so impaired as to constitute a
defense to the crime. See A.R.S. § 13-703(G)(1) (Supp. 1995).
Counsel also argued generally that the trial court was bound to
consider all factors presented in mitigation, regardless of
whether they constituted statutory mitigation.
¶73 The trial court noted that some evidence supported a
finding of the statutory mitigating factor under A.R.S. § 13-
703(G)(1), but found that this factor had not been proven by a
preponderance of the evidence.6 Section (G)(1) provides that if
“[t]he defendant’s 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,” the court shall consider the
diminished capacity as a mitigating circumstance. “Drug
impairment can be a statutory mitigating circumstance if ‘[t]he
defendant’s capacity to appreciate the wrongfulness of his
conduct or to conform his conduct to the requirements of [the]
law was significantly impaired, but not so impaired as to
6
We note that no reasonable jury could find the existence of
the other statutory mitigating factors under A.R.S. § 13-
703(G)(2) (substantial duress), (G)(3) (minor participant),
(G)(4) (lack of forseeability), or (G)(5) (defendant’s age).
- 35 -
constitute a defense to prosecution.’” Sansing, 206 Ariz. at
239, ¶ 26, 77 P.3d at 37 (first alteration and emphasis in
original) (quoting A.R.S. § 13-703(G)(1)).
¶74 Generally, drug ingestion or intoxication are
insufficient to establish the (G)(1) mitigating circumstance.
Id. (citing State v. Jones, 188 Ariz. 388, 400, 937 P.2d 310,
322 (1997); State v. Jordan, 126 Ariz. 283, 290, 614 P.2d 825,
832 (1980)). Instead, the defendant must establish a causal
nexus between the drug use and the offense, typically through
the presentation of an expert witness. Id. (citing State v.
Medina, 193 Ariz. 504, 516, ¶ 50, 975 P.2d 94, 106 (1999); State
v. Ramirez, 178 Ariz. 116, 131, 871 P.2d 237, 252 (1994); State
v. Stevens, 158 Ariz. 595, 599, 764 P.2d 724, 728 (1988); State
v. Graham, 135 Ariz. 209, 213, 660 P.2d 460, 464 (1983);
Gretzler, 135 Ariz. at 57-58, 659 P.2d at 16-17). But “a
defendant’s claim of alcohol or drug impairment fails when there
is evidence that the defendant took steps to avoid prosecution
shortly after the murder, or when it appears that intoxication
did not overwhelm the defendant’s ability to control his
physical behavior.” Id. (quoting State v. Rienhardt, 190 Ariz.
579, 591-92, 951 P.2d 454, 466-67 (1997)).
¶75 Here, the trial court observed that Murdaugh evinced
various paranoid thoughts. The major feature of that paranoia
- 36 -
was the belief that the government had placed a tracking device
in his head. The court concluded that when viewed in light of
Murdaugh’s long history of methamphetamine use, such paranoid
delusions were likely secondary to Murdaugh’s chronic drug use.
In addition, Dr. Gina Lang, whom the State called during the
sentencing hearing, testified that Murdaugh suffered from a
personality disorder and that his methamphetamine use may have
amplified the antisocial tendencies of this disorder.
¶76 On the other hand, the court stated that Murdaugh’s
paranoid delusion about a perceived threat from the government
was not the impetus for his kidnapping and murder of Reynolds.
Moreover, “[t]he industry and thought, manifested over an
extended period of time, which went into the murder of David
Reynolds belies a finding that [Murdaugh] was significantly
impaired.” The court found that this clarity of thought was
further demonstrated by the actions Murdaugh took after he
injured himself while cleaning his horse’s hooves. Murdaugh had
the presence of mind to seek treatment at the nearest hospital
for the injury to his leg. Consequently, the court concluded
that the record did not establish by a preponderance of the
evidence that Murdaugh’s capacity to appreciate the wrongfulness
of his conduct or to conform his conduct to the requirements of
the law was significantly impaired.
¶77 Further, uncontroverted evidence in the record reveals
- 37 -
that Murdaugh took steps to avoid detection. First, during the
kidnapping, he attempted to remove all fingerprints from
Reynolds’ van and to dispose of the van. Second, after the
murder, he ordered Rohrs to clean up the blood in his garage.
Third, he took Reynolds’ body into the forest where he
dismembered it in an effort to keep authorities from identifying
the body. Fourth, when he discovered that the authorities were
tracking the calls he made from Reynolds’ cell phone, Murdaugh
destroyed the phone and disposed of the pieces.
¶78 Finally, because Murdaugh elected to waive mitigation,
he did not present any expert testimony to establish that his
ability to control his behavior or appreciate the wrongfulness
of his conduct was significantly impaired. As a result, he
failed to establish a causal connection between his
methamphetamine use and his actions. See State v. Nordstrom,
206 Ariz. 242, 248, ¶¶ 26-27, 77 P.3d 40, 46 (2003) (recognizing
that although the evidence of a causal connection presented by
Nordstrom was not compelling, because he presented expert
testimony, this court could not conclude beyond a reasonable
doubt that a jury would not have weighed the evidence
differently than did the trial judge (citing Sansing, 206 Ariz.
at 239, ¶ 26, 77 P.3d at 37 (“Typically, in those cases in which
a defendant established statutory impairment, the defendant
presented an expert witness.”))).
- 38 -
¶79 Because of the complete lack of evidence of a causal
connection between Murdaugh’s drug use and the murder, we
conclude beyond a reasonable doubt that no rational jury would
have found that Murdaugh established the (G)(1) mitigating
circumstance. This conclusion is bolstered by the undisputed
evidence that Murdaugh made numerous efforts to avoid detection.
We next examine the additional non-statutory mitigating
circumstances found by the trial court.
c.
¶80 A trial court is not limited to the consideration of
only statutory mitigating circumstances, but instead must
consider all relevant evidence offered in mitigation. A.R.S. §
13-703(G). As mentioned above, see ¶ 27, the trial court did
find eight non-statutory mitigating circumstances. The trial
court did not give these factors much weight and determined that
the mitigating circumstances were not sufficiently substantial
to outweigh the aggravating circumstances. Therefore, we must
determine whether a jury could have weighed these mitigating
factors differently than did the trial judge. Ring III, 204
Ariz. at 563, ¶ 93, 65 P.3d at 944.
¶81 The trial court first found that the evidence
proffered in support of the (G)(1) mitigating circumstance also
supported a finding of the following non-statutory mitigating
circumstances: 1) impairment from the use of crystal
- 39 -
methamphetamine at the time of the offense; 2) impairment from
chronic drug use; 3) personality disorder; 4) paranoid thoughts;
and 5) potential impact of all four on Murdaugh’s mental
abilities. Nonetheless, the court accorded these factors little
weight.
¶82 The reports prepared by Drs. Sindelar, Potts, and
Scialli do reveal that Murdaugh experienced certain paranoid
thoughts and delusions that were likely exacerbated by his
history of chronic methamphetamine use. But because no mental
health professional found a causal nexus between these
conditions and the murders, see ¶¶ 73, 77-78, we find beyond a
reasonable doubt that no rational jury would have weighed these
factors any differently than did the trial judge.
¶83 Second, the trial court found evidence of the
following additional non-statutory mitigation: cooperation with
law enforcement; lack of prior criminal convictions; and desire
to spare his family and victim’s family from trial. We examine
each of these findings in turn.
¶84 The trial court concluded that Murdaugh’s cooperation
with law enforcement was a mitigating circumstance, but the
court did not give that circumstance much weight. Murdaugh did
agree to voluntarily answer questions when he was approached by
Detective Griffiths at the hospital. Before he answered any
questions, however, Murdaugh first asked whether his garage had
- 40 -
been cleaned. Detective Griffiths responded that it had not
been cleaned, to which Murdaugh replied that they “had enough to
do [him] in.” Murdaugh then described the events surrounding
Reynolds’ murder. Murdaugh also provided Detective Griffiths
with a detailed map and directions to his campsite and to where
he buried Reynolds’ body and personal effects. From this
sequence of events, it is clear that Murdaugh’s cooperation came
only after he learned that Rohrs had not cleaned up the garage.
We therefore conclude that no reasonable jury would have given
Murdaugh’s cooperation more weight than did the trial court.
¶85 The trial court next found that Murdaugh’s lack of
prior criminal history was a mitigating circumstance, but the
court did not place much weight on this factor. Similarly, in
light of the nature and strength of the aggravating factors, we
find that a jury hearing such evidence would not place more than
minimal weight on this mitigating circumstance.
¶86 The trial court also found that Murdaugh’s desire to
spare his family and the victim’s family from the pain of a
trial was a mitigating circumstance. Murdaugh admitted his
guilt and told Dr. Potts that he did not wish to put his family
through the pain of a trial. The trial court gave “this factor
little weight.” We agree with the trial court and conclude
beyond a reasonable doubt that a rational jury would have placed
minimal weight on this circumstance.
- 41 -
d.
¶87 In addition to the findings of the trial court,
Murdaugh asserts that a jury could find other mitigating
circumstances that might impact its determination of whether the
mitigating circumstances are sufficiently substantial to call
for leniency. See Prince, 206 Ariz. at 28, ¶ 14, 75 P.3d at
118. Specifically, Murdaugh argues that a jury could find the
following additional mitigating circumstances: Murdaugh offered
Reynolds food; Murdaugh offered to give Reynolds a pillow while
he was in the trunk of the car; Murdaugh opened the trunk lid
when Reynolds complained that he was claustrophobic; and
Murdaugh initiated the kidnapping scheme out his “perceived need
to protect” Rohrs. The record, however, provides little support
for these proffered mitigating circumstances.
¶88 First, the record contains only one vague suggestion
that Murdaugh offered Reynolds food. Gross testified that
Dezarn and Murdaugh ate their dinner in the living room but did
not offer Reynolds any food. Although Rohrs initially testified
that no one offered Reynolds food, she later stated that she
vaguely recalled that Murdaugh offered Reynolds a sandwich.
Dezarn, on the other hand, testified that he and Murdaugh did
not eat until after they placed Reynolds in the trunk of the car
in the garage. Because there is so little evidence on this
point, we find it inconceivable that a jury would accord this
- 42 -
evidence much weight, particularly in light of the aggravating
circumstances.
¶89 Second, no evidence in the record supports Murdaugh’s
claim that he offered Reynolds a pillow. Third, the record
provides little support for the claim that Murdaugh opened the
trunk to alleviate Reynolds’ claustrophobia. Dezarn testified
that when Reynolds complained that he was claustrophobic,
Murdaugh opened the trunk, but only for ten to fifteen minutes.7
Although a jury could find that Murdaugh in fact opened the
trunk for fifteen minutes, in view of the nine hours Reynolds
spent locked in the trunk, we conclude that no reasonable jury
would accord the evidence more than minimal weight.
¶90 Fourth, Murdaugh’s claim that he needed to protect
Rohrs is refuted by the record. Although the record reflects
that Murdaugh’s initial goal was to teach Reynolds a lesson for
offending Rohrs, as the night progressed, Murdaugh’s actions
went far beyond that stated goal. As explained by the trial
court, it was not necessary for Murdaugh to kill Reynolds to
accomplish his goal. No reasonable jury would find that
Murdaugh’s professed goal of protecting Rohrs mitigated his
ultimate actions.
7
Other witnesses testified that when Reynolds knocked on the
trunk, he was told to be quiet and was left in the trunk with
the lid closed.
- 43 -
e.
¶91 The unchallenged evidence in this case leaves no
question that Murdaugh murdered Reynolds in an especially
heinous and depraved manner and that he had a prior conviction
for which he received a life sentence. The circumstances of
this murder, coupled with Murdaugh’s mutilation of Reynolds’
body, “clearly sets [this murder] apart from the norm of first
degree murders.” Sansing, 206 Ariz. at 241, ¶ 38, 77 P.3d at
39. Moreover, the mitigating evidence is so minimal that we
conclude beyond a reasonable doubt that a jury would not have
weighed the evidence of mitigation differently than did the
trial judge. Thus, we hold that any Ring II error was harmless.
IV.
¶92 For the foregoing reasons, we affirm Murdaugh’s
convictions and death sentence.
__________________________________
Michael D. Ryan, Justice
CONCURRING:
_________________________________________
Charles E. Jones, Chief Justice
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_________________________________________
Ruth V. McGregor, Vice Chief Justice
_________________________________________
Philip G. Espinosa, Judge*
B E R C H, Justice, concurring in part and dissenting in part
¶93 I concur in that portion of the opinion affirming
Murdaugh’s convictions. Op. ¶¶ 28-47. I part ways with my
colleagues, however, on the issue of sentencing.
¶94 In Ring v. Arizona, 536 U.S. 584, 589 (2002) (Ring
II), the Supreme Court held that, in capital sentencing
proceedings, “any fact on which the legislature conditions an
increase” in punishment must be tried by a jury. The import of
the case is that juries must decide fact questions that bear on
sentencing unless, beyond a reasonable doubt, the questions
cannot reasonably be resolved other than as the trial judge
resolved them. State v. Ring, 204 Ariz. 534, 560, ¶ 79, 65 P.3d
915, 941 (2003) (Ring III) (requiring proof beyond a reasonable
doubt); State v. Pandeli, 204 Ariz. 569, 572, ¶ 9, 65 P.3d 950,
953 (2003); see also Blakely v. Washington, 124 S. Ct. 2531
(2004).
¶95 On review of Ring’s sentence on remand in that case,
this court held that the imposition of aggravating factors was
subject to review for harmless error. Ring III, 204 Ariz. at
- 45 -
555, ¶ 53, 65 P.3d at 936. We have conducted harmless error
reviews even in those cases in which the defendant has pled
guilty and hence arguably agreed to be sentenced by the court.
See, e.g., State v. Sansing, 206 Ariz. 232, 234-35, ¶¶ 1-3, 77
P.3d 30, 32-33 (2003); A.R.S. § 13-703.01(A) (Supp. 1995)
(requiring independent review of trial court’s findings of
aggravating and mitigating circumstances). We do so to ensure
that the state has carried its burden of proving the existence
of the aggravating factors beyond a reasonable doubt. Ring III,
204 Ariz. at 563, ¶ 94, 65 P.3d at 944.
¶96 In amending Arizona’s sentencing statute to comport
with the Ring II mandate, the legislature extended the
requirement of jury findings to cover all sentencing factors —
that is, to include mitigating circumstances as well as
aggravating circumstances. See 2002 Ariz. Sess. Laws, 5th Spec.
Sess., ch. 1, § 1 (codified at A.R.S. § 13-703). The fair
import of these authorities is that questions of fact that bear
on sentencing must be decided by the jury.
¶97 Soon after the passage of Arizona’s new sentencing
statute, this court applied the new provisions, remanding for
resentencing a case involving aggravating factors very similar
to the ones at issue in this case. Pandeli, 204 Ariz. at 572,
¶¶ 10-11, 65 P.3d at 953. In Pandeli, after affirming the
(F)(2) factor and finding the evidence of the mutilation
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component of the (F)(6) factor “overwhelming and essentially
uncontroverted,”8 we nonetheless concluded that a jury’s
“different finding of mitigating circumstances could affect the
determination whether the mitigating circumstances are
‘sufficiently substantial to call for leniency.’” Id. ¶ 10. We
therefore reversed and remanded that case for resentencing. The
same result should occur in Murdaugh’s case.
¶98 Murdaugh pled guilty and stipulated to certain facts
that we may accept as established for purposes of the guilt
phase of this case. See Sansing, 206 Ariz. at 234, 235, ¶¶ 1,
8, 77 P.3d at 32, 33. Nonetheless, we must analyze whether the
State has met its burden of proving the aggravating factors so
conclusively that no reasonable jury could have decided them
other than as the trial judge did. Ring III, 204 Ariz. at 563,
¶ 93, 65 P.3d at 944. We cannot merely decide that we would
have ruled as the trial judge did or that the evidence supports
the trial judge’s determinations; instead we must be satisfied
that no reasonable jury could decide the matter otherwise. See
id. I do not have that level of comfort with the judicial fact-
finding in this case.
¶99 I agree with my colleagues that the State has
established that Murdaugh committed an offense for which a
8
The defendant cut off the victim’s nipples. Pandeli, 204
Ariz. at 572, ¶ 9, 65 P.3d at 953.
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sentence of life imprisonment or death was imposable. See Op.
¶ 54; A.R.S. § 13-703(F)(1). I have concerns, however, with
respect to the § 13-703(F)(6) “heinous, cruel or depraved”
aggravating factor.
¶100 As the majority opinion correctly notes, see Op. ¶¶
58-59, the heinous and depraved elements of this aggravating
factor turn on the defendant’s mental state, as it might be
evidenced by the “Gretzler” factors.9 State v. Gretzler, 135
Ariz. 42, 52, 659 P.2d 1, 11 (1983). In a case with similar
facts on this issue, we concluded that given the defendant’s
history of paranoia and personality disorder, a jury might
decide that the defendant’s mental state precluded him from
forming the required intent. State v. Moody, ___ Ariz. ___,
___, ¶ 231, 94 P.3d 1119, 1168 (2004). The same situation
appertains in this case. There was substantial evidence that
Murdaugh was a mental mess. Indeed, the trial judge found that
Murdaugh was a chronic drug abuser who was specifically impaired
by crystal meth at the time of the murder. Op. ¶ 27. The judge
also found as mitigating factors that Murdaugh suffered from a
personality disorder and paranoid thoughts that affected his
mental abilities. Id. A jury might find these circumstances
9
Because the majority finds the “heinous or depraved”
elements unequivocally established, the opinion does not analyze
the “cruelty” element. Op. ¶¶ 57-59. For that reason, this
dissent will not address that element.
- 48 -
more important than the judge did in deciding the (F)(6) issue.
We cannot know. This possibility alone requires that the
sentencing in this case be remanded to a jury.
¶101 Although the trial court found the element of
“relishing” the murder, this court concluded that the State
failed to prove that factor beyond a reasonable doubt. Op.
¶ 61. I agree.
¶102 A reasonable jury might also conclude that the State
has not proved beyond a reasonable doubt that the manner of
killing, a blow or blows to the victim’s head, was sufficiently
out of the norm of first degree murders to warrant a finding of
heinousness. If it could reasonably do so, we would defer to
that finding. A jury should be given the opportunity to decide
the question.
¶103 The mutilation of the victim’s body is the clearest of
the Gretzler factors and the one on which the majority relies to
establish heinousness or depravity.10 Op. ¶¶ 62-63. While
Murdaugh clearly did mutilate the victim’s body, his reason for
doing so was not to debase or insult the victim, but rather to
avoid detection. That being the case, the jury might conclude
that it was not “needless.” Op. ¶ 64. But even if the jury did
10
As the opinion correctly notes, a finding of mutilation
will by itself support a finding of heinousness or depravity.
Op. ¶ 62 (citing State v. Spencer, 176 Ariz. 36, 44, 859 P.2d
146, 154 (1993)).
- 49 -
find the mutilation factor, as it likely will, it might weigh
that factor differently than the trial judge did.
¶104 The court concludes, beyond a reasonable doubt, that
the murder was “senseless.” Op. ¶ 64 (citing State v. Hyde, 186
Ariz. 252, 281, 921 P.2d 655, 684 (1996)). While I agree that
most jurors probably would also find the murder senseless, I
cannot say that this court would necessarily reverse the verdict
of a jury that found this murder not to have been more senseless
than other first degree murders. This is a fact question that a
jury should decide.
¶105 Fact questions also exist regarding the “helplessness”
consideration. While again I would certainly affirm a jury
verdict that finds the victim to have been helpless, I cannot
say beyond a reasonable doubt that a jury would be unreasonable
in finding the victim not to have been especially helpless — or
so helpless as to separate him from the “norm” of murder
victims.
¶106 These are the kinds of fact-based determinations that
the Supreme Court and our legislature have said jurors should
make. Although the jurors will probably decide the issues as
the trial judge in this case did, we cannot know that they would
do so, and the Defendant has the right to try to persuade them
to do otherwise. The jurors may weigh more heavily Murdaugh’s
mental state or find the murder not to be so much above the norm
- 50 -
of first degree murders in terms of heinousness or depravity
that it warrants imposition of the death penalty.
¶107 Let me stress that this court would certainly affirm
the verdict of any jury that found these aggravating factors to
exist and decided the case precisely as the trial judge did.
But that is not the standard for deciding whether to affirm the
findings of aggravating circumstances by a trial judge. The
question before us is whether, if a jury found that the murder
was not especially cruel, heinous or depraved, we would conclude
that no reasonable jury could have so found. See Pandeli, 204
Ariz. at 572, ¶ 9, 65 P.3d at 953. I do not think we would.
¶108 But even if I could agree with respect to the judge’s
determination of the facts relating to the aggravating factors,
I cannot do so with respect to the mitigating factors. The
opinion acknowledges that “some evidence supported a finding of
the statutory mitigating factor [of drug impairment] under
A.R.S. § 13-703(G)(1),” but notes that the trial judge “found
that the factor had not been proven by a preponderance of the
evidence.” Op. ¶ 73. Under Ring II and Arizona’s new
implementing statute, it was not the province of the trial judge
to make that determination. A jury might have found otherwise.
The Defendant has the right to present the facts bearing on
sentencing to a jury. See A.R.S. § 13-703(C) (jurors need not
unanimously agree that mitigating factors have been proved by a
- 51 -
preponderance of the evidence).
¶109 Moreover, a jury must be given the opportunity to
consider and weigh the other mitigating factors. The trial
judge found eight non-statutory mitigating factors. See Op.
¶ 80. Who can say that a jury would not have found more? Or
fewer? Nor can I confidently say, beyond a reasonable doubt,
that the jurors would have weighed the mitigating factors the
way the trial judge did. I cannot know whether the jurors would
weigh as lightly as the trial judge did Murdaugh’s impairment
from drug use at the time of the murder, his diminished mental
abilities, his cooperation, his remorse, or his desire to spare
his family and the victim’s family. They might well; but they
would not be unreasonable if they gave greater weight to such
factors.
¶110 As we did in Pandeli, I would also conclude here that
reasonable jurors might find other mitigating factors to exist
or might weigh the aggravating and mitigating factors
differently than the trial judge did. 204 Ariz. at 572, ¶ 10,
65 P.3d at 953.
¶111 In short, I would affirm Murdaugh’s convictions and
allow the trial judge’s legal finding of the (F)(1) aggravator
to stand. But I would find that the error in judge-sentencing
was not harmless, and would therefore reverse the sentencing and
remand to allow a jury to find those factors that would increase
- 52 -
the penalty to death and those that might tilt the scales in
favor of leniency, and to weigh those factors in the critical
life and death balance. I think such a result is required by
Ring II, Ring III, Blakely, and A.R.S. § 13-703.01.
__________________________________
Rebecca White Berch, Justice
* The Honorable Andrew D. Hurwitz recused himself. Pursuant to
Article 6, Section 3, of the Arizona Constitution, the Honorable
Philip G. Espinosa, Chief Judge of the Arizona Court of Appeals,
Division Two, was designated to sit for Justice Hurwitz.
- 53 -
State v. Murdaugh
Court: Arizona Supreme Court
Date filed: 2004-09-15
Citations: 97 P.3d 844, 209 Ariz. 19
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