State v. Pandeli

IN THE SUPREME COURT OF ARIZONA

STATE OF ARIZONA, ) Supreme Court
) No. CR 98-0376-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR-93-08116
)
DARREL PETER PANDELI, aka )
DARREL PETER FLORIAN, ) SUPPLEMENTAL
) O P I N I O N
Appellant. )
___________________________________)

Appeal from the Superior Court in Maricopa County
No. CR-93-08116
The Honorable Gregory H. Martin, Judge

REMANDED FOR RESENTENCING

Janet Napolitano, Attorney General Phoenix
by Kent E. Cattani, Chief Counsel,
Capital Litigation Section
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

Julie S. Hall Tucson
and
Arizona Capital Representation Project Tucson
by Jennifer Bedier
Attorneys for Darrel Peter Pandeli aka
Darrel Peter Florian

McGregor, Vice Chief Justice

¶1 Defendant Darrel Peter Pandeli (Pandeli) was convicted by
a jury of first degree murder and was sentenced to death by the

trial judge. The case came before us on direct review, pursuant to

Rules 26.15 and 31.2 of the Arizona Rules of Criminal Procedure

and Arizona Revised Statutes (A.R.S.) section 13-4031 (2001).

¶2 This court filed an opinion affirming Pandeli’s

conviction and death sentence. State v. Pandeli, 200 Ariz. 365, 26

P.3d 1136 (2001). The United States Supreme Court vacated the

judgment and remanded for further consideration in light of Ring v.

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

v. Arizona, __ U.S. __, 122 S. Ct. 2654 (2002) (mem.). The Ring II

decision does not affect our original opinion with respect to

factual, procedural, and guilt issues, so we need not reconsider

those portions of our original opinion. In this supplemental

opinion, we reconsider Pandeli’s sentence in light of Ring II.

I.

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

Arizona’s former capital sentencing scheme1 violates the right to

a jury trial guaranteed by the Sixth Amendment to the United States

Constitution. Ring II, 536 U.S. at __, 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

1
The legislature has since amended A.R.S. § 13-703. See
2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, § 1.

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

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

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

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

¶4 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, __ Ariz. __, __ ¶ 53, __ P.3d __, __

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

imposed under Arizona’s superseded capital sentencing statutes for

harmless error.

II.

¶5 The State charged Pandeli with two counts of premeditated

murder: count one for the murder of Teresa Humphreys and count two

for the murder of Holly Iler. Pandeli murdered Humphreys more than

a year before he murdered Iler. The trial court severed the two

counts, which were tried before separate juries. In February of

1996, a jury convicted Pandeli of second degree murder for killing

Teresa Humphreys. The trial court sentenced him to twenty years in

prison.

¶6 In July of 1997, a jury convicted Pandeli of first degree

murder for killing Holly Iler. Following the jury’s verdict, the

trial judge conducted a sentencing hearing to determine whether any

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aggravating and mitigating circumstances existed. A.R.S. § 13-703

(2001). At trial, the State advanced two aggravating

circumstances: (1) a previous conviction of a serious crime, A.R.S.

section 13-703.F.2 (2001) and (2) the murder was committed in an

especially heinous, cruel, or depraved manner. Id. § 13-703.F.6.

The trial court found each factor beyond a reasonable doubt.

¶7 The F.2 aggravating circumstance applies if the state

proves beyond a reasonable doubt that a defendant has been

convicted of a serious offense, which includes second degree

murder. Id. § 13-703.F.2;2 Id. § 13-703.H.1. In 1996, a jury

convicted Pandeli of second degree murder for killing Teresa

Humphreys. This aggravating circumstance falls outside the Ring II

mandate. The Sixth Amendment does not require a jury to determine

the existence of an F.2 prior conviction. Ring III, __ Ariz. at __

¶¶ 63-64, __ P.3d at __.

¶8 To establish the F.6 aggravating circumstance, the state

must prove that the manner in which a defendant killed the victim

was especially heinous, cruel, or depraved. A.R.S. § 13-703.F.6.

The state needs to prove only one of the heinous, cruel, or

2
The version of A.R.S. section 13-703.F.2 making a prior
conviction “of a serious offense, whether preparatory or completed”
an aggravating circumstance became effective on July 17, 1993.
Pandeli murdered Holly Iler on September 23, 1993. Thus, this
version of the statute governed Pandeli’s case. A.R.S. § 1-246
(2002); State v. Newton, 200 Ariz. 1, 2 ¶ 3, 21 P.3d 387, 388
(2001) (“A basic principle of criminal law requires that an
offender be sentenced under the laws in effect at the time he
committed the offense for which he is being sentenced.”).

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depraved factors for this aggravating circumstance to apply. State

v. Gretzler, 135 Ariz. 42, 51, 659 P.2d 1, 10 (1983). The terms

heinous and depraved refer to the “mental state and attitude of the

perpetrator as reflected in his words and actions.” State v.

Clark, 126 Ariz. 428, 436, 616 P.2d 888, 896 (1980). Post-mortem

mutilation indicates “a mental state that is ‘marked by

debasement’” and supports a finding of especially heinous or

depraved. See State v. Vickers, 129 Ariz. 506, 515, 633 P.2d 315,

324 (1981).

¶9 At Pandeli’s trial, the medical examiner testified that

Iler’s nipples were excised post-mortem, explaining that it took at

least four strokes of a knife to sever the right nipple and at

least two, possibly three, strokes to sever the left nipple. In

his confession to the police, Pandeli admitted both to killing Iler

and to removing her nipples after she died. According to Pandeli,

he either threw the nipples in the garbage or flushed them down the

toilet. Although the State did not present the confession during

the guilt phase, the trial court admitted the confession into

evidence during the sentencing phase. Given these overwhelming and

essentially uncontroverted facts, the State can make a strong

argument that no reasonable jury could fail to find the F.6 factor.

See Ring III, __ Ariz. at __ ¶ 93, __ P.3d at __.

¶10 As we explained in Ring III, however, our harmless error

inquiry does not end with considering aggravating circumstances.

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Id. We also must consider whether reversible error occurred with

respect to the mitigating circumstances. Id. The trial judge

found no statutory mitigating circumstances and considered

Pandeli’s family background, his overall developmental history, his

good behavior while incarcerated, his mental or emotional health,

and remorse as non-statutory mitigating circumstances. The defense

presented an expert who diagnosed Pandeli as suffering from

paranoid schizophrenia and post traumatic stress disorder and

testified that these disorders could have contributed to Pandeli’s

conduct. Although the State’s expert strongly contradicted this

testimony, we cannot say, beyond a reasonable doubt, that a

reasonable jury hearing the same evidence as did the judge would

have assessed the defense expert’s testimony as did the judge and

would have failed to find mental impairment, a statutory mitigating

circumstance. A.R.S. § 13-703.G.1. A different finding of

mitigating circumstances could affect the determination whether the

mitigating circumstances are “sufficiently substantial to call for

leniency.” Id. § 13-703.E.

III.

¶11 For the foregoing reasons, we cannot conclude that the

Ring II error was harmless in this case. Accordingly, we vacate

Pandeli’s death sentence and remand for resentencing under A.R.S.

sections 13-703 and 13-703.01 (Supp. 2002).

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 ____________________________________
Ruth V. McGregor, Vice Chief Justice

CONCURRING:

_________________________________
Rebecca White Berch, Justice

_________________________________
Michael D. Ryan, Justice

Jones, Chief Justice, specially concurring

¶12 I concur in the result. On the question whether harmless

error analysis is appropriate in the case before us, see State v.

Ring, __ Ariz. at __ ¶¶ 105-15, __ P.3d at __ (2003) (Feldman, J.,

concurring in part and dissenting in part).

________________________________
Charles E. Jones, Chief Justice

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