SUPREME COURT OF ARIZONA
STATE OF ARIZONA ) Arizona Supreme Court
) No. CR-01-0129-AP
Appellee/Cross-Appellant, )
)
v. ) Maricopa County
) Superior Court
SHERMAN LEE RUTLEDGE, ) No. CR1997-05555
)
Appellant/Cross-Appellee, )
) S U P P L E M E N T A L
) O P I N I O N
)
)
Appeal from the Superior Court in Maricopa County
The Honorable Frank T. Galati, Judge
REMANDED FOR RESENTENCING
Janet A. Napolitano, Former Arizona Attorney General Phoenix
Terry Goddard, Arizona Attorney General
By Kent E. Cattani, Chief Counsel,
Capital Litigation Section
and Robert L. Ellman, Assistant Attorney General
James P. Beene, Assistant Attorney General
John Pressley Todd, Assistant Attorney General
Bruce M. Ferg, Assistant Attorney General Tucson
Attorneys for Appellee
Robert W. Doyle Phoenix
Attorney for Appellant
R Y A N, Justice
I.
¶1 A jury convicted Sherman Lee Rutledge of armed robbery,
first degree felony murder of Ryan Harris, and attempted second
degree murder of Chase Clayton. Following the jury’s verdict, the
trial judge conducted a sentencing hearing to determine whether any
aggravating and mitigating circumstances existed. The State
alleged the existence of three aggravating factors: Rutledge had
a previous conviction of a serious offense, Arizona Revised
Statutes (“A.R.S.”) section 13-703(F)(2) (Supp. 1996); Rutledge
committed the murder for pecuniary gain, A.R.S. section 13-
703(F)(5); and he committed the murder “in an especially heinous,
cruel or depraved manner.” A.R.S. § 13-703(F)(6). Before the
sentencing hearing, the trial court ruled that the (F)(2)
aggravating circumstance was not applicable because the attempted
murder and armed robbery were committed contemporaneously with the
murder.
¶2 After considering the evidence, the court found that the
murder was not “especially cruel” or “especially heinous or
depraved.” A.R.S. § 13-703(F)(6). Therefore, the court concluded
that the (F)(6) aggravating factor was not proved beyond a
reasonable doubt. The judge did find beyond a reasonable doubt
that Rutledge committed the murder with the expectation of
pecuniary gain. A.R.S. § 13-703(F)(5). The court further found no
statutory mitigating factors and no non-statutory mitigating
factors “sufficiently substantial to call for leniency.” A.R.S. §
13-703(E). The court thus sentenced Rutledge to death for the
first degree murder conviction.
¶3 Because Rutledge received a death sentence, a mandatory
2
direct appeal was brought to this court. Ariz. R. Crim. P. 26.15,
31.2; A.R.S. § 13-4031 (2001). The State cross-appealed the trial
court’s ruling on the (F)(2) aggravating factor.
¶4 We affirmed Rutledge’s convictions and all sentences
except the sentence of death on direct appeal. See State v.
Rutledge, 205 Ariz. 7, 16, ¶ 43, 66 P.3d 50, 59 (2003). While
Rutledge’s direct appeal was pending, the United States Supreme
Court in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002)
(Ring II), held that Arizona’s capital sentencing scheme violated
a defendant’s Sixth Amendment right to a jury trial.1
¶5 In holding that Arizona’s capital sentencing scheme
violates the right to a jury trial guaranteed by the Sixth
Amendment to the United States Constitution, the Supreme 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.
¶6 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
1
The legislature amended the statute requiring judge-
sentencing in capital cases. See 2002 Ariz. Sess. Laws, 5th Spec.
Sess., ch. 1, § 1.
3
sentences. State v. Ring, 204 Ariz. 534, 545, ¶ 14, 65 P.3d 915,
926 (2003) (Ring III). In Ring III, we concluded that we will
examine a death sentence imposed under Arizona’s superseded capital
sentencing statutes for harmless error. Id. at 555, ¶ 53, 65 P.3d
at 936.
¶7 As a result, we ordered the parties in this case to
address the death penalty sentencing issues in supplemental briefs.
State v. Ring, Order No. CR-97-0428-AP (July 17, 2002). Those
briefs have been filed and we now examine whether Rutledge’s death
sentence can stand in light of Ring II. In addition, the State
filed a supplemental brief in support of its cross-appeal. Based
on our review of the record, we cannot conclude that the Ring II
violation constituted harmless error. We also conclude that the
trial court did not err in striking the (F)(2) allegation.
II.
¶8 Our previous opinion in this matter contains a detailed
account of the underlying facts surrounding the crimes. See
Rutledge, 205 Ariz. at 9-10, ¶¶ 2-12, 66 P.3d at 52-53. Briefly
summarized, the evidence established that Rutledge shot Harris,
killing him, and attempted to kill Clayton. After the shootings,
Rutledge and his brother took the Ford Explorer Clayton had been
driving.
¶9 In its special verdict, the trial court found that “the
totality of the evidence, circumstantial as it may be, proves
4
beyond a reasonable doubt that pecuniary gain was the motive for
these crimes.” Commission of an offense “as consideration for the
receipt, or in expectation of the receipt . . . of anything of
pecuniary value” is an aggravating circumstance. A.R.S. § 13-
703(F)(5).
¶10 To establish the pecuniary gain aggravating circumstance,
the state must prove that “the expectation of pecuniary gain [wa]s
a motive, cause, or impetus for the murder and not merely a result
of the murder.” State v. Hyde, 186 Ariz. 252, 280, 921 P.2d 655,
683 (1996) (citing State v. Spencer, 176 Ariz. 36, 43, 859 P.2d
146, 153 (1993)). In other words, there must be proof that “the
murder would not have occurred but for the defendant’s pecuniary
motive.” Ring III, 204 Ariz. at 560, ¶ 75, 65 P.3d at 941 (citing
State v. Harding, 137 Ariz. 278, 296-97, 670 P.2d 383, 401-02
(1983) (Gordon, V.C.J., specially concurring)).
¶11 Proving a taking in a robbery or the existence of some
economic motive at some point during the events surrounding a
murder does not necessarily prove the motivation for a murder.
State v. Medina, 193 Ariz. 504, 513, 975 P.2d 94, 103 (1999);
State v. Greenway, 170 Ariz. 155, 164, 823 P.2d 22, 31 (1991).
Instead, it is “a highly fact intensive inquiry” requiring the
state to prove a “connection between the murder and motive through
direct or strong circumstantial evidence.” Ring III, 204 Ariz. at
560, ¶ 76, 65 P.3d at 941 (citing State v. Cañez, 202 Ariz. 133,
5
159, ¶ 94, 42 P.3d 564, 590 (2002)). A murder committed in
expectation of pecuniary gain is distinguished from a “robbery gone
bad” or a “robbery that occurs close in time to a murder but that
constitutes a separate event for the purpose of an [(F)(5)]
determination.” State v. Sansing, 200 Ariz. 347, 353-54, ¶ 14, 26
P.3d 1118, 1124-25 (2001) (citing State v. McKinney, 185 Ariz. 567,
584, 917 P.2d 1214, 1231 (1996)), vacated on other grounds, 536
U.S. 954 (2002).
¶12 We will find harmless error affecting this factor only if
we are convinced beyond a reasonable doubt that no reasonable jury
could fail to find that the prosecution proved pecuniary gain
beyond a reasonable doubt. Ring III, 204 Ariz. at 560, ¶ 79, 65
P.3d at 941.
¶13 The State asserts that “[t]he evidence was uncontroverted
that the victims were lured to the park on the pretext of obtaining
drugs, and when they arrived, Rutledge . . . attacked [the victims]
and stole the new Ford Explorer.” But the State presented no
specific testimony or evidence that Rutledge’s motive for the
killing was pecuniary gain. One witness did testify that Rutledge
told her that “something is going down.” And another testified
that one of the victims said “if you want it you can have it,”
apparently referring to the Ford Explorer.
¶14 The trial court found that even “[t]he somewhat
contradictory references to what was expected to occur at the scene
6
of the crime . . . bolster[ed] the conclusion that” Rutledge
committed the murder to take the vehicle. Nonetheless, because the
trial court’s finding rests in part on an assessment of witness
credibility, “[w]e cannot say, beyond a reasonable doubt, that a
jury hearing the same evidence as did the judge would have
interpreted the circumstantial evidence or assessed the witnesses’
credibility as did the judge.” State v. Hoskins, 204 Ariz. 572,
574, ¶ 6, 65 P.3d 953, 955 (2003). Therefore, we conclude that the
Ring II error as to the (F)(5) aggravating circumstance was not
harmless.
III.
¶15 The State’s cross appeal asks us to reverse the trial
court’s determination that because the attempted murder and armed
robbery were committed contemporaneously with the murder, the
aggravating factor under A.R.S. section 13-703(F)(2) could not be
applied. Although we remand this matter for resentencing, we
address this issue because the (F)(2) factor “falls outside the
Ring II mandate. The Sixth Amendment does not require a jury to
determine the existence of an [(F)(2)] prior conviction.” State v.
Pandeli, 204 Ariz. 569, 571, ¶ 7, 65 P.3d 950, 952 (2003) (citing
Ring III, 204 Ariz. at 558, ¶¶ 63-64, 65 P.3d at 939).
Consequently, if the State is correct, on remand, a jury
determination on this factor would not be required. Id.
¶16 Section 13-703(F)(2) requires proof that “[t]he defendant
7
was previously convicted of a serious offense, whether preparatory
or completed.” According to the State, “the statute by its
unambiguous wording requires [sic] has only two requirements:
First, a previous conviction, and second, the conviction be for a
‘serious offense.’”2 The State thus contends that a “serious
offense” committed in the course of committing a murder can satisfy
the (F)(2) factor. The only limitation is that the conviction for
the serious offense must be rendered before sentencing on the
murder. See e.g., State v. Finch, 202 Ariz. 410, 417, ¶ 33, 46
P.3d 421, 428 (2002) (holding that “[c]onvictions entered
simultaneously with the murder conviction but prior to sentencing
satisfy [(F)(2)].”).
¶17 The trial court in this case agreed that the State’s
argument “ma[de] good sense,” but rejected the State’s position for
the following reasons: (1) State v. Gretzler, 135 Ariz. 42, 659
P.2d 1 (1983), is contrary to the State’s position and was this
court’s most definitive pronouncement on the issue; (2) if the
legislature had intended the (F)(2) aggravator to apply to serious
crimes committed during the commission of a murder it could have
expressly said so in the statute;3 (3) because one purpose of the
2
A “serious offense” includes second degree murder and
robbery. See A.R.S. § 13-703 (H)(2), (8).
3
On May 26, 2003, the legislature amended A.R.S. section
13-703(F)(2) to explicitly provide that a “serious crime” committed
contemporaneously with the murder is sufficient for aggravation
under A.R.S. section 13-703 (F)(2). See 2003 Ariz. Sess. Laws, 1st
8
(F)(2) aggravator is to measure a defendant’s propensity to commit
serious crimes, “[i]t is rational to measure such propensity by the
number of other times one has engaged in such conduct rather than
by the number of discreet [sic] serious crimes committed during the
defendant’s criminal conduct at the time of the subject murder;”
and (4) the State’s interpretation of the (F)(2) aggravating factor
would broaden the class of death eligible defendants, contrary to
the legislative intent to narrow that class of persons.
¶18 In support of its contention, the State relies on two
cases, both of which we find distinguishable. In the first, State
v. Rogovich, the defendant was charged with four counts of first-
degree murder, two counts of aggravated assault, two counts of
armed robbery, and one count of unlawful flight from a law
enforcement vehicle, all stemming from a series of events that took
place during a killing spree that spanned several hours. 188 Ariz.
38, 40, 932 P.2d 794, 796 (1997). The court held that the
convictions for aggravated assault and armed robbery were “previous
Reg. Sess., ch. 255, § 1. That provision now states:
The defendant has been or was previously convicted of a
serious offense, whether preparatory or completed.
Convictions for serious offenses committed on the same
occasion as the homicide, or not committed on the same
occasion but consolidated for trial with the homicide,
shall be treated as a serious offense under this
paragraph.
Because he committed the offenses before May 26, 2003, this
amendment does not apply to Rutledge.
9
convictions” for purposes of (F)(2). Id. at 44, 932 P.2d at 800.
¶19 Rogovich differs from this case in two ways. First,
Rogovich challenged only whether the timing of the convictions and
the nature of the offenses satisfied the requirements of (F)(2).
See id. Thus, Rogovich did not raise, nor did this court address,
the specific issue we face here. Second, at least one aggravated
assault conviction and one armed robbery conviction were committed
separately from each murder. See id. at 40, 932 P.2d at 796.
Accordingly, the facts in Rogovich supported the application of the
(F)(2) factor with convictions for serious offenses that were
committed separately from the murders, unlike the situation in this
case.
¶20 In the second case the State cites, State v. Jones, the
defendant was charged with six counts of first degree murder, three
counts of aggravated assault, three counts of armed robbery, and
two counts of first-degree burglary. 197 Ariz. 290, 297, ¶ 1, 4
P.3d 345, 352 (2000). The events that led to the charges arose out
of two separate armed robberies that were committed on different
dates at different places; two people were murdered during the
first robbery, and four people during the second robbery. Id. at
297-98, ¶¶ 1-9, 4 P.3d at 352-53. Because the defendant was
convicted of the serious offenses before he was sentenced for the
murder convictions, the court held that each of the convictions for
aggravated assault, armed robbery, and first degree burglary
satisfied the (F)(2) aggravating factor. Id. at 311, ¶ 64, 4 P.3d
10
at 366.
¶21 We find Jones distinguishable. Although not specifically
explained by the court because the issue was not raised, the facts
in Jones establish that a number of serious offenses were committed
on different days and at different places. See id. at 297-98, ¶¶
1-9, 4 P.3d at 352-53. Therefore, it can hardly be said that only
serious offenses committed in conjunction with the murder were used
to satisfy the (F)(2) aggravating factor.4
¶22 Thus, neither Rogovich nor Jones directly addressed the
specific issue presented in this case - whether a conviction for a
serious offense arising out of the same event as a murder charge
could be considered when determining the existence of the (F)(2)
aggravating factor. We, however, addressed this issue in State v.
Phillips, 202 Ariz. 427, 438, ¶ 56, 46 P.3d 1048, 1059 (2002).
¶23 In Phillips, we held that convictions arising “from the
same set of events as the murder charge . . . should not be
considered when determining the existence of the [(F)(2)] factor.”
4
Referring to the trial court’s special verdict in Jones,
the State points out that the trial judge used all of the serious
offenses to support its finding on the (F)(2) factor. And because
in our independent review of the imposition of the death penalty
this court affirmed the trial court’s finding on the (F)(2) factor,
the State draws the conclusion that we approved the use of
contemporaneous serious offenses to satisfy (F)(2). However, we
made no such holding. Instead, we focused on whether the offenses
were entered before sentencing on the murders, and whether the
murders were improperly “double-counted” in satisfying both (F)(1)
and (F)(2). Jones, 197 Ariz. at 311, ¶ 64, 4 P.3d at 366.
11
Id. In support of that holding, the court cited a footnote from
Gretzler. 135 Ariz. at 57 n.2, 659 P.2d at 16 n.2. In that
footnote, the court, in explaining that a conviction for a serious
offense entered before the sentencing hearing satisfied (F)(2),
commented that it disapproved any language in State v. Ortiz, 131
Ariz. 195, 211, 639 P.2d 1020, 1036 (1981), “suggesting the
contrary.” Gretzler, 135 Ariz. at 57 n.2, 659 P.2d at 16 n.2. The
court went on to state “[i]n Ortiz, we found the trial court erred
in considering a contemporaneous conviction for conspiracy to
commit murder as aggravation for the murder. This exclusion from
consideration is best understood as having been required because
both convictions arose out of the same set of events.” Id.
(emphasis added). The State argues that the emphasized language
from Gretzler is dictum, and therefore not controlling. We
disagree for the following reasons.
¶24 First, Phillips considered Gretzler as persuasive
authority on this point. Second, the State has presented no
compelling reason for us to overrule Phillips. See State v.
Hickman, 205 Ariz. 192, 200-01, ¶¶ 37-38, 68 P.3d 418, 426-27
(2003) (explaining that respect for precedent requires that a court
not overrule precedent unless there are compelling reasons to do
so, and deference to precedent is strongest when prior decisions
construe a statute). Third, the State has cited no case, nor have
we found one, in which this court was faced with a situation in
12
which the (F)(2) factor was only supported by a serious offense
committed contemporaneously with the murder. Fourth, because this
issue has not arisen before (other than in Ortiz and Phillips), it
appears that neither prosecutors nor judges have routinely
interpreted (F)(2) in such a way that a serious offense committed
in conjunction with the murder could support application of that
factor. Finally, to hold as the State urges would mean that a
number of prior death penalties could have been supported by an
additional aggravating factor. See, e.g., State v. Trostle, 191
Ariz. 4, 17-18, 951 P.2d 869, 882-83 (1997) (Defendant convicted of
felony murder based on armed robbery and kidnapping; the state
apparently alleged pecuniary gain, A.R.S. section 13-703(F)(5), and
that the murder was committed in an especially heinous, cruel, or
depraved manner, A.R.S. section 13-703(F)(6), as aggravating
factors, but not as previous serious convictions under A.R.S.
section 13-703(F)(2)); State v. Dickens, 187 Ariz. 1, 23-25, 926
P.2d 468, 490-92 (1996) (Defendant convicted of felony murder based
on armed robbery; the state appeared to have limited its
allegations of aggravating circumstances to pecuniary gain, A.R.S.
section 13-703(F)(5), that the murder was especially heinous,
cruel, or depraved, A.R.S. section 13-703(F)(6), and multiple
homicides, A.R.S. section 13-703(F)(8), but not previous serious
convictions under A.R.S. section 13-703(F)(2)).
13
¶25 Accordingly, we hold that Rutledge’s conviction for a
“serious offense” occurring simultaneously with a murder conviction
cannot be used for (F)(2) purposes under the version of A.R.S.
section 13-703(F)(2) applicable to Rutledge.
IV.
¶26 Because we hold that the sole aggravating factor in this
case must be presented to a jury, we vacate Rutledge’s death
sentence and remand for resentencing. Therefore we find it
unnecessary to examine whether harmless error occurred with respect
to the mitigating circumstances. See Ring III, 204 Ariz. at 565,
¶ 104, 65 P.3d at 946 (holding that our harmless error inquiry does
not end with the aggravating circumstances). Moreover, the State
concedes that if Ring III remains the law, this case must be
remanded for resentencing.5
V.
¶27 For the foregoing reasons, we cannot conclude that the
Ring II error was harmless in this case. Accordingly, we vacate
Rutledge’s death sentence, and remand for resentencing under A.R.S.
5
The State filed a petition for certiorari with the United
States Supreme Court challenging this court’s position, as applied
in Pandeli, that under the Supreme Court’s decision in Ring II, an
analysis of harmless error at the sentencing phase of a capital
trial must also “consider whether reversible error occurred with
respect to the mitigating circumstances.” Pandeli, 204 Ariz. at
572, ¶ 10, 65 P.3d at 953; see also Ring III, 204 Ariz. at 561-62,
565, ¶¶ 87-90, 104, 65 P.3d at 942-43, 946. The State acknowledges
that if the Supreme Court denies its petition for certiorari, Ring
III requires resentencing in this case.
14
sections 13-703 and 13-703.01 (Supp. 2002).
Michael D. Ryan, Justice
CONCURRING:
Ruth V. McGregor, Vice Chief Justice
Rebecca White Berch, Justice
J O N E S, C.J., concurring in part, dissenting in part:
¶28 I concur in the result, but I respectfully 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
15
violation. See State v. Ring, 204 Ariz. 534, 565-67, ¶¶ 105-14, 65
P.3d 915, 946-48 (2003)(Feldman, J., concurring in part, dissenting
in part) (Ring III).
Charles E. Jones, Chief Justice
Note: Justice Hurwitz took no part in the consideration or
decision of this case.
16
State v. Rutledge
Court: Arizona Supreme Court
Date filed: 2003-09-16
Citations: 76 P.3d 443, 206 Ariz. 172
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