State v. Smith

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-01-0272-AP
Appellee, )
) Yuma County Superior
v. ) Court
) Nos. S1400CR198311801
BERNARD SMITH, ) and S1400CR198311817
)
Appellant.) O P I N I O N
)
__________________________________)

Appeal from the Superior Court of Yuma County
The Honorable John N. Nelson
Nos. S1400CR198311801 and S1400CR198311817
APPROVED IN PART
_________________________________________________________________

John W. Rood, III Phoenix
Attorney for Bernard Smith

Janet Napolitano, Attorney General Phoenix
By Kent Cattani, Chief Counsel
Capital Litigation Section
and J.D. Nielsen, Assistant Attorney General
Attorneys for the State of Arizona
_________________________________________________________________
M c G R E G O R, Vice Chief Justice

I.

¶1 Shortly before midnight on August 21, 1983, appellant

Bernard Smith backed his car into a parking space and entered the

Low Cost Market in Yuma. At the counter, he requested a pack of

Player cigarettes and paid for them with a five dollar bill. Once

cashier Charles Pray opened the cash register, Smith pulled back

the hammer of the .22 caliber, single-action revolver he carried so

that it would make a clicking sound and told Pray, “Give me all of

the money or I will blow your fucking head off.” Pray did not
immediately comply with Smith’s demand; instead he twice called out

the name of the market’s manager. Smith then discharged the gun,

shooting Pray in the neck. Smith went around the counter to remove

the currency from the cash register and left the store.

¶2 Approximately fifteen minutes later, a Yuma County

Sheriff’s Deputy stopped Smith’s vehicle, and an officer of the

Yuma Police Department took Smith into custody. In Smith’s car,

the police found blood-stained currency and a .22 caliber pistol.

¶3 The State charged Smith with armed robbery. Nearly two

weeks later Charles Pray died from his wounds, and the Grand Jury

issued an additional indictment charging Smith with first degree

murder. While Smith was in custody for the incident at the Low

Cost Market, the State also charged him with armed robberies of

three Yuma Circle K stores occurring on July 23, August 14, and

August 15, 1983. Prior to his trial for the Low Cost Market

robbery and Pray’s murder, a jury convicted Smith of the Circle K

robberies, and the court sentenced him to three life sentences.

¶4 At his trial for the Low Cost Market incident, Smith

maintained his innocence and blamed the robbery and shooting on one

Al Johnson, who was never located. The jury did not believe

Smith’s defense and convicted him of both robbery and first degree

murder. The trial judge sentenced Smith to death. On direct

appeal, we affirmed Smith’s conviction and sentence. State v.

Smith, 146 Ariz. 491, 707 P.2d 289 (1985).

2
¶5 In 1998, on appeal of the district court’s denial of

Smith’s petition for habeas corpus, the Ninth Circuit Court of

Appeals held that he did not receive effective assistance of

counsel during the sentencing phase of his trial because his

attorney failed to develop and present “any mitigation evidence at

all for the purpose of defending Smith against the death penalty.”

Smith v. Stewart, 140 F.3d 1263, 1269 (9th Cir. 1998). The court

remanded the case to the district court “with directions that it

issue a writ releasing Smith from the sentence of death and

directing that he be resentenced.” Id. at 1274.

¶6 In April 2001, Judge John N. Nelson of the Yuma County

Superior Court held a sentencing hearing at which he found that the

State proved three aggravating circumstances: previous convictions

for which under Arizona law a life sentence could be imposed; prior

convictions involving the use or threat of violence; and pecuniary

gain. Arizona Revised Statutes (A.R.S.) §§ 13-703.F.1, 5 (2001),

13-703.F.2 (1992).1 In addition, the judge found that Smith did

not prove any statutory mitigating factors and that the non-

statutory mitigating circumstance he proved did not weigh heavily

enough to call for leniency. On May 31, 2001, the court again

1
The legislature recently amended Ariz. Rev. Stat.
(A.R.S.) § 13-703, so that the aggravating factors are now found in
subsection G and the mitigating factors in subsection H. See
A.R.S. § 13-703 (Supp. 2001). When the court resentenced Smith
this change had not yet taken effect.

3
sentenced Smith to death.

¶7 Appeal to this court is automatic and direct when the

court imposes a sentence of death. A.R.S. § 13-703.01.A (2001);

Ariz. R. Crim P. 31.2.b. We exercise jurisdiction pursuant to

Article VI, Section 5.3 of the Arizona Constitution, A.R.S. section

13-4031, and Arizona Rule of Criminal Procedure 31.2.b.

II.

¶8 Prior to the sentencing hearing, Judge Nelson informed

the parties that the victim’s son and daughter-in-law, Terry and

Jane Pray, were longtime employees of the Yuma County Superior

Court and that he had some professional contact with them in the

past. Terry Pray had worked as a juvenile probation officer since

1977. Mr. Pray did not work in the superior court building and had

no professional contact with Judge Nelson after he became a sitting

judge in 1998, but the two occasionally crossed paths in the court

building. In 1974 or 1975, Jane Pray worked as a secretary in the

county attorney’s office for a few months while Judge Nelson was a

deputy county attorney. Beginning in 1975, she served as a

judicial assistant to superior court Judges Keddie and Hall. In

September 1999, Ms. Pray became the superior court’s case flow

manager. In that capacity, she occasionally attended meetings with

the judges and also dealt with them on criminal case flow issues.

Ms. Pray rarely dealt directly with Judge Nelson, who was assigned

to a civil calendar; when her job required contact with his

4
chambers, she usually spoke with his judicial assistant. In

addition, Ms. Pray’s office is situated on the floor above Judge

Nelson’s, and they have little casual contact in the building.

¶9 After Judge Nelson revealed his acquaintance with the

Prays at a status hearing on January 24, 2000, defense counsel

indicated that he would file a motion for change of venue. Judge

Nelson transferred the case to the Yuma County presiding judge, who

then transferred the case to the presiding judge in Pinal County to

set a hearing on the motion for change of venue. On April 21,

2000, Pinal County Judge Boyd T. Johnson conducted a hearing on the

motion.

¶10 Smith asserted that his motion was a “hybrid” between a

Rule 10.3 motion for change of venue and a Rule 10.1 motion for

change of judge and that, although the written motion referred only

to Judge Nelson, its aim was to disqualify all the Yuma County

Superior Court judges. See Ariz. R. Crim. P. 10.1, 10.3. The

State argued that the motion could not be treated as a Rule 10.3

motion because that rule refers only to trials and specifically

excludes motions based on “the interest or prejudice of the trial

judge.” Ariz. R. Crim. P. 10.3.a. The State further argued that

if the motion were treated as one under Rule 10.1, it was barred as

untimely. See Ariz. R. Crim. P. 10.1.b. Judge Johnson concluded

that the motion should be treated as a Rule 10.1 motion and that it

was not timely filed. We review Judge Johnson’s ruling on the

5
motion for abuse of discretion. State v. Schackart, 190 Ariz. 238,

257, 947 P.2d 315, 334 (1997).

¶11 We first consider whether Smith waived any objection to

Judge Nelson acting as the sentencing judge. We agree with Judge

Johnson that Smith’s hybrid motion was properly treated as a motion

for change of judge for cause. A motion for change of judge must

be filed within ten days after discovery that grounds for a change

of judge exist. Ariz. R. Crim. P. 10.1.b. When Judge Nelson

disclosed his professional relationship with the Prays, Smith’s

attorney had already planned to file a motion for change of venue

based on the Prays’ employment by the court. In fact, the record

indicates that Smith knew of the professional relationship at least

six months prior to Judge Nelson’s disclosure. Therefore, Smith

failed to timely file his Rule 10.1 motion.

¶12 Smith now argues that he based his motion on an ethical

conflict, to which objection cannot be waived. See State v.

Valencia, 124 Ariz. 139, 141, 602 P.2d 807, 809 (1979). At the

hearing, however, Smith expressly disclaimed any reliance on the

Code of Judicial Conduct as a basis for Judge Nelson’s recusal. He

then argued only that Canon 2, which directs judges to avoid the

appearance of impropriety, provided the context in which Judge

Johnson should decide the motion. See Ariz. R. Sup. Ct. 81, Canon

2. Smith did not argue that Canon 3.E, which mandates a judge

disqualify himself when his impartiality may reasonably be

6
questioned, provided a basis for Judge Nelson’s disqualification.

See Ariz. R. Sup. Ct. 81, Canon 3.E. We further note that,

although nearly a year passed between Judge Johnson’s order denying

Smith’s motion and the sentencing hearing before Judge Nelson,

Smith never availed himself of the opportunity to bring a special

action to challenge Judge Johnson’s decision. Although Smith

arguably waived the arguments on which he now relies, we exercise

our discretion and address the merits of the motion.

¶13 Rule 10.1 provides that “any defendant shall be entitled

to a change of judge if a fair and impartial hearing . . . cannot

be had by reason of the interest or prejudice of the assigned

judge.” Ariz. R. Crim. P. 10.1.a. Judges are presumed to be

impartial, and the party moving for change of judge must prove a

judge’s bias or prejudice by a preponderance of the evidence.

State v. Carver, 160 Ariz. 167, 172, 771 P.2d 1382, 1387 (1989).

Smith never alleged, and in fact disavowed, that Judge Nelson held

any actual bias, and nothing presented at the hearing shows any

bias. Therefore, Smith did not meet his burden of proof under Rule

10.1.

¶14 Having expressly avoided relying on the Code of Judicial

Conduct as a basis for Judge Nelson’s disqualification at the

hearing, Smith now argues that the appearance of impropriety

created by the Prays’ professional contacts with Judge Nelson

required his recusal. See Ariz. R. Sup. Ct. 81, Canon 2. Although

7
Smith does not rely upon it, Canon 3.E, which states that “[a]

judge shall disqualify himself or herself in a proceeding in which

the judge’s impartiality might reasonably be questioned,” also

arguably applies to his present contention. Ariz. R. Sup. Ct. 81,

Canon 3.E(1).

¶15 Canon 3.E lists several instances in which a judge must

disqualify himself or herself.2 Judge Nelson’s relationship with

the Prays does not fit into any of the situations delineated in

Canon 3.E for which disqualification is required. The closest

analog involves those instances in which “the judge has a personal

bias or prejudice concerning a party.” Ariz. R. Sup. Ct. 81, Canon

3.E(1)(a). However, because Smith made no allegation or showing

that Judge Nelson had any bias, Canon 3.E did not expressly require

Judge Nelson’s disqualification.

¶16 If a situation is not one of those outlined in Canon 3.E,

but nonetheless implicates impartiality, a judge should consider

“[w]hether an objective, disinterested observer fully informed of

the facts underlying the grounds on which . . . disqualification

[was] contemplated would entertain a significant doubt that justice

2
Canon 3.E(1) contains a non-exclusive list of situations
that call for a judge’s disqualification, including instances in
which (1) a judge has a personal bias or knowledge of disputed
facts in a proceeding, (2) a judge previously served as an attorney
or is a material witness in the proceeding, (3) a judge has a
financial interest in the proceeding, or (4) a judge has a family
relationship with someone involved in the proceeding. Ariz. R.
Sup. Ct. 81, Canon 3.E(1)(a)-(d).

8
would be done in the case.” Ariz. Jud. Ethics Adv. Comm. Op. 96-14

at 1 (1996). We find it significant that not even Smith, who

scarcely qualifies as an objective, disinterested observer,

entertained any doubt as to Judge Nelson’s freedom from bias or

prejudice, and thus could not have entertained any significant

doubt that Judge Nelson would do justice in this matter. We

conclude that Judge Nelson’s limited professional relationships

with the victim’s son and daughter-in-law were sufficiently

attenuated that an informed, disinterested observer would not

entertain significant doubt that justice would be done in Smith’s

sentencing. Prior decisions and judicial ethics opinions

concerning similar situations support that conclusion.

¶17 In Valencia, we remanded for resentencing because the

trial judge met with the victim’s brother ex parte and discussed

sentencing prior to sentencing the defendant to death. 124 Ariz.

at 140, 602 P.2d at 808; see also State v. Leslie, 136 Ariz. 463,

463-64, 666 P.2d 1072, 1072-73 (1983) (remanding for a new trial

after judge had telephone conversations with the victim’s relatives

prior to capital sentencing). In contrast, nothing here suggests

that Judge Nelson ever spoke with either Terry or Jane Pray about

Charles Pray’s murder or the upcoming sentencing hearing.

¶18 Judicial Ethics Advisory Opinion 00-01, in which the

Committee considered whether various situations required

disqualification, provides additional guidance. See Ariz. Jud.

9
Ethics Adv. Comm. Op. 00-01 (2001). Opinion 00-01 and the opinions

and cases cited therein considered instances in which a judge’s

spouse or child worked for a law firm or government agency that

appeared before the judge although the judge’s relative did not

personally appear.3 Id. at 1-2. The Committee concluded that the

particular facts presented controlled the outcome in each situation,

but then determined that none of the cases called for

disqualification. Id.

¶19 Judge Nelson has a far more attenuated relationship with

the Prays than the familial relationships discussed in Opinion 00-

01. In addition, although our constitution considers Terry Pray a

victim of Smith’s crime and entitles him to attend any proceedings

against Smith related to his father’s murder, Mr. Pray did not

participate in the sentencing hearing. See Ariz. Const. art. II,

§ 2.1.A.3. We conclude that the Code of Judicial Conduct did not

require Judge Nelson’s disqualification and find no error.4

3
These situations are not specifically addressed by Canon
3.E, but resemble ones in which a judge’s close relative acts as a
lawyer in a proceeding before the judge, or when the judge knows
that a relative has an interest that could be substantially
affected by the proceeding. See Ariz. R. Sup. Ct. 81, Canon
3.E(1)(d)(ii-iii).
4
Although we conclude that Judge Nelson’s participation in
the sentencing hearing did not constitute error, the better
practice, particularly in a capital case, would have been to assign
a judge from another county to conduct the resentencing hearing.
Doing so apparently would have caused no difficulty in this matter.
Rather than ask a judge from another county to hear only the motion
for change of judge, the presiding judge could have assigned the
action to a judge from another county for purposes of conducting

10
 III.

¶20 Judge Nelson denied Smith’s request that a jury be

impaneled to find aggravating factors. Smith argues that this

denial violated his right to a jury trial under the Sixth and

Fourteenth Amendments to the United States Constitution.

¶21 Smith was sentenced pursuant to A.R.S. section 13-703,

which sets the procedure for sentencing in a case in which the State

seeks the death penalty. That procedure requires the sentencing

judge to find the statutory factors that, if found to exist, qualify

a defendant for capital punishment. The procedure was declared

constitutional in Walton v. Arizona, 497 U.S. 639 (1990), but placed

in doubt by the Supreme Court’s opinion in Apprendi v. New Jersey,

530 U.S. 466 (2000). We recently described the procedure in detail,

pointing out that Apprendi had not overruled Walton and that we

therefore were required by the Supremacy Clause to uphold the

Arizona sentencing procedure. State v. Ring, 200 Ariz. 267, 279-80

¶ 44, 25 P.3d 1139, 1151-52 ¶ 44 (2001).

¶22 The Supreme Court has now vacated our opinion in Ring.

Ring v. Arizona, 122 S. Ct. 2428, 2443 (2002). The Court held

section 13-703 unconstitutional, insofar as it permits a judge to

find the aggravating factors that permit imposition of the death

penalty. Ring v. Arizona, 122 S. Ct. at 2443. We must therefore

the sentencing hearing.

11
hold that the sentencing judge in the present case erred in applying

section 13-703.

¶23 The Court remanded Ring to us, and we must decide what is

to be done on remand. See Ariz. R. Crim. P. 31.23.c. Given the

Ring decision, Smith and all other defendants whose cases are

pending on direct appeal must either be resentenced or their death

sentences reduced to life with or without parole. In some cases,

there may be other issues, such as the possibility that the jury

found the aggravating circumstance5 or the State’s contention of

harmless error. The decision is difficult because Arizona law now

prescribes no procedure for sentencing or resentencing in capital

cases. It is therefore necessary to ask for briefing and argument

on remand questions.

¶24 This case, however, is but one of many affected by the

holding in Ring v. Arizona. We therefore believe it best to

consolidate this case and all others not yet final on direct appeal6

for supplemental briefing and argument on the issues involving

capital sentencing procedures. We recently filed an order to that

effect. State v. Ring, Order, No. CR-97-0428-AP (June 27, 2002).

5
A case, for example, in which the aggravating factor was
multiple homicides and the defendant was found guilty by jury
verdict of each of the homicides. See A.R.S. § 13-703.F.8.
6
The possible application of Ring to cases that are final
and that come before our courts on post-conviction matters will be
considered separately.

12
¶25 In the interim, before the final decision of the Ring

issue, we have decided it would be in the best interests of all–the

justice system, defendants, and victims–to issue opinions on all

issues not arising out of application of A.R.S. section 13-703 in

all cases that have been argued and submitted to the court for

decision, including those in which we have concluded the verdict and

judgment of guilt should be affirmed.

¶26 Thus, we end the discussion of sentencing issues at this

point. If Smith is to be resentenced again or his sentence reduced,

all other sentencing issues are moot and need not be decided. If

it later appears that the other issues are not moot, they may be

raised and considered when appropriate. This opinion is therefore

not a final disposition of this case and the time for filing a

motion for reconsideration or for post-conviction relief has thus

not begun to run. In our discretion, however, suspending all

contrary rules, any motion for reconsideration appropriately

directed to the issues decided in this opinion should be filed as

provided by the existing rules. See Ariz. R. Crim. P. 31.18.

IV.

¶27 We reject the following arguments, which Smith raises to

avoid procedural default and to preserve for further review.

¶28 The prosecutor’s discretion to seek the death penalty has

no standards and therefore violates the Eighth and Fourteenth

Amendments of the United States Constitution and Article II,

13
Sections 1, 4, and 15 of the Arizona Constitution. See State v.

Sansing, 200 Ariz. 347, 361 ¶ 46, 26 P.3d 1118, 1132 ¶ 46 (2001);

State v. Rossi, 146 Ariz. 359, 366, 706 P.2d 371, 378 (1985).

¶29 Arizona’s death penalty is applied so as to discriminate

against poor, young, and male defendants in violation of Article II,

Sections 1, 4, and 13 of the Arizona Constitution. See Sansing, 200

Ariz. at 361 ¶ 46, 26 P.3d at 1132 ¶ 46.

¶30 The death penalty is cruel and unusual under any

circumstances and violates the Eighth and Fourteenth Amendments of

the United States Constitution and Article II, Section 15 of the

Arizona Constitution. See State v. Harrod, 200 Ariz. 309, 320 ¶ 59,

26 P.3d 492, 503 ¶ 59 (2001); State v. Gillies, 135 Ariz. 500, 507,

662 P.2d 1007, 1014 (1983).

¶31 The especially heinous, cruel, or depraved aggravating

circumstance, A.R.S. section 13-703.F.6, violates the Equal

Protection Clause of the Fourteenth Amendment of the United States

Constitution. See State v. Gretzler, 135 Ariz. 42, 50, 659 P.2d 1,

9 (1983). Furthermore, upon resentencing, the State did not attempt

to prove the existence of this aggravating factor, nor did the

sentencing judge find it.

¶32 The absence of proportionality review of death sentences

by Arizona courts denies capital defendants due process of law and

equal protection and amounts to cruel and unusual punishment in

violation of the Fifth, Eighth, and Fourteenth Amendments of the

14
United States Constitution and Article II, Section 15 of the Arizona

Constitution. See Harrod, 200 Ariz. at 320 ¶ 65, 26 P.3d at 503 ¶

65; State v. Salazar, 173 Ariz. 399, 416, 844 P.2d 566, 583 (1992).

¶33 Arizona’s capital sentencing scheme is unconstitutional

because it does not require that the State prove that the death

penalty is appropriate. Failure to require this proof violates the

Fifth, Eighth, and Fourteenth Amendments of the United States

Constitution and Article II, Section 15 of the Arizona Constitution.

See State v. Ring, 200 Ariz. at 284 ¶ 64, 25 P.3d at 1156 ¶ 64,

rev’d on other grounds by Ring v. Arizona, 122 S. Ct. at 2443.

¶34 The pecuniary gain aggravating circumstance found in

section 13-703.F.5 does not sufficiently narrow the class eligible

for the death penalty, nor does it reasonably justify the imposition

of a death sentence. The court’s interpretation of the scope of the

F.5 factor is so broad that it cannot narrow the class of death

eligible individuals. Furthermore, pecuniary gain is such a

frequent motive for murder that such a killing is not above the

norm. Therefore, the use of the pecuniary gain aggravating factor

violates the Eighth and Fourteenth Amendments of the United States

Constitution and Article II, Section 15 of the Arizona Constitution.

See State v. Poyson, 198 Ariz. 70, 82 ¶ 51, 7 P.3d 79, 91 ¶ 51

(2000).

¶35 Smith also raises the following issues to avoid procedural

default. Although we have previously rejected these arguments,

15
because they relate to the issues posed by the Ring decision, we

withhold our rulings on them.

¶36 The death penalty is cruel and unusual because it is

irrationally and arbitrarily imposed. The statute requires

imposition of a death sentence if the sentencing court finds one or

more aggravating circumstances and no mitigating circumstances

substantial enough to call for life imprisonment. Furthermore, the

death penalty serves no purpose that is not adequately addressed by

life in prison. Therefore, it violates a defendant’s right to due

process under the Fourteenth Amendment of the United States

Constitution and Article II, Sections 1 and 4 of the Arizona

Constitution. See State v. Pandeli, 200 Ariz. 365, 382 ¶ 88, 26

P.3d 1136, 1153 ¶ 88 (2001); State v. Beaty, 158 Ariz. 232, 247, 762

P.2d 519, 534 (1988).

¶37 Arizona’s death penalty scheme does not provide a

defendant convicted of a capital crime the opportunity to death-

qualify the sentencing judge, in violation of the Eighth and

Fourteenth Amendments of the United States Constitution and Article

II, Section 15 of the Arizona Constitution. See Pandeli, 200 Ariz.

at 382 ¶ 89, 26 P.3d at 1153 ¶ 89.

¶38 Section 13-703 provides no objective standards to guide

the sentencing judge in weighing the aggravating and mitigating

circumstances and therefore violates the Eighth and Fourteenth

Amendments of the United States Constitution and Article II, Section

16
15 of the Arizona Constitution. See Pandeli, 200 Ariz. at 382 ¶ 90,

26 P.3d at 1153 ¶ 90.

¶39 Arizona’s death penalty scheme is unconstitutional because

it does not require the sentencing judge to find beyond a reasonable

doubt that the aggravating circumstances outweigh the accumulated

mitigating circumstances, violating the Fifth, Eighth, and

Fourteenth Amendments of the United States Constitution and Article

II, Sections 4 and 15 of the Arizona Constitution. See Poyson, 198

Ariz. at 83 ¶ 59, 7 P.3d at 92 ¶ 59.

¶40 Section 13-703 does not sufficiently channel the

sentencing judge’s discretion. Aggravating circumstances should

narrow the class of persons eligible for the death penalty and

reasonably justify the imposition of a harsher penalty. The broad

scope of Arizona’s aggravating factors encompasses nearly anyone

involved in a murder, violating the Eighth and Fourteenth Amendments

of the United States Constitution and Article II, Section 15 of the

Arizona Constitution. See Pandeli, 200 Ariz. at 382 ¶ 90, 26 P.3d

at 1153 ¶ 90.

V.

¶41 For the foregoing reasons, we approve Judge Johnson’s

denial of Smith’s motion for change of judge and reserve decision

regarding Smith’s sentence.

_______________________________________
Ruth V. McGregor, Vice Chief Justice

17
CONCURRING:

___________________________________
Charles E. Jones, Chief Justice

____________________________________
Stanley G. Feldman, Justice

____________________________________
Rebecca White Berch, Justice

____________________________________
William J. O’Neil, Judge*

*Pursuant to Arizona Constitution Article VI, Section 3, the
Honorable William J. O’Neil, Presiding Judge of the Arizona Superior
Court, Pinal County, was designated to sit on this case.

18