SUPREME COURT OF ARIZONA
En Banc
KERBY JAMES MCKANEY, ) Arizona Supreme Court
) No. CV-04-0032-SA
Petitioner, )
) Maricopa County
v. ) Superior Court
) No. CR 2001-011445
HON. JOHN FOREMAN, JUDGE OF THE )
SUPERIOR COURT, in and for the )
County of Maricopa, )
)
Respondent, ) O P I N I O N
)
)
STATE OF ARIZONA, )
)
Real Party in Interest. )
)
__________________________________)
Special Action from the Superior Court of Maricopa County
The Honorable John Foreman, Judge
JURISDICTION ACCEPTED
RELIEF DENIED; REMANDED
James J. Haas, Maricopa County Public Defender Phoenix
By Vikki M. Liles, Deputy Public Defender
Attorneys for Petitioner
Richard M. Romley, Maricopa County Attorney Phoenix
By Paul J. McMurdie, Deputy County Attorney
Attorneys for Real Party in Interest
J O N E S, Chief Justice
¶1 In light of principles set forth by the United States
Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000),
and Ring v. Arizona, 536 U.S. 584 (2002), as well as the
requirements of the Arizona Constitution and laws, we decide in
today’s case whether, as a condition to the pursuit of capital
punishment by the State, aggravating factors described in A.R.S.
§ 13-703(F) (Supp. 2003) must be specifically alleged in the
charging document and supported by evidence of probable cause.
For the reasons set forth below, we hold they do not.
I.
¶2 Kerby McKaney was indicted August 2, 2001 on two
counts of first degree murder, one count of first degree
burglary, one count of sexual assault, and two counts of
kidnapping.1 On October 1, 2001, the State gave notice of intent
to seek the death penalty on the two murder charges, and on
October 22, 2002, gave notice of intent to prove three
aggravating factors, namely, prior conviction of a serious
offense, offense committed in an especially heinous, cruel or
depraved manner, and conviction of one or more other homicides.
A.R.S. § 13-703(F)(2), (6) and (8).
1
The events giving rise to these charges were allegedly
committed on December 8, 1985. McKaney remained at large until
a happenstance match of DNA evidence in 1999 linked him to the
crimes.
2
¶3 On November 5, 2003, McKaney moved to dismiss the
State’s notice of intent and notice of aggravating factors,
arguing that these factors are elements of the capital crime of
first degree murder and as such were unsupported by an initial
finding of probable cause by the grand jury. The trial court
denied McKaney’s motion on December 19, 2003. McKaney then
filed this petition for special action. We accepted
jurisdiction because the issue is applicable in every capital
case initiated under Arizona’s death penalty statutes and is
thus of statewide significance. The issue is also one of first
impression in this jurisdiction.
II.
¶4 McKaney’s argument that the aggravating factors must
be alleged in the indictment and supported by evidence of
probable cause is based on the Due Process Clause of the
Fourteenth Amendment to the United States Constitution and
Article 2, Section 30, of the Arizona Constitution. In support,
McKaney cites Apprendi and Ring as fashioning a new rule of law
required by the United States and Arizona Constitutions.
A.
¶5 In Apprendi, the defendant, having fired gunshots into
the home of an African-American family, pled guilty to two
counts of possessing a firearm for an unlawful purpose, a second
degree offense, and one count of unlawful possession of a
3
prohibited weapon, a third degree offense. 530 U.S. at 469-70.
Each second degree count carried a maximum penalty of ten years
in prison; the third degree count carried a five-year maximum
penalty. Id. at 470. In addition, New Jersey’s “hate crime”
statute called for an enhanced sentence in cases in which the
trial judge finds by a preponderance of the evidence that the
offense was racially motivated. Id. at 468-69. A second degree
offense under the hate crime statute carried an extended term of
imprisonment “between 10 and 20 years.” Id. at 469.
¶6 The trial judge found “that the crime was motivated by
racial bias.” Id. at 471. The judge sentenced Apprendi to an
enhanced term of twelve years on one second degree offense and
imposed shorter, concurrent sentences on the other counts. Id.
at 471. The New Jersey Appellate Division and Supreme Court
affirmed.
¶7 The United States Supreme Court granted certiorari and
reversed, finding unconstitutional the procedure by which
Apprendi’s sentence was enhanced by the judge rather than by a
jury. Id. at 474. The Court held (1) that a criminal defendant
is entitled to “a jury determination that [he] is guilty of
every element of the crime with which he is charged, beyond a
reasonable doubt,” id. at 477, and (2) that “other than the fact
of a prior conviction, any fact that increases the penalty for a
4
crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.” Id. at 490.
¶8 The holdings in Apprendi greatly informed the Supreme
Court’s decision in Ring in which the Court held
unconstitutional Arizona’s capital sentencing scheme. Because
Arizona law permitted the death penalty only when aggravating
factors were established, the Court held that Apprendi and the
Sixth Amendment on which Apprendi is based required the jury
rather than the judge find those factors. Ring, 536 U.S. at
609. The Court, echoing Apprendi, stated, “[b]ecause Arizona’s
enumerated aggravating factors operate as ‘the functional
equivalent of an element of a greater offense,’ the Sixth
Amendment requires that they be found by a jury.” Id.
(citation omitted).
B.
¶9 In the aftermath of Apprendi and Ring, many
jurisdictions faced the issue we now face, namely, whether
principles announced in the two cases require that statutory
aggravators which may subject a criminal defendant to capital
punishment be specifically alleged in the grand jury indictment
or other charging document and be supported by sufficient
evidence of probable cause. The vast majority of state
jurisdictions have held they do not, and we agree.
5
¶10 Both Apprendi and Ring are expressly grounded in the
right to trial by an impartial jury under the Sixth Amendment to
the United States Constitution. The Court’s key concern in
those decisions was that a criminal defendant be afforded the
full benefit of jury trial on all evidence, including
aggravating factors, that could result in a sentence greater
than the maximum prescribed for the offense charged. The
instant case, however, does not fall under the Sixth Amendment
and does not present that issue. Rather, McKaney argues that in
addition to the Apprendi/Ring requirement that aggravators be
found for sentencing purposes by the trial jury, he is also
entitled to have each aggravating factor preliminarily
considered by the grand jury or neutral arbiter and included by
specific allegation as a probable cause finding in the charging
document, either a grand jury indictment or an information.
¶11 The United States Constitution does not impose on the
states the rule McKaney asserts. Although prosecutions in the
federal courts require, under the Fifth Amendment, that
aggravators be alleged in an indictment and supported by
probable cause, United States v. Cotton, 535 U.S. 625, 627
(2002), the same requirement is inapplicable to prosecutions in
our state courts. Two principal reasons are given. First, the
Fifth Amendment’s guarantee of indictment by a grand jury,
applicable solely to the federal government, is not subject to
6
the strictures of the Fourteenth Amendment. Alexander v.
Louisiana, 405 U.S. 625, 633 (1972) (“[T]he Due Process
Clause . . . [of the Fourteenth Amendment] does not require the
States to observe the Fifth Amendment’s provision for
presentment or indictment by a grand jury.”). Because a state
is not required, as a matter of federal constitutional law, to
empanel grand juries for purposes of indictment, it would be
anomalous for us to require, under the United States
Constitution, that a grand jury determine probable cause as a
basis for alleging aggravating factors. See Hurtado v.
California, 110 U.S. 516, 538 (1884).
¶12 Second, Apprendi and Ring do not implicate the Fifth
Amendment relative to the use of grand jury indictments in state
courts but rather the Sixth Amendment right to trial by jury and
the Fourteenth Amendment due process requirement. The two cases
specifically disavow dealing with sufficiency of indictments.
¶13 Accordingly, the only federal mandate applicable to
McKaney in the context of the instant case is the Fourteenth
Amendment due process requirement that a defendant receive
adequate notice of the charges against him. See, e.g., Harris
v. United States, 536 U.S. 545 (2002) (noting, by comparison,
that unlike the Fifth Amendment grand jury requirement which is
inapplicable to the states, the Sixth Amendment notice
requirement that defendants be informed of charges against them
7
does apply to the states through the Fourteenth Amendment Due
Process Clause). In the instant case, McKaney does not contend,
nor could he reasonably contend, that Arizona’s rules of
criminal procedure afford less than sufficient notice of
aggravating factors in satisfaction of the Fourteenth Amendment
due process requirement, or that he specifically did not receive
fair and adequate notice.
C.
¶14 The Arizona Constitution requires an “information or
indictment” before a person can be prosecuted for a felony or
misdemeanor. Ariz. Const. art. 2, § 30. This court has held,
pursuant to state due process requirements, that a charging
document must “fairly indicate[] the crime charged; state[] the
essential elements of the alleged crime; and [be] sufficiently
definite to apprise the defendant so that he can prepare his
defense to the charge.” State v. Marquez, 127 Ariz. 98, 101,
618 P.2d 592, 595 (1980) (quoting State v. Suarez, 106 Ariz. 62,
64, 470 P.2d 675, 677 (1970)). Similarly, the Arizona Rules of
Criminal Procedure require that an “indictment or information
shall be a plain, concise statement of the facts sufficiently
definite to inform the defendant of the offense charged.” Ariz.
R. Crim. P. 13.2.
¶15 But even if proof of an aggravating factor, now
defined as merely a new procedural rule in Schriro v. Summerlin,
8
___ U.S. ___, 124 S. Ct. 2519 (2004), is deemed to be the
“functional equivalent” of an element of the offense of capital
murder under the Sixth Amendment as stated in Apprendi and Ring
and sufficient notice of crimes charged is otherwise present, no
authority requires that aggravating factors be identified and
treated as “essential elements of the alleged crime” for the
purpose of inclusion in a grand jury indictment or information.
The requirement remains unchanged that the state must give the
defendant notice of its intention to seek capital punishment,
Ariz. R. Crim. P. 15.1(i)(1),2 as does the requirement that the
state give the defendant notice of the aggravating factors it
intends to prove, Ariz. R. Crim. P. 15.1(i)(2).3
¶16 It thus becomes irrelevant that aggravators are not
specified in the indictment or information based on evidence of
2
Rule 15.1(i)(1) requires that “[t]he prosecutor,
no later than 60 days after the arraignment in
superior court, shall provide to the defendant notice
of whether the prosecutor intends to seek the death
penalty. This period may be extended for thirty days
upon stipulation of counsel. Additional extensions
may be granted upon motion of the state and approval
of the court.”
3
Rule 15.1(i)(2) requires that “[i]f the
prosecutor files notice of intent to seek the death
penalty, the prosecutor shall at the same time provide
the defendant with a list of aggravating circumstances
the state will rely on at the aggravation hearing in
seeking the death penalty.”
9
probable cause presented to a grand jury or magistrate4 because
the defendant will have been given ample notice under the
Arizona Rules of Criminal Procedure, and the trial jury, the
same jury that ultimately will determine guilt or innocence,
will also determine whether the aggravating factors exist beyond
a reasonable doubt. Accordingly, even if aggravators are
characterized as the “functional equivalent” of elements of the
offense of capital murder as in Apprendi/Ring, the Sixth
Amendment right to trial by jury is satisfied, and there appears
no reason to require proof of aggravating factors under an
unduly expanded and non-essential due process standard in
determining the scope of the “information or indictment” clause
of the Arizona Constitution. Art. II, § 30.
¶17 All state jurisdictions with one exception have thus
far held, as we hold today, that aggravating factors need not be
specified or alleged in the indictment. See, e.g., People v.
McClain, 799 N.E.2d 322, 336 (Ill. App. 3d 2003) (Ring does not
require that aggravating factors be pled in a state court
indictment); Soto v. Commonwealth, 2004 WL 867447, 3-4 (Ky.
2004) (Ring and Apprendi do not require that aggravating factors
be pled in the indictment); Stevens v. State, 867 So. 2d 219,
227 (Miss. 2004) (“an indictment for capital murder puts a
4
If the State proceeds by information, the State must hold a
“preliminary examination before a magistrate,” unless the
defendant waives this right. Ariz. Const. art. 2, § 30.
10
defendant on sufficient notice that statutory aggravating
factors will be used against him” even in light of Apprendi and
Ring); Primeaux v. State, 88 P.3d 893, 899-900 ¶¶ 14-16 (Okla.
Crim. App. 2004) (no requirement in Ring that aggravating
factors be pled in the indictment so long as notice is given to
defendant); State v. Edwards, 810 A.2d 226, 234 (R.I. 2002) (no
constitutional requirement after Apprendi or Ring that
aggravating factors be set forth in the indictment); State v.
Oatney, 66 P.3d 475, 487 (Ore. 2003) (deliberateness as an
aggravating factor need not be charged in the indictment even
though a jury must make a finding of deliberateness at the end
of the guilt phase in order for the defendant to be death
penalty eligible).
¶18 New Jersey alone has adopted the position McKaney
urges. The Supreme Court of New Jersey, in State v. Fortin, 843
A.2d 974 (N.J. 2004), held the state constitution “requires that
aggravating factors be submitted to the grand jury and returned
in an indictment.” Id. at 1035. Under the New Jersey
Constitution, “the State must present proof of every element of
an offense to the grand jury and specify those elements in the
indictment.” Id. at 1027; see N.J. Const. art. 1, ¶ 8.
¶19 The New Jersey court noted that “[a]lthough we
recognize that the Fifth Amendment right to indictment by a
grand jury does not apply to the States, we have never construed
11
our grand jury provision under Article 1, Paragraph 8 as
providing lesser protection than its federal analogue.” 843
A.2d at 1035 (internal citations omitted). In light of Apprendi
and Ring, the court reasoned that “[i]f aggravating factors and
capital triggers are the functional equivalent of elements of
capital murder pursuant to the Sixth Amendment’s right to trial
by jury, we see no reason to define them as something other than
elements for purposes of the state constitutional right to a
grand jury presentation.” Id.
¶20 We choose not to adopt New Jersey’s rationale. We
conclude there is a difference between “elements” for purposes
of the Sixth Amendment right to trial by jury and the
“functional equivalent of an element” for purposes of finding a
state constitutional right to have aggravating factors alleged
in an indictment or information. In the former, the trial jury
addresses the adequacy of proof of the actual elements of the
crime and the presence of aggravators to determine the
defendant’s guilt or innocence and to fix the sentence. In the
latter, we address simply the adequacy of notice. The
difference is significant. Indeed, in this very case, the
defendant does not claim the notice he received was inadequate.
¶21 Were we to follow New Jersey’s Fortin decision, we
would, as a result, expand the statutory role of the grand jury
12
as a matter of state constitutional law. As another court
noted, such an expansion has consequences:
Another concern raised by requiring the grand jury to
determine aggravating factors in death penalty cases
is whether the judge empaneling the grand jury would
be required to conduct a voir dire so as to exclude
any potential grand jurors who would be unable to
fairly determine aggravating factors on account of
conscientious objection to the death penalty. If so,
there would be no counsel present to assist the
empaneling judge as by definition there would as yet
be no case. The chance that this voir dire could be
conducted to the satisfaction of counsel named after
the indictment is returned would, at best, be nil.
United States v. Battle, 264 F. Supp. 2d 1088, 1104 (N.D. Ga.
2003). The court in Battle further noted that it is standard
practice for the trial jury to view the indictment. Thus, “the
jury [would] view the claimed aggravating factors prior to
determining whether the defendant is guilty of any crime
. . . .” Id. The court observed that “while redactions
arguably could be made for this purpose, why require adding
something to the indictment which will often have to be
redacted?” Id. The court recognized, and we agree, that such a
disclosure to the trial jury would, in many instances, prove
unduly prejudicial to the defendant.
¶22 Finally, and respectfully, we disagree with the rather
dramatic assertion advanced by our dissenting colleagues that
today’s opinion, for the first time in history, affords less
protection under the Arizona Constitution than the United States
Constitution affords in its corresponding clause. First, as we
13
have noted earlier, the federal constitution’s “corresponding
clause” does not apply to the states and, as a result, affords
no protection at all to McKaney or similarly situated
defendants. The question before us is simply whether the
Arizona Constitution requires that the State allege specific
aggravators in a charging document. Arizona has never required
that such factors be alleged in an indictment or information, so
today’s decision neither reduces nor minimizes a right
previously afforded criminal defendants. Rather, today’s
opinion simply retains Arizona’s long-accepted view that the
protection afforded by our rules of criminal procedure fully
satisfies due process requirements.
III.
¶23 We therefore hold that aggravating factors essential
to the imposition of a capital sentence need not be alleged in
the grand jury indictment or the information in order to satisfy
constitutional due process. Even though aggravating factors
need not be specified in the charging document, an accused in
the State of Arizona is accorded notice under the rules of
criminal procedure that complies with constitutional
requirements. In the case at bench, McKaney was notified of the
State’s intent to seek the death penalty and of the specific
aggravating factors to be proved with ample time to prepare.
14
¶24 For the foregoing reasons, we accept jurisdiction of
McKaney’s petition for special action, but deny relief. We
remand the case to the superior court for further proceedings
consistent with this opinion.
__________________________________
Charles E. Jones
Chief Justice
CONCURRING:
____________________________________
Ruth V. McGregor, Vice Chief Justice
____________________________________
Rebecca White Berch, Justice
H U R W I T Z, Justice, dissenting in part and concurring in
part:
¶25 The Court today holds that the indictment clause of
the Arizona Constitution, Article II, Section 30, provides less
protection to our citizens than the corresponding clause in the
federal constitution. This is to my knowledge the first time
that this Court has reached such a conclusion, and I cannot join
it. Nonetheless, for the reasons I describe in Section II
below, I would decline petitioner’s request for special action
relief because he has an adequate remedy at law.
I.
¶26 Article II, Section 30 provides that “[n]o person
shall be prosecuted criminally in any court of record for felony
15
or misdemeanor, otherwise than by information or indictment.”
The charging document, whether an indictment or information,
provides the defendant with notice of the charges against him.
It is therefore settled that the charging document must “state[]
the essential elements of the alleged crime.” State v. Marquez,
127 Ariz. 98, 101, 618 P.2d 592, 595 (1980) (quoting State v.
Suarez, 106 Ariz. 62, 64, 470 P.2d 675, 677 (1970)).
¶27 After Ring v. Arizona, 536 U.S. 584 (2002), it can no
longer be doubted that the aggravating circumstances required by
Arizona law for the imposition of the death penalty are elements
of the offense. Id. at 606-07 (holding that Sixth Amendment of
jury trial applies when legislature adds an “element” to a
criminal offense in response to Supreme Court’s constitutional
adjudication); id. at 609 (characterizing aggravating factors as
“the functional equivalent of an element of a greater offense”)
(quoting Apprendi v. New Jersey, 530 U.S. 466, 494 n.19 (2000));
Sattazhan v. Pennsylvania, 537 U.S. 101, 111 (2003) (stating
that “if the existence of any fact (other than a prior
conviction) increases the maximum punishment that may be imposed
on a defendant, that fact--no matter how the State labels it--
constitutes an element”).
¶28 Because capital aggravating factors are elements of
the offense for Sixth Amendment purposes, every federal court of
appeals to have considered the issue has concluded that the
16
Fifth Amendment requires that they be alleged in an indictment.
See United States v. Lee, 374 F.3d 637, 650-51 (8th Cir. 2004);
United States v. Robinson, 367 F.3d 278, 284 (5th Cir. 2004);
United States v. Higgs, 353 F.3d 281, 298 (4th Cir. 2003). The
federal Department of Justice apparently agrees. After Ring,
the Department sought superseding indictments in all pending
capital cases setting forth the alleged aggravating
circumstances that would make the defendant eligible for the
death penalty. Robinson, 367 F.3d at 284 n.6.
¶29 The majority correctly notes that the federal
indictment clause does not apply to the states, and we therefore
are not mandated by federal law to provide our citizens the same
protections mandated by the Fifth Amendment. But as we noted
only last year, while we are not bound by the federal courts’
interpretation of a federal constitutional clause similar to a
clause in the Arizona Constitution, at the very least “those
interpretations have great weight in accomplishing the desired
uniformity between the clauses.” State v. Casey, 205 Ariz. 359,
362 ¶ 11, 71 P.3d 351, 354 (2003). More importantly, in
construing our Constitution, we properly begin from the premise
that federal constitutional law is “the benchmark of minimum
constitutional protection.” Large v. Superior Court, 148 Ariz.
229, 235, 714 P.2d 399, 405 (1986). We have occasionally found
our Constitution to provide broader protections to our citizens
17
than afforded by analogous clauses in the federal document,
e.g., Pool v. Superior Court, 139 Ariz. 98, 108, 677 P.2d 261,
271 (1984), but we have never interpreted the protections of our
fundamental document as narrower than those in the national
charter.
¶30 As several distinguished commentators have noted,
there may often be compelling reasons to read provisions of the
Arizona Constitution differently than their federal
counterparts. See, e.g., Ruth V. McGregor, Recent Developments
in Arizona State Constitutional Law, 35 Ariz. St. L. J. 265
(2003); Stanley G. Feldman and David L. Abney, The Double
Security of Federalism: Protecting Individual Liberty Under the
Arizona Constitution, 20 Ariz. St. L. J. 115 (1988). But no
such reasons are present here. The pertinent language in the
Fifth Amendment is analytically indistinguishable from the
language in Article II, Section 30. Nor is there any suggestion
that the framers of the state constitution believed that the
scope of the Arizona provision differed in any material way from
the federal. For these reasons, our previous decisions have
generally relied upon federal jurisprudence when explaining the
Arizona indictment clause. See, e.g., Maretick v. Jarrett, 204
Ariz. 194, 197 ¶ 8, 62 P.3d 120, 123 (2003) (quoting Wood v.
Georgia, 370 U.S. 375, 390 (1962) in describing the purposes of
a grand jury).
18
¶31 The Court’s conclusion today that Article II, Section
30 is not congruent with the Fifth Amendment rests entirely on
the notion that the notice of alleged aggravating circumstances
provided to defendants under Arizona Rule of Criminal Procedure
15.1(i)(1) satisfies due process requirements. See Ariz. R.
Crim. P. 13.5(c) (providing that the filing of such a list
amends the charging document). I do not doubt that the list of
aggravating circumstances, which must be served on the defendant
no later than sixty days after arraignment in superior court,
provides the defendant with ample notice of these elements for
due process purposes. Our indictment clause, however, was
intended not only to provide a defendant with notice of the
charges, but also to ensure that a neutral intermediary – a
grand jury comprised of ordinary citizens – finds that probable
cause exists before the State can bring charges. See State v.
Baumann, 125 Ariz. 404, 408, 610 P.2d 38, 42 (1980); State v.
Superior Court (Mauro), 139 Ariz. 422, 424, 678 P.2d 1386, 1388
(1984). Arizona grand juries, like their federal counterparts,
were thus designed to act as a “vital check against the wrongful
exercise of power by the State and its prosecutors.” Campbell
v. Louisiana, 523 U.S. 392, 399 (1998).5 See Maretick, 204 Ariz.
5
The State may, of course, choose to proceed under Article
II, Section 30 by way of information rather than indictment.
But if it does so, the defendant has the right to a preliminary
hearing, where a neutral magistrate will determine if there is
probable cause to proceed. See Ariz. R. Crim. P. 5.4(a); State
19
at 197 ¶ 8, 62 P.3d at 123 (describing grand jury as “serv[ing]
the invaluable function in our society of standing between the
accuser and the accused”).
¶32 Under today’s decision, this constitutional protection
is effectively eviscerated. The Court has interpreted our
Constitution as allowing the State, and the State alone, to
decide whether there is probable cause to charge the aggravating
circumstances that put a defendant in peril of capital
punishment. We would not countenance such a result in other
areas. For example, it is unthinkable that we would allow the
State, after obtaining from a grand jury an indictment charging
a defendant with simple assault, to unilaterally amend the
indictment to allege aggravated assault. Yet that is what Rules
15.1(i)(1) and 13.5(c) allow; they permit the State alone to
decide that there is probable cause to add an element to a
charge of first-degree murder so as to expose a defendant to an
aggravated sentence.
¶33 There would be little cost to law enforcement if our
Constitution, like its federal counterpart, were read to require
that aggravating circumstances be part of the indictment issued
by the grand jury. For pending cases, superseding indictments
v. Superior Court (Atwood), 103 Ariz. 369, 372, 442 P.2d 113,
116 (Ariz. 1968); State v. Neese, 126 Ariz. 499, 502-03, 616
P.2d 959, 962-63 (App. 1980) (“The purpose of a preliminary
hearing and a grand jury proceeding is the same. They are to
20
could be sought and obtained in accordance with the federal
practice. For all cases already tried, any failure to have
included the aggravating circumstances in the indictment is
almost surely harmless error. A defendant who received the
notice required by Rule 15.1(i)(1) or its predecessor will have
had sufficient warning for due process purposes of the charges
against him. And, after a jury of a defendant’s peers returns a
verdict of conviction, thus finding all elements of the offense
beyond a reasonable doubt, any failure to have submitted an
element to the grand jury for a finding of probable cause is
perforce harmless error. United States v. Mechanik, 475 U.S.
66, 73 (1986).
¶34 In short, there is no warrant, either in settled
doctrines of constitutional interpretation or in practical
terms, for the Court’s conclusion today that Article II, Section
30 has less content than the Fifth Amendment to the United
States Constitution. Because I cannot subscribe to the premise
that the Arizona Constitution is not at least as generous in its
protections of individual rights as the federal constitution, I
cannot join the Court’s opinion.
II.
¶35 The case today before us arrives by way of a petition
for special action. “The special action requests extraordinary
determine whether there is probable cause to believe the
21
relief, and acceptance of jurisdiction of a special action is
highly discretionary with the court to which the application is
made.” State Bar Committee Note, Ariz. R.P. Spec. Act. 3.
Before granting such extraordinary relief, we should be
satisfied that the petitioner has no other equally adequate and
speedy remedy. Ariz. R.P. Spec. Act. 1(a); Twin City Fire Ins.
Co. v. Burke, 204 Ariz. 251, 252 ¶ 3, 63 P.3d 282, 283 (2003).
¶36 In this case, petitioner has such a remedy. As the
Court accurately holds, he cannot complain that he has not
received sufficient notice for due process purposes of the
alleged aggravating circumstances. His real complaint, as I
note above, is that the State has alleged these elements of the
offense without a finding of probable cause by the grand jury.
Rule 13.5(c), however, gives the defendant an ample remedy for
that oversight: he may, through the vehicle of a pre-trial Rule
16 motion, “challenge the legal sufficiency of an alleged
aggravating circumstance.”
¶37 Under the Rule 13.5(c) procedure, a defendant claiming
that there was no probable cause to support an alleged
aggravator alleged under Rule 15.1(i)(1) is entitled to a
determination by a neutral magistrate – a superior court judge -
of the “legal sufficiency” of that aggravator.6 By filing a
individual committed an offense.”).
6
It is technically possible to read Rule 13.5(c) as limiting
the defendant to a claim that the alleged aggravating
22
motion under Rule 13.5(c), a defendant can obtain protection
against arbitrary state action equivalent to that which he would
have received had the State submitted the aggravator to a grand
jury, and identical to that which he would have received had the
State chosen to proceed by way of information alleging the
aggravating circumstances.
¶38 Because petitioner’s trial has not yet commenced, he
may still file a motion “pursuant to Rule 16” if he wishes a
neutral determination as to whether the aggravating
circumstances alleged by the State are based upon probable
cause. Given the availability of this remedy, I concur in the
Court’s judgment insofar as it denies petitioner special action
relief.
__________________________________
Andrew D. Hurwitz, Justice
CONCURRING:
______________________________
Michael D. Ryan, Justice
circumstance was not listed under A.R.S. § 13-703(F) and is thus
facially legally insufficient. That reading, however, is
inconsistent with the notion, set forth in the comment to the
Rule, that a defendant’s rights to challenge the aggravating
circumstances alleged are waived if not raised before trial.
Surely this Court would not countenance the execution of a
defendant based on an aggravating circumstance not listed in §
13-703(F). The Rule therefore must pertain to more than facial
“legal sufficiency,” i.e., the probable cause for the allegation
of the aggravator.
23
24