McKaney v. Foreman

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.

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