State v. Dann

SUPREME COURT OF ARIZONA

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-02-0042-AP
Appellee,)
) Maricopa County
v. ) Superior Court
) No. CR 1999-003536
BRIAN JEFFREY DANN, )
)
Appellant.) SUPPLEMENTAL OPINION
)

Appeal from the Superior Court in Maricopa County
The Honorable H. Jeffrey Coker, Judge

DEATH SENTENCE VACATED; 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 Jim D. Nielsen, Assistant Attorney General
and Robert L. Ellman, Assistant Attorney General
and James P. Beene, Assistant Attorney General
and John P. Todd, Assistant Attorney General
and Bruce M. Ferg, Assistant Attorney General Tucson
Attorneys for State of Arizona, Appellee

SUSAN M. SHERWIN, MARICOPA COUNTY OFFICE
OF THE LEGAL ADVOCATE Phoenix
by Brent E. Graham
and Consuelo M. Ohanesian
and
SHUGHART, THOMSON, KILROY, GOODWIN & RAUP, P.C. Phoenix
by Rudolph J. Gerber
Attorneys for Brian Jeffrey Dann, Appellant
________________________________________________________________
B E R C H, Justice

¶1 Brian Jeffrey Dann was sentenced to death under a

procedure found unconstitutional in Ring v. Arizona, 536 U.S.

584, 122 S. Ct. 2428 (2002) (“Ring II”). In Ring II, the United

States Supreme Court held that Arizona’s capital sentencing

scheme violated the defendant’s Sixth Amendment right to a jury

trial. Id. at 609, 122 S. Ct. at 2443.1 In doing so, the Court

held that 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. The

Court remanded the case for further proceedings consistent with

its decision. Id. at 609, 122 S. Ct. at 2443.

¶2 On remand we consolidated all death penalty cases in

which this court had not yet issued a direct appeal mandate,

including Dann’s case, to determine whether Ring II required

reversal or vacatur of the death sentences. State v. Ring, 204

Ariz. 534, 544, ¶¶ 5-6, 65 P.3d 915, 925 (2003) (“Ring III”).

We concluded that we must review each death sentence imposed in

these cases under Arizona’s superseded capital sentencing

statute for harmless error.2 Id. at 555, ¶ 53, 65 P.3d at 936.

1
The legislature has amended the capital statute so
that sentencing factors in capital cases are now tried before
juries. See 2002 Ariz. Sess. Laws 5th Spec. Sess., ch. 1, § 1.
2
As we stated recently in State v. Sansing, CR-99-0438-
AP 4 n.2 (Ariz. Sept. 25, 2003),

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¶3 We now consider whether the death sentence imposed on

Dann can stand in light of Ring II and Ring III, as well as the

Supreme Court’s decision in Atkins v. Virginia, 536 U.S. 304,

122 S. Ct. 2242 (2002), which held that the Eighth Amendment of

the United States Constitution prohibits the execution of

mentally retarded persons. Id. at 321, 122 S. Ct. at 2252.

FACTS AND PROCEDURAL HISTORY

¶4 On October 1, 2001, a jury found Brian Jeffrey Dann

guilty of three counts of first degree murder and one count of

first degree burglary. Following the jury’s verdict, the trial

judge conducted a sentencing hearing in which he found one

aggravating circumstance beyond a reasonable doubt: that Dann

In Summerlin v. Stewart, 341 F.3d 1082, 1119
(9th Cir. 2003), the court held that the
rule announced in Ring II applies
retroactively to cases on federal habeas
review and concluded that a judge’s
imposition of a death penalty “cannot be
subject to harmless error analysis.” Id. at
*33. We are not bound by the Ninth
Circuit’s interpretation of what the
Constitution requires. See State v.
Vickers, 159 Ariz. 532, 543 n.2, 768 P.2d
1177, 1188 n.2 (1989) (declining to follow a
Ninth Circuit decision which held Arizona’s
death penalty statute unconstitutional
because that decision rested on “grounds on
which different courts may reasonably hold
different views of what the Constitution
requires”); State v. Clark, 196 Ariz. 530,
533, ¶ 14, 2 P.3d 89, 92 (App. 1999) (same).
Accordingly, we decline to revisit our
conclusion that Ring II error can be
reviewed for harmless error.

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had been convicted of one or more homicides that were committed

during the commission of the offense. See Ariz. Rev. Stat.

(“A.R.S.”) § 13-703(F)(8) (2001). This finding rendered Dann

eligible for the death sentence. See id. § 13-703(E). After

reviewing the mitigating circumstances Dann presented at the

sentencing hearing, the judge concluded that they were not

“sufficiently substantial to call for leniency,” and sentenced

Dann to death. On appeal we reversed Dann’s convictions for two

of the first degree premeditated murders, but affirmed one

conviction of premeditated first degree murder, three

convictions of first degree felony murder, and the conviction

and sentence for first degree burglary. State v. Dann, ___

Ariz. ___, ___, ¶ 76, 74 P.3d 231, 250 (2003). We now review

whether, in light of Ring II and Ring III, the death sentence

imposed on Dann can stand.

DISCUSSION

A. Ring II Error

¶5 In Ring III, we concluded that judicial fact-finding

in the capital sentencing process may constitute harmless error

if we can conclude beyond a reasonable doubt that no reasonable

jury would fail to find the aggravating circumstance. 204 Ariz.

at 555, 565, ¶¶ 53, 102-04, 65 P.3d at 936, 946. We now examine

whether the Ring II error was harmless with respect to the

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aggravating circumstance found by the trial judge in Dann’s

case.

1. Aggravating Circumstance: Multiple Homicides.

¶6 Arizona law lists as an aggravating circumstance

whether “[t]he defendant has been convicted of one or more other

homicides . . . which were committed during the commission of

the offense.” A.R.S. § 13-703(F)(8). Ring III makes clear that

while the finding of an (F)(8) aggravator is subject to a

harmless error analysis, the finding may not be based solely on

the jury’s verdict of guilt on multiple homicides. 204 Ariz. at

561, ¶¶ 81-82, 65 P.3d at 942. Rather, the murders must be

“temporally, spatially and motivationally related.” Id. ¶ 81

(citing State v. Rogovich, 188 Ariz. 38, 45, 932 P.2d 794, 801

(1997)).

¶7 In this case, as specifically prohibited by Ring III

and Rogovich, the trial judge based his finding on the fact that

the jury “found beyond a reasonable doubt that the defendant

killed three people.” We agree with Dann that this was error.

See Ring III, 204 Ariz. at 561, ¶¶ 81-82, 65 P.3d at 942 (noting

that “[w]ithout a finding that the murders are temporally,

spatially and motivationally related, the bare jury verdict does

not implicitly support the F.8 aggravator”) (citing Rogovich,

188 Ariz. at 45, 932 P.2d at 801). As we noted in Ring III,

however, we can find the error to be harmless if “no reasonable

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jury could find that the state failed to prove the F.8 factor

beyond a reasonable doubt.” Id. ¶ 82. We find that to be the

case here and therefore conclude that the error was harmless.

¶8 This court recently analyzed the temporal, spatial,

and motivational relationships necessary to support a finding of

the (F)(8) factor. See State v. Tucker, ___ Ariz. ___, ¶¶ 65-

66, 68 P.3d 110, 122 (2003); see also State v. Lavers, 168 Ariz.

376, 393-94, 814 P.2d 333, 350-51 (1991). In Tucker, the court

affirmed the trial court’s finding of a spatial relationship

because all victims were murdered within an apartment, in close

proximity to one another: two in a bedroom and the primary

victim in the adjoining area. Tucker, ___ Ariz. at ___-___,

___, ¶¶ 12-13, 65-66, 68 P.3d at 113-14, 122. It is uncontested

here that Dann’s victims were also killed in close proximity to

one another. All died in the front room of Andrew’s apartment,

where they had been seated near one another. Dann, ___ Ariz. at

___, ¶ 7, 74 P.3d at 237.

¶9 Similarly, the undisputed evidence at trial showed

that all victims were killed within moments of one another. See

id. Witness Tina Pace-Morrell, Dann’s former girlfriend,

testified that, immediately after the killings, Dann came to her

apartment and told her that he shot Andrew Parks, his intended

victim, then Shelly Parks, and then shot Eddie Payan because he

had witnessed the other killings. Id. The short, uninterrupted

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span of time in which these actions occurred satisfied the

temporal relationship required to sustain the (F)(8) factor.

See Lavers, 168 Ariz. at 394, 814 P.2d at 351 (finding a

temporal relationship existed where “the two murders were

separated by just minutes”).

¶10 Finally, the motivational requirement was shown by the

uncontroverted evidence that Dann went to the apartment

intending to kill Andrew, see Dann, ___ Ariz. at ___, ___, ¶¶ 6,

19, 74 P.3d at 237, 239, and killed Shelley and Eddie simply

because they were there, and, with respect to Eddie, simply

because he was a witness, id. ¶ 7. In Tucker, a case very

similar to this one, we found related motivation where, although

the defendant’s ex-girlfriend was the primary victim, other

victims may have been killed to eliminate witnesses. ___ Ariz.

at ___, ¶ 66, 68 P.3d at 122. We concluded that it was

“difficult to imagine a motive for the killings unrelated to the

murder of [the girlfriend]”). Id. We conclude here, as we did

in Tucker, that while a jury may differ as to Dann’s precise

motive for killing Shelly and Eddie, no jury would fail to find

that his motives were related to the murder of Andrew.

¶11 We conclude that, given the uncontroverted evidence on

these points, no jury could have found other than that the three

murders in this case were temporally, spatially, and

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motivationally related. We therefore find any error in this

finding harmless beyond a reasonable doubt.

2. Mitigating Circumstances.

¶12 Our harmless error inquiry does not end with an

examination of the aggravating circumstances. Because we can

affirm a capital sentence only if we can conclude beyond a

reasonable doubt “that no rational trier of fact would determine

that the mitigating circumstances were sufficiently substantial

to call for leniency,” we must also consider whether reversible

error occurred with respect to the mitigating circumstances.

Ring III, 204 Ariz. at 565, ¶ 104, 65 P.3d at 946.

¶13 At his sentencing hearing, Dann offered eleven

mitigating circumstances for the court’s consideration. Three

of these factors were statutory: impairment, unusual or

substantial duress, and age. A.R.S. § 13-703(G)(1), (G)(2),

(G)(5). Dann also offered eight non-statutory factors: (1)

abandonment, (2) polysubstance abuse and dependency, (3)

dysfunctional family, (4) lack of stability, (5) brain damage,

(6) psychiatric issues, (7) residual doubt, and (8) family

support. The trial judge found that Dann proved three of these

latter mitigating circumstances: substance abuse, psychiatric

issues, and family support. He gave little weight to family

support and substance abuse, however, and determined that Dann

failed to establish a significant causal connection between the

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psychiatric issues and the three murders of which he was

convicted. As a result, the trial judge concluded that the

weight of these mitigating factors was insufficient to call for

leniency.

¶14 Based on the conflicting evidence in this record on

these issues, we cannot conclude beyond a reasonable doubt that

no rational jury would find other than as the trial judge found.

After reviewing the evidence, we cannot say that a jury would

not have found additional mitigating factors or weighed

differently the mitigating factors that were found.

Furthermore, we cannot say beyond a reasonable doubt that if a

jury had found additional mitigating circumstances or weighed

the mitigating circumstances differently, it would not have

found them “sufficiently substantial to call for leniency.”

A.R.S. § 13-703(E). Therefore, we conclude that the Ring II

error was not harmless in this case. Accordingly, we vacate

Dann’s death sentence and remand for resentencing.

B. Mental Retardation as an Absolute Bar to Execution

¶15 Our inquiry is not yet complete. While Dann’s case

remained on direct appeal, the Supreme Court announced that the

Eighth Amendment to the United States Constitution “‘places a

substantive restriction on the State’s power to take the life’

of a mentally retarded offender.” Atkins, 536 U.S. at 321, 122

S. Ct. at 2252 (quoting Ford v. Wainwright, 477 U.S. 399, 405,

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106 S. Ct. 2595, 2599 (1986)). Furthermore, in 2001, shortly

before the decision in Atkins was announced, the Arizona

legislature enacted a statute barring the imposition of the

death sentence on mentally retarded persons.3

¶16 Dann asserts that he should be afforded a hearing to

determine whether he is mentally retarded and, if so, whether

his retardation is so severe as to bar his execution. In

Atkins, the Court offered some guidance regarding how to

determine whether a defendant has mental retardation. The Court

noted that “clinical definitions of mental retardation require

not only subaverage intellectual functioning, but also

significant limitations in adaptive skills such as

communication, self-care, and self-direction that became

manifest before age 18.” Id. at 318, 122 S. Ct. at 2250.

¶17 We addressed the application of the standards set

forth in Atkins to our death penalty cases in State v. Grell,

205 Ariz. 57, 66 P.3d 1234 (2003). In Grell, the trial judge

sentenced a capital defendant to death after finding that the

defendant had failed to establish that he was mentally retarded.

Id. at 61, ¶ 27, 66 P.3d at 1238. Because Grell was sentenced

3
We note that as originally written, A.R.S. § 13-703.02
applied only prospectively to cases in which the State filed its
notice of intent to seek the death penalty after the effective
date of the statute. The statute was amended in 2002, however,
to apply to all capital sentencing proceedings, including
resentencing proceedings. See id. § 13-703.02(J) (Supp. 2003);
2002 Ariz. Sess. Laws 5th Spec. Sess., ch. 1, § 4.

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before the Supreme Court issued its decision in Atkins, the

trial judge had considered the mental retardation evidence from

the perspective that such evidence might establish a statutory

mitigating factor calling for leniency in sentencing, not from

the perspective that such evidence might raise an absolute bar

to execution. Id. at 63, ¶ 37, 66 P.3d at 1240. We concluded

that the Atkins decision prohibiting the execution of mentally

retarded offenders as well as Arizona’s new statute barring the

imposition of the death penalty on mentally retarded offenders

had “so changed the landscape of death penalty jurisprudence

that the trial court simply could not have applied the correct

principles during sentencing.” Id. ¶¶ 37-38. As a consequence –

and because Grell had made a showing of subaverage intellectual

functioning, deficits in adaptive functioning, and onset before

age 18 – we held that due process required that Grell’s case be

remanded for an Atkins hearing to determine whether Grell had

mental retardation. See id. ¶ 41. Our rationale in doing so

was that the trial judge’s decision not to accept mental

retardation as mitigation might differ when viewing the same

evidence as a bar to execution: “[T]he adversarial procedure by

which Grell’s mental retardation was considered differed in

nature and scope from the process created by the legislature in

A.R.S. § 13-703.02, which contemplates a more thorough

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examination by experts selected by the trial judge, in

consultation with the parties.” Id. ¶ 40.

¶18 Dann’s case differs from Grell’s, however, because

while Grell had presented extensive evidence of his retardation

at the mitigation hearing, including IQ tests placing his

intelligence in the “seventy to seventy-five” range specified by

the Supreme Court in Atkins as triggering the mental retardation

inquiry, Grell also presented expert evidence that he lacked

adaptive capacity and that his condition manifested itself

before age 18. Id. at 62, ¶¶ 31-35, 66 P.3d at 1239; see A.R.S.

§ 13-703.02(K)(2). Dann, on the other hand, presented two IQ

tests, one administered while he was in first grade, which

produced a measured IQ of 123, and a standard WAIS-III given to

Dann in preparation for his sentencing hearing, which revealed a

full scale IQ of 100.4 Neither test reveals intelligence at the

low level necessary to trigger the Atkins/Grell inquiry. Nor

has Dann shown evidence of impairment in adaptive capability or

onset before age 18.

¶19 The only evidence that Dann has offered in this

respect is (1) the 23-point drop in his IQ over three decades,

(2) that he has some degree of brain damage, and (3) that he

4
In Atkins, the Supreme Court noted that “a person
receiving [an IQ] score [on the WAIS-III] of 100 is considered
to have an average level of cognitive functioning.” 536 U.S. at
309 n.5, 122 S. Ct. at 2245 n.5.

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suffers from “an antisocial disorder that shares some aspects of

borderline personality disorder.” Dann alleges that “A.R.S. §

13-703.02 created a pretrial process by which capital defendants

are evaluated for mental defects” (emphasis added). We disagree

with Dann’s characterization of the law. Atkins, Grell, and

Cañez5 recognized the right to a hearing to determine mental

retardation, not mental defects. Mental retardation is not

curable or controllable by medication, as certain forms of

mental illness may be.

¶20 This court recently addressed whether mental

retardation hearings, pursuant to A.R.S. § 13-703.02, are

required on resentencing. See State v. Montaño, CR-99-0439-AP,

slip op. at ¶¶ 24-25 (Ariz. Oct. 21, 2003). In Montaño, the

capital defendant alleged “that his low I.Q. rendered him unable

to understand the legality of his conduct,” and presented expert

testimony that this allegation, considered along with the

defendant’s “academic history and his problems that he had when

he was younger . . . affected his ability to conform his conduct

to the law.” Id. ¶¶ 21-22. Because we could not conclude as a

matter of law from this evidence whether Montaño was mentally

retarded, we remanded the case to the trial court to determine

5
State v. Cañez, 403 Ariz. Adv. Rep. 25 (June 30,
2003).

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whether a mental retardation hearing was required under § 13-

703.02. Id. ¶ 24.

¶21 Unlike Montaño, however, Dann has offered no evidence

that raises any doubt as to whether he may be mentally retarded.

Although he presented IQ evidence, he has never alleged mental

retardation and did not offer any evidence demonstrating even

the possibility of mental retardation. He has offered no

evidence of impairment of adaptive capability or onset before

age 18. In fact the IQ evidence Dann offered showed that at the

time of sentencing his full scale IQ was 100, substantially

above the “seventy to seventy-five” range that triggers the

mental retardation inquiry. Under Atkins and § 13-703.02,

therefore, Dann’s mental ability far exceeded the threshold

necessary to trigger a mental retardation inquiry. Because we

conclude as a matter of law that Dann has not met the minimum

threshold necessary to trigger an Atkins or § 13-703.02 inquiry,

we deny his request for a hearing on the subject of mental

retardation.

C. Claims Raised to Avoid Preclusion

¶22 Dann has raised fourteen separate bases for his claim

that Arizona’s death penalty is unconstitutional. After

reviewing them, we reject each claim and affirm the

constitutionality of the death penalty in Arizona under the

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constitutions of both the United States and the State of

Arizona.

CONCLUSION

¶23 We vacate Dann’s death sentence and remand this case

for jury resentencing pursuant to A.R.S. §§ 13-703 to -703.01,

but deny Dann’s request for a hearing pursuant to Atkins or

A.R.S. § 13-703.02.

_________________________________
Rebecca White Berch, Justice

CONCURRING:

_____________________________________
Ruth V. McGregor, Vice Chief Justice

_____________________________________
Michael D. Ryan, Justice

J O N E S, C.J., concurring in part, dissenting in part:

¶24 I concur in the result, but 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

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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 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

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