State v. Rutledge

SUPREME COURT OF ARIZONA

STATE OF ARIZONA ) Arizona Supreme Court
) No. CR-01-0129-AP
Appellee/Cross-Appellant, )
)
v. ) Maricopa County
) Superior Court
SHERMAN LEE RUTLEDGE, ) No. CR1997-05555
)
Appellant/Cross-Appellee, )
) S U P P L E M E N T A L
) O P I N I O N
)
)

Appeal from the Superior Court in Maricopa County
The Honorable Frank T. Galati, Judge

REMANDED FOR RESENTENCING

Janet A. Napolitano, Former Arizona Attorney General Phoenix
Terry Goddard, Arizona Attorney General
By Kent E. Cattani, Chief Counsel,
Capital Litigation Section
and Robert L. Ellman, Assistant Attorney General
James P. Beene, Assistant Attorney General
John Pressley Todd, Assistant Attorney General
Bruce M. Ferg, Assistant Attorney General Tucson
Attorneys for Appellee

Robert W. Doyle Phoenix
Attorney for Appellant

R Y A N, Justice

I.

¶1 A jury convicted Sherman Lee Rutledge of armed robbery,

first degree felony murder of Ryan Harris, and attempted second

degree murder of Chase Clayton. Following the jury’s verdict, the
trial judge conducted a sentencing hearing to determine whether any

aggravating and mitigating circumstances existed. The State

alleged the existence of three aggravating factors: Rutledge had

a previous conviction of a serious offense, Arizona Revised

Statutes (“A.R.S.”) section 13-703(F)(2) (Supp. 1996); Rutledge

committed the murder for pecuniary gain, A.R.S. section 13-

703(F)(5); and he committed the murder “in an especially heinous,

cruel or depraved manner.” A.R.S. § 13-703(F)(6). Before the

sentencing hearing, the trial court ruled that the (F)(2)

aggravating circumstance was not applicable because the attempted

murder and armed robbery were committed contemporaneously with the

murder.

¶2 After considering the evidence, the court found that the

murder was not “especially cruel” or “especially heinous or

depraved.” A.R.S. § 13-703(F)(6). Therefore, the court concluded

that the (F)(6) aggravating factor was not proved beyond a

reasonable doubt. The judge did find beyond a reasonable doubt

that Rutledge committed the murder with the expectation of

pecuniary gain. A.R.S. § 13-703(F)(5). The court further found no

statutory mitigating factors and no non-statutory mitigating

factors “sufficiently substantial to call for leniency.” A.R.S. §

13-703(E). The court thus sentenced Rutledge to death for the

first degree murder conviction.

¶3 Because Rutledge received a death sentence, a mandatory

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direct appeal was brought to this court. Ariz. R. Crim. P. 26.15,

31.2; A.R.S. § 13-4031 (2001). The State cross-appealed the trial

court’s ruling on the (F)(2) aggravating factor.

¶4 We affirmed Rutledge’s convictions and all sentences

except the sentence of death on direct appeal. See State v.

Rutledge, 205 Ariz. 7, 16, ¶ 43, 66 P.3d 50, 59 (2003). While

Rutledge’s direct appeal was pending, the United States Supreme

Court in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002)

(Ring II), held that Arizona’s capital sentencing scheme violated

a defendant’s Sixth Amendment right to a jury trial.1

¶5 In holding that Arizona’s capital sentencing scheme

violates the right to a jury trial guaranteed by the Sixth

Amendment to the United States Constitution, the Supreme Court

declared that “[c]apital defendants, no less than non-capital

defendants . . . are entitled to a jury determination of any fact

on which the legislature conditions an increase in their maximum

punishment.” Id. at 589, 122 S. Ct. at 2432.

¶6 Following the Supreme Court’s Ring II decision, we

consolidated all death penalty cases in which this court had not

yet issued a direct appeal mandate to determine whether Ring II

requires this court to reverse or vacate the defendants’ death

1
The legislature amended the statute requiring judge-
sentencing in capital cases. See 2002 Ariz. Sess. Laws, 5th Spec.
Sess., ch. 1, § 1.

3
sentences. State v. Ring, 204 Ariz. 534, 545, ¶ 14, 65 P.3d 915,

926 (2003) (Ring III). In Ring III, we concluded that we will

examine a death sentence imposed under Arizona’s superseded capital

sentencing statutes for harmless error. Id. at 555, ¶ 53, 65 P.3d

at 936.

¶7 As a result, we ordered the parties in this case to

address the death penalty sentencing issues in supplemental briefs.

State v. Ring, Order No. CR-97-0428-AP (July 17, 2002). Those

briefs have been filed and we now examine whether Rutledge’s death

sentence can stand in light of Ring II. In addition, the State

filed a supplemental brief in support of its cross-appeal. Based

on our review of the record, we cannot conclude that the Ring II

violation constituted harmless error. We also conclude that the

trial court did not err in striking the (F)(2) allegation.

II.

¶8 Our previous opinion in this matter contains a detailed

account of the underlying facts surrounding the crimes. See

Rutledge, 205 Ariz. at 9-10, ¶¶ 2-12, 66 P.3d at 52-53. Briefly

summarized, the evidence established that Rutledge shot Harris,

killing him, and attempted to kill Clayton. After the shootings,

Rutledge and his brother took the Ford Explorer Clayton had been

driving.

¶9 In its special verdict, the trial court found that “the

totality of the evidence, circumstantial as it may be, proves

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beyond a reasonable doubt that pecuniary gain was the motive for

these crimes.” Commission of an offense “as consideration for the

receipt, or in expectation of the receipt . . . of anything of

pecuniary value” is an aggravating circumstance. A.R.S. § 13-

703(F)(5).

¶10 To establish the pecuniary gain aggravating circumstance,

the state must prove that “the expectation of pecuniary gain [wa]s

a motive, cause, or impetus for the murder and not merely a result

of the murder.” State v. Hyde, 186 Ariz. 252, 280, 921 P.2d 655,

683 (1996) (citing State v. Spencer, 176 Ariz. 36, 43, 859 P.2d

146, 153 (1993)). In other words, there must be proof that “the

murder would not have occurred but for the defendant’s pecuniary

motive.” Ring III, 204 Ariz. at 560, ¶ 75, 65 P.3d at 941 (citing

State v. Harding, 137 Ariz. 278, 296-97, 670 P.2d 383, 401-02

(1983) (Gordon, V.C.J., specially concurring)).

¶11 Proving a taking in a robbery or the existence of some

economic motive at some point during the events surrounding a

murder does not necessarily prove the motivation for a murder.

State v. Medina, 193 Ariz. 504, 513, 975 P.2d 94, 103 (1999);

State v. Greenway, 170 Ariz. 155, 164, 823 P.2d 22, 31 (1991).

Instead, it is “a highly fact intensive inquiry” requiring the

state to prove a “connection between the murder and motive through

direct or strong circumstantial evidence.” Ring III, 204 Ariz. at

560, ¶ 76, 65 P.3d at 941 (citing State v. Cañez, 202 Ariz. 133,

5
159, ¶ 94, 42 P.3d 564, 590 (2002)). A murder committed in

expectation of pecuniary gain is distinguished from a “robbery gone

bad” or a “robbery that occurs close in time to a murder but that

constitutes a separate event for the purpose of an [(F)(5)]

determination.” State v. Sansing, 200 Ariz. 347, 353-54, ¶ 14, 26

P.3d 1118, 1124-25 (2001) (citing State v. McKinney, 185 Ariz. 567,

584, 917 P.2d 1214, 1231 (1996)), vacated on other grounds, 536

U.S. 954 (2002).

¶12 We will find harmless error affecting this factor only if

we are convinced beyond a reasonable doubt that no reasonable jury

could fail to find that the prosecution proved pecuniary gain

beyond a reasonable doubt. Ring III, 204 Ariz. at 560, ¶ 79, 65

P.3d at 941.

¶13 The State asserts that “[t]he evidence was uncontroverted

that the victims were lured to the park on the pretext of obtaining

drugs, and when they arrived, Rutledge . . . attacked [the victims]

and stole the new Ford Explorer.” But the State presented no

specific testimony or evidence that Rutledge’s motive for the

killing was pecuniary gain. One witness did testify that Rutledge

told her that “something is going down.” And another testified

that one of the victims said “if you want it you can have it,”

apparently referring to the Ford Explorer.

¶14 The trial court found that even “[t]he somewhat

contradictory references to what was expected to occur at the scene

6
of the crime . . . bolster[ed] the conclusion that” Rutledge

committed the murder to take the vehicle. Nonetheless, because the

trial court’s finding rests in part on an assessment of witness

credibility, “[w]e cannot say, beyond a reasonable doubt, that a

jury hearing the same evidence as did the judge would have

interpreted the circumstantial evidence or assessed the witnesses’

credibility as did the judge.” State v. Hoskins, 204 Ariz. 572,

574, ¶ 6, 65 P.3d 953, 955 (2003). Therefore, we conclude that the

Ring II error as to the (F)(5) aggravating circumstance was not

harmless.

III.

¶15 The State’s cross appeal asks us to reverse the trial

court’s determination that because the attempted murder and armed

robbery were committed contemporaneously with the murder, the

aggravating factor under A.R.S. section 13-703(F)(2) could not be

applied. Although we remand this matter for resentencing, we

address this issue because the (F)(2) factor “falls outside the

Ring II mandate. The Sixth Amendment does not require a jury to

determine the existence of an [(F)(2)] prior conviction.” State v.

Pandeli, 204 Ariz. 569, 571, ¶ 7, 65 P.3d 950, 952 (2003) (citing

Ring III, 204 Ariz. at 558, ¶¶ 63-64, 65 P.3d at 939).

Consequently, if the State is correct, on remand, a jury

determination on this factor would not be required. Id.

¶16 Section 13-703(F)(2) requires proof that “[t]he defendant

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was previously convicted of a serious offense, whether preparatory

or completed.” According to the State, “the statute by its

unambiguous wording requires [sic] has only two requirements:

First, a previous conviction, and second, the conviction be for a

‘serious offense.’”2 The State thus contends that a “serious

offense” committed in the course of committing a murder can satisfy

the (F)(2) factor. The only limitation is that the conviction for

the serious offense must be rendered before sentencing on the

murder. See e.g., State v. Finch, 202 Ariz. 410, 417, ¶ 33, 46

P.3d 421, 428 (2002) (holding that “[c]onvictions entered

simultaneously with the murder conviction but prior to sentencing

satisfy [(F)(2)].”).

¶17 The trial court in this case agreed that the State’s

argument “ma[de] good sense,” but rejected the State’s position for

the following reasons: (1) State v. Gretzler, 135 Ariz. 42, 659

P.2d 1 (1983), is contrary to the State’s position and was this

court’s most definitive pronouncement on the issue; (2) if the

legislature had intended the (F)(2) aggravator to apply to serious

crimes committed during the commission of a murder it could have

expressly said so in the statute;3 (3) because one purpose of the

2
A “serious offense” includes second degree murder and
robbery. See A.R.S. § 13-703 (H)(2), (8).
3
On May 26, 2003, the legislature amended A.R.S. section
13-703(F)(2) to explicitly provide that a “serious crime” committed
contemporaneously with the murder is sufficient for aggravation
under A.R.S. section 13-703 (F)(2). See 2003 Ariz. Sess. Laws, 1st

8
(F)(2) aggravator is to measure a defendant’s propensity to commit

serious crimes, “[i]t is rational to measure such propensity by the

number of other times one has engaged in such conduct rather than

by the number of discreet [sic] serious crimes committed during the

defendant’s criminal conduct at the time of the subject murder;”

and (4) the State’s interpretation of the (F)(2) aggravating factor

would broaden the class of death eligible defendants, contrary to

the legislative intent to narrow that class of persons.

¶18 In support of its contention, the State relies on two

cases, both of which we find distinguishable. In the first, State

v. Rogovich, the defendant was charged with four counts of first-

degree murder, two counts of aggravated assault, two counts of

armed robbery, and one count of unlawful flight from a law

enforcement vehicle, all stemming from a series of events that took

place during a killing spree that spanned several hours. 188 Ariz.

38, 40, 932 P.2d 794, 796 (1997). The court held that the

convictions for aggravated assault and armed robbery were “previous

Reg. Sess., ch. 255, § 1. That provision now states:

The defendant has been or was previously convicted of a
serious offense, whether preparatory or completed.
Convictions for serious offenses committed on the same
occasion as the homicide, or not committed on the same
occasion but consolidated for trial with the homicide,
shall be treated as a serious offense under this
paragraph.

Because he committed the offenses before May 26, 2003, this
amendment does not apply to Rutledge.

9
convictions” for purposes of (F)(2). Id. at 44, 932 P.2d at 800.

¶19 Rogovich differs from this case in two ways. First,

Rogovich challenged only whether the timing of the convictions and

the nature of the offenses satisfied the requirements of (F)(2).

See id. Thus, Rogovich did not raise, nor did this court address,

the specific issue we face here. Second, at least one aggravated

assault conviction and one armed robbery conviction were committed

separately from each murder. See id. at 40, 932 P.2d at 796.

Accordingly, the facts in Rogovich supported the application of the

(F)(2) factor with convictions for serious offenses that were

committed separately from the murders, unlike the situation in this

case.

¶20 In the second case the State cites, State v. Jones, the

defendant was charged with six counts of first degree murder, three

counts of aggravated assault, three counts of armed robbery, and

two counts of first-degree burglary. 197 Ariz. 290, 297, ¶ 1, 4

P.3d 345, 352 (2000). The events that led to the charges arose out

of two separate armed robberies that were committed on different

dates at different places; two people were murdered during the

first robbery, and four people during the second robbery. Id. at

297-98, ¶¶ 1-9, 4 P.3d at 352-53. Because the defendant was

convicted of the serious offenses before he was sentenced for the

murder convictions, the court held that each of the convictions for

aggravated assault, armed robbery, and first degree burglary

satisfied the (F)(2) aggravating factor. Id. at 311, ¶ 64, 4 P.3d

10
at 366.

¶21 We find Jones distinguishable. Although not specifically

explained by the court because the issue was not raised, the facts

in Jones establish that a number of serious offenses were committed

on different days and at different places. See id. at 297-98, ¶¶

1-9, 4 P.3d at 352-53. Therefore, it can hardly be said that only

serious offenses committed in conjunction with the murder were used

to satisfy the (F)(2) aggravating factor.4

¶22 Thus, neither Rogovich nor Jones directly addressed the

specific issue presented in this case - whether a conviction for a

serious offense arising out of the same event as a murder charge

could be considered when determining the existence of the (F)(2)

aggravating factor. We, however, addressed this issue in State v.

Phillips, 202 Ariz. 427, 438, ¶ 56, 46 P.3d 1048, 1059 (2002).

¶23 In Phillips, we held that convictions arising “from the

same set of events as the murder charge . . . should not be

considered when determining the existence of the [(F)(2)] factor.”

4
Referring to the trial court’s special verdict in Jones,
the State points out that the trial judge used all of the serious
offenses to support its finding on the (F)(2) factor. And because
in our independent review of the imposition of the death penalty
this court affirmed the trial court’s finding on the (F)(2) factor,
the State draws the conclusion that we approved the use of
contemporaneous serious offenses to satisfy (F)(2). However, we
made no such holding. Instead, we focused on whether the offenses
were entered before sentencing on the murders, and whether the
murders were improperly “double-counted” in satisfying both (F)(1)
and (F)(2). Jones, 197 Ariz. at 311, ¶ 64, 4 P.3d at 366.

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Id. In support of that holding, the court cited a footnote from

Gretzler. 135 Ariz. at 57 n.2, 659 P.2d at 16 n.2. In that

footnote, the court, in explaining that a conviction for a serious

offense entered before the sentencing hearing satisfied (F)(2),

commented that it disapproved any language in State v. Ortiz, 131

Ariz. 195, 211, 639 P.2d 1020, 1036 (1981), “suggesting the

contrary.” Gretzler, 135 Ariz. at 57 n.2, 659 P.2d at 16 n.2. The

court went on to state “[i]n Ortiz, we found the trial court erred

in considering a contemporaneous conviction for conspiracy to

commit murder as aggravation for the murder. This exclusion from

consideration is best understood as having been required because

both convictions arose out of the same set of events.” Id.

(emphasis added). The State argues that the emphasized language

from Gretzler is dictum, and therefore not controlling. We

disagree for the following reasons.

¶24 First, Phillips considered Gretzler as persuasive

authority on this point. Second, the State has presented no

compelling reason for us to overrule Phillips. See State v.

Hickman, 205 Ariz. 192, 200-01, ¶¶ 37-38, 68 P.3d 418, 426-27

(2003) (explaining that respect for precedent requires that a court

not overrule precedent unless there are compelling reasons to do

so, and deference to precedent is strongest when prior decisions

construe a statute). Third, the State has cited no case, nor have

we found one, in which this court was faced with a situation in

12
which the (F)(2) factor was only supported by a serious offense

committed contemporaneously with the murder. Fourth, because this

issue has not arisen before (other than in Ortiz and Phillips), it

appears that neither prosecutors nor judges have routinely

interpreted (F)(2) in such a way that a serious offense committed

in conjunction with the murder could support application of that

factor. Finally, to hold as the State urges would mean that a

number of prior death penalties could have been supported by an

additional aggravating factor. See, e.g., State v. Trostle, 191

Ariz. 4, 17-18, 951 P.2d 869, 882-83 (1997) (Defendant convicted of

felony murder based on armed robbery and kidnapping; the state

apparently alleged pecuniary gain, A.R.S. section 13-703(F)(5), and

that the murder was committed in an especially heinous, cruel, or

depraved manner, A.R.S. section 13-703(F)(6), as aggravating

factors, but not as previous serious convictions under A.R.S.

section 13-703(F)(2)); State v. Dickens, 187 Ariz. 1, 23-25, 926

P.2d 468, 490-92 (1996) (Defendant convicted of felony murder based

on armed robbery; the state appeared to have limited its

allegations of aggravating circumstances to pecuniary gain, A.R.S.

section 13-703(F)(5), that the murder was especially heinous,

cruel, or depraved, A.R.S. section 13-703(F)(6), and multiple

homicides, A.R.S. section 13-703(F)(8), but not previous serious

convictions under A.R.S. section 13-703(F)(2)).

13
¶25 Accordingly, we hold that Rutledge’s conviction for a

“serious offense” occurring simultaneously with a murder conviction

cannot be used for (F)(2) purposes under the version of A.R.S.

section 13-703(F)(2) applicable to Rutledge.

IV.

¶26 Because we hold that the sole aggravating factor in this

case must be presented to a jury, we vacate Rutledge’s death

sentence and remand for resentencing. Therefore we find it

unnecessary to examine whether harmless error occurred with respect

to the mitigating circumstances. See Ring III, 204 Ariz. at 565,

¶ 104, 65 P.3d at 946 (holding that our harmless error inquiry does

not end with the aggravating circumstances). Moreover, the State

concedes that if Ring III remains the law, this case must be

remanded for resentencing.5

V.

¶27 For the foregoing reasons, we cannot conclude that the

Ring II error was harmless in this case. Accordingly, we vacate

Rutledge’s death sentence, and remand for resentencing under A.R.S.

5
The State filed a petition for certiorari with the United
States Supreme Court challenging this court’s position, as applied
in Pandeli, that under the Supreme Court’s decision in Ring II, an
analysis of harmless error at the sentencing phase of a capital
trial must also “consider whether reversible error occurred with
respect to the mitigating circumstances.” Pandeli, 204 Ariz. at
572, ¶ 10, 65 P.3d at 953; see also Ring III, 204 Ariz. at 561-62,
565, ¶¶ 87-90, 104, 65 P.3d at 942-43, 946. The State acknowledges
that if the Supreme Court denies its petition for certiorari, Ring
III requires resentencing in this case.

14
sections 13-703 and 13-703.01 (Supp. 2002).

Michael D. Ryan, Justice

CONCURRING:

Ruth V. McGregor, Vice Chief Justice

Rebecca White Berch, Justice

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

¶28 I concur in the result, but I respectfully dissent from

the majority’s conclusion that harmless error analysis is

appropriate where sentencing determinations are made by the trial

judge in the absence of the jury. The right to trial by an

impartial jury is fundamental. The sentencing phase is, of itself,

a life or death matter. Where a judge, not a jury, determines all

questions pertaining to sentencing, I believe a violation of the

Sixth Amendment to the Constitution of the United States has

occurred. In the aftermath of the Supreme Court’s decision in Ring

v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002) (Ring II), the

absence of the jury in the sentencing phase of a capital trial

necessarily amounts to structural error. I would remand the case

for resentencing, simply on the basis of the Sixth Amendment

15
violation. See State v. Ring, 204 Ariz. 534, 565-67, ¶¶ 105-14, 65

P.3d 915, 946-48 (2003)(Feldman, J., concurring in part, dissenting

in part) (Ring III).

Charles E. Jones, Chief Justice

Note: Justice Hurwitz took no part in the consideration or
decision of this case.

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