SUPREME COURT OF ARIZONA
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-99-0551-AP
Appellee,)
) Pima County
v. ) Superior Court
) No. CR-61452
MARCUS LASALLE FINCH, )
)
Appellant.) SUPPLEMENTAL OPINION
)
Appeal from the Superior Court in Pima County
The Honorable Bernardo P. Velasco, Judge
REMANDED FOR RESENTENCING
JANET A. NAPOLITANO, ARIZONA ATTORNEY GENERAL Phoenix
by Kent E. Cattani, Chief Counsel,
Capital Litigation Section
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 Appellee
LAW OFFICES OF WILLIAMSON & YOUNG, P.C. Tucson
by S. Jonathan Young
Attorneys for Appellant
B E R C H, Justice
¶1 Marcus Finch 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 Supreme Court held that
Arizona’s capital sentencing scheme violated the defendant’s Sixth
Amendment right to a jury trial.1 Id. at 609, 122 S. Ct. at 2443.
1
The legislature has since amended the statute requiring
judge-sentencing in capital cases. See 2002 Ariz. Sess. Laws, 5th
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 for further proceedings consistent with
its decision. Id. at 609, 122 S. Ct. at 2443.
¶2 On remand, we consolidated all cases, including Finch’s,
in which the death penalty had been imposed and the mandate had not
yet issued from this court, to determine whether Ring II requires
reversal or vacatur of the death sentences in these cases. State
v. Ring, No. Ariz. , , ¶¶ 5-6, 65 P.3d 915, 925 (2003)
(Ring III). We concluded that we must review each death sentence
imposed under Arizona’s superseded capital sentencing statutes for
harmless error. Id. at , ¶ 53, 65 P.3d at 936.
¶3 After reviewing the record in Finch’s case, we cannot
say, beyond a reasonable doubt, that the error in having the judge
impose sentence was harmless.
FACTS AND PROCEDURAL HISTORY
¶4 On March 2, 1999, a jury found Marcus Finch guilty of two
counts of attempted murder and forty-five counts of armed robbery,
kidnapping, and aggravated assault, all stemming from three
separate robberies that occurred over a sixteen-day period in
April, 1998. See State v. Finch, 202 Ariz. 410, 412, ¶ 1, 46 P.3d
Spec. Sess. ch. 1, § 1.
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421, 423 (2002). Finch was also convicted of first degree felony
murder for shooting and killing Kevin Hendricks during the third
robbery. Id. Following the jury’s verdict, the trial judge
conducted a sentencing hearing in which he found beyond a
reasonable doubt two aggravating circumstances: that Finch
committed the murder with the expectation of pecuniary gain and
that he had been convicted of prior serious offenses. Id. at 414,
¶ 12, 46 P.3d at 425 (citing Ariz. Rev. Stat. (“A.R.S.”) § 13-
703(F)(2), (F)(5) (Supp. 1998)). The aggravating circumstances
rendered Finch eligible for the death sentence. See id. After
reviewing the mitigating circumstances Finch presented at the
sentencing hearing, the judge concluded “that either of the two
aggravating circumstances was sufficient in itself to outweigh the
mitigating factors.” Id. We affirmed Finch’s conviction of first
degree felony murder on direct appeal and affirmed all of the other
convictions and sentences. Id. at 419, ¶ 59, 46 P.3d at 430. We
now review whether, in light of Ring II and Ring III, the death
sentence imposed on Finch can stand.
DISCUSSION
A. Aggravating Circumstances
1. Prior serious offense
¶5 Arizona law lists as an aggravating circumstance whether
“[t]he defendant was previously convicted of a serious offense,
whether preparatory or completed.” A.R.S. § 13-703(F)(2). The
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trial judge determined that twenty-seven of the forty-five total
counts of armed robbery, aggravated assault, and kidnapping were
committed during the first and second robberies. These twenty-
seven counts, the trial judge determined, constituted prior serious
offenses.
¶6 In Ring III, we held “that the Sixth Amendment does not
require a jury to determine prior convictions under sections 13-
703.F.1 and F.2.” Ariz. at - , ¶ 55, 65 P.3d at 936-37.
Accordingly, we will not disturb the trial judge’s finding that the
aggravating circumstance of prior serious offenses was proved,
rendering Finch eligible for the death sentence.
2. Pecuniary gain
¶7 Committing an offense “in expectation of the
receipt . . . of anything of pecuniary value” is an aggravating
circumstance. A.R.S. § 13-703(F)(5). To establish this
aggravating factor, the State must prove beyond a reasonable doubt
that “pecuniary gain [was] a motive, cause, or impetus for the
murder and not merely the result of the murder.” State v. Spears,
184 Ariz. 277, 292, 908 P.2d 1062, 1077 (1996). This court has
also held that pecuniary gain is shown if a “murder was committed
to hinder detection” of a continuing robbery. State v. Lee, 185
Ariz. 549, 558, 917 P.2d 692, 701 (1996); see also State v.
Rockwell, 161 Ariz. 5, 14, 775 P.2d 1069, 1078 (1989) (holding that
where a witness was eliminated to facilitate the theft, “the murder
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was part and parcel of the robbery”); State v. Libberton, 141 Ariz.
132, 139, 685 P.2d 1284, 1291 (1984) (finding pecuniary gain as an
aggravating factor where the murder was committed to prevent
detection of a robbery).
¶8 Before the Supreme Court decided Ring II, this court
affirmed the trial court’s finding, based on Finch’s admissions,
that Finch killed Hendricks to facilitate the robbery, and hence
for pecuniary gain. Finch, 202 Ariz. at 416-17, ¶ 29, 46 P.3d 427-
28. Because the finding of pecuniary gain is so fact-intensive,
however, we cannot affirm a pecuniary gain finding unless we are
convinced that no reasonable jury could find that the State failed
to prove a pecuniary gain beyond a reasonable doubt. See Ring III,
Ariz. at , ¶¶ 76, 79, 65 P.3d at 941. Only in such a case
will we find harmless error regarding that factor. Id. at , ¶
79, 65 P.3d at 941.
¶9 At trial, Finch admitted that he “shot Hendricks to
prevent him from telling anyone that a robbery was taking place,”
thereby allowing Finch and his codefendant to avoid detection and
facilitating their escape. Finch, 202 Ariz. at 416-17, ¶ 31, 46
P.3d at 427-28. Given Finch’s admissions of pecuniary motive, we
conclude that no reasonable jury could find that Finch did not
shoot Hendricks for pecuniary gain. Accordingly, we will not
disturb the trial judge’s finding that the aggravating circumstance
of pecuniary gain was proved, rendering Finch eligible for the
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death sentence.
B. Mitigating Circumstances
¶10 To sentence a defendant to death, not only must the trier
of fact find, beyond a reasonable doubt, the existence of one or
more aggravating circumstances, but it must also consider whether
any mitigating circumstances are sufficiently substantial to call
for leniency. A.R.S. § 13-703(E) (Supp. 2002). Ring III allows us
to “affirm a capital sentence only if we conclude, beyond a
reasonable doubt, that no rational trier of fact would determine
that the mitigating circumstances were sufficiently substantial to
call for leniency.” Ariz. at , ¶ 104, 65 P.3d at 946.
¶11 Finch offered several mitigating factors for the court’s
consideration. Finch, 202 Ariz. at 417-18, ¶¶ 34-45, 46 P.3d at
428-29. Specifically, Finch offered two statutory mitigating
factors: impairment and unusual and substantial duress. A.R.S. §
13-703(G)(1), (G)(2). Finch also offered several non-statutory
mitigating factors including (1) his cooperation, remorse, pretrial
growth, good behavior during incarceration, and potential for
rehabilitation; (2) his family’s support; (3) the effects of
Finch’s execution on his children; (4) his emotional duress as a
result of his drug use and difficult childhood; and (5) his lack of
intent to kill Hendricks. Finch, 202 Ariz. at 417-18, ¶¶ 34-45, 46
P.3d at 428-29. The trial judge found several mitigating factors,
including remorse, cooperation, good behavior, and rehabilitative
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potential, but the weight of these factors was insufficient to call
for leniency. Id. at 414, ¶¶ 12, 40, 41, 46 P.3d at 425, 429.
After reviewing the evidence, we cannot say that a reasonable 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).
CONCLUSION
¶12 Accordingly, because we cannot say that the sentencing
procedure used here resulted in harmless error, we vacate Finch’s
death sentence and remand for resentencing under A.R.S. section 13-
703 and 13-703.01 (Supp. 2002).
Rebecca White Berch, Justice
CONCURRING:
Ruth V. McGregor, Vice Chief Justice
Michael D. Ryan, Justice
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J O N E S, C.J., concurring in part, dissenting in part:
¶13 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 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, ____ Ariz. ____, ____ ¶¶ 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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