IN THE SUPREME COURT OF ARIZONA
STATE OF ARIZONA, ) Supreme Court
) No. CR 98-0376-AP
Appellee, )
) Maricopa County
v. ) Superior Court
) No. CR-93-08116
)
DARREL PETER PANDELI, aka )
DARREL PETER FLORIAN, ) SUPPLEMENTAL
) O P I N I O N
Appellant. )
___________________________________)
Appeal from the Superior Court in Maricopa County
No. CR-93-08116
The Honorable Gregory H. Martin, Judge
REMANDED FOR RESENTENCING
Janet Napolitano, 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 State of Arizona
Julie S. Hall Tucson
and
Arizona Capital Representation Project Tucson
by Jennifer Bedier
Attorneys for Darrel Peter Pandeli aka
Darrel Peter Florian
McGregor, Vice Chief Justice
¶1 Defendant Darrel Peter Pandeli (Pandeli) was convicted by
a jury of first degree murder and was sentenced to death by the
trial judge. The case came before us on direct review, pursuant to
Rules 26.15 and 31.2 of the Arizona Rules of Criminal Procedure
and Arizona Revised Statutes (A.R.S.) section 13-4031 (2001).
¶2 This court filed an opinion affirming Pandeli’s
conviction and death sentence. State v. Pandeli, 200 Ariz. 365, 26
P.3d 1136 (2001). The United States Supreme Court vacated the
judgment and remanded for further consideration in light of Ring v.
Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002) (Ring II). Pandeli
v. Arizona, __ U.S. __, 122 S. Ct. 2654 (2002) (mem.). The Ring II
decision does not affect our original opinion with respect to
factual, procedural, and guilt issues, so we need not reconsider
those portions of our original opinion. In this supplemental
opinion, we reconsider Pandeli’s sentence in light of Ring II.
I.
¶3 In Ring II, the United States Supreme Court held that
Arizona’s former capital sentencing scheme1 violates the right to
a jury trial guaranteed by the Sixth Amendment to the United States
Constitution. Ring II, 536 U.S. at __, 122 S. Ct. at 2443. The
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
1
The legislature has since amended A.R.S. § 13-703. See
2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, § 1.
2
punishment.” Id. at __, 122 S. Ct. at 2432. The Court reversed
our decision in State v. Ring, 200 Ariz. 267, 25 P.3d 1139 (2001)
(Ring I), and remanded for further proceedings consistent with its
decision. Ring II, 536 U.S. at __, 122 S. Ct. at 2443.
¶4 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
sentences. In State v. Ring, __ Ariz. __, __ ¶ 53, __ P.3d __, __
(2003) (Ring III), we held that we will examine a death sentence
imposed under Arizona’s superseded capital sentencing statutes for
harmless error.
II.
¶5 The State charged Pandeli with two counts of premeditated
murder: count one for the murder of Teresa Humphreys and count two
for the murder of Holly Iler. Pandeli murdered Humphreys more than
a year before he murdered Iler. The trial court severed the two
counts, which were tried before separate juries. In February of
1996, a jury convicted Pandeli of second degree murder for killing
Teresa Humphreys. The trial court sentenced him to twenty years in
prison.
¶6 In July of 1997, a jury convicted Pandeli of first degree
murder for killing Holly Iler. Following the jury’s verdict, the
trial judge conducted a sentencing hearing to determine whether any
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aggravating and mitigating circumstances existed. A.R.S. § 13-703
(2001). At trial, the State advanced two aggravating
circumstances: (1) a previous conviction of a serious crime, A.R.S.
section 13-703.F.2 (2001) and (2) the murder was committed in an
especially heinous, cruel, or depraved manner. Id. § 13-703.F.6.
The trial court found each factor beyond a reasonable doubt.
¶7 The F.2 aggravating circumstance applies if the state
proves beyond a reasonable doubt that a defendant has been
convicted of a serious offense, which includes second degree
murder. Id. § 13-703.F.2;2 Id. § 13-703.H.1. In 1996, a jury
convicted Pandeli of second degree murder for killing Teresa
Humphreys. This aggravating circumstance falls outside the Ring II
mandate. The Sixth Amendment does not require a jury to determine
the existence of an F.2 prior conviction. Ring III, __ Ariz. at __
¶¶ 63-64, __ P.3d at __.
¶8 To establish the F.6 aggravating circumstance, the state
must prove that the manner in which a defendant killed the victim
was especially heinous, cruel, or depraved. A.R.S. § 13-703.F.6.
The state needs to prove only one of the heinous, cruel, or
2
The version of A.R.S. section 13-703.F.2 making a prior
conviction “of a serious offense, whether preparatory or completed”
an aggravating circumstance became effective on July 17, 1993.
Pandeli murdered Holly Iler on September 23, 1993. Thus, this
version of the statute governed Pandeli’s case. A.R.S. § 1-246
(2002); State v. Newton, 200 Ariz. 1, 2 ¶ 3, 21 P.3d 387, 388
(2001) (“A basic principle of criminal law requires that an
offender be sentenced under the laws in effect at the time he
committed the offense for which he is being sentenced.”).
4
depraved factors for this aggravating circumstance to apply. State
v. Gretzler, 135 Ariz. 42, 51, 659 P.2d 1, 10 (1983). The terms
heinous and depraved refer to the “mental state and attitude of the
perpetrator as reflected in his words and actions.” State v.
Clark, 126 Ariz. 428, 436, 616 P.2d 888, 896 (1980). Post-mortem
mutilation indicates “a mental state that is ‘marked by
debasement’” and supports a finding of especially heinous or
depraved. See State v. Vickers, 129 Ariz. 506, 515, 633 P.2d 315,
324 (1981).
¶9 At Pandeli’s trial, the medical examiner testified that
Iler’s nipples were excised post-mortem, explaining that it took at
least four strokes of a knife to sever the right nipple and at
least two, possibly three, strokes to sever the left nipple. In
his confession to the police, Pandeli admitted both to killing Iler
and to removing her nipples after she died. According to Pandeli,
he either threw the nipples in the garbage or flushed them down the
toilet. Although the State did not present the confession during
the guilt phase, the trial court admitted the confession into
evidence during the sentencing phase. Given these overwhelming and
essentially uncontroverted facts, the State can make a strong
argument that no reasonable jury could fail to find the F.6 factor.
See Ring III, __ Ariz. at __ ¶ 93, __ P.3d at __.
¶10 As we explained in Ring III, however, our harmless error
inquiry does not end with considering aggravating circumstances.
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Id. We also must consider whether reversible error occurred with
respect to the mitigating circumstances. Id. The trial judge
found no statutory mitigating circumstances and considered
Pandeli’s family background, his overall developmental history, his
good behavior while incarcerated, his mental or emotional health,
and remorse as non-statutory mitigating circumstances. The defense
presented an expert who diagnosed Pandeli as suffering from
paranoid schizophrenia and post traumatic stress disorder and
testified that these disorders could have contributed to Pandeli’s
conduct. Although the State’s expert strongly contradicted this
testimony, we cannot say, beyond a reasonable doubt, that a
reasonable jury hearing the same evidence as did the judge would
have assessed the defense expert’s testimony as did the judge and
would have failed to find mental impairment, a statutory mitigating
circumstance. A.R.S. § 13-703.G.1. A different finding of
mitigating circumstances could affect the determination whether the
mitigating circumstances are “sufficiently substantial to call for
leniency.” Id. § 13-703.E.
III.
¶11 For the foregoing reasons, we cannot conclude that the
Ring II error was harmless in this case. Accordingly, we vacate
Pandeli’s death sentence and remand for resentencing under A.R.S.
sections 13-703 and 13-703.01 (Supp. 2002).
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____________________________________
Ruth V. McGregor, Vice Chief Justice
CONCURRING:
_________________________________
Rebecca White Berch, Justice
_________________________________
Michael D. Ryan, Justice
Jones, Chief Justice, specially concurring
¶12 I concur in the result. On the question whether harmless
error analysis is appropriate in the case before us, see State v.
Ring, __ Ariz. at __ ¶¶ 105-15, __ P.3d at __ (2003) (Feldman, J.,
concurring in part and dissenting in part).
________________________________
Charles E. Jones, Chief Justice
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