SUPREME COURT OF ARIZONA
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-97-0349-AP
Appellee, )
) Maricopa County Superior
v. ) Court
) Nos. CR-94-11396 and
) CR-94-11397
AARON SCOTT HOSKINS, ) (CONSOLIDATED)
)
) SUPPLEMENTAL
Appellant. ) O P I N I O N
)
___________________________________)
Appeal from the Superior Court of Maricopa County
Nos. CR-94-11396 and CR-94-11397 (CONSOLIDATED)
The Honorable Jeffrey A. Hotham, 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 State of Arizona
Denise Young Tucson
and
Arizona Capital Representation Project Tucson
by Jennifer Bedier
Attorneys for Aaron Scott Hoskins
_________________________________________________________________
McGregor, Vice Chief Justice
¶1 The only issue before us is whether reversible error
occurred when a trial judge sentenced Aaron Scott Hoskins to death
under a procedure that violated Ring v. Arizona, 536 U.S. 584, 122
S. Ct. 2428 (2002) (Ring II). We have jurisdiction pursuant to
Article VI, Section 5.3 of the Arizona Constitution and Arizona
Revised Statutes (A.R.S.) section 13-4031 (2001). Based on our
review of the record, we cannot conclude that the Ring II violation
constituted harmless error.
I.
¶2 In Ring II, the United States Supreme Court held that
Arizona’s former capital sentencing scheme 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
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.
¶3 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
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harmless error.
II.
¶4 A jury found, beyond a reasonable doubt, that Aaron Scott
Hoskins committed premeditated first degree murder, kidnapping,
armed robbery, and theft. Following the jury’s guilty verdict, the
trial judge conducted a sentencing hearing to determine whether any
aggravating or mitigating circumstances existed. A.R.S. § 13-703,
amended by 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, § 1. The
judge found beyond a reasonable doubt that Hoskins murdered Crystel
Cabral in expectation of the receipt of pecuniary gain. A.R.S. §
13-703.F.5. Moreover, the judge determined that the mitigating
circumstances were not “sufficiently substantial to call for
leniency.” Id. § 13-703.E. Accordingly, the judge sentenced
Hoskins to death. We affirmed Hoskins’ sentence on his direct
appeal. State v. Hoskins, 199 Ariz. 127, 14 P.3d 997 (2000).
¶5 The pecuniary gain aggravating circumstance exists only
“if the expectation of pecuniary gain is 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).
Proving that a defendant both robbed and murdered his victim does
not satisfy the state’s burden. See State v. Medina, 193 Ariz.
504, 513 ¶ 32, 975 P.2d 94, 103 (1999) (“The existence of an
economic motive at some point during the events surrounding a
murder is not enough to establish (F)(5).”). The state also must
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establish a motivating connection between the robbery and the
homicide. Id.
¶6 The State did not present any direct evidence during the
sentencing hearing to prove that the expectation of pecuniary gain
motivated Hoskins to take Crystel’s life. The State relied
primarily on two witnesses who testified at trial that Hoskins had
told them he planned to car-jack someone someday. Based on these
witnesses’ trial testimony and on circumstantial evidence, the
judge found beyond a reasonable doubt that Hoskins murdered Crystel
Cabral with the expectation of pecuniary gain. We 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.
¶7 The judge considered Hoskins’ age as the only statutory
mitigating circumstance. The judge rejected other statutory
mitigating circumstances including mental impairment, duress, minor
participation, and forseeability of death. A.R.S. § 13-703.G. The
defense presented an expert who diagnosed Hoskins as having Bipolar
II Disorder and testified that the disorder could have contributed
to Hoskins’ conduct. We also cannot say, beyond a reasonable
doubt, that a jury hearing the same evidence as did the judge would
have assessed the defense expert’s testimony similarly and would
have failed to find mental impairment, a statutory mitigating
circumstance. A different finding of mitigating circumstances
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could affect a fact-finder’s determination whether the mitigating
circumstances are “sufficiently substantial to call for leniency.”
A.R.S. § 13-703.E.
III.
¶8 For the foregoing reasons, we cannot conclude that the
Ring II error was harmless in this case. Accordingly, we vacate
Hoskins’ death sentence and remand for resentencing under A.R.S.
sections 13-703 and 13-703.01 (Supp. 2002).
____________________________________
Ruth V. McGregor, Vice Chief Justice
CONCURRING:
_______________________________
Rebecca White Berch, Justice
____________________________________
Michael D. Ryan, Justice
Jones, Chief Justice, specially concurring
¶9 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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