STATE OF ARIZONA, Plaintiff/Petitioner, v. BEAU JOHN GREENE, Defendant/Respondent.
No. CR-21-0082-PC
SUPREME COURT OF THE STATE OF ARIZONA
Filed April 14, 2023
On Review from the Superior Court in Pima County
The Honorable Wayne E. Yehling, Judge
No. CR048730-001
REVERSED
COUNSEL:
Kristin K. Mayes, Arizona Attorney General, Jeffrey L. Sparks, Chief Counsel, Ginger
Mikel Steinfeld, Arizona Attorneys for Criminal Justice, Phoenix, Attorney for Amicus Curiae Arizona Attorneys for Criminal Justice
STATE v. GREENE
Opinion of the Court
JUSTICE MONTGOMERY authored the Opinion of the Court, in which CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES BOLICK and KING joined.*
JUSTICE MONTGOMERY, Opinion of the Court:
¶1 We consider in this case whether legislative amendments to
I. HISTORICAL BACKGROUND
A. Murder, Conviction, and Sentence
¶2 Beau John Greene murdered University of Arizona music professor Roy Johnson on February 28, 1995, beating him to death in Johnson‘s car and then abandoning his body in the desert. State v. Greene, 192 Ariz. 431, 435 ¶¶ 2, 5 (1998). Johnson‘s wife had expected him home before 10:00 p.m., but he never returned. Id. ¶ 2. He was last seen the evening of the 28th leaving the Green Valley Presbyterian Church, where he had given an organ recital. Id. On the night of the murder, “Greene and Johnson crossed paths, but the record does not tell us how.” Id. ¶ 4. Four days later, Johnson‘s body was discovered “lying face down in a wash.” Id. ¶ 2.
¶3 After dumping Johnson‘s body in the wash, Greene stole his car and wallet and embarked on a “spending spree using Johnson‘s cash and credit cards.” Id. ¶ 8. Greene purchased “clothes, food, camping gear, a scope and air rifle, and a VCR (which he later traded for methamphetamine)” while feigning injury to his hand to “explain any discrepancies between his signature and those on the credit cards.” Id.
¶4 A jury convicted Greene of first degree murder—felony and premeditated—robbery, kidnapping, theft, and six counts of forgery. Id. at 434-35 ¶ 1. The trial court sentenced him to death for the murder of Johnson based on two aggravating circumstances: (1) the murder was committed for pecuniary gain,
* Justices John R. Lopez IV and James P. Beene are recused from this case.
B. Direct Appeal
¶5 This Court affirmed Greene‘s convictions on direct appeal for first degree murder, robbery, theft, and forgery, and affirmed his death sentence. Id. at 435 ¶ 1. As to the robbery count, the Court considered whether the trial court erred in denying Greene‘s motion for a directed verdict. Id. at 436 ¶ 12. Greene argued there was “no direct evidence that he intended to take the victim‘s property at the time he used force.” Id. at 437 ¶ 13. This Court noted, though, that “[a]fter stealing Johnson‘s car, and within hours after killing him, he began spending Johnson‘s money and using his credit cards.” Id. ¶ 14. Therefore, in conjunction with the evidence at the crime scene, the Court concluded that “[a] rational trier of fact could have found beyond a reasonable doubt that Greene‘s use of force against Johnson was accompanied by an intent to take Johnson‘s property.” Id. ¶ 15.
¶6 The Court reversed the kidnapping conviction because there was no evidence that
¶7 The Court likewise reversed the trial court‘s finding that the murder was especially heinous or depraved under the (F)(6) aggravating circumstance based on “relishing, senselessness, and helplessness” because there was insufficient evidence that “Greene relished the murder beyond a reasonable doubt” at the exact moment he murdered Johnson. Id. at 440-41 ¶¶ 33, 42. The Court therefore concluded that “[a]bsent a finding of relishing, the (F)(6) aggravator cannot stand, because senselessness and helplessness, without more, are ordinarily insufficient to prove heinousness or depravity.” Id. at 441 ¶ 42.
¶8 With respect to the (F)(5) pecuniary gain aggravating circumstance, the Court observed that “Greene‘s actions after the murder also demonstrate[d] a pecuniary motive.” Id. at 439 ¶ 30. The Court recounted evidence of “Greene‘s admitted need for money, drugs, and transportation.” Id. ¶ 29. Combined with the evidence that Greene “had [Johnson‘s] wallet with him when he left the wash immediately following the murder,” it was clear that Greene “intended to profit from the murder no later than the moment he picked up the object to kill Johnson.” Id. ¶¶ 28-29, 32. Therefore, “[t]he evidence support[ed] beyond a reasonable doubt a finding that Greene, coming off of methamphetamine and penniless, killed Johnson to obtain cash or credit cards.” Id. ¶ 32.
C. First PCR Petition
¶9 Greene filed his first PCR petition in August 2000. He raised several claims of ineffective assistance of counsel, sought reevaluation of his death sentence, presented impeachment evidence regarding Johnson‘s wife, and argued that he was entitled to have a jury sentence him. The superior court held an evidentiary hearing. Greene recounted that after Johnson drove them to a church parking lot, Greene left the car and put on a lead-lined “handmade ‘sap’ glove,”2 before returning to the car and beating Johnson to death with it, rather than his fists as he testified at trial. The court denied the PCR petition in January of 2003.
¶10 This Court denied Greene‘s petition for review of that decision on December 5, 2003, and issued a warrant for his execution on January 14, 2004. Greene‘s execution was subsequently stayed on December 8, 2008, pending federal habeas review.3
D. Successive PCR Petition
¶11 On May 26, 2020, Greene filed this successive PCR petition in the superior court. Greene argued that he was entitled to relief under Rule 32.1(a), (c), (g), and (h) because his death sentence was now unconstitutional under the United States and Arizona Constitutions as a consequence of the 2019 legislative amendments to the (F)(5) aggravating circumstance. The State argued in response that Greene was not entitled to any relief because the amendments were prospective only and therefore inapplicable to his sentence and that no legal basis existed to render his sentence unconstitutional.4 Following
¶12 We granted review to address whether Rule 32.1(a), (c), (g) or (h) permit relief when the legislature made a prospective change to the definition of a capital aggravating circumstance. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution and
II. ANALYSIS
¶13 The State argues that because the (F)(5) amendments are not retroactive and there is no basis on which to find Greene‘s sentence is unconstitutional, he is not entitled to any of the relief he seeks and the superior court erred in ruling otherwise. Greene argues that the superior court was correct in granting relief under Rule 32.1(a), (c), (g), and (h) because the (F)(5) amendments reflect a determination by the legislature that a murder committed for pecuniary gain does not demonstrate the extreme culpability justifying the imposition of a death sentence. Therefore, he argues that to carry out his sentence now when his criminal conduct is no longer subject to capital punishment would violate the United States and Arizona Constitutions pursuant to the
¶14 We review a superior court‘s ruling on a PCR petition for an abuse of discretion, which occurs if the court makes an error of law. State v. Pandeli, 242 Ariz. 175, 180 ¶ 4 (2017). A superior court‘s legal conclusions are reviewed de novo. State v. Miller, 251 Ariz. 99, 102 ¶ 8 (2021).
¶15 Because each party‘s arguments and the analysis of the superior court are premised on the legislature‘s amendment of the former (F)(5) aggravating circumstance, we begin by reviewing the role of aggravating circumstances in capital cases and the specific amendments in question.
A. Aggravating Circumstances And The 2019 Amendments To (F)(5)
¶16 For a defendant to qualify for capital punishment, a jury must unanimously find that the state has established the existence of one or more aggravating circumstances listed at
¶17 During the penalty phase, the jury “shall take into account the aggravating and mitigating circumstances that have been proven, and if it unanimously determines that there are no mitigating circumstances sufficiently substantial to call for leniency,” the jury “shall impose a sentence of death.”5
¶18 In 2019, the Arizona Legislature narrowed the statutory aggravating circumstances that a jury may consider in determining whether to impose a sentence of death by amending several provisions of
¶19 Before 2019, (F)(4) read: “The defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value.”
B. Retroactivity Of (F)(5) Amendments And Greene‘s Conduct
1. Retroactivity6
¶20 The State argues that the legislature did not make the amendments to (F)(5) retroactive. Statutes are retroactive only if “expressly declared therein,” subject to an exception for procedural changes not applicable here.
¶21 The court based this conclusion on the following exchange between legislators:
Representative Rodriguez asked, “If there‘s a discussion about these not being persuasive, why are we not being asked to make this change retroactive, to eliminate these in past cases where they have been used?” In response to the question, Chairperson John Allen stated, “But Mr. Rodriguez, it doesn‘t preclude them from suing over it. You know, asking for relief, though usually, the courts don‘t apply it that way.” Upon hearing this statement, Representative Rodriguez pointed to Chairperson Allen and nodded in agreement.
Hearing on S.B. 1314 Before the H. Comm. on the Judiciary, 54th Leg., 1st Reg. Sess. (Ariz. 2019). However, such a limited exchange between two representatives in a committee hearing is not sufficient to establish that the legislature intended to make the amendments retroactive. See Barlow v. Jones, 37 Ariz. 396, 399 (1930) (“A legislative enactment cannot be amended or changed either by the insertion or the elimination of words to conform with an intent proven by the testimony of the members of the enacting body.“); see also Tucson Gas & Elec. Co. v. Schantz, 5 Ariz. App. 511, 514 (1967) (stating that “the testimony or opinions of individual members of the legislative body are not admissible” for discerning legislative intent); Arizona Citizens Clean Elections Comm‘n v. Brain, 234 Ariz. 322, 325 ¶ 12 (2014) (observing that “a legislator, lobbyist, or other interested party lacks competence to testify about legislative intent in passing a law“).
¶22 Significantly, the bill as signed into law does not contain a retroactive-application clause—nor was there any effort to add one at any step in the legislative process. Furthermore, retroactivity is not referenced in any bill draft, summary, or analysis for
2. The (F)(5) amendments, Greene‘s motive, and his criminal conduct
¶23 The State argues that because the (F)(3) aggravating circumstance still addresses pecuniary gain, the amendments to (F)(5) did not eliminate pecuniary gain from consideration as to whether to impose a sentence of death. The State also observes that Greene‘s criminal conduct remains subject to the (F)(2) (serious offense) aggravating circumstance, which the superior court did not consider in its analysis.7 Regardless of any express statement of retroactivity, Greene argues that because the amendment to the former (F)(5) aggravating circumstance eliminated the basis for which his sentence of death was imposed, the legislature “abolished” the application of the death penalty to his criminal conduct. The superior court agreed with Greene and found “that the reasoning in the [l]egislative record including the reasons for the proposed legislation was to narrow the applicability and imposition of the death penalty in which [Greene], under the [l]egislature‘s narrowing, is no longer eligible for the death penalty.”8
¶24 Greene‘s argument requires us to carefully evaluate what the legislature did and did not do in amending
¶25 Informing our analysis of the nature and effect of the (F)(5) amendments with respect to Greene‘s sentence of death is the fact that the legislature amended (F)(2) in 2003 to address the use of contemporaneous serious offenses effected by this Court‘s ruling in State v. Rutledge, 205 Ariz. 7 (2003), supplemented State v. Rutledge, 206 Ariz. 172, superseded by statute, 2003 Ariz. Sess. Laws ch. 255, § 1 (1st Reg. Sess.), as recognized in State v. Nordstrom, 230 Ariz. 110, 118 ¶ 35 (2012) (observing that amendment to (F)(2) aggravating circumstance “evidently was intended to displace our ruling in State v. Rutledge“). In the supplemental opinion, this Court stated that a “conviction for a ‘serious offense’ occurring simultaneously with a murder conviction cannot be used for (F)(2) purposes under the [pre-2003] version of [§] 13-703(F)(2).” Rutledge, 206 Ariz. at 178 ¶ 25. In amending (F)(2), the legislature made it explicitly clear that contemporaneous serious offenses could be considered, providing that: “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, . . . shall be treated as a serious offense . . . .” 2003 Ariz. Sess. Laws ch. 255, § 1 (1st Reg. Sess.) (emphasis added). Thus, after the 2003 amendment to (F)(2) until the 2019 amendments to (F)(5), the state could allege as aggravating circumstances a murder committed contemporaneously with a robbery and a murder motived by the expectation of pecuniary gain for murders committed like Greene‘s.
¶26 Consequently, the overall effect of the 2019 amendments to (F)(5) with respect to Greene‘s criminal conduct is that although a jury can no longer consider Greene‘s motive for robbing and murdering Johnson, a jury can still consider his actual conduct of robbing and murdering Johnson. So, if Greene committed the same murder today, he would still be eligible for the death penalty, albeit under a different aggravating circumstance. Greene is therefore incorrect in concluding that the legislature “abolished” the death penalty for his criminal conduct and the superior court erred in concluding likewise.
C. Eighth Amendment
¶27 The State argues that Greene‘s sentence was constitutional when imposed and there is no basis for concluding today that it violates the
¶28 “The
¶29 Under the Supreme Court‘s
¶30 In previous cases, the Supreme Court has considered four categories of data for
¶31 In sum, a death sentence is unconstitutional under the
1. Consensus against Greene‘s punishment
¶32 The State argues no consensus exists against executing a defendant for the (F)(5) aggravating circumstance. Greene‘s argument, though, is that there is a consensus against executing a defendant whose criminal conduct no longer justifies the imposition of the death penalty. In granting Greene the relief he sought, the superior court concluded that “there is a national consensus against executing defendants for a crime that is no longer eligible of the death penalty.” We consider each category of information set forth by Greene and the sources of information relied on by the superior court in turn.
a. Legislative action
¶33 The State argues that because the legislature retained consideration of pecuniary gain in the current (F)(3) aggravating circumstance and that Greene‘s conduct is still subject to capital punishment under the (F)(2) aggravating circumstance, the legislature‘s actions do not establish an evolved community standard against Greene‘s punishment. Greene argues that the repeal of the pecuniary gain circumstance as applicable to his crime reflects a judgment by the legislature that his criminal conduct does not demonstrate the extreme culpability justifying the imposition of a sentence of death. Greene therefore argues that this judgment reflects a standard of decency precluding his punishment. The superior court likewise found that the actions of the legislature, combined with information about juries, established a community standard against executing a defendant “convicted of murder solely for pecuniary gain, except in cases of murder-for-hire.”
¶34 As reiterated in Atkins, the “clearest and most reliable” objective indication of a national consensus concerning imposition of the death penalty is “the legislation enacted by the country‘s legislatures.” 536 U.S. at 312 (quoting Penry v. Lynaugh, 492 U.S. 302, 331 (1989)). In cases where the Supreme Court concluded that legislative action established a standard of decency precluding capital punishment, legislatures categorically limited the imposition of the death penalty for defendants who lacked the requisite intent to kill their victim or who had specific physical or mental characteristics that diminished their moral culpability. See Coker, 433 U.S. at 592–93 (finding that “[a]t no time in the last 50 years have a majority of the States authorized death as a punishment for rape” to conclude
¶35 Here though, the Arizona Legislature did not enact similar legislation that categorically exempts Greene from a sentence of death based on any lack of intent to kill or physical or mental characteristic diminishing his moral culpability. Nor did the legislature foreclose imposition of a death sentence for a defendant who commits a similar crime under similar circumstances as Greene. Again, while Greene‘s pecuniary gain motive for murdering Johnson may no longer be considered by a jury in determining whether to impose a death sentence, the legislature did not eliminate consideration of his conduct in murdering Johnson.
¶36 Greene‘s argument overstates the effect of the legislature‘s amendments of (F)(5) and incorrectly equates the actions of the Arizona Legislature with those of legislatures relied on by the Supreme Court to find a death sentence unconstitutional under the
b. Jury opinions
¶37 The State argues that jury sentencing decisions concerning the (F)(5) aggravating circumstance do not establish a community standard precluding Greene‘s sentence. Greene argues that the limited number of times the (F)(5) circumstance has served as the basis for a sentence of death since 2002 is evidence that juries do not find the aggravating circumstance persuasive and therefore establishes a community standard precluding his punishment. The superior court likewise concluded a community standard existed, in conjunction with the actions of the legislature, to render Greene‘s sentence unconstitutional.
¶38 When considering evolving standards of decency and the constitutionality of imposing a death sentence, “the response of juries reflected in their sentencing decisions are to be consulted.” Coker, 433 U.S. at 592.
¶39 The
¶40 The limited information provided by Greene, as well as the State, regarding the sentencing decisions of juries makes discerning a particular community standard on this basis tenuous. Jury sentencing data reviewed by the Supreme Court in Coker encompassed all cases reviewed by the Georgia Supreme Court involving rape from 1973 to when the case came before the Supreme Court in 1977. Id. at 596. The evidence presented showed that Georgia juries had sentenced a defendant to death for rape only six times out of the sixty-three cases. Id. at 596-97.
¶41 In Enmund, the evidence demonstrated that among defendants executed in the United States since 1954, in only six executions out of 362 was “a nontriggerman felony murderer“—like Enmund—executed. 458 U.S. at 794-95. Enmund also presented information regarding the number of defendants on death row whose sentencing information reflected that they intended to kill the victim. Id. at 795.
¶42 Where the information was sufficient for review, out of 739 defendants, “only [forty-one] did not participate in the fatal assault on the victim.” Id. at 795. Furthermore, where sufficient data was available, “only [sixteen] were not physically present when the fatal assault was committed.” Id. Among that number, thirteen were sentenced to death with “a finding that they hired or solicited someone else to kill the victim or participated in a scheme designed to kill the victim.” Id. Enmund was one of only three who did not fall into any of the other categories. Id. Among forty-five felony murderers then on death row just in Florida, “[i]n only one case—Enmund‘s—there was no finding of an intent to kill and the defendant was not the triggerman.” Id. The Supreme Court therefore concluded that “the statistics [Enmund] cites are adequately tailored to demonstrate that juries - and perhaps prosecutors as well - consider death a disproportionate penalty for those who fall within his category.” Id. at 796.
¶43 In contrast to the data presented in Coker and Enmund, Greene‘s information is limited, at best. Neither Greene nor the State presented evidence of the number of murders where the only aggravating circumstance alleged and proven was (F)(5) and a jury did not impose a death sentence, making the imposition of a sentence of death an impossibility. See
¶44 With respect to the prosecutor‘s comment concerning the lack of persuasiveness for juries of the aggravating circumstances in the proposed legislation, Greene overstates its significance. The prosecutor never discussed the narrowing effect of the proposed amendments to (F)(5). Rather, she specifically referred to aggravating circumstances proposed for elimination stating: “those factors which we are proposing to eliminate, simply, historically have not been the most persuasive with juries in capital cases. And so, it‘s our proposal to remove them from the list of aggravating factors.” Hearing on S.B. 1314 Before the H. Comm. on the Judiciary, 54th Leg., 1st Reg. Sess. (Ariz. 2019). Although the pecuniary gain aggravating circumstance
¶45 We also observe that Greene‘s argument based on the purported evidence of juries’ sentencing decisions concerning the (F)(5) aggravating circumstance illustrates a fallacy of weak induction—the logical fallacy of false cause. This type of fallacy occurs where the link between a premise and a conclusion ignores other factors. The Fallacy of False Cause, The Cambridge Dictionary of Philosophy 515 (Robert Audi ed., 3d ed. 2015).
¶46 Even accepting the assertion that the (F)(5) aggravating circumstance was among those the prosecutor referenced as not “persuasive” for juries, other valid reasons exist to explain why there are a limited number of jury-imposed death sentences based solely on (F)(5) since 2002. For example, the limited number of cases could be due to the limited number of murders that are committed solely for pecuniary gain without the application of other statutory aggravating circumstances. It could also be due to charging decisions made in light of evidentiary considerations. See
¶47 Thus, a limited number of jury verdicts alone does not necessarily reflect a jury opinion that the (F)(5) aggravating circumstance was not a proper basis for imposing a sentence of death. That a sentence is infrequently imposed does not necessarily establish the conclusion that a jury frequently rejects it based on disapproval of the aggravating circumstance in question. Concluding otherwise is sheer speculation.
¶48 The limited information offered by Greene, in contrast to the nature and extent of the data relied on by the Supreme Court in Coker and Enmund, and other potential causes for the alleged infrequent imposition of a sentence of death based on the (F)(5) aggravating circumstance is inadequate “to demonstrate that juries . . . consider death a disproportionate penalty” for a murder motivated by the expectation of pecuniary gain. See Enmund, 458 U.S. at 796. The superior court erred in relying on this data, along with legislative action, to conclude there was an evolved standard of decency against Greene‘s punishment.
c. Judgment of prosecutors
¶49 Greene argues that the views of prosecutors provide further evidence of an evolved standard of decency. However, we concur with the superior court‘s assessment that “[a]bsent sufficient evidence, none of which was supplied in the legislative hearings, [the PCR] petition, and . . . subsequent pleadings and testimony,” the record makes it “difficult to discern the amount of historical prosecutorial discretion utilized in seeking or not seeking the death penalty under the (F)(5) aggravating circumstance.” Given the need for objective data upon which to establish a contemporary standard for purposes of making a constitutional determination, the lack of evidence of the judgment of prosecutors
d. Historical development
¶50 The State argues that no such consensus exists against carrying out Greene‘s sentence under the circumstances of his case. Greene argues that evidence in the form of state and international data and actions of state courts establish that a consensus exists that no one should be executed where their crime is no longer eligible for the death penalty.
i. State practice and international opinion
¶51 In prior cases concerning review of capital punishment under the
¶52 Greene relies on two sources detailing the dates of a full or partial repeal and the date of the last execution to illustrate state practices and international views. See James R. Acker & Brian W. Stull, Life After Sentence of Death: What Becomes of Individuals Under Sentence of Death After Capital Punishment Legislation Is Repealed or Invalidated, 54 Akron L. Rev. 268, 276 (2021) (“Acker and Stull“); Declaration of John Ortiz Smykla. The Acker and Stull article details the dates of state repeals of the death penalty and the dates of the last execution, respectively. Acker & Stull, supra at 275-319. The comparison of the two dates reflects a conclusion that no state has carried out an execution following the repeal of the death penalty. John Smykla reached a similar conclusion based on his review of an extensive database of execution data from 1608 to 2002. See M. Watt Espy & John Ortiz Smykla, Executions in the United States, 1608–2002: The ESPY File (ICPSR 8451), National Archive of Criminal Justice Data (Jul 20, 2016), https://doi.org/10.3886/ICPSR08451.v5.
¶53 However, the utility of this information rests on Greene‘s misunderstanding of the nature of the 2019 amendments and his conclusion that his criminal conduct is no longer subject to capital punishment. As discussed, the Arizona Legislature did not “repeal” the death penalty for murders committed under circumstances like Greene‘s crime. See Part II.B.2 ¶¶ 23-26. Therefore, whatever evidence of a consensus that might be derived from the data provided by Greene is inapposite to his case.
¶54 Furthermore, we take note of Justice O‘Connor‘s observations in her concurrence in Thompson v. Oklahoma:
In the 1950‘s and 1960‘s, more States abolished or radically restricted capital punishment, and executions ceased completely for several years beginning in 1968. H. Bedau, The Death Penalty in America 23, 25 (3d ed. 1982).
In 1972, when this Court heard arguments on the constitutionality of the death penalty, such statistics might have suggested that the practice had become a relic, implicitly rejected by a new societal consensus. Indeed, counsel urged the Court to conclude that “the number of cases in which the death penalty is imposed, as compared with the number of cases in which it is statutorily available,
ii. Judicial action
¶55 Greene also argues that judicial actions demonstrate a consensus regarding a standard of decency concerning the imposition of the death penalty in his case. He notes that in some states where legislative action repealed the imposition of the death penalty, state courts have found that carrying out a sentence imposed pre-repeal would violate the Eighth Amendment or corollary state provisions. See Fleming v. Zant, 386 S.E.2d 339, 343 (Ga. 1989); Van Tran v. State, 66 S.W.3d 790, 812 (Tenn. 2001); State v. Santiago, 122 A.3d 1, 85 (Conn. 2015); Fry v. Lopez, 447 P.3d 1086, 1121-22 (N.M. 2019); State v. Bartol, 496 P.3d 1013, 1028-29 (Or. 2021). However, the nature of the legislative action at issue before the courts in those cases is distinguishable from Arizona‘s legislative action here.
¶56 Because Arizona did not enact legislation outright repealing the death penalty or preclude its imposition for the same conduct as Greene‘s, we focus our review of judicial action on states, like Arizona, who have amended their statutes addressing aggravating circumstances without completely eliminating imposition of capital punishment. These states include Indiana, Nevada, and Oregon.10 See 2014 Ind. Acts 136 (repealing
¶57 In Indiana, the repeal of
The murder was committed while the person was engaged, alone or with others, in the commission of or an attempt to commit or flight after committing or attempting to commit, any robbery, sexual assault, arson in the first degree, burglary, invasion of the home or kidnapping in the first degree, and the person charged:
(a) Killed or attempted to kill the person murdered; or
(b) Knew or had reason to know that life would be taken or lethal force used.
¶59 The Nevada legislature removed the words “sexual assault” in 1997. 1997 Nev. Stat. Ch. 356. In 1998, the Nevada Supreme Court affirmed two capital sentences that were imposed based on the “sexual assault” language prior to the amendment of
¶60 The Oregon Supreme Court reached a different conclusion in Bartol. 496 P.3d 1013. While the case seems at first glance to be similar to Greene‘s, there are two key differences. First, the Oregon state legislature reclassified the criminal conduct “that . . . constituted ‘aggravated murder,’ which can be punished by death, to ‘murder in the first degree,’ which cannot be punished by death.” Id. at 1015.
¶61 At hearings on the proposed amendments, proponents and opponents asked the Oregon legislature to “make an assessment regarding the relative gravity of the conduct that was classified as ‘aggravated murder’ at the time[,]” and to determine that such conduct was not the “‘worst of the worst’ and to reclassify it as ‘murder in the first degree,’ the maximum sentence for which would be life in prison without parole.” Id. at 1027-28. Legislators in both chambers of the Oregon legislature repeated these concerns. Id. at 1028.
¶62 Based on this extensive legislative history - and second key difference - the court concluded that the very amendment of the statute, although prospective only, reflected a “legislative determination that the conduct that was classified as ‘aggravated murder’ before [the amendments] does not fall within the narrow category of conduct for which the death penalty can be imposed.” Id. (emphasis added). Therefore, “[m]aintaining [Bartol‘s] death sentence would allow the execution of a person for conduct that the legislature has determined no longer justifies that unique and ultimate punishment.” Id. at 1029; see also State v. Rogers, 499 P.3d 45, 48 (Or. 2021) (finding legislative amendments “create[d] a proportionality problem” by allowing “the execution of persons whose conduct the legislature has determined is not the worst of the worst and whose culpability is no different from those who cannot be executed” (quoting Bartol, 496 P.3d at 1028)).
¶63 The Arizona Legislature, however, has not redefined or reclassified what constitutes a capital-eligible homicide. In fact, the definition of first degree murder applicable to Greene‘s murder of Johnson in 1995 is substantively the same for murders today.12 And
¶64 Thus, among states that have prospectively repealed aggravating circumstances considered for imposing the death penalty, state supreme courts have affirmed capital sentences based on a subsequently repealed aggravating circumstance where it was lawful when first imposed. Therefore, Greene‘s argument that judicial action supports a consensus against carrying out his sentence is misplaced.
¶65 Overall, Greene‘s argument that a consensus exists against carrying out a capital sentence where the criminal conduct is no longer subject to the death penalty is unavailing. The Arizona Legislature did not eliminate the imposition of capital punishment for his criminal conduct. Hence, evidence of the outright repeal of the death penalty by other state legislatures or by foreign countries is of little utility in discerning a consensus on our facts. Likewise, the limited information regarding jury sentencing decisions does not serve to establish a community standard that renders Greene‘s sentence disproportionate to his crime. Finally, the actions by state supreme courts in affirming capital sentences based on prospectively repealed aggravating circumstances reveals, if anything, a consensus that such sentences are lawful.
2. Independent judgment
¶66 “Although the judgments of legislatures, juries, and prosecutors weigh heavily in the balance, it is for us ultimately to judge whether the Eighth Amendment permits imposition of the death penalty.” Enmund, 458 U.S. at 797.
¶67 We consider whether Greene‘s sentence serves the penological purposes of the death penalty in exercising our independent judgment. Atkins, 536 U.S. at 317-21 (evaluating penological purposes of death penalty in light of defendant‘s particular culpability); Kennedy, 554 U.S. at 441-42 (analyzing penological purposes in light of defendant‘s crime of rape). Greene argues that to carry out his sentence would be arbitrary given that it could not possibly serve a constitutionally cognizable penological purpose.
¶68 The death penalty is an appropriate sanction when it advances the penological goals of deterrence and retribution. See Enmund, 458 U.S. at 798. Otherwise, it “is nothing more than the purposeless and needless imposition of pain and suffering.” Id. (quoting Coker, 433 U.S. at 592).
¶69 A death sentence has deterrent value if it would deter other persons from committing the same crime as the one the defendant committed. See, e.g., Kennedy, 554 U.S. at 445; Atkins, 536 U.S. at 320. Accordingly, Greene argues that “[w]hen the Legislature repeals the death penalty for a class of crimes, executing a defendant under facts that would no longer qualify for the death penalty cannot possibly deter future murders of any kind.” Regardless of their motive, those who commit the same crime as Greene-killing in the course of a robbery - are still subject to the continuing applicability of the (F)(2) aggravating circumstance. Therefore, the deterrent value of Greene‘s sentence remains.
¶70 Retribution serves to punish the perpetrator and gives voice to the moral outrage experienced by the victim and society at large. Santiago, 122 A.3d at 56. It “reflects society‘s and the victim‘s interests in seeing that the offender is repaid for the hurt he caused.” Kennedy, 554 U.S. at 442; see also
¶71 The conduct Greene engaged in, aside from his motive to murder, remains subject to a sentence of death and his actions in murdering Johnson continue to fall within that narrow category of the most serious crimes. Therefore, the retributive purpose served by his sentence in 1996 is still reflected in and served by Arizona law today. Given that Greene‘s sentence fulfills the penological goals of deterrence and retribution, it is our considered judgment that his sentence is proportionate to his murder of Johnson.
¶72 Based on the lack of a consensus against Greene‘s punishment and our judgment that his sentence is not disproportionate to his crime, we conclude that Greene‘s sentence of death does not violate the Eighth Amendment‘s prohibition against cruel and unusual punishment.
D. Article 2, Section 15
¶73 The State argues that because we previously affirmed Greene‘s sentence and no holding since has found the (F)(5) aggravating circumstance unlawful, the sentence also does not violate
¶74 However, as this Court remarked in State v. Bush, 244 Ariz. 575 (2018), we have “not yet expressly embraced as a matter of state constitutional law” the notion of “the evolving standards of decency in our maturing society” as part of our death penalty jurisprudence under
¶75 Therefore, Greene‘s argument and the superior court‘s conclusion that “evolving standards of decency” render his sentence unconstitutional pursuant to
E. Claims For Relief Under Rule 32.1
¶76 “We interpret court rules according to the principles of statutory construction.” Phillips v. O‘Neil, 243 Ariz. 299, 301 ¶ 8 (2017) (quoting State v. Aguilar, 209 Ariz. 40, 47 ¶ 23 (2004)). Thus, we “interpret rules of procedure by their plain meaning and we read them in conjunction with each other and harmonize them whenever possible.” State v. Tillmon, 222 Ariz. 452, 454 ¶ 8 (App. 2009) (internal alterations omitted) (quoting Groat v. Equity Am. Ins. Co., 180 Ariz. 342, 347 (App. 1994)).
1. Rule 32.1(a)
¶77
¶78 We agree with the State that the wording of
¶79 As the State correctly notes, Greene‘s sentence was constitutional when imposed. Greene, 192 Ariz. at 444; see also State v. Hidalgo, 241 Ariz. 543, 550-51 ¶¶ 23-29 (2017). Furthermore, we have affirmed two capital sentences based on repealed or amended statutory aggravating circumstances since the 2019 amendments, although in each case juries also found other aggravating circumstances. See State v. Smith, 250 Ariz. 69, 93 ¶ 106 n.6 (2020) (acknowledging amendment of (F)(5) but the former “version of the pecuniary gain statute applie[d]” in case where jury also found state proved (F)(2) serious offense aggravating circumstance); Thompson, 252 Ariz. at 289 ¶ 16 n.4 (2022) (acknowledging amendments but citing “the version of § 13-751 in effect at the time of sentencing” that included the (F)(13) aggravating circumstance where jury also found state proved four others, (F)(2), (F)(6), (F)(7), and (F)(8)). Therefore, the superior court erred in concluding otherwise and Greene is not entitled to relief under
2. Rule 32.1(c)
¶80
¶81 The State argues that Greene is not entitled to relief because
¶82 With respect to the applicability of
¶83
4. Rule 32.1(h)
¶84
¶85 The State essentially argues that a claim pursuant to
¶86 We agree with the State that relief pursuant to
¶87 Greene‘s argument is unavailing because it assumes that the amendments to (F)(5) are retroactive to his case, which under his Eighth Amendment argument would render his sentence unlawful. Accordingly, there would never be an aggravation phase in which a trier of fact could consider whether an aggravating circumstance was proven. Thus, this argument is more properly presented under
¶88 Also problematic for his argument is our conclusion that the amendments to (F)(5) are not retroactive. Therefore, any jury considering Greene‘s eligibility for the death penalty today would make their determination under the statutes applicable to his crime in 1995, and a jury would be able to consider the (F)(5) aggravating circumstance. See State v. Stine, 184 Ariz. 1, 3 (App. 1995) (“[I]n the context of criminal law, an offender must be punished under the law in force when the offense was committed and is not exempted from punishment by a subsequent amendment to the applicable statutory provision.” (quoting State v. Hamilton, 177 Ariz. 403, 406 (App. 1993))).
¶89 Finally, his argument for relief under
III. CONCLUSION
¶90 For the reasons stated, we reverse the superior court‘s ruling granting Greene post-conviction relief and affirm his sentence.
Notes
A person commits first degree murder if . . . [i]ntending or knowing that his conduct will cause death, such person causes the death of another with premeditation; or . . . . Acting either alone or with one or more other persons such person commits or attempts to commit . . . robbery under
section 13-1902 . . . and in the course of and in furtherance of such offense or immediate flight from such offense, such person or another person causes the death of any person.
A person commits first degree murder if . . . [i]ntending or knowing that the person‘s conduct will cause death, the person causes the death of another person . . . with premeditation or . . . . Acting either alone or with one or more other persons the person commits or attempts to commit . . . robbery under
§ 13-1902 . . . and, in the course of and in furtherance of the offense or immediate flight from the offense, the person or another person causes the death of any person.