STATE OF ARIZONA v. ARTURO ANDA CAÑEZ
No. CR-98-0488-AP
Supreme Court of Arizona
Pinal County Superior Court No. CR-96-021235
SUPPLEMENTAL OPINION
Appeal from the Superior Court in Pinal County
The Honorable Boyd T. Johnson, Judge
VACATED AND REMANDED
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
Thomas J. Phalen Phoenix
and Tara K. Allen Tempe
Attorneys for Appellant
BERCH, Justice
¶1 Arturo Anda Cañez 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. Id. at 609, 122
¶2 On remand, we consolidated all cases, including Cañez‘s, in which the death penalty had been imposed but the mandate had not yet issued from this court to determine whether Ring II required reversal or vacatur of the death sentences. State v. Ring, 204 Ariz. 534, ¶¶ 5-6, 65 P.3d 915, 925 (2003) (Ring III). We concluded that we must review each death sentence imposed in these cases under Arizona‘s superseded capital sentencing statutes for harmless error. Id. at ¶ 53, 65 P.3d at 936.
¶3 We now consider whether the death sentence imposed on Cañez can stand in light of Ring II and Ring III, as well as the Supreme Court‘s decision in Atkins v. Virginia, which held that the
FACTS AND PROCEDURAL HISTORY
¶4 On February 5, 1998, a jury found Arturo Anda Cañez guilty of felony murder, first degree burglary, and two counts of armed robbery. State v. Cañez, 202 Ariz. 133, 145, ¶ 15, 42 P.3d 564, 576 (2002). Following a sentencing hearing, the trial judge
DISCUSSION
A. Ring II Error
¶5 In Ring III, we concluded that judicial fact-finding in the capital sentencing process may constitute harmless error if we can conclude beyond a reasonable doubt that no reasonable jury would fail to find the aggravating circumstance. Ariz. at ¶¶ 53, 103, 65 P.3d at 936, 946. We now examine whether the Ring II error was harmless with respect to each of the aggravating circumstances found by the trial judge in Cañez‘s case.
1. Aggravating Circumstances
a. Prior Serious Convictions
¶6 Arizona law provides that a conviction for a prior serious offense constitutes an aggravating circumstance that renders a defendant eligible to receive the death penalty.
b. Elderly Victim
¶7 An aggravating circumstance exists if at the time the murder was committed, “the murdered person was . . . seventy years of age or older.”
¶8 In Ring III, we held that Ring II error in the finding of the (F)(9) aggravator will be harmless if (1) the jury also convicted the defendant of an “age-dependent crime committed against the murder victim,” Ring III, Ariz. at ¶ 86, 65 P.3d at 942; (2) the defendant stipulated to the victim‘s age; or (3) overwhelming evidence established the victim‘s age. Id.
¶9 The jury did not convict Cañez of an age-dependent crime, nor did Cañez stipulate to the victim‘s age. However, the evidence presented concerning the victim‘s age was overwhelming and uncontroverted. Cañez neither objected to nor controverted the testimony of the victim‘s son that the victim was born on June 26, 1918, nor did he contest that the crime was committed on February 22, 1996. This testimony was corroborated by a birth certificate, photographs of the victim‘s body, and testimony by the coroner that the autopsy results were consistent with the body of a 77-year-old man. Although Cañez objected to the admission of the victim‘s birth certificate on authentication grounds, that objection was overruled, and Cañez did not present any evidence that controverted the validity of the birth date contained on the document. Based on the foregoing, we conclude beyond a reasonable doubt that no reasonable jury presented with this evidence could fail to find that the victim was more than seventy years old at the time of the crime. Therefore, the trial judge‘s finding that the State proved
c. Pecuniary Gain
¶10 The commission of an offense “in expectation of the receipt . . . of anything of pecuniary value” is an aggravating circumstance under Arizona law.
¶11 The trial judge found that “the offense was motivated by the desire for pecuniary gain,” “the objective was the robbery of the victim,” and “the death occurred in the course of and in furtherance of the defendant‘s efforts to obtain the victim‘s property.” Cañez, 202 Ariz. at 159, ¶ 91, 42 P.3d at 590. The judge‘s findings were primarily based on the pretrial statements and trial testimony of Brian Patterson, a co-defendant, who had entered into a plea agreement with the State in exchange for his
¶12 The pecuniary gain finding rested heavily on the trial judge‘s assessment of Patterson‘s credibility and a determination of which portions of his testimony were true. We cannot say beyond a reasonable doubt that a reasonable jury considering Patterson‘s testimony and pretrial statements in the context of determining whether Cañez‘s expectation of pecuniary gain was a motive, cause, or impetus for the murder, would accord them the same weight or come to the same conclusions as did the trial judge. Therefore, we conclude that the Ring II error as to the (F)(5) aggravating circumstance was not harmless.
d. Especially Heinous, Cruel, or Depraved
¶13 That a murder is committed in an especially heinous, cruel, or depraved manner is an aggravating factor under Arizona law.
¶14 The cruelty factor is established by proof that the manner of death caused the victim to suffer mental and physical anguish, see Gretzler, 135 Ariz. at 51, 659 P.2d at 10, “and the defendant knew or should have known that suffering would occur.” State v. Trostle, 191 Ariz. 4, 18, 951 P.2d 869, 883 (1997) (citations omitted).
¶15 The trial judge based his cruelty finding on evidence that the victim was conscious when Cañez first stabbed him and remained at least partially conscious through the attempted strangulation and beating. Cañez argued that the evidence did not establish that the victim remained conscious during the attack. Indeed, the medical examiner testified that she could not determine the order in which the injuries were inflicted and that any of the ten blunt force injuries to the head could have resulted in immediate unconsciousness. We cannot say beyond a reasonable doubt that a reasonable jury hearing this evidence would necessarily conclude that the victim remained partially conscious after the initial attack and therefore find the murder was cruel.
¶16 Because we cannot say, beyond a reasonable doubt, that a reasonable jury hearing the evidence would find that the murder was especially cruel, we conclude that the Ring II error was not harmless with respect to the (F)(6) aggravating factor.
¶17 Our harmless error inquiry does not end with an examination of the aggravating circumstances. Because we can affirm a capital sentence only if we can conclude beyond a reasonable doubt “that no rational trier of fact would determine that the mitigating circumstances were sufficiently substantial to call for leniency,” we must also consider whether reversible error occurred with respect to the mitigating circumstances. Ring III, Ariz. at ¶ 104, 65 P.3d at 946.
a. Statutory Mitigation
¶18 It is a statutory mitigating factor that a “defendant‘s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired.”
¶19 Cañez presented evidence that his full-scale IQ was 70, placing him on the borderline of mental retardation. However, three psychological experts offered conflicting testimony concerning Cañez‘s adaptive abilities. Cañez‘s first expert, Dr. Tatro, testified that Cañez had “borderline personality disorder
¶20 On direct appeal, we noted that the evidence of brain damage, mental illness, and retardation was conflicting. Id. ¶ 113. Nevertheless, we upheld the trial court‘s finding that Cañez failed to establish the (G)(1) factor because we accorded great deference to the trial judge‘s conclusions concerning the weight to be given to the various expert testimony. Id. ¶ 114. Because this finding rests so heavily on the trial judge‘s assessment of witness credibility, we cannot say beyond a reasonable doubt that a reasonable jury would necessarily also conclude that Cañez failed to establish by a preponderance of the evidence the (G)(1) statutory mitigator.
¶21 Cañez offered evidence on several non-statutory mitigating factors at the sentencing hearing. Id. at 163-65, ¶¶ 115-25, 42 P.3d at 594-96. The trial judge found, and we affirmed on direct appeal, that Cañez had proved by a preponderance of the evidence the following non-statutory mitigating factors: drug and alcohol use, felony murder, his love of family, and mental illness or impairment. Id. at 163-64, ¶¶ 116-17, 120-22, 42 P.3d at 594-95. The trial judge also found, and we affirmed, that Cañez failed to prove the non-statutory mitigating factors of good character, traumatic childhood and dysfunctional family, and disparate sentence of a co-defendant. Id. at 164-65, ¶¶ 118-19, 124, 42 P.3d at 595-96. We also concluded that the cumulative effect of all the mitigation was not sufficiently substantial to call for leniency. Id. at 165, ¶ 126, 42 P.3d at 596.
¶22 After reviewing the evidence, we cannot say beyond a reasonable doubt that a reasonable jury would not have found that Cañez proved some of the mitigating factors that the trial judge found were not proven. Furthermore, we cannot say beyond a reasonable doubt that a reasonable jury would not have weighed differently the aggravating or mitigating factors that were found or determined that the mitigating factors were “sufficiently substantial to call for leniency.”
B. Mental Retardation as an Absolute Bar to Execution
¶23 Our inquiry is not yet complete. While Cañez‘s case remained on direct appeal, the Supreme Court announced that the
¶24 In Atkins, the Court gave some guidance regarding how to determine whether a defendant has mental retardation. The Court noted that “clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant
¶25 We addressed the application of the standards set forth in Atkins to our death penalty cases in State v. Grell, 205 Ariz. 57, 66 P.3d 1234 (2003). Like Cañez, Grell was sentenced to death after the trial judge found that he had failed to establish that he had mental retardation. Id. at ¶ 27, 66 P.3d at 1238. We noted in Grell that because Grell was sentenced before the Supreme Court‘s decision in Atkins, the trial judge had considered the mental retardation evidence from the perspective that such evidence might establish a statutory mitigating factor calling for leniency in sentencing, not from the perspective that such evidence might establish an absolute bar to execution. Id. at ¶ 37, 66 P.3d at 1240. We concluded that the Atkins decision prohibiting the execution of mentally retarded offenders as well as Arizona‘s new statute barring the imposition of the death penalty on mentally retarded offenders had “so changed the landscape of death penalty jurisprudence that the trial court simply could not have applied the correct principles during sentencing.” Id. ¶¶ 37-38. As a consequence, we held that due process required that Grell‘s case be remanded for an Atkins hearing to determine whether Grell has
¶26 As discussed above, the evidence presented at Cañez‘s sentencing established that his full-scale IQ was 70, placing him squarely within Atkins’ definition of subaverage intellectual functioning.2 Additional evidence established that Cañez attended special education classes during grade school, demonstrating that any subaverage mental abilities may have manifested before age 18. Most important, however, is the fact that the evidence concerning Cañez‘s mental abilities was considered only from the viewpoint of establishing mitigation, not as a potential bar to execution.
¶27 Due process demands that Cañez receive a hearing at which the court considers the mental retardation evidence under the constitutional principles announced in Atkins and the statutory standards set forth in
CONCLUSION
¶28 We vacate Cañez‘s death sentence and remand this case for resentencing and for a determination of whether Cañez has mental retardation and is therefore ineligible for the death penalty. If the court determines that Cañez suffers from mental retardation, the court shall enter a lawful sentence pursuant to
Rebecca White Berch, Justice
CONCURRING:
Ruth V. McGregor, Vice Chief Justice
Michael D. Ryan, Justice
¶29 I concur in Section B of the opinion and the result, but 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 violation. See State v. Ring, 204 Ariz. 534, ¶¶ 105-14, 65 P.3d 915, 946-48 (2003) (Feldman, J., concurring in part, dissenting in part) (Ring III).
Charles E. Jones, Chief Justice