State v. Lehr
67 P.3d 703
Ariz.
2003
Check Treatment

*1 Mm, before pated in a contested matter May 2001

bemg the motion to remand findmg probable

mdictment for new Poland, 144 Ariz. Godoy

cause. cites State (1985), waiv Poland, for a argument. In after remand

er trial, argued that defendant

new grant motion to dis

court should the State’s court should dismiss it with

miss but that the 698 P.2d at 190. We

prejudice. so, that, by doing Poland waived his change judge. peremptorily cases, however, Godoy’s differ

Poland’s Poland, judge

critically. In did not dis

miss the action. Id. ease, however, Judge Godoy’s Hantman predicated case on the

did dismiss the State’s mdictment, terminatmg thereby

May 2001 Participatmg proeeedmgs m m a

that action. party’s right

previous does not waive a case m change judge

to a a new action.

III. Jones, C.J., part dis- concurred m deny foregoing For separate opinion. partm sented Judge and affirm Hantman’s order relief transferring this matter different 534, P.3d 915. also 204 Ariz. consistent with and remand opmion. JONES, CHARLES E.

CONCURRING: Justice, REBECCA BERCH WHITE RYAN, D.

and MICHAEL Justices. LEHR, Appellant.

No. CR-97-0317-AP. Arizona.

Supreme Court of hearing, proceeding pretrial under Rule R.Crim. P. 10.4.a. Ariz. commencement of trial.”

108 II, Ring

sistent with its decision. 536 U.S. 609, 122 S.Ct. ¶ Following Supreme Ring 3 Court’s II decision, penalty we consolidated all death yet cases in which this court had not issued a Lehr’s, appeal including direct Ring required determine whether II this court to reverse vacate the defendants’ Ring, death v. sentences. State 204 Ariz. ¶ 534, 544-47, 15, 915, (2003) 65 P.3d (Ring Ring we concluded that we will examine death sentence superseded capital under Arizona’s sentenc- Napolitano, Attorney Janet A. Arizona 554, ing statute for harmless error. Id. at General, Cattani, Counsel, by Kent E. ¶ ¶ 54, 561, 93, 565, 104, Section, Phoenix, Capital Litigation and Rob- Ellman, Attorney ert L. Assistant General Beene, General, Attorney James P. Assistant Todd, General, II. Attorney

John P. Assistant General, Ferg, Attorney Bruce M. Assistant 1996, 4 In November Lehr convicted Tucson, Attorneys Appellee. murder, degree of three counts of first Johnson, Phoenix, Stephen Attorney M. murder, attempted degree counts of first assault, seven counts of assault,

kidnapping, thirteen assault, SUPPLEMENTAL OPINION one count of four minor, counts of sexual conduct with a RYAN, Justice. four counts of sexual assault with child ¶ 1 The sole issue before us is whether age years. under the of fourteen State reversible error a trial occurred when 509, 512, 1, 1172, 201 Ariz. sentenced Lehr death under a (2002). mandatory appeal, On we con procedure Supreme that the Court held un- cluded that Lehr was denied his constitution in constitutional rights al under the and Fourteenth Sixth 584, (2002) 2428, Amendments the United States Constitu II). (Ring on our Based review the rec- tion when the trial court limited his cross- ord, we cannot conclude 515, experts. examination of DNA Id. at case was harmless. 16, 519, 23, 520, ¶ 43, 1178,

1179, As this court reversed counts, as to two of the I. one count assault, kidnapping, and four counts of sexual II, 2 In the United States because the convictions for those counts rest capital sentencing that Arizona’s largely upon ed DNA Id. at 518- evidence. scheme violated the ¶¶ 20, 524, 1181-83, 35-43, ¶ 67, 38 P.3d at guaranteed the Sixth Amendment thus stands convicted of and 609, United States Constitution. received the death for one count of “[c]api S.Ct. 2428. The Court declared murder. id. at defendants, non-capital tal no less de 66-67,38 P.3d at 1186. also stands convict He fendants ... are entitled to a determi remaining thirty non-capital ed of counts. any legislature nation of fact on which the pun maximum conditions an increase them ishment.” Id. S.Ct. 2428. The 5 The trial court found three (1) Court reversed our decision State v. factors in this case: “defendant has been (2001) I), convicted of another offense the United Arizona and remanded for further con- States for which under law sen- mother; imprisonment prior im- son to his had no tence of life or death was he (“A.R.S.”) § posable,” criminal or accusations of Ariz.Rev.Stat. record of behavior 703(F)(1) (2) (2001); previ- kind; “defendant was violence of and he had been offense,” ously convicted serious AR.S. prisoner custody.” model while 13-703(F)(2); commit- However, “defendant there was *3 heinous, especially ted the in an cruel offense non-statutory mitigating additional evidence manner,” depraved § A.R.S. presented by that trial court the either 703(F)(6).1 independent In our review and mitigating proven was not or was not decided reweighing, specu- found too we the evidence by preponderance a of the evidence. Id. only finding lative to a that the ¶ 64, This evidence homicide for was which Lehr stood convicted imposition included that of the death heinous, depraved committed in a cruel or family, would harm and that Lehr Lehr’s Lehr, manner. 201 Ariz. at “good lacked childhood male role models.” F(l) respect aggrava- at 1186. With the tor, the trial court based its determination ¶8 Although remaining aggravating both aggravator that this existed on the two other circumstances in this case fall outside the homicides of which Lehr was convicted the Ring II 522-23, 60, we cannot conclude that no same trial. court, probability jury reasonable exists that a having 1185-86. This those reversed convictions, penalty. would not have the death homicide nevertheless found remaining kidnap- that for With the reversal of two of con- Lehr’s convictions the murder victions, sentencing ping and assault with the calculus in this carried them the ease matter, possibility sentence, changed. practical has As a life and therefore we be- F(l) supported aggra- juries these convictions greater weight the lieve will accord to an F(l) vator. Id. This court also affirmed the trial aggravator based on other homicides F(2) F(l) finding aggravator court’s of the opposed aggravator based based on kid- Moreover, Lehr’s convictions for napping and sexual assault. we murder and two say jury cannot that no would not reasonable assault. accept non-statutory mitigating the factors ¶ 61, 38 P.3d rejected by judge, particularly light single of the murder for which Lehr F(l) F(2) aggrava 6 Both the and such, impossi- now stands convicted. As it is ting factors fall outside the II mandate. just say jury may ble us to how a have require The Sixth Amendment does not aggravating mitigating the cir- balanced and jury to determine the of existence either the cumstances in this case. F(l) F(2) aggravating or the factors. 554, 55, 204 Ariz. at harmless, To find the error this case inquiry. 7 But this does not end our this court would that have determine if determination, jury We must also sentencing consider whether reversible had made respect mitigating jury presented error occurred with and had been if three, single circumstances. conviction than rather found, F(l) trial only court and this court and it had and considered if F(2) affirmed, F(6) prove any aggravators that Lehr failed to statu rather than also an F(l) tory mitigating prepon aggravator, circumstances and it had considered the if aggravator kidnapping of 201 Ariz. at on the basis of and derance the evidence. charges multiple P.3d at trial court assault 1186. The rather homicides, following non-statutory mitigating found the found that have proven by preponderance mitigating factors circumstances were not “suffi- good ciently leniency.” father to to call for evidence: “defendant was a substantial 13-703(E). children, wife, to his eireum- husband A.R.S. Under these Sess., 1,§ 1. Arizona Ch. Revised Statutes section 13-703 Laws, Spec. amended 2002 Ariz. Sess. 5th stances, finding hold that we speculative.

case to be harmless is too cannot For the above we beyond a doubt that had conclude reasonable ALVAREZ, Uzarraga Jose and miti- considei’ed presented gating circumstances in this case it No. 2 2001-0379. CA-CR would have reached the same conclusion as Appeals Accordingly, or this court. Two, Department Division B. vacate Lehr’s death sentence remand resentencing under revised sections A.R.S. Feb. (Supp.2002). 13-703 and -703.01 *4 Redesignated Opinion and Publication Ordered MeGREGOR,

CONCURRING: RUTH V. Justice, and REBECCA WHITE

Vice Chief

BERCH, Justice.

JONES, C.J., part, concurring in

dissenting part: 11 I concur but I dissent majority’s

from the conclusion harmless analysis appropriate is

error where sentenc

ing determinations are made jury. in the absence of the impartial jury

to trial is fundamental. is, itself, sentencing phase a life or judge, jury, not a

death matter. Where a questions pertaining all

determines sen

tencing, I believe violation the Sixth to the of the United

Amendment Constitution

States has occurred. the aftermath Court’s decision II), the absence capital trial sentencing phase neces

sarily I amounts to structural error. resentencing, simply

remand the case basis of the Sixth Amendment violation. 534, 565-565,

See State (2003)(Feld 105-115, 65 P.3d J., dissenting in concurring part,

man

part) (Ring