STATE of Arizona, Appellee, v. Darrel Peter PANDELI, aka Darrel Peter Florian, Appellant.
No. CR 98-0376-AP.
Supreme Court of Arizona.
April 3, 2003.
65 P.3d 950 | 204 Ariz. 569
¶ 6 Harrod failed to prove by a preponderance of the evidence any of the statutory mitigating factors. However, Harrod proved by a preponderance of the evidence the following non-statutory mitigating factors: lack of criminal record, adjustment to incarceration, and family issues. The trial court considered the mitigating factors individually and cumulatively and found that they were insufficiently substantial to call for leniency.
¶ 7 To establish the pecuniary gain aggravating circumstance the state must prove beyond a reasonable doubt that receiving something of value was “a motive, cause or impetus [for the murder] and not merely the result.” State v. Spencer, 176 Ariz. 36, 43, 859 P.2d 146, 153 (1993).
¶ 8 The trial court based its finding of pecuniary gain on the facts that: 1) Anne Costello testified that Harrod told her that Hap Tovrea, Jeanne‘s stepson, wanted Jeanne dead so that he and his siblings could access their inheritance; 2) Anne Costello testified that Harrod told her he would receive $100,000 for the murder and had complained to her that he had not yet received the total amount; and 3) the State introduced evidence of wire transfers and checks from Hap to Harrod totaling approximately $35,000.
¶ 9 Harrod countered Anne‘s testimony, in part, by suggesting that Anne lied because she was biased against Harrod. On cross examination, Anne admitted that she did not tell the police about Harrod‘s possible involvement in the murder until after she divorced Harrod. Harrod testified that Hap paid him for consulting services. Additionally, Harrod presented a witness who corroborated that Harrod and Hap were involved in a business venture together.
¶ 10 We cannot conclude, beyond a reasonable doubt, that a reasonable jury hearing the same evidence as did the judge would have assessed the witnesses’ credibility and testimony similarly or would have given the same weight to the mitigating factors.
III.
¶ 11 For the foregoing reasons, we cannot conclude that the Ring II error was harmless in this case. Accordingly, we vacate Harrod‘s death sentence and remand for resentencing under
CONCURRING: REBECCA WHITE BERCH and MICHAEL D. RYAN, JJ.
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, 204 Ariz. 534, 565-567 ¶¶ 105-15, 65 P.3d 946-948 (2003) (Feldman, J., concurring in part and dissenting in part).
Julie S. Hall and Arizona Capital Representation Project by Jennifer Bedier, Tucson, Attorneys for Darrel Peter Pandeli aka Darrel Peter Florian.
SUPPLEMENTAL OPINION
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
¶ 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, 153 L.Ed.2d 556 (2002) (Ring II). Pandeli v. Arizona, 536 U.S. 953, 122 S.Ct. 2654, 153 L.Ed.2d 830 (2002) (mem.). The Ring II decision does not affect our original opinion
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 609, 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 589, 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 609, 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, 204 Ariz. 534, 555 ¶ 53, 65 P.3d 915, 936 (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 aggravating and mitigating circumstances existed.
¶ 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.
¶ 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.
¶ 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, 204 Ariz. at 563 ¶ 93, 65 P.3d at 944.
¶ 10 As we explained in Ring III, however, our harmless error inquiry does not end with considering aggravating circumstances. 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.
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
CONCURRING: REBECCA WHITE BERCH and MICHAEL D. RYAN, Justices.
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, 204 Ariz. 534, 565-567 ¶¶ 105-15, 65 P.3d 946-948 (2003) (Feldman, J., concurring in part and dissenting in part).
RUTH V. MCGREGOR
Vice Chief Justice