State v. Ring

trial, requiring protective cross-appeal 65 P.3d 915 judicial goal would have served the of econo- Arizona, Appellee, of STATE judicial my. economy produced for the v. system depends upon thus the outcome of Timothy RING, Appellant. Stuart appeal granting from order the. new trial.5 Arizona, Appellee, State of Requiring a protective cross-appeal, v. however, judi- affects other than the entities Jones, Appellant. Antoin system. appellee required cial If an were appeal original judgment from the Arizona, and that Appellee, State of appeal unnecessary, only turned out to be v. judicial attorney also resources but time and Danny Montaño, Appellant. N. Moreover, resources would be wasted. , impact unnecessary appeal of an falls most Arizona, Appellee State heavily lawyers upon not on or the court but v. unnecessary expense.

those clients who incur Wayne Prince, Appellant. Benoit us, Given the close nature of the before issue we policy adopt conclude the best is to Arizona, Appellee, State of approach likely protect litigants more v. Therefore, unnecessary expenditures. from presented by hold that in the we situation Blakley, Appellant. Michael Gene action, appellee protec- this an need not file a Arizona, Appellee, State of cross-appeal. appeal tive The time to judgment underlying will run from the date v. judgment is reinstated. Henry Hall, Appellant. William Arizona, Appellee, State of

III. v. reasons, foregoing 16 For the affirm we Ryan Grell, Appellant. Shawn appeals denying the order of court of Arizona, Appellee, State ap- Nielsons’ motion to dismiss the Smiths’ peal. We also vacate our October v. staying proceedings order all further Davolt, II, Appellant. James Edward appeals. court of Arizona, Appellee,

State of CONCURRING: REBECCA WHITE v. RYAN, D.

BERCH MICHAEL Justices. Leroy Cropper, Appellant. D. Arizona, Appellee,

State Armstrong, Appellant. Daniel Shad Arizona, Appellee, State Tucker, Eugene Appellant. Robert appellate reversing grant- (App.1994); City P.2d see Hutcherson v. 5. An decision an order Phoenix, ing likely a new than a decision 192 Ariz. trial is less (1998) ("We judge's upholding appellate decision such an order. An court can review the granting only upon deny post-trial of discre- reverse an order a new trial motions for abuse tion, showing recognizing latitude of abuse of discretion. that he had substantial Martinez Enter., Inc., verdict.”). deciding upset whether to Schneider Arizona, Arizona, Appellee, Appellee, State of State v. v. Kajornsak Prasertphong, Appellant. Cañez, Appellant. Arturo Anda Arizona, Appellee, State

v. Arizona, Appellee, State of Christopher Huerstel, Appellant. Bo v. Arizona, Appellee,

State Hoskins, Appellant. Aaron Scott v. Rutledge, Appellant. Sherman Lee Arizona, Appellee, State of Arizona, Appellee, State of v. v. Nordstrom, Douglas Appellant. Scott

Christopher George Theodore Lamar, Appellant. CR-97-0428-AP, CR-99-0536-AP, Nos. CR-99-0439-AP, CR-00-0328-AP, CR- Arizona, Appellee, State 0360-AP, CR-00-0447-AP, 00- CR-01- v. 0275-AP, CR-00-0508-AP, CR-00-0544- Murdaugh (A), Appellant. Michael Joe AP, CR-00-0595-AP, CR-01-0091-AP, CR-01-0100-AP, CR-01-0103-AP, CR- Arizona, Appellee, State of 0129-AP, CR-01-0270-AP, 01- CR-01- v. 0421-AP, CR-02-0042-AP, CR-02-0044- Jeffrey Dann, Appellant. Brian AP, CR-99-0296-AP, CR-99-0551-AP, CR-99-0438-AP, CR-98-0289-AP, CR- Arizona, Appellee, State of 98-0376-AP, CR-97-0317-AP, CR-98- v. 0488-AP, CR-97-0349-AP, CR-98-0278 Moody, Appellant. Robert Joe AP. Arizona, Appellee, State of Arizona, v. En Banc. Royal Phillips, Appellant. Keith April Arizona, Appellee, State of

v. Finch, Appellant.

Marcus Lasalle Arizona, Appellee,

State of

v. Sansing, Appellant.

John Edward Arizona, Appellee,

State of Harrod, Appellant.

James Cornell Arizona, Appellee,

State of

Darrel Peter Pandeli aka Darrel Florian, Appellant.

Peter Arizona, Appellee,

State of Lehr, Appellant. Alan

Scott

539 by

Law Harriette P. Levitt Har- Offices of Tucson, Levitt, Attorneys riette P. for Shad Armstrong. Daniel Haas, Maricopa County James J. Public Attorney Napolitano, A. Janet Arizona by Christopher Defender V. Johns and General, Phoenix, Cattani, by Kent E. Chief Phoenix, Attorneys Kemper, H. for James Counsel, Capital Litigation Section and Rob- Eugene Robert Tucker. Elhnan, Attorney ert L. Assistant General Kettlewell, County Susan A. Pima Public Beene, Attorney P. Assistant and James by Defender A. McLean and Rebecca Lori J. Todd, and P. Attor- General John Assistant Lefferts, Kajornsak Tucson, Attorneys for ney Ferg, Bruce M. General and Assistant Prasertphong. Tucson, General, Attorneys Attorney for Young, Law & Offices of Williamson P.C. State Arizona. Tucson, by Young, Attorney S. Jonathan for Maledon, P.A., by Andrew D. Hur- Osborn Christopher Huerstel. Bo Stookey witz A. Daniel L. and John and Phoenix, Attorney Doyle, Robert for Sher- Phoenix, Attorneys Timothy Kaplan, for Rutledge. man Lee Ring. Stuart Sherwin, Maricopa County, Susan Office of Reath, L.L.P., Drinker Biddle & Philadel- Graham, Advocate, Phoenix, Legal by Brent phia, by Quarles Lawrence J. Fox & Attorneys Christopher George for Theodore L.L.P., Brady Lang, by F. Streich Edward Lamar. Novak, Phoenix, Attorneys for Amici Curiae

Legal and The Stein for Ethicists Center Phoenix, Reeves, Attorney Michael S. for and Ethics. Law Murdaugh. Michael Joe Haas, Maricopa County James J. Public Sherwin, Maricopa County, Susan Office of Defender, by R. Stephen Collins and Edward Advocate, Phoenix,' Legal by Brent Graham Phoenix, McGee, Attorneys F. Antoin for Shughart Kilroy Thomson Goodwin Jones. P.C., Gerber, Phoenix, Raup, by Rudolph J. Attorneys Jeffrey Dann. for Brian Ryan by Ryan, Law Offices of Carla Carla Tucson, Attorneys Danny for N. Montafio. Kettlewell, County A. Susan Pima Public by Defender P. Leto and Brian X. Haas, Frank Maricopa County Public James J. Metcalf, Tucson, Attorneys for Robert Joe Edgar by L. R. Defender James and Charles Moody. Krull, Phoenix, Attorneys Wayne for Benoit

Prince. Kettlewell, County A. Pima Susan Public Office, by Defender F. Palumbo and by John Rebecca Law Ltd. Bar-

Baran J. Conrad McLean, Tucson, Attorneys for an, A. Keith Attorney Overgaard, for Michael Gene Royal Phillips. Blakley. Young, Gorman, Law & Flagstaff, Attorney Offices of Williamson P.C. A. Thomas Tucson, Young, Attorneys for S. Jonathan Henry Hall. William Finch. Marcus LaSalle Kilroy Raup,

Shughart Thomson Goodwin Haas, County Maricopa P.C., Phoenix, J. Public by Rudolph James J. Gerber and Haas, Spencer by Terry Defender Adams and D. Maricopa County Public De- J. James J. Heffel, Phoenix, Attorneys for John Edward Rummage R. and Lawrence fender James Phoenix, Sansing. Matthew, Attorneys for S. Shawn

Ryan Grell. Haas, Maricopa County James J. Public by Christopher Defender V. Johns and Capital Representa- Hall and Arizona

Julie Phoenix, Attorneys Bedier, H. for by Kemper, Tuc- James Project tion Tucson Jennifer Davolt, son, II. James Cornell Harrod. Attorneys for James Edward Representa- Capital Hall Goldberg, and Julie and Arizona Thomas A. Gorman David I. Bedier, Tucson, Project Leroy by At- Attorneys Cropper. D. tion Jennifer Flagstaff,

543 13-703.F.5, torneys gain, for Darrel Peter aka Darrel “in an Pandeli A.R.S. section and heinous, Peter Florian. especially depraved cruel or man- ner,” A.R.S. section 13-703.F.6. State Phoenix, Johnson, Stephen Attorney M. 267, 13, 1139, Ring, 200 Ariz. 272 25 P.3d for Scott Alan Lehr. (2001) I). (Ring 1144 The trial court con- Thomas J. Phalen and Tara K. Allen mitigating cluded that circumstance of Phoenix, Tempe, Attorneys for Anda Arturo Ring’s minimal criminal record was not “suf- Cañez. ficiently leniency” substantial to call for and Young Capital Repre- Denise and Arizona Ring sentenced to death. Id. at 273 25 Project by Bedier, Tucson, sentation Jennifer 1145; 13-703.E, § P.3d at see A.R.S. amend- Attorneys for Aaron Scott Hoskins. Laws, Sess., by Spec. ed 2002 Ariz. Sess. 5th 1, § ch. 1. Darby by Law Office of David Alan David Darby, Tucson, Attorney

Alan for Scott ¶ Ring subsequently appeal 3 filed a direct Douglas Nordstrom. seeking multiple to this court review of issues, sentencing including a Sixth MeGREGOR, Vice Chief Justice. challenge Amendment to Arizona’s ¶ 1 This case comes to us on remand from sentencing procedure. The Sixth Amend- Court, Supreme the United Ring States trial, right ment a Ring argued, re- Arizona, 584, 608-609, quires jury, judge, rather than a to find the 2428, 2443, 153 II). L.Ed.2d (Ring 556 aggravating factors set at forth section 13- jurisdiction We pursuant have to the Arizona I, Ring 703.F. 200 Ariz. at 278 25 P.3d Constitution, VI, Article Section 5.3. at Ring’s 1150. This court affirmed first

degree murder conviction and death sen- I. ¶ 65, tence. Id. at 284 25 P.3d 1156. by Guided the United States History. Facts and Procedural Arizona, Court’s decision Walton v. On December convicted U.S. L.Ed.2d 511 Timothy Ring murder, Stuart first (1990), capital sentencing we held Arizona’s conspiracy robbery, to commit armed armed procedure did not violate the Sixth Amend- robbery, burglary and theft. Under Arizona ment of the United States Constitution. law at the Ring’s time of sentencing, capital I, Ring 200 Ariz. at 279-80 25 P.3d sentencing procedure followed the set forth 1151-52. (A.R.S.) at Arizona Revised Statutes section ¶ Ring petitioned the United (Supp.1996). 13-703 States Su required by As A.R.S. preme 13-703.B, accept Court to section certiorari. the trial court conducted a granted sentencing capi review and held that hearing Arizona’s aggravating to consider tal mitigating scheme violated the Sixth circumstances. The court trial, only overruling could Amendment aggravating consider those factors statute, applying any approach Ap identified but Walton and could consider 466, 120 possible mitigating prendi Jersey, § factor.1 v. New A.R.S. 13- U.S. 703.F-.G, II, Laws, Ring amended 2002 Ariz. L.Ed.2d 435 Sess. Sess., Spec. § 5th hearing, ch. 1. After S.Ct. at 2443. The the court aggravating found two factors: Court remanded the matter for dis Ring committed the pecuniary position light murder for II. prove aggravating

1. legislature judge- The state must factors be- 13-703.F since the enacted yond § sentencing. reasonable doubt. A.R.S. 13-703.B Following based the 2001 Arizona (Supp.2002); Spreitz, Session, State v. Legislative aggravating these circum- (1997). Mitigating 945 P.2d factors are listed stances under A.R.S. section 13-703.- proved by preponderance must be of the evi- legis- § G.2001 Ariz. Sess. Laws ch. 1. The 13-703.C; Pandeli, § dence. A.R.S. State v. redesignated lature circumstances ¶44, post-Ring under subsection .F in its II amend- Laws, Sess., Except period, aggravating Spec. for one brief cir- ments. 2002 Ariz. Sess. 5th 1, cumstances have been codified at A.R.S. section ch. 544 decision, cases, the same dis II the trial court exercised At time of the 5 Thus, early jury. until the

thirty-one to death had cretion as did a defendants sentenced appeal 1970s, penalty this pending imposed on direct before Arizona the death matters 2002, 27, we entered an of degree court. On June murder at the sole discretion first thirty-one pen- consolidating § all death E.g., order court. Ariz.Code 43-2903 or (1928); alty appeal. State v. (1939); § cases then on direct Ariz.Code 4585 State (June 27, 261, McGee, 101, 111-12, Ring, Order No. CR-97-0428-AP P.2d 91 Ariz. 370 (1962) (“The punish determination of 268 2002). wholly discretion of the ment is within the case 6 All defendants this consolidated aspects jury upon of all of their consideration by a pled guilty to or were convicted either ease.”), as stated superseded statute degree premeditated felony jury of first 108, 115, Lopez, Ariz. in State v. 163 judges Trial sentenced all defen- murder. State, 959, (1990); Ariz. Hernandez v. 43 966 now-superseded under a ver- dants to death (1934) (“[T]he 18, ques P.2d 20 32 13-703, of section under which sion A.R.S. degree murder punishment tion of first mitigating and judge considered wholly jury’s discre within the cases examine the evidence. This court must now tion____”). statutory guided No standards impact Ring of II on the death sentences of punishment. the determination of before us. To assist the those defendants court, and after consultation with counsel for 1972, however, the States 8 In United defendants, and the we ordered the State Georgia Furman v. Supreme Court decided parties to brief the issues discussed below. sentencing death and held standardless defendant the We reserved to each Eighth procedures violate the Amendment’s issues, necessary. sentencing if further brief punishment. unusual prohibition of cruel and opinion addresses those issues raised This 2727, 239-40, 2726, 238, 33 S.Ct. appeal. will ad- the consolidated The court curiam). According (per L.Ed.2d sentencing in a each defendant’s issues dress Stewart, complete discretion to Justice separate opinion. imposition of arbitrary capricious led to sentence; strikingly given similar the death

II. crimes, received a death some defendants Id. at and others did not. sentence Capital Historical Overview (Stewart, J., concurring). at 2762 Punishment in Arizona. decision, code, Following the Furman penal Arizona’s first Under capital a new Legislature Arizona enacted degree murder re- person convicted of first sentencing Ariz. Sess. Laws prison scheme. 1973 either a death or sentence.2 ceived Arizona, legislation divided ch. 138. The Penal Code Revised Statutes (1913). phases: a degree trial into two jury, exercising first murder § its discre- Upon a sentencing phase. tion, impose. guilt phase and a punishment decided which guilty plea to first of or a approved In an initiative conviction Id. voters murder, required the statutes judge authority degree giving the trial measure hearing sentencing degree trial court to hold a person to death for first sentence a evi- presented pled which the state and defendant in which the defendant murder cases Laws, statutorily aggravating and defined Initiative & dence guilty. 1919 Sess. trial court 5. The mitigating In factors.3 18. those Referendum Measures 2954, 2964-65, murder, L.Ed.2d offenses to first 2. In addition treason, Ohio, (1978); punishable by Revised death included Bell v. Arizona, 2977, 2980-81, Penal Code section 33 Statutes of L.Ed.2d 1010 (1913), robbery, train id. sections subsequently unconstitutional court held This sentence, serving deadly a life a felon assault mitigating non-statutory Arizona’s exclusion id. section 220. Watson, State v. circumstances. P.2d Supreme Court held unconstitu- 3. mitigating Legislature cir- amended Arizona statutes death tional those limiting deci- with these statute to conform cumstances types mitigating a defen- evidence 144, § Laws ch. 1979 Ariz. Sess. sions. Ohio, 438 U.S. Lockett v. dant can introduce. pun- an increase in their maximum impose the death sentence if it found at conditions could at at 2432. aggravating one circumstance and “no ishment.” Id. S.Ct. least sufficiently Thus, necessary mitigating any sub- fact to enhance the de- circumstances leniency.” beyond by Id. stantial to call for that authorized fendant’s sentence jury’s guilty the verdict must be found the ¶ later, years in Gregg 10 Three v. Geor jury. upheld Georgia’s gia, Supreme the Court e sentencing against a claim revised schem Following Supreme an- Court’s penalty per that the death was se unconstitu decision, Ring nouncement of the II Gover- 153, 169, 2909, 2923, tional. 428 U.S. S.Ct. special legislative Hull nor Jane Dee called a (1976). Georgia 49 L.Ed.2d 859 statute capital sentencing session revise Arizona’s Arizona’s, that, except resembled under 1, 2002, provisions. August legisla- On law, Georgia the same heard both the passed signed and Hull into ture Governor guilt sentencing phases. and id. at 164 (“S.B.”) 1001, See containing Bill sev- law Senate 9,n. n. & 96 S.Ct. at 2921 & 9. eral intended to conform Arizona revisions II law to the mandate. S.B. 45th Supreme Ari- 11 The Court reviewed (Ariz.2002). Leg., Spec. 5th Under Ari- Sess. judge-only sentencing in zona’s Walton. The sentencing procedure, zona’s amended rejected argument Court the Sixth jury serving during guilt phase of the required Amendment to a during trial also serves as the trier of fact judge, jury, presented not a to find the facts § sentencing phase. A.R.S. 13-703.01.- Walton, sentencing hearing. at the 497 U.S. (Supp.2002). Specifically, C-.D will Apprendi, at at S.Ct. 3055. aggravating find and consider the effect of later, non-capital years case decided ten mitigating circumstances and decide “[ojther held that Court than the fact of a whether the defendant should receive a sen- conviction, prior any fact that increases the tence of death. Id. 13-703.01.D. beyond prescribed for a crime statutory maximum must be submitted to a ¶ 14 To determine whether we should va- jury, proved beyond treasonable doubt.” cate defendants’ death sentences and either 530 U.S. at at 2362-63. Al- reduce to a life sentence or remand for re- though Apprendi Justice O’Connor’s dissent sentencing proce- under Arizona’s revised questioned whether Walton could survive the dure, following we consider the issues. Apprendi ruling, id. at 120 S.Ct. (O’Connor, J., dissenting), 2387-88 the ma- III. jority distinguished capital cases as “not con- Does the Ex Post Facto Clause Prohibit 496-97, trolling” authority. Id. at Resentencing Under Arizona’s Amended at 2366. Capital Sentencing Procedure? II, Finally, in Ring argue 15 The defendants that resen expressly Court overruled Walton favor of tencing under A.R.S. sections 13-703 and 13- Apprendi’s approach. Sixth Amendment (the (Supp.2002) 703.01 new stat S.Ct. at 2443. Accord utes) post would constitute an ex facto viola Court, ing to the “[b]ecause Arizona’s enu Constitution, tion under the United States operate merated factors as the I, Article Section Clause and the Ari equivalent functional of an element of a Constitution, II, zona Article 25. Section We offense, greater the Sixth Amendment re disagree.4 quires they jury.” be found 19, 120 (quoting Apprendi, post prohibits 530 U.S. at 494 n. 16 The ex facto doctrine 19). defendants, “Capital “retroactively n. altering] no state from the defini- defendants,” non-capital increas[ing] punishment less than tion of crimes or concluded, Youngblood, “are entitled to a determina for criminal acts.” Collins v. 2715, 2719, any legislature tion of fact on which Noble, interpret we 4. In State v. held that we will We find no reason to deviate Ex the state Post Facto Clause in accord with from Noble. precedent. federal Florida, time, At In Dobbert v. Florida mandated L.Ed.2d 30 post felony facto Court held that ex death sentence for convictions discretion, prohibitions only legislative jury, reach en- in those unless the its recom Dobbert, that criminal law. mercy judge. actments affect substantive mended 432 287, 97 Shortly 432 U.S. S.Ct. 53 at 97 at 2295. after U.S. S.Ct. (1977). Likewise, recently children, L.Ed.2d 344 we Supreme Dobbert murdered his the that, the United States and Ari- held under Georgia, striking v. Court decided Furman Constitutions, post “[a]n zona ex law is Georgia sentencing the death statute as down facto punishment aggra- one that increases the or 288, unconstitutional. Id. at 97 S.Ct. at 2296. any previously vates crime committed.” Sack, later, A in the month Donaldson ¶ State, 104, 26, 111 14 Zuther v. Supreme Florida Court held Florida 295, (holding legislative 302 P.3d sentencing un death statute unconstitutional changing statutory computation amendment (Fla.1972). 499, der Furman. 265 So.2d 501 “gate money” post an prisoner not ex facto year, Legislature Later that the Florida legislative purpose puni- law because was not capital sentencing proce amended the state’s tive). comply with Furman and Donald dure to Dobbert, 288, at at son. 432 U.S. 97 S.Ct. Dobbert, In17 Court 2296. Dobbert was then tried and sentenced categories constituting restated the of laws to death under the state’s new law. Id. at changes substantive to criminal law: 284, at 2294. 97 S.Ct. punishes [A]ny as a crime an statute which ¶20 committed, persuade previously inno- Dobbert failed to the Su- act which was done; preme sentencing cent when which makes more bur- him under the Court crime, punishment procedures densome the for a after amended violated the Ex Post commission, deprives its or which one ex Facto Clause. The Court first limited charged any with crime of defense avail- post occurring facto violations to those when according able to law at the time when the previously a statute makes criminal a inno- committed, prohibited post act, act was is as ex previously aggravates cent a crime com- mitted, provides greater punishment, or facto. changes quantum proof needed to (quoting 432 at 97 S.Ct. at 2298 U.S. Id. at at convict defendant. S.Ct. Ohio, 167, 169-70, 46 Beazell v. 269 U.S. Beazell, 169-70, (quoting at (1925)). U.S. Thus, L.Ed. S.Ct. 68). categories ap- at None of those S.Ct. affecting changes in legislative act criminal Instead, plied to the Florida statute. procedure, including procedural changes that concluded, statutory change Court be- defendant, generally disadvantage a does not Collins, sentencing tween the two methods was Ex violate the Post Facto Clause. (“[Procedur “clearly 45, 110 procedural,” and new statute “[t]he S.Ct. at 2720 U.S. simply employed in de- altered the methods procedures by changes refers to al] termining penalty the death was to adjudicated, op whether which a criminal case is as change in imposed; be there was no posed changes in the substantive law of Mendoza, crimes.”); quantum punishment attached to State v. (1992) (“A 293-94, at 2298. 823 P.2d defendant has crime.” Id. at right any particular mode of no vested rejected also 21 The procedure.”). challenge in Ex Post Facto Clause Collins us, then, question The before is Youngblood, a non-death ease. new statutes whether Arizona’s imposed prison and a had sentence procedural change in worked a substantive or fine, by law. 497 the latter not authorized these murders the law as it existed when at 2717. The Texas place. regard We three decisions as took Appeals reformed the sen- Court of Criminal particularly instructive. a statute enacted after the de- tence under Dobbert, place. Id. at fendant’s criminal act took argued the defendant Supreme Court held the Ex Fac- 110 S.Ct. at 2718. The his death sentence violated Post statute applying the sentence reform killed his children to Clause. Dobbert Correll, the Ex to first murder.6 148 Ariz. at defendant’s case did violate although 481-82, Hence, Post Facto Clause because 734-35. jury trial right Sixth Amendment to a capital sentencing changes pro- to the state’s substantial, any- “it is not a that has type do after- cedures not resemble crimes, thing to do with the definition of legislative contemplated by the-fact evil con- defenses, punishments.” Id. at 110 temporary understandings post ex fac- Utah, (overruling Thompson at 2724 to doctrine. 42 L.Ed. 1061 (1898)). procedural change 24 Even a ¶22 Correll, contrast, we State violation, post amounts to an ex facto howev found a violation of the Ex Facto Post er, substance, by when it affects “matters of 468, 482, 721, Clause. 148 Ariz. 735 depriving protec a defendant of substantial (1986), part grounds by rev’d in on other existing tions with which the law surrounds (9th Stewart, 137 F.3d 1404 Correll Cir. crime, arbitrarily person accused of 1998). juryA convicted the defendant of infringing upon personal rights.” substantial degree three counts of first murder. After Collins, 45, at at 2720 U.S. murders, sentencing, leg but before Beazell, 171, (quoting U.S. islature amended A.R.S. section to 13-703.F 69; Carolina, Malloy v. South 237 U.S. multiple ag add homicide convictions as an (1915); 35 S.Ct. 59 L.Ed. 905 gravating circumstance. We held that retro Missouri, and Duncan v. 152 U.S. 382- actively applying aggravating the new cir (1894)) 38 L.Ed. 485 change cumstance constituted a substantive (internal omitted). quotation marks The to disadvantaged murder and the de change involved here does not affect change fendant. Id This affected the sub prose substantive matters of the defendants’ sentencing stantive nature of the crime and sentencing cutions. See id Under the new that, by adding a present, new element if statutes, sentence, to obtain a death the state permitted the defendant to receive more prove aggravating must the same circum punishment severe than that available at the required by stances the former statute and time of the crime.5 prove beyond must them a reasonable doubt. ¶23 clearly These cases indicate only jury, The that a difference is rather only post that ex principles general facto judge, than a decides whether the state has ly applying procedural changes do not bar to proved sentencing its case. The new stat proceedings, gener criminal but also place jeopardy utes do not the defendants in al statutory capital framework of a state’s any greater punishment already than that sentencing procedural scheme is in nature. imposed superseded under the statutes. Ac established, rights As Collins secured cordingly, applying sentencing the new stat right, Sixth Amendment utes does not violate federal Ex or state here, inherently at issue procedural. are Post Facto Clause. U.S. at 110 S.Ct. at 2724. Under the Dobbert, holding change Arizona’s statutory imposing capital pun method for IV. clearly procedural:

ishment is new The sen tencing statutes alter the method used to Jeopardy Does the Double Prohib- Clause determine whether the death will be Resentencing it Under Arizona’s Amend- imposed change punish but make no to the Sentencing Capital ed Procedure? degree ment attached first murder. The sentencing argue new statutes added no new ele 25 The defendants that the double ment, element, equivalent or functional jeopardy provisions of an of the United States holding aggravating only conforming 5. The Court’s 6. S.B. 1001 made technical and equivalent factors serve as the functional ele- changes circumstance list. degree ments of the first this conclusion even more evident. murder offense makes Laws, Sess., Spec. 2002 Ariz. Sess. 5th ch. II, S.Ct. at 2443. tri- preclude penalty phase “proceeding is like a Arizona resentenc- Constitutions7 al”). Therefore, ing sentencing the new statutes. We under we must determine wheth- they resentencing hold that do not. Ari- er the defendants under sentencing statutes violates the zona’s new ¶26 jeopardy prevents Double against jeopardy. prohibition double government prosecuting from an individual than once for the same offense. Green more States, A. United According 2 L.Ed.2d 199 Resentencing Does Not Increase Court: Sentences. underlying ... is that the idea State ¶28 argue The defendants that because power all resources and should not with its prescribing judge sen- Arizona’s former law repeated attempts to

be allowed to make unconstitutional, .offense, tencing the most severe alleged was convict an individual for embarrassment, penalty they have received for first thereby subjecting him to could original him murder at the was expense compelling and ordeal and prison. They continuing anxiety life or natural life assert live state of that, 13-703, insecurity, enhancing possi- superseded under section a con- as well as receive, the death bility though may be victed murderer could not that even innocent he conceptual- penalty punishment that guilty. found because Therefore, they ly argue, a did not exist. 223; also Id. at 78 S.Ct. see Satta resentencing proceeding under the new sen- 101, --, Pennsylvania, v. 537 zahn U.S. expose them to a tencing statutes would (2003) 732, 745-46, 154 123 S.Ct. L.Ed.2d 588 penalty originally more severe than was underlying (reaffirming principle that jeopar- and thus constitutes double available purpose Jeopardy Double is to Clause dy. rely upon decisions from The defendants attempts by prohibit repeated the state to courts, appellate intermediate Cali- two state convict, thereby exposing defendant to em 441, 142 Harvey, Cal.App.3d 76 barrassment, expense, and the ordeal of an fornia Choate, (1978), 151 Cal.Rptr. 887 and State v. proceeding). other 57, (App.1986). 725 P.2d 764 jeopardy principles 27 Double jury Harvey of apply sentencing pro Harvey, 29 In convicted generally do not DiFrancesco, counts, including degree murder ceedings. several first United States 117, 132, 426, 435, police Cal.Rptr. officer. 142 at 888. 101 S.Ct. 66 of 449 U.S. Harvey’s sentencing, Capital sentencing pro After the California Su- L.Ed.2d 328 however, preme capital sen- ceedings, provide exception an Court declared state’s it tencing unconstitutional because general penalty phase rule. The of a statute pro bring mitigating evidence into the capital ordinary trial an trial failed to resembles 890-91; authority sentencing, calculus. Id. at see ceeding sentencing which Court, together Superior Rockwell v. 18 Cal.3d chooses “between two alternatives (Cal. decision, 1116 Cal.Rptr. guide [and] with standards to [its] 1976). Harvey’s appeal pending, was prosecution the burden of While undertakes] Legislature amended the beyond a reasonable the California establishing facts Harvey, sentencing scheme. California, 524 U.S. state’s Monge doubt.” argued 2246, 2251, The state Cal.Rptr. at 890-91. L.Ed.2d 615 (1998) Missouri, Harvey resenteneed under the (discussing Bullington v. should be appellate court disa- Id. The 68 L.Ed.2d 270 new statute. 451 U.S. resentencing vio- (1981)); greed, holding would Rumsey, see Arizona v. U.S. because, 2305, 2310, state 203, 212, jeopardy when the 81 L.Ed.2d late double capital sen- supreme the former (holding jeopardy applies court held double unconstitutional, tencing decla- capital trial because scheme penalty phase .“that put jeopardy person twice any person subject "No shall ... be for the same “[N]or 7. shall be Const, II, put jeopardy life or to be twice offense art. 10. for the same offense.” Ariz. Const, V. limb....” U.S. amend. state’s first de was that sen- consideration automatically appellant’s reduced ration policy provided a sentencing gree murder Id. at 891. imprisonment.” to life tence procedures though even death sentence Choate, Similarly, Arizona were found imposing that sentence later jeopardy Appeals held that double Court of Dobbert, at 297- unconstitutional. resentencing on a prevented of a defendant County (quoting Chicot 97 S.Ct. at dangerous-nature issue. Bank, 308 Drainage Dist. v. Baxter State P.2d at 765. A convicted Ariz. at 84 L.Ed. 329 degree aggra- of second murder Choate Cardwell, (1940)); Knapp v. see also Id. at 725 P.2d at vated assault. (9th Cir.1982) (reject 1253, 1264 & n. 9 F.2d darigerous- appeals vacated the The court is automat that death sentence ing argument mur- nature sentence for second immedi ically imprisonment “to life reduced issue was not der conviction because death ately of the state’s upon invalidation remand, jury. determined Id. On law”). short, rejected the Court a new to convene to ordered argument in Dobbert. the defendants’ should receive the determine whether Choate ap- dangerous-nature Id. Choate sentence. basic issue we must re 33 The appeals pealed The court of that order. whether a death sentence meta solve is not that, judge mis- concluded because the trial physically existed when the defendants were takenly without submit- dismissed sentenced, any rather whether defendant but dangerous-nature charge in the first ting the original “acquitted” at his trial of what was case, permitting a new to consider the necessary impose a findings ever were allegation dou- enhancement would constitute can be a defendant death sentence. While jeopardy. Id. at 725 P.2d at 765. ble following appellate reversal resentenced sentence, ¶31 original her the Double Supreme The Court addressed this of his or Dobbert, however, any imposing sen very Jeopardy prohibits in and reached Clause issue the defendant was either actu a conclusion. Dobbert made the tence of which different in ally impliedly “acquitted” in the first argument same that the defendants make or 211, Rumsey, Supreme 467 U.S. at The Florida Court declared stance. here. 437, 445, 101 2310; at penalty Bullington, death at the time at 451 U.S. the statute effect Acuna, 1857, 1861; Therefore, Ariz. at Peak v. of his murders unconstitutional. 8, 833, 83, (stating argued, a P.3d Dobbert he could not receive death appellate court implied acquittal he murdered exists where sentence because “at the time insufficiency of evi penalty ‘in conviction for his children there was no death reverses retrial). 297, precludes jeopardy and double effect’ in Florida.” 432 U.S. at dence Thus, rejected a defendant cannot be sentenced Supreme at 2300. The Court this sentencing proceeding subsequent a argument, holding jeopardy that double did death at statute, reviewing de if or court has not attach because a albeit unconsti- “the senteneer tutional, prosecution proved not its punishment cided that the has permitting capital penalty appropriate.” degree at the time of the ease that the death first murder existed Arizona, 147, 155, 298, That Poland v. crimes. Id. at 97 S.Ct. at 2300. (1986) (in 1755, 1749, L.Ed.2d 123 placed notice that statute the defendant on omitted). marks punishment quotation if he were con- ternal capital he faced victed. Id. thoroughly Supreme has Court legal principle Harvey distinguished Dob- treated and established 32 The court Rumsey, a ultimately by noting applies was here. State bert that Dobbert statute, first the defendant of a convicted sentenced under constitutional (1981). Cal.Rptr. at 636 P.2d 1209 Harvey was not. 142 murder. 130 whereas trial, sentencing phase During the persua- do not find the distinction 890. We ag- however, pecuniary gain sive, judge, misinterpreting because it does not affect only to a applying as analysis. gravating There circumstance Supreme Dobbert Court’s hire, aggravating no cir- “sophis- murder for found the defendant’s the Court discounted the defendant important cumstances and sentenced argument” because the more tic 55a prison.

life Id. at appeal, 636 P.2d at On this court held that the evidence appeal, 1213-14. pecu- during On we held that the adduced sentencing proceeding niary gain heinous, support finding circumstance included did not of a cruel any depraved gain murder committed for financial murder. Id. at 645 P.2d at killing remanded the matter for 800. We also restated that a resentencing. need not remand, be a qualify pecu 636 P.2d at 1213. murder for hire to for the On niary gain aggravator. judge Id. at pecuniary gain determined that P.2d remand, judge again 801. On circumstance existed sen and sentenced the de- tenced both Polands to death. State v. Po Rumsey, fendant to death. State v. 136 Ariz. (Patrick), 388, 392, land 144 Ariz. 698 P.2d 665 P.2d re-We (1985); (Michael), State v. Poland appeal viewed the ease on direct and held Rumsey’s death sentence violated the again We reviewed and affirmed the Polands’ Jeopardy Double Clause because the life sen- appeal sentences on direct and held that the imposed tence implicitly his first trial ac- evidence, although support insufficient to quitted sentence, him of the death and that finding cruelty, support finding did Rumsey finality” was “entitled to on that pecuniary (Patrick), gain motive. Poland issue. Id. at 665 P.2d at 57. 202; 144 Ariz. at 698 P.2d at Poland Supreme 35 The granted certiora- (Michael), 144 Ariz. at 698 P.2d at 211. ri capital and affirmed. It held defen- certiorari, On Court dis dant cannot receive the death on tinguished Rumsey, the Polands’ case from resentencing originally if he had been sen- Poland, and that distinction was critical. prison. tenced to life in Rumsey, 467 atU.S. both originally capital defendants received 212, 104 S.Ct. at 2310. explained The Court Rumsey’s sentences. Unlike acquittal that “an on the merits the sole trial, “acquitted” no fact-finder had the Po- decisionmaker in proceeding is final and by imposing prison lands of murder bars charge.” retrial on the same Id. at sentencing sentence at the first proceeding. Thus, 104 S.Ct. at 2310. Poland, 156-57, 106 atU.S. S.Ct. at 1756. Rumsey speaks Court’s decision to situations then, resentencing, On the defendants did originally which the defendant received a face charge they on a of which sentence other than death. previously “acquitted” had been for double ¶ 36 In a similar in case which the defen- jeopardy purposes. Id. at at sentence, originally capital dant received a Therefore, jeopardy did not attach however, Supreme the Court ruled different- jeopardy and double did not bar the subse Arizona, ly. In Poland v. the Court held quent death Id. sentences. defendants sentenced to death at ¶38 Poland, in Like the defendants the original their sentencing proceeding and appeal defendants on direct all received appeal whose sentences were vacated on can original death sentences at their trials. The be resentenced to death on remand. 476 findings necessary fact-finder made those to 106 S.Ct. at 1753. Both of the impose a death sentence. In no sense a has Poland brothers received death sentences fol- fact-finder concluded that the state failed to lowing their first murder convictions. prove aggravating beyond circumstances Poland, State v. 645 P.2d remand, reasonable doubt. On no defendant (1982). During the greater can receive a sentence than that phase, judge pecuniary failed to find the already imposed. According- which has been because, gain aggravating circumstance like ly, jeopardy we hold that has not attached. judge Rumsey, the trial he misunderstood applying only that circumstance as mur- to a B. 285-86, der for hire. Id. at 645 P.2d at 800- Resentencing Supplement Does Not did, however, 01. The “espe- find the Original Jury Verdict. heinous, cially depraved” statutory cruel or ¶39 aggravating factor and argue sentenced the defen- The defendants also resentencing jeopardy dants to death. Id. at 645 P.2d at 800. violates double supplement C. proceedings because further verdict, thereby violating original The Arizona Constitution. “right to have each defendant’s constitutional completed by particular tribunal.” his trial under Arti- reach the same result We Hunter, 684, 689, 69 Wade v. II, the Arizona cle Section 10 of Constitution. Although 93 L.Ed. 974 Court, interpreted we Superior In Pool v. with the same completing a defendant’s trial Jeopardy more Double Clause the state ideal, jurors a defendant holds no judge or counterpart broadly federal when than its arrangement. right to such an absolute prosecutorial misconduct causes a mistrial. Hunter, fact, Supreme Wade (1984); Ariz. 677 P.2d military conviction in which the affirmed Minnitt, accord State charges dropped from one court-martial were While we to proceeding and re-instituted another consistency be- recognized importance 687-88, accommodate witnesses. Id. law, tween federal and state constitutional we According S.Ct. at 836. necessary diverge from the double found it to Court: jeopardy standards established the Unit- double-jeopardy provision of the Fifth ed Court under the federal States every Amendment ... does not mean that decision turned on the constitution. Our put a defendant is trial before a time to principle purpose of the Arizona competent go tribunal to free he is entitled Jeopardy protecting includes Double Clause judgment. if the trial fails to end in a final facing multiple for the citizens from trials insuperable Such a rule would create an prosecutorial offense because of bad same justice in obstacle to the administration of faith: many cases which there is no semblance type oppressive practices of the at which view, therefore, In our the resolution of double-jeopardy prohibition is, aimed. question jeopardy attaches of when may There be unforeseeable circumstances upon concept enforcing should turn during making comple- that arise a trial its guarantee against constitutional double impossible, tion such as the failure of jeopardy when the to be free from agree to on a verdict. such event trials, multiple which that clause was society purpose protect of law to from guarantee, impaired would be meant guilty frequently those crimes would be intentional, prosecutor’s improper con- by denying power put frustrated courts agree that standards duct. We do not again. the defendant to trial accomplish formulated to cannot be 69 S.Ct. at 837. objectives the clause in situations such as this. ability capi 40 The resentenee jurors (cita- tal defendant a different set of is Pool, at 271 139 Ariz. at 677 P.2d implicit jeopardy in double cases decided omitted). tion Supreme con a death fur 42 The defendants do not face 211, 104 Rumsey, text. 467 at See U.S. S.Ct. jeopardy prosecutorial mis ther because Wade, 2310; 688-89, at 336 U.S. at 69 S.Ct. Moreover, we find no conduct. reason capital original A whose at 837.8 defendant Jeopardy extend the state Double Clause appeal can be sentence is vacated on resen beyond counterpart under these its federal long teneed to death so as the defendant has Therefore, applying facts. we conclude that “acquitted” not of the death sentence. been sentencing does not consti the new statutes Sattazahn, at -, E.g., 123 S.Ct. U.S. Poland, jeopardy under the 738; tute a double violation at at at 476 U.S. 106 S.Ct. 1753. Arizona Constitution. problems wholly impractical. part, recalling most the defendant’s

8. For the guilt phase jury presents logistical original also 1, 8, V. U.S. 119 S.Ct. L.Ed.2d (1999); Fulminante, Arizona v. 499 U.S. Should Defendants Convicted of Murders 279, 306-07, Committed Before the Natural Life (1991). Instead, L.Ed.2d 302 we will review Sentence Became Available Have capital the defendants’ sentences for harm- Their Sentences Reduced to Life if the . less error. Court Reduces Their Sentences? ¶43 Legisla the Arizona ¶ 45 Most errors that we consid ture amended A.R.S. section 13-703 to add a appeal, on involving er even those constitu “natural option life” for defen error, errors, tional constitute trial “which dants convicted of first murder. 1993 during presentation of the occur[ ] case 153, § parties Ariz. Sess. Laws ch. 1. The jury, may and which therefore be stipulate, agree, and we sentence quantitatively assessed the context of oth possibility life parole without the for twen Fulminante, presented.” er evidence ty-five years, life, rather than natural must 307-08, U.S. at at 1264. In S.Ct. cases apply to those defendants sentenced under error, involving trial we consider whether the See, pre-1993 e.g., statute. State v. Bar error, assessed, beyond so was harmless reras, 523-24 n. so, uphold reasonable doubt. If we the ver (1995) (“The 852, 859-60 n. 7 amended stat cases, dict entered. In a limited number of [permitting inap ute natural life sentence] is however, structural error occurs. such here, however, plicable because this case instances, automatically we guilty reverse the date.”). arose before its If effective subse errors, verdict entered. trial Unlike struc quent sentences, proceedings result in life “deprive tural errors defendants of ‘basic these defendants cannot receive natural life protections’ without which ‘a trial criminal sentence; only a sentence of life without the reliably cannot serve its function as a vehicle possibility parole twenty-five years can guilt for determination of or innocence ... apply. punishment may regarded and no criminal be ” Neder, fundamentally as fair.’ VI. Clark, (quoting Rose v. Should Court Review Sixth Amend- 570, 577-78, Ring ment II Error as Structural (1986)). L.Ed.2d 460 Error or for Harmless Error? Court struck 46 The Court has defined capital sentencing relatively

down Arizona’s former few instances which we should they permitted statutes judge, regard because error as structural. Those instances jury, rather than a judge,9 find fac involve errors such as a biased trial II, counsel,10 tors. complete 536 U.S. at denial of criminal defense conclude that We Arizona’s failure to denial of access to criminal defense counsel recess,11 capital during submit element overnight this murder to the denial of cases,12 self-representation does not constitute structural error. in criminal defec instructions,13 Consequently, the Sixth Amendment does tive reasonable doubt ex require jurors automatic reversal of a death clusion of of the defendant’s race from selection,14 imposed grand jury excusing juror sentence under the former sentenc be States, ing punishment,15 statutes. Neder v. United 527 cause of his views on Ohio, 510, 437, Louisiana, 275, Turney 9. v. 47 71 273 U.S. S.Ct. 13. Sullivan v. 508 U.S. 113 S.Ct. (1927). 2078, (1993). L.Ed. 749 124 L.Ed.2d 182 335, Wainwright, 10. Gideon v. 372 U.S. 83 S.Ct. 254, Vasquez Hillery, 14. v. 474 U.S. 106 S.Ct. 792, (1963). 9 L.Ed.2d 799 617, (1986). 88 L.Ed.2d 598 States, 80, 11. Geders v. United 425 U.S. 96 S.Ct. 1330, (1976). 47 L.Ed.2d 592 648, Gray Mississippi, 15. 481 U.S. 107 S.Ct. v. 2045, (1987). 95 L.Ed.2d 622 168, Wiggins, 12. McKaskle v. 465 U.S. 104 S.Ct. 944, (1984). 79 L.Ed.2d 122

553 concluded, omitting an element of the offense In all public a criminal trial.16 of and denial is sort of instances, not the “the entire from the instruction the error infected those Neder, process to trial itself. beginning from end. that taints the process” trial error 8, (quoting at 1833 at 119 S.Ct. U.S. judge, impartial was before an Neder tried Abrahamson, 619, 630, 113 Brecht v. U.S. and proof the standard of under correct (1993)). 1710, 1717, 123 L.Ed.2d 353 S.Ct. counsel; fairly of a the assistance with II turned Ring decision 47 The Court’s selected, to impartial jury was instructed the fact that circumstances upon argument all the evidence and consider of ele equivalent of an as the functional serve the against respect to defense Neder’s offense, greater capital murder of the ment course, errone- charges. the court tax Of II, Ring a than as factor. rather jury on the ously charge failed the to 609, 122 at “Because at S.Ct. 2443. 536 U.S. did materiality, but that error of element aggravating factors Arizona’s enumerated “fundamentally trial not render Neder’s equivalent an operate as the functional unfair,” eases. as is in our that term used greater offense,” Supreme a the element of 9, 119 at at 1834.18 Id. S.Ct. held, requires “the Amendment Court Sixth jury.” they by (emphasis that be found Id. In a decision that followed similar added) (citation quotations II, internal omit ap and again the Ring and Court Apprendi therefore, ted). question, The essential plain judge’s to a .consid plied the error test Arizona’s whether we should characterize jury. properly eration of factor left of the Cotton, failure to submit this element 630- United States U.S. jury as murder offense to the structural 152 L.Ed.2d 860 122 S.Ct. trial error.17 makes en Federal law available drug if the penalties for offenses hanced foreshadowing Apprendi In a decision proves statutory threshold government II, to Ring the Court declined quantity. at 1783. drug Id. at S.Ct. find structural error when the trial' Cotton, allege in government the to failed failed to submit an element the offense quantity of superseding its indictment the States, jury. the Neder United offense, required drugs involved in the as that trial failure to Court held court’s Id. on trial penalty. the enhanced Based materiality instruct the on the element peti testimony, the district court found tax be as of federal fraud should reviewed grams of 19-20, “responsible for at tioner least trial error. U.S. at 119 S.Ct. base,” set ten times amount om- cocaine distinguished The Court an error 1839. imposed penalty, for an in a statute enhanced itting an element of the offense 628, 122 S.Ct. enhanced sentence. from instruction structural error: “Unlike complete Court concluded deprivation such as the at 1784. defects improperly usurped the judge, trial an district counsel or before biased court jury, grand but quantity finding the of- from instruction omits element of 630-33, 122 necessarily plain for Id. at not a criminal reviewed error. fense does render The Court held that fundamentally unfair or an unreliable at 1785-86. trial S.Ct. “overwhelming” and guilt so determining for or innocence.” trial evidence was vehicle Thus, “essentially “the error uncontroverted” that Id. at 119 S.Ct. at 1833. plain Id. at error Georgia, hannless error or review.” 16. Waller v. J., (O'Connor, dissenting). 81 L.Ed.2d not the issue Because Court did consider times, opinion suggests the Court’s 17. At various review, appropriate we do standard Ring II should be considered under error regard these statements as conclusive. First, analysis. Court de- error harmless error, to review the case harmless clined stating Roy, 18. See also California courts be the instead that state should 337, 339, 136 L.Ed.2d 266 II, Ring to do so. 536 U.S. at 609 n. first (holding judge’s on failure instruct Second, commenting at 2443 when n. accomplice liability first an element of upon the fate of death row inmates after decision, the harmless was a trial error which "prison- murder Justice O’Connor stated that II applied). satisfy of error test will be unable to the standards ers fairness, seriously did not the integri affect rect proof. standard of Defendants received ty, public judicial or reputation proceed counsel, the assistance of who were available 632-33, 122 ings.” Id. at S.Ct. at 1786. during phases prosecution. Any all of their error, then, the affected' submission of one ¶ 50 Although Neder and Cotton did element rather than the entire trial did and sentence, capital involve a holdings not their fundamentally not render trial the entire un- a that failure to one submit element of an Neder, fair.19 See 527 U.S. at 119 S.Ct. jury to a offense does not infect the trial 1833. process beginning apply equally from to end superseded here. Under both Arizona’s and ¶ 51 We are the first court reach to schemes, capital sentencing current a defen implementing Ap- this Courts conclusion. phases: trial dant’s of two guilt consists a prendi and have reached a consensus phase and a penalty phase. In the guilt that structural error does not occur a when phase, jury whether decides the defen judge fails to jury to submit an element felony dant committed first or mur crime, required of a by otherwise to be found by der as defined section 13-1105. If A.R.S. jury a under the Sixth Amendment.20 guilty beyond finds the defendant a Matthews, United States v. held court doubt, reasonable the trial continues to the “Apprendi susceptible error to harmless penalty phase. system, the former Under (5th analysis.” error 312 F.3d Cir. found, judge beyond doubt, a reasonable 2002). Appeals The Seventh Circuit required the ultimate complete element to also found “that errors both the indictment capital aggrava murder offense: at least one charge subject and the are ting outweighed by circumstance not one or analysis.” mitigating § harmless-error v. more United States factors. A.R.S. 13-703.E. Dumes, (7th Cir.2002); place Defendants’ took trials thus before 313 F.3d impartial jury, Sanders, who and used the cor- accord United F.3d States conclusion, The disagrees they trials.”); dissent with entirely separate this if were two Hol arguing experienced Mississippi, that land defendants 705 So.2d (Miss. 1997) "[c]omplete (sentencing phase by jury capital denial [the to] trial of a trial trial, Dissent, separate phase sentencing phase____” not a but that of the case V109. Nota sentencing). bly, suggest concerns the dissent does not that the defen by jury, were dants denied a trial and it could single capital Arizona reflect the trial statutes not, denying for the error here resulted not from approach by accepted our court and Su- defendants a trial from the but failure to preme Court. Arizona law refers to the sentenc- capital one submit element of the offense to the ing capital proceeding "penalty as trial's capital comprises just for decision. A addition, phase.” E.g., A.R.S. 13-703.C. trial, guilt sentencing phas one divided and into capital sentencing former and current statutes es, such, always and has been understood as both permit phase use at the of evidence this court and Court. during guilt phase adduced of the trial. See, e.g., California, Tuilaepa v. 512 U.S. (2001), §§ (Supp.2002). 13-703.C 13-703.D 971-72, 129 L.Ed.2d 750 (1994) (holding aggra trier of fact must find one finding Espar- 20. The one case structural error is vating guilt penalty circumstance at either Mitchell, involving challenge a case under za the Tennessee, phase); Payne v. Eighth Amendment rather than the Sixth. In 823, 825-26, 2597, 2604, 2607-08, case, panel two members of the held (1991) (repeated "guilt L.Ed.2d references inapplicable capital harmless error test in a case trial); phase” capital "penalty phase” and where, law, aggravating under Ohio were factors Smith, passim, State v. required charged to be in the but indictment (6th Cir.2002). passim (referring "sentencing phase” were not. 310 F.3d I, "sentencing hearing”); Ring and 200 Ariz. at dissenting judge, concluding The that harmless ¶ 42, (referring “sepa 25 P.3d at 1151 to a applied, error outlined the seminal evidentiary hearing”). only rate courts of defining Court cases the harmless error doctrine we which are aware that have considered the the error concluded that involved did not argument capital that a trial consists of two deprivation protections amount to of "basic with- phases "trials” rather than of one two trial have reliably out which a trial cannot serve criminal rejected approach. the dissent’s Flamer v. guilt Dela its function as vehicle determination of ware, (3rd Cir.1995) ("The X, (Suhrheinrich, 68 F.3d 758-59 or innocence." Id. dis- Neder, guilt phases senting) (quoting trial are 527 U.S. at single (internal parts proceeding, quotation of a and there is no at 1833 omit- marks ted)). they requirement constitutional be treated as

555 Cir.2001) § The first of (4th 13-703.F.1-.2. 139, tíons.22 A.R.S. (citing cases from 150 Fourth, Seventh, Second, Fifth, factors, First, A.R.S. sec- prior conviction Arizona’s holding er- that harmless Eleventh Circuits 13-703.F.1, defen- applies “[t]he when tion cases); v. Johnson Apprendi ror in applies offense in convicted of another dant has been (Nev.2002).21 450, Nevada, 459-60 for under Arizona States which the United prior holdings comport with 52 Those imprisonment of life or death a sentence law Styers, applied v. Arizona law. In State we second, imposable.” The A.R.S. section was error the trial the fundamental test to “[tjhe 13-703.F.2, implicated is when defen- legal judge’s failure to define the “without previously of a serious dant was convicted authority” kidnapping of the offense element complet- offense, preparatory whether 104, jury. 177 instructions v. United In Almendarez-Torres ed.”23 (1993). 111-12, 865 P.2d 772-73 States, judge held that ¶53 Accordingly, we that Arizona’s hold prior to enhance a consider convictions could judge a trial submit the require failure to to by beyond that the facts authorized aggravating circumstance element by jury’s 523 verdict. U.S. established struc- to a does not constitute murder 224, 226-27, 140 118 S.Ct. tural We will the sentences error. review L.Ed.2d 350 these for harmless error. defendants argues The that Almen State

VII. exception Ap establishes an darez-Torres A. prior ag prendi/Ring for the two conviction Apply Aggravating According II gravating Does circumstances. Involving Prior Circumstances State, may constitutionally determine Convictions? any prior conviction. The the existence argue that Almendarez-Torres defendants aggrava- 54 Arizona law two establishes They argue ting prior longer good for convic- law.24 also circumstances criminal no deadly involving weap- use or of a In addition to these decisions threatened exhibition 21. Amendment, dangerous federal held that Sixth courts have on or instrument. Eighth occurring at the Amendment violations Sexual assault. 5. subject error Any dangerous against trial court level are to harmless children. 6. crime States, See, (Louis) e.g., analysis. Jones v. United occupied 7. Arson of an structure. 373, 402-05, 2090, 2108-10, U.S. Robbery. 8. (1999); Mississippi, L.Ed.2d Clemons degree. Burglary in the first 9. 110 S.Ct. L.Ed.2d 725 494 U.S. (1990). Kidnapping. 10. recently, the Court of Most Ninth Circuit under 11. Sexual conduct with a minor fif- imposed Appeals held that death sentence age. years teen unconstitutionally vague jury an instruc when (Supp.2002). § 13-703.H A.R.S. given could be for harmless tion was reviewed aggravating this circumstance oc- Before Crawford, Valerio v. F.3d error. previously was con- "[t]he curred if defendant (9th Cir.2002) ("When a sen state trial court felony involving of a the United States victed part a defendant to on tences death based person.” use or threat of violence on another unconstitutionally vague aggravating circum (1989), § 13-703.F.2 amended A.R.S. stance, appellate ... can find state court 153, § Laws ch. 1. Ariz. Sess. Chapman [386 harmless under error California (1967)].” U.S. 87 S.Ct. L.Ed.2d ignore argue we should The defendants 24. (Citation omitted.)). alleg- Thomas because Justice Almendarez-Torres case, edly repudiated position in that has his change the F.l 2002 amendment did not The 22. thereby "expressly” invalidating the decision. Sess. and F.2 factors. did Apprendi Jersey, Thomas ex- v. New Justice Sess., Laws, Spec. ch. 1. 5th regret voting press with the five member majority. 518- Almendarez-Torres offense” 13-703.H defines “serious Section 23. 2348, 2378-79, 147 L.Ed.2d 435 as: degree murder. First 1. supposition as to Justice defendants’ Second murder. 2. view, however, comport with Manslaughter. does Thomas’s 3. decision in Satta- Court’s recent Aggravated resulting serious assault use, Pennsylvania, physical injury or committed zahn F.l and F.2 [by judge].” circumstances cided a Id. at 118 S.Ct. at prior do not fit within excep- (quoting conviction 1231 Virginia, Graham v. West Alternatively, tion. they argue 616, 629, 583, 588, that the Ari- U.S. 32 S.Ct. 56 L.Ed. 917 (1912)). jury guarantee zona Constitution’s trial supplant should Almendarez-Torres and re- term, 58 In its next the Court decided a quire a prior determination of convic- revised, similar case and reached a but con- reasons, tions. following For the we hold sistent, conclusion. In Jones v. United that Almendarez-Torres remains effective States, the Court prosecu- held that federal and that the Sixth Amendment does not re- allege tors must prove, the indictment and quire prior determine convictions beyond doubt, a reasonable an element of the

under sections 13-703.F.1 and F.2. jacking federal car statute lower courts previously regarded sentencing had as a fac- Aggravating 1. Prior Conviction Cir- 227, 229, tor. 526 U.S. cumstance. (1999). case, 143 L.Ed.2d 311 In Jones’s bodily injury provided serious the additional 56 First we consider whether Arizona’s element. Id. at 119 S.Ct. at 1218. Not- statutory aggravating prior circumstance for withstanding decision, its the Court reaffirm- convictions falls within the Almendarez-Tor- every ed “not expanding that fact exception. penalty res In cases handed down within range must in felony be stated past years, indictment” Supreme five Court con- expressly and distinguished sistently sentence en- statutory provision has stated that a prior hancements for criminal permitting penalties convictions increased when defen- statutory from other dant elements because the prior has a operates conviction as a traditionally regards law sentencing “recidivism as a enhancement and not as an ele- factor, sentencing not as an element to be set ment of a criminal offense.25 248-49, out in the indictment.” Id. at cases, 57 In two Court defen- S.Ct. at 1226-27. appeared The Court less dants challenged sentencing enhancements concerned with the fact that Jones involved a government when the failed allege Sixth challenge, Amendment while Almenda- factor increasing penalty their in the indict- not, did than with the fact that rez-Torres Almendarez-Torres, ment. the Court sentencing prior enhancements for convic- held prior that a conviction need not be tions serve a penological purpose. traditional alleged in a criminal indictment. 523 U.S. 226-27, 118 1222. The Court first Congress concluded that intended to use re- 59 The prior Court revisited the convic- cidivism sentencing as a factor and not as a tion Appren- sentence enhancement issue 230-31, di, substantive element. Id. at year decided Ap- one after Jones. at 1226. It then provi- noted that recidivist prendi, statutory held Court that a sions traditionally exclusively are used provision as providing penalty an increased factors, pointing out that no fed- when a crime was motivated “hate” in- eral criminal statute contains recidivism as a enhancer, volved not a sentencing but an statutory element. Id. at S.Ct. at element of the offense. 530 U.S. penalties 1231. Enhanced repeat for offend- 120 S.Ct. at 2363. Consequently, the Sixth ers do “not relate to the commission of the right required Amendment offense, go[ punishment but only, ] to the determine the element’s existence may and ... subsequently therefore be penalty de- before the enhanced could im- be case, vote-counting L.Ed.2d 588 In Jus- before the Court announces its particular joined decision on a separate tice Thomas issue. Justice Scalia's stated, dicta, opinion which that "the exis- continuously prior 25. The Court refers to the (other conviction) any prior tence of fact than a exception Ap- conviction enhancement as an increaspng] punishment may the maximum Sattazahn, -, prendi. E.g., 537 U.S. at imposed be ... constitutes an element [of the 739; Cotton, S.Ct. at 625, 627-628, United States v. at-, (emphasis offense].” Id. 123 S.Ct. at 152 L.Ed.2d added). language dangers This demonstrates the (6th Gatewood, Cir.2000); 230 F.3d posed. Id. at S.Ct. at 2362-63 Pacheco-Zepeda, 234 increases the F.3d (“[A]ny fact that United States v. (9th Cir.2000) (“If statutory beyond prescribed views of a crime jury, justices submitted to maximum must be Court’s individual doubt.”). same, proved beyond a reasonable composition remain of the Court distinguished its carefully view that may eventually be over Almendarez-Torres ruled.”) prior are not of an of- convictions elements at (citing Apprendi, 120 S.Ct. 2362 holding (“[I]t fense and structured its to exclude arguable that Almendarez-Torres prior its at convictions from reach. decided, logical that a incorrectly was and 487-90, 120 at 2361-63. S.Ct. today reasoning application of our should if apply the recidivist issue were contest ¶ found Apprendi 60 The Court no need to 309, ed.”)); Harrod, 200 Ariz. State v. 318 prior question submit the of convictions to ¶ (2001) 44, 492, (rejecting 26 P.3d 501 defen because, factors, prior the unlike other argument implicitly Apprendi dant’s that already had been convictions established Walton), grounds on other overruled vacated through proceedings incorporating procedur- 953, Arizona, by Harrod v. 122 al safeguards: (2002) (mem.). 2653, L.Ed.2d 830 S.Ct. 153 certainty procedural Both that safe- system requires Our constitutional adherence guards any “fact” prior attached to of con- the rule of in Almendarez to law established viction, reality that and the Almendarez- unequivo Torres unless and until the Court challenge accuracy Torres did not I, cally disapproves holding. Ring its 200 case, mitigated that “fact” his the due ¶ 44, Ariz. at P.3d at 279-80 25 1151-52. process and Sixth Amendment concerns implicated allowing judge otherwise a to Appellate 2. Lower Federal and State increasing “fact” punishment determine a Courts. beyond statutory range. maximum Thus, 530 120 U.S. S.Ct. 2362. consistently implemented 62 Courts have permitting judge a to decide “fact” of a Apprendi both and Almendarez-Torres. prior does not raise conviction Sixth Amend- Apprendi, many cases decided after defen- concerns; ment those convictions are them- facing prior dants conviction sentence en- products selves of Sixth Amendment —com- Apprendi had argued hancements that either pliant proceedings. upon overruled or Almendarez- cast doubt universally reject argu- Torres. this Courts ignore cannot 61 We two cases can recognize ment and that the be interpreting Court decision federal law un by construing harmonized Almendarez-Tor- expressly less the Court overrules or casts Apprendi’s general exception res as the to cognizable Agosti doubt on that decision. In Martino, E.g., rule. States v. 294 United Felton, ni v. the Court stated: (2d Cir.2002); F.3d United States acknowledge, We do not and we do Stone, (5th Cir.2002); F.3d hold, that other courts should our conclude Araneta, Cherry v. 533-34 have, by implication, more recent cases (App.2002); 57 P.3d State v. 392-93 Ken- precedent. an earlier overruled We reaf- (Kan.2002). dall, 667-68 precedent firm that Court has “[i]f this decision, explaining the Ninth its Circuit ease, yet application appears in a direct Appeals Court of stated: rejected in rest on reasons some other line decisions, court] lower should follow [the Apprendi, It is true that Court directly controls, leaving case which expressed about Almendarez- reservations prerogative overruling this its Court However, reasoned Torres. the Court that own decisions.” any process due or Sixth Amendment con- judicial arising out of the determi- U.S. cerns — punish- (quoting de nation of a “fact” that increased Rodriguez L.Ed.2d 391 Inc., beyond statutory Quijas ment maximum— Exp., Shearson/American mitigated were in Almendarez-Torres (1989)); certainty procedural that safe- “[b]oth accord United States v. L.Ed.2d guards any prior attached to ‘fact’ of judge. con- be determined Almendarez- viction, Torres, reality [the defendant] 523 U.S. at Moreover, challenge accuracy did not of that ‘fact’ under the pre-Ring capital II sen Thus, scheme, in his Apprendi tencing case.” legislature clearly Court in Almendarez-Torres, chose not prior to overrule tended convictions to be fac unmistakably exception carved out an tors and not substantive elements of “prior See, convictions” specifically pre- e.g., murder. A.R.S. 13-703.F-.G holding served the (Supp.2001) (instructing Almendarez-Torres. the court to consider deciding circumstances when (citations Pacheco-Zepeda, 234 F.3d at 414 which impose). sentence to omitted). We reach different conclusion for consistently 63 The has those defendants for judge whom the trial legislatures may permit held aggravating found an F.2 prior circumstance impose an upon increased based a defendants, to 1993. As to those determin- defendant’s recidivism. We therefore con- ing presence required of the F.2 factor clude that the Sixth Amendment does not finding; additional fact require needed to jury a prior to find convictions be- go beyond prior the mere fact that the con- yond a reasonable doubt. viction existed. Aggra- 3. F.l and F.2 Prior Conviction ¶ require 68 Arizona amended the vating Factors. finding ments for an F.2 factor in 1993.26 ¶ 64 Several defendants whose cases amendment, Prior to the 1993 section 13- are appeal consolidated this received death permitted finding 703.F.2 aggravating this based, part, sentences upon prior least pre circumstance when defendant was “[t]he findings conviction sentencing made a viously felony convicted a the United

judge. Following teachings of Almenda involving States the use or threat violence rez-Torres, Apprendi, Jones and we hold person.” § on another A.R.S. 13-703.F.2 that the Sixth Amendment require does not added). (emphasis State law did not remanding resentencing these cases for on define “violence” this context. In United the F.l F.2 and circumstances. Breitweiser, pointed States the court out: prior 65 The characteristic of a conviction If permitted a recidivist statute enhance aggravating apart circumstance that sets it proof underlying ment on based con original from other circumstances that duct, however, questions factual could arise proceeding, through criminal guilty either a exactly as to what conduct the defendant plea guilt, or a verdict of established the engaged Typically, ques in. such factual circumstance. No additional benefit derives province are within jury tions of a and having jury from a re-find an aggravating this Court doubts that the already through circumstance established ap would construe Almendarez-Torres as guilty plea jury or a pro- verdict. At each plying to such situations. ceeding giving prior rise to the criminal con- (N.D.Ga.2002). 1374, 1379 F.Supp.2d We

viction, right defendants either waived their agree that finding when an additional must jury jury to a trial or received a determina- beyond prior be made the bare fact that a guilt, procedural safeguards pro- tion and exists, conviction the Sixth Amendment de against tected the defendant constitutional jury perform mands that a this task. That Moreover, violations. each defendant had an situation can arise for defendants F.2 whose opportunity appeal his conviction. depended upon finding prior factor that a aggravating 66 The F.l F.2 involving circum- conviction reflected a crime the use contemplate punish- stances a more severe threat violence. None of the consoli persons ment for who continue to commit dated defendants were sentenced under such Therefore, jurisprudence traditionally crimes. Our has circumstance. none of these viewed recidivism as a factor to cases involve a Sixth Amendment violation 153, 26. 1993 Ariz. Sess. Laws ch. jury jury impartiality or access issues judge’s finding of one or more F.2

based on a case Apprendi/Ring circumstances. issue. Carlson rejected expansive interpretation of the an Arizona 4. The Constitution. because we were unwill- Arizona Constitution This court has held that beyond precedent in ing to move federal this Sixth Amendment Arizona Constitution’s only holding in means area. Our Strohson II, 23,27 analog, provides sub Article Section trial for that a defendant is entitled stantially right to a trial as the same minor crimes for which the federal certain does the Sixth Amendment. State Carl require a trial. constitution does not son, (2002). Nevertheless, the defendants facts, then, these we hold 72 Under urge us to look to the Arizona Constitution to II, substantially provides Article Section requirement prior ag conviction find a right as does the Sixth same by gravating circumstances must be found Amendment. jury- ¶70 They point to two decisions. The B. Carlson, first, rejected argument an State the Arizona constitutional Aggravating Finding of an Can impartial jury provides greater protection Implicit Be in the Circumstance against than the federal constitution does Jury’s of Verdict Conviction? pretrial publicity affecting pool. Id. ¶¶ ¶ at 576-77 48 P.3d at 1186-87. We parties asked the to discuss 73 We stated that our constitution does not afford any aggravating could whether circumstance any greater protection against to defendants necessarily jury’s derive from a verdict of pretrial coverage media than does the federal murder, degree conviction for first either ¶ 18, Id. at 577 constitution. 48 P.3d 1187. in standing alone or when considered con- ease, McDougall The second ex rel. State junction contemporaneous with other convic- Strohson, held that Arizona’s Constitution argues pecuniary gain, tions. The State traditionally provides greater access to 13-703.F.5, other homicides A.R.S. section required by trials than that the federal con during the commission of the of- committed 120, 121-22, Ariz. stitution. 190 945 P.2d 13-703.F.8, fense, age section and of A.R.S. 1251, 1252-53 con Under federal seventy years than or victim less fifteen stitution, only punishable by crimes more 13-703.F.9, older, years can or A.R.S. section jail by than in a six months must be tried logically in a verdict. The defendants inhere jury. Id. at 945 P.2d at In in 1253. argue aggravating circumstance can that an in stances which a defendant can be sen implicit. never be jail, tenced to less than six months contrast, a our constitution demands ¶ pecuniary gain 74 We hold that the quality charged, trial if “the moral of the act usually multiple aggravators and homicide relationship and to law its common crimes” However, implicit jury’s in a verdict. are not requires guilt.28 a determine implicit in the age of the victim can be decisions, verdict, jury simultaneously if the convicts relying 71 In on these the de- of an offense that includes the fendants overlook the distinction between the defendant Const, II, § provision art. 23. 27. That states: Ariz. by jury shall remain inviolate. The of instance, the crimes of 28. we have held that a For Juries in criminal cases in which sentence of influence, imprisonment years thirty driving v..Superi- death or for or more under the Rothweiler Court, (1966), twelve is authorized law shall consist of 410 P.2d 479 or 100 Ariz. persons. In all criminal cases the unanimous possession marijuana, ex rel. Dean v. State jurors necessary of the shall consent be (1989), Dolny, 778 P.2d 1193 161 Ariz. cases, the render a verdict. In all other num- though they punisha- require jury are trial even six, jurors, than and the number ber less jail. ble less than six months verdict, specified required to render shall be by law. gain aggrava- age (affirming pecuniary victim as an element of 701 of the murdered ting the crime.29 circumstance where defendant killed robbery). escape facilitate after Pecuniary 1. Gain. pecuniary gain The factor thus ¶ 75 section 13-703.- Under A.R.S. jury’s requires than conviction of a more F.5, aggravating circumstance exists when defendant for first murder and rob a murder is committed “as consideration for bery burglary. or The fact-finder must draw receipt, expectation receipt, or in of the separate conclusion the defendant anything pecuniary value.” A.R.S. killed, part, pecuniary at least for motive. pecuniary gain § 13-703.F.5. To establish the reason, For that we cannot conclude that circumstance, the state must jury finding pecuniary gain inheres in its prove that the murder would not have oc robbery burglary verdict. pecuniary defendant’s mo curred but 278, 296-97, Harding, tive. State Therefore, apply a we will 394-95 analysis pecuniary gain harmless error ¶ Determining whether a defen instances in rea factor. those which no pecuniary gain dant murdered his victim for jury could that the state failed sonable find highly inquiry. requires a fact-intensive beyond prove pecuniary gain motive state between must establish connection doubt, reasonable we will find harmless error through the murder and motive direct or instances, affecting we that factor. other strong circumstantial evidence. State Ca II re will consider whether the error nez, P.3d quires resentencing. that we remand for (2002) (holding only murder of victim and robbery powerful “is witness to circumstan Multiple Homicides. escape” tial evidence of an intent to facilitate motive); supports finding pecuniary per 80 A.R.S. section 13-703.F.8 Gillies, 500, 512, Ariz. 662 State v. 135 P.2d judge aggravating mits a to find an circum (1983) (“Without 1007, tangible 1019 some stance if defendant has been convicted “[t]he evidence, inference, strong or circumstantial homicides, of one or more other as defined it is for the court to conclude not during § that were committed the taken, money that because and items were § A.R.S. 13- commission of the offense.” purpose pecuniary was the the murder factor, gain pecuniary As the 703.F.8. with gain.”). requires this factor the state to establish ¶ jury Complex require fact more than that the convicted the defen situations care- analysis ful before a fact-finder dant of first murder and one or more attention confidently pecuniary occurring homicides around the same can conclude that ends other Instead, killing. place all must take motivated the When the state con- time. homicides currently during course of criminal prosecutes capital defendant for “one continuous instance, and, Rogovich, 188Ariz. degree murder for rob- conduct.” State first 794, (quoting bery, resulting 932 P.2d State both crimes from the same Ramirez, occurrence, P.2d not the 178 Ariz. the state does establish (1994)). simply by showing This conclusion can be drawn pecuniary gain factor that Rather, analyzes “the tem robbery only after the fact-finder occurred. the state as- relationships showing poral, spatial, and motivational sumes the additional burden of that motive, cause, collat impe- capital homicide and the pecuniary gain was “a between [homicide], merely as well as ... the nature of for murder and not the result eral tus identity Kayer, that and the of its victim.” [homicide] of the murder.” State v. 194 Ariz. Lavers, (1999); see, e.g., (quoting Id. State v. 984 P.2d (1991)). Lee, 814 P.2d State however, change the F.9 change make a technical The 2002 amendment did not the F.5 29. aggravating circumstances. 2002 Ariz. and F.8 Id. factor. Laws, Sess., did, Spec. § It Sess. 5th ch. 1. victim, proceedings compli- through criminal jury convicting a de 81 A verdict Ap- safeguards. ant Amendment more homicides does not with Sixth fendant of two or 488, 120 prendi, at 2362. multiple aggra homicide itself establish circumstances, jury’s implic- finding that Under these vating circumstance. Without the F.9 finding age it the victim’s satisfies temporally, spatially and the murders are related, jury motivationally aggravating the bare verdict circumstance. aggrava implicitly support not the F.8 does judge If trial found the

tor. convicted the F.9 factor and the also age-dependent an crime com defendant of af find harmless error 82 We will victim, we will against mitted the murder fecting in which no this factor those cases any Ring II harmless. Other find error find that the state reasonable could may involve harmless er circumstances beyond a prove failed to the F.8 factor rea include, example, those instances ror instances, doubt. In other we will sonable stipulated age of the defendant to the which Ring II requires consider whether the error overwhelming in which evidence the victim or resentencing. that we remand for in age. the victim’s. other establishes II Ring stances, whether the Age we will consider Victim. remand for resentenc requires error we ¶83 A.R.S. section 13-703.- Under ing. F.9, aggravating exists an circumstance committed, when, at the time murder was C. ... or tried defendant was adult as “[t]he person an adult the murdered under was Aggravating If Factor Was Not Sub- One years age seventy years II, fifteen or was ject Ring Implicitly Found Was age or older.” A.R.S. 13-703.F.9. The Jury or it Was Otherwise Obvi- straightforward; ages of the statute is Aggravator Has Been ous that One aggravator. offender and victim invoke the Beyond a Reasonable Established Medina, ¶23, Ariz. at 511 975 P.2d at Doubt, Is There Need for Resentenc- (holding aggravating this circumstance ing? finding require does not further if asserts that 87 The State age). defendant was aware of the victim’s implicitly found one factor or jury’s finding implicit The F.9 in the ver subject found one factor dict if the convicts the defendant of first II analysis, uphold can we degree murder and another crime committed by judge the trial harm- imposed sentence as age against the murder victim in which the argument upon relies less error. The the victim constitutes a substantive element sentencing superseded fact that Arizona’s of the crime. eligible” scheme rendered a defendant “death ¶ I, instances, In criminal Ring some Arizona’s if factor aggravating one existed. ¶ young age defines crimes based on the code Ariz. at 279 25 P.3d at 1151. Noth- II, example, person a com- of the victim. For ing Ring argues, prevents a in the State “by intentionally child molestation or finding mits and suc- from the second causing person factors, to knowingly engaging in or a as well as find- ceeding aggravating contact, engage except in sexual con- balancing sexual them ing mitigating factors and breast, female with a child tact with the against aggravator. years age.” A.R.S. 13-

under fifteen Ring II reading A narrow 1410.A may judge to decide the existence permit a in the circum aggravating factors age the victim’s consti additional 85 Because As the State the State. of certain crimi stances described tutes a substantive element contends, government establishes offenses, once the necessarily a reflects nal conviction factor, any aggravating a defendant becomes victim was less determination that the sense, in and estab eligible” “death the strict years old. The will have than fifteen fact, aggravating factors does necessary age lishing additional already found verdict, jury’s guilty or otherwise established eligible. a defendant “more” death not render not, itself, view, however, in Ring beyond II not be a reasonable doubt does In should our Although capital narrowly. the Court that a defendant’s sentence read that establish based considered a death sentence error. there resulted from harmless single aggravating upon the of a existence factor, Ring requires II we conclude that D. urged aggravating all factors to consider Resentencing Ring Require if a II exempt Does either from by the state and not verdict, Did II, Defendant or Not Chal- jury’s Conceded implicit in the lenge Aggravating Found Factors beyond a reasonable

otherwise established by the Trial Court? doubt. that if a defen- 91 The State contends Another factor leads us to con stipulates to facts sufficient establish dant adopt the State’s

clude that we should challenge evident, aggravating factor or fails procedures an argument. As is circumstances, that any aggravating more not reflect sen one or urged the State do legis failure renders error adopted by our factor stands. The tencing procedure ever essentially over- superseded and current harmless and establishes lature. both schemes, sentencing legislature whelming, undisputed proof of that factor’s capital responsibili argue that nei- assigned same fact-finder The defendants existence. miti ty considering aggravating both failure to contest waives ther concession nor factors, determining gating aggra- as well as for trial on a defendant’s factors, when com mitigating whether the exist vating factors. Substantial differences leniency. aggravators, call for an pared with the decision to concede between defendant’s stat judge, superseded under the a defendant’s aggravating Neither circumstance and statutes, utes, jury, under the new cir- nor the to contest an decision not penalty cumstance, unless those impose distinguish can the death we between mitigating factors entity that the concludes situations. sufficiently to call for are not substantial Cotton, the Su- United States (Supp.2002) §§ leniency. A.R.S. 13-703.E reviewed a case which preme Court process in (Supp.2001). The and 13-703.F respon- not contest an element defendant did determining mitigating whether

volved enhancement. 535 U.S. sible for his sentence imposing the death prohibit factors L.Ed.2d 860 part in Arizona’s plays important required Apprendi The issue was whether speculate will not scheme. We sentence under a fed- vacating an enhanced impact proposal would about how the State’s gov- criminal statute when eral narcotics process. Clemons v. Missis this essential indictment failed to include ernment sippi cocaine, a fact essential to the amount of (“In situations, some L.Ed.2d 725 Id. at justifying enhanced sentence. may appellate court conclude a state n. 3. 633 n. appellate ... make peculiarities a case error, plain the Court examining for After analysis extremely specula error harmless Apprendi error under found no reversible v. impossible.”); see also Johnson tive or presented over- government the because (Nev.2002)(as Nevada, applied to 59 P.3d 450 essentially evi- whelming uncontroverted law, weigh requires jury II to Ring Nevada at trial. amount of cocaine base dence of the under Ne aggravating factors mitigating and 3; 3, n. 122 at 1786 & 633 & n. Id. at to requiring the fact-finder statute vada’s Smith, F.3d v. 282 see also United States mitigating circum find whether further (9th Cir.2002) 758, (holding Apprendi 771-72 aggra outweigh to the are sufficient stances defendant failed to where error harmless circumstances). vating drug quanti- establishing contradict evidence stating ¶ object jury to instruction ty or hold that 90 therefore We found); drug quantity need not be aggravating factors threshold or more presence of one States, F.Supp.2d II, 129 v. in the Robinson United exempt Ring inherent either from 563 (1993) (“Harmless-error (S.D.N.Y.2001) analysis (holding to L.Ed.2d 180 failure 632 only reviewing court triggered drug quantity jury to did not submit issue after been commit- did not chal- discovers that an error has prejudice defendant when he amount). ted.”). defined consti- Only after the Court lenge the sentencing proce- in Arizona’s tutional error in which a defendant cases error question did the whether such dure stipulates, confesses or admits to facts suf penalize arise. will not was harmless We aggravating an circum ficient to establish failing anticipate to State for Court’s stance, regard we will that factor as estab holding Ring II. inquiry lished. Our harmless error then whether no reasonable focuses on ¶ Moreover, the Arizona Constitu mitigation ad could find that evidence independent obligation on imposes tion an during penalty phase is “suffi duced judiciary to a case “for the state reverse leniency.” ciently to call for substantial pleadings proceedings or technical error § be A.R.S. 13-703.E. Unless we conclude appear upon the whole case it shall when yond a reasonable doubt that would justice has been done.” substantial sentence, impose remand a death we must VI, (2001); § Ariz. art. accord Const. § resentencing. the ease for See 13- (2001). If error is harm A.R.S. 13-3987 703.E; States, Neder v. United 527 U.S. less, cases, jus in these or other substantial 1827, 1838, 119 S.Ct. L.Ed.2d tice has been done. (1999); Bible, 549, 588, State v. (1993). infra, 858 P.2d See Sec F. tion VIII. Require Amendment Does Sixth simply 94 When a defendant fails Jury Findings Enmund to Make Tison challenge aggravating circumstance at Capital Felony Murder Cases? penalty phase, the state retains the bur proving aggravator’s den of existence degree felony 97 In cases of first beyond a reasonable doubt. See State v. convictions, an Enmund-Tison find murder

Spreitz, 190 Ariz. 945 P.2d Eighth ing satisfy be made to must (1997). inquiry Our then becomes proportionality Ti Amendment’s standard. whether the state has met its burden. If Arizona, son v. U.S. factor, reasonable doubt exists as to this then Florida, (1987); 95 L.Ed.2d 127 Enmund v. remanding we must consider for resentenc 782, 102 73 L.Ed.2d 1140 ing. Arizona, the trial makes Greenway, finding.

this State v. See E. The requires argue II defendants Can State Raise Harmless Error findings jury. Enmund-Tison be made if It Did Not Make That princi We hold that the Sixth Amendment Argument Below? ples Apprendi/Ring require do not argue 95 The that the defendants findings. make Enmund-Tison argument by State waived its harmless error failing prior stage litiga Eighth to raise it to this Amendment’s Cruel prohibits disagree. tion. Until and Unusual Punishment Clause We Arizona, punishments overruled the State “all which their excessive Walton severity greatly dispropor argue length that failure to obtain are had no reason charged.”30 findings as to factors consti tioned to the offenses Weems Fretwell, States, at all. Lockhart tuted error United (1910) 2, 113 2, 122 544, 551, (quoting 369 n. 842 n. 54 L.Ed. 793 O’Neil U.S. S.Ct. through required, Clause of the Four- 30. "Excessive bail shall not be nor ex- the Due Process California, imposed, cessive fines nor cruel and unusual teenth Amendment. Robinson Const, punishments 8 L.Ed.2d inflicted.” U.S. amend. U.S. 82 S.Ct. Eighth applies VIII. The Amendment to states (citation Vermont, 323, 339-40, omitted)(emphasis 12 S.Ct. Id. and footnote U.S. 693, 699-700, (Field, J., added). 36 L.Ed. 450 terms, dissenting)). capital punishment ¶ 100 conclude that this We dis Eighth requires Amendment courts to Apprendi tinction withstands II. carefully imposed consider death sentences findings sentencing Enmund-Tison affect felony on defendants convicted of murder. very differently findings aggra than do of Arizona, In Enmund v. Florida and Tison v. vating if circumstances. Even a is sat imposed Eighth Court Amend- isfied that the all stat state has established punishment ment cruel and unusual re- murder, utory capital felony for elements capital felony straints in murder The cases. circumstances, including aggravating Eighth princi- that Court held Amendment judge must remove the defendant from the ples forbid a state from to death a death-eligible class of defendants otherwise felony defendant “who aids and abets a in the if she cannot make Enmundr-Tison find by course of which a murder is committed ings. question The is not whether kill, attempt others but who does not himself whether, given state has met its burden but kill, killing place or intend that a take state, culpable a defendant’s mental employed.” that lethal force will be En- government impose capital punishment can mund, at 458 U.S. 102 S.Ct. at 3376. Eighth consistent with the Amendment’s later, Tison, years in Five the Court refined proportionality That threshold. determina prior by holding “major par- its decision tion involves not a Sixth Amendment committed, ticipation felony in the combined Eighth but rather an Amend life,

with reckless indifference to human proportionality analysis, traditionally ment satisfy culpability sufficient to the Enmund prerogative judge. of the As the Caba requirement.” 107 S.Ct. at na Court stated: 1688. decision a already [T]he whether sentence is so The has ad- disproportionate Eighth question

dressed the whether a must as to violate the case, any particular findings. make Enmundr-Tison Amendment like Cabana Bullock, questions bearing crim- the Court held that the federal other on whether a require rights does a constitution not to deter- inal defendant’s constitutional have a culpability capi- violated, mine defendant’s level of long been has been viewed as one felony tal murder appellate cases. U.S. that a trial anor court is fully competent 88 L.Ed.2d 704 to make. Foreshadowing recent its Sixth Amendment 386, 106 Id. at decisions, distinguished the Court Enmund ag 101 The difference between statutorily from the defined elements of a gravating ele circumstances as substantive Apprendi: substantive offense at issue greater ments of a offense the Enmundr- ruling Enmund does not concern [0]ur findings capital on Tison as restraint sen guilt or innocence of the defendant —it tencing Appren dictates our decision no the crime establishes new elements of di/Ring require findings to does not these be by jury. murder that must be found jury. Amend made Sixth Rather, as the Fifth Circuit itself has rec- assigns jury responsibility ment ognized, Enmund “does not affect determining statutory whether all criminal any state’s of- definition substantive Therefore, elements exist. a defendant can fense, 'capital even offense.” Enmund particular sentence unless a receive only principles propor- holds jury finds all the elements of the offense tionality Eighth embodied in the Amend- charged. (citing Id. at imposition ment of the death bar Louisiana, may Duncan v. upon persons nonethe- class who (1968)). 20 L.Ed.2d 491 The Enmundr- guilty less be of the crime of mur- hand, is, findings, operate Tison on the other as der as defined state law: that judicially did not crafted instrument used mea class murderers who themselves kill, kill, attempt propprtionality between a defendant’s or intend to kill. sure added);31 (emphasis § see im- 13-703.E culpability criminal and the sentence A.R.S. § a trier of conceptu- are also Id. 13-703.01.H. Because posed. These two rules of law mitigating cir- constitutionally fact must determine whether ally and distinct. We hold leniency, will affirm a require not cumstances call for we that the Sixth Amendment does conclude, beyond capital only if we jury, judge, rather than a make En- sentence that a doubt, that no rational trier of findings. reasonable mundr-Tison mitigating fact determine that the cir- would sufficiently cumstances were substantial VIII. leniency. If we reach that call for cannot conclusion, and we must find reversible error Conclusion. sepa- resentencing. remand the case for In aggravating circum- 102 Our review opinions, individually we will consider rate produce stances will one of several results. defendants, applying of these sentences cases, In of these consolidated our re- some opinion. set forth in this standards conclusion, beyond view will not allow the REBECCA WHITE CONCURRING: doubt, reasonable that the error did not con- RYAN, and D. BERCH MICHAEL Justices. In tribute to or affect the sentence. cases, those we must remand for resentenc- (Retired), FELDMAN, concurring Justice ing. part dissenting part: in and in majori- I105 dissent from Part VI of the aggravators 103 Other cases will involve ty opinion agree I cannot that the because regard that we will as established. In some complete separate absence of the cases, aggravating of those factors fall capital sentencing proceeding that deter- analysis. II outside the Others will eligibility for death mines defendant’s aggravating involve in the factors inhere for In is reviewable harmless error. jury’s stipu- or to which a verdict defendant view, my jury in the denial of a the sentenc- yet instances, lated. other the evidence ing phase a defect in the fundamental presented sentencing hearing at trial and the mechanism of the trial and is therefore struc- may sufficiently overwhelming be that we error; tural death thus the sentence should will conclude no reasonable would have only required by be vacated. This is beyond failed to find the factor established logic teaching long but is the of a line of our instances, reasonable doubt. Even these eases. however, one further can af- determination analysis.

fect our harmless error held, just recently in 106 We have for stance, that the erroneous exclusion for cause require 104 Arizona’s statutes prospective jurors error was structural presence more than the of one or more statu Anderson, required reversal. State v. torily aggravating impose defined factors to ¶23 314, 324, ¶23, Ariz. P.3d penalty: the death for To hold otherwise review determining impose slip whether to a sen- harmless error would lead us “down a justify imprisonment, pery slope tence of death or life that could be used to over looking every fact trier of shall take into account the structural error deni [such as] mitigating circumstances al of a trial or the to counsel.” Id. ¶¶ ¶¶ 21-22; proven. that have been The trier of fact P.3d at see impose Henley, if the trier shall sentence of death also State v. (1984) (structural 1220, 1224 try aggrava-

of fact finds one or more of the P.2d error to ting eight-person jury when consti circumstances enumerated subsec- defendant to twelve-person jury guaranteed F tution for tion of this section and then determines Luque, mitigating charged); there are no circumstances crime State v. (trial 1244, 1246 198,200, leniency. (App.1992) sufficiently substantial to call legislature’s post-Ring by jury, amendments to waiver of trial the court. 2002 Ariz. 31. The II Sess., replaced Laws, "trier of Spec. section 13-703 fact,” "court” with ch. Sess. 5th or, referring of a cases 566 fundamental, jurors wrong capital sentencing proceeding);

to number of to Arizona v. error). 203, 209, Rumsey, structural 467 U.S. 104 S.Ct. (1984) (Arizona 81 L.Ed.2d 164 ¶ If, held, 107 as we have it is fundamental sentencing proceedings resemble a trial for erroneously and structural error to exclude clause). purposes jeopardy of the double jurors potential try a defendant to an This was our view also. See State v. Rum- jurors, insufficient number of it is difficult to (1983). sey, Ariz. 136 665 P.2d 48 deprivation by jury see how of trial at the ¶ Complete by jury 109 of denial trial at capital sentencing phase can be less errone- therefore, sentencing phase, would seem plain: simply impos- ous. The reason is it is preclude analysis. to harmless error The predict jury sible to what a would have done right by jury trial is “fundamental to the Smith, if impaneled. one had been State justice.” American scheme Duncan v. 333, 339-40, P.3d 394-95 Louisiana, 145, 149, 391 U.S. 88 S.Ct. (App.1999). Appellate review of such error 20 L.Ed.2d 491 The measuring is not “like the effect of erroneous Court has now held defendants were entitled evidentiary rulings against weight the overall jury sentencing phase to a at the to deter- properly admitted evidence. Errors in- alleged aggravating mine the existence of the volving composition jury of the court or factors but were denied that constitutional legitimacy proceeding, affect the entire 584, 609, right. Ring v. Arizona 536 U.S. leaving nothing weigh to measure or 2428, 2443, 122 S.Ct. L.Ed.2d Anderson, requiring reversal.” 197 Ariz. at II). noted, (Ring in As Arizona denial of a 323, 22, 4 P.3d at 22. The error in jury trial is structural error. The same rule errors, these cases is unlike trial which can system. in the obtains federal Sullivan v. “quantitatively in be assessed the context” of Louisiana, 275, 281-282, 508 U.S. 113 S.Ct. Fulminante, all the evidence. Arizona v. (1993) (the 2078, 2083, 124 L.Ed.2d 182 de- 279, 307, 1246, 1264, U.S. privation jury unques- of the to a trial L.Ed.2d 302 error). tionably qualifies as structural concludes, however, majority The majority rejects 110 The this conclusion any part the failure to submit of the supports its decision on the basis of aggravating determination of circumstances States, Neder v. United U.S. Op. to a was not structural error. at ¶44. (1999). Op. 144 L.Ed.2d 35 ¶44. agree. majority I cannot As the ex- rely But it Neder and the cases on are II, plains, capital sentencing prior Ring in error, cases of trial not error the structure proceeded phases, guilt trial two or mechanism of the trial. Neder was tried ¶¶ phase sentencing phase. Op. and a 7- present during to a which was the entire first, jury, 13. The before was concerned The error consisted of the trial .trial. only question acquit- with the of conviction or failing jury materiality, to instruct the on one tal of the crime of first murder. The of the elements of the crime of tax fraud. second, tried to the court under Arizona’s Neder, The difference is that in was statute, prior sentencing only concerned was evidence, presented all of the and the with aggravating with the issue of factors and Neder, materiality issue of was uncontested. mitigating phase circumstances. Each was 527 U.S. at 119 S.Ct. 1836. The Su- tried to different factfinders on different is- error, preme Court held this was trial re- Court, circum- sues. these analysis. viewable under a harmless error stances, sentencing phase has held that the trial, separate resembles a so much so that jeopardy applies present the double clause both to 111 The cases are different. Un Neder, guilt phase sentencing phase. and the like in these eases did not error See, e.g., Washington, during presentation Strickland v. occur case 668, 686-87, Instead, jury. the com 80 L.Ed.2d the error was Missouri, (1984); Bullington plete jury during absence of the phase Ring’s 68 L.Ed.2d 270 of the trial. The (1981) (double evidence, jeopardy protection attaches was it asked to make heard no nor conclude that the trial findings any quires kind cir the court to on the And, if such and the cumstances of crime. even mechanism violated Constitution may have been introduced at the evidence result should not be affirmed. jury

guilt phase, it was not considered penalty. in the of the death As a context JONES, E. Chief Justice. CHARLES jury consequence, a verdict was never re I in all Part of the concur but VI greater turned these cases on the offense majority join in Feld- opinion and Justice Thus, simply murder. there is “no part. man’s dissent as to that object, speak, upon so to which harmless- Sullivan, scrutiny operate.” can error 280, 113 at 2082. apply To harmless error review encourage

these consolidated cases would speculate not

court reversal is neces-

sary jury because the non-existent would any have convicted the defendant in event. P.3d court, words, The in other would transform Arizona, Appellee, STATE phantom jury. argument itself into a is supportable. cases, ma- HARROD, Appellant. these consolidated James Cornell jority must concede that the was erro- No. CR-98-0289-AP. neously discharged before the trial was completed. permits If this harmless error Supreme Court of Arizona. review, then, suppose, one must we would April also review for harmless error if trial judge directed a verdict for the on state one granted charge,

or more elements of the element,

summary judgment on an or dis-

charged after it had determined charges. not all of the

some but Such re- unsupportable, my

sults are also view. requires

“The Sixth Amendment more than

appellate speculation hypothetical about a action,

jury’s or else directed verdicts for appeal;

the State would be on it sustainable

requires jury finding guilty.” actual Today’s opinion puts majority speculating position about one of the

great unknowables —what non-existent might argue

would have done. about We any degree accuracy

whether some or can speculation,

be obtained such but the ar-

gument is irrelevant. Both the state and guarantee

federal constitutions defendants by jury to trial for one-half of —not two-thirds, four-fifths, trial, not for

nine-tenths of the trial but for the whole guarantee vio-

trial. When the

lated, I error has occurred. believe structural permit judges does not then

The Constitution harmless; it

to conclude the error was re-

Case Details

Case Name: State v. Ring

Court Name: Arizona Supreme Court

Date Published: Apr 3, 2003

Citation: 65 P.3d 915

Docket Number: CR-97-0428-AP, CR-99-0536-AP, CR-99-0439-AP, CR-00-0328-AP, CR-00-0360-AP, CR-00-0447-AP, CR-01-0275-AP, CR-00-0508-AP, CR-00-0544-AP, CR-00-0595-AP, CR-01-0091-AP, CR-01-0100-AP, CR-01-0103-AP, CR-01-0129-AP, CR-01-0270-AP, CR-01-0421-AP, CR-02-0042-AP, CR-02-0044-AP, CR-99-0296-AP, CR-99-0551-AP, CR-99-0438-AP, CR-98-0289-AP, CR-98-0376-AP, CR-97-0317-AP, CR-98-0488-AP, CR-97-0349-AP, CR-98-0278-AP

Court Abbreviation: Ariz.