State v. Rutledge

differently evidence than the trial judge did Note: Justice HURWITZ took in the mitigating prov- find one more consideration decision of this case. factors by preponderance en of the evidence. previously, As we held “[a] dif- finding mitigating

ferent circumstances

could affect the determination whether the ‘sufficiently circumstances are ” leniency.’ substantial to call for State v. 13-703(E)). (quoting A.R.S. Arizona, Appellee/Cross- STATE of we hold that violation Appellant, respect to the mitigating evidence was not harmless. RUTLEDGE, Lee Sherman ¶ 24 Because we cannot conclude that the Appellant/Cross- sentencing procedure in case resulted in Appellee. error, harmless Prasertphong’s vacate No. CR-01-0129-AP. death sentences and for resentencing remand by under A.R.S. sections 13-703 and Supreme Court of Arizona. (Supp.2002). 703.01 Sept. McGREGOR,

CONCURRING: RUTH V. Justice,

Vice Chief and REBECCA WHITE

BERCH, Justice.

JONES, C.J., concurring part,

dissenting part: 25 I concur in respect- but I

fully majority’s dissent from the analysis appropriate harmless error is

where determinations are made jury. trial absence impartial jury to trial is, sentencing phase

fundamental. The

itself, a life or death Where a judge, matter. jury,

not a questions pertain- determines all

ing sentencing, I believe a violation of the

Sixth Amendment the Constitution of the

United States occurred. the after-

math Court’s decision in

Ring v. 153 L.Ed.2d 556

absence of the phase necessarily amounts to

structural error. remand would the case resentencing, simply on the basis of the

Sixth Amendment violation.

Ring, 534, 565-67, J., (2003)(Feldman, concur- part)

ring part, dissenting At- Napolitano, A. Former Arizona

Janet Goddard, General, torney Terry Arizona At- Cattani, torney by Kent E. Chief General Section, Phoenix, Counsel, Litigation Capital Ellman, Attorney Robert L. Assistant and Beene, General, Attorney P. James Assistant General, Todd, Pressley Assistant At- John General, Ferg, torney Bruce M. Assistant General, Tucson, Attorneys Ap- Attorney pellee. Phoenix, Doyle, Attorney for W.

Robert Appellant. OPINION

SUPPLEMENTAL RYAN, Justice.

I. Rut- 1 A convicted Lee Sherman felony robbery, degree ledge of armed first Harris, attempted Ryan sec- Clayton. Fol- murder of Chase ond verdict, lowing jury’s con- sentencing hearing to determine ducted any mitigating cir- aggravating and alleged the cumstances existed. The State Rut- factors: existence three ledge had a conviction (“A.R.S.”) offense, Arizona Revised Statutes 13-703(F)(2) (Supp.1996); gain, murder for committed the 703(F)(5); he commit- A.R.S. section 13— heinous, ted “in especially the murder punishment.” their maximum depraved cruel or manner.” A.R.S. 13- 703(F)(6). Before the hearing, ¶ Following Court’s (F)(2) aggrava- the trial court ruled that the decision, we consolidated all death ting applicable circumstance was not yet cases in which this court had not issued a the attempted murder and armed appeal direct mandate to determine whether contemporaneously with the Ring this court to or reverse murder. vacate the defendants’ death sentences. ¶2 evidence, After considering the ¶ Ring, v. court found that “espe- the murder was not Ring cially “especially cruel” or heinous or de- III, we concluded that we will examine a 13-703(F)(6). praved.” § A.R.S. imposed death sentence under Arizona’s su- the court aggrava- concluded that the perseded capital sentencing statutes for ting proved beyond factor was not a reason- ¶ 53, harmless error. 65 P.3d at beyond able doubt. The did find reasonable doubt that Rutledge committed ¶ 7 As a parties we ordered the expectation the murder with the pecuniary case to address the death sen- 13-703(F)(5). gain. § A.R.S. The court fur- tencing supplemental issues in briefs. State ther statutory mitigating found no factors Ring, Order No. (July CR-97-0428-AP non-statutory and no mitigating factors “suf- 2002). Those briefs been filed and we ficiently substantial to call leniency.” Rutledge’s now examine whether death sen- 13-703(E). § A.R.S. The court thus sen- tence can in light Ring stand II. In addi- Rutledge tenced to death for the first tion, the supplemental State filed a brief murder conviction. cross-appeal. of its Based on our ¶ Rutledge 3 Because received a death sen- record, review of the we cannot conclude that tence, mandatory appeal direct II violation constituted harmless brought 26.15, to this court. Ariz. R.Crim. P. error. We also conclude that the trial court 31.2; § A.R.S. The State striking allegation. did not err in cross-appealed the trial ruling court’s (F)(2) aggravating factor. II. Rutledge’s We affirmed convictions and previous opinion 8 Our in this mat except all sentences the sentence of death on ter contains a detailed account of the under appeal. direct Rutledge, See State v. lying surrounding facts the crimes. See Rut Ariz. While ledge, 66 P.3d at Rutledge’s appeal pending, direct summarized, Briefly 52-53. the evidence es Supreme United States Court Harris, killing tablished that shot 536 U.S. 122 S.Ct. him, attempted Clayton. to kill After L.Ed.2d 556 held that Ari shootings, Rutledge and his brother took capital zona’s sentencing scheme violated a Explorer Clayton the Ford driving. had been right jury defendant’s Sixth Amendment to a trial.1 verdict, special 9 In its the trial court evidence, totality found that “the cir- holding 5 In that capital Arizona’s sen- be, may tencing proves beyond scheme cumstantial as it violates the to a guaranteed by pecuniary gain reasonable the Sixth Amendment to doubt was the Constitution, United States motive for these crimes.” Commission of an defendants, “[cjapital receipt, Court declared that offense “as consideration for non-capital expectation receipt less than anything defendants are enti- ... of any tled to a pecuniary determination of fact on value” anis circum- 13-703(F)(5). legislature which the § conditions an increase stance. A.R.S. Laws, Sess., legislature requiring Spec.

1. The amended the statute Sess. 5th ch. judge-sentencing cases. See 2002 Ariz. spe- presented no But the Explorer.” gain 10 To establish Rutledge’s circumstance, testimony or evidence must cific the state pecuniary gain. killing was pecuniary gain motive for the expectation of prove that “the Rutledge told motive, cause, testify impetus witness did One [wa]s going mur down.” And merely “something a result her that murder and said Ariz. that one of the victims Hyde, testified der.” State another it,” Spencer, (citing apparently you you it can “if want (1993)). Explorer. referring to the Ford words, proof “the must be In other there “[t]he that even trial court found but for the would not have occurred to what contradictory references somewhat pecuniary motive.” defendant’s occur at the scene expected to ¶ 560, 75, (citing at 941 Ariz. at 65 P.3d 204 that” the conclusion ... bolster[ed] crime 278, 296-97, 670 Harding, Ariz. v. 137 State murder to take Rutledge committed (1983) (Gordon, V.C.J., spe 383, 401-02 P.2d Nonetheless, the trial because vehicle. concurring)). cially on an assessment finding rests court’s ¶ robbery taking in a Proving 11 say, be- credibility, cannot “[w]e of witness economic motive the existence of some doubt, jury hearing yond a reasonable surrounding a during point the events some judge would as did the the same evidence necessarily prove the moti does not murder circumstantial evidence interpreted the Medina, v. 193 vation for a murder. State credibility as did witnesses’ or assessed the 94, (1999); 504, 513, P.2d 103 State Ariz. 975 Hoskins, Ariz. v. 204 judge.” State 155, 164, Greenway, Ariz. 823 P.2d v. 170 (2003). ¶ 574, 6, P.3d 955 65 (1991). Instead, highly “a fact inten it is 31 to the Ring II error as conclude that the prove a requiring the state to inquiry” sive (F)(5) not circumstance was motive the murder and “connection between harmless. strong evi through direct or circumstantial ¶ III, 560, 76, 204 Ariz. at 65 dence.” III. Cañez, Ariz. (citing 202 P.3d at 941 ¶ (2002)). ¶ 159, 94, A 42 590 appeal P.3d asks us cross 15 The State’s expectation pecuni of that trial court’s determination to reverse the “robbery ary gain distinguished from a is attempted murder and armed “robbery that occurs close gone bad” or a contemporaneously robbery were committed sepa constitutes a time to a murder but that murder, un aggravating factor with the (F)(5)] purpose 703(F)(2) [ for the of an rate event not could be der A.R.S. Sansing, Ariz. 200 determination.” State matter Although we remand this applied. 347, 353-54, 14, 26 this issue be resentencing, we address (2001) McKinney, Ariz. (citing State v. 185 “falls outside the cause the (1996)), 567, 584, 1214, 1231 vacated 917 P.2d not Amendment does The Sixth mandate. 954, 122 grounds, 536 on other the existence require jury to determine (F)(2)] prior conviction.” an [ ¶ 7, 569, 571, 65 P.3d af will find harmless error We III, Ariz. at (citing Ring only if we are convinced fecting this factor 939). Consequently, 65 P.3d no reason beyond doubt that a reasonable remand, correct, deter the State is prosecu to find that the could fail able re would not be on this factor mination beyond pecuniary gain a reason proved tion quired. Id. able doubt. at 941. 65 P.3d 13-703(F)(2) proof requires 16 Section previously convict- that defendant “[t]he evidence asserts that “[t]he 13 The State offense, preparatory ed of a serious victims were was uncontroverted State, “the According to the completed.” obtaining pretext of park lured to wording unambiguous arrived, its they statute drugs, and when First, a requirements: only two [sic] the new Ford and stole victims] attacked [the conviction, second, vehicle, stemming the convic- law all enforcement from a ”2 tion be for a ‘serious offense.’ The State place during series of events that took thus contends a “serious offense” com- killing spree spanned several hours. committing mitted the course of a murder only can factor. The limita- The court held that the convictions for tion is that the conviction for the serious robbery “pre- vated assault and armed must be rendered before (F)(2). purposes vious convictions” for Finch, e.g., on the murder. See 932 P.2d at 800. Ariz. ¶ Rogovich “[cjonvictions differs from this case in two (holding that entered simulta- First, ways. Rogovich challenged only neously with the murder conviction but (F)(2) ].”). sentencing satisfy timing whether the [ the convictions and the require- nature of the offenses satisfied the agreed The trial court this case (F)(2). Thus, ments of Rogovich See id. did argument sense,” good State’s “ma[de] raise, address, nor did this court rejected position but the State’s for the fol- Second, specific issue we face here. at least Gretzler, lowing reasons: aggravated one assault conviction and one (1983), contrary conviction were committed position State’s and was this court’s most (2) issue; separately pronouncement definitive from each murder. See id. at the (F)(2) legislature the had intended the Accordingly, 932 P.2d at 796. the facts in apply vator to to serious crimes committed Rogovich supported application the during the commission of a murder it could (F)(2) factor with convictions for serious of- statute;3 expressly said so the separately fenses that were committed from (F)(2) purpose aggravator because one murders, the unlike the situation this case. propensity is to measure a defendant’s to ¶20 cites, In the second case the State crimes, commit serious is rational to “[i]t Jones, charged State v. the defendant was propensity by measure such the number of murder, degree with six counts of first three engaged other times one has such conduct assault, aggravated counts of three counts of rather than the number of discreet [sic] robbery, armed and two counts first-de- during serious crimes committed the defen- gree burglary. dant’s criminal conduct at the time of the murder;” (2000). subject interpre- the State’s The events that to led the (F)(2) aggravating tation of the factor would charges separate arose out of two armed eligible broaden the class of death defen- robberies that were committed on different dants, contrary legislative intent to places; people dates at different two persons. narrow that class of during robbery, murdered the first and four people during robbery. the second contention, 18 In of its the State ¶¶ 297-98, 1-9, 4 P.3d at 352-53. Because cases, relies on two both of which we find the defendant was convicted of the serious first, distinguishable. In Rogo- State v. vich, offenses before he was sentenced for the charged the defendant was with four convictions, murder, murder first-degree counts of the court held that each two counts of assault, assault, aggravated aggravated of the convictions for two counts of armed rob- bery, flight robbery, degree and one count of burglary unlawful from a and first previously 2. A "serious offense” includes second been or defendant has con- 13-703(H)(2), offense, robbery. § murder and preparato- See A.R.S. victed of a serious completed. ry or Convictions for serious of- fenses committed on the same occasion as the homicide, 26, 2003, or not committed on the same occa- May legislature 3. On amended sion but consolidated for trial with the homi- 703(F)(2) explicitly provide A.R.S. section to 13— crime" cide, shall be treated as a serious under contemporane- that a “serious committed paragraph. ously this aggrava- with the murder is sufficient for 703(F)(2). May Because he committed the offenses before tion under A.R.S. section See 2003 Laws, Sess., apply Reg. Ariz. Sess. 1st ch. this amendment does not to provision Rutledge. That now states: dictum, (F)(2) and therefore guage from Gretzler factor. satisfied disagree controlling. for the follow- We not ing reasons. ¶21 Al- distinguishable. find Jones We

though court specifically explained not First, Phillips Gretzler as considered raised, facts the issue was not Second, persuasive authority point. on this that a number serious Jones establish compelling no reason presented the State days committed on different offenses were Phillips. us to overrule See 297-98, places. id. and at different Hickman, ¶¶ 1-9, Therefore, it can 4 P.3d at 352-53. (explaining re- hardly only said serious offenses be court not spect precedent conjunction murder precedent compel- unless there are overrule (F)(2) to were used so, prece- ling reasons do deference factor.4 strongest when decisions con- dent is Thus, nor di Rogovich neither Jones statute). Third, has cited strue a the State rectly specific presented issue addressed case, one, nor found in which this have we a seri a conviction for case—whether a situation in which the court was faced with arising the same as a ous offense out of event only supported by a charge when could be considered contemporaneously with offense committed (F)(2) ag determining the existence Fourth, murder. because this issue has however, We, gravating factor. addressed (other arisen than Ortiz and before Phillips, in State v. issue prosecutors Phillips), appears it neither 1048, 1059 routinely interpreted judges nor ¶23 way commit- Phillips, in such a that a serious offense we held convictions conjunction with murder could arising “from the set of events as the ted in same Finally, application of that factor. to charge support should not be considered urges determining the the would mean that a when the existence of hold as (F)(2)] penalties could support factor.” Id. In of hold- of death [ number ing, supported by aggravating an the court cited footnote from been additional Gretzler. See, Trostle, 4, e.g., n. P.2d at n. 2. In 191 Ariz. 135 Ariz. at 57 659 16 factor. (Defen- footnote, court, 17-18, explaining the in 951 P.2d 882-83 felony for a be- convicted of murder based on conviction serious entered dant (F)(2), kidnapping; the state hearing fore satisfied and the any language alleged pecuniary gain, it disapproved apparently commented that A.R.S. 13-703(F)(5), Ortiz, and that the murder in State v. 131 Ariz. section heinous, (1981), contrary.” especially the in an cru- “suggesting was committed manner, Gretzler, el, depraved section 13- 135 Ariz. 57 n. 659 P.2d at or A.R.S. Ortiz, factors, 703(F)(6), aggravating as but not as n. 2. The court went on to state “[i]n considering convictions under A.R.S. previous we the trial court erred serious found Dickens, 13-703(F)(2)); conspiracy for contemporaneous conviction section 23-25, aggravation to commit murder for the Ariz. as (Defendant felony convicted of murder based murder. This exclusion consideration from robbery; appeared the to having required on armed state is best understood as been allegations limited of convictions arose out the its both of ” added). gain, A.R.S. (emphasis to sec- same events. circumstances set of 13-703(F)(5), emphasized espe- that the murder was argues The that the Ian- tion (F)(2). Referring special poraneous offenses to verdict in serious to the trial court's Jones, Instead, However, points judge holding. the the State out trial we no made such to its used of the serious offenses all the whether offenses entered focused on finding And because in our murders, on the factor. the and whether before on independent imposition the review of improperly murders were "double-counted” the court's death this court affirmed trial Jones, (F)(2). satisfying both (F)(2) factor, finding the State draws the 4 P.3d at Ariz. at approved that we the use of contem- cruel, daily heinous, depraved, jury. A.R.S. sec- the trial absence of 703(F)(6), homicides, tion multiple impartial jury to trial 13— 703(F)(8), is, sentencing phase A.R.S. section fundamental. The of but not itself, a judge, under life or death matter. Where a convictions A.R.S. section 13- 703(F)(2)). jury, questions pertain- all not a determines ing sentencing, to I believe a violation of the ¶25 Accordingly, Rutledge’s we hold that Amendment to the Sixth Constitution of the conviction occurring for a “serious offense” United States has occurred. In the after- simultaneously with murder can- conviction math Court’s decision (F)(2) purposes not be used under for Ring 13-703(F)(2) appli- version of A.R.S. 153 L.Ed.2d 556 Rutledge. cable to sentencing phase in the absence necessarily to amounts IV. error. structural would remand the case we hold that Because the sole resentencing, simply basis vating presented ease must be Sixth Amendment violation. See State jury, Rutledge’s we vacate death sen- Ring, resentencing. tence and remand There- (2003)(Feldman, J., 946^48 concur- unnecessary fore we find it examine part) part, ring dissenting error harmless occurred re- took Note: Justice HURWITZ in the circumstances. spect consideration decision this ease. 65 P.3d at (holding inquiry that our harmless error does not circum- end with

stances). Moreover, the State concedes that law, III case must remains resentencing.5 be remanded for Anthony CERVANTES, Petitioner, Jon

V. foregoing reasons, 27 For the we cannot Jeffrey CATES, Judge The Honorable S. II error conclude that the harmless Superior Court of the State of Ari- Accordingly, in this case. we vacate Rut- zona, County Maricopa, in and for the sentence, ledge’s death and remand for re- Respondent Judge, sentencing under A.R.S. sections 13-703 and Arizona, Party (Supp.2002). 13-703.01 Real Interest. No. 1 CA-SA 03-0157. McGREGOR, RUTH CONCURRING: V. Vice Chief Justice and WHITE REBECCA Appeals Court of BERCH, Justice. 1, Department Division A. JONES, C.J., concurring in part, Sept. dissenting in part: Review Denied March 2004.* respect- 28 I concur in the but fully majority’s dissent from the analysis appropriate harmless error

where determinations are made 953; petition 5. The with see State filed for certiorari also 561-62, 565, 87-90, 104, Supreme challenging United States Court Pandeli, applied acknowledges position, 946. The State court's as that under II, Supreme petition if the denies its Court Court’s decision in certiorari, Ring resentencing analysis III of harmless error at phase case. trial must also “consider * respect Ryan error occurred Justice reversible Chief Jones and Justice voted to grant review. circumstances.”

Case Details

Case Name: State v. Rutledge

Court Name: Arizona Supreme Court

Date Published: Sep 16, 2003

Citation: 76 P.3d 443

Docket Number: CR-01-0129-AP

Court Abbreviation: Ariz.