Opinion
No. 1 CA-SA 08-0042
May 6, 2008
Appeal from the Superior Court in Maricopa County, Cause No. CR 1998-04885 The Honorable Sally Duncan, Judge, JURISDICTION ACCEPTED; RELIEF GRANTED.
Andrew P. Thomas, Maricopa County Attorney, Phoenix, By James P. Beene, Deputy County Attorney Attorneys for Petitioner.
Maricopa County Legal Defenders Office, Phoenix, By Dennis Jones, Deputy Legal Defender John Napper, Deputy Legal Defender Attorneys for Real Party in Interest.
Terry Goddard, Arizona Attorney General, Phoenix, By Kent E. Cattani, Chief Counsel, Capital Litigation Section and Deborah Bigbee, Assistant Attorney General Attorneys for Amicus Curiae.
OPINION
¶ 1 In this special action, we consider the appropriate procedure for the retrial of the penalty phase of a capital case, pursuant to Arizona Revised Statutes ("A.R.S.") section 13-703.01(K). For the following reasons, we accept jurisdiction and grant relief, as further explained below.
This court's ruling in this matter was initially issued in the form of a Decision Order on April 1, 2008. Pursuant to Rule 111(b), Arizona Rules of the Supreme Court, the State requested that such Decision Order be designated as an Opinion. We grant that motion and, with minor stylistic changes, designate and reissue such order as a published Opinion.
FACTS AND PROCEDURAL HISTORY
¶ 2 Prince was convicted of first degree murder and attempted first degree murder. After conducting a sentencing hearing and finding aggravating circumstances, the trial judge sentenced Prince to death. Following the United States Supreme Court's decision in Ring v. Arizona, 536 U.S. 584 (2002), the Arizona Supreme Court vacated Prince's death sentence and remanded for resentencing by a jury. See State v. Prince, 206 Ariz. 24, 28, ¶ 15, 75 P.3d 114, 118 (2003).
¶ 3 On remand, the newly impaneled jury found the existence of two aggravators; namely, that the murder was committed in an especially cruel manner, see A.R.S. § 13-703(F)(6) (Supp. 2007), and that Prince was an adult and the murder victim was under fifteen years of age at the time the crime was committed. See A.R.S. § 13-703(F)(9). However, the jury was unable to reach a unanimous verdict whether to impose the death penalty, and the trial court declared a mistrial and dismissed the jury. Pursuant to A.R.S. § 13-703.01(K) (Supp. 2007), a new penalty phase trial was scheduled for February 26, 2008.
¶ 4 During a pre-trial conference on February 21, both the prosecutor and defense counsel advised the court they were in agreement that the new jury needed factual information concerning the commission of the crime and the aggravating circumstances in order to assess the severity of the crime and the aggravators and therefore properly deliberate on the application of the death penalty. The trial court disagreed, expressing its concern that "you don't retry guilt [and] you don't retry aggravation," and ruling that no evidence supporting the determination of guilt or the previously found capital aggravating circumstances could be presented to the jury. Instead, the jury would be told the crime of which Prince was charged and convicted, and the descriptive titles and definitions of the two aggravators found by the prior jury. In the event defense counsel chose to present for mitigation purposes any underlying facts related to the initial case-in-chief or aggravation, the State could then rebut that evidence with related factual evidence of the crime and aggravators.
¶ 5 Both parties requested a stay, which was denied by the trial court. This special action by the State followed. During pendency of jury selection, this court stayed all further proceedings until the issue raised by the special action petition could be resolved.
We vacated that stay pursuant to our April 1, 2008 Decision Order.
JURISDICTION
¶ 6 This court may accept jurisdiction of special action petitions arising out of capital cases. State v. Arellano, 213 Ariz. 474, 476, ¶ 4, 143 P.3d 1015, 1017 (2006). In the penalty phase of a capital case, if a second jury is unable to reach a unanimous verdict, the trial court must impose a sentence of life or natural life. See A.R.S. § 13-703.01(K). Arguably, then, no "equally plain, speedy, and adequate remedy by appeal" exists. See Ariz. R.P. Spec. Act. 1(a). Further, the issue of the appropriate procedure for the retrial of a capital penalty phase is likely to recur, and the issue raised is of statewide importance and purely legal in nature. See State ex rel. Thomas v. Contes, 216 Ariz. 525, 527, ¶ 5, 169 P.3d 115, 117 (App. 2007); Vo v. Superior Court, 172 Ariz. 195, 198, 836 P.2d 408, 411 (App. 1992). Moreover, we conclude that the trial judge erred in her interpretation of the relevant statute and Rule
19.1 of the Arizona Rules of Criminal Procedure. See generally Ariz. R.P. Spec. Act. 3; Amos v. Bowen, 143 Ariz. 324, 327, 693 P.2d 979, 982 (App. 1984). For these reasons, we accept jurisdiction of this special action petition and, as explained below, grant relief in the form of directing the trial court to allow the parties to present evidence or otherwise inform the jury concerning the facts established during the guilt and aggravator phases that are relevant to the issues of mitigation and leniency.
ANALYSIS
¶ 7 This court grants relief in part because we find that the trial court's order, in its present form, unduly restricts the presentation of relevant evidence.
¶ 8 Arizona Revised Statutes § 13-703.01(K) provides as follows:
At the penalty phase, if the trier of fact is a jury and the jury is unable to reach a verdict, the court shall dismiss the jury and shall impanel a new jury. The new jury shall not retry the issue of the defendant's guilt or the issue regarding any of the aggravating circumstances that the first jury found by unanimous verdict to be proved or not proved. If the new jury is unable to reach a unanimous verdict, the court shall impose a sentence of life or natural life on the defendant.
(Emphasis added.) At the penalty or "selection" phase, the jury is constitutionally required to render "an individualized determination on the basis of the character of the individual and the circumstances of the crime." Tuilaepa v. California, 512 U.S. 967, 972 (1994) (quoting Zant v. Stephens, 462 U.S. 862, 879 (1983)). "That requirement is met when the jury can consider relevant mitigating evidence of the character and record of the defendant and the circumstances of the crime." Id. (emphasis added); accord Kansas v. Marsh, 548 U.S. 163, ___, 126 S. Ct. 2516, 2524-25 (2006) ("[A] state capital sentencing system must . . . permit a jury to render a reasoned, individualized sentencing determination based on a death-eligible defendant's record, personal characteristics, and the circumstances of his crime.").
¶ 9 The Arizona Supreme Court's capital punishment jurisprudence is consistent with that of the United States Supreme Court:
Once a defendant is "death eligible" — that is, once a jury has found beyond a reasonable doubt that the defendant is guilty of a capital offense and that at least one statutory aggravating factor exists — the jurors must assess whether to impose the death penalty based upon each juror's individual, qualitative evaluation of the facts of the case, the severity of the aggravating factors, and the quality of any mitigating evidence. A.R.S. §§ 13-703, -703.01. This assessment is not mathematical, but instead must be made in light of the facts of each case. State v. Gretzler, 135 Ariz. 42, 54, 659 P.2d 1, 13 (1983).
State ex rel. Thomas v. Granville (Baldwin), 211 Ariz. 468, 472, ¶ 17, 123 P.3d 662, 666 (2005) (emphases added).
¶ 10 Most recently, in State v. Harrod, No. CR-05-0461-AP, 2008 WL 384396 (Ariz. Feb. 14, 2008), the Arizona Supreme Court recognized that "[t]he plain language of provisions J through L of section 13-703.01, as amended in 2002, makes residual doubt evidence irrelevant to capital resentencing proceedings," but pursuant to A.R.S. § 13-703(G) does not preclude evidence of "the circumstances of the offense," such as "how a defendant committed first degree murder." Id. at *9, ¶¶ 43-44. Further, the court noted that, in determining whether any mitigation is sufficiently substantial to call for leniency, "the quality and the strength . . . of aggravating and mitigating factors" must be considered. Id. at *13, ¶ 63 (quoting State v. Greene, 192 Ariz. 431, 443, ¶ 60, 967 P.2d 106, 118 (1998)); see also State v. Velazquez, 216 Ariz. 300, 310, ¶ 39, 166 P.3d 91, 101 (2007) (upholding a jury instruction "informing jurors they must each weigh mitigation evidence against aggravation evidence"); State v. Barreras, 181 Ariz. 516, 521, 892 P.2d 852, 857 (1995) (noting that weighing these factors "requires an evaluation of the strength and quality of both the aggravating and mitigating evidence"). In this case, defense counsel recognized as much when he argued, "There is an issue here of the severity of the aggravating circumstances that the jury has to be able to assess, and they can't do that in the absence of evidence regarding the aggravating circumstances that were found. . . ."
¶ 11 The trial court here acknowledged the right of the defense to present evidence concerning mitigation, and the State's right to then present rebuttal evidence. However, A.R.S. § 13-703.01(G) more broadly directs that either side may present "any evidence that is relevant to the determination of whether there is mitigation that is sufficiently substantial to call for leniency." Of necessity, the evaluation of the question of leniency involves consideration and weighing of the relevant aggravating circumstances against evidence of or argument in favor of mitigation. In all likelihood, many of the facts and circumstances surrounding the crime, particularly as related to the proven aggravator of cruelty, are relevant to such determination. See State v. Garza, 216 Ariz. 56, 68, ¶ 57, 163 P.3d 1006, 1018 (2007). Nevertheless, because the limited record presented to this court contains no indication what evidence the State wishes to utilize or to which the defense will agree, we decline to provide a "road map" or otherwise bless a limitless presentation of evidence that may have been directly relevant to the issues of guilt and aggravating circumstances.
¶ 12 The trial court, in its discretion, must determine the relevance of the factual information to be offered by the parties. We will not speculate about the admissibility of these presently undisclosed facts. Instead, it would be appropriate for the trial court to direct the parties to advise the court of specific facts they wish to present and, if necessary, the witnesses they intend to call in support of those facts. The trial court may require an offer of proof to determine relevancy. If the court is satisfied that the proffered testimony is relevant to helping the jury understand and weigh the issues of mitigation and leniency, including the severity of the aggravating factors, then such information may be discussed in jury selection and opening statements, and presented to the jury in the form of a stipulation, documentary evidence, and/or witness testimony. The trial court's current order, unless the defense chooses to introduce mitigation evidence, only allows the jury to be told the nature of the crime charged and proven, that certain aggravators were previously proven, and a "jury instruction" definition of such aggravators. This is insufficient for purposes of the jury's task, and, in our view, unreasonably limits counsel in its qualification of the jury and presentation of the penalty phase of this case.
¶ 13 Prince argues that the Arizona Rules of Criminal Procedure do not explicitly allow the trial court to proceed in this fashion. However, we note initially that, even though a procedure might not be specifically authorized by the rules, the trial court has inherent authority to authorize procedures and exercise its discretion when necessary to accomplish the purpose of the rules and protect the rights of the parties. See Lewin v. Jackson, 108 Ariz. 27, 30-31, 492 P.2d 406, 409-10 (1972); Aragon v. Wilkinson, 209 Ariz. 61, 66, ¶ 15, 97 P.3d 886, 891 (App. 2004).
¶ 14 Further, the language of Rule 19.1(d) of the Arizona Rules of Criminal Procedure, which establishes the procedure to be followed in the penalty phase of a capital case, supports the conclusion that the trial court should proceed as we have outlined above. Under Rule 19.1(d), regardless whether defense counsel elects under subsection (4) of the rule to "offer evidence in support of mitigation," subsection (5) provides that the State may "offer any evidence relevant to mitigation." The rule does not indicate that such evidence may only take the form of rebuttal evidence; rather, it implies that the State in a penalty hearing has the independent, affirmative right to present evidence relevant to the issue of mitigation. In other words, without regard to the fact, nature, or type of mitigation presented by the defense, the State may offer evidence relevant to the issue whether, in light of the facts of the crime and any aggravating circumstances, the death penalty should be imposed or sufficient mitigating circumstances exist to support the exercise of leniency. The determination of the parameters of such evidence is necessarily dependent on the specific case and the specific aggravators previously found by the jury.
CONCLUSION
¶ 15 Based on the foregoing, we accept jurisdiction of the State's petition for special action. We vacate the trial court's previous order and direct that the court allow each of the parties to present evidence relevant to the jury's assessment and determination whether sufficiently substantial mitigating circumstances exist to call for leniency. The trial court retains discretion to determine the relevancy of the evidence proferred by the parties, as well as the method by which such factual information is to be presented to the jury.
_____________________________ LAWRENCE F. WINTHROP, Presiding Judge
CONCURRING:
_____________________ JON W. THOMPSON, Judge
______________________ SHELDON H. WEISBERG, Judge