State v. Armstrong

SUPREME COURT OF ARIZONA

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-00-0595-AP
)
Appellee, ) Pima County
) Superior Court
) No. CR-61846
v. )
)
)
SHAD DANIEL ARMSTRONG, )
) SUPPLEMENTAL OPINION
)
Appellant. )
__________________________________)

Appeal from the Superior Court in Pima County
The Honorable Howard Hantman, Judge

DEATH SENTENCES VACATED; REMANDED FOR RESENTENCING

JANET A. NAPOLITANO, FORMER ARIZONA ATTORNEY GENERAL Phoenix
TERRY GODDARD, ARIZONA ATTORNEY GENERAL
by Kent E. Cattani, Chief Counsel,
Capital Litigation Section
and Robert L. Ellman, Assistant Attorney General
James P. Beene, Assistant Attorney General
John P. Todd, Assistant Attorney General
Bruce M. Ferg, Assistant Attorney General Tucson
Donna J. Lam, Assistant Attorney General
Attorneys for State of Arizona

LAW OFFICES OF HARRIETTE P. LEVITT Tucson
by Harriette P. Levitt
Attorney for Shad Daniel Armstrong
B E R C H, Justice

¶1 Shad Daniel Armstrong was sentenced to death under a

procedure found unconstitutional in Ring v. Arizona, 536 U.S.

584, 122 S. Ct. 2428 (2002) (Ring II). In Ring II, the United

States Supreme Court held that Arizona’s capital sentencing

scheme violated the defendant’s Sixth Amendment right to a jury

trial. Id. at 609, 122 S. Ct. at 2443.1 In doing so, the Court

held that defendants “are entitled to a jury determination of

any fact on which the legislature conditions an increase in

their maximum punishment.” Id. at 589, 122 S. Ct. at 2432. The

Court remanded the case for further proceedings consistent with

its decision. Id. at 609, 122 S. Ct. at 2443.

¶2 On remand, we consolidated all death penalty cases in

which this court had not yet issued a direct appeal mandate,

including Armstrong’s case, to determine whether Ring II

required reversal or vacatur of the death sentences. State v.

Ring, 204 Ariz. 534, 544, ¶¶ 5-6, 65 P.3d 915, 925 (2003) (Ring

III). We concluded that we must review each death sentence

imposed under Arizona’s superseded capital sentencing statute

for harmless error. Id. at 555, ¶ 53, 65 P.3d at 936.

¶3 We now consider whether the death sentence imposed on

Armstrong can stand in light of Ring II and Ring III.

1
The legislature has amended the capital statute so
that sentencing factors in capital cases are now tried before
juries. See 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, § 1.

- 2 -
 FACTS AND PROCEDURAL HISTORY

¶4 On March 10, 2000, a jury found Shad Daniel Armstrong

guilty of two counts of first degree murder and one count of

conspiracy to commit murder for the murders of his sister,

Farrah Armstrong, and her fiancé, Frank Williams. See State v.

Armstrong, ___ Ariz. ___, ___ P.3d ___ (2004), for a detailed

account of the facts of this case.

¶5 Following the jury’s verdict, the trial judge

conducted a sentencing hearing at which he found two aggravating

circumstances beyond a reasonable doubt: that Armstrong

murdered Farrah because he expected to receive something of

pecuniary value and that Armstrong had been convicted of one or

more other homicides committed during the course of the offense.

See Ariz. Rev. Stat. (“A.R.S.”) § 13-703(F)(5), (F)(8) (Supp.

1998). These findings rendered Armstrong eligible for the death

penalty. Id. § 13-703(E). The trial judge found the mitigating

circumstances Armstrong presented at the sentencing hearing

“insufficient to call for leniency” and sentenced Armstrong to

death for each murder conviction. We now review whether, in

light of Ring II and Ring III, the death sentences imposed on

Armstrong can stand.

- 3 -
 DISCUSSION

¶6 In Ring III, we concluded that judicial fact-finding

in the capital sentencing process may constitute harmless error

if we can conclude beyond a reasonable doubt that no reasonable

jury would fail to find the aggravating circumstance. 204 Ariz.

at 555, 565, ¶¶ 53, 103, 65 P.3d at 936, 946. In Schriro v.

Summerlin, ___ U.S. ___, ___, 124 S. Ct. 2519, 2526 (2004), the

Supreme Court held that Ring II “announced a new procedural rule

that does not apply retroactively to cases already final on

direct review.” Ring II errors thus appear to be trial errors

that may be reviewed for harmless error. We therefore examine

whether the Ring II error was harmless with respect to the

aggravating circumstances found by the trial judge in

Armstrong’s case.

A. Aggravating Circumstances

1. Pecuniary Gain

¶7 Arizona law makes the commission of a murder “for the

receipt, or in expectation of the receipt, of anything of

pecuniary value” an aggravating circumstance. A.R.S. § 13-

703(F)(5). This factor is satisfied only “if the expectation of

pecuniary gain is a motive, cause, or impetus for the murder and

not merely a result of the murder.” State v. Hyde, 186 Ariz.

252, 280, 921 P.2d 655, 683 (1996). It is not enough merely to

show that a defendant took property or money after a murder

- 4 -
occurred.2 State v. Wallace, 151 Ariz. 362, 368, 728 P.2d 232,

238 (1986) (citing State v. Gillies, 135 Ariz. 500, 512, 662

P.2d 1007, 1019 (1983)). The (F)(5) inquiry is “highly fact-

intensive” and requires the State to “establish the connection

between the murder and motive through direct or strong

circumstantial evidence.” Ring III, 204 Ariz. at 560, ¶ 76, 65

P.3d at 941 (citing State v. Cañez, 202 Ariz. 133, 159, ¶ 94, 42

P.3d 564, 590 (2002)).

¶8 In this case, the trial judge found that Armstrong had

a pecuniary motive to murder Farrah.3 The trial judge found that

Armstrong’s discussions with co-conspirator David Doogan before

the murders about taking Farrah’s property, combined with

Armstrong’s deliberate actions in taking property after killing

2
Ring III cites former Vice Chief Justice Gordon’s
concurring opinion in State v. Harding, 137 Ariz. 278, 296-97,
670 P.2d 383, 401-02 (1983) (interpreting the holding of State
v. Clark, 126 Ariz. 428, 436, 616 P.2d 888, 896 (1980)), for the
proposition that the (F)(5) aggravating factor requires proof
“that the murder would not have occurred but for the defendant’s
pecuniary motive.” Ring III, 204 Ariz. at 560, ¶ 30, 65 P.3d at
941 (emphasis added). While this statement accurately
interprets Justice Gordon’s concurring opinion, the majority in
State v. Clark, the case upon which Justice Gordon relied as
authority for his position in Harding, stated only that the
(F)(5) factor should be found “if the receipt of money is
established as a cause of the murders.” 126 Ariz. at 436, 616
P.2d at 896 (emphasis added). The latter statement accurately
reflects Arizona law on this point. The but for test is not
required by A.R.S. § 13-703(F)(5) or Arizona caselaw.
3
The trial judge found no pecuniary motive for Frank’s
murder; rather, he found that “[t]he motive for the murder of
Frank Williams was the defendant’s hatred of Frank Williams.”

- 5 -
Farrah and Frank, established “strong circumstantial evidence

that pecuniary gain was a motive to kill Farrah.” Armstrong

challenges both the strength and scope of this circumstantial

evidence.

¶9 We will not find harmless the finding of an (F)(5)

aggravating factor if circumstantial evidence and witness

credibility could be weighed differently by a jury than it was

by the sentencing judge. State v. Hoskins, 204 Ariz. 572, 574,

¶ 6, 65 P.3d 953, 955 (2003); State v. Rutledge, 206 Ariz. 172,

175, ¶ 14, 76 P.3d 443, 446 (2003). That Armstrong had a

pecuniary motive to murder Farrah is a plausible inference that

may be drawn from the circumstantial evidence, but it is not the

only reasonable inference that may be drawn. Because a

reasonable jury could differently assess the evidence upon which

the trial judge based his pecuniary gain finding, we cannot

conclude that the trial court’s finding of the (F)(5) factor was

harmless.

2. Multiple Homicides

¶10 Arizona law also lists as an aggravating circumstance

that “[t]he defendant has been convicted of one or more other

homicides . . . committed during the commission of the offense.”

A.R.S. § 13-703(F)(8). In Ring III, we held that when a

“defendant stipulates, confesses or admits to facts sufficient

to establish an aggravating circumstance, we will regard that

- 6 -
factor as established.” 204 Ariz. at 563, ¶ 93, 65 P.3d at 944.

In this case, Armstrong conceded “that [the (F)(8)] aggravating

factors have been met by the State as a result of the jury

verdicts as to both murder counts.”

¶11 Ring III makes clear, however, that while the finding

of an (F)(8) aggravator is subject to a harmless error analysis,

the finding may not be based solely on the jury’s verdict of

guilt on multiple homicides. 204 Ariz. at 561, ¶ 81, 65 P.3d at

942. Rather, the murders must be “temporally, spatially and

motivationally related.” Id. (citing State v. Rogovich, 188

Ariz. 38, 45, 932 P.2d 794, 801 (1997)). Here, Armstrong

clearly conceded not only that there were multiple homicides in

this case, but also that the State had established the (F)(8)

aggravator. But because the language of that concession

indicates that it was based on the multiple convictions alone

and does not address the temporal, spatial, or motivational

requirements, it is possible that he did not admit “facts

sufficient to establish [the (F)(8) factor].” See id. at 563, ¶

93, 65 P.3d at 944. A thorough examination of the scope of

Armstrong’s concession is unnecessary, however, as the record

before us demonstrates a temporal, spatial, and motivational

relationship substantial enough that no reasonable jury could

fail to find the (F)(8) aggravator beyond a reasonable doubt.

- 7 -
¶12 At oral argument, Armstrong’s counsel stated that the

temporal and spatial relationship was “obvious.” We agree with

this concession. This court has found a temporal relationship

between multiple homicides committed, as these were, within

moments of each other. State v. Dann, 206 Ariz. 371, 373, ¶ 9,

79 P.3d 58, 60 (2003) (finding a temporal relationship when

undisputed evidence showed that the murders occurred in a

“short, uninterrupted span of time”); see also State v. Lavers,

168 Ariz. 376, 394, 814 P.2d 333, 351 (1991) (finding a temporal

relationship existed where “the two murders were separated by

just minutes”). The evidence in the current case reveals that

Farrah and Frank were murdered within seconds of one another.

David Doogan testified that Armstrong walked into the room where

Frank and Farrah were seated, shot Frank in the chest,

immediately turned to Farrah and shot her once in the chest and

once in the head, and then turned back to Frank and shot him in

the head as well. Based on this evidence, we conclude that a

reasonable jury could not have failed to find that the murders

were temporally related.

¶13 Similarly, we have affirmed the spatial relationship

when the victims were killed in close physical proximity to each

other. Dann, 206 Ariz. at 373, ¶ 8, 79 P.3d at 60 (finding a

spatial relationship where all three victims “died in the front

room of [an] apartment, where they had been seated near one

- 8 -
another”). In the current case, as in Dann, the victims were

murdered in a living room area as Farrah sat on a couch and

Frank sat next to her on a recliner. We find that a reasonable

jury could not have failed to find that the murders were

spatially related.

¶14 Finally, the motivational relationship is shown by the

substantial evidence that Armstrong killed both Farrah and Frank

to avoid having to go back to prison. The undisputed evidence

at trial was that before her murder, Farrah had indicated that

she would turn herself and Armstrong in to Oklahoma authorities

for a burglary they had committed two years earlier. David

Doogan and Rusty Medina, Armstrong’s girlfriend at the time of

the murders, both testified that Armstrong moved to Arizona

after the burglary to avoid detection, because he would “rather

die than go back to prison.” Doogan and Medina further

testified that Armstrong began planning to murder Farrah and

Frank after learning of Farrah’s intention to turn him in to

Oklahoma authorities.

¶15 As evidence of a disparity in the motives for the two

murders, Armstrong points to the trial court’s statement that

his motive for killing Frank was his “hatred of Frank.”

Although relevant to the issue of motivation, we conclude that

this statement does not dictate the determination of that factor

under Ring III’s (F)(8) analysis.

- 9 -
¶16 We note initially that the trial judge made this

statement with regard to the pecuniary gain factor, not the

multiple homicide factor. He observed that Armstrong killed

Frank because he hated him and not for pecuniary gain. This

statement reflected the trial judge’s assessment of Armstrong’s

lack of pecuniary motive for killing Frank. It does not

necessarily reflect his assessment of the relationship between

Armstrong’s motive for killing Farrah and his motive for killing

Frank.

¶17 Additionally, the evidence in the record shows that

Armstrong hated Frank because he believed that Frank was

encouraging Farrah to turn him in to law-enforcement

authorities. Indeed, Doogan testified that at one point

Armstrong intended to kill only Frank so that he could exert

more influence over Farrah and prevent her from turning him in.

Consequently, even if Armstrong killed Frank because he hated

him, such motivation is inextricably intertwined with his

motivation for killing Farrah: his desire not to be pursued by

Oklahoma authorities. Cf. State v. Tucker, 205 Ariz. 157, 169,

¶ 66, 68 P.3d 110, 122 (2003) (finding the motivational element

of the (F)(8) aggravator satisfied after finding it “difficult

to imagine a motive for the killings unrelated to the murder of

[the primary victim]”).

- 10 -
¶18 In Dann, we found the motivational relationship to be

satisfied if “a jury may differ as to [the defendant’s] precise

motive for killing [the other victims, but] no jury would fail

to find that his motives were related to the murder of [the

primary victim].” 206 Ariz. at 374, ¶ 10, 79 P.3d at 61. We

similarly conclude that even if a jury could differ in

determining the precise reason Armstrong murdered Frank, no

reasonable jury could find that motive to be unrelated to his

motive for the murder of Farrah.

¶19 Given the uncontroverted evidence on these points, we

conclude that no reasonable jury could have found other than

that the two murders in this case were temporally, spatially,

and motivationally related. We therefore conclude that the Ring

II error in the (F)(8) finding is harmless.

B. Mitigating Circumstances

¶20 Our harmless error inquiry does not end with an

examination of the aggravating circumstances. In Ring III, we

held that “[b]ecause a trier of fact must determine whether

mitigating circumstances call for leniency, we will affirm a

capital sentence only if we conclude, beyond a reasonable doubt,

that no rational trier of fact would determine that the

mitigating circumstances were sufficiently substantial to call

for leniency.” 204 Ariz. at 565, ¶ 104, 65 P.3d at 946. The

State of Arizona challenged this procedure by writ of certiorari

- 11 -
to the United States Supreme Court in State v. Pandeli, ___ U.S.

___, 124 S. Ct. 386 (2003). In its supplemental brief in

Armstrong’s case, the State conceded that remand on the issue of

mitigation is necessary under this court’s mitigation analysis

in Ring III and Pandeli, but asked us to stay any mandate “until

such time as the United States Supreme Court has adjudicated the

petitions for certiorari in Pandeli.” Recently, the United

States Supreme Court denied certiorari in Pandeli, id. We

therefore review the mitigation under the standard of review we

set forth in Ring III, 204 Ariz. at 565, ¶ 104, 65 P.3d at 946,

bearing in mind the State’s concession.

¶21 At his sentencing hearing, Armstrong offered nineteen

mitigating circumstances for the court’s consideration. Two of

these factors were statutory: impairment, and “unusual and

substantial duress,” A.R.S. § 13-703(G)(1), (G)(2). Seventeen

factors were non-statutory: (1) diabetes; (2) duress; (3) anti-

social personality disorder; (4) mood disorder; (5) stress; (6)

history of substance abuse; (7) troubled, abusive, or

dysfunctional family; (8) good employment history; (9) care and

support of family; (10) education and accomplishments; (11)

efforts at rehabilitation; (12) lack of previous record for

violent crime; (13) effect of death sentence on his children;

(14) record of good behavior while incarcerated; (15) lack of

future dangerousness; (16) sentence disparity between Doogan and

- 12 -
Armstrong; and (17) proportionality of sentence.

¶22 The trial judge expressly did not find the (G)(1)

statutory mitigating factor and impliedly found that Armstrong

had failed to establish the (G)(2) factor. He did find,

however, that Armstrong proved seven of the non-statutory

mitigating factors offered: that Armstrong had a difficult

childhood; that he had completed his G.E.D. during previous

imprisonment; that he had made efforts at rehabilitation during

previous imprisonment; that he had no history of violence other

than the murders; that a death sentence would affect his

children; that he had behaved well while incarcerated; and that

he was a caring parent. Although the trial judge found that

Armstrong had proved these seven mitigating factors, he afforded

them “minimal weight” and determined that they were

“insufficient to call for leniency for each murder.”

¶23 Based on the conflicting evidence in this record on

these issues, we cannot conclude beyond a reasonable doubt that

no rational jury would find otherwise. After reviewing the

evidence, we cannot say that a jury would not have found

additional mitigating factors or weighed differently the

mitigating factors that were found. Furthermore, we cannot say

beyond a reasonable doubt that if a jury had found additional

mitigating circumstances or weighed the mitigating circumstances

differently, it would not have found them “sufficiently

- 13 -
substantial to call for leniency.” A.R.S. § 13-703(E).

Therefore we conclude that the Ring II error was not harmless in

this case.

CONCLUSION

¶24 Although we find harmless the trial judge’s finding of

the (F)(8) aggravating circumstance, we conclude that a

reasonable jury could differ in finding the (F)(5) aggravating

circumstance, in finding and weighing the mitigating

circumstances offered by Armstrong, and in its ultimate

determination whether the death penalty should be imposed.

Consequently, we vacate Armstrong’s death sentences and remand

for resentencing.

__________________________________
Rebecca White Berch, Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

- 14 -
J O N E S, Chief Justice, concurring in part, dissenting in

part:

¶25 I concur in the resentencing determination announced

in the Supplemental Opinion. I respectfully dissent, however,

from the notion that the denial of trial by jury on sentence

enhancement factors in violation of the Sixth Amendment is

subject to harmless error analysis by a reviewing court on

direct appeal.

¶26 The Supreme Court in Apprendi v. New Jersey, 530 U.S.

466, 494 n.19 (2000), a non-capital case, concluded that a Sixth

Amendment violation occurs when the trial judge alone determines

that sentencing enhancement factors exist, thereby increasing

the sentence beyond the maximum prescribed by statute. The

Court reasoned that such factors amount to “the functional

equivalent of an element of a greater offense than the one

covered by the jury’s guilty verdict” and that enhancement

factors under the “functional equivalency” standard must be

presented to and determined by the jury in order to satisfy the

mandate of the Sixth Amendment. Id. at 490.

¶27 Moreover, a concurring opinion in Apprendi reminds us

forcefully that the Sixth Amendment “means what it says” -- that

the right to trial by an impartial jury “has no intelligible

content unless it means that all the facts which must exist in

order to subject the defendant to a legally prescribed

- 15 -
punishment must be found by the jury.” Id. at 499 (Scalia, J.)

(emphasis in original).

¶28 Two years after Apprendi, the Court extended the rule

to capital cases, holding, under Arizona’s sentencing statutes,

that enhancement facts authorizing the death penalty must be

presented to and determined by the jury. Ring v. Arizona, 536

U.S. 584 (2002) (Ring II). Ring II expressly overruled Walton

v. Arizona, 497 U.S. 639 (1990), in which, twelve years earlier,

the Court upheld Arizona’s judge sentencing scheme in capital

cases even though the procedure then in use called for the trial

judge, not the jury, to find the aggravating facts that could

result in the death sentence. The Ring II Court observed

emphatically that Walton and Apprendi were “irreconcilable,”

that the Court’s current Sixth Amendment jurisprudence “cannot

be home to both,” and that because Arizona’s statutory

aggravating factors operated as “the functional equivalent of an

element of a greater offense,” the Sixth Amendment, consistent

with Apprendi, required that they be found by the jury. 536

U.S. at 609.

¶29 The announcement of Apprendi and Ring II necessarily

signaled the inevitable arrival of related issues. For example,

would Ring II apply retroactively to cases in which the direct

appeal process had become final?; and would sentence enhancement

- 16 -
findings made by the trial judge in violation of the Sixth

Amendment be subject to analysis for harmless error?

¶30 Both questions have now been raised and have provoked

the familiar debate between substance and procedure, as well as

the difference between structural error and trial error.

Matters of substance are generally subject to retroactive

application and are more likely to escape harmless error

analysis, while matters of procedure are normally not applied

retroactively and are generally subject to harmless error

analysis. Apprendi and Ring II prompt the question addressed in

the Supplemental Opinion in the instant case and in this

dissent: whether denial of the Sixth Amendment right to trial

by jury may be analyzed as procedural and thus treated as

harmless error?

¶31 Based primarily on the rationale set forth in Apprendi

and Ring II, I have posited that harmless error analysis cannot

legitimately be applied to jury denial, or at least that it

should not be so applied, for several reasons: (a) because the

constitutional sanctity of trial by jury preserves a right

“implicit in the concept of ordered liberty,” Teague v. Lane,

489 U.S. 288, 311 (1989); (b) because fact determinations

involving statutory enhancement factors form the sole basis for

the imposition of enhanced punishment, including capital

punishment; and (c) because a sentence enhancement factor

- 17 -
allowing sentencing beyond the maximum has been substantively

defined as “the functional equivalent of an element of a greater

offense,” Apprendi, 530 U.S. at 494 n.19.

¶32 Given this rationale, and because both Apprendi and

Ring II are now law, it has seemed to me that when the right to

jury trial has been abridged in these circumstances, there can

be no legitimate foundation on which to perform harmless error

analysis of the evidentiary weight to be accorded aggravating

factors that resulted in an enhanced sentence, including, of

course, a capital sentence.

¶33 But in the aftermath of Apprendi and Ring II and their

progeny, the Supreme Court decided Schriro v. Summerlin, ___

U.S. ___, 124 S. Ct. 2519 (2004). Summerlin holds that Ring II

shall not be applied retroactively to cases in which the direct

appeal process is complete and the final mandate of the court

has issued.4 The Summerlin Court explicitly defines the rule

announced in Ring II as a “new procedural rule,” not a rule of

substance. Id. at ___, 124 S. Ct. at 2526. Summerlin further

states the jury guarantee does not rise to the level of a

“watershed rule of criminal procedure implicating the

fundamental fairness and accuracy of the criminal proceeding.”

4
The Supreme Court’s decision in Summerlin is fully
consistent with this court’s unanimous opinion in State v.
Towery, 204 Ariz. 386, 64 P.3d 828, cert. denied, ___ U.S. ___,
124 S. Ct. 44 (2003).

- 18 -
Id. at ___, 124 S. Ct. at 2525; see also Saffle v. Parks, 494

U.S. 484 (1990); Teague v. Lane, 489 U.S. 288 (1989). I believe

the “new procedural rule” holding in Summerlin is at odds with

the substantive “functional equivalency” standard espoused in

Apprendi and Ring II.

¶34 Nevertheless, now that the Sixth Amendment right to

jury trial has been defined by Summerlin as a “new procedural

rule” limited to prospective application, it would appear my

view that erroneous jury denial is substantive and thus not

subject to harmless error analysis, is on shaky ground. The

shakiness is even more apparent in view of the recent Supreme

Court denial of certiorari in Arizona v. Sansing, 206 Ariz. 232,

77 P.3d 30 (2003), cert. denied, ___ U.S. ___ (2004), in which

this court, the dissent notwithstanding, affirmed the judge-

imposed death penalty on the basis that error in denying the

defendant’s right to trial by jury, was harmless.

¶35 Therefore, because of Summerlin and Sansing, together

with the added weight of the Supremacy Clause, I am constrained

to think the view I have advanced -- that denial of the Sixth

Amendment right to trial by jury is not susceptible to harmless

error analysis -- is, at best, on life support with little hope

of survival. I take some comfort, perhaps undeserved, in the

fact that Summerlin, as well as Apprendi and Ring II, were not

decided unanimously and that I am thus not entirely alone with

- 19 -
my opinion that the right to jury trial under the Sixth

Amendment is significantly more than a new procedural rule.

¶36 Summerlin dealt with retroactivity, not harmless

error. Accordingly, the door to argument against harmless error

analysis remains ajar, albeit ever so slightly. I therefore

register my dissent on the issue, though probably for the last

time.

¶37 On remand for resentencing, a jury will consider all

aggravating and mitigating factors in Armstrong’s case. I

concur in that result.

__________________________________
Charles E. Jones
Chief Justice

- 20 -