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Structural errors “are those which ‘deprive defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for guilt or innocence.’”

¶7 ¶ 88 (2003), the Arizona Supreme Court held there is no error under Apprendi/Blakely if the sentencing factor is implicit in the jury’s verdict of guilt.

See State v. Ring (Ring III), ¶ 5, (“At the time of the Ring II decision, thirty- one defendants sentenced to death had matters pending on direct appeal before this court.”).

But “[u]nder both Arizona’s superseded and current capital sentencing schemes, a defendant’s [capital] trial consists of two phases: a guilt phase and a penalty phase.” ¶ 50

“[A] defendant holds no absolute right to a penalty trial with the same judge or jurors who heard the evidence on guilt.” ¶ 81, ( ¶¶ 39–40, ).

See, ¶ 18, ¶ 45, Bible, 175 Ariz. at 588, 858 P.2d at 1191.

“Our constitutional system requires adherence to the rule of law established in Almendarez-Torres unless and until the [United States Supreme] Court unequivocally disapproves its holding.” ¶ 61

“Double jeopardy principles[, however,] generally do not apply to sentencing proceedings.” ¶ 27, accord Monge v. California, 524 U.S. 721, 728 (1998).

ty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.”) (emphasis added); Apprendi, 530 U.S. at 490 (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”) (emphasis added); State v. Ring (Ring III), –56, ¶ 55, –37 (2003) (holding that Almendarez- Torres controls and that the Sixth Amendment does no

5-6 (explaining that a comment on a defendant’s failure to testify may be “harmless error” or “fundamental error,” depending on the facts of the case); State v. Ring (Ring III), -53, ¶ 46, -34 (2003) (providing specific examples of structural error, which is rarely applied).

See, ¶ 60, (citing Apprendi v. New Jersey, 530 U.S. 466, 488 (2000) (holding that a judge may decide the “fact” of a prior conviction for sentence enhancement purposes without violating due process because prior convictions have already been proved through proceedings incorporating procedural

State v. Ring (Ring III), ¶¶ 45-46, -34 (2003).

See State v. Ring (Ring III), ¶ 40, (“A capital defendant whose original sentence is vacated on appeal can be resentenced to death so long as the defendant has not been ‘acquitted’ of the death sentence.”).

The improper denial of a public trial constitutes structural error, & n.16, -34 & 934 n.16 (2003), and, consequently, prejudice is presumed and need not be shown by the defendant.3 Waller v. Georgia, 467 3 Relying on Peretz v. United States, 501 U.S. 923 (1991), Levine v. United States, 362 U.S. 610 (1960), and United States v. Christi, 682 F.

1827 , 144 L.Ed.2d 35 (1999) (stating that erroneous denial of self-representation at trial is structural error)); ¶ 46 , (“Ring III”) (citing McKaskle v. Wiggins, 465 U.S. 168 , 104 S.Ct.

2 , (lower court must leave Supreme Court to overrule its own decisions).

mental error when “no reasonable jury could fail to find” aggravator proven beyond a reasonable doubt); ¶ 51, (“When ‘a defendant stipulates, confesses or admits to facts sufficient to establish an aggravating circumstance, [the court] will regard that factor as established.’” ( ¶ 93, (alteration in Murdaugh))).

“A capital defendant whose original sentence is vacated on appeal can be resentenced to death so long as the defendant has not been ‘acquitted’ of the death sentence.” State v. Ring (Ring III), ¶ 40

Structural errors “deprive defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence and no criminal punishment may be regarded as fundamentally fair.” ¶ 45 , (quoting Neder v. United States, 527 U.S. 1, 8-9 , 119 S.Ct.

15, (holding that State’s failure to provide written notice of 28 intended aggravating factor under prior version of Rule 15.1 was not reversible error when defendant had timely actual notice and was not prejudiced); ¶ 50, (holding that harmless error analysis applies to failure to submit the aggravating circumstance element of capital murder to a jury).