State v. Canez

SUPREME COURT OF ARIZONA

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-98-0488-AP
Appellee,)
) Pinal County
v. ) Superior Court
) No. CR-96-021235
ARTURO ANDA CAÑEZ, )
)
Appellant.) SUPPLEMENTAL OPINION
)

Appeal from the Superior Court in Pinal County
The Honorable Boyd T. Johnson, Judge

VACATED AND REMANDED

JANET A. NAPOLITANO, ARIZONA ATTORNEY GENERAL Phoenix
by Kent E. Cattani, Chief Counsel,
Capital Litigation Section
and Robert L. Ellman, Assistant Attorney General
and James P. Beene, Assistant Attorney General
and John P. Todd, Assistant Attorney General
and Bruce M. Ferg, Assistant Attorney General Tucson
Attorneys for Appellee

Thomas J. Phalen Phoenix
and
Tara K. Allen Tempe
Attorneys for Appellant

B E R C H, Justice

¶1 Arturo Anda Cañez 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 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. 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.

¶2 On remand, we consolidated all cases, including Cañez’s,

in which the death penalty had been imposed but the mandate had not

yet issued from this court to determine whether Ring II required

reversal or vacatur of the death sentences. State v. Ring, ___

Ariz. ___, ___, ¶¶ 5-6, 65 P.3d 915, 925 (2003) (Ring III). We

concluded that we must review each death sentence imposed in these

cases under Arizona’s superseded capital sentencing statutes for

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

¶3 We now consider whether the death sentence imposed on

Cañez can stand in light of Ring II and Ring III, as well as the

Supreme Court’s decision in Atkins v. Virginia, which held that the

Eighth Amendment of the United States Constitution poses a

constitutional bar to the execution of mentally retarded persons.

536 U.S. 304, 321, 122 S. Ct. 2242, 2252 (2002).

FACTS AND PROCEDURAL HISTORY

¶4 On February 5, 1998, a jury found Arturo Anda Cañez

guilty of felony murder, first degree burglary, and two counts of

armed robbery. State v. Cañez, 202 Ariz. 133, 145, ¶ 15, 42 P.3d

564, 576 (2002). Following a sentencing hearing, the trial judge

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found that the State had proved the following four aggravating

circumstances beyond a reasonable doubt, rendering Cañez eligible

to receive the death sentence: (1) Cañez had been convicted of

four prior serious offenses, Ariz. Rev. Stat. (“A.R.S.”) § 13-

703(F)(2), (H)(1) (Supp. 1996); (2) the victim was at least seventy

years old at the time of the crime, id. § 13-703(F)(9); (3) the

murder was committed in expectation of pecuniary gain, id. § 13-

703(F)(5); and (4) the offense was committed in an especially

heinous, cruel, or depraved manner, id. § 13-703(F)(6). Cañez, 202

Ariz. at 157-62, ¶¶ 83-109, 42 P.3d at 588-93. The trial judge

found that Cañez failed to prove the statutory mitigating

circumstance of significant mental impairment, A.R.S. § 13-

703(G)(1), and that “the cumulative effect of all of the mitigation

offered by the defendant . . . [was] not sufficiently substantial

to call for leniency.” Cañez, 202 Ariz. at 162, 165, ¶¶ 111, 125,

42 P.3d at 593, 596. He therefore sentenced Cañez to death. We

affirmed Cañez’s conviction and death sentence on direct appeal.

Id. at 165, ¶ 126, 42 P.3d at 596.

DISCUSSION

A. Ring II Error

¶5 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. ___ Ariz. at ,

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¶¶ 53, 103, 65 P.3d at 936, 946. We now examine whether the Ring

II error was harmless with respect to each of the aggravating

circumstances found by the trial judge in Cañez’s case.

1. Aggravating Circumstances

a. Prior Serious Convictions

¶6 Arizona law provides that a conviction for a prior

serious offense constitutes an aggravating circumstance that

renders a defendant eligible to receive the death penalty. A.R.S.

§ 13-703(F)(2). The trial judge found that the State had proved

beyond a reasonable doubt that Cañez had four prior felony

convictions. Cañez, 202 Ariz. at 157, ¶ 84, 42 P.3d at 588. Cañez

did not contest that these felonies qualify as serious offenses.

Id. ¶ 83. In Ring III, we held that “the Sixth Amendment does not

require a jury to determine prior convictions under sections 13-

703.F.1 and F.2.” ___ Ariz. at ___, ¶ 55, 65 P.3d at 936-37.

Accordingly, we affirm the trial judge’s finding that the State

proved the aggravating circumstance of four prior serious felony

convictions.

b. Elderly Victim

¶7 An aggravating circumstance exists if at the time the

murder was committed, “the murdered person was . . . seventy years

of age or older.” A.R.S. § 13-703(F)(9). The trial judge found

that the State proved beyond a reasonable doubt that the victim was

at least seventy years old at the time the murder was committed.

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Cañez, 202 Ariz. at 158-59, ¶ 90, 42 P.3d at 589-90.

¶8 In Ring III, we held that Ring II error in the finding of

the (F)(9) aggravator will be harmless if (1) the jury also

convicted the defendant of an “age-dependent crime committed

against the murder victim,” Ring III, ___ Ariz. at ___, ¶ 86, 65

P.3d at 942; (2) the defendant stipulated to the victim’s age; or

(3) overwhelming evidence established the victim’s age. Id.

¶9 The jury did not convict Cañez of an age-dependent crime,

nor did Cañez stipulate to the victim’s age. However, the evidence

presented concerning the victim’s age was overwhelming and

uncontroverted. Cañez neither objected to nor controverted the

testimony of the victim’s son that the victim was born on June 26,

1918, nor did he contest that the crime was committed on February

22, 1996. This testimony was corroborated by a birth certificate,

photographs of the victim’s body, and testimony by the coroner that

the autopsy results were consistent with the body of a 77-year-old

man. Although Cañez objected to the admission of the victim’s

birth certificate on authentication grounds, that objection was

overruled, and Cañez did not present any evidence that controverted

the validity of the birth date contained on the document. Based on

the foregoing, we conclude beyond a reasonable doubt that no

reasonable jury presented with this evidence could fail to find

that the victim was more than seventy years old at the time of the

crime. Therefore, the trial judge’s finding that the State proved

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the (F)(9) aggravating factor beyond a reasonable doubt is harmless

error.

c. Pecuniary Gain

¶10 The commission of an offense “in expectation of the

receipt . . . of anything of pecuniary value” is an aggravating

circumstance under Arizona law. A.R.S. § 13-703(F)(5). The

finding of pecuniary gain “requires more than the jury’s conviction

of a defendant for first degree murder and robbery or burglary.”

Ring III, ___ Ariz. at ___, ¶ 78, 65 P.3d at 941. The State must

also prove that the expectation of pecuniary gain was a “motive,

cause, or impetus for the murder and not merely the result of the

murder.” Id. ¶ 77 (quoting State v. Kayer, 194 Ariz. 423, 433,

¶ 32, 984 P.2d 31, 41 (1999)). We cannot affirm the trial judge’s

pecuniary gain finding unless we are convinced beyond a reasonable

doubt that no reasonable jury could fail to find that the State

proved pecuniary gain beyond a reasonable doubt. Id. ¶ 79.

¶11 The trial judge found that “the offense was motivated by

the desire for pecuniary gain,” “the objective was the robbery of

the victim,” and “the death occurred in the course of and in

furtherance of the defendant’s efforts to obtain the victim’s

property.” Cañez, 202 Ariz. at 159, ¶ 91, 42 P.3d at 590. The

judge’s findings were primarily based on the pretrial statements

and trial testimony of Brian Patterson, a co-defendant, who had

entered into a plea agreement with the State in exchange for his

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testimony. At trial, Patterson alternatively denied the validity

of three separate and conflicting prior statements about the events

on the night of the murder or stated that he could not recall

making them.

¶12 The pecuniary gain finding rested heavily on the trial

judge’s assessment of Patterson’s credibility and a determination

of which portions of his testimony were true. We cannot say beyond

a reasonable doubt that a reasonable jury considering Patterson’s

testimony and pretrial statements in the context of determining

whether Cañez’s expectation of pecuniary gain was a motive, cause,

or impetus for the murder, would accord them the same weight or

come to the same conclusions as did the trial judge. Therefore, we

conclude that the Ring II error as to the (F)(5) aggravating

circumstance was not harmless.

d. Especially Heinous, Cruel, or Depraved

¶13 That a murder is committed in an especially heinous,

cruel, or depraved manner is an aggravating factor under Arizona

law. A.R.S. § 13-703(F)(6). The State must prove only one of

these factors to establish the (F)(6) aggravating factor. State v.

Gretzler, 135 Ariz. 42, 51, 659 P.2d 1, 10 (1983). The trial judge

found the murder especially cruel, as well as heinous or depraved.

See Cañez, 202 Ariz. at 160, ¶ 99, 42 P.3d at 591. On direct

appeal we affirmed the finding that the murder was especially

cruel, but found the evidence insufficient to support the findings

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of heinousness and depravity. See id. at 161-62, ¶¶ 104-09, 42

P.3d at 592-93. We therefore analyze only the cruelty factor.

¶14 The cruelty factor is established by proof that the

manner of death caused the victim to suffer mental and physical

anguish, see Gretzler, 135 Ariz. at 51, 659 P.2d at 10, “and the

defendant knew or should have known that suffering would occur.”

State v. Trostle, 191 Ariz. 4, 18, 951 P.2d 869, 883 (1997)

(citations omitted).

¶15 The trial judge based his cruelty finding on evidence

that the victim was conscious when Cañez first stabbed him and

remained at least partially conscious through the attempted

strangulation and beating. Cañez argued that the evidence did not

establish that the victim remained conscious during the attack.

Indeed, the medical examiner testified that she could not determine

the order in which the injuries were inflicted and that any of the

ten blunt force injuries to the head could have resulted in

immediate unconsciousness. We cannot say beyond a reasonable doubt

that a reasonable jury hearing this evidence would necessarily

conclude that the victim remained partially conscious after the

initial attack and therefore find the murder was cruel.

¶16 Because we cannot say, beyond a reasonable doubt, that a

reasonable jury hearing the evidence would find that the murder was

especially cruel, we conclude that the Ring II error was not

harmless with respect to the (F)(6) aggravating factor.

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2. Mitigating Circumstances

¶17 Our harmless error inquiry does not end with an

examination of the aggravating circumstances. Because we can

affirm a capital sentence only if we can conclude beyond a

reasonable doubt “that no rational trier of fact would determine

that the mitigating circumstances were sufficiently substantial to

call for leniency,” we must also consider whether reversible error

occurred with respect to the mitigating circumstances. Ring III,

___ Ariz. at ___, ¶ 104, 65 P.3d at 946.

a. Statutory Mitigation

¶18 It is a statutory mitigating factor that a “defendant’s

capacity to appreciate the wrongfulness of his conduct or to

conform his conduct to the requirements of law was significantly

impaired.” A.R.S. § 13-703(G)(1). Cañez sought to establish the

(G)(1) factor by demonstrating that he was mentally retarded, was

on medication for seizures, suffered a depressive disorder,

exhibited symptoms of brain damage, was a drug addict, and was

intoxicated at the time of the offense. Cañez, 202 Ariz. at 162,

¶ 111, 42 P.3d at 593.

¶19 Cañez presented evidence that his full-scale IQ was 70,

placing him on the borderline of mental retardation. However,

three psychological experts offered conflicting testimony

concerning Cañez’s adaptive abilities. Cañez’s first expert, Dr.

Tatro, testified that Cañez had “borderline personality disorder

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with antisocial features, intermittent explosive personality

disorder, depressive disorder recurrent, and possible organic brain

syndrome.” Id. at 163, ¶ 113, 42 P.3d at 594. Cañez’s second

expert, Dr. Blackwood, found some indication of organic brain

damage, but suggested that Cañez may not have been trying to do

well on the tests. Id. The State’s expert, Dr. Youngjohn,

testified that he found no evidence of mental illness or brain

damage, but diagnosed antisocial personality disorder and

psychopathic personality disorder. Id. The trial judge accorded

more weight to the State’s expert and concluded that Cañez failed

to prove he was significantly impaired for purposes of mitigation.

Id. ¶ 114.

¶20 On direct appeal, we noted that the evidence of brain

damage, mental illness, and retardation was conflicting. Id.

¶ 113. Nevertheless, we upheld the trial court’s finding that

Cañez failed to establish the (G)(1) factor because we accorded

great deference to the trial judge’s conclusions concerning the

weight to be given to the various expert testimony. Id. ¶ 114.

Because this finding rests so heavily on the trial judge’s

assessment of witness credibility, we cannot say beyond a

reasonable doubt that a reasonable jury would necessarily also

conclude that Cañez failed to establish by a preponderance of the

evidence the (G)(1) statutory mitigator.

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b. Non-Statutory Mitigation

¶21 Cañez offered evidence on several non-statutory

mitigating factors at the sentencing hearing. Id. at 163-65,

¶¶ 115-25, 42 P.3d at 594-96. The trial judge found, and we

affirmed on direct appeal, that Cañez had proved by a preponderance

of the evidence the following non-statutory mitigating factors:

drug and alcohol use, felony murder, his love of family, and mental

illness or impairment. Id. at 163-64, ¶¶ 116-17, 120-22, 42 P.3d

at 594-95. The trial judge also found, and we affirmed, that Cañez

failed to prove the non-statutory mitigating factors of good

character, traumatic childhood and dysfunctional family, and

disparate sentence of a co-defendant. Id. at 164-65, ¶¶ 118-19,

124, 42 P.3d at 595-96. We also concluded that the cumulative

effect of all the mitigation was not sufficiently substantial to

call for leniency. Id. at 165, ¶ 126, 42 P.3d at 596.

¶22 After reviewing the evidence, we cannot say beyond a

reasonable doubt that a reasonable jury would not have found that

Cañez proved some of the mitigating factors that the trial judge

found were not proven. Furthermore, we cannot say beyond a

reasonable doubt that a reasonable jury would not have weighed

differently the aggravating or mitigating factors that were found

or determined that the mitigating factors were “sufficiently

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.

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Accordingly, for this reason as well, we vacate Cañez’s death

sentence because of the Ring II error and remand for resentencing

as discussed more fully below.

B. Mental Retardation as an Absolute Bar to Execution

¶23 Our inquiry is not yet complete. While Cañez’s case

remained on direct appeal, the Supreme Court announced that the

Eighth Amendment to the United States Constitution “‘places a

substantive restriction on the State’s power to take the life’ of

a mentally retarded offender.” Atkins v. Virginia, 536 U.S. 304,

321, 122 S. Ct. 2242, 2252 (2002) (quoting Ford v. Wainright, 477

U.S. 399, 405, 106 S. Ct. 2595, 2599 (1986)). Furthermore, in

2001, shortly before the decision in Atkins was announced, the

Arizona legislature enacted a statute barring the imposition of the

death sentence on mentally retarded persons.1 A.R.S. § 13-703.02

(Supp. 2002). We now consider the impact of these events on

Cañez’s case.

¶24 In Atkins, the Court gave some guidance regarding how to

determine whether a defendant has mental retardation. The Court

noted that “clinical definitions of mental retardation require not

only subaverage intellectual functioning, but also significant

1
We note that as originally written, § 13-703.02 applied
only prospectively to cases in which the State filed its notice of
intent to seek the death penalty after the effective date of the
statute. However, the statute was amended in 2002 to apply to all
capital sentencing proceedings, including resentencing proceedings.
See A.R.S. § 13-703.02(J); 2002 Ariz. Sess. Laws 5th Spec. Sess.,
ch. 1, § 4.

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limitations in adaptive skills such as communication, self-care,

and self-direction that became manifest before age 18.” Atkins,

536 U.S. at 318, 122 S. Ct. at 2250. An IQ below 70-75 indicates

subaverage intellectual functioning. Id. at 309 nn.3 & 5, 122 S.

Ct. at 2245 nn.3 & 5.

¶25 We addressed the application of the standards set forth

in Atkins to our death penalty cases in State v. Grell, ___ Ariz.

___, 66 P.3d 1234 (2003). Like Cañez, Grell was sentenced to death

after the trial judge found that he had failed to establish that he

had mental retardation. Id. at ___, ¶ 27, 66 P.3d at 1238. We

noted in Grell that because Grell was sentenced before the Supreme

Court’s decision in Atkins, the trial judge had considered the

mental retardation evidence from the perspective that such evidence

might establish a statutory mitigating factor calling for leniency

in sentencing, not from the perspective that such evidence might

establish an absolute bar to execution. Id. at ___, ¶ 37, 66 P.3d

at 1240. We concluded that the Atkins decision prohibiting the

execution of mentally retarded offenders as well as Arizona’s new

statute barring the imposition of the death penalty on mentally

retarded offenders had “so changed the landscape of death penalty

jurisprudence that the trial court simply could not have applied

the correct principles during sentencing.” Id. ¶¶ 37-38. As a

consequence, we held that due process required that Grell’s case be

remanded for an Atkins hearing to determine whether Grell has

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mental retardation. See id. ¶ 41.

¶26 As discussed above, the evidence presented at Cañez’s

sentencing established that his full-scale IQ was 70, placing him

squarely within Atkins’ definition of subaverage intellectual

functioning.2 Additional evidence established that Cañez attended

special education classes during grade school, demonstrating that

any subaverage mental abilities may have manifested before age 18.

Most important, however, is the fact that the evidence concerning

Cañez’s mental abilities was considered only from the viewpoint of

establishing mitigation, not as a potential bar to execution.

¶27 Due process demands that Cañez receive a hearing at which

the court considers the mental retardation evidence under the

constitutional principles announced in Atkins and the statutory

standards set forth in A.R.S. § 13-703.02. We remand to the trial

court to determine whether Cañez has mental retardation and

therefore is ineligible to receive the death penalty. In making

this determination, the trial court should follow the principles

announced in Atkins and the procedures set forth in A.R.S. § 13-

703.02, to the extent possible given the post-trial posture of this

2
The Arizona legislature has adopted a definition of
mental retardation very similar to that set forth in the DSM-IV,
which requires proof of “(1) significantly subaverage intellectual
functioning (IQ of 70 or below), (2) concurrent deficits or
impairments in present adaptive functioning in at least two of
eleven areas, and (3) onset before the age of 18.” Grell, ___
Ariz. at ___, ¶ 30, 66 P.3d at 1239 (describing application of the
DSM-IV) (footnote omitted); A.R.S. § 13-703.02(K).

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case. If the court determines that Cañez has mental retardation,

the court shall resentence Cañez to life or natural life in prison.

See id. § 13-703.02(A). If the court determines that Cañez does

not have mental retardation, the court shall conduct a resentencing

hearing before a jury, according to the procedures set forth in

A.R.S. § 13-703.01 (Supp. 2002).

CONCLUSION

¶28 We vacate Cañez’s death sentence and remand this case for

resentencing and for a determination of whether Cañez has mental

retardation and is therefore ineligible for the death penalty. If

the court determines that Cañez suffers from mental retardation,

the court shall enter a lawful sentence pursuant to A.R.S. §§ 13-

703 to -703.02. If the court determines that Cañez does not have

mental retardation, the court shall conduct a jury resentencing

pursuant to A.R.S. §§ 13-703 to -703.01.

Rebecca White Berch, Justice

CONCURRING:

Ruth V. McGregor, Vice Chief Justice

Michael D. Ryan, Justice

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J O N E S, C.J., concurring in part, dissenting in part:

¶29 I concur in Section B of the opinion and the result, but

respectfully dissent from the majority’s conclusion that harmless

error analysis is appropriate where sentencing determinations are

made by the trial judge in the absence of the jury. The right to

trial by an impartial jury is fundamental. The sentencing phase

is, of itself, a life or death matter. Where a judge, not a jury,

determines all questions pertaining to sentencing, I believe a

violation of the Sixth Amendment to the Constitution of the United

States has occurred. In the aftermath of the Supreme Court’s

decision in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002)

(Ring II), the absence of the jury in the sentencing phase of a

capital trial necessarily amounts to structural error. I would

remand the case for resentencing, simply on the basis of the Sixth

Amendment violation. See State v. Ring, ___ Ariz. ___, ___ ¶¶ 105-

14, 65 P.3d 915, 946-48 (2003) (Feldman, J., concurring in part,

dissenting in part) (Ring III).

Charles E. Jones, Chief Justice

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