State v. Montano

SUPREME COURT OF ARIZONA

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-99-0439-AP
Appellee, )
) Pima County Superior
v. ) Court No. CR-58016
)
)
DANNY N. MONTAÑO, )
) S U P P L E M E N T A L
Appellant. ) O P I N I O N
)
__________________________________)

Appeal from the Superior Court of Pima County
The Honorable Deborah J.S. Ward, Judge Pro Tempore

REMANDED FOR RESENTENCING

Janet Napolitano, Former Attorney General Phoenix
Terry Goddard, Attorney General
by Kent E. Cattani, Chief Counsel,
Capital Litigation Section
and Robert L. Ellman
and James P. Beene
and John P. Todd
and Bruce M. Ferg Tucson
Assistant Attorneys General
Attorneys for the State of Arizona

Law Office of Carla G. Ryan Tucson
by Carla G. Ryan
Attorney for Danny N. Montaño

M c G R E G O R, Vice Chief Justice

¶1 The only issue before us is whether reversible error

occurred when a trial judge sentenced Danny N. Montaño to death

under a procedure that violated the right to a jury trial under the

Sixth Amendment to the United States Constitution. See Ring v.
Arizona, 536 U.S. 584, 609, 122 S. Ct. 2428, 2443 (2002) (Ring II).

We have jurisdiction pursuant to Article VI, Section 5.3 of the

Arizona Constitution and Arizona Revised Statutes (A.R.S.) section

13-4031 (2001). Based on our review of the record, we cannot

conclude that the Sixth Amendment violation constituted harmless
1
error.

I.

¶2 In Ring II, the United States Supreme Court held that

Arizona’s former capital sentencing scheme violated the Sixth

Amendment. Ring II, 536 U.S. at 609, 122 S. Ct. at 2443. The

Court declared that “[c]apital defendants, no less than non-capital

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 reversed

our decision in State v. Ring, 200 Ariz. 267, 25 P.3d 1139 (2001)

1
In Summerlin v. Stewart, 341 F.3d 1082 (9th Cir. 2003),
the court held that the rule announced in Ring II applies
retroactively to cases on federal habeas review and concluded that
a judge’s imposition of a death penalty “cannot be subject to
harmless error analysis.” Id. at *33. We are not bound by the
Ninth Circuit’s interpretation of what the Constitution requires.
See State v. Vickers, 159 Ariz. 532, 543 n.2, 768 P.2d 1177, 1188
n.2 (1989)(declining to follow a Ninth Circuit decision which held
Arizona’s death penalty statute unconstitutional because that
decision rested on “grounds on which different courts may
reasonably hold different views of what the Constitution
requires”); State v. Clark, 196 Ariz. 530, 533 ¶ 14, 2 P.3d 89, 92
(App. 1999) (same). Accordingly, we decline to revisit our
conclusion that Ring II error can be reviewed for harmless error.

2
(Ring I), and remanded for further proceedings consistent with its

decision. Ring II, 536 U.S. at 609, 122 S. Ct. at 2443.

¶3 Following the Supreme Court’s Ring II decision, we

consolidated all death penalty cases in which this court had not

yet issued a direct appeal mandate to determine whether Ring II

requires this court to reverse or vacate the defendants’ death

sentences. In State v. Ring, 204 Ariz. 534, ___ ¶ 53, 65 P.3d 915,

936 (2003) (Ring III), we held that we will examine a death

sentence imposed under Arizona’s superseded capital sentencing

statutes for harmless error.

II.

¶4 A jury convicted Montaño of first degree murder and

conspiracy to commit first degree murder for the death of Raymond

Jackson. Montaño and Jackson were inmates at the Arizona State

Prison Cimmaron Unit in Tucson. On August 7, 1995, during an open

pod period, Montaño and another inmate, David Jiminez, entered

Jackson’s cell. While Jiminez held him down, Montaño stabbed

Jackson 179 times. Jackson died shortly thereafter.2

¶5 After entering judgment, the trial judge conducted a

sentencing hearing to determine whether any aggravating or

mitigating circumstances existed. See A.R.S. § 13-703 (Supp.

1999), amended by 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, §

2
For a more thorough description of the facts, see State
v. Montaño, 204 Ariz. 413, 65 P.3d 61 (2003).

3
1. The judge found four aggravating circumstances. She found,

beyond a reasonable doubt, that Montaño had been previously

convicted of a prior offense punishable by death or life

imprisonment under Arizona law, A.R.S. section 13-703.F.1, that

Montaño had been previously convicted of a prior serious offense,

A.R.S. section 13-703.F.2, that Montaño committed the murder in an

especially cruel manner, A.R.S. section 13-703.F.6, and that the

murder was committed while Montaño was in the custody of the

Arizona Department of Corrections (ADOC), A.R.S. section 13-

703.F.7.

¶6 Montaño argued that two statutory mitigating

circumstances exist, and the judge rejected both as not proven by

a preponderance of the evidence. Montaño argued that his “capacity

to appreciate the wrongfulness of his conduct or to conform his

conduct to the requirements of law was significantly impaired, but

not so impaired as to constitute a defense to prosecution.” A.R.S.

§ 13-703.G.1. The judge held that the mitigation evidence failed

to prove a causal nexus between Montaño’s upbringing and

polysubstance abuse and his ability to conform his conduct to the

law’s requirements on the day of the murder. Montaño also argued

that he “was under unusual and substantial duress, although not

such as to constitute a defense to prosecution” when he committed

the murder. A.R.S. § 13-703.G.2. The judge concluded that the

evidence did not support Montaño’s argument that he murdered

4
Jackson because of his involvement with a prison gang. Nothing in

the record established that the gang ordered Montaño to kill

Jackson.

¶7 Montaño sought to prove thirteen non-statutory mitigating

circumstances. The trial judge found four proven by a

preponderance of the evidence: biographical misfortune-condition of

birth, learning disability in mathematics, polysubstance abuse, and

low to borderline I.Q.3 The judge rejected the following:

Attention Deficit Hyperactivity Disorder, lack of effective

intervention and treatment, the corrupt and coercive prison

reality, the victim, circumstantial evidence, preliminary hearing

testimony, prison homicide, potential outcome disparity, and the

opinions and feelings of others.

¶8 After reviewing the evidence, the judge determined that

the four established mitigators were not entitled to any mitigating

weight. She found that although Montaño was an alcoholic and drug

user as a teenager, his parents worked hard to provide a loving

family environment. The judge recognized that his “family worked

very hard to provide [him] with a safe and nurturing environment,”

and that his “family did everything they could do to try to [deter]

3
In the Special Verdict, the trial judge held that the
defense had proven the polysubstance abuse mitigating circumstance.
In a statement summarizing her mitigation findings, however, the
judge did not include polysubstance abuse as an established
mitigating circumstance. We assume that the omission is
accidental, and that the polysubstance abuse mitigating
circumstance was proven by a preponderance of the evidence.

5
the defendant’s participation in the criminal justice system.”

Concluding that there was no causal relation between Montaño’s

family life and the murder, the judge assigned no weight to the

biographical misfortune-condition of birth mitigating circumstance.

Likewise, she concluded that Montaño’s learning disability was not

causally related to the murder. The judge further held that

Montaño was not impaired by alcohol or drugs at the time of the

murder and that his low I.Q. did not impact his ability to conform

his conduct to law at the time of the murder.

¶9 The judge concluded that none of the mitigating

circumstances were sufficiently substantial to call for leniency

and sentenced Montaño to death.

¶10 We affirmed Montaño’s convictions on direct appeal and

ordered supplemental briefing on the issue of whether the Sixth

Amendment Ring II error was harmless. Montaño, 204 Ariz. at ___ ¶

85, 65 P.3d at 77. We will find constitutional error harmless if

we conclude, beyond a reasonable doubt, that the error did not

contribute to or affect the sentencing outcome. Ring III, 204

Ariz. at ___, ¶¶ 103-04, 65 P.3d at 946. If we conclude that

reasonable doubt exists, however, then the error is prejudicial and

the case must be remanded for a new sentencing hearing under

Arizona’s amended capital sentencing statutes. Id. at ___, ¶ 102,

65 P.3d at 946.

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 III.

A.

¶11 Arizona law recognizes two separate prior conviction

aggravating circumstances. These aggravators exist when either

“[t]he defendant has been convicted of another offense in the

United States for which under Arizona law a sentence of life

imprisonment or death was imposable,” A.R.S. section 13-703.F.1, or

“[t]he defendant was previously convicted of a serious offense,

whether preparatory or completed,” A.R.S. § 13-703.F.2. The trial

judge found that Montaño had been previously convicted of two

counts of armed robbery in which he received two concurrent life

sentences. She also recognized Montaño’s conspiracy to commit

first degree murder conviction as a prior offense.

¶12 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.” 204 Ariz. at ___ ¶ 55, 65 P.3d at 937.

Accordingly, we will not disturb the trial judge’s finding that the

prior serious conviction aggravating circumstance exists.

B.

¶13 Arizona law provides for an aggravating circumstance if

a person commits first degree murder while “in the custody

of . . . the state department of corrections.” A.R.S. § 13-

703.F.7. James Grider, an ADOC investigator, testified that

7
Montaño was an inmate on the day of the murder. The defense did

not challenge Grider’s testimony.

¶14 Indeed, Montaño conceded the in-custody aggravating

circumstance as part of his penalty phase mitigation arguments. In

Ring III, we held that “[i]n cases in which a defendant stipulates,

confesses or admits to facts sufficient to establish aggravating

circumstance, we will regard that factor as established.” 204

Ariz. at ___ ¶ 93, 65 P.3d at 944. Montaño attempted to prove

several mitigating circumstances by relying upon his status as a

prisoner. We therefore conclude that the in-custody aggravating

circumstance is established beyond a reasonable doubt.

C.

¶15 The State establishes the especially cruel aggravating

circumstance if it proves, beyond a reasonable doubt, that “the

victim consciously experienced physical or mental pain prior to

death, 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).

¶16 Jackson was stabbed 179 times. The medical examiner

testified that Jackson could have been alive anywhere between one

and three minutes or five and ten minutes after the first fatal

stab wound, depending upon which wound was inflicted first.

According to the medical examiner, Jackson would have suffered

8
shock and then lost consciousness after losing two to three pints

of blood.

¶17 Testimony elicited during cross-examination raised the

possibility that Jackson fell unconscious after receiving blows

from either Montaño or Jiminez before the stabbing began. If that

were true, Jackson would have been unconscious before blood loss

began.

¶18 The State introduced evidence indicating that screams of

pain and torture emanated from Jackson’s cell after Montaño and

Jiminez entered. While the testimony suggests that Jackson was

conscious during the stabbing, his screams also could indicate his

reaction to the fighting taking place beforehand. Given the

evidence, we cannot conclude, beyond a reasonable doubt, that all

reasonable juries would find Jackson’s death especially cruel.

¶19 We conclude that the especially cruel finding is not

harmless beyond a reasonable doubt. Whether Jackson lost

consciousness before the stabbings began or thereafter presents a

question of fact. Cf. State v. Jones, ___ Ariz. ___, ___ ¶ 14, ___

P.3d ___, ___ (2003) (holding that a jury could conclude that the

victim lost consciousness immediately following the first assault).

Montaño is entitled to a jury determination of this issue.

IV.

¶20 To sentence a defendant to death, the trier of fact must

not only find, beyond a reasonable doubt, the existence of one or

9
more aggravating circumstances, but also consider whether any

mitigating circumstances are sufficiently substantial to call for

leniency. See A.R.S. § 13-703.E. We may “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.”

Ring III, 204 Ariz. at ___ ¶ 104, 65 P.3d at 946.

¶21 Montaño’s penalty phase mitigation theory alleged that

several factors contributed to his inability to conform his conduct

to law on the day of the murder. The defense introduced three

expert witnesses claiming that Montaño’s parents, the educational

system, and the state failed to recognize certain problems he

encountered while a teenager, such as his alcohol and drug abuse.

Additionally, according to the expert testimony, Montaño’s parents

were preoccupied with an incident in which his sister was molested

by a neighbor, which diverted their attention from his problems.

Montaño also alleged that his substance abuse problems contributed

to his propensity to commit crimes and that his low I.Q. rendered

him unable to understand the legality of his conduct.

¶22 Hector Jose Fernandez Barillas, a clinical psychologist

and expert witness for the defense, examined these factors and

concluded that they impaired Montaño’s ability to appreciate the

wrongfulness of his conduct on the day of the murder:

Q. In your report you concluded that reviewing all of
this information and testing the defendant, going

10
 over his academic history and his problems that he
had when he was younger, that all of this affected
his ability to conform his conduct to the law?

A. Yes.

Q. Can you -- is this your opinion?

A. Yes, it is.

Q. And this would relate to Mr. Montaño’s inability to
conform his conduct to the law at the time of the murder
he has been convicted of?

A. Yes.

¶23 If a jury had believed this expert testimony, it could

have adopted one or more of Montaño’s proffered mitigating

circumstances. Furthermore, we cannot say beyond a reasonable

doubt that no reasonable jury would have weighed differently the

established aggravating and mitigating circumstances or determined

that the mitigating circumstances were “sufficiently substantial to

call for leniency.” A.R.S. § 13-703.E. We therefore conclude that

the Sixth Amendment error was not harmless.

V.

¶24 Montaño argues that mitigation evidence presented at the

original aggravation/mitigation hearing entitles him to testing for

mental retardation under A.R.S. section 13-703.02 (Supp. 2002). We

cannot conclude, on the record before us, whether Montano suffers

from mental retardation. We need not resolve this issue, however,

because section 13-703.02 will apply at Montaño’s resentencing

proceeding.

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¶25 In 2001, the Arizona Legislature enacted A.R.S. section

13-703.02, prohibiting the state from executing persons with mental

retardation. A first degree murder defendant afflicted with mental

retardation must be sentenced to life or natural life in prison.

A.R.S. § 13-703.02.A. Although the law as enacted applied

prospectively, the legislature, in 2002, amended the statute to

“apply to any sentencing or resentencing proceeding on any first

degree murder case that is held after the effective date of this

act.” 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1 § 7.A; State

v. Cañez, ___ Ariz. ___, ___ n.1, 74 P.3d 932, 937 n.1 (2003).

VI.

¶26 For the foregoing reasons, we vacate Montaño’s death

sentence and remand for resentencing under A.R.S. sections 13-703

and 13-703.01 (Supp. 2002).

____________________________________
Ruth V. McGregor, Vice Chief Justice

CONCURRING:

Rebecca White Berch, Justice

Michael D. Ryan, Justice

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

¶27 I concur in the result, but 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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