Nordstrom v. Cruikshank, 2 CA-SA 2006-0056.

• Decision Date: 14 September 2006
• Docket Number: No. 2 CA-SA 2006-0056.,2 CA-SA 2006-0056.
• Citation: 213 Ariz. 434,142 P.3d 1247
• Parties: Scott Douglas NORDSTROM, Petitioner, v. Hon. Michael CRUIKSHANK, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and The STATE of Arizona, Real Party in Interest.
• Court: Arizona Court of Appeals

142 P.3d 1247

213 Ariz. 434

Scott Douglas NORDSTROM, Petitioner, v. Hon. Michael CRUIKSHANK, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and The STATE of Arizona, Real Party in Interest.

No. 2 CA-SA 2006-0056.

Court of Appeals of Arizona, Division 2, Department A.

September 14, 2006.

David Darby, Tucson, Attorney for Petitioner.

Barbara LaWall, Pima County Attorney By Taren M. Ellis and Rick Unklesbay, Tucson Attorneys for Real Party in Interest.

OPINION

HOWARD, Presiding Judge.

¶ 1 In this special action, we are asked to determine the scope of petitioner Scott Douglas Nordstrom's sentencing trial, which is scheduled as a result of our supreme court's decision in State v. Nordstrom, 206 Ariz. 242, ¶ 28, 77 P.3d 40, 46 (2003) (Nordstrom II), that vacated six death sentences the respondent judge had imposed on Nordstrom's first-degree murder convictions and remanded the case for resentencing by a jury pursuant to A.R.S. §§ 13-703 and 13-703.01. The respondent judge ruled that Nordstrom was only entitled to have a jury weigh the aggravating and mitigating circumstances in determining whether he should be sentenced to death for murdering the six victims and that he was not entitled to have the jury determine the existence of the aggravating circumstances. For the reasons stated below, we accept jurisdiction of this special action and grant relief.

BACKGROUND

¶ 2 In December 1997, a jury found Nordstrom guilty of first-degree murder and various other offenses in connection with events that had occurred in Tucson on May 30, 1996, and June 13, 1996, at the Moon Smoke Shop and the Firefighters' Union Hall. State v. Nordstrom, 200 Ariz. 229, ¶¶ 1-4, 6, 8, 25 P.3d 717, 724-26 (2001) (Nordstrom I). After a sentencing hearing, the respondent judge found beyond a reasonable doubt that aggravating circumstances existed as to the murder convictions under § 13-703(F)(1) ("The 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."), § 13-703(F)(5) ("The defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value."), and § 13-703(F)(8) ("The defendant has been convicted of one or more other homicides . . . that were committed during the commission of the offense."). The respondent found no mitigating circumstances existed that were "sufficiently substantial to call for leniency," § 13-703(E), and sentenced Nordstrom to death on the murder convictions. The supreme court affirmed the convictions and the death sentences. Nordstrom I, 200 Ariz. 229, ¶ 99, 25 P.3d at 745.

¶ 3 In 2002, the United States Supreme Court reversed the Arizona Supreme Court's decision in State v. Ring, 200 Ariz. 267, 25 P.3d 1139 (2001) (Ring I), and held in Ring v. Arizona, 536 U.S. 584, 588, 609, 122 S.Ct. 2428, 2432, 2443, 153 L.Ed.2d 556 (2002) (Ring II), that this state's capital sentencing statutes were unconstitutional because they violated a defendant's right to a jury trial as guaranteed by the Sixth Amendment to the United States Constitution. The Supreme Court stated that, "[b]ecause Arizona's enumerated aggravating factors operate as `the functional equivalent of an element of a greater offense,' the Sixth Amendment requires that they be found by a jury." Id. at 609, 122 S.Ct. at 2443, quoting Apprendi v. New Jersey, 530 U.S. 466, 494 n. 19, 120 S.Ct. 2348, 2365 n. 19, 147 L.Ed.2d 435 (2000). Thereafter, the Arizona Supreme Court consolidated the cases in which defendants had been sentenced to death under the invalidated statutory scheme and in which the supreme court had not yet issued its mandate. State v. Ring, 204 Ariz. 534, ¶¶ 5-6, 65 P.3d 915, 925 (2003) (Ring III). The supreme court concluded in Ring III that "Arizona's failure to require a trial judge to submit the aggravating circumstance element of capital murder to a jury does not constitute structural error." Id. ¶ 53, 65 P.3d 915. Consequently, the court determined it would review the sentences of such defendants for harmless error. Id.

¶ 4 Among the cases the supreme court reviewed was Nordstrom's. Nordstrom II, 206 Ariz. 242, ¶ 3, 77 P.3d at 42. The court concluded there was no reason to disturb the respondent judge's finding that the aggravating circumstance under § 13-703(F)(1) existed based on the supreme court's decision in Ring III. Nordstrom II, 206 Ariz. 242, ¶ 7, 77 P.3d at 43. In Ring III, the supreme court said, it had held the Sixth Amendment "does not require a jury to determine the existence of an (F)(1) factor." Nordstrom II, 206 Ariz. 242, ¶ 6, 77 P.3d at 43, citing Ring III, 204 Ariz. 534, ¶ 55, 65 P.3d at 937. As for the circumstances under § 13-703(F)(5) and (F)(8), the court found in Nordstrom II, based on the record before it, that "no reasonable jury would have failed to find the aggravating factors set forth in [these subsections] proven beyond a reasonable doubt." 206 Ariz. 242, ¶ 17, 77 P.3d at 47.¹ But, the court concluded, "because some of the findings with respect to the mitigating factors rested on an assessment of the credibility of witnesses," the case had to be remanded for resentencing. Id. ¶ 18, 77 P.3d 40.

¶ 5 Specifically, the court stated it could not find "beyond a reasonable doubt that a jury would not have weighed this evidence differently than did the trial judge." And, the court observed, "a different finding as to the mitigating circumstances could affect the determination whether the mitigating circumstances are `sufficiently substantial to call for leniency.'" Id. ¶ 27, 77 P.3d 40, quoting § 13-703(E). Consequently, the court vacated the death sentences and remanded the matter to the respondent judge "for resentencing by a jury under A.R.S. sections 13-703 and -703.01 (Supp.2002)," id. ¶ 28, 77 P.3d 40, the statutes the legislature amended after the United States Supreme Court invalidated Arizona's capital sentencing scheme in Ring II. See 2002 Ariz. Sess. Laws 5th Spec. Sess., ch. 1, § 7; State v. Viramontes, 204 Ariz. 360, n. 1, 64 P.3d 188, 189 n. 1 (2003) (acknowledging amendments to death penalty statutes were in response to Ring II).

¶ 6 In December 2005, Nordstrom filed a pro se memorandum, which appointed counsel adopted and supplemented about a month later.² Nordstrom maintained in these memoranda that, based on the express terms of § 13-703.01, particularly subsections (N), (O), and (P), as well as Rule 19.1(c), Ariz. R.Crim. P., 17 A.R.S., he was "entitled to a full and fair aggravation resentencing proceeding where the state is required to prove [to a jury] any noticed aggravators beyond a reasonable doubt and where he can challenge, rebut, and defend against these noticed aggravators." In its response, real party in interest the State of Arizona asserted that, because the (F)(1) factor is exempt from the requirements of Ring II and because Nordstrom had conceded in his appeal in Nordstrom II that a resentencing on the (F)(1) factor was not required given our supreme court's decision in Ring III, see Nordstrom II, 206 Ariz. 242, ¶ 7, 77 P.3d at 43, the jury did not need to determine whether any aggravating circumstances existed. One factor, the state argued, rendered Nordstrom death eligible. The state conceded that, because some of the murder convictions were based on the felony-murder doctrine rather than premeditated murder, "a jury must find whether [Nordstrom] qualifies for the death penalty under the Enmund-Tison line of cases." See Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987); Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).³ It further conceded the jury must weigh the aggravating factors against any mitigating factors found and then determine whether Nordstrom should be sentenced to death.

¶ 7 After Nordstrom filed his reply and a hearing was held, the respondent judge adopted the state's proposed procedure for the sentencing trial. The respondent found that the aggravating factors under (F)(1), (F)(5), and (F)(8) "are inherent in the jury's verdict and thus were proven beyond a reasonable [doubt] to the original jury." The respondent further stated that the jury would be informed of the convictions, that counsel would then state generally that the aggravating factors under (F)(1), (F)(5), and (F)(8) exist, and that the jury was "to weigh mitigating factors against other facts and determine the sentence." Furthermore, the respondent ruled, the jury would conduct an Enmund-Tison analysis and "then proceed to the aforementioned mitigation phase and the weighing process." The respondent judge set the case for a sentencing trial on January 17, 2007. Nordstrom filed this petition for special action, claiming he is entitled to a sentencing trial held in accordance with §§ 13-703 and 13-703.01 in which a jury must determine whether the aggravating circumstances alleged exist before considering any evidence in mitigation and determining whether he should be sentenced to death.

SPECIAL ACTION JURISDICTION

¶ 8 Special action jurisdiction is appropriate when the remedy by appeal is not equally plain, speedy, or adequate. Ariz. R.P. Spec. Actions 1(a), 17B A.R.S. Admittedly, Nordstrom could challenge by appeal any rulings relating to the upcoming sentencing trial after it has occurred. See A.R.S. § 13-4033(A)(3); see State v. Schackart, 190 Ariz. 238, 245, 947 P.2d 315, 322 (1997). "[T]he availability of an appeal[, however,] does not foreclose the exercise of this court's discretion to accept jurisdiction." Ariz. Dep't of Pub. Safety v. Superior Court, 190 Ariz. 490, 493, 949 P.2d 983, 986 (App.1997). The remedy by appeal may be inadequate, such as here, where the sentencing trial would proceed in an incorrect manner. "[T]he issue raised here [might] recur in future cases, and judicial economy, not to mention the time and expense incurred by...