McKaney v. Foreman

Decision Date02 November 2004
Docket NumberNo. CV-04-0032-SA.,CV-04-0032-SA.
Citation100 P.3d 18,209 Ariz. 268
PartiesKerby James McKANEY, Petitioner, v. Hon. John FOREMAN, Judge of the Superior Court, in and for the COUNTY OF MARICOPA, Respondent, State of Arizona, Real Party in Interest.
CourtArizona Supreme Court

James J. Haas, Maricopa County Public Defender by Vikki M. Liles, Deputy Public Defender, Phoenix, Attorneys for Petitioner.

Richard M. Romley, Maricopa County Attorney by Paul J. McMurdie, Deputy County Attorney, Phoenix, Attorneys for Real Party in Interest.


JONES, Chief Justice.

¶ 1 In light of principles set forth by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), as well as the requirements of the Arizona Constitution and laws, we decide in today's case whether, as a condition to the pursuit of capital punishment by the State, aggravating factors described in A.R.S. § 13-703(F) (Supp.2003) must be specifically alleged in the charging document and supported by evidence of probable cause. For the reasons set forth below, we hold they do not.


¶ 2 Kerby McKaney was indicted August 2, 2001 on two counts of first degree murder, one count of first degree burglary, one count of sexual assault, and two counts of kidnapping.1 On October 1, 2001, the State gave notice of intent to seek the death penalty on the two murder charges, and on October 22, 2002, gave notice of intent to prove three aggravating factors, namely, prior conviction of a serious offense, offense committed in an especially heinous, cruel or depraved manner, and conviction of one or more other homicides. A.R.S. § 13-703(F)(2), (6) and (8).

¶ 3 On November 5, 2003, McKaney moved to dismiss the State's notice of intent and notice of aggravating factors, arguing that these factors are elements of the capital crime of first degree murder and as such were unsupported by an initial finding of probable cause by the grand jury. The trial court denied McKaney's motion on December 19, 2003. McKaney then filed this petition for special action. We accepted jurisdiction because the issue is applicable in every capital case initiated under Arizona's death penalty statutes and is thus of statewide significance. The issue is also one of first impression in this jurisdiction.


¶ 4 McKaney's argument that the aggravating factors must be alleged in the indictment and supported by evidence of probable cause is based on the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Article 2, Section 30, of the Arizona Constitution. In support, McKaney cites Apprendi and Ring as fashioning a new rule of law required by the United States and Arizona Constitutions.


¶ 5 In Apprendi, the defendant, having fired gunshots into the home of an African-American family, pled guilty to two counts of possessing a firearm for an unlawful purpose, a second degree offense, and one count of unlawful possession of a prohibited weapon, a third degree offense. 530 U.S. at 469-70, 120 S.Ct. 2348. Each second degree count carried a maximum penalty of ten years in prison; the third degree count carried a five-year maximum penalty. Id. at 470, 120 S.Ct. 2348. In addition, New Jersey's "hate crime" statute called for an enhanced sentence in cases in which the trial judge finds by a preponderance of the evidence that the offense was racially motivated. Id. at 468-69, 120 S.Ct. 2348. A second degree offense under the hate crime statute carried an extended term of imprisonment "between 10 and 20 years." Id. at 469, 120 S.Ct. 2348.

¶ 6 The trial judge found "that the crime was motivated by racial bias." Id. at 471, 120 S.Ct. 2348. The judge sentenced Apprendi to an enhanced term of twelve years on one second degree offense and imposed shorter, concurrent sentences on the other counts. Id. at 471, 120 S.Ct. 2348. The New Jersey Appellate Division and Supreme Court affirmed.

¶ 7 The United States Supreme Court granted certiorari and reversed, finding unconstitutional the procedure by which Apprendi's sentence was enhanced by the judge rather than by a jury. Id. at 474, 120 S.Ct. 2348. The Court held (1) that a criminal defendant is entitled to "a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt," id. at 477, 120 S.Ct. 2348, and (2) that "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." Id. at 490, 120 S.Ct. 2348.

¶ 8 The holdings in Apprendi greatly informed the Supreme Court's decision in Ring in which the Court held unconstitutional Arizona's capital sentencing scheme. Because Arizona law permitted the death penalty only when aggravating factors were established, the Court held that Apprendi and the Sixth Amendment on which Apprendi is based required the jury rather than the judge find those factors. Ring, 536 U.S. at 609, 122 S.Ct. 2428. The Court, echoing Apprendi, stated, "[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. (citation omitted).


¶ 9 In the aftermath of Apprendi and Ring, many jurisdictions faced the issue we now face, namely, whether principles announced in the two cases require that statutory aggravators which may subject a criminal defendant to capital punishment be specifically alleged in the grand jury indictment or other charging document and be supported by sufficient evidence of probable cause. The vast majority of state jurisdictions have held they do not, and we agree.

¶ 10 Both Apprendi and Ring are expressly grounded in the right to trial by an impartial jury under the Sixth Amendment to the United States Constitution. The Court's key concern in those decisions was that a criminal defendant be afforded the full benefit of jury trial on all evidence, including aggravating factors, that could result in a sentence greater than the maximum prescribed for the offense charged. The instant case, however, does not fall under the Sixth Amendment and does not present that issue. Rather, McKaney argues that in addition to the Apprendi/Ring requirement that aggravators be found for sentencing purposes by the trial jury, he is also entitled to have each aggravating factor preliminarily considered by the grand jury or neutral arbiter and included by specific allegation as a probable cause finding in the charging document, either a grand jury indictment or an information.

¶ 11 The United States Constitution does not impose on the states the rule McKaney asserts. Although prosecutions in the federal courts require, under the Fifth Amendment, that aggravators be alleged in an indictment and supported by probable cause, United States v. Cotton, 535 U.S. 625, 627, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002), the same requirement is inapplicable to prosecutions in our state courts. Two principal reasons are given. First, the Fifth Amendment's guarantee of indictment by a grand jury, applicable solely to the federal government, is not subject to the strictures of the Fourteenth Amendment. Alexander v. Louisiana, 405 U.S. 625, 633, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972) ("[T]he Due Process Clause ... [of the Fourteenth Amendment] does not require the States to observe the Fifth Amendment's provision for presentment or indictment by a grand jury."). Because a state is not required, as a matter of federal constitutional law, to empanel grand juries for purposes of indictment, it would be anomalous for us to require, under the United States Constitution, that a grand jury determine probable cause as a basis for alleging aggravating factors. See Hurtado v. California, 110 U.S. 516, 538, 4 S.Ct. 111, 28 L.Ed. 232 (1884)


¶ 12 Second, Apprendi and Ring do not implicate the Fifth Amendment relative to the use of grand jury indictments in state courts but rather the Sixth Amendment right to trial by jury and the Fourteenth Amendment due process requirement. The two cases specifically disavow dealing with sufficiency of indictments.

¶ 13 Accordingly, the only federal mandate applicable to McKaney in the context of the instant case is the Fourteenth Amendment due process requirement that a defendant receive adequate notice of the charges against him. See, e.g., Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002)

(noting, by comparison, that unlike the Fifth Amendment grand jury requirement which is inapplicable to the states, the Sixth Amendment notice requirement that defendants be informed of charges against them does apply to the states through the Fourteenth Amendment Due Process Clause). In the instant case, McKaney does not contend, nor could he reasonably contend, that Arizona's rules of criminal procedure afford less than sufficient notice of aggravating factors in satisfaction of the Fourteenth Amendment due process requirement, or that he specifically did not receive fair and adequate notice.


¶ 14 The Arizona Constitution requires an "information or indictment" before a person can be prosecuted for a felony or misdemeanor. Ariz. Const. art. 2, § 30. This court has held, pursuant to state due process requirements, that a charging document must "fairly indicate[] the crime charged; state[] the essential elements of the alleged crime; and [be] sufficiently definite to apprise the defendant so that he can prepare his defense to the charge." State v. Marquez, 127 Ariz. 98, 101, 618 P.2d 592, 595 (1980) (quoting State v. Suarez, 106 Ariz. 62, 64, 470 P.2d 675, 677 (1970)). Similarly, the Arizona Rules of Criminal Procedure require that an "indictment or information shall be a plain, concise statement of the facts sufficiently definite to...

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