State ex rel. Thomas v. Granville

• Decision Date: 08 December 2005
• Docket Number: No. CV-05-0155-PR.,CV-05-0155-PR.
• Citation: 211 Ariz. 468,123 P.3d 662
• Parties: STATE of Arizona ex rel. Andrew P. THOMAS, Maricopa County Attorney, Petitioner, v. The Honorable Warren J. GRANVILLE, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, William Christopher Baldwin, Real Party in Interest.
• Court: Arizona Supreme Court

123 P.3d 662

211 Ariz. 468

STATE of Arizona ex rel. Andrew P. THOMAS, Maricopa County Attorney, Petitioner, v. The Honorable Warren J. GRANVILLE, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge William Christopher Baldwin, Real Party in Interest.

No. CV-05-0155-PR.

Supreme Court of Arizona, En Banc.

December 8, 2005.

COPYRIGHT MATERIAL OMITTED

Andrew P. Thomas, Maricopa County Attorney, by Paul J. McMurdie, Deputy County Attorney, Phoenix, Attorneys for State of Arizona.

James J. Haas, Maricopa County Public Defender, by Gary J. Bevilacqua, Deputy Public Defender, Joseph A. Stazzone, Deputy Public Defender, Phoenix, Attorneys for William Christopher Baldwin.

OPINION

BERCH, Vice Chief Justice.

¶ 1 This case concerns the propriety of two jury instructions relating to sentencing in a capital case. The prosecutor requested that the jury be instructed at the close of the penalty phase of the trial that the defendant bears the affirmative burden to prove that mitigation is "sufficiently substantial to call for leniency." The second instruction advised the jurors to sentence the defendant to life in prison if they had "a doubt" whether a death sentence was appropriate. For the reasons set forth below, we hold that neither instruction is proper.

I. FACTS AND PROCEDURAL BACKGROUND

¶ 2 A jury convicted Defendant William Baldwin of first degree murder in September 2004. During the aggravation phase of the capital trial, the jury found that Baldwin had knowingly created a grave risk of death to another during the commission of the murder, Ariz.Rev.Stat. ("A.R.S.") § 13-703(F)(3) (Supp.2004), rendering him eligible for a sentence of death.

¶ 3 Before the presentation of mitigation evidence, the State asked the court to give the following instruction, among others, to guide the jurors in determining the appropriate sentence:

The burden of proving the existence of mitigation sufficiently substantial to call for leniency is on the defendant. The defendant must prove the existence of mitigation by a preponderance of the evidence.

Baldwin objected to the first sentence of the proposed instruction. The trial court did not give the requested instruction, but instead gave an instruction based on the language of A.R.S. § 13-703(C):¹

The burden of proving the existence of mitigation is on the defendant. The defendant must prove the existence of mitigation by a preponderance of the evidence.

¶ 4 Although the court did not use the requested phrase "sufficiently substantial to call for leniency" at that point in the instructions, the phrase appeared eight times in the sentencing-phase jury instructions. The court first mentioned the standard by instructing the jury as follows:

In deciding whether the defendant should be sentenced to death or life in prison, you must weigh the mitigating circumstances that have been proven to you against the aggravating factor that you have already found, and determine whether there is mitigation that is sufficiently substantial to call for life in prison.

The phrase was mentioned seven other times, all in related instructions attempting to convey to the jury its duty in deciding what penalty to impose.²

¶ 5 The court also instructed the jurors that "[i]f, after carefully considering the evidence, you have a doubt whether the death penalty should be imposed, you should resolve that doubt in favor of a life sentence."

¶ 6 The jury could not unanimously agree on the imposition of the death penalty, allowing a second jury to be impanelled. See A.R.S. § 13-703.01(K) (Supp.2004). Before commencement of the second penalty phase proceeding, the State moved to preclude the anticipated use of the "a doubt" instruction and again urged the court to instruct the jury that the defendant bears the burden of proving that mitigation is sufficiently substantial to call for leniency. When the trial court refused to rule on the motion, the State filed a special action in the court of appeals, which declined jurisdiction.

¶ 7 We granted review to decide whether the court's denial of the State's requested burden of proof instruction was error and whether giving the instruction to resolve doubt in favor of life was proper. We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution, and A.R.S. § 12-120.24 (2003).

II. DISCUSSION

¶ 8 We are asked to determine whether two instructions given to a jury following the penalty phase of a capital case correctly state the law, a question we review de novo. State v. Glassel, 211 Ariz. 33, 53, ¶ 74, 116 P.3d 1193, 1213 (2005). We review for abuse of discretion whether the trial court erred in giving or refusing to give requested jury instructions. State v. Anderson, 210 Ariz. 327, 343, ¶ 60, 111 P.3d 369, 385 (2005). In our review, we read the jury instructions as a whole to ensure that the jury receives the information it needs to arrive at a legally correct decision. Kauffman v. Schroeder, 116 Ariz. 104, 106, 568 P.2d 411, 413 (1977).

A. The Burden of Persuasion Instruction

¶ 9 The death penalty sentencing statutes provide, and the trial judge instructed the jury, that the defendant bears the burden of proving, by a preponderance of the evidence, the existence of mitigating circumstances. See A.R.S. § 13-703(C). Neither Baldwin nor the State questions that instruction. The State requests, however, that we now approve an instruction specifying that the defendant also bears the burden of proving, by a preponderance of the evidence, that the mitigation is sufficiently substantial to call for leniency.

¶ 10 To justify imposing this burden, the State relies on A.R.S. § 13-703(E), which provides that,

[i]n determining whether to impose a sentence of death or life imprisonment, the trier of fact shall take into account the aggravating and mitigating circumstances that have been proven. The trier of fact shall impose a sentence of death if the trier of fact finds one or more of the aggravating circumstances enumerated in subsection F of this section and then determines that there are no mitigating circumstances sufficiently substantial to call for leniency.

(Emphasis added.)

¶ 11 From this statutory language, the State reasons that the defendant must bear the burden of proving that the mitigation is sufficiently substantial to call for leniency; otherwise, the trier of fact "shall" impose a sentence of death. See id. Moreover, the State observes that this court has rejected the notion that the prosecution bears the burden of proving that the death penalty is the appropriate sentence. State v. Gulbrandson, 184 Ariz. 46, 72, 906 P.2d 579, 605 (1995). The State thus infers that if the burden is not on the State, it must lie with the defendant.

¶ 12 The State concedes that A.R.S. § 13-703(E) has been interpreted as not creating a "presumption of death" and acknowledges that a jury may return a verdict of life in prison even if the defendant decides to present no mitigation evidence at all. See, e.g., Glassel, 211 Ariz. at 52, ¶ 72, 116 P.3d at 1212 (rejecting presumption of death argument); State v. Van Adams, 194 Ariz. 408, 422, ¶ 55, 984 P.2d 16, 30 (1999) (to same effect).³ In the absence of such a presumption, there can be no burden on the defendant to rebut a presumed sentence. Thus the language of A.R.S. § 13-703(E) does not impose an affirmative duty on the defendant to prove that mitigation is sufficiently substantial to call for leniency.

¶ 13 Nor does the statutory scheme as a whole impose a burden on the defendant to prove that mitigation evidence is sufficiently substantial to call for leniency. Section 13-703(B) requires the State to prove beyond a reasonable doubt not only every element of the crime, but also any aggravating circumstances. Id.; see also State v. Jordan, 126 Ariz. 283, 286, 614 P.2d 825, 828 (1980). If the jury finds any aggravating factors to exist, the burden then moves to the defendant, if he wishes, to establish any mitigating circumstances. A.R.S. § 13-703(C). The statute further instructs that "the jurors do not have to agree unanimously that a mitigating circumstance has been proven to exist. Each juror may consider any mitigating circumstance found by that juror in determining the appropriate penalty." Id.

¶ 14 Although § 13-703(C) requires the defendant to prove mitigating circumstances by a preponderance of the evidence, the statutory scheme does not place any burden of proof on the defendant in connection with establishing that the mitigation evidence is sufficiently substantial to call for leniency. Indeed, the "sufficiently substantial" language does not appear until two subsections later. See A.R.S. § 13-703(E). Thus nothing in § 13-703 dictates that the defendant must bear the burden of proving that mitigation is sufficiently substantial to call for leniency. While the statutory scheme describes the parties' burdens of proof as to the existence of aggravating and mitigating circumstances, it is silent as to the burden of persuasion.

¶ 15 The State also bases its argument that the defendant bears the burden of proving that mitigation is sufficiently substantial to call for leniency on this court's opinion in State v. Watson, 120 Ariz. 441, 447, 586 P.2d 1253, 1259 (1978), and the United States Supreme Court's opinion in Walton v. Arizona, 497 U.S. 639, 649, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), overruled in part on other grounds by Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In Walton and Watson, the Supreme Court and this court recognized that the Eighth and Fourteenth Amendments are not offended by requiring a guilty defendant to establish "by a preponderance of the evidence, the existence of mitigating circumstances sufficiently substantial to call for leniency." Walton, 497 U.S. at 649, 110 S.Ct. 3047. Despite this language, Walton and Watson did not address whether the defendant in a capital case bears...