State v. Dann

• Decision Date: 29 October 2003
• Docket Number: No. CR-02-0042-AP.,CR-02-0042-AP.
• Citation: 79 P.3d 58,206 Ariz. 371
• Parties: STATE of Arizona, Appellee, v. Brian Jeffrey DANN, Appellant.
• Court: Arizona Supreme Court

79 P.3d 58

206 Ariz. 371

STATE of Arizona, Appellee, v. Brian Jeffrey DANN, Appellant.

No. CR-02-0042-AP.

Supreme Court of Arizona.

October 29, 2003.

Janet A. Napolitano, Former Arizona Attorney General, Terry Goddard, Arizona Attorney General, Phoenix, by Kent E. Cattani, Chief Counsel, Capital Litigation Section and Jim D. Nielsen, Assistant Attorney General 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 State of Arizona, Appellee.

Susan M. Sherwin, Maricopa County Office of the Legal Advocate by Brent E. Graham and Consuelo M. Ohanesian and Shughart, Thomson, Kilroy, Goodwin & Raup, P.C., by Rudolph J. Gerber, Phoenix, Attorneys for Brian Jeffrey Dann, Appellant.

SUPPLEMENTAL OPINION

BERCH, Justice.

¶ 1 Brian Jeffrey Dann was sentenced to death under a procedure found unconstitutional in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) ("Ring II"). In Ring II, the United States 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 2443.¹ 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. Id. at 609, 122 S.Ct. at 2443.

¶ 2 On remand we consolidated all death penalty cases in which this court had not yet issued a direct appeal mandate, including Dann's case, to determine whether Ring II required reversal or vacatur of the death sentences. State v. Ring, 204 Ariz. 534, 544, ¶ ¶ 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 We concluded that we must review each death sentence imposed in these cases under Arizona's superseded capital sentencing statute for harmless error.² Id. at 555, ¶ 53, 65 P.3d at 936.

¶ 3 We now consider whether the death sentence imposed on Dann can stand in light of Ring II and Ring III, as well as the Supreme Court's decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), which held that the Eighth Amendment of the United States Constitution prohibits the execution of mentally retarded persons. Id. at 321, 122 S.Ct. at 2252.

FACTS AND PROCEDURAL HISTORY

¶ 4 On October 1, 2001, a jury found Brian Jeffrey Dann guilty of three counts of first degree murder and one count of first degree burglary. Following the jury's verdict, the trial judge conducted a sentencing hearing in which he found one aggravating circumstance beyond a reasonable doubt: that Dann had been convicted of one or more homicides that were committed during the commission of the offense. See Ariz.Rev.Stat. ("A.R.S.") § 13-703(F)(8) (2001). This finding rendered Dann eligible for the death sentence. See id. § 13-703(E). After reviewing the mitigating circumstances Dann presented at the sentencing hearing, the judge concluded that they were not "sufficiently substantial to call for leniency," and sentenced Dann to death. On appeal we reversed Dann's convictions for two of the first degree premeditated murders, but affirmed one conviction of premeditated first degree murder, three convictions of first degree felony murder, and the conviction and sentence for first degree burglary. State v. Dann, 205 Ariz. 557, 576, ¶ 76, 74 P.3d 231, 250 (2003). We now review whether, in light of Ring II and Ring III, the death sentence imposed on Dann can stand.

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. 204 Ariz. at 555, 565, ¶ ¶ 53, 102-04, 65 P.3d at 936, 946. We now examine whether the Ring II error was harmless with respect to the aggravating circumstance found by the trial judge in Dann's case.

1. Aggravating Circumstance: Multiple Homicides.

¶ 6 Arizona law lists as an aggravating circumstance whether "[t]he defendant has been convicted of one or more other homicides ... which were committed during the commission of the offense." A.R.S. § 13-703(F)(8). Ring III makes clear that while the finding of an (F)(8) aggravator is subject to a harmless error analysis, the finding may not be based solely on the jury's verdict of guilt on multiple homicides. 204 Ariz. at 561, ¶ ¶ 81-82, 65 P.3d at 942. Rather, the murders must be "temporally, spatially and motivationally related." Id. ¶ 81 (citing State v. Rogovich, 188 Ariz. 38, 45, 932 P.2d 794, 801 (1997)).

¶ 7 In this case, as specifically prohibited by Ring III and Rogovich, the trial judge based his finding on the fact that the jury "found beyond a reasonable doubt that the defendant killed three people." We agree with Dann that this was error. See Ring III, 204 Ariz. at 561,

¶ ¶ 81-82, 65 P.3d at 942 (noting that "[w]ithout a finding that the murders are temporally, spatially and motivationally related, the bare jury verdict does not implicitly support the F.8 aggravator") (citing Rogovich, 188 Ariz. at 45,

932 P.2d at 801). As we noted in Ring III, however, we can find the error to be harmless if "no reasonable jury could find that the state failed to prove the F.8 factor beyond a reasonable doubt." Id. ¶ 82. We find that to be the case here and therefore conclude that the error was harmless.

¶ 8 This court recently analyzed the temporal, spatial, and motivational relationships necessary to support a finding of the (F)(8) factor. See State v. Tucker, 205 Ariz. 157, ¶ ¶ 65-66, 68 P.3d 110, 122 (2003)

; see also State v. Lavers, 168 Ariz. 376, 393-94, 814 P.2d 333, 350-51 (1991). In Tucker, the court affirmed the trial court's finding of a spatial relationship because all victims were murdered within an apartment, in close proximity to one another: two in a bedroom and the primary victim in the adjoining area. Tucker, 205 Ariz. at 160-61, 169, ¶ ¶ 12-13, 65-66, 68 P.3d at 113-14, 122. It is uncontested here that Dann's victims were also killed in close proximity to one another. All died in the front room of Andrew's apartment, where they had been seated near one another. Dann, 205 Ariz. at 563, ¶ 7, 74 P.3d at 237.

¶ 9 Similarly, the undisputed evidence at trial showed that all victims were killed within moments of one another. See id. Witness Tina Pace-Morrell, Dann's former girlfriend, testified that, immediately after the killings, Dann came to her apartment and told her that he shot Andrew Parks, his intended victim, then Shelly Parks, and then shot Eddie Payan because he had witnessed the other killings. Id. The short, uninterrupted span of time in which these actions occurred satisfied the temporal relationship required to sustain the (F)(8) factor. See Lavers, 168 Ariz. at 394, 814 P.2d at 351 (finding a temporal relationship existed where "the two murders were separated by just minutes").

¶ 10 Finally, the motivational requirement was shown by the uncontroverted evidence that Dann went to the apartment intending to kill Andrew, see Dann, 205 Ariz. at 563, 565,

¶ ¶ 6, 19, 74 P.3d at 237, 239, and killed Shelley and Eddie simply because they were there, and, with respect to Eddie, simply because he was a witness, id. ¶ 7. In Tucker, a case very similar to this one, we found related motivation where, although the defendant's ex-girlfriend was the primary victim, other victims may have been killed to eliminate witnesses. 205 Ariz. at 169, ¶ 66, 68 P.3d at 122. We concluded that it was "difficult to imagine a motive for the killings unrelated to the murder of [the girlfriend]". Id. We conclude here, as we did in Tucker, that while a jury may differ as to Dann's precise motive for killing Shelly and Eddie, no jury would fail to find that his motives were related to the murder of Andrew.

¶ 11 We conclude that, given the uncontroverted evidence on these points, no jury could have found other than that the three murders in this case were temporally, spatially, and motivationally related. We therefore find any error in this finding harmless beyond a reasonable doubt.

2. Mitigating Circumstances.

¶ 12 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, 204 Ariz. at 565, ¶ 104, 65 P.3d at 946.

¶ 13 At his sentencing hearing, Dann offered eleven mitigating circumstances for the court's consideration. Three of these factors were statutory: impairment, unusual or substantial duress, and age. A.R.S. § 13-703(G)(1), (G)(2), (G)(5). Dann also offered eight non-statutory factors: (1) abandonment, (2) polysubstance abuse and dependency, (3) dysfunctional family, (4) lack of stability, (5) brain damage, (6) psychiatric issues, (7) residual doubt, and (8) family support. The trial judge found that Dann proved three of these latter mitigating circumstances: substance abuse, psychiatric issues, and family support. He gave little weight to family support and substance abuse, however, and determined that Dann failed to establish a significant causal connection between the psychiatric issues and the three murders of which he was convicted. As a result, the trial judge concluded that the weight of these mitigating factors was insufficient to call for leniency.

¶ 14 Based on the conflicting evidence in this record on these issues, we cannot conclude beyond a reasonable doubt that no rational jury would find other than as the trial judge found. After reviewing...