State v. Davis

• Decision Date: 30 October 2003
• Docket Number: No. CR-01-0423-PR.,CR-01-0423-PR.
• Citation: 79 P.3d 64,206 Ariz. 377
• Parties: STATE of Arizona, Appellee, v. Anthony Charles DAVIS, Appellant.
• Court: Arizona Supreme Court

79 P.3d 64

206 Ariz. 377

STATE of Arizona, Appellee, v. Anthony Charles DAVIS, Appellant.

No. CR-01-0423-PR.

Supreme Court of Arizona, En Banc.

October 30, 2003.

Janet A. Napolitano, Arizona Attorney General, by Randall M. Howe, Chief Counsel, Criminal Appeals Section and Joseph T. Maziarz, Assistant Attorney General, and Katia Mehu, Assistant Attorney General, Phoenix, Attorneys for Appellee.

James J. Haas, Maricopa County Public Defender, by Anna M. Unterberger, Deputy Public Defender, Phoenix, Attorneys for Appellant.

OPINION

BERCH, Justice.

¶ 1 We granted review in this case to decide whether sentencing a twenty-year-old defendant to a mandatory minimum sentence of fifty-two years without the possibility of parole for having voluntary sex with two post-pubescent teenage girls is so grossly disproportionate to the crime as to violate the Eighth Amendment's prohibition against cruel and unusual punishment. We hold that it is.

FACTS¹

¶ 2 In January 1999, thirteen-year-old T.E. and her stepsister, C.M., snuck out of their house at night to meet nineteen-year-old Jason in a local park. Jason drove the girls to the home of Defendant Anthony Davis, where they met Davis and two other young men. The six young people socialized for some time. During the conversation, Davis told the girls that he was twenty, and T.E. said she was fourteen. Later that night, Davis and T.E. had sex. This was not T.E.'s first sexual encounter; she testified that she had first had sex when she was twelve years old, and she knew what Davis was doing.

¶ 3 T.E. and C.M. visited Davis at his house several more times that month, usually late at night. The second victim, P.T., accompanied the girls on January 20, 1999. During that visit, P.T. learned that Davis was twenty; she testified that "everyone knew" she was fourteen. Later that evening, Davis and P.T. had sex. They also had sex on two other occasions during the following two weeks.

¶ 4 Still later in January, Davis, Jason, and another young man visited P.T. and C.M. while P.T. was babysitting. The homeowners returned early, found the men there, ordered them to leave, and contacted the girls' parents.

¶ 5 After the babysitting incident, T.E. and C.M. ran away to Davis's house. P.T. went with them, but returned home the same evening. The next morning, February 1, the police found T.E. and C.M. at Davis's house with Davis and Jason.

¶ 6 When the police questioned her, T.E. denied having had sex with either Davis or Jason. The next day, however, T.E.'s mother called the police to tell them there had been sexual contact between T.E. and Davis. On February 3, P.T. and T.E. were examined by a doctor for signs of sexual abuse. The examining doctor found signs indicating that T.E. had had sexual intercourse within the week. In an interview with police on February 4, T.E. conceded that she had sex with Davis two or three times, the last time over the weekend of January 29-31.

¶ 7 The State charged Davis with four counts of sexual misconduct with a minor, in violation of Arizona Revised Statutes ("A.R.S.") section 13-1405 (1997): count one with T.E. on January 18, 1999, count two with P.T. on January 20, 1999, count three with P.T. on January 25, 1999, and count four with P.T. on January 29, 1999. Each act was alleged as a dangerous crime against children. See A.R.S. § 13-604.01 (Supp.1998).

¶ 8 Throughout the case, Davis denied ever having sex with T.E., but admitted having sex with P.T. on three occasions. He claimed that P.T. initially told him she was eighteen, but told him she was sixteen the day after the babysitting incident. Davis testified that he did not have sex with P.T. after learning that she was only sixteen.

¶ 9 The jury convicted Davis on all four counts. Upon discovering that the minimum sentence that Davis could receive was fifty-two years, all twelve jurors submitted a note to the trial judge stating their belief that "the punishment for the crime is excessive." Two jurors submitted individual letters expressing their dismay and strong belief that the potential sentences for Davis were too harsh. The probation officer who prepared Davis's pre-sentence report acknowledged that while Davis should be held accountable for his crimes, the mandatory sentence was not warranted. The pre-sentence report also noted that neither T.E.'s mother nor P.T.'s mother wished to see Davis sentenced to a long prison term. Even the prosecutor recommended a mitigated prison sentence and agreed that Davis should be allowed to petition the Board of Executive Clemency for a commutation of his sentence.

¶ 10 The trial judge apparently agreed because he stated at sentencing that all of the charges were "legally non-dangerous and non-repetitive offenses notwithstanding the nomenclature set forth in the charges." He also entered a special order allowing Davis to petition the Board of Executive Clemency for a commutation of sentence within ninety days of sentencing. See A.R.S. § 13-603(L) (Supp.2002) (allowing such an order if the judge believes "that a sentence that the law requires the court to impose is clearly excessive"). Nonetheless, as required by statute, the trial judge sentenced Davis to fifty-two years in prison.

DISCUSSION

A. Proportionality of the Sentence to the Crimes Committed

¶ 11 Davis argues that given the circumstances of his offenses, the four flat, consecutive, thirteen-year sentences violate the prohibition against cruel and unusual punishment found in the Eighth Amendment to the United States Constitution and Article 2, Section 15 of the Arizona Constitution. He contends that the mandatory fifty-two-year sentence, without the possibility of parole, is so grossly disproportionate to his offenses as to be unconstitutional.

¶ 12 We asked the parties to brief whether Article 2, Section 15 of the Arizona Constitution provides greater protection against cruel and unusual punishment than does the Eighth Amendment to the United States Constitution. See, e.g., People v. Bullock, 440 Mich. 15, 485 N.W.2d 866, 872-74 (1992)

(finding Michigan's "cruel or unusual" punishment provision broader than the United States Constitution's corollary provision). Although we do not follow federal precedent blindly, after considering the issue we do not find in this case a compelling reason to interpret Arizona's cruel and unusual punishment provision differently from the related provision in the federal constitution. See State v. Noble, 171 Ariz. 171, 173, 829 P.2d 1217, 1219 (1992).

1. Proportionality Review.

¶ 13 The Eighth Amendment to the United States Constitution and its corollary, Article 2, Section 15 of the Arizona Constitution, prohibit punishments that are cruel and unusual. While originally reserved for review of corporal punishments, the Eighth Amendment has been applied to lengthy sentences of incarceration. Lockyer v. Andrade, 538 U.S. 63, ___, 123 S.Ct. 1166, 1173, 155 L.Ed.2d 144 (2003). We must decide whether Davis's fifty-two-year sentence is so excessively long as to be cruel and unusual.²

¶ 14 More than a decade ago, this court wrestled with the problem of a very long sentence in a case exhibiting facts remarkably similar to those at issue before us. See State v. Bartlett, 164 Ariz. 229, 792 P.2d 692 (1990) (Bartlett I)

. In Bartlett I, a twenty-three-year-old defendant was convicted of sexual conduct with two fourteen-year-old girls. Id. at 231, 792 P.2d at 694. Because both victims were younger than fifteen, the charges were considered dangerous crimes against children, although the girls considered themselves Bartlett's "girlfriends." Id. at 233, 792 P.2d at 696. Under the mandatory sentencing provisions of the Dangerous Crimes Against Children Act, Bartlett received the minimum sentence of forty years in prison without the possibility of early release. Id. As does Davis, Bartlett argued that his sentence was so disproportionate to his crimes that it violated the constitutional prohibition against cruel and unusual punishment. Id. Because the facts and circumstances of Bartlett I are so similar to those in the case at bar, we set forth in some detail our reasoning in that case.

¶ 15 In Bartlett I, we analyzed the constitutionality of the defendant's sentence under the prevailing test at the time, which had been enunciated by the United States Supreme Court in Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 3011, 77 L.Ed.2d 637 (1983). Solem set forth a three-part test to determine whether a sentence was disproportionate to the crime and therefore violated the Eighth Amendment's prohibition against cruel and unusual punishment. Id. The test required examination of the following factors: (a) the severity of the penalty as compared to the seriousness of the offense, (b) the jurisdiction's penalties for crimes that are more serious than the offense at issue (the intra-jurisdictional analysis), and (c) the sentences other jurisdictions impose for the same crime (the inter-jurisdictional analysis). Id.

¶ 16 In comparing the penalty with the offense, this court first examined the nature of the crime, including the type of harm threatened or inflicted, and the defendant's culpability. Bartlett I, 164 Ariz. at 234, 792 P.2d at 697. The court found several factors important: (a) the absence of either the threat or the commission of violence to induce the victims to engage in sex; (b) the victims' willing participation in the acts; (c) Bartlett's lack of a criminal record, including any crime against children; (d) his immaturity; (e) the sociological fact that "sexual conduct among post-pubescent teenagers is not uncommon"; and (f) the broad scope of the governing statute. Id. at 234-36, 792 P.2d at 697-99. While observing that the severe mandatory punishment required by the Dangerous Crimes Against Children Act may be justified for other, more heinous crimes, the court concluded that it was "not justified under the specific circumstances of this case." Id. at...