State v. Jordan, 3156-2

• Decision Date: 19 June 1980
• Docket Number: No. 3156-2,3156-2
• Citation: 614 P.2d 825,126 Ariz. 283
• Parties: STATE of Arizona, Appellee, v. Paul William JORDAN, Appellant.
• Court: Arizona Supreme Court

Page 825

614 P.2d 825

126 Ariz. 283

STATE of Arizona, Appellee, v. Paul William JORDAN, Appellant.

No. 3156-2.

Supreme Court of Arizona, In Banc.

June 19, 1980.

Robert K. Corbin, Atty. Gen., William J. Schafer, III, Chief Counsel, Criminal Division, Crane McClennen, Asst. Attys. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender, John Foreman, Deputy Public Defender, Michael G. Sullivan, Deputy Public Defender, Phoenix, for appellant.

GORDON, Justice:

Defendant Paul William Jordan appeals from a sentence of death after an aggravation/mitigation hearing pursuant to former A.R.S. § 13-454. ¹ Defendant had previously been convicted of first-degree murder and sentenced to death, and this Court affirmed the judgment and sentence. State v. Jordan, 114 Ariz. 452, 561 P.2d 1224 (1976). Subsequent to our decision, the Supreme Court of the United States, in light of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), vacated Jordan's death sentence and remanded to this Court. Jordan v. Arizona, 438 U.S. 911, 98 S.Ct. 3138, 57 L.Ed.2d 1157 (1978). On September 7, 1978, pursuant to State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978), cert. denied, 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1979), we remanded to the trial court for resentencing. Defendant was again sentenced to death on December 20, 1978, after a hearing following the dictates of Lockett, supra, and Watson, supra. It is from this last sentence that defendant appeals. Taking jurisdiction pursuant to A.R.S. § 13-4031, we affirm the sentence.

Defendant presents four basic claims on appeal:

(1) Arizona's death penalty statute is unconstitutional on its face.

(2) State v. Watson improperly permitted defendant to be resentenced to death after his first sentence was vacated.

(3) Defendant may not be sentenced to death, because his first degree murder conviction is based on a felony-murder theory.

(4) The death penalty statute was incorrectly applied to defendant.

CONSTITUTIONALITY OF THE DEATH PENALTY STATUTE

Defendant first claims that a sentence of death is per se cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution. We have previously found this claim to be without merit. See State v. Richmond, 114 Ariz. 186, 560 P.2d 41 (1976).

Defendant next contends that Arizona's death penalty statute violates due process of law because it offers no guidelines as to what mitigating circumstances may be considered and how they are to be weighed against the statutory aggravating circumstances. We have rejected this contention in State v. Mata, 125 Ariz. 233, 609 P.2d 48 (1980).

Defendant's last argument under this issue is that the Arizona death penalty statute is unconstitutional because it requires a defendant to prove the existence of mitigating circumstances and because it does not require the state to prove aggravating circumstances beyond a reasonable doubt. As to defendant's burden of proving mitigating circumstances, we have considered this issue and decided it adversely to defendant in State v. Watson, supra. We have not previously considered the second prong of defendant's argument, that the death penalty statute is unconstitutional because it does not require the state to prove the existence of aggravating factors beyond a reasonable doubt. A.R.S. § 13-454 B provides that "(t)he burden of establishing the existence of any of the (aggravating) circumstances * * * is on the prosecution." The statute does not indicate the degree of certainty with which these circumstances must be established, but we have always assumed, and we so hold now, that the state must prove the existence of aggravating circumstances beyond a reasonable doubt. Our past cases, moreover, demonstrate that this Court will reduce a death penalty to life imprisonment where the evidence of aggravating factors is inconclusive. See, e. g., State v. Madsen, 125 Ariz. 346, 609 P.2d 1046 (1980); State v. Verdugo, 112 Ariz. 288, 541 P.2d 388 (1975).

CHALLENGES TO STATE v. WATSON

Defendant sets forth a variety of arguments that this Court's decision in State v. Watson, supra, improperly allowed defendant to be resentenced after his first sentence was vacated. He asserts that Watson incorrectly decided that the unconstitutional parts of Arizona's death penalty procedure were severable from the remainder and that a Watson rehearing violates the double jeopardy and ex-post facto prohibitions of the Constitution. All of these contentions have been adequately considered in Watson and its accompanying supplement and we need only repeat our conclusion in Watson, that these claims are not meritorious.

Defendant also claims that our decision in Watson violates the general due process requirements of fundamental fairness. This argument appears to be no more than a restatement of his already rejected ex-post facto and double jeopardy arguments couched in broad terms of fairness. The crux of defendant's argument is that our decision in Watson was unfair because it had the effect of "changing the rules in the middle of the game," permitting the state to have a second chance to procure a death sentence. We do not find that Watson had an unfair effect on defendant. The "change in rules" was for defendant's benefit, allowing him to introduce any mitigating factors at the aggravation/mitigation hearing.

Defendant finally attacks the Watson decision as a judicially created penalty, unauthorized by law, and in violation of the Eighth and Fourteenth Amendments. This argument was rejected in State v. Mata, supra.

DEATH SENTENCE FOR FELONY-MURDER

Defendant has argued that the United States Supreme Court's decision in Lockett v. Ohio, supra, prohibits the death penalty where the defendant is convicted under a felony-murder theory. In State v. Arnett, 125 Ariz. 201, 608 P.2d 778 (1980) we said that Lockett did not prohibit the death sentence in a felony-murder case where the defendant intentionally shot the victim. See also State v. Steelman, 126 Ariz. ---, 612 P.2d 475 (1980).

PROPRIETY OF IMPOSING THE DEATH PENALTY ON DEFENDANT

At defendant's original sentencing hearing, the trial court found two aggravating circumstances based on defendant's four prior Texas convictions, and no mitigating circumstances. See State v. Jordan, 114 Ariz. 452, 561 P.2d 1224 (1976). The aggravating circumstances are found under A.R.S. § 13-454 E which provides:

"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.

"2. The defendant was previously convicted of a felony in the United States involving the use or threat of violence on another person."

At defendant's second sentencing hearing, the trial court found the same two aggravating circumstances and two additional aggravating circumstances listed under A.R.S. § 13-454 E(5) and (6). ² The trial court again determined that no mitigating circumstances existed.

Initially defendant contends that the trial court was precluded from finding additional aggravating circumstances at his second sentencing hearing which were not found at his first hearing. Because we agree with the trial court's determination as to the existence of the first two aggravating circumstances and as to the absence of any mitigating circumstances, we find it unnecessary to consider the additional aggravating circumstances found at the second hearing, and we need not decide the merits of defendant's contention.

Defendant next asserts that the trial court misapplied A.R.S. § 13-454 E(1) and (2) in concluding that his Texas convictions were aggravating circumstances under the statute. Defendant argues that § 13-454 E(1) and (2) contemplate other convictions which occurred prior to the murder and, since his Texas convictions were entered after the murder, they are not aggravating circumstances.

We have recently held that A.R.S. § 13-454 E(1) and (2) is not a recidivist statute and that a conviction for another offense may be an aggravating circumstance even if both the offense and conviction occur after the murder which is being punished. State v. Steelman, supra. It follows that defendant's Texas convictions, which occurred after the murder, may be considered as aggravating circumstances at a sentencing hearing held subsequent to those convictions.

Defendant cites State v. Lopez, 120 Ariz. 607, 587 P.2d 1184 (1978), as holding that a conviction for another offense must occur prior to the commission of the murder in order to be treated as an aggravating circumstance. We do not believe that our holdings in Lopez and Steelman are inconsistent. In Lopez the issue was the time that a conviction is deemed to occur under former A.R.S. § 13-1649 A which provided:

"A person who, having been previously convicted for petty theft, receiving stolen property, shoplifting, contributing to the delinquency of a minor, an offense involving lewd or lascivious conduct, or for any offense punishable by imprisonment in the state prison, commits any crime after such conviction, shall be punished upon conviction of such subsequent offense as follows: * * *."

We held that a conviction occurs at the time judgment of conviction is entered. The issue in the instant case is not when a conviction is deemed to occur, but whether that occurrence must precede the commission of the murder. The statute in Lopez by its terms contemplated convictions which were entered prior to the commission of the offense being punished. A.R.S. § 13-454 E(1) and (2) is not limited to such prior offenses. State v. Steelman, supra. We, therefore, hold that A.R.S. § 13-454 E(1) and (2) was not misapplied to defendant's Texas convictions.

Defendant also claims that his four prior convictions are not final because they are all being collaterally attacked by means of petitions for federal writs of habeas corpus. We have said that a prior...