State v. Nichols

• Decision Date: 03 September 2008
• Docket Number: No. 2 CA-SA 2008-0011.,No. 2 CA-SA 2008-0021.,2 CA-SA 2008-0011.,2 CA-SA 2008-0021.
• Citation: 195 P.3d 207,219 Ariz. 170
• Parties: The STATE of Arizona, Petitioner, v. Hon. Richard NICHOLS, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent and Scott Douglas Nordstrom, Real Party in Interest. Scott Douglas Nordstrom, Petitioner, v. Hon. Richard Nichols, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and The State of Arizona, Real Party in Interest.
• Court: Arizona Court of Appeals

195 P.3d 207

219 Ariz. 170

The STATE of Arizona, Petitioner, v. Hon. Richard NICHOLS, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent and Scott Douglas Nordstrom, Real Party in Interest.

Scott Douglas Nordstrom, Petitioner, v. Hon. Richard Nichols, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and The State of Arizona, Real Party in Interest.

No. 2 CA-SA 2008-0011.

No. 2 CA-SA 2008-0021.

Court of Appeals of Arizona, Division 2, Department B.

September 3, 2008.

Motion to Publish Opinion Filed September 12, 2008.

Law Office of David Alan Darby, Esq. By David Alan Darby, and Law Office of Richard L. Parrish By Richard L. Parrish, Tucson, Attorneys for Scott Douglas Nordstrom.

Barbara LaWall, Pima County Attorney By Jacob R. Lines, Tucson, Attorneys for State of Arizona.

ESPINOSA, Judge.

¶ 1 The state of Arizona and Scott Nordstrom, the defendant in the underlying criminal action, filed cross petitions for special action relief challenging the respondent judge's determination of what evidence may be admitted during the aggravation phase of Nordstrom's sentencing. For the following reasons, we accept jurisdiction of the state's petition but deny relief. We decline jurisdiction of Nordstrom's petition.

Background

¶ 2 In 1997, a jury found Nordstrom guilty of six counts of first-degree murder, one count of first-degree attempted murder, and several counts each of burglary and armed robbery, all committed at the Moon Smoke Shop and Firefighter's Union Hall in Tucson. The jury unanimously found all of the murders had been proven under a felony-murder theory. It also unanimously found that Nordstrom had premeditated two of the murders, one at each location. Following a sentencing hearing, the trial court found the existence of aggravating circumstances under A.R.S. § 13-703(F)(1), (5), and (8) and sentenced Nordstrom to death on all of the murder counts.¹ Our supreme court affirmed Nordstrom's convictions and sentences on appeal. State v. Nordstrom, 200 Ariz. 229, ¶ 99, 25 P.3d 717, 745 (2001) (Nordstrom I). After the United States Supreme Court issued its decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), however, the Arizona Supreme Court vacated the death sentences and remanded the case for resentencing by a jury pursuant to A.R. S. §§ 13-703 and 13-703.01. State v. Nordstrom, 206 Ariz. 242, ¶ 28, 77 P.3d 40, 46 (2003) (Nordstrom II). Upon remand, the trial court determined that under the Sixth Amendment Nordstrom was entitled to have a jury weigh the aggravating and mitigating circumstances but not entitled to have a jury decide the existence of aggravating circumstances. Nordstrom sought special action review in this court; we determined that the "resentencing must proceed as if Nordstrom had never been sentenced before," and such factors must be proved to the sentencing jury. Nordstrom v. Cruikshank, 213 Ariz. 434, ¶ 22, 142 P.3d 1247, 1254 (App.2006) (Nordstrom III). The case was remanded to the court.

¶ 3 During the guilt phase of trial, Nordstrom had presented alibi evidence for the day of the Moon Smoke Shop robbery and "evidence suggesting" his brother, one of the state's primary witnesses, had actually "perpetrated the crimes and implicated [Nordstrom] to protect himself." Nordstrom I, 200 Ariz. 229, ¶¶ 9-10, 25 P.3d at 726. At the previous sentencing proceeding, Nordstrom argued "residual doubt" as a mitigating circumstance, and upon remand he "indicated his intention to present `residual doubt' as a mitigating factor" to the new sentencing jury. The trial court determined, however, that it would be "legally inappropriate to require the State to engage in, and the victims' families to endure, a retrial of the guilt issue" and "precluded [Nordstrom] from presenting evidence of `residual doubt' in the aggravation/mitigation and sentencing phases of the trial." See A.R. S. § 13-703.01(L) (prohibiting a "jury first impaneled for the aggravation phase" from "retry[ing] the issue of the defendant's guilt"); State v. Harrod, 218 Ariz. 268, ¶ 46, 183 P.3d 519, 532 (2008) (affirming trial court's preclusion of residual doubt evidence during penalty phase of sentencing).

¶ 4 In his motion for reconsideration before the respondent judge, Nordstrom argued he had a right to present alibi or other "innocence related evidence to rebut the State's" proof of aggravating circumstances and its evidence of the "necessary factual predicates" to satisfy Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), and Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). Under Enmund and Tison, a defendant who has been convicted of first-degree murder based on a felony-murder theory may not be sentenced to death unless "the defendant killed the victim, attempted to kill the victim, or intended that lethal force be employed, or was a major participant in the underlying felony and acted with reckless indifference to human life." Nordstrom III, 213 Ariz. 434, n. 3, 142 P.3d at 1250 n. 3 (citation omitted); see Tison, 481 U.S. at 158, 107 S.Ct. 1676; Enmund, 458 U.S at 797, 102 S.Ct. 3368. Although "the Sixth Amendment does not require that a jury, rather than a judge, make Enmund-Tison findings," State v. Ring, 204 Ariz. 534, ¶ 101, 65 P.3d 915, 946 (2003), the state conceded in previous proceedings in this case that a defendant is entitled to have a jury make those findings under Arizona's statutory scheme. Nordstrom III, 213 Ariz. 434, ¶ 6, 142 P.3d at 1250; see A.R.S. § 13-703.01(P) ("trier of fact shall make all factual determinations required by ... Constitution of the United States ... to impose a death sentence"; "[i]f the state bears the burden of proof, the issue shall be determined in the aggravation phase"); see also State v. Garza, 216 Ariz. 56, ¶ 46, 163 P.3d 1006, 1017 (2007) ("Arizona law specifically requires the trier of fact to make Enmund/Tison findings in the aggravation phase.").

¶ 5 Nordstrom contended that, "[j]ust as the state plans to introduce guilt phase evidence and testimony to establish death eligibility, fundamental fairness[,] along with the Constitutional right to confront this evidence, ... legally positions Nordstrom to introduce innocence related evidence/testimony at the de novo sentencing trial, specifically alibi evidence presented" at the guilt-phase trial. He claimed, however, that he was not asking the respondent "to reconsider [the court's] prior ruling regarding defense presentation of residual doubt during the mitigation phase" of the sentencing proceedings. See Harrod, 218 Ariz. 268, ¶¶ 37-46, 183 P.3d at 529-32 (residual doubt not mitigating circumstance).

¶ 6 The state argued in response, as it does in its petition for special action, that residual doubt evidence is irrelevant to any issues before the new sentencing jury, which will be concerned with "how" rather than "whether" Nordstrom committed the crimes. See Oregon v. Guzek, 546 U.S. 517, 526, 126 S.Ct. 1226, 163 L.Ed.2d 1112 (2006) (sentencing proceedings generally concerned with how defendant committed crime); Harrod, 218 Ariz. 268, ¶ 39, 183 P.3d at 530 (same). It reasoned that Nordstrom does not have the right to introduce residual doubt evidence under the Eighth or Fourteenth Amendments of the United States Constitution, see Guzek, 546 U.S. at 523, 126 S.Ct. 1226, and that such evidence is precluded under § 13-703.01(L), which provides that a jury newly empaneled for the aggravation phase of the sentencing "shall not retry the issue of the defendant's guilt." Therefore, the state contended, although Nordstrom may challenge his level of participation in the crimes at issue in the aggravation phase, he may not challenge the fact of his participation, that fact having been finally resolved by the guilt-phase jury.

¶ 7 The respondent judge ruled that Nordstrom "would not be entitled to present alibi evidence or otherwise present residual doubt evidence" if the State were to seek the death penalty only as to the murders the jury agreed had been premeditated, but he ruled that Nordstrom is "entitled to call alibi witnesses as to the felony murder convictions to contest the State's proposed proof that [he] was a major participant in the killings." See Tison, 481 U.S. at 158, 107 S.Ct. 1676. In response to a motion to clarify his ruling, the respondent stated:

The second jury will not decide whether there is a reasonable doubt about guilt due to alibi evidence or any other evidence. The guilt findings by the first jury were affirmed on appeal. The first jury's findings create prior convictions which are presumed valid and the Defendant will not be allowed to collaterally attack these convictions before the second jury.... The second jury will only decide relevant issues that were not unanimously decided by the first jury.

Agreeing in part with the state's position, the respondent explained that alibi and innocence-related evidence is "not relevant ... to the second jury's determination of the F1 and F8 allegations."² But he determined such evidence is relevant to the jury's factual determinations under Enmund and Tison and stated:

It is one thing, to allow the guilty findings to stand for the F 1 and F8 issues as this treatment of prior convictions is nothing new. However, it seems to this Court it is quite a different matter to extrapolate from the guilt findings of the first jury to tell the second how to resolve the Enmund/Tison issues.

"In the absence of appellate guidance," the respondent stated, he was "reluctant to rewrite the statutory scheme," even though the state had "made a powerful argument against allowing alibi evidence on the four counts involving" felony murder. These petitions for special action relief followed.

Jurisdiction

¶ 8 We accept special action jurisdiction of the state's petition because the state has no equally plain, speedy,...