State v. Nordstrom

• Decision Date: 27 July 2012
• Docket Number: No. CR–09–0266–AP.,CR–09–0266–AP.
• Citation: 280 P.3d 1244,230 Ariz. 110,639 Ariz. Adv. Rep. 10
• Parties: STATE of Arizona, Appellee, v. Scott Douglas NORDSTROM, Appellant.
• Court: Arizona Supreme Court

230 Ariz. 110

280 P.3d 1244

639 Ariz. Adv. Rep. 10

STATE of Arizona, Appellee,

v.Scott Douglas NORDSTROM, Appellant.

No. CR–09–0266–AP.

Supreme Court of Arizona,

En Banc.

July 27, 2012.

Thomas C. Horne, Arizona Attorney General by Kent E. Cattani, Division Chief Counsel, Jeffrey A. Zick, Section Chief Counsel, Capital Litigation Section, Phoenix, Lacey Stover Gard, Assistant Attorney General, Tucson, Attorneys for State of Arizona.

Sharmila Roy, Attorney at Law by Sharmila Roy, Laveen, Attorney for Scott Douglas Nordstrom.

OPINION

BALES, Vice Chief Justice.

¶ 1 This automatic appeal arises from Scott Douglas Nordstrom's 2009 death sentences for his 1996 murders of Thomas Hardman and Carol Lynn Noel. We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 13–4031 (2011).

FACTS AND PROCEDURAL BACKGROUND

¶ 2 On May 30, 1996, Scott Nordstrom and Robert Jones shot and killed Thomas Hardman and Clarence O'Dell while robbing the Moon Smoke Shop in Tucson. State v. Nordstrom (Nordstrom I), 200 Ariz. 229, 236–37 ¶¶ 1–4, 25 P.3d 717, 724–25 (2001). Two weeks later, Nordstrom and Jones shot and killed Carol Lynn Noel and three others during a robbery at the Firefighters' Union Hall, a Tucson social club. Id. at 237–38 ¶¶ 5–7, 25 P.3d at 725–26.

¶ 3 Police arrested Nordstrom and his brother David in connection with the murders. Id. at 239 ¶ 17, 25 P.3d at 727. David admitted he had accompanied Nordstrom and Jones to the Smoke Shop, but said he had stayed outside. Id. at 243 ¶ 35, 25 P.3d at 731. David entered a plea bargain regarding the Smoke Shop robbery; the State dismissed the charges against him related to the Union Hall robbery; and he testified as the State's key witness in the separate trials of Nordstrom and Jones. Id. at 238, 244 ¶¶ 10, 37, 25 P.3d at 726, 732;State v. Jones, 197 Ariz. 290, 298 ¶ 10, 4 P.3d 345, 353 (2000).¹

¶ 4 At Nordstrom's trial, eyewitness Carla Whitlock identified Nordstrom as one of the men she saw run from the Smoke Shop on the night of the robbery. David testified that he had driven Nordstrom and Jones to the Smoke Shop; the pair entered with handguns and he heard shots; Nordstrom and Jones later told him they had each shot a person; and the three had split the robbery money. David also testified that Nordstrom told him about the Union Hall robbery. Nordstrom I, 200 Ariz. at 238 ¶ 9, 25 P.3d at 726. Another witness, Michael Kapp, testified that Nordstrom had solicited him to rob the Union Hall two years earlier. Id. In his defense, Nordstrom presented alibi evidence for the day of the Smoke Shop robbery and evidence suggesting that David had committed the crimes and implicated his brother to save himself. Id. ¶ 10.

¶ 5 Nordstrom was convicted of the first degree premeditated murders of Hardman and Noel, of felony murder for the other four homicides, and of attempted murder, armed robbery, and first-degree burglary. Id. at 238–39 ¶ 12, 25 P.3d at 726–27. At sentencing, the trial judge found three aggravating circumstances under A.R.S. § 13–751—(F)(1) (prior conviction of another offense punishable by life imprisonment or death), (F)(5) (pecuniary gain), and (F)(8) (multiple homicides)—and sentenced Nordstrom to death for each murder. Id. at 239 ¶ 13, 25 P.3d at 727. This Court affirmed on direct appeal. Id. at 257 ¶ 99, 25 P.3d at 745.

¶ 6 Before our mandate issued, the Supreme Court decided Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In light of Ring, this Court vacated Nordstrom's death sentences and remanded for resentencing, concluding that a jury might have assessed the mitigating circumstances differently than did the judge. State v. Nordstrom (Nordstrom II), 206 Ariz. 242, 248 ¶¶ 26–28, 77 P.3d 40, 46 (2003). The State subsequently withdrew its death penalty allegation for the four felony murder convictions and its (F)(5) and (F)(8) aggravator allegations for the murders of Hardman and Noel.²

¶ 7 At the new aggravation phase, the State argued that the murder of Hardman established the (F)(1) aggravating factor for Noel's murder and vice-versa. The jury found the (F)(1) aggravator for each murder. Nordstrom then waived the presentation of mitigation evidence and declined to allocute. At the penalty phase, the State presented details about the Hardman and Noel murders and also introduced evidence of Nordstrom's convictions for the four other homicides and other crimes at the Smoke Shop and Union Hall. The State also established that Nordstrom was on parole when the offenses occurred. The jury determined Nordstrom should receive death sentences for both murders.

DISCUSSION

A. Penalty Phase Evidentiary Rulings

¶ 8 Nordstrom argues that the trial court erred by allowing the State to offer evidence during the penalty phase of the four felony murders when he did not present any mitigating evidence. We review admission of evidence for an abuse of discretion, State v. Lehr, 227 Ariz. 140, 147 ¶ 19, 254 P.3d 379, 386 (2011), and issues of constitutional and statutory interpretation de novo, State v. Roque, 213 Ariz. 193, 217 ¶ 89, 141 P.3d 368, 392 (2006).

¶ 9 Section 13–751(G) states that “[t]he trier of fact shall consider as mitigating circumstances any factors proffered by the defendant or the state that are relevant in determining whether to impose a sentence less than death, including any aspect of the defendant's character, propensities or record and any of the circumstances of the offense.” Similarly, A.R.S. § 13–752(G) states:

At the penalty phase, the defendant and the state may present any evidence that is relevant to the determination of whether there is mitigation that is sufficiently substantial to call for leniency. In order for the trier of fact to make this determination, the state may present any evidence that demonstrates that the defendant should not be shown leniency.³

¶ 10 The provisions, taken together, evince a legislative intent to permit the state to introduce relevant evidence whether or not the defendant presents evidence during the penalty phase. “Section 13–752(G) is framed broadly.... Subject to overarching due process considerations, any evidence that meets § 13–752(G)'s criterion is admissible, regardless of whether the evidence was admissible at a prior stage of the trial.” State v. Prince, 226 Ariz. 516, 526 ¶ 15, 250 P.3d 1145, 1155 (2011) (internal citation omitted). As we have noted:

At the penalty phase, the jury must make “a reasoned, individualized sentencing determination based on a death—eligible defendant's record, personal characteristics, and the circumstances of his crime.” Kansas v. Marsh, 548 U.S. 163, 174 [126 S.Ct. 2516, 165 L.Ed.2d 429] (2006) (citing Gregg v. Georgia, 428 U.S. 153, 189 [96 S.Ct. 2909, 49 L.Ed.2d 859] (1976) (Stewart, J., plurality opinion)). Construing § 13–752(G) as generally authorizing the admission of evidence concerning the circumstances of the crime and the aggravating factors thus preserves the entire statutory scheme's constitutionality.

Prince, 226 Ariz. at 527 ¶ 20, 250 P.3d at 1156.

¶ 11 The trial court did not err by allowing the State to introduce evidence of Nordstrom's four felony murders or the fact that he was on parole when he committed the murders. The facts surrounding the two first degree murders, as well as Nordstrom's felony murders, were relevant to whether Nordstrom deserved leniency. See State v. Pandeli, 215 Ariz. 514, 529 ¶¶ 52–53, 161 P.3d 557, 571–72 (2007) (upholding admission of evidence of a murder in a separate incident as relevant to whether defendant deserved leniency); see also State v. Armstrong, 218 Ariz. 451, 461 ¶ 38, 189 P.3d 378, 388 (2008).

¶ 12 The evidence, moreover, was not unduly prejudicial. At the penalty phase, the State introduced photographs of the victims and presented witnesses who described the crime scenes. Testimony is not unduly prejudicial where “[t]he witnesses simply provided details of the crime scene and described ... injuries.” Pandeli, at 529 ¶ 53, 161 P.3d at 571 (finding trial court did not abuse its discretion by admitting evidence of murder in separate incident).

¶ 13 Nordstrom also argues that admission of evidence about the felony murders violated due process, contending that we have held that “[e]vidence presented for rebuttal must be relevant to the mitigation proffered.” State v. Boggs, 218 Ariz. 325, 339 ¶ 65, 185 P.3d 111, 125 (2008); see also State v. Hampton, 213 Ariz. 167, 180 ¶ 51, 140 P.3d 950, 963 (2006). Although these cases appropriately limit the scope of evidence that the state may present to rebut mitigation presented by the defense, neither their holdings nor the due process clause preclude the state from offering evidence of the circumstances of the crime when the defendant does not present any mitigation.

¶ 14 Nordstrom also contends the trial court erred by barring him from introducing trial transcripts from his 1998 trial to rebut the State's penalty phase evidence. Nordstrom characterized the transcripts as “innocence related evidence” and did not proffer guilt phase evidence for other purposes.

¶ 15 The trial court determined that the transcripts were evidence of residual doubt. “[A] defendant has no constitutional right to present residual doubt evidence at sentencing.” State v. Moore, 222 Ariz. 1, 20 ¶ 109, 213 P.3d 150, 169 (2009); see also State v. Harrod (Harrod III), 218 Ariz. 268, 281 ¶ 46, 183 P.3d 519, 532 (2008).

¶ 16 Nordstrom attempts to distinguish Moore and similar cases by arguing that they involved situations in which the defendant sought to introduce residual doubt evidence at the penalty phase that had not been presented at the guilt phase. He also notes that his “innocence related evidence” concerned not only the Noel and Hardman murders, but also the four felony murders and other related crimes. These distinctions are not persuasive. This Court has observed that “there is no constitutional requirement that the sentencing proceeding...