State v. Schackart

• Decision Date: 30 October 1997
• Docket Number: No. CR-93-0535-AP,CR-93-0535-AP
• Parties: 255 Ariz. Adv. Rep. 3 STATE of Arizona, Appellee. v. Ronald Dwight SCHACKART, Appellant.
• Court: Arizona Supreme Court

Page 315

947 P.2d 315

255 Ariz. Adv. Rep. 3

STATE of Arizona, Appellee. v. Ronald Dwight SCHACKART, Appellant.

No. CR-93-0535-AP.

Supreme Court of Arizona,

En Banc.

Oct. 30, 1997.

Grant Woods, Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals, Bruce M. Ferg, Assistant Attorney General, Phoenix, for Appellee.

Ronald Dwight Schackart, Florence, In Propria Persona.

Constance L. Trecartin, Advisory Counsel, Tucson, for Appellant.

OPINION

ZLAKET, Chief Justice.

On March 16, 1985, a jury convicted Ronald Dwight Schackart of first degree murder, kidnapping, and sexual assault. The trial court sentenced him to death for the homicide and to consecutive thirty-year prison terms on the other charges. We affirmed the convictions and non-capital sentences on direct appeal. See State v. Schackart, 175 Ariz. 494, 503, 858 P.2d 639, 648 (1993). Deficiencies in the record, however, required us to vacate the death sentence and remand for resentencing. Thereafter, the trial judge found two statutory aggravators, A.R.S. §§ 13-703(F)(2) (prior violent felony) and (F)(6) (especially cruel, heinous, or depraved murder). He resentenced defendant to death, and this automatic appeal followed. We have jurisdiction pursuant to Ariz. Const. art. VI, § 5(3), A.R.S. § 13-4031, and Ariz.R.Crim.P. 31.2(b).

The details of the crime are set forth in our earlier opinion and will be repeated here only as necessary. See Schackart, 175 Ariz. at 496-97, 858 P.2d at 641-42. Certain subsequent events, however, must be noted. The day before oral argument in this court, and six months after briefing was completed, the state requested for the first time that we take judicial notice of various documents relating to defendant's prior convictions. Advisory defense counsel immediately moved to strike that request. Following argument, we denied the motion to strike and ordered the parties to file supplemental memoranda. For reasons discussed below, we now decline the state's invitation to take judicial notice.

DISCUSSION

In all capital cases, this court independently reviews the record to determine the existence of aggravating and mitigating circumstances, and to decide whether the mitigation is sufficiently substantial to call for leniency. See A.R.S. §§ 13-703.01(A), (B); State v. Barreras, 181 Ariz. 516, 521, 892 P.2d 852, 857 (1995).

I. Challenges to Aggravating Circumstances

A. The (F)(2) finding

At the time of this homicide, the (F)(2) aggravating circumstance required prior conviction "of a felony in the United States involving the use or threat of violence on another person." A.R.S. § 13-703(F)(2)(1989), amended by A.R.S. § 13-703(F)(2) (West Supp.1996). The trial court concluded that (F)(2) was established here because of defendant's previous convictions for sexual assault, kidnapping, and aggravated assault, all of which arose out of a 1984 incident involving his wife. Defendant challenges this determination.

To qualify for this aggravator, the earlier felony must have been one that, by statutory definition, involved violence or the threat of violence. See State v. Gillies, 135 Ariz. 500, 511, 662 P.2d 1007, 1018 (1983). Moreover, only those crimes in which force was employed or threatened with the intent to injure or abuse were considered violent under the former (F)(2). See State v. Fierro, 166 Ariz. 539, 549, 804 P.2d 72, 82 (1990); State v. McKinney, 185 Ariz. 567, 582, 917 P.2d 1214, 1229 (1996).

Sexual assault and kidnapping can be perpetrated by deception as well as by force. See A.R.S. §§ 13-1406, -1401, -1304, -1301; State v. Bible, 175 Ariz. 549, 604, 858 P.2d 1152, 1207 (1993); State v. Richmond, 180 Ariz. 573, 578-79, 886 P.2d 1329, 1334-35 (1994). Recognizing this, the state conceded in its sentencing memorandum that these offenses would not support the (F)(2) finding.

Defendant's aggravated assault conviction was pursuant to A.R.S. § 13-1204(A)(2), which requires an assault as defined in A.R.S. § 13-1203, plus the use of a deadly weapon or dangerous instrument. There are three ways, however, to commit assault under § 13-1203:

(1) Intentionally, knowingly or recklessly causing any physical injury to another person;

(2) Intentionally placing another person in reasonable apprehension of imminent physical injury; or

(3) Knowingly touching another person with the intent to injure, insult, or provoke such person.

A.R.S. §§ 13-1203(A)(emphasis added). If an assault is committed recklessly pursuant to § 13-1203(A)(1), the former (F)(2) factor cannot be established because the required mental state is lacking. See State v. Walden, 183 Ariz. 595, 617, 905 P.2d 974, 996 (1995); see also State v. Rogovich, 188 Ariz. 38, 44 & n. 3, 932 P.2d 794, 800 & n. 3 (1997); State v. McKinney, 185 Ariz. at 583, 917 P.2d at 1230.

Here, the state failed to prove the subsection of 13-1203(A) upon which defendant's prior conviction was based. After the verdict, defense counsel waived a jury trial regarding prior convictions and stipulated to defendant's identity. The prosecution then offered a certified copy of the sentencing minute entry from the earlier case, which stated only that defendant had been found guilty of "aggravated assault, a dangerous, but nonrepetitive class three felony," without enumerating a specific subsection of 13-1203. The presentence report from that case also failed to designate any subpart of the assault statute. Before defendant's resentencing, the state submitted a memorandum with copies of the earlier indictments attached. Again, those documents did not indicate any specific subsection of 13-1203. Nevertheless, the trial court found a prior felony involving the use or threat of violence.

Apparently concerned that the (F)(2) factor might be overturned on appeal, the state filed a "Request to Take Judicial Notice," asserting that "in order for this Court to intelligently resolve the dispute, it must have proof before it of the materials demonstrating the precise nature of the prior convictions, but those materials are not currently part of the Record on Appeal in this case." We are thus asked to "notice" various documents, including portions of jury instructions allegedly given in the prior matter. See Walden, 183 Ariz. at 617, 905 P.2d at 996. The instructions state that the crime of aggravated assault requires proof of the following: "1. That the Defendant intentionally put another person in reasonable apprehension of immediate physical injury; and 2. That the Defendant used a deadly weapon such as a firearm." Therefore, they would seem to indicate that defendant's prior conviction was based on § 13-1203(A)(2). As mentioned above, however, these instructions were not introduced at defendant's initial sentencing, nor at his resentencing.

Arizona cases do not provide a clear standard for determining when an appellate court may take judicial notice of matters that were never presented to the trial judge. See Kriz v. Buckeye Petroleum Co., 145 Ariz. 374, 377 n. 3, 701 P.2d 1182, 1185 n. 3 (1985) (holding judicial notice of federal court memorandum decision improper under Rule 201, Ariz.R.Evid.); In re Estate of Henry, 6 Ariz.App. 183, 188, 430 P.2d 937, 942 (1967) (refusing to take judicial notice of legal proceedings transacted in another court); cf. State ex rel. Corbin v. Tocco, 173 Ariz. 587, 590 n. 1, 845 P.2d 513, 516 n. 1 (App.1992) (court of appeals may take notice of records in the same case that were previously submitted to it and were properly before the trial court). But see State v. Valenzuela, 109 Ariz. 109, 110, 506 P.2d 240, 241 (1973); Morris K. Udall et al., Arizona Practice, Law of Evidence § 152, at 331 (3d ed. 1991) ("Supreme Court will take judicial notice of its own records and decisions and those of superior courts.").

Because our court does not act as a fact-finder, we generally do not consider materials that are outside the record on appeal. See Schaefer v. Murphey, 131 Ariz. 295, 299, 640 P.2d 857, 861 (1982); GM Dev. Corp. v. Community Am. Mortgage Corp., 165 Ariz. 1, 4, 795 P.2d 827, 830 (App.1990); Benitez v. Indus. Comm'n of Arizona, 15 Ariz.App. 54, 55, 485 P.2d 1171, 1172 (1971) (refusing items filed on the day of oral argument). Were we inclined to consider the late-presented documents in this case, we would first have to satisfy ourselves as to their authenticity, since we have been provided only photocopies of pages purportedly taken from various proceedings. See Ariz.R.Evid. 902; State v. Flowers, 9 Ariz.App. 440, 442-43, 453 P.2d 536, 538-39 (1969) (trial court must examine file of extradition papers before taking judicial notice of them). This court, however, is ill-equipped to resolve disputes over authenticity. Thus, the customary way to prove a prior offense is by introducing appropriate documentary evidence in the trial court. See State v. Marlow, 163 Ariz. 65, 70, 786 P.2d 395, 400 (1989). We see no reason to depart from this procedure, especially where life or death might literally hang in the balance. Regardless of the extent to which judicial notice may be appropriate in other contexts, therefore, we are not persuaded that it should be used at the appellate level to establish the existence of aggravating factors in a capital case. We hold that the (F)(2) finding is unsupported.

The state has alternatively urged us to apply the current version of § 13-703(F)(2), amended prior to defendant's resentencing to encompass specifically enumerated "serious offenses." See A.R.S. §§ 13-703(F)(2), (H). We believe the ex post facto clauses of the United States and Arizona Constitutions prohibit this. See U.S. Const. art. I, § 9, cl. 3; Ariz. Const. art. 2, § 25. The change in the statutory provision was substantive and could plainly serve to disadvantage a defendant. Offenses that did not qualify as an aggravating circumstance under the former "use or threat of violence" standard are now listed as serious felonies. See State v. Correll, 148 Ariz. 468, 481, ...