State v. Towery

• Decision Date: 26 February 2003
• Docket Number: No. CR-02-0031-PC, No. CR-02-0038-PC, No. CR-02-0022-PC, No. CR-02-0146-PC.
• Citation: 64 P.3d 828,204 Ariz. 386
• Parties: STATE of Arizona, Plaintiff, v. Robert Charles TOWERY, Defendant. STATE of Arizona, Plaintiff, v. Eric Owen Mann, Defendant. State of Arizona, Plaintiff, v. James Erin McKinney, Defendant. State of Arizona, Plaintiff, v. Roger Wayne Murray, Defendant.
• Court: Arizona Supreme Court

64 P.3d 828

204 Ariz. 386

STATE of Arizona, Plaintiff, v.Robert Charles TOWERY, Defendant.

STATE of Arizona, Plaintiff, v.Eric Owen Mann, Defendant.

State of Arizona, Plaintiff, v.James Erin McKinney, Defendant.

State of Arizona, Plaintiff, v.Roger Wayne Murray, Defendant.

Nos. CR-02-0031-PC, CR-02-0022-PC, CR-02-0038-PC, CR-02-0146-PC.

Supreme Court of Arizona, En Banc.

February 26, 2003.

Maynard, Murray, Cronin, Erickson & Curran, P.L.C., by Daniel D. Maynard and Jennifer A. Sparks, Phoenix, Waterfall, Economidis, Caldwell, Hanshaw & Villamana, P.C., by James W. Stuehringer, Tucson, Attorneys for Towery.

Janet Napolitano, Arizona Attorney General, by Kent E. Cattani, Chief Counsel, Capital Litigation Section and Robert L. Ellman, Assistant Attorney General and Dawn M. Northrup, Assistant Attorney General, Phoenix, Attorneys for State of Arizona.

Office of Federal Public Defender, by Fredric F. Kay and Michael L. Burke, Phoenix, Attorneys for Amicus Curiae Federal Public Defender.

Law Office of David Lipartito, P.C., Tucson, by David Lipartito, Maynard, Murray, Cronin, Erickson & Curran, P.L.C., by Daniel D. Maynard and Jennifer A. Sparks, Phoenix, Waterfall, Economidis, Caldwell, Hanshaw & Villamana, P.C., by James W. Stuehringer, Tucson, Attorneys for Mann.Janet Napolitano, Arizona Attorney General, by Kent E. Cattani, Chief Counsel, Capital Litigation Section and Robert L. Ellman, Assistant Attorney General and John Pressley Todd, Assistant Attorney General, Phoenix, Attorneys for State of Arizona.

Office of Federal Public Defender, by Fredric F. Kay and Michael L. Burke, Phoenix, Attorneys for Amicus Curiae Federal Public Defender.

Jamie McAlister Law Offices, LLC, by Jamie McAlister, Meyers, Taber & Meyers, P.C., by Jess A. Lorona, Maynard, Murray, Cronin, Erickson & Curran, P.L.C., by Daniel D. Maynard and Jennifer A. Sparks, Phoenix, Waterfall, Economidis, Caldwell, Hanshaw & Villamana, P.C., by James W. Stuehringer, Tucson, Attorneys for McKinney.

Janet Napolitano, Arizona Attorney General, by Kent E. Cattani, Chief Counsel, Capital Litigation Section and Robert L. Ellman, Assistant Attorney General, and Monica B. Klapper, Assistant Attorney General, Phoenix, Attorneys for State of Arizona.

Office of Federal Public Defender, by Fredric F. Kay and Michael L. Burke, Phoenix, Attorneys for Amicus Curiae Federal Public Defender.

Waterfall, Economidis, Caldwell, Hanshaw & Villamana, P.C., by James W. Stuehringer, Maynard, Murray, Cronin, Erickson & Curran, P.L.C., by Daniel D. Maynard and Jennifer A. Sparks, Phoenix, Attorneys for Murray.

Janet Napolitano, Arizona Attorney General, by Kent E. Cattani, Chief Counsel, Capital Litigation Section and Robert L. Ellman, Assistant Attorney General and Monica B. Klapper, Assistant Attorney General, Phoenix, Attorneys for State of Arizona.

Office of Federal Public Defender, by Fredric F. Kay and Michael L. Burke, Phoenix, Attorneys for Amicus Curiae Federal Public Defender.

OPINION

McGREGOR, Vice Chief Justice.

¶ 1 These consolidated actions present the question whether Ring v. Arizona,536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556(2002)(Ring II),¹ which holds that a jury must decide whether aggravating circumstances exist in capital cases, applies retroactively to those defendants whose cases have become final.We conclude that Ring II does not apply retroactively to final cases.

I.

¶ 2 Separate juries found, beyond a reasonable doubt, that Murray, Mann, Towery, and McKinney committed first degree murder.In each petitioner's case, the trial judge conducted a sentencing hearing to determine whether aggravating circumstances existed.In each case, the judge found that the state proved, beyond a reasonable doubt, the presence of at least one aggravating circumstance and that the mitigating circumstances, if any, were not sufficiently substantial to call for leniency.Accordingly, Murray, Mann, Towery, and McKinney all received death sentences.This court affirmed each death sentence on direct review.State v. Murray,194 Ariz. 373, 982 P.2d 1287(1999);State v. Mann,188 Ariz. 220, 934 P.2d 784(1997);State v. Towery,186 Ariz. 168, 920 P.2d 290(1996);State v. McKinney,185 Ariz. 567, 917 P.2d 1214(1996).

¶ 3 Subsequently, Murray, Mann, Towery, and McKinney each filed a motion for post-conviction relief, arguing in part that their sentences violated their Sixth Amendment right to a jury trial because a judge, rather than a jury, determined the presence of aggravating circumstances.After the superior courts denied relief, each filed a petition for review with this court claiming various grounds for relief.We consolidated the petitioners' cases and granted review only on the issue of Ring II's applicability to the petitioners' cases.We have jurisdiction under Article VI, Section 5.3 of the Arizona ConstitutionandRule 32.9 of the Arizona Rules of Criminal Procedure.

II.

¶ 4 In Ring II, the United States Supreme Court held that Arizona's former capital sentencing scheme² violated a defendant's right to a jury trial under the Sixth Amendment because a judge, rather than a jury, found facts necessary to expose a defendant to a death sentence.536 U.S. at 608-609, 122 S.Ct. at 2443.The Court declared that "[c]apital defendants, no less than non-capital defendants... are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment."Id. at 589, 122 S.Ct. at 2432.³The petitioners request that this court vacate their death sentences because a judge, rather than a jury, made the factual findings needed to establish aggravating circumstances.

¶ 5The petitioners began these proceedings by filing a petition for post-conviction relief pursuant to Rule 32,Arizona Rules of Criminal Procedure.Generally, Rule 32.2 precludes relief for claims that were raised or could have been raised at trial or on appeal, as is true of this argument.Ariz. R.Crim. P. 32.2.An exception exists, however, when "[t]here has been a significant change in the law that if determined to apply to the defendant's case would probably overturn the defendant's conviction or sentence."Ariz. R.Crim. P. 32.1.g(emphasis added).Accordingly, we must first determine whether the Ring II decision applies retroactively to the petitioners' sentences.

III.

¶ 6 Several principles have shaped the United States Supreme Court's retroactivity jurisprudence, which Arizona courts have adopted and follow.State v. Slemmer,170 Ariz. 174, 181-82, 823 P.2d 41, 49(1991)(deciding to adopt and to apply federal retroactivity analysis).New constitutional rules apply to cases on direct review.Griffith v. Kentucky,479 U.S. 314, 322, 107 S.Ct. 708, 713, 93 L.Ed.2d 649(1987).The Constitution, however, neither forbids nor demands retroactive application of new rules to cases that have become final.Generally, under Teague v. Lane,489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334(1989)(plurality), andAllen v. Hardy,478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199(1986)(per curiam), new constitutional rules do not apply retroactively.

A.

¶ 7 Determining whether a rule applies retroactively under the Teague framework involves a three-part analysis.United States v. Sanders,247 F.3d 139, 146-47(4th Cir.2001).First, the court must determine whether the petitioner's case has become final.The second step essentially involves two inquiries: Is the rule that the petitioner asserts a new rule, and is the new rule substantive or procedural?Petitioners whose cases have become final may seek the benefit of new substantive rules.Bousley v. United States,523 U.S. 614, 620, 118 S.Ct. 1604, 1610, 140 L.Ed.2d 828(1998)(explaining that Teague does not apply to substantive rules).A new constitutional rule of criminal procedure, however, usually does not apply retroactively to collateral proceedings.Teague,489 U.S. at 310, 109 S.Ct. at 1075.Therefore, the court must finally determine whether the new rule fits within one of two narrow exceptions that permit retroactive application of a new rule of criminal procedure.

B.

¶ 8 A defendant's case becomes final when "a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied."Griffith,479 U.S. at 321 n. 6,107 S.Ct. at 712 n. 6.The trial courts entered a judgment of conviction and a death sentence for each of these petitioners.This court affirmed each petitioner's death sentence on his automatic direct appeal.Murray,194 Ariz. 373,982 P.2d 1287;Mann,188 Ariz. 220,934 P.2d 784;Towery,186 Ariz. 168,920 P.2d 290;McKinney,185 Ariz. 567,917 P.2d 1214.The United States Supreme Court denied petitions for writs of certiorari filed by Mann, Towery, and Murray.Mann v. Arizona,522 U.S. 895, 118 S.Ct. 238, 139 L.Ed.2d 169(1997)(mem.);Towery v. Arizona,519 U.S. 1128, 117 S.Ct. 985, 136 L.Ed.2d 867(1997)(mem.);Murray v. Arizona,519 U.S. 874, 117 S.Ct. 193, 136 L.Ed.2d 130(1996)(mem.).McKinney did not seek review from the Supreme Court, and his time for doing so has expired.This court has issued the direct appeal mandate for each petitioner.Accordingly, each petitioner's case has become final.

C.

¶ 9 Because the petitioners' cases are final, we next examine whether Ring II announced a new rule and whether the rule is substantive or procedural.A new rule "breaks new ground or imposes a new obligation on the States or the Federal Government."Teague,489 U.S. at 301, 109 S.Ct. at 1070.Stated differently, "a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final."Id.Clearly, the Ring II decision breaks new ground because it expressly overruled Walton v. Arizona,497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511(1990).Ring II,536 U.S. at 608-609, 122 S.Ct. at 2443.In Walton,the...