SUPREME COURT OF ARIZONA En Banc ) STATE OF ARIZONA, ) Arizona Supreme Court ) No. CR-02-0031-PC Plaintiff, ) ) Maricopa County Superior v. ) Court ) No. CR 91-92648 ROBERT CHARLES TOWERY, ) ) CONSOLIDATED WITH Defendant. ) ) __________________________________) ) STATE OF ARIZONA, ) Arizona Supreme Court ) No. CR-02-0022-PC Plaintiff, ) ) Pima County Superior v. ) Court ) No. CR-44903 ERIC OWEN MANN, ) ) CONSOLIDATED WITH Defendant. ) __________________________________) ) STATE OF ARIZONA, ) Arizona Supreme Court ) No. CR-02-0038-PC Plaintiff, ) ) Maricopa County Superior v. ) Court ) No. CR 1991-090926 JAMES ERIN McKINNEY, ) ) CONSOLIDATED WITH Defendant. ) ) __________________________________) ) ) STATE OF ARIZONA, ) Arizona Supreme Court ) No. CR-02-0146-PC Plaintiff, ) ) Mohave County Superior v. ) Court ) No. CR-13057 ROGER WAYNE MURRAY, ) ) Defendant. ) O P I N I O N ) __________________________________) Petition for Review from the Superior Court of Maricopa County No. CR 91-92648 The Honorable Cheryl K. Hendrix The Honorable James H. Keppel AFFIRMED _________________________________________________________________
Maynard, Murray, Cronin, Erickson & Curran, P.L.C. Phoenix by Daniel D. Maynard and Jennifer A. Sparks Waterfall, Economidis, Caldwell, Hanshaw & Villamana, P.C. Tucson by James W. Stuehringer Attorneys for Towery
Janet Napolitano, Arizona Attorney General Phoenix by Kent E. Cattani, Chief Counsel, Capital Litigation Section and Robert L. Ellman, Assistant Attorney General and Dawn M. Northrup, Assistant Attorney General Attorneys for State of Arizona
Office of Federal Public Defender Phoenix by Fredric F. Kay and Michael L. Burke Attorneys for Amicus Curiae Federal Public Defender _________________________________________________________________
Petition for Review from the Superior Court of Pima County No. CR-44903 The Honorable John F. Kelly AFFIRMED _________________________________________________________
Law Office of David Lipartito, P.C. Tucson by David Lipartito Maynard, Murray, Cronin, Erickson & Curran, P.L.C. Phoenix by Daniel D. Maynard and Jennifer A. Sparks Waterfall, Economidis, Caldwell, Hanshaw & Villamana, P.C. Tucson by James W. Stuehringer Attorneys for Mann
Janet Napolitano, Arizona Attorney General Phoenix by Kent E. Cattani, Chief Counsel, Capital Litigation Section
2 and Robert L. Ellman, Assistant Attorney General and John Pressley Todd, Assistant Attorney General Attorneys for State of Arizona
Office of Federal Public Defender Phoenix by Fredric F. Kay and Michael L. Burke Attorneys for Amicus Curiae Federal Public Defender _________________________________________________________________
Petition for Review from the Superior Court of Maricopa County No. CR 1991-090926 The Honorable Steven D. Sheldon AFFIRMED _________________________________________________________________
Jamie McAlister Law Offices, LLC Phoenix by Jamie McAlister Meyers, Taber & Meyers, P.C. Phoenix by Jess A. Lorona Maynard, Murray, Cronin, Erickson & Curran, P.L.C. Phoenix by Daniel D. Maynard and Jennifer A. Sparks Waterfall, Economidis, Caldwell, Hanshaw & Villamana, P.C. Tucson by James W. Stuehringer Attorneys for McKinney
Janet Napolitano, Arizona Attorney General Phoenix by Kent E. Cattani, Chief Counsel, Capital Litigation Section and Robert L. Ellman, Assistant Attorney General and Monica B. Klapper, Assistant Attorney General Attorneys for State of Arizona
Office of Federal Public Defender Phoenix by Fredric F. Kay and Michael L. Burke Attorneys for Amicus Curiae Federal Public Defender _________________________________________________________________
Petition for Review from the Superior Court of Mohave County No. CR-13057 The Honorable James E. Chavez AFFIRMED _________________________________________________________________
Waterfall, Economidis, Caldwell, Hanshaw &
3 Villamana, P.C. Tucson by James W. Stuehringer Maynard, Murray, Cronin, Erickson & Curran, P.L.C. Phoenix by Daniel D. Maynard and Jennifer A. Sparks Attorneys for Murray
Janet Napolitano, Arizona Attorney General Phoenix by Kent E. Cattani, Chief Counsel, Capital Litigation Section and Robert L. Ellman, Assistant Attorney General and Monica B. Klapper, Assistant Attorney General Attorneys for State of Arizona
Office of Federal Public Defender Phoenix by Fredric F. Kay and Michael L. Burke Attorneys for Amicus Curiae Federal Public Defender _________________________________________________________________
McGregor, Vice Chief Justice
¶1 These consolidated actions present the question whether
Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (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.
1 In State v. Ring, 200 Ariz. 267, 279-80 ¶ 44, 25 P.3d 1139, 1151-52 (2001) (Ring I), guided by Walton v. Arizona, 497 U.S. 639, 110 S. Ct. 3047 (1990), this court held that Arizona’s former capital sentencing scheme, in which a judge decided whether aggravating circumstances existed, comported with the Sixth Amendment.
4 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 Constitution and Rule 32.9 of the
Arizona Rules of Criminal Procedure.
5 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 ___, 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 ___, 122 S. Ct. at 2432.3 The 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.
¶5 The 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
2 Arizona Revised Statutes (A.R.S.) § 13-703 (2001) amended by 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, § 1. 3 Recognizing that under Arizona law aggravating circumstances “operate as ‘the functional equivalent of an element of a greater offense,’” the Court held that Arizona’s capital sentencing scheme violates the Sixth Amendment. 536 U.S. at __, 122 S. Ct. at 2443 (quoting Apprendi v. New Jersey, 530 U.S. 466, 494 n.19, 120 S. Ct. 2348, 2365 n.19 (2000)). Apprendi held that a jury must find beyond a reasonable doubt “any fact that increases the penalty for a crime beyond the prescribed statutory maximum.” 530 U.S. at 490, 120 S. Ct. at 2362-63. Ring II applies Apprendi’s interpretation of the Sixth Amendment to Arizona’s capital sentencing scheme.
6 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 (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 (1989) (plurality), and Allen v. Hardy, 478 U.S. 255,
106 S. Ct. 2878 (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
7 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 (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
8 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 (1997) (mem.); Towery v. Arizona, 519 U.S. 1128, 117 S. Ct.
985 (1997) (mem.); Murray v. Arizona, 519 U.S. 874, 117 S. Ct. 193
(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 (1990). Ring II, 536 U.S. at ___, 122 S. Ct. at 2443.
In Walton, the Court rejected Walton’s argument that the Sixth
Amendment demands that a jury, rather than a judge, find the
presence of aggravating circumstances and upheld Arizona’s capital
sentencing statute, the same statute as that struck down in Ring
II. 497 U.S. at 647-49, 110 S. Ct. at 3054-55. Because Walton
9 governed at the time the petitioners’ cases became final, precedent
obviously did not dictate the holding of Ring II. Moreover, Ring
II’s holding that a jury must decide whether any aggravating
circumstances exist also imposes a new burden on the state. Thus,
we conclude that Ring II constitutes a new rule.
¶10 Because Ring II announced a new rule, determining whether
it applies retroactively largely turns on whether Ring II
established a substantive or procedural rule. See Santana-Madera
v. United States, 260 F.3d 133, 138 (2d Cir. 2001). Substantive
rules determine the meaning of a criminal statute. See Bousley,
523 U.S. at 620, 118 S. Ct. at 1610. Decisions announcing
substantive rules often address the criminal significance of
certain facts or the underlying prohibited conduct. See Curtis v.
United States, 294 F.3d 841, 843 (7th Cir. 2002). In contrast,
procedural decisions set forth fact-finding procedures to ensure a
fair trial. Sanders, 247 F.3d at 147.
¶11 Petitioners assert that Ring II announced a substantive
rule because it determined the essential elements of capital murder
in Arizona. They argue that Ring II refined the definition of an
element of capital offenses, which is unquestionably a substantive
decision. We disagree. Although the Supreme Court recognized that
Arizona’s aggravating factors operate as the functional equivalent
of an element of a greater offense, Ring II did not announce a
substantive rule.
10 ¶12 Ring II extends Apprendi’s interpretation of the Sixth
Amendment to the capital context. 536 U.S. at __, 122 S. Ct. at
2432. The Supreme Court specifically described Apprendi as a
procedural decision: “The substantive basis for New Jersey’s
enhancement is thus not at issue; the adequacy of New Jersey’s
procedure is.” Apprendi, 530 U.S. at 475, 120 S. Ct. at 2354
(emphasis added). The Court explained that New Jersey’s policy
behind the hate crime sentence enhancement “has no . . . bearing on
this procedural question,” that is, whether the Sixth Amendment
requires a jury to determine if the defendant committed the crime
motivated by hate. Id. (emphasis added). Courts addressing
Apprendi’s retroactivity effect consistently conclude that Apprendi
announced a procedural rule. E.g., Curtis, 294 F.3d at 843; McCoy
v. United States, 266 F.3d 1245, 1256 (11th Cir. 2001); Sanders,
247 F.3d at 147; United States v. Richardson, 214 F. Supp. 2d 844,
846 (N.D. Ill. 2002). Logic dictates that if Apprendi announced a
procedural rule, then, by extension, Ring II did also. Cannon v.
Mullin, 297 F.3d 989, 994 (10th Cir. 2002) (explaining that the
Tenth Circuit’s conclusion “that Apprendi announced a rule of
criminal procedure forecloses Cannon’s argument that Ring [II]
announced a substantive rule”).
¶13 In addition, Ring II changed neither the underlying
conduct that the state must prove to establish that a defendant’s
crime warrants death nor the state’s burden of proof; it affected
11 neither the facts necessary to establish Arizona’s aggravating
factors nor the state’s burden to establish the factors beyond a
reasonable doubt. Instead, Ring II altered who decides whether any
aggravating circumstances exist, thereby altering the fact-finding
procedures used in capital sentencing hearings.
D.
¶14 In the interest of finality, new rules of criminal
procedure do not apply retroactively under the Teague framework
unless (1) the new rule “places certain kinds of primary, private
individual conduct beyond the power of the criminal law-making
authority to proscribe,” Teague, 489 U.S. at 307, 109 S. Ct. at
1073 (internal quotation marks and citation omitted) or (2) the
rule announced is a watershed rule of criminal procedure that is
“implicit in the concept of ordered liberty.” Id. at 311, 109 S.
Ct. at 1076 (internal quotation marks and citation omitted).
Arizona courts are especially concerned with the finality of
criminal cases because the Arizona Constitution requires courts to
protect the rights of victims of crime by ensuring a “prompt and
final conclusion of the case after the conviction and sentence.”
Ariz. Const. art. II, § 2.1(A)(10).
¶15 Ring II clearly does not implicate the first Teague
exception. “Ring [II] did not forbid either the criminalization of
any conduct or the punishment in any way of any class of
defendants.” Colwell v. Nevada, 59 P.3d 463, 473 (Nev. 2002); see
12 also United States v. Sanchez-Cervantes, 282 F.3d 664, 668 (9th
Cir. 2002) (stating that Apprendi does not implicate the first
Teague exception); Sanders, 247 F.3d at 148 (same).
¶16 Accordingly, Ring II does not apply retroactively unless
it falls under Teague’s second exception. Petitioners argue that
Ring II announced a watershed rule of criminal procedure because
requiring a jury to determine the existence of aggravating
circumstances improves the accuracy of the trial. We disagree.
¶17 The Teague watershed exception actually requires two
showings. First, “[i]nfringement of the rule must seriously
diminish the likelihood of obtaining an accurate conviction.”
Tyler v. Cain, 533 U.S. 656, 665, 121 S. Ct. 2478, 2484 (2001)
(internal quotation marks and citation omitted) (emphasis added).
In addition, “the rule must alter our understanding of the bedrock
procedural elements essential to the fairness of a proceeding.”
Id. Ring II does not satisfy either prong of the watershed
exception.
¶18 To fall within the second Teague exception, Ring II must
impose a “procedure[] without which the likelihood of an accurate
conviction is seriously diminished.” Teague, 489 U.S. at 313, 109
S. Ct. at 1077 (emphasis added). Requiring a jury to determine the
existence of aggravating circumstances does not “increase[] the
reliability of the guilt-innocence determination at all because”
Ring II does not affect a jury’s determination of guilt or
13 innocence. United States v. Moss, 252 F.3d 993, 999 (8th Cir.
2001) (concluding that Apprendi does not qualify under the second
Teague exception). Rather, Ring II prohibits a validly convicted
defendant from being exposed to the death penalty unless a jury
finds the existence of certain aggravating circumstances. See id.
¶19 Moreover, we doubt that the pre-Ring II sentencing
procedure seriously diminished the likelihood of a fair sentencing
hearing. Ring II merely shifts the fact-finding duty from an
impartial judge to an impartial jury. See United States v. Mora,
293 F.3d 1213, 1219 (10th Cir. 2002) (concluding that Apprendi does
not qualify under the second Teague exception); Sanders, 247 F.3d
at 148 (same). We have no reason to believe that impartial juries
will reach more accurate conclusions regarding the presence of
aggravating circumstances than did an impartial judge. See
Illinois v. Gholston, 772 N.E.2d 880, 886 (Ill. App. Ct. 2002)
(concluding Apprendi is not retroactive and stating it is unlikely
a jury would have a “substantially different interpretation of the
brutal and heinous nature of the crimes committed than the circuit
judge”); see also Bilzerian v. United States, 127 F.3d 237, 241 (2d
Cir. 1997) (holding that United States v. Gaudin, 515 U.S. 506, 115
S. Ct. 2310 (1995), which held that materiality is a jury question,
is not retroactive); United States v. Shunk, 113 F.3d 31, 37 (5th
Cir. 1997)(same).
¶20 Even if Ring II seriously improved the reliability of a
14 defendant’s conviction, the decision still would not apply
retroactively to final cases. To come within the purview of the
second Teague exception, a rule “must not only improve accuracy,
but also alter our understanding of the bedrock procedural elements
essential to the fairness of a proceeding.” Sawyer v. Smith, 497
U.S. 227, 242, 110 S. Ct. 2822, 2831 (1990) (explaining that
preserving accuracy “looks only to half of” Teague’s second
exception). Only a “small core of rules requiring observance of
those procedures that . . . are implicit in the concept of ordered
liberty” reach this watershed magnitude. Graham v. Collins, 506
U.S. 461, 478, 113 S. Ct. 892, 903 (1993) (internal quotation marks
and citation omitted). In other words, a rule “must implicate the
fundamental fairness of the trial.” Teague, 489 U.S. at 312, 109
S. Ct. at 1076.
¶21 We agree with the Fifth Circuit Court of Appeals that
“one can easily envision a system of ‘ordered liberty’ in which
certain elements of a crime can or must be proved to a judge, not
to the jury.” Shunk, 113 F.3d at 37 (holding that Gaudin does not
apply retroactively). Indeed, several Supreme Court opinions
support the conclusion that the right to a jury determination on
the existence of aggravating circumstances does not involve a
procedure so “implicit in the concept of ordered liberty” as to
constitute a watershed rule. Teague, 489 U.S. at 311, 109 S. Ct.
at 1076.
15 ¶22 In Ring II, the Court explained that “[t]he Sixth
Amendment jury trial right . . . does not turn on the relative
rationality, fairness, or efficiency of potential factfinders.”
536 U.S. at __, 122 S. Ct. at 2442 (emphasis added). Moreover, the
Court declined to make Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct.
1444 (1968), retroactive. DeStefano v. Woods, 392 U.S. 631, 633,
88 S. Ct. 2093, 2095 (1968) (per curiam). Duncan held that the
basic Sixth Amendment right to a jury trial applies to the states
through the Fourteenth Amendment. 391 U.S. at 147-58, 88 S. Ct. at
1446-52. Although DeStefano preceded Teague, the Court’s reasoning
remains relevant under the Teague framework. The Court stated, “We
would not assert, however, that every criminal trial – or any
particular trial – held before a judge alone is unfair or that a
defendant may never be as fairly treated by a judge as he would be
by a jury.” DeStefano, 392 U.S. at 634-35, 88 S. Ct. at 2095
(quoting Duncan, 391 U.S. at 158, 88 S. Ct. at 1452).
¶23 The Supreme Court’s decision in Neder v. United States,
527 U.S. 1, 119 S. Ct. 1827 (1999), further supports our conclusion
that Ring II does not constitute a watershed rule of criminal
procedure. A jury convicted Neder of violating various tax, mail,
and fraud statutes. Id. at 6, 119 S. Ct. at 1832. The judge,
however, did not instruct the jury on the element of materiality,
and the judge actually made the necessary finding of materiality.
Id. After Neder’s conviction but before Neder’s case became final,
16 the Court held in United States v. Gaudin, 115 S. Ct. 2310, 515
U.S. 506 (1995), that a jury must determine the question of
materiality. In Neder, the Supreme Court recognized that the
judge’s failure to instruct and submit the element to the jury
violated the Sixth Amendment but held that the error was subject to
a harmless error analysis. Id. at 8-15, 119 S. Ct. at 1833-37.
Moreover, holding that the failure to submit an element to a jury
did not constitute a structural error, the Court necessarily
concluded that “an instruction that omits an element of the offense
does not necessarily render a criminal trial fundamentally unfair.”
Id. at 9, 119 S. Ct. at 1833.
¶24 The petitioners’ cases are similar to Neder’s in that the
judge did not submit the aggravating circumstance element to the
jury. Consequently, it would be inconsistent with Neder to now
find that Ring II is a watershed rule that “implicate[s] the
fundamental fairness of the trial.” Teague, 489 U.S. at 312, 109
S. Ct. at 1076; see, e.g., Sanders, 247 F.3d at 148-49 (relying on
Neder to determine that Apprendi is not a watershed rule of
criminal procedure); United States v. Gibbs, 125 F. Supp. 2d 700,
705-07 (E.D. Pa. 2000) (same).
¶25 The new rule of criminal procedure announced in Ring II
thus does not meet either of the exceptions to Teague’s general
rule that new rules do not apply retroactively to cases that have
become final.
17 E.
¶26 Although most courts have adopted Teague’s plurality
analysis to determine whether a new rule applies retroactively,
Arizona also follows the analysis of Allen v. Hardy, 478 U.S. 255,
106 S. Ct. 2878 (1986) (per curiam). Slemmer, 170 Ariz. at 182-83,
823 P.2d at 49-50. Under the Allen framework, courts weigh three
factors to determine if a rule applies retroactively to final
cases: “(a) the purpose to be served by the new standards, (b) the
extent of the reliance by law enforcement authorities on the old
standards, and (c) the effect on the administration of justice of
a retroactive application of the new standards.” 478 U.S. at 258,
106 S. Ct. at 2880 (quoting Solem v. Stumes, 465 U.S. 638, 643, 104
S. Ct. 1338, 1341 (1984)).
¶27 We regard DeStefano as particularly persuasive because
the Court applied these same three factors to conclude that Duncan,
which applied the Sixth Amendment right to a jury to the states
through the Fourteenth Amendment, did not apply retroactively.
DeStefano, 392 U.S. at 633-34, 88 S. Ct. at 2095-96. If the basic
right to a jury trial does not apply retroactively, then a right to
a jury determination of aggravating circumstances that function
essentially as elements of a greater offense also does not apply
retroactively.
¶28 With respect to the purpose the new rule serves, the
Court explained, “[r]etroactive effect is ‘appropriate where a new
18 constitutional principle is designed to enhance the accuracy of
criminal trials.’” Allen, 478 U.S. at 259, 106 S. Ct. at 2880
(quoting Solem, 465 U.S. at 643, 104 S. Ct. at 1342). We concluded
in our preceding Teague analysis that the Ring II holding is not
designed to improve accuracy. See supra ¶¶ 18-19. Thus, the first
Allen factor does not support applying Ring II retroactively.
¶29 Similarly, the justice system’s good faith reliance on
Walton v. Arizona weighs against retroactivity. In Walton, the
Court expressly approved of Arizona’s system in which the judge,
not the jury, determined the presence of aggravating circumstances.
497 U.S. at 647-49, 110 S. Ct. at 3054-55. Moreover, the Court
reaffirmed Walton’s continued viability in Apprendi. 530 U.S. at
496-97, 120 S. Ct. at 2366. Certainly the Arizona justice system
acted in good faith in applying the holding of Walton until the
Court overruled its decade-old decision.
¶30 Finally, applying Ring II retroactively would greatly
disrupt the administration of justice. As recognized previously,
courts must protect a victim’s rights by ensuring “prompt and final
conclusion of the case after the conviction and sentence.” Ariz.
Const. art. II, § 2.1(A)(10). Arizona has approximately ninety
prisoners on death row whose cases have become final and who
received a sentence based upon the aggravating circumstances found
by the trial judge and affirmed on appeal. Conducting new
sentencing hearings, many requiring witnesses no longer available,
19 would impose a substantial and unjustified burden on Arizona’s
administration of justice. As in DeStefano, “[t]he values
implemented by the right to jury trial would not measurably be
served by requiring retrial of all persons” sentenced to death “by
procedures not consistent with the Sixth Amendment right to jury
trial.” 392 U.S. at 634, 88 S. Ct. at 2095. Moreover, vacating
those prisoners’ sentences without substantial justification would
violate this court’s duty under the Victims’ Bill of Rights.
Accordingly, we conclude that Ring II does not apply retroactively
under Allen.
IV.
¶31 For the foregoing reasons, we affirm each trial court’s
denial of post-conviction relief for the petitioners on the basis
of Ring II.
___________________________________ Ruth V. McGregor Vice Chief Justice
CONCURRING:
________________________________ Charles E. Jones, Chief Justice
________________________________ Rebecca White Berch, Justice
_________________________________ Michael D. Ryan, Justice
20 Feldman, Justice, specially concurring
¶32 I agree with the result and the analysis except insofar
as the court relies on its interpretation of Neder v. United
States, 527 U.S. 1, 119 S. Ct. 1827 (1999). See opinion at ¶¶ 23-
24.
___________________________________ Stanley G. Feldman, Justice (Retired)