State v. Phillips

67 P.3d 1228, 205 Ariz. 145, 399 Ariz. Adv. Rep. 25, 2003 Ariz. LEXIS 64
Arizona Supreme Court·Decided May 6, 2003·No. CR-99-0296-AP·Published·Cited by 7 cases

Opinions

SUPPLEMENTAL OPINION

BERCH, Justice.

¶ 1 Keith Phillips was sentenced to death under a procedure found unconstitutional in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (Ring II). In Ring II, the Supreme Court held that Arizona’s capital sentencing scheme violated the defendant’s Sixth Amendment right to a jury trial.1 Id. at 609, 122 S.Ct. at 2443. In doing so, the Court held that 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. The Court remanded for further proceedings consistent with its decision. Id. at 609, 122 S.Ct. at 2443.

¶ 2 On remand, we consolidated all eases, including Phillips’, in which the death penalty had been imposed and the mandate had not yet issued from this court, to determine whether Ring II requires reversal or vacatur of the death sentences in these cases. State v. Ring, 204 Ariz. 534, 544, ¶¶ 5-6, 65 P.3d 915, 925 (2003) (Ring III). We concluded that we must review each death sentence imposed under Arizona’s superseded capital sentencing statutes for harmless error. Id. at 556, ¶ 53, 65 P.3d at 936. This is that review in Phillips’ ease.

FACTS AND PROCEDURAL HISTORY

¶ 3 On March 1, 1999, a jury found Keith Phillips guilty of two counts of attempted murder, and forty-five counts of armed rob[147] bery, kidnapping, and aggravated assault, all stemming from three separate robberies that occurred over a sixteen-day period in April 1998. See State v. Phillips, 202 Ariz. 427, 431, ¶ 1, 46 P.3d 1048, 1052 (2002). Phillips was also convicted of premeditated and felony murder for a homicide committed by his partner, Marcus Finch, during the third robbery. Id. at 431-32, ¶¶ 1, 9, 46 P.3d at 1052-53. Following the jury’s verdict, the trial judge conducted a sentencing hearing in which he found beyond a reasonable doubt that Phillips expected pecuniary gain as the result of the murder and that he was guilty of prior serious offenses, aggravating circumstances rendering Phillips eligible for the death sentence. Id. at 433, ¶ 15, 46 P.3d at 1054; Ariz.Rev.Stat. (“A.R.S.”) § 13-703(F)(2), (F)(5) (Supp.1998). After reviewing the mitigating circumstances Phillips presented at the sentencing hearing, the judge concluded “that either of the two aggravating circumstances was sufficient in itself to outweigh the mitigation.” Phillips, 202 Ariz. at 433, ¶ 15, 46 P.3d at 1054. On appeal, we vacated Phillips’ conviction of premeditated murder but affirmed all of the other convictions and sentences. Id. at 441, ¶ 83, 46 P.3d at 1062. We now review whether, in light of Ring II and Ring III, the death sentence imposed on Phillips can stand.

DISCUSSION

A. Aggravating Circumstances

1. Prior serious offense

¶4 Arizona law lists as an aggravating circumstance whether “[t]he defendant was previously convicted of a serious offense, whether preparatory or completed.” A.R.S. § 13-703(F)(2). The trial judge found that Phillips had been convicted of prior serious offenses, armed robbery and aggravated assault, in 1998. Phillips, 202 Ariz. at 438-39, ¶ 57, 46 P.3d at 1059-60. Further, the judge determined that the twenty-five convictions for armed robbery, aggravated assault, and kidnapping committed during the first two robberies in the series of robberies at issue also constituted prior serious offenses.2 Id.

¶ 5 In Ring III, we held “that the Sixth Amendment does not require a jury to determine prior convictions under sections 13-703.F.1 and F.2.” 204 Ariz. at 556-57, ¶ 55, 65 P.3d at 936-37. Accordingly, we will not disturb the trial judge’s finding that the aggravating circumstance of prior serious offenses was proved, rendering Phillips eligible for the death sentence.

2. Pecuniary gain

¶ 6 Arizona law makes commission of an offense “in expectation of the receipt ... of anything of pecuniary value” an aggravating circumstance. A.R.S. § 13-703(F)(5). A finding of pecuniary gain does not automatically follow each time a robbery results in murder; rather, the inquiry is highly fact intensive. Ring III, 204 Ariz. at 560, ¶¶ 76-77, 65 P.3d at 941.

¶7 The trial judge found that the State proved beyond a reasonable doubt that the murder was motivated by Phillips’ desire “to obtain money to buy drugs,” a pecuniary motive. This finding fulfills the requirement that “the state must prove that the murder would not have occurred but for the defendant’s pecuniary motive.” Id. ¶75 (citing State v. Harding, 137 Ariz. 278, 296-97, 670 P.2d 383, 394-95 (1983)). We affirmed the pecuniary gain factor on appeal. Phillips, 202 Ariz. at 438, ¶ 55, 46 P.3d at 1059.

¶ 8 Because the finding of pecuniary gain is so fact-intensive, however, we cannot affirm a pecuniary gain finding unless we are convinced beyond a reasonable doubt that no reasonable jury could find that the State failed to prove pecuniary gain beyond a reasonable doubt. See Ring III, 204 Ariz. at 560, ¶¶ 76-79, 65 P.3d at 941. Only in such a case will we find harmless error regarding that factor. Id. ¶ 79.

¶ 9 This court has held that pecuniary gain is an aggravating factor if “a murder was [148] committed to hinder detection” of a continuing robbery. State v. Lee, 185 Ariz. 549, 558, 917 P.2d 692, 701 (1996); see also State v. Rockwell, 161 Ariz. 5, 14, 775 P.2d 1069, 1078 (1989) (holding that if a witness was eliminated to facilitate the theft, “the murder was part and parcel of the robbery”). The trial judge determined that the murder was motivated by pecuniary gain because “Finch shot and killed Hendricks during the course of that felony so he and Phillips could successfully complete the robbery without detection.” Phillips, 202 Ariz. at 437, ¶ 44, 46 P.3d at 1058 (referencing special verdict).

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State v. Phillips, 67 P.3d 1228, 205 Ariz. 145, 399 Ariz. Adv. Rep. 25, 2003 Ariz. LEXIS 64 (Ark. 2003).

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