State v. Ring

FELDMAN, Justice (Retired),

concurring in part and dissenting in part:

¶ 105 I dissent from Part VI of the majority opinion because I cannot agree that the complete absence of the jury in the separate capital sentencing proceeding that determines a defendant’s eligibility for the death penalty is reviewable for harmless error. In my view, the denial of a jury in the sentencing phase is a defect in the fundamental mechanism of the trial and is therefore structural error; thus the death sentence should be vacated. This is not only required by logic but is the teaching of a long line of our eases.

¶ 106 We have just recently held, for instance, that the erroneous exclusion for cause of prospective jurors was structural error that required reversal. State v. Anderson, 197 Ariz. 314, 324, ¶23, 4 P.3d 369, 379, ¶23 (2000). To hold otherwise and review for harmless error would lead us “down a slippery slope that could be used to justify overlooking every structural error [such as] denial of a jury trial or the right to counsel.” Id. at 323, ¶¶ 21-22, 4 P.3d at 378, ¶¶ 21-22; see also State v. Henley, 141 Ariz. 465, 469, 687 P.2d 1220, 1224 (1984) (structural error to try defendant to eight-person jury when constitution guaranteed twelve-person jury for crime charged); State v. Luque, 171 Ariz. 198, 200, 829 P.2d 1244, 1246 (App.1992) (trial to wrong number of jurors is fundamental, structural error).

¶ 107 If, as we have held, it is fundamental and structural error erroneously to exclude potential jurors or try a defendant to an insufficient number of jurors, it is difficult to see how deprivation of trial by jury at the capital sentencing phase can be less erroneous. The reason is plain: it is simply impossible to predict what a jury would have done if one had been impaneled. State v. Smith, 197 Ariz. 333, 339-40, 4 P.3d 388, 394-95 (App.1999). Appellate review of such error is not “like measuring the effect of erroneous evidentiary rulings against the overall weight of properly admitted evidence. Errors involving the composition of the court or jury affect the legitimacy of the entire proceeding, leaving nothing to measure or weigh and requiring reversal.” Anderson, 197 Ariz. at 323, ¶ 22, 4 P.3d at 378, ¶ 22. The error in these cases is unlike trial errors, which can be “quantitatively assessed in the context” of all the evidence. Arizona v. Fulminante, 499 U.S. 279, 307, 111 S.Ct. 1246, 1264, 113 L.Ed.2d 302 (1991).

¶ 108 The majority concludes, however, that the failure to submit any part of the determination of aggravating circumstances to a jury was not structural error. Op. at ¶44. I cannot agree. As the majority explains, in capital sentencing prior to Ring II, the trial proceeded in two phases, a guilt phase and a sentencing phase. Op. at ¶¶ 7-13. The first, before a jury, was concerned only with the question of conviction or acquittal of the crime of first degree murder. The second, tried to the court under Arizona’s prior sentencing statute, was concerned only with the issue of aggravating factors and mitigating circumstances. Each phase was tried to different factfinders on different issues. The Supreme Court, in these circumstances, has held that the sentencing phase resembles a separate trial, so much so that the double jeopardy clause applies both to the guilt phase and the sentencing phase. See, e.g., Strickland v. Washington, 466 U.S. 668, 686-87, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 1862, 68 L.Ed.2d 270 (1981) (double jeopardy protection attaches to capital sentencing proceeding); Arizona v. Rumsey, 467 U.S. 203, 209, 104 S.Ct. 2305, 2309, 81 L.Ed.2d 164 (1984) (Arizona capital sentencing proceedings resemble a trial for purposes of the double jeopardy clause). This was our view also. See State v. Rumsey, 136 Ariz. 166, 665 P.2d 48 (1983).

¶ 109 Complete denial of trial by jury at the sentencing phase, therefore, would seem to preclude harmless error analysis. The right to trial by jury is “fundamental to the American scheme of justice.” Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491 (1968). The Supreme Court has now held defendants were entitled to a jury at the sentencing phase to determine the existence of the alleged aggravating factors but were denied that constitutional right. Ring v. Arizona 536 U.S. 584, 609, 122 S.Ct. 2428, 2443, 153 L.Ed.2d 556 (2002) (Ring II). As noted, in Arizona denial of a jury trial is structural error. The same rule obtains in the federal system. Sullivan v. Louisiana, 508 U.S. 275, 281-282, 113 S.Ct. 2078, 2083, 124 L.Ed.2d 182 (1993) (the deprivation of the right to a jury trial unquestionably qualifies as structural error).

¶ 110 The majority rejects this conclusion and supports its decision on the basis of Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). Op. at ¶44. But Neder and the cases that rely on it are cases of trial error, not error in the structure or mechanism of the trial. Neder was tried to a jury which was present during the entire .trial. The error consisted of the trial judge failing to instruct the jury on materiality, one of the elements of the crime of tax fraud. The difference is that in Neder, the jury was presented with all of the evidence, and the issue of materiality was uncontested. Neder, 527 U.S. at 15, 119 S.Ct. at 1836. The Supreme Court held this was trial error, reviewable under a harmless error analysis. Id.

¶ 111 The present cases are different. Unlike Neder, the error in these eases did not occur during the presentation of the case to the jury. Instead, the error was the complete absence of the jury during the penalty phase of the trial. The jury in Ring’s trial heard no evidence, nor was it asked to make findings of any kind on the aggravating circumstances of the crime. And, even if such evidence may have been introduced at the guilt phase, it was not considered by a jury in the context of the death penalty. As a consequence, a jury verdict was never returned in these cases on the greater offense of capital murder. Thus, there is simply “no object, so to speak, upon which harmless-error scrutiny can operate.” Sullivan, 508 U.S. at 280, 113 S.Ct. at 2082.

¶ 112 To apply harmless error review in these consolidated cases would encourage the court to speculate that reversal is not necessary because the non-existent jury would have convicted the defendant in any event. The court, in other words, would transform itself into a phantom jury. The argument is not supportable.

¶ 113 In these consolidated cases, the majority must concede that the jury was erroneously discharged before the trial was completed. If this permits harmless error review, then, one must suppose, we would also review for harmless error if the trial judge directed a verdict for the state on one or more elements of the charge, granted summary judgment on an element, or discharged the jury after it had determined some but not all of the charges. Such results are also unsupportable, in my view. “The Sixth Amendment requires more than appellate speculation about a hypothetical jury’s action, or else directed verdicts for the State would be sustainable on appeal; it requires an actual jury finding of guilty.” Id.

¶ 114 Today’s opinion puts the majority in the position of speculating about one of the great unknowables — what a non-existent jury would have done. We might argue about whether some or any degree of accuracy can be obtained by such speculation, but the argument is irrelevant. Both the state and federal constitutions guarantee defendants the right to trial by jury — not for one-half of the trial, not for two-thirds, four-fifths, or nine-tenths of the trial but for the whole trial. When the jury trial guarantee is violated, I believe structural error has occurred. The Constitution does not then permit judges to conclude the error was harmless; it requires the court to conclude that the trial mechanism violated the Constitution and the result should not be affirmed.

CHARLES E. JONES, Chief Justice.

¶ 115 I concur in all but Part VI of the majority opinion and join in Justice Feldman’s dissent as to that part.