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State v. Moody8/8/2004
Consequently, we find no reversible error in the failure to give an NGBRI instruction.
IV. SENTENCING ISSUES
Moody was sentenced to death under a procedure found unconstitutional in Ring v. Arizona, 536 U.S. 584 (2002) (" Ring II "). In Ring II, the United States Supreme Court held that Arizona's former capital sentencing scheme violated the defendant's Sixth Amendment right to a jury trial. Id. at 609. 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. The Court remanded the case for further proceedings consistent with its decision. Id. at 609.
Moody's case was one of several death penalty cases we consolidated on remand to determine whether Ring II required reversal or vacatur of the death sentences. State v. Ring, 204 Ariz. 534, 544, 5-6, 65 P.3d 915, 925 (2003) (" Ring III "). We review the sentence imposed under Arizona's superseded capital sentencing statute for harmless error. Id. at 555, 53, 65 P.3d at 936.
An aggravation/mitigation hearing in Moody's case was conducted over the course of three days in December 2001 and January 2002. In the special verdict, the court found the following aggravating factors with respect to both murders: (1) Moody had been convicted of a separate offense for which life imprisonment was imposable, A.R.S. § 13-703(F)(1) (1993); (2) he committed the murders in the expectation of pecuniary gain, id. § 13-703(F)(5); and (3) he committed the murders in an especially cruel, heinous or depraved manner, id. § 13-703(F)(6).
Moody alleged eleven mitigating circumstances. Of these, the trial court found four: (1) lack of a criminal record, (2) good character in his professional life, (3) military service, and (4) nonviolent character and lack of prior violent history. Weighing the four proven mitigating circumstances against the three aggravating circumstances, the court found the mitigators "insufficient to call for leniency." The court imposed sentences of death for the murders of Michelle Malone and Patricia Magda.
In Ring III, we concluded that judicial fact-finding in the capital sentencing process may constitute harmless error if we can conclude beyond a reasonable doubt that no reasonable jury would fail to find the aggravating circumstance. 204 Ariz. at 555, 565, 53, 102-04, 65 P.3d at 936, 946. We now examine whether the Ring II error was harmless with respect to the sentences imposed by the trial judge in Moody's case.
A. Aggravating Circumstances
1. Prior Convictions
Arizona Revised Statutes § 13-703(F)(1) lists as an aggravating circumstance that the "defendant has been convicted of another offense in the United States for which under Arizona law a sentence of life imprisonment or death was imposable." In this case, the trial court found that the jury's verdict of guilt as to Michelle Malone's murder satisfied this aggravating factor for the Patricia Magda conviction, and that the jury's verdict of guilt as to the Magda murder satisfied the factor for the Malone conviction. Moody argues that because the convictions occurred at the same time, neither of these convictions can serve as an historical prior conviction for the other.
This court has held that the order of the crimes or convictions themselves is not important. See State v. Lee, 189 Ariz. 590, 604, 944 P.2d 1204, 1218 (1997). The relevant inquiry is whether the convictions were entered before the sentencing hearing. Id. Moody's convictions were entered before his sentencing hearing. Consequently, there was no error in allowing each m
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