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State v. Moody8/8/2004
.S. § 13-703(G)(1). The remainder were non-statutory: his lack of any prior criminal history, good character for parenting, good character in his professional life, military service, psychosocial stressors, cocaine use and addiction, nonviolent character and lack of prior violent history, correlation between physical abuse as a child and subsequent substance abuse as an adult, the inability to appreciate the nature and consequences of his actions, and a nonviolent, law-abiding character.
The trial judge found four of the mitigating factors: lack of criminal record, good character in his professional life, military service, and lack of prior violent history. He gave little weight to them, however, and concluded that they were insufficient to call for leniency.
Based on the conflicting evidence in this record on these issues, we cannot conclude beyond a reasonable doubt that no rational jury would find other than as the trial judge found. A reasonable jury might have found additional mitigating factors or weighed differently the mitigating factors that were found. We also cannot say beyond a reasonable doubt that if a jury had found additional mitigating circumstances or weighed the mitigating circumstances differently, it would not have found them "sufficiently substantial to call for leniency." A.R.S. § 13-703(E). Therefore, we conclude that the Ring II error was not harmless in this case.
V. CONCLUSION
For the foregoing reasons, we affirm Moody's convictions for the first degree murders of Michelle Malone and Patricia Magda. However, because we cannot find harmless error in his sentencing procedure, we vacate Moody's death sentence and remand this case for jury resentencing pursuant to A.R.S. §§ 13-703 and -703.01.
Rebecca White Berch, Justice
CONCURRING:
Ruth V. McGregor, Vice Chief Justice
Michael D. Ryan, Justice
Sheldon H. Weisberg,Judge
JONES, Chief Justice, concurring in part, dissenting in part:
I concur in the judgment of the court both as to Moody's convictions and the remand for resentencing. I dissent, however, from the majority's conclusion that harmless error analysis is appropriate where sentencing determinations, including factual findings on aggravating circumstances, are made by the trial judge in the absence of the jury. I would remand the case for resentencing solely on the basis of the Sixth Amendment violation of the right to trial by jury on statutory aggravating factors relative to the death penalty. See State v. Armstrong, _____ Ariz. ____, 25-37, ___ P.3d ___ (2004) (supplemental opinion) (Jones, C.J., concurring in part and dissenting in part); see also State v. Sansing, 206 Ariz. 232, 241-42, 40-46, 77 P.3d 30, 39-40 (2003) (Jones, C.J., dissenting).
Charles E. Jones, Chief Justice
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 Arizona DUI Attorneys
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