State v. Jones6/15/2000
had no notice of this particular hearing, and because his attorney released a witness without an opportunity for cross-examination, his constitutional rights have been violated.
Although a defendant has the right to be present at trial, his right extends only to those situations in which his "'presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.'" State v. Levato, 186 Ariz. 441, 443, 924 P.2d 445, 447 (1996)(quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S. Ct. 330, 332 (1934)). Counsel may, however, "acting alone make decisions of strategy pertaining to the conduct of the trial." Id. at 444, 924 P.2d at 448. Criminal defendants are often bound by their counsel's strategy decisions. Here, Jones was not excluded from a proceeding that involved any actual confrontation. The jury was not present, and the trial judge did not make any determination concerning Jones himself. The defense lawyer made a strategy decision only. For these reasons, the trial court did not err in holding the proceeding outside his presence, and Jones's eighth point of error is denied.
I.
Jones next argues that Arizona's death-qualification scheme violates both the Federal and State Constitutions. Although we have upheld the practice of juror death-qualification, Jones asks this Court to reconsider its position. Jones argues three points: (1) because jurors' opinions are frequently religious-based, questioning them on this issue violates article II, section 12 of the Arizona Constitution, (2) death-qualification is unnecessary because Arizona juries do not sentence defendants, and (3) the death-qualification process produces conviction-prone jurors. We have already addressed and rejected those arguments.
First, Jones argues that questioning a venire person about whether his religious beliefs prevent him from being fair and impartial violates the constitution. We specifically rejected this argument in State v. West, 176 Ariz. 432, 440, 862 P.2d 192, 200 (1993), overruled on other grounds by State v. Rodriguez, 192 Ariz. 58, 961 P.2d 1006 (1998). Second, we have specifically approved death-qualification, despite the fact that judges sentence defendants. See State v. La Grand, 153 Ariz. 21, 33, 734 P.2d 563, 575 (1987) (holding that Wainwright was properly applied and met, despite the fact that judges determine sentence). Third, the Supreme Court rejected the argument that the process produces conviction-prone jurors. See Lockhart v. McCree, 476 U.S. 162, 168-73 & nn.4 & 5, 106 S. Ct. 1758, 1762-65 & nn.4 & 5 (1986). Finally, we have recognized the longstanding acceptance of the death-qualification scheme. See State v. Gulbrandson, 184 Ariz. 46, 57, 906 P.2d 579, 590 (1995); State v. Stokley, 182 Ariz. 505, 514, 898 P.2d 454, 463 (1995); State v. Schaaf, 169 Ariz. 323, 331, 819 P.2d 909, 917 (1991). For these reasons, the defendant's ninth point of error is denied.
III.
A.
In addition to the trial issues argued on appeal, Jones also raises sentencing issues. He first argues that the A.R.S. § 13-703.F.5 pecuniary gain factor is unconstitutional because it does not narrow its application from the many cases in which the death penalty is not available. To pass constitutional muster, sentencing schemes must narrow the class of persons to those for whom the sentence is justified. See Zant v. Stephens, 462 U.S. 862, 877, 103 S. Ct. 2733, 2742-43 (1983). Here, Jones argues that broadening the factor to include ordinary robberies does not set this case apart from those in which the death penalty is not available.
In State v. Spencer, 176 Ariz. 36, 43, 859 P.
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