State v. Davolt

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) JAMES EDWARD DAVOLT, II, ) ) Appellant. ) ) DIVISION ONE FILED: 02/02/2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 08-1009 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Mohave County Cause No. CR9800-1243 The Honorable Robert R. Moon, Judge AFFIRMED Terry Goddard, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Sherri Tolar Rollison, Assistant Attorney General Attorneys for Appellee David Goldberg Attorney for Appellant Ft. Collins, CO W I N T H R O P, Judge ¶1 James consecutive Edward life Davolt, sentences II ( Appellant ) imposed by the appeals superior from court following our remand for resentencing on Appellant s two first degree murder convictions. For the following reasons, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 Appellant was convicted on April 20, 2000, of two counts of first degree murder for the killings of N.Z. and E.Z. and on the related offenses of burglary in the first degree, theft, arson of an occupied structure, and theft of means of transportation. After a sentencing hearing on October 6, 2000, the Honorable Steven F. Conn sentenced Appellant to death on the murder counts and imposed consecutive sentences on the non- capital counts. ¶3 Appellant had Arizona Supreme Court. 456 (2004). an automatic direct appeal to the State v. Davolt, 207 Ariz. 191, 84 P.3d The facts of the case are set forth in detail in the supreme court s opinion. The court affirmed Appellant s convictions, matter but remanded the to the trial court to determine whether, at the time of the offense, Davolt possessed moral responsibility and culpability sufficient to render him eligible for the death penalty. 482. Id. at 217, ¶ 114, 84 P.3d at The court also vacated the sentences on the non-capital counts by reason of the trial court s failure to consider age 2 as a statutory mitigating factor and remanded the matter for Id. at ¶ 115.1 resentencing. ¶4 Prior to resentencing, the Supreme Court of the United States decided Roper v. Simmons, 543 U.S. 551 (2005). In Roper, the Court held that the Eighth and Fourteenth Amendments to the United States Constitution prohibited the imposition of the death penalty on an offender who was under the age of eighteen when the crime or crimes were committed. ¶5 Id. at 578. On remand, Judge Conn held a resentencing hearing on October 28, 2005. He found several aggravating factors and found age as a mitigating factor. On the murder counts, Judge Conn life imposed consecutive natural possibility of release on any basis. sentences without the The court resentenced Appellant on the four non-capital counts, those sentences to run concurrently with each sentence on Count One. other, and imposed the natural life Pursuant to an order of the trial court, Appellant filed a notice of delayed appeal from his two natural life sentences. ¶6 We reversed the natural life sentences and remanded for resentencing based on our determination that, during the October 28, 2006 hearing, Judge Conn improperly referenced the 1 Appellant was sixteen years old and a junior in high school when the offenses were committed. Davolt, 207 Ariz. at 200, ¶ 8, 84 P.3d at 465. 3 original sentencing hearing. State v. Davolt, 1 CA-CR 05-1205 (Ariz. App. July 24, 2007) (decision order). noted that impartial Appellant magistrate sentencing hearing, aggravating and sentences. ¶7 was who entitled would, review mitigating to be without the resentenced regard evidence factors We specifically to and by any an prior the imposing before weigh any Id. The Honorable Robert hearing on October 30, 2008. R. Moon held a resentencing Before the hearing, Judge Moon reviewed the record and the transcripts from the trial and the previous sentencing introduce evidence of additional to found personally addressed those hearings. the Neither aggravating by Judge court and party intended or mitigating Conn, although recounted his to factors Appellant troubled childhood and subsequent productivity while in prison.2 Judge Moon reweighed the aggravating and mitigating factors previously found by Judge Conn and, pursuant to Arizona Revised Statutes ( A.R.S. ) section 13-703,3 sentenced Appellant to life 2 Appellant also introduced a letter he wrote to the deputy warden expressing his desire to become an education aide. 3 Effective January 1, 2009, section 13-703 was renumbered to A.R.S. § 13-751. See 2008 Ariz. Sess. Laws, ch. 301, § 38. All references to the statute are to the version that existed November 23-26, 1998, the alleged dates of the murders. See 1993 Ariz. Sess. Laws, ch. 153, § 1 (1st Reg. Sess.). 4 imprisonment with the possibility of parole after 25 years for the murder of N.Z., to be served consecutively to the natural life sentence followed, Section for and 9 120.21(A)(1) of the we have the murder E.Z. jurisdiction Arizona (2003), of This pursuant Constitution 13-4031 (2001), and and timely to appeal Article A.R.S. -4033(A)(1) §§ 6, 12- (Supp. 2008). ANALYSIS ¶8 Appellant raises several arguments on appeal challenging the resentencing procedures employed by Judge Moon and the consecutive sentences imposed on the two murder counts. We review for an abuse of discretion and will reverse only if the court acted arbitrarily or capriciously or failed adequately investigate the facts relevant to sentencing. to State v. Cazares, 205 Ariz. 425, 427, ¶ 6, 72 P.3d 355, 357 (App. 2003); see also State v. Sproule, 188 Ariz. 439, 440, 937 P.2d 361, 362 (App. 1996) (reviewing natural life sentence for abuse of discretion). We address each issue in turn. A. ¶9 Proceedings on Remand Appellant first contends Judge Moon refused to review the record and independently determine whether the State proved the alleged aggravating circumstances. Rather, Appellant claims Judge Moon simply accept[ed] Judge Conn s findings of fact and 5 conclusions of Appellant s right proceeding. ¶10 law level belies of accepting to an resulting independent in de a novo violation of resentencing We reject this argument. First, hearing thereby the transcript Appellant s engagement Judge with Conn s from the characterization the record. findings October of Rather regarding 30, 2006 Judge Moon s than simply aggravating and mitigating factors, Judge Moon relied on the record to find evidentiary support, or lack thereof, to support those previous findings. It is true that Judge Moon expressed his agreement with some of Judge Conn s findings, but the record reflects Judge Moon independently found and weighed the relevant factors, and he notably did so in a manner more favorable to Appellant than did Judge Conn. ¶11 new Second, our mandate for resentencing did not require a evidentiary hearing as Appellant suggests.4 Rather, we ordered the matter be reassigned to a different judge to review the evidence and weigh the aggravating and mitigating factors before imposing sentences. The record reflects compliance with 4 Appellant does not on appeal, nor did he at resentencing on October 30, 2008, explain what additional mitigating evidence he would have presented. Indeed, despite Appellant s statement to the contrary, the record reflects Judge Moon did consider Appellant s allocution and the related letter Appellant submitted. 6 this order. Although Judge Moon did review the transcripts from the previous sentencing hearings, he specifically noted for the record that comments. there s no effect on me from Judge Conn s Further, to the extent Appellant argues Judge Moon was not fair, impartial and free from bias or prejudice, the record is completely contention. Indeed, devoid our of review any of support the for hearing such a transcript reveals Judge Moon properly shaped his discretion with respect to sentencing by considering and finding § 13-703(F) factors, which in turn, facilitates our review. See infra ¶¶ 27-35; State v. Fell, 210 Ariz. 554, 559, ¶¶ 17-18, 115 P.3d 594, 599 (2005); see also State v. Williams, 220 Ariz. 331, 332-33, ¶¶ 1, 5, 206 P.3d 780, 781-82 (App. 2008) (affirming resentencing of defendant convicted of first degree murder to natural life even though trial court did not make specific findings on aggravating or mitigating factors). ¶12 For discretion in the the foregoing process reasons, Judge we Moon discern no abuse of utilized to determine Appellant s sentences.5 5 To the extent Appellant sufficiently argues on appeal that the October 30, 2008 resentencing hearing violated his constitutional rights, Ariz. R. Crim. P. 31.13(c)(1)(vi), he did not raise any purported constitutional violation below. Accordingly, we would normally review for fundamental error. See State v. Williams, 220 Ariz. at 334, ¶ 8, 206 P.3d at 783 7 B. ¶13 Cruel and Unusual Punishment Appellant life sentence punishment on that imposition of a natural and unusual United States the Arizona a juvenile offender is cruel Eighth Amendment to the and Constitution.6 argues the under Constitution next Article 2, Section 15, of Appellant claims that because he was sixteen years old when he committed the offenses, was immature, and had an abusive and dysfunctional childhood, the sentence is grossly disproportionate to the murder of E.Z. ¶14 The State responds that Appellant failed to raise the constitutional issue below and forfeited his right to obtain appellate relief absent fundamental error. However, the record indicates that defense counsel argued at the first resentencing hearing that a life sentence without the possibility of parole for juveniles violates the Eighth and Fourteenth Amendments to the United States Constitution. Waiver aside, we find no constitutional violation. (citing cases). However, because Appellant does not argue that any purported constitutional violation amounts to fundamental error that prejudiced him, we consider this argument waived and do not address it. See id. at ¶ 10. 6 Arizona s provision against cruel and unusual punishment is interpreted as being coterminous with the provision in the Federal Constitution. State v. Long, 207 Ariz. 140, 144, ¶ 21 n.2, 83 P.3d 618, 622 n.2 (App. 2004). 8 ¶15 The Eighth Amendment to the United States Constitution and its corollary, Article 2, Section 15 of the Arizona Constitution unusual. prohibit punishments that are cruel and State v. Davis, 206 Ariz. 377, 381, ¶ 13, 79 P.3d 64, 68 (2003). The Eighth Amendment may be applied to lengthy sentences of incarceration in non-capital cases. Long, 207 Ariz. at 145, ¶ 22, 83 P.3d at 623 (citing Lockyer v. Andrade, 538 U.S. 63, 72 (2003)). However, successful challenges to the proportionality of particular sentences are exceedingly rare. Long, 207 Ariz. at 145, ¶ 22, 83 P.3d at 623 (citing Solem v. Helm, 463 U.S. 277, 289-90 (1983), overruled on other grounds by Harmelin v. Michigan, 501 U.S. 957, 965 (1991)). Thus, a sentence violates the Eighth Amendment only if it is so severe as to shock the conscience of society . Davis, 206 Ariz. at 388, ¶ 49, 79 P.3d at 75 (citation omitted). ¶16 the In conducting an analysis under the Eighth Amendment, reviewing sentence imposed disproportionate examine court the is to facts of should so the the examine severe crime, and, that appears court must the if the grossly carefully of the offender to see whether the sentence is cruel and unusual. Id. at 384, ¶ 34, 79 P.3d at 71. and it the offense, case the circumstances Once an inference of gross disproportionality has been found, the Supreme Court suggests 9 that a reviewing court validate that impression by conducting an intra- and inter-jurisdictional analysis. P.3d at 72. Id. at 385, ¶ 38, 79 Such analysis considers the sentences the state imposes on other crimes and the sentences other states impose for the same crime. State v. Berger, 212 Ariz. 473, 476, ¶ 12, 134 P.3d 378, 381 (2006). ¶17 The Supreme Court of the United States has noted that noncapital sentences proportionality are principle subject that only prohibits grossly disproportionate to the crime. P.3d at 380 (citations omitted). to a sentences narrow that are Id. at 475, ¶ 10, 134 In determining gross disproportionality, a court compares the gravity of the offense [and] the harshness of the penalty. Id. at 476, ¶ 12, 134 P.3d at 381 (quoting Ewing v. California, 538 U.S. 11, 28 (2003)). In comparing the gravity of the offense to the harshness of the penalty, courts must accord substantial deference to the legislature and its policy judgments as reflected in statutorily mandated sentences. Berger, 212 Ariz. at 476, ¶ 13, 134 P.3d at 381. ¶18 In this case, comparing the gravity of E.Z. s murder with the harshness of the penalty, we find no inference of gross disproportionality. murdered two elderly, Appellant terrorized vulnerable 10 and individuals. then brutally The evidence showed Appellant, who admittedly is highly intelligent, committed the murders and the related serious felonies in a cold-blooded and calculated manner. ¶19 The murder of E.Z. was especially horrific because she was conscious for several minutes after sustaining a blow to the head and being manually strangled, and the evidence suggested she was alive for one to two days after she must have known of her husband s death, during which time Appellant physically restrained her and forced her to assist him in obtaining money from her and N.Z. s bank account. Davolt, 207 Ariz. at 199-201, ¶¶ 5-6, 18, 20, 84 P.3d at 464-66. Given the nature of the offense, imposition of a natural life sentence does not create an inference that the penalty is grossly disproportionate to the crime. Because of this conclusion, we need not go further and conduct an issue. See Berger, 212 Ariz. at 482-83, ¶¶ 50, 51, 134 P.3d at intra- and inter-jurisdictional analysis on this 387-88 (no gross disproportionality in twenty consecutive tenyear sentences for 20 counts of possession of child pornography so no further analysis required). ¶20 Appellant argues that a natural life sentence as opposed to a life sentence with the possibility of parole after twenty five years is cruel and unusual because it forbid[s] [Appellant] from ever convincing a parole board that he has 11 repented and evolved into someone who can live in society. also claims that juvenile offenders are in a special He class because they are immature and not as morally accountable as adults. penalty See for youthful Roper, 543 juveniles are at convicted offenders responsibility, U.S. have more 569-70 of an (invalidating homicide in part underdeveloped vulnerable and are death because sense of impetuous and reckless). ¶21 We unavailing. of whether disagree and find Appellant s reliance on Roper In a recent opinion, this court addressed the issue the imposition of a natural life sentence on a juvenile offender violates the Eighth Amendment to the United States Constitution. See State v. Pierce, 1 CA-CR 08-0715, 2010 WL 199261 (Ariz. App. Jan. 21, 2010). In Pierce, Arizona joined other jurisdictions in refusing to extend the reasoning of Roper v. Simmons to natural convicted of murder. e.g., State v. Allen, life sentences for juvenile offenders Id.; see Roper, 543 U.S. 551; see also, 958 A.2d 1214, 1231-36 (Conn. 2008); Wallace v. State, 956 A.2d 630, 640-41 (Del. 2008); State v. Craig, 944 So.2d 660, 662-63 (La. App. 2006). ¶22 We conclude Appellant s natural life sentence does not constitute cruel and unusual punishment and does not violate the federal or state constitutions. 12 C. Right to Jury Determination of Aggravating Factors ¶23 Appellant claims that he was entitled under the Sixth Amendment to have a jury find the aggravating factors beyond a reasonable doubt to determine whether he should receive a natural life sentence or life with the possibility of release. He claims that failure to do so violates Blakely v. Washington, 542 U.S. 296 (2004). ¶24 This argument fails. In State v. Fell, 210 Ariz. at 558-60, ¶¶ 15, 19, 115 P.3d at 598-600, the Arizona Supreme Court held that under the statutory sentencing scheme authorizing imposition of life to natural life sentences set forth in A.R.S. § 13-703, the Sixth Amendment does circumstance Appellant not before argues require a that that natural Fell was a jury life find sentence wrongly an is decided conflicts with Blakely and Arizona case law. aggravating imposed. because it However, we need not consider these arguments because, as Appellant recognizes, this court is bound by the decisions of the Arizona Supreme Court and has no authority to overrule, modify or disregard those decisions. State v. Cecil, 201 Ariz. 454, 457, ¶ 14, 36 P.3d 1224, 1227 (App. 2001). D. ¶25 We find no error. Sufficiency of Evidence Supporting Aggravating Factors Appellant argues there was insufficient evidence to support the trial court s findings of the following aggravating 13 factors with respect to the murder of E.Z.: committed for pecuniary gain; (2) the (1) the murder was murder was especially heinous or depraved; (3) the victim was elderly; and (4) there were multiple homicides committed during one continuous course of criminal conduct. ¶26 First, We reject Appellant s argument. unlike imposition of a death sentence, the trial court was not required to make any specific findings of aggravating factors under A.R.S. § 13-703 to support imposing a natural life sentence. P.3d at 599-600. Fell, 210 Ariz. at 559-60, ¶¶ 17-18, 115 Second, contrary to Appellant s claim that the State was required to prove the aggravating factors beyond a reasonable doubt, [i]n non-capital cases, aggravators need only be supported by reasonable evidence. State v. Viramontes, 204 Ariz. 360, 362, ¶ 14, 64 P.3d 188, 190 (2003). aggravators used by the trial court were proper. All of the Further, based on this record, there was reasonable evidence to support the court s findings on the aggravating factors. ¶27 The court found that Appellant murdered E.Z. as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value. See A.R.S. § 13-703(F)(5). Pecuniary gain is an aggravating factor if the expectation of pecuniary gain is a motive, cause, or impetus for the murder and not merely a result of the murder. 14 State v. Hyde, 186 Ariz. 252, 280, 921 P.2d 655, 683 (1996). The record supports the court s finding that Appellant s motive for the murders was to obtain cash and property, including a vehicle, from the victims. See Davolt, 207 Ariz. at 199-201, ¶¶ 4-6, 10-15, 84 P.3d at 46466. ¶28 The court found that the murder was committed in an especially cruel, heinous, or depraved manner. 703(F)(6). See A.R.S. § 13- Only one of these elements needs to be proven to establish this aggravator. State v. Medina, 193 Ariz. 504, 513, ¶ 33, 975 P.2d 94, 103 (1999). The court referred to the victims as helpless, vulnerable 80-plus-year-old people and noted the horrific [senseless, and vicious] nature of the killing, the strangulation after she must have known that her husband was dead . . . . The court went on: the only way I can think to describe what happened [after the attack and murder of N.Z.] was that [Appellant] jumped into an abyss that separates most humans from the kind of savage beast that s capable of doing what he did next. Because he became, at least for those next few hours or days, a vicious, sadistic, calculating, premeditating, and even post-meditating killer and by post-meditating, I mean after the deed was done, planned out a way to burn up and destroy any trace evidence he might have left behind of his identity and perhaps to even hide the fact that these people had been murdered as opposed to just having died in a fire. 15 ¶29 To prove the especially cruel prong of the (F)(6) aggravator, the State must show the Appellant knew or should have known the victim would experience mental anguish or physical pain and that the victim was conscious during some of the violence. State v. Tucker, 215 Ariz. 298, 321, ¶ 100, 160 P.3d 177, 200 (2007). Mental anguish refers to a victim s uncertainty about her ultimate fate or knowledge that a loved one has been killed. Medina, 193 Ariz. at 513, ¶ 34, 975 P.2d at 103; State v. Djerf, 191 Ariz. 583, 595, ¶ 45, 959 P.2d 1274, 1286 (1998). In determining whether a murder is committed in an especially heinous or depraved manner, the court may consider factors such as gratuitous violence, senselessness of the murders and helplessness of the victim. State v. Schackhart, 190 Ariz. 238, 249, 947 P.2d 315, 326 (1997). ¶30 Although only one element is required to prove the (F)(6) aggravator, all elements were present in this case. The reasonable evidence shows E.Z. was an arthritic elderly woman who required a walker to get around her house. E.Z. was conscious while Appellant manually strangled her and beat her head against the floor one to two days after Appellant killed her husband and left his body in the kitchen. After killing N.Z., Appellant bound E.Z. s wrists with duct tape and took her to the bank where he unsuccessfully attempted to withdraw money 16 from E.Z. s account. The nature of E.Z. s murder evidenced cruel, senseless gratuitous and violence against a helpless victim. ¶31 As to the victims ages, the evidence was undisputed that both victims were seventy years of age or older. See A.R.S. § 13-703(F)(9). ¶32 Finally, circumstance 703(F)(8). of the court multiple considered homicides. the See aggravating A.R.S. § 13- This factor requires the court to find there was a temporal, spatial and motivational relationship between the homicides and that the murders were a part of one continuous course of criminal conduct. 160 P.3d at motivational 200 (citation and spatial Tucker, 215 Ariz. at 321, ¶ 104, omitted). connections Judge of the Moon found murders the to be adequately established, but noted, [T]he temporal relationship of this case probably . . . . weight. stretches the circumstance to its limit Accordingly, Judge Moon gave this aggravator little Thus, even if this factor was struck as requested by Appellant, we are convinced Judge Moon would have nonetheless imposed a natural life sentence for the murder of E.Z. See State v. Ojeda, 159 Ariz. 560, 562, 769 P.2d 1006, 1008 (1989) (noting no remand necessary where 17 record clearly shows that sentence would have been the same even without consideration of improper factors).7 ¶33 not In sum, we find no error on this issue. required to find any aggravating factors natural life sentence for E.Z. s murder. The court was to impose the And even if there were such a requirement, the aggravating factors found by the court were supported by reasonable evidence. E. Imposition of Consecutive Sentences ¶34 Appellant claims that the trial court abused its discretion in imposing consecutive sentences because there were two victims. He claims the judge presumed that consecutive sentences were mandated under A.R.S. § 13-7088 and claims the judge applied a mechanical rule rather than exercising his discretion on this issue. He also claims that although the 7 Indeed, before imposing the sentences, Judge Moon noted, Weighing all of these circumstances together, it s my opinion and finding that it would be legally incorrect and foolhardy and unjust to consider and impose sentences that might make the defendant eligible for parole in 25 calendar years. When he subsequently imposed the natural life sentence, Judge Moon referred to all the aggravating factors he found, but focused on the horrific nature of [E.Z. s] killing, the strangulation after she must have known that her husband was dead . . . as outweighing the mitigating circumstances. 8 Effective January 1, 2009, § 13-708 was renumbered A.R.S. § 13711(A). 2008 Ariz. Sess. Laws, ch. 301, §§ 119, 120 (2nd Reg. Sess.). Because Appellant was sentenced before the statute was renumbered, and the parties also refer to the statute that was then in effect, we similarly refer to § 13-708. 18 murders were separate, they were part of a spree and therefore concurrent sentences are more appropriate. ¶35 Under A.R.S. § 13-708, if a judge fails to indicate whether acts We disagree. sentences as are default consecutive. consecutive designation concurrent, that the the statute sentences are State v. Garza, 192 Ariz. 171, 174-75, ¶ 12, 962 P.2d 898, 901-02 (1998). presumption or for However, the statute does not create a consecutive sentences and the court has discretion to impose concurrent sentences so long as it sets forth reasons for doing so. Id. at 174-75, ¶ 12, 962 P.2d at 901-02. ¶36 apply It is clear from the record that the court did not a Rather, mechanical Judge Moon rule in imposing exercised his consecutive discretion and sentences. stated he intended to impose consecutive sentences rather than concurrent sentences on the murder counts because: [I]f on appeal the natural life sentence is stricken and 25 to life is imposed . . . it should still be a consecutive sentence because of the additional harm and horror and lack of basis to feel that the defendant can be rehabilitated to the point where he would never be a risk to this type of behavior again. ¶37 offenses, Because the there trial were court multiple did 19 not victims abuse its and multiple discretion in finding that appropriate. imposition of consecutive sentences was State v. Ward, 200 Ariz. 387, 389, ¶¶ 6-7, 26 P.3d 1158, 1160 (App. 2001) (trial court acted within discretion in finding that consecutive sentences would be appropriate for two counts of aggravated victims). assault Furthermore, committed consecutive against sentences two may be separate imposed under § 13-708 for separate offenses even if committed on the same occasion or during the same episode. State v. Williams, 182 Ariz. 548, 560-61, 898 P.2d 497, 509-10 (App. 1995). We find no error. CONCLUSION ¶38 For the foregoing reasons, we affirm Appellant s consecutive life and natural life sentences imposed for his two first degree murder convictions. ___________/S/_______________ LAWRENCE F. WINTHROP, Judge CONCURRING: ______________/S/_______________ PETER B. SWANN, Presiding Judge _____________/S/________________ MICHAEL J. BROWN, Judge 20

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