State of Arizona v Darrell Peter Pandeli aka Darrel Peter Florian (Supplemental Opinion)
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IN THE SUPREME COURT OF ARIZONA ~TE~b1 I APP-32003 NOEL K. DESSAINT CLERKSUPREME COURT ) STATE OF ARIZONA, Supreme Court No. CR 98 0376--AP Appellee, ) v. DARREL PETER PANDELI, DARREL PETER FLORIAN, Maricopa County Superior Court No. CR 93 08116 aka ) SUPPLEMENTAL OPINION Appellant. Appeal from the Superior Court in Maricopa County No. CR 93 08116 The Honorable Gregory H. Martin, Judge REMANDED FOR RESENTENCING Janet Napolitano, Attorney General by Kent E. Cattani, Chief Counsel, Capital Litigation Section and Robert L. Ellman, Assistant Attorney General and James P. Beene, Assistant Attorney General and John P. Todd, Assistant Attorney General and Bruce N. Ferg, Assistant Attorney General Attorneys for State of Arizona Julie S. Hall and Arizona Capital Representation Project by Jennifer Bedier Attorneys for Darrel Peter Pandeli aka Darrel Peter Florian Phoenix Tucson Tucson Tucson McGregor, Vice Chief Justice ¶1 Defendant Darrel Peter Pandeli (Pandeli) was convicted by a jury of first trial judge. Rules degree murder and was and 31.2 of the Arizona Rules and Arizona Revised Statutes (A.R.S.) This court filed an convictionand death sentence. P.3d to death by the The case came before us on direct review, pursuant to 26.15 912 sentenced 113~ (2001). of Criminal section 13 4031 opinion Procedure (2001). affirming Pandeli s State v. Pandeli, 200 Ariz.. 365, 26 The United States Supreme Court vacated the judgment and remanded for further consideration in light of Ring v. Arizona, 536 U.S. 584, v. Arizona, U.S. decision does not factual, those 122 5. Ct. 2428 (2002) (Ring II) , 122 5. Ct. 2654 (2002) (mem.) affect procedural, portions of our original and guilt our issues, original opinion Pandeli . The Ring II . with respect to so we need not reconsider opinion. In this supplemental opinion, we reconsider Pandeli s sentence in light of Ring II. I. ¶3 In Ring II, Arizona s former a jury trial capital guaranteed Constitution. the United States Ring II, sentencing Supreme Court scheme violates held that the right by the Sixth Amendment to the United 536 U.S. at , 122 5. Ct. to States at 2443. The Court declared that [c]apital defendants, no less than non capital defendants . on which the 2002 Ariz. . . are entitled legislature to a jury conditions determination an increase in of any fact their maximum The legislature has since amended A.R.S. § 13 703. Sess. Laws, 5th Spec. Sess., ch. 1, § 1. 2 See punishment. Id. at , 122 S. Ct. at 2432. our decision in State v. Ring, 200 Ariz. 267, (Ring I) The Court reversed 25 P.3d 1139 (2001) and remanded for further proceedings consistent with its , decision. Ring II, 536 U.S. ¶4 Following the at 122 5. , Supreme Ct. at 2443. Court ~ Ring II decision, we consolidated all death penalty cases in which this court had not yet issued a direct appeal mandate to determine requires this court sentences. (2003) to reverse In State v. Ring, or whether Ring II vacate the defendants Ariz. , ¶ 53, death P.3d , (Ring III), we held that we will examine a death sentence imposed under Arizona s superseded capital sentencing statutes for harmless error. II. ¶5 murder: The State charged Pandeli with two counts of premeditated count one for the murder of Teresa Humphreys and count two for the murder of Holly Iler. Pandeli murdered Humphreys more than a year before he murdered 11cr. counts, The trial court severed the two which were tried before separate juries. In February of 1996, a jury convicted Pandeli of second degree murder for killing Teresa Humphreys. The trial court sentenced him to twenty years in prison. ¶6 In July of 1997, a jury convicted Pandeli of first degree murder for killing Holly Iler. Following the jury s verdict, the trial judge conducted a sentencing hearing to determine whether any 3 aggravating and mitigating circumstances existed. (2001) At . trial, circumstances: section the State advanced A.R.S. § 13 703 two aggravating (1) a previous conviction of a serious crime, A.R.S. l3 703.F.2 (2001) especially heinous, and cruel, the murder was committed in an (2) or depraved manner. Id. § l3 703.F.6. The trial court found each factor beyond a reasonable doubt. ¶7 The F.2 aggravating circumstance proves beyond convicted murder. of Id. convicted a § reasonable serious of doubt offense, 13-703.F.2; Pandeli Humphreys. mandate. a Id. second that which § applies a defendant includes 13 703.H.1. degree murder if has second In for the state 1996, killing been degree a jury Teresa This aggravating circumstance falls outside the Ring II The Sixth Amendment does not require a jury to determine the existence of an F.2 prior conviction. P.3d at Ring III, Ariz. at ¶91 63 64, ¶8 To establish the F.6 aggravating circumstance, the state . must prove that the manner in which a defendant was especially heinous, cruel, The state needs to prove or depraved. only The version of A.R.S. one of the killed the victim A.R.S. § 13 703.F.6. heinous, cruel, or section 13 703.F.2 making a prior conviction of a serious offense, whether preparatory or completed an aggravating circumstance became effective on July 17, 1993. Pandeli murdered Holly 11cr on September 23, 1993. Thus, this version of the statute governed Pandeli s case. A.R.S. § 1 246 (2002); State v. Newton, 200 Ariz. 1, 2 91 3, 21 P.3d 387, 388 (2001) ( A basic principle of criminal law requires that an offender be sentenced under the laws in effect at the time he committed the offense for which he is being sentenced. ) 4 depraved factors for this aggravating circumstance to apply. v. Gretzler, 135 Ariz. 42, 51, 659 P.2d 1, 10 (1983) S:a:e The terms . heinous and depraved refer to the mental state and attitude of the perpetrator Clark, as 126 Ariz. mutilation depraved. in his 428, 436, indicates debasement 324 reflected and and 616 P.2d 888, a mental supports See State v. words a 896 state finding actions. (1980) that of is 515, v. Post mortem . marked especially Vickers, 129 Ariz. 506, State by heinous or 633 P.2d 315, (1981) ¶9 At Pandeli s trial, the medical examiner testified that Iler s nipples were excised post mortem, explaining that it took at least four strokes least two, of a knife to sever the right nipple and at possibly three, strokes to sever the left nipple. In his confession to the police, Pandeli admitted both to killing Iler and to removing her nipples after she died. According to Pandeli, he either threw the nipples in the garbage or flushed them down the toilet. the Although the State did not present the confession during guilt phase, the trial court admitted evidence during the sentencing phase. essentially uncontroverted facts, the confession into Given these overwhelming and the State can make a strong argument that no reasonable jury could fail to find the F.6 factor. See Ring III, ¶10 Ariz. at 91 93, P.3d at . As we explained in Ring III, however, our harmless error inquiry does not end with considering aggravating circumstances. 5 Id. We also must consider whether reversible error occurred with respect found to the mitigating no Pandeli 5 statutory circumstances. mitigating The Id. circumstances trial and judge considered family background, his overall developmental history, his good behavior while incarcerated, his mental or emotional health, and remorse as non-statutory mitigating circumstances. presented paranoid an expert who schizophrenia diagnosed and post Pandeli traumatic as The defense suffering stress disorder from and testified that these disorders could have contributed to Pandeli s conduct. testimony, Although the State s expert strongly contradicted this we cannot say, beyond a reasonable doubt, that a reasonable jury hearing the same evidence as did the judge would have assessed the defense expert s testimony as did the judge and would have failed to find mental impairment, a statutory mitigating circumstance. A.R.S. § l3-703.G.1. A different finding of mitigating circumstances could affect the determination whether the mitigating circumstances are sufficiently substantial to call for leniency. Id. § 13-703.5. III. ¶11 For the foregoing reasons, we cannot conclude that the Ring II error was harmless in this case. Accordingly, we vacate Pandeli s death sentence and remand for resentencing under A.R.S. sections 13-703 and 13-703.01 (Supp. 2002) 6 Ruth V. McGregor, Vice Chief Justice CONCURRING: Rebecca White Berch, Justice Michael D. Ryan, Justice Jones, Chief Justice, ¶12 specially concurring I concur in the result. On the question whether harmless error analysis is appropriate in the case before us, see State v. Ring, Ariz. at ¶91 105-15, P.3d at (2003) (Feldman, J., concurring in part and dissenting in part) Charles 5. Jones, 7 Chief Justice
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