State v. Nordstrom
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This automatic appeal arose from Defendant's 2009 death sentences for the 1996 murders of Thomas Hardman and Carol Lynn Noel. The Supreme Court affirmed, holding, inter alia, that (1) the trial court did not err by allowing the State to offer evidence during the penalty phase of the felony murders when he did not present any mitigating evidence; (2) the trial court did not violate Defendant's rights under the Double Jeopardy Clauses of the federal and state Constitution by refusing to grant a pretrial evidentiary hearing on Defendant's motion to dismiss on grounds of prosecutorial misconduct; (3) the trial court did not abuse its discretion in allowing the State to introduce photographs of the crime scenes showing the victims' bodies; and (4) Defendant's death sentences were appropriate.
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SUPREME COURT OF ARIZONA En Banc STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) SCOTT DOUGLAS NORDSTROM, ) ) Appellant. ) ) __________________________________) Arizona Supreme Court No. CR-09-0266-AP Pima County Superior Court No. CR55947 O P I N I O N Appeal from the Superior Court in Pima County The Honorable Richard D. Nichols, Judge AFFIRMED ________________________________________________________________ THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL By Kent E. Cattani, Division Chief Counsel Jeffrey A. Zick, Section Chief Counsel Capital Litigation Section Lacey Stover Gard, Assistant Attorney General Attorneys for State of Arizona Phoenix Tucson SHARMILA ROY ATTORNEY AT LAW Laveen By Sharmila Roy Attorney for Scott Douglas Nordstrom ________________________________________________________________ B A L E S, Vice Chief Justice ¶1 This automatic appeal arises from Scott Douglas Nordstrom s 2009 death sentences for his 1996 murders of Thomas Hardman and Carol Lynn Noel. We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 13 4031 (2011). FACTS AND PROCEDURAL BACKGROUND ¶2 On May 30, 1996, Scott Nordstrom and Robert Jones shot and killed Thomas Hardman and Clarence O Dell while robbing the Moon Smoke Shop in Tucson. State v. Nordstrom (Nordstrom I), 200 Ariz. 229, 236-37 ¶¶ 1-4, 25 P.3d 717, 724-25 (2001). Two weeks later, Nordstrom and Jones shot and killed Carol Lynn Noel and three others during a robbery at the Firefighters Union Hall, a Tucson social club. Id. at 237-38 ¶¶ 5-7, 25 P.3d at 725-26. ¶3 Police arrested Nordstrom connection with the murders. and his brother David in Id. at 239 ¶ 17, 25 P.3d at 727. David admitted he had accompanied Nordstrom and Jones to the Smoke Shop, but said he had stayed outside. P.3d at 731. Shop David entered a plea bargain regarding the Smoke robbery; related to Id. at 243 ¶ 35, 25 the the State Union Hall dismissed the charges robbery; and he against testified as him the State s key witness in the separate trials of Nordstrom and Jones. Id. at 238, 244 ¶¶ 10, 37, 25 P.3d at 726, 732; State v. Jones, 197 Ariz. 290, 298 ¶ 10, 4 P.3d 345, 353 (2000).1 ¶4 At Nordstrom s trial, eyewitness Carla Whitlock identified Nordstrom as one of the men she saw run from the 1 A jury found Jones guilty on six counts of murder and other charges, and he received a death sentence for each murder. See Jones, 197 Ariz. at 297 ¶ 1, 4 P.3d 352. 2 Smoke Shop on the night of the robbery. had driven Nordstrom and Jones to David testified that he the Smoke Shop; the pair entered with handguns and he heard shots; Nordstrom and Jones later told him they had each shot a person; and the three had split the robbery money. David also testified that Nordstrom told him about the Union Hall robbery. at 238 ¶ 9, 25 P.3d at 726. Nordstrom I, 200 Ariz. Another witness, Michael Kapp, testified that Nordstrom had solicited him to rob the Union Hall two years earlier. Id. alibi the evidence evidence for suggesting that In his defense, Nordstrom presented day of David the had Smoke committed implicated his brother to save himself. ¶5 Nordstrom was Shop convicted the robbery and crimes and Id. ¶ 10. of the first degree premeditated murders of Hardman and Noel, of felony murder for the other four homicides, and of robbery, and first-degree burglary. at 726-27. At sentencing, the attempted murder, armed Id. at 238-39 ¶ 12, 25 P.3d trial judge found three aggravating circumstances under A.R.S. § 13-751 - (F)(1) (prior conviction of another offense punishable by life imprisonment or death), (F)(5) (pecuniary gain), and (F)(8) (multiple homicides) - and sentenced Nordstrom to death for each murder. ¶ 13, 25 P.3d at 727. Id. at 239 This Court affirmed on direct appeal. Id. at 257 ¶ 99, 25 P.3d at 745. ¶6 Before our mandate issued, the Supreme Court decided 3 Ring v. Arizona, 536 U.S. 584 (2002). Court vacated Nordstrom s death In light of Ring, this sentences and remanded for resentencing, concluding that a jury might have assessed the mitigating circumstances differently than did the judge. State v. Nordstrom (Nordstrom II), 206 Ariz. 242, 248 ¶¶ 26-28, 77 P.3d 40, 46 (2003). The State subsequently withdrew its death penalty allegation for the four felony murder convictions and its (F)(5) and (F)(8) aggravator allegations for the murders of Hardman and Noel.2 ¶7 At the new aggravation phase, the State argued that the murder of Hardman established the (F)(1) aggravating factor for Noel s murder and vice-versa. aggravator for each murder. The jury found the (F)(1) Nordstrom then waived the presentation of mitigation evidence and declined to allocute. At the penalty phase, the State presented details about the 2 After the remand, the parties extensively litigated issues regarding the resentencing proceedings, resulting in several special actions in the court of appeals. For example, although Nordstrom II held it was harmless error for the trial judge, rather than a jury, to have found the aggravating factors, 206 Ariz. at 247 ¶ 17, 77 P.3d at 45, the court of appeals ruled that legislation enacted after Ring required the jury to find aggravating factors. See Nordstrom v. Cruikshank, 213 Ariz. 434, 438 ¶ 10, 142 P.3d 1247, 1251 (App. 2006). The court of appeals also ruled that Nordstrom could present alibi evidence in rebuttal if the State sought the death penalty for the felony murder convictions. See State v. Nichols (Nordstrom), 219 Ariz. 170, 177 ¶¶ 19-20, 195 P.3d 207, 214 (App. 2008). 4 Hardman and Noel murders and also introduced evidence of Nordstrom s convictions for the four other homicides and other crimes at the established occurred. Smoke that Shop and Nordstrom was Union on Hall. parole The when State the also offenses The jury determined Nordstrom should receive death sentences for both murders. DISCUSSION A. Penalty Phase Evidentiary Rulings ¶8 Nordstrom argues that the trial court erred by allowing the State to offer evidence during the penalty phase of the four felony murders when he did not present any mitigating evidence. We review admission of evidence for an abuse of discretion, State v. Lehr, 227 Ariz. 140, 147 ¶ 19, 254 P.3d 379, 386 (2011), and issues of constitutional and statutory interpretation de novo, State v. Roque, 213 Ariz. 193, 217 ¶ 89, 141 P.3d 368, 392 (2006). ¶9 Section 13-751(G) states that [t]he trier of fact shall consider as mitigating circumstances any factors proffered by the defendant or state that are relevant in determining whether to impose a sentence less than death, including any aspect of the defendant s character, propensities or record and any of the circumstances of the offense. Similarly, A.R.S. § 13-752(G) states: At the penalty phase, the defendant and the state may 5 present any evidence that is relevant to the determination of whether there is mitigation that is sufficiently substantial to call for leniency. In order for the trier of fact to make this determination, the state may present any evidence that demonstrates that the defendant should not be shown leniency.3 ¶10 The provisions, taken together, evince a legislative intent to whether permit or not penalty phase. the the state to defendant introduce presents relevant evidence evidence during the Section 13-752(G) is framed broadly. . . . Subject to overarching due process considerations, any evidence that meets § 13-752(G) s criterion is admissible, regardless of whether the evidence was admissible at a prior stage of the trial. 1145, State v. Prince, 226 Ariz. 516, 526 ¶ 15, 250 P.3d 1155 (2011) (internal citation omitted). As we have noted: At the penalty phase, the jury must make a reasoned, individualized sentencing determination based on a deatheligible defendant s record, personal characteristics, and the circumstances of his crime. Kansas v. Marsh, 548 U.S. 163, 174 (2006) (citing Gregg v. Georgia, 428 U.S. 153, 189 (1976) (Stewart, J., plurality opinion)). Construing § 13-752(G) as generally authorizing the admission of evidence concerning the circumstances of the crime and the aggravating factors thus preserves the 3 This opinion cites the current version of statutes unless otherwise indicated. In 2012, the legislature amended § 13752(G) to read: In order for the trier of fact to make this determination, regardless of whether the defendant presents evidence of mitigation, the state may present any evidence that demonstrates that the defendant should not be shown leniency including any evidence regarding the defendant s character, propensities, criminal record or other acts. 2012 Ariz. Sess. Laws ch. 207, § 3 (2nd Reg. Sess.). 6 entire statutory scheme s constitutionality. Prince, 226 Ariz. at 527 ¶ 20, 250 P.3d at 1156. ¶11 The trial court did not err by allowing the State to introduce evidence of Nordstrom s four felony murders or the fact that he was on parole when he committed the murders. facts surrounding the two first degree murders, as well The as Nordstrom s felony murders, were relevant to whether Nordstrom deserved leniency. See State v. Pandeli, 215 Ariz. 514, 529 ¶¶ 52-53, 161 P.3d 557, 571-72 (2007) (upholding admission of evidence of a murder whether defendant in a deserved separate incident leniency); see as relevant also State to v. Armstrong, 218 Ariz. 451, 461 ¶ 38, 189 P.3d 378, 388 (2008). ¶12 The evidence, moreover, was not unduly prejudicial. At the penalty phase, the State introduced photographs of the victims and presented witnesses who described the crime scenes. Testimony is not unduly prejudicial where [t]he witnesses simply provided details of the crime scene and described . . . injuries. Pandeli, at 529 ¶ 53, 161 P.3d at 571 (finding trial court did not abuse its discretion by admitting evidence of murder in separate incident). ¶13 Nordstrom also argues that admission of evidence about the felony murders violated due process, contending that we have held that [e]vidence presented for rebuttal must be relevant to the mitigation proffered. State v. Boggs, 218 Ariz. 325, 339 7 ¶ 65, 185 P.3d 111, 125 (2008); see also State v. Hampton, 213 Ariz. 167, 180 ¶ 51, 140 P.3d 950, 963 (2006). Although these cases appropriately limit the scope of evidence that the state may present to rebut mitigation presented by the defense, neither their holdings nor the due process clause preclude the state from offering evidence of the circumstances of the crime when the defendant does not present any mitigation. ¶14 Nordstrom also contends the trial court erred by barring him from introducing trial transcripts from his 1998 trial to rebut the State s penalty phase evidence. Nordstrom characterized the transcripts as innocence related evidence and did not proffer guilt phase evidence for other purposes. ¶15 evidence The trial court determined that the transcripts were of constitutional sentencing. residual doubt. right present to [A] defendant residual doubt has evidence no at State v. Moore, 222 Ariz. 1, 20 ¶ 109, 213 P.3d 150, 169 (2009); see also State v. Harrod (Harrod III), 218 Ariz. 268, 281 ¶ 46, 183 P.3d 519, 532 (2008). ¶16 Nordstrom attempts to distinguish Moore and similar cases by arguing that they involved situations in which the defendant sought to introduce residual doubt evidence at the penalty phase that had not been presented at the guilt phase. He also notes that his innocence related evidence concerned not only the Noel and Hardman murders, but also the four felony 8 murders and other related crimes. persuasive. This Court has These distinctions are not observed that there is no constitutional requirement that the sentencing proceeding jury revisit the prior residual doubt . guilty verdict phase considering evidence of State v. Ellison, 213 Ariz. 116, 136 ¶ 82, 140 P.3d 899, 919 (2006). guilt by evidence This observation applies equally to offered solely to show the defendant s innocence of the crimes for which the death penalty is sought and related crimes for which the defendant was concurrently convicted. B. ¶17 Prosecutorial Misconduct Nordstrom argues that the trial court violated his rights under the Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and Article 2, Section 10 of the Arizona evidentiary Constitution hearing on his prosecutorial misconduct. novo. ¶18 by refusing motion to to grant dismiss a on pretrial grounds of We review constitutional issues de Roque, 213 Ariz. at 217 ¶ 89, 141 P.3d at 392. In 2006, Nordstrom moved to dismiss the indictment or, alternatively, to preclude the death penalty, based on prosecutorial misconduct discovered after the former prosecutor died. The prosecutor s alleged failure misconduct to disclose principally information concerned that that Nordstrom contends would have impeached testimony by David Nordstrom or 9 other witnesses. of Nordstrom s The State opposed the motion, disputing many allegations. The State also argued that Nordstrom had already litigated some of the issues and that he could raise conviction others relief. only The in a trial Rule 32 court petition ruled for it that postlacked jurisdiction to consider the merits of Nordstrom s arguments and that the Double Jeopardy Clauses did not bar the resentencing. ¶19 The trial court did not have jurisdiction on remand to consider Nordstrom s attacks on the validity of his convictions. This Court affirmed Nordstrom s convictions on direct appeal in Nordstrom remanded I, the later case vacated solely for only his death resentencing by sentences, a Nordstrom II, 206 Ariz. at 248 ¶ 28, 77 P.3d at 46. jury. and See The remand order did not encompass consideration of guilt phase issues. ¶20 Nor did the resentencing violate double jeopardy. A capital defendant whose original sentence is vacated on appeal can be resentenced to death so long as the defendant has not been acquitted of the death sentence. State v. Ring (Ring III), 204 Ariz. 534, 551 ¶ 40, 65 P.3d 915, 932 (2003). ¶21 Nordstrom relies on State v. Minnitt, 203 Ariz. 431, 55 P.3d 774 (2002), to argue that double jeopardy prevents him from being resentenced to death because his convictions were obtained by intentional however, is not apposite. prosecutorial misconduct. Minnitt, In that case, we held that the Double 10 Jeopardy Clause barred a retrial of the guilt phase after the state had intentionally ending with a hung jury. used perjured testimony in a trial Id. at 440 ¶ 45, 55 P.3d at 783. In contrast, Nordstrom did not face a retrial of the guilt phase, and the record does not establish that the prosecution knowingly used perjured testimony. ¶22 The trial court correctly ruled that Nordstrom would need to seek relief under Rule 32 to pursue his claims that prosecutorial misconduct discovered should invalidate his convictions. after his direct appeal Cf. Nordstrom I, 200 Ariz. at 255 ¶¶ 89-91, 25 P.3d at 743 (affirming trial court s denial of Rule 24.4 motion to vacate and noting that claims of newly discovered impeachment proceeding). evidence could be raised in Rule 32 We of course do not address the merits of those claims or whether any of them may be precluded under Rule 32.2. C. Denial of Rule 24 Motion ¶23 should Nordstrom argues that, after the jury determined he receive death sentences, the trial court erred by declining to rule on his motion to vacate the judgment. ¶24 In verdicts, Nordstrom vacate the to the misconduct September trial death. judgment, was 2009, court after entered Nordstrom arguing newly the discovered 11 judgment filed that jury a Rule evidence material resentencing and 24.2 of sentenced motion to prosecutorial evidence that rendered his previous convictions invalid. The trial court denied this motion, concluding that it was untimely. ¶25 Rule 24.2 provides: Upon motion made no later than 60 days after the entry of judgment and sentence but before the defendant s appeal, if any, is perfected, the court may vacate the judgment on any of the following grounds: (1) That it was without jurisdiction of the action; (2) That newly discovered material facts exist, under the standards of Rule 32.1; or (3) That the conviction was obtained in violation of the United States or Arizona Constitutions. Ariz. R. Crim. P. 24.2(a) (2012); see also id. cmt. ( Rule 24.2 sets the time limit of 60 days for such motions; after that the defendant may only petition for relief under Rule 32. ). ¶26 1998. Judgment was entered on Nordstrom s convictions in May We affirmed his convictions in Nordstrom I and later vacated only the death sentences. When the trial court entered a judgment resentencing Nordstrom in 2009, it did not enter new judgments on the convictions, but only imposed new sentences. Thus, the validity of the convictions was not before the trial court in 2009, and Nordstrom s Rule 24.2 motion to vacate was untimely. See State v. Dann, 220 Ariz. 351, 360 ¶ 26, 207 P.3d 604, 613 (2009) (refusing to address on appeal from resentencing whether defendant s murder convictions were void after arguments that convictions were affirmed). D. ¶27 Due Process Rights Nordstrom makes several 12 interrelated the trial court erred by preventing him from challenging the convictions that served as the (F)(1) aggravators for the two murders. We review constitutional claims de novo. Roque, 213 Ariz. at 217 ¶ 89, 141 P.3d at 392. Exclusion of evidence is reviewed for an abuse of discretion. Lehr, 227 Ariz. at 147 ¶ 19, 254 P.3d at 386. ¶28 Nordstrom first argues that Rule 13.5(c) entitled him to have a neutral magistrate adjudicate the legal sufficiency of the (F)(1) aggravators. Under Rule 13.5(c), a defendant is entitled to require the state to establish probable cause for an alleged aggravating factor before it is submitted to a jury. Chronis v. Steinle, 220 Ariz. 559, 562 ¶¶ 15, 18, 208 P.3d 210, 213 (2009). Here, on remand, the trial court reviewed the evidence and found probable cause to try Nordstrom on the (F)(1) aggravators, noting that this Court had affirmed Nordstrom s premeditated murder convictions and the original findings of the (F)(1) aggravators on direct appeal in Nordstrom I and later in Nordstrom II. ¶29 were Thus, Rule 13.5 was satisfied. Nordstrom also alleges that his underlying convictions constitutionally invalid because they were obtained by prosecutorial misconduct, and therefore the (F)(1) aggravators based on these convictions were also invalid. But when the case was remanded for resentencing of the capital murder convictions, Nordstrom was not entitled to collaterally attack the validity 13 of the [W]here convictions . . . that the were affirmed conviction is on valid direct on its appeal. face, the defendant is precluded from attempting to undermine the validity of the conviction by collateral attack. State ex rel. Collins v. Superior Court, 157 Ariz. 71, 75, 754 P.2d 1346, 1350 (1988); see also State v. Gretzler (Gretzler I), 128 Ariz. 583, 585-86, 627 P.2d 1081, 1083-84 (1981) (prior convictions not void because no violation of Boykin v. Alabama, 395 U.S. 238 (1969), was apparent in acceptance of guilty pleas). ¶30 Nordstrom alternatively argues that the trial court should have permitted him to rebut the State s case during the aggravation phase by allowing him to present evidence of his alibi and prosecutorial misconduct (that is, the alleged nondisclosure of impeachment material). This argument, however, merely recasts his arguments that he should have been allowed, on re-sentencing, to introduce residual doubt evidence. ¶31 its Finally, Nordstrom argues that the trial court abused discretion prospective by jurors declining after to the strike court the first revealed to panel them of that Nordstrom had been convicted of four murders in addition to the two for Nordstrom, which the however, State does was not pursuing identify death how the sentences. jury was prejudiced, given that the four felony murder convictions were properly admitted as evidence in the penalty phase. 14 Moreover, to determine if the prospective jurors could be fair and impartial, the trial judge needed to apprise them about the facts of the case, which included Nordstrom s convictions for four murders in addition to the Hardman and Noel murders. E. Contemporaneous Convictions ¶32 The (F)(1) aggravating circumstance exists when the defendant has been convicted of another offense in the United States for which under Arizona law imprisonment or death was imposable. Nordstrom argues aggravating because the that this circumstance legislature for did a sentence should the Hardman intend strike and that convictions would establish this aggravator. of statutory interpretation de novo. life A.R.S. § 13-751(F)(1). Court not of the Noel (F)(1) murders contemporaneous We review matters Roque, 213 Ariz. at 217 ¶ 89, 141 P.3d at 392. ¶33 In 2003, the legislature amended A.R.S. § 13-751(F)(2) to explicitly allow offenses committed on the same occasion or offenses not committed on the same occasion, but consolidated for trial with the homicide to establish the (F)(2) aggravating circumstance. Sess.) 2003 Ariz. Sess. Laws, ch. 255, § 1 (1st Reg. The legislature did not similarly amend A.R.S. § 13- 751(F)(1). Nordstrom infers that the legislature therefore intended that contemporaneous convictions could not establish the (F)(1) aggravating circumstance. 15 ¶34 We disagree. entered before the As long as the prior conviction is sentencing hearing, the conviction may support the (F)(1) aggravator even if it is committed before, contemporaneously with, or after the capital homicide. State v. Tucker, 215 Ariz. 298, 320 ¶ 98, 160 P.3d 177, 199 (2007); see also State v. Gretzler (Gretzler II), 135 Ariz. 42, 57 n.2, 659 P.2d 1, 16 n.2 (1983). aggravating circumstance, Relying in part on the (F)(1) we previously upheld six death sentences for Nordstrom s co-participant in the Smoke Shop and Union Hall murders. 369. Jones, 197 Ariz. at 314 ¶ 82, 4 P.3d at Although the six murders did not occur in one incident, we concluded that because each set of murders provides a sufficient basis for finding the factor as to the other set of murders, we find the F.1 factor proven beyond doubt. Id. at 311 ¶ 63, 4 P.3d at 366. a reasonable Similar reasoning applies here. ¶35 Although the legislature amended the (F)(2) aggravator in 2003 to explicitly include contemporaneous convictions, the amendment does not reflect an intent to exclude contemporaneous convictions from serving as an (F)(1) aggravator. Instead, the 2003 amendment evidently was intended to displace our ruling in State v. Rutledge, 206 Ariz. 172, 175-78 ¶¶ 15 25 & n.3, 76 P.3d 443, 446 49 & n.3 (2003), which held that crimes occurring during the same course of events as the murder could not serve 16 as (F)(2) qualifying serious offenses. The legislature did not need to similarly amend (F)(1) because this Court had previously approved the use of (F)(1) aggravator. concurrent convictions to establish the See Jones, 197 Ariz. at 310-11 ¶¶ 60-63, 4 P.3d at 365-66. F. ¶36 Rule 20 Motion Nordstrom argues that the trial court erroneously denied his Rule 20 motion for judgment of acquittal after the State failed to present evidence that life imprisonment or death were imposable sentences for the murders of Hardman and Noel. The trial court instructed the jury that these murders were subject to such penalties. erroneously relieved the Nordstrom contends that the judge State element of the (F)(1) aggravator. of its duty to prove every The trial court s denial of a Rule 20 motion is reviewed de novo. State v. West, 226 Ariz. 559, 562 ¶ 15, 250 P.3d 1188, 1191 (2011). ¶37 The statutory sentencing range for crimes is a matter of law rather than fact and does not require a jury finding. See State v. Moody, 208 Ariz. 424, 470 ¶ 216, 94 P.3d 1119, 1165 (2004). other The State was not obligated to present testimony or evidence proving sentencing ranges. matters of law such as statutory Thus, the court appropriately instructed the jury that Nordstrom s convictions for premeditated murder were punishable by sentences of life imprisonment or death. 17 G. Individualized Sentencing ¶38 Nordstrom argues that he was denied his right to an individualized sentencing because the trial court did not allow him to present any of the guilt phase evidence, including the trial transcripts consisting of alibi evidence, to the new sentencing jury. claims de novo. ¶39 In and innocence-related We review constitutional Roque, 213 Ariz. at 217 ¶ 89, 141 P.3d at 392. challenging the exclusion of evidence from the aggravation and penalty phases, Nordstrom does not identify any guilt phase evidence other than the residual doubt evidence. As discussed above, the trial court properly precluded Nordstrom from presenting guilt phase evidence to show residual doubt. During the aggravation revisit its initial and guilty penalty phase, verdict. The a only jury issue may not at the aggravation phase is whether any aggravating circumstances have been proved; the only issue during the penalty phase is whether death is the appropriate sentence. Anderson, 210 Ariz. at 348 ¶ 86, 111 P.3d at 390. H. ¶40 Victim Photographs Nordstrom argues that the trial court abused its discretion in allowing the State to introduce photographs of the crime scenes showing the victims irrelevant bodies. because did claims not the photographs were mitigation. Nordstrom also claims they were unduly prejudicial 18 he He present because they served only to inflame the jurors. We review the admissibility of evidence for an abuse of discretion. See State v. Spreitz, 190 Ariz. 129, 141, 945 P.2d 1260, 1271 (1997). ¶41 Photographs of the crime scenes showing the victims bodies were relevant capital murders. entitled to to show the circumstances of the two As explained above, supra ¶ 12, the State was present evidence regarding those circumstances during the penalty phase even though Nordstrom chose not to present mitigation evidence. photographs were offered Nor does the record show that the only otherwise unduly prejudicial. to inflame the jury or were The photographs merely described the layout of each crime scene and identified the victims. I. Independent Review ¶42 Because Nordstrom committed the murders before August 1, 2002, we must independently review his death sentences. See A.R.S. § 13-755(A). 1. Aggravating Circumstances ¶43 The reasonable Nordstrom State doubt was for proved each convicted the (F)(1) murder. at his aggravator Witnesses original beyond testified trial of a that murdering Hardman and Noel, and the State also introduced copies of the jury verdicts. life Each conviction was punishable by a sentence of imprisonment or death, and each established aggravator for the other premeditated murder. 19 the (F)(1) 2. Mitigating Circumstances ¶44 Nordstrom presented no mitigation evidence and did not allocute. the Although mitigation evidence may be found anywhere in record, there is little evidence before this Court to suggest that Nordstrom is entitled to leniency. ¶45 When Nordstrom was originally sentenced to death in 1998, the trial judge found that he had not proved any statutory mitigating circumstances, but had proved two non-statutory mitigators: employment history and caring family and parent relationships. The trial court also noted that Nordstrom had no prior convictions for serious offenses, but did not find this mitigating given Nordstrom s convictions multiple murders on different occasions. in this case for Nordstrom I, 200 Ariz. at 256-57 ¶ 97, 25 P.3d at 744-45. ¶46 The mitigation State evidence resentencing. In argues that our that was we not should not introduced independent review at of consider the 2009 aggravating circumstances, we have declined to consider evidence that the sentencing jury did not hear, Lehr, 227 Ariz. at 155 ¶ 80, 254 P.3d at 394, and the State mitigating evidence similarly. from the 1998 sentencing, argues that we should treat Even if we consider the evidence however, significantly mitigating. 20 we find it is not 3. Propriety of Death Sentence ¶47 In reviewing the propriety of the death sentence, we consider the quality and the strength, not simply the number, of aggravating and mitigating factors. State v. Greene, 192 Ariz. 431, 443 ¶ 60, 967 P.2d 106, 118 (1998). Nordstrom murdered Hardman in a robbery in which he killed another person, and he was eligible for a death sentence because he was previously convicted of the premeditated murder of Noel in a different robbery. presented He was on parole when he committed the murders, and he no mitigation at the resentencing. Under the circumstances, the mitigation is not sufficiently substantial to warrant leniency. A.R.S. § 13-755(B). The same conclusion applies with respect to the murder of Noel, which Nordstrom committed in a robbery in which three others were murdered. J. ¶48 Preservation of Issues for Federal Review To avoid preclusion, Nordstrom lists twenty additional constitutional claims previous decisions. that he states have been rejected The appendix lists these claims and the decisions Nordstrom identifies as rejecting them. CONCLUSION ¶49 in We affirm Nordstrom s sentences. __________________________________ Scott Bales, Vice Chief Justice 21 CONCURRING: __________________________________ Rebecca White Berch, Chief Justice __________________________________ A. John Pelander, Justice __________________________________ Robert M. Brutinel, Justice __________________________________ Maurice Portley, Judge* * Pursuant to Article 6, Section 3 of the Arizona Constitution, the Honorable Maurice Portley, Judge of the Arizona Court of Appeals, Division One, was designated to sit in this matter. 22 APPENDIX Nordstrom raises twenty issues to preserve them for federal review. This Appendix lists verbatim his claims and the decisions he identifies as rejecting them. 1. The prosecutor s discretion to seek the death penalty has no standards and therefore violates the Eighth and Fourteenth Amendments to the United States Constitution and Article 2, Sections 1, 4, and 15 of the Arizona Constitution. See State v. Cromwell, 211 Ariz. 181, 192, 119 P.3d 449, 459 (2005). 2. Arizona s death penalty is applied so as to discriminate against poor, young, and male defendants whose victims have been Caucasian, in violation of the Eighth and Fourteenth Amendments and Article 2, Sections 1, 4, and 13 of the Arizona Constitution. See State v. West, 176 Ariz. 432, 455, 862 P.2d 192, 215 (1993). 3. The death penalty is cruel and unusual under any circumstances and violates the Eighth and Fourteenth Amendments to the United States Constitution and Article 2, Section 15 of the Arizona Constitution. See State v. Harrod, 200 Ariz. 309, 26 P.3d 492 (2001). 4. Execution by lethal injection is per se cruel and unusual punishment. State v. Van Adams, 194 Ariz. 408, 422, 984 P.2d 16, 30 (1999); State v. Hinchey, 161 Ariz. 307, 315, 890 P.2d 602, 610 (1996). 5. Arizona s death penalty statute unconstitutionally requires defendants to prove that their lives should be spared. State v. Fulminante, 161 Ariz. 237, 258, 779 P.2d 602, 623 (1988). 6. Arizona s death penalty statute unconstitutionally requires imposition of the death penalty whenever at least one aggravating circumstance and no mitigating circumstances exist. State v. Miles, 186 Ariz. 10, 19, 918 P.2d 1028, 1037 (1996). 7. The statute unconstitutionally fails to require the cumulative consideration of multiple mitigating factors or require specific findings to be made as to each factor. 23 State v. Gulbrandson, 184 Ariz. 46, 69, 906 P.2d 579, 602 (1995). 8. The death penalty is unconstitutional because it permits jurors unfettered discretion to impose death without adequate guidelines. State v. Johnson, 212 Ariz. 425, 133 P.3d 735, 750 (2006). 9. The statute is unconstitutional because there are not statutory standards for weighing. State v. Atwood, 171 Ariz. 576, 645-46, 832 P.2d 693, 662-63 (1992). 10. The statute insufficiently channels the sentencer s discretion in imposing the death sentence. State v. Greenway, 170 Ariz. 151, 164, 823 P.2d 22, 31 (1991). 11. Appellant claims that a proportionality review of a defendant s death sentence is constitutionally required. State v. Gulbrandson, 184 Ariz. 46, 73, 906 P.2d 579, 606 (1995). 12. Appellant claims that the State s failure to allege an element of a charged offense, the aggravating factors that made the defendant death eligible, is a fundamental defect that renders the indictment constitutionally defective. McKaney v. Foreman, 209 Ariz. 268, 271, 100 P.3d 18, 21 (2004). 13. Appellant asserts that the application of the new death penalty statute passed in response to Ring v. Arizona, 536 U.S. 584 (2002), violates a defendant s right against ex post facto application of new laws. State v. Ring, 204 Ariz. 534, 547, 65 P.3d 915, 928 (2003). 14. Subjecting Appellant to a new trial on the issues of aggravation and punishment before a new jury violated the double jeopardy clause of the Fifth Amendment. State v Ring, 204 Ariz. 534, 547, 65 P.3d 915, 928 (2003). 15. Arizona s statutory scheme for considering mitigating evidence is unconstitutional because it limits full consideration of that evidence. State v. Mata, 215 Ariz. 233, 242, 609 P.3d 48, 57 (1980). 16. The absence of notice of aggravating factors prior to Appellant s guilt phase trial violates the Sixth, Eighth, and Fourteenth Amendments. State v. Anderson, 210 Ariz. 24 327, 347, 111 P.3d 369, 389 (2005). 17. The reasonable doubt jury instruction at the aggravation phase lowered the burden of proof and deprived Appellant of his right to a jury trial and due process under the Sixth and Fourteenth Amendments. State v. Dann, 205 Ariz. 557, 575, 74 P.3d 231, 249 (2003). 18. Subjecting Appellant to a new trial on the issues of aggravation and punishment before a new jury violated the due process clause of the Fourteenth Amendment. State v. Ellison, 213 Ariz. 116, 137, 140 P.3d 899, 920 (2006). 19. Requiring the jury to unanimously determine whether the mitigating factors were sufficiently substantial to call for leniency violated the Eighth Amendment. State v. Ellison, 213 Ariz. 116, 137, 140 P.3d 899, 920 (2006). 20. Arizona s death statute creates an unconstitutional presumption of death and places an unconstitutional burden on Appellant to prove that mitigation is sufficiently substantial to call for leniency. State v. Glassel, 211 Ariz. 33, 52, 116 P.3d 1193, 1212 (2005). 25
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