and 751(C)] for defendant’s burden.
43. § 13-703(C). State ex rel. Thomas v. Granville
(Baldwin), 123 P.3d 662, 666 (Ariz. 2005);
State v. Gretzler, 659 P.2d at 13. And see Kansas
v. Marsh, 548 U.S. 163, 171 (2006) (“state capital sentencing system must … permit a jury to
render a reasoned, individualized sentencing
determination based on a death-eligible defendant’s record, personal characteristics, and the
circumstances of his crime”).
44. § 13-703.01(A) [§ 13-752(A)]. Defendant has a
right to make statements in allocation,
ARIZ.R. CRIM. P. 19. 1(d)( 7) before the charge to
the jury, which if they go beyond a plea for
mercy may subject him to cross-examination
(i.e., if disputes evidence). State v. Garza, 63
P.3d at 1019. Defendant also has a right to
speak before a sentence is pronounced. Rule
45. Pursuant to § 13-1105(D), first-degree murder
is a class 1 felony and is punishable by death or
life imprisonment, which is defined at § 13-
703(A) to be death, life or natural life. The natural life option applies to murders committed on
and after July 17, 1993. Before that the only
two possible sentences were death or life with
possible parole after 25 years flat (or 35 if victim
under 15). The 35-year aspect applies to murders committed on and after May 16, 1985. See
1993 Sess. Laws Ch. 153 § 1 and 1985 Sess.
Laws Ch. 364, § 8. Where the trial court is the
sentencing tribunal it need not make any specific
finding before imposing natural life. State v. Fell,
115 P.3d 594, 601 (Ariz. 2005).
46. § 13-703.01(K) [§ 13-752(K)]. The new jury
does not retry the guilt or aggravation issues.
47. § 13-703.01(J) [§ 13-752(J)]. The new jury
does not retry the guilt issue. The defense is not
allowed in a resentencing procedure to put in
evidence before the new jury of residual doubt
(i.e., evidence to show he did not commit the
crime the first jury has convicted him of). State
v. Harrod, 183 P.3d 519 (Ariz. 2008).
48. § 13-703.01(J) and (K) [§ 13-752 (J) and (K)].
There is no presumption for life or death.
49. Once aggravating circumstances are proved, neither the state nor the defendant has the burden
of proof with regard to whether the mitigation
is sufficiently substantial to call for leniency.
State v. Garza, 163 P.3d at 1020; State ex rel.
Thomas v. Granville (Baldwin), 123 P.3d at
666 (“neither party bears the burden” of persuasion in the penalty stage). It is each juror’s
duty to consider the aggravation and mitigation
and make a discretionary sentencing decision.
50. A. R.S. § 13-703.01(G) [§ 13-752(G)] permits
a jury to consider any factors that are offered—
no matter who offers them—when considering
mitigation. State v. Newell, 132 P.3d 833, 848
(Ariz. 2006), cert. denied, 127 S. Ct. 663
(2006). Moreover, § 13-703(D) [§ 13-
751(D)] provides that any evidence admitted
during the guilt phase of the trial is admitted
for purposes of the sentencing proceedings. Id.
Thus a jury may return a verdict of life even if
the defendant decides to present no mitigation
at all. State ex rel. Thomas v. Granville
(Baldwin), 123 P.3d at 665; State v. Van
Adams, 984 P.2d 16, 31 (Ariz. 1999), cert.
denied, 528 U.S. 1172 (2000).
51. State v. Pandeli, 161 P.3d 557, 570 (Ariz.
2007), cert. denied, 128 S. Ct. 1228 (2008).
But cf. Kansas v. Marsh, 548 U.S. 163, 179
(2006) (states can permit death sentence even
where there is equipoise).
52. A. R.S. § 21-222. Note that this statute is followed by § 21-223, which deals with the punishment for direct contempt where a summoned juror fails to attend which can entail a
body attachment and a fine up to $500. Jurors
also receive $12 a day and an average daily
mileage amount of $17.74 or 44. 5 cents a mile
average round trip per day for jurors appearing
downtown (approximately 21miles each day).
Jurors not used the first day only receive
mileage. The jury commissioner’s prescreening
of prospective jurors for time only and excusing
those for whom lengthy service might pose a
hardship does not violate the fair cross-section
requirement of the Sixth Amendment or defendant’s due process rights in a first-degree murder case. State v. Wooten, 972 P.2d 993, 998-99
(Ariz. Ct. App. 1988), rev. denied. See also State
v. Atwood, 832 P.2d 593, 638 (Ariz. 1992),
cert. denied, 506 U.S. 1084 (1993). Judges
trying capital cases usually do the time prescreening themselves because of requests by
defense counsel to be present in the jury meeting room, which is cumbersome, and to avoid
any issues on a possible appeal. Of interest is
that on July 19, 2008, the Arizona Supreme
Court (A. O. 2008-61) approved the new
Maricopa County Alternative Juror
Summoning Plan, which is designed to reduce
excessive commutes for jurors by summoning
most jurors from zip codes closest to a court
complex. The first panels chosen under this
plan report on Nov. 15, 2008.
53. In a capital trial, jurors may be “death qualified.” State v. Moody, 94 P.3d 1119, 1144
(Ariz. 2004), which also holds the use of a
questionnaire is in discretion of the court. This
refers to the process of questioning prospective
jurors on their views of the death penalty and
their ability to follow the trial court’s instructions in light of those views. In this process,
jurors may be removed for cause if their opposition to the death penalty will not allow them
to apply the law or view the facts impartially.
Jurors who are opposed to the death penalty
will not be removed for cause if they avow that
they will conscientiously apply the law to the
facts of the case. Morgan v. Illinois, 504 U.S.
719 (1992), holds that in evaluating a prospective juror’s ability to be impartial in a capital
case requires detailed questioning. A typical
Morgan question is does anyone believe that all
persons convicted of first degree murder
should receive the death penalty? Witherspoon v.
Illinois, 391 U. S. 510 (1968), requires that
prospective jurors be given general information
about the crime and the duty of the jury in
sentencing. Witherspoon questions involve asking jurors’ views about the death penalty and
any reservations they may have. Pursuant to
Wainright v. Witt, 469 U.S. 412, 424 n. 5
(1985), a capital case juror should be excused
when his or her views would prevent or “
substantially impair” the performance of the jury’s
duty to follow the law. Accord State v. Jones, 4
P.3d 345, 357 (Ariz. 2001), cert. denied, 532
U. S. 978 (2001). Uttecht v. Brown, 127 S. Ct.
2218 (2007) (expands Witt principles to permit exclusion of a prospective juror for cause
who indicated he could follow the law but
would only impose the death penalty in severe
situations). Counsel during voir dire may
examine potential jurors on their basic beliefs,
views, biases and prejudices concerning the
death penalty, as well as their general views
concerning aggravating factors and mitigating
circumstances that must be considered in
determining whether to impose a sentence of
life or death. The court, however, will not
allow questions of potential jurors that will
elicit their views on specific types of aggravating and mitigating circumstances.
Furthermore, the court will preclude questioning by counsel that relates to specific case
facts/ information, including questions that
“groom” or “condition” prospective jurors to
certain evidence that may be presented or
commits them to taking certain positions
depending on actual or hypothetical facts situations. State v. Johnson, 133 P.3d 735 (Ariz.),
cert. denied, 127 S. Ct. 559 (2006); State v.
Glassel, 116 P.3d 1193 (Ariz. 2005), cert.
denied, 547 U.S. 1024 (2006). See also State
v. Bocharski, 189 P.3d 403 (Ariz. 2008), on all
54. Rule 18. 4(c)(l)(i) provides for 10 peremptory
challenges for both sides in a capital case.
Permitting prosecutors to speak to the panel
first on voir dire is not improper, State v.
Garza, 163 P.3d at 1013, but often the parties stipulate to go first with every other juror
55. § 13-703.01(M) [§ 13-752(M)]; Rule
56. State v. Villalobos, CR2004-005523, trial
began Feb. 11, 2008, and ended by sentencing on April 15, 2008; State v. Cunningham,
CR2004-048263, trial began Oct. 23, 2007,
and ended Feb. 27, 2008; State v. Maldonado,
CR2003-017983, first trial began Jan. 9,
2006, and ended Oct. 4, 2006, in a mistrial
(new trial began April 16, 2008, and still continuing as of Sept. 15, 2008).
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