Kerby James McKaney v Hon John Foreman et al

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SUPREME COURT OF ARIZONA En Banc KERBY JAMES MCKANEY, ) ) Petitioner, ) ) v. ) ) HON. JOHN FOREMAN, JUDGE OF THE ) SUPERIOR COURT, in and for the ) County of Maricopa, ) ) Respondent, ) ) ) STATE OF ARIZONA, ) ) Real Party in Interest. ) ) __________________________________) Arizona Supreme Court No. CV-04-0032-SA Maricopa County Superior Court No. CR 2001-011445 O P I N I O N Special Action from the Superior Court of Maricopa County The Honorable John Foreman, Judge JURISDICTION ACCEPTED RELIEF DENIED; REMANDED James J. Haas, Maricopa County Public Defender By Vikki M. Liles, Deputy Public Defender Attorneys for Petitioner Phoenix Richard M. Romley, Maricopa County Attorney By Paul J. McMurdie, Deputy County Attorney Attorneys for Real Party in Interest Phoenix J O N E S, Chief Justice ¶1 In light of principles set forth by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002), as well as the requirements of the Arizona Constitution and laws, we decide in today s case whether, as a condition to the pursuit of capital punishment by the State, aggravating factors described in A.R.S. § 13-703(F) (Supp. 2003) must be specifically alleged in the charging document and supported by evidence of probable cause. For the reasons set forth below, we hold they do not. I. ¶2 counts Kerby of McKaney burglary, first one kidnapping.1 degree count of was indicted murder, sexual August one 2, 2001 count of first assault, and two on two degree counts of On October 1, 2001, the State gave notice of intent to seek the death penalty on the two murder charges, and on October 22, aggravating 2002, factors, gave notice namely, of prior intent to conviction prove of a three serious offense, offense committed in an especially heinous, cruel or depraved manner, and conviction of one or more other homicides. A.R.S. § 13-703(F)(2), (6) and (8). 1 The events giving rise to these charges were allegedly committed on December 8, 1985. McKaney remained at large until a happenstance match of DNA evidence in 1999 linked him to the crimes. 2 ¶3 On State s November notice of 5, 2003, intent and McKaney notice moved of to dismiss aggravating the factors, arguing that these factors are elements of the capital crime of first degree murder and as such were unsupported by an initial finding of probable cause by the grand jury. The trial court denied McKaney s motion on December 19, 2003. McKaney then filed We this petition for special action. accepted jurisdiction because the issue is applicable in every capital case initiated under Arizona s death penalty statutes and is thus of statewide significance. The issue is also one of first impression in this jurisdiction. II. ¶4 be McKaney s argument that the aggravating factors must alleged probable in cause Fourteenth the is indictment based Amendment to on the and the supported Due United by Process States evidence Clause of of the Constitution and Article 2, Section 30, of the Arizona Constitution. In support, McKaney cites Apprendi and Ring as fashioning a new rule of law required by the United States and Arizona Constitutions. A. ¶5 the In Apprendi, the defendant, having fired gunshots into home of an African-American family, pled guilty to two counts of possessing a firearm for an unlawful purpose, a second degree offense, and one count 3 of unlawful possession of a prohibited weapon, a third degree offense. 530 U.S. at 469-70. Each second degree count carried a maximum penalty of ten years in prison; the third degree count carried a five-year maximum penalty. Id. at 470. In addition, New Jersey s hate crime statute called for an enhanced sentence in cases in which the trial judge finds by a preponderance of the evidence that the offense was racially motivated. Id. at 468-69. A second degree offense under the hate crime statute carried an extended term of imprisonment between 10 and 20 years. ¶6 Id. at 469. The trial judge found that the crime was motivated by racial bias. Id. at 471. The judge sentenced Apprendi to an enhanced term of twelve years on one second degree offense and imposed shorter, concurrent sentences on the other counts. at 471. Id. The New Jersey Appellate Division and Supreme Court affirmed. ¶7 The United States Supreme Court granted certiorari and reversed, finding unconstitutional the procedure by which Apprendi s sentence was enhanced by the judge rather than by a jury. Id. at 474. The Court held (1) that a criminal defendant is entitled to a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt, id. at 477, and (2) that other than the fact of a prior conviction, any fact that increases the penalty for a 4 crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. Id. at 490. ¶8 The holdings in Apprendi greatly informed the Supreme Court s decision in Ring in which the Court unconstitutional Arizona s capital sentencing scheme. held Because Arizona law permitted the death penalty only when aggravating factors were established, the Court held that Apprendi and the Sixth Amendment on which Apprendi is based required the jury rather than the judge find those factors. 609. Ring, 536 U.S. at The Court, echoing Apprendi, stated, [b]ecause Arizona s enumerated aggravating equivalent of Amendment an factors element of that they requires operate greater a as offense, be found by the a functional the Sixth jury. Id. Ring, many (citation omitted). B. ¶9 In jurisdictions the faced aftermath the of issue Apprendi we now and face, namely, whether principles announced in the two cases require that statutory aggravators which may subject a criminal defendant to capital punishment be specifically alleged in the grand jury indictment or other evidence charging of document probable and cause. be The supported vast majority jurisdictions have held they do not, and we agree. 5 by sufficient of state ¶10 Both Apprendi and Ring are expressly grounded in the right to trial by an impartial jury under the Sixth Amendment to the United States Constitution. The Court s key concern in those decisions was that a criminal defendant be afforded the full benefit of jury trial on all evidence, including aggravating factors, that could result in a sentence greater than the maximum prescribed for the offense charged. The instant case, however, does not fall under the Sixth Amendment and does not present that issue. Rather, McKaney argues that in addition to the Apprendi/Ring requirement that aggravators be found for sentencing purposes by the trial jury, he is also entitled to have each aggravating factor preliminarily considered by the grand jury or neutral arbiter and included by specific allegation as a probable cause finding in the charging document, either a grand jury indictment or an information. ¶11 The United States Constitution does not impose on the states the rule McKaney asserts. Although prosecutions in the federal the courts aggravators probable be require, alleged cause, United under in an States Fifth indictment v. Cotton, Amendment, and 535 that supported U.S. 625, by 627 (2002), the same requirement is inapplicable to prosecutions in our state courts. Two principal reasons are given. Fifth guarantee Amendment s of indictment by a First, the grand jury, applicable solely to the federal government, is not subject to 6 the strictures Louisiana, of 405 the U.S. Fourteenth 625, 633 Amendment. (1972) Alexander ( [T]he Due v. Process Clause . . . [of the Fourteenth Amendment] does not require the States to observe the Fifth Amendment s presentment or indictment by a grand jury. ). provision for Because a state is not required, as a matter of federal constitutional law, to empanel grand juries for purposes of indictment, it would be anomalous for us to require, under the United States Constitution, that a grand jury determine probable cause as a basis for alleging aggravating factors. See Hurtado v. California, 110 U.S. 516, 538 (1884). ¶12 Second, Apprendi and Ring do not implicate the Fifth Amendment relative to the use of grand jury indictments in state courts but rather the Sixth Amendment right to trial by jury and the Fourteenth Amendment due process requirement. The two cases specifically disavow dealing with sufficiency of indictments. ¶13 Accordingly, the only federal mandate applicable to McKaney in the context of the instant case is the Fourteenth Amendment due process requirement that a adequate notice of the charges against him. defendant receive See, e.g., Harris v. United States, 536 U.S. 545 (2002) (noting, by comparison, that unlike the Fifth Amendment grand jury requirement which is inapplicable to the states, the Sixth Amendment notice requirement that defendants be informed of charges against them 7 does apply to the states through the Fourteenth Amendment Due Process Clause). nor could criminal he In the instant case, McKaney does not contend, reasonably procedure contend, afford less that than Arizona s sufficient rules of notice of aggravating factors in satisfaction of the Fourteenth Amendment due process requirement, or that he specifically did not receive fair and adequate notice. C. ¶14 The Arizona Constitution requires an information or indictment before a person can be prosecuted for a felony or misdemeanor. pursuant to Ariz. Const. art. 2, § 30. state due process This court has held, requirements, that a charging document must fairly indicate[] the crime charged; state[] the essential elements of the alleged crime; and [be] sufficiently definite to apprise the defendant so that he can prepare his defense to the charge. State v. Marquez, 127 Ariz. 98, 101, 618 P.2d 592, 595 (1980) (quoting State v. Suarez, 106 Ariz. 62, 64, 470 P.2d 675, 677 (1970)). Similarly, the Arizona Rules of Criminal Procedure require that an indictment or information shall be a plain, concise statement of the facts sufficiently definite to inform the defendant of the offense charged. Ariz. R. Crim. P. 13.2. ¶15 But even if proof of an aggravating factor, now defined as merely a new procedural rule in Schriro v. Summerlin, 8 ___ U.S. ___, 124 S. Ct. 2519 (2004), is deemed to be the functional equivalent of an element of the offense of capital murder under the Sixth Amendment as stated in Apprendi and Ring and sufficient notice of crimes charged is otherwise present, no authority requires that aggravating factors be identified and treated as essential elements of the alleged crime for the purpose of inclusion in a grand jury indictment or information. The requirement remains unchanged that the state must give the defendant notice of its intention to seek capital punishment, Ariz. R. Crim. P. 15.1(i)(1),2 as does the requirement that the state give the defendant notice of the aggravating factors it intends to prove, Ariz. R. Crim. P. 15.1(i)(2).3 ¶16 It thus becomes irrelevant that aggravators are not specified in the indictment or information based on evidence of 2 Rule 15.1(i)(1) requires that [t]he prosecutor, no later than 60 days after the arraignment in superior court, shall provide to the defendant notice of whether the prosecutor intends to seek the death penalty. This period may be extended for thirty days upon stipulation of counsel. Additional extensions may be granted upon motion of the state and approval of the court. 3 Rule 15.1(i)(2) requires that [i]f the prosecutor files notice of intent to seek the death penalty, the prosecutor shall at the same time provide the defendant with a list of aggravating circumstances the state will rely on at the aggravation hearing in seeking the death penalty. 9 probable cause presented to a grand jury or magistrate4 because the defendant will have been given ample notice under the Arizona Rules of Criminal Procedure, and the trial jury, the same jury that ultimately will determine guilt or innocence, will also determine whether the aggravating factors exist beyond a reasonable doubt. Accordingly, even if aggravators are characterized as the functional equivalent of elements of the offense of capital murder as in Apprendi/Ring, the Sixth Amendment right to trial by jury is satisfied, and there appears no reason unduly to require expanded proof and of aggravating non-essential due factors process under an standard in determining the scope of the information or indictment clause of the Arizona Constitution. ¶17 Art. II, § 30. All state jurisdictions with one exception have thus far held, as we hold today, that aggravating factors need not be specified or alleged in the indictment. See, e.g., People v. McClain, 799 N.E.2d 322, 336 (Ill. App. 3d 2003) (Ring does not require that indictment); aggravating Soto v. factors Commonwealth, be pled 2004 WL in a state 867447, court 3-4 (Ky. 2004) (Ring and Apprendi do not require that aggravating factors be pled in the indictment); Stevens v. State, 867 So. 2d 219, 227 (Miss. 2004) ( an indictment 4 for capital murder puts a If the State proceeds by information, the State must hold a preliminary examination before a magistrate, unless the defendant waives this right. Ariz. Const. art. 2, § 30. 10 defendant on sufficient notice that statutory aggravating factors will be used against him even in light of Apprendi and Ring); Primeaux v. State, 88 P.3d 893, 899-900 ¶¶ 14-16 (Okla. Crim. App. 2004) (no requirement in Ring that aggravating factors be pled in the indictment so long as notice is given to defendant); State v. Edwards, 810 A.2d 226, 234 (R.I. 2002) (no constitutional requirement after Apprendi or Ring that aggravating factors be set forth in the indictment); State v. Oatney, 66 P.3d 475, 487 (Ore. 2003) (deliberateness as an aggravating factor need not be charged in the indictment even though a jury must make a finding of deliberateness at the end of the guilt phase in order for the defendant to be death penalty eligible). ¶18 New urges. Jersey alone has adopted the position McKaney The Supreme Court of New Jersey, in State v. Fortin, 843 A.2d 974 (N.J. 2004), held the state constitution requires that aggravating factors be submitted to the grand jury and returned in an indictment. Id. at 1035. Under the New Jersey Constitution, the State must present proof of every element of an offense to the grand jury and specify those elements in the indictment. ¶19 The Id. at 1027; see N.J. Const. art. 1, ¶ 8. New Jersey court noted that [a]lthough we recognize that the Fifth Amendment right to indictment by a grand jury does not apply to the States, we have never construed 11 our grand jury provision under Article 1, Paragraph 8 providing lesser protection than its federal analogue. A.2d at 1035 (internal citations omitted). as 843 In light of Apprendi and Ring, the court reasoned that [i]f aggravating factors and capital triggers are the functional equivalent of elements of capital murder pursuant to the Sixth Amendment s right to trial by jury, we see no reason to define them as something other than elements for purposes of the state constitutional right to a grand jury presentation. ¶20 Id. We choose not to adopt New Jersey s rationale. We conclude there is a difference between elements for purposes of the Sixth Amendment right to trial by jury and the functional equivalent of an element for purposes of finding a state constitutional right to have aggravating factors alleged in an indictment or information. In the former, the trial jury addresses the adequacy of proof of the actual elements of the crime and the presence of aggravators to determine defendant s guilt or innocence and to fix the sentence. latter, we difference address is simply significant. the adequacy Indeed, in of this In the notice. very the case, The the defendant does not claim the notice he received was inadequate. ¶21 Were we to follow New Jersey s Fortin decision, we would, as a result, expand the statutory role of the grand jury 12 as a matter of state constitutional law. As another court noted, such an expansion has consequences: Another concern raised by requiring the grand jury to determine aggravating factors in death penalty cases is whether the judge empaneling the grand jury would be required to conduct a voir dire so as to exclude any potential grand jurors who would be unable to fairly determine aggravating factors on account of conscientious objection to the death penalty. If so, there would be no counsel present to assist the empaneling judge as by definition there would as yet be no case. The chance that this voir dire could be conducted to the satisfaction of counsel named after the indictment is returned would, at best, be nil. United States v. Battle, 264 F. Supp. 2d 1088, 1104 (N.D. Ga. 2003). The court in Battle further noted that it is standard practice for the trial jury to view the indictment. jury [would] determining . . . . view the whether Id. claimed the The aggravating defendant court is observed factors guilty that Thus, the of prior any while to crime redactions arguably could be made for this purpose, why require adding something redacted? to Id. the indictment which will often have to be The court recognized, and we agree, that such a disclosure to the trial jury would, in many instances, prove unduly prejudicial to the defendant. ¶22 Finally, and respectfully, we disagree with the rather dramatic assertion advanced by our dissenting colleagues that today s opinion, for the first time in history, affords less protection under the Arizona Constitution than the United States Constitution affords in its corresponding clause. 13 First, as we have noted earlier, the federal constitution s corresponding clause does not apply to the states and, as a result, affords no protection defendants. Arizona at The all to question Constitution McKaney before requires or us that aggravators in a charging document. similarly is simply the State situated whether allege the specific Arizona has never required that such factors be alleged in an indictment or information, so today s decision previously opinion neither afforded simply reduces criminal retains nor minimizes defendants. Arizona s a Rather, long-accepted view right today s that the protection afforded by our rules of criminal procedure fully satisfies due process requirements. III. ¶23 We therefore hold that aggravating factors essential to the imposition of a capital sentence need not be alleged in the grand jury indictment or the information in order to satisfy constitutional due process. Even though aggravating factors need not be specified in the charging document, an accused in the State criminal of Arizona procedure requirements. is accorded that notice complies under with the rules of constitutional In the case at bench, McKaney was notified of the State s intent to seek the death penalty and of the specific aggravating factors to be proved with ample time to prepare. 14 ¶24 For the foregoing reasons, we accept jurisdiction of McKaney s petition for special action, but deny relief. We remand the case to the superior court for further proceedings consistent with this opinion. __________________________________ Charles E. Jones Chief Justice CONCURRING: ____________________________________ Ruth V. McGregor, Vice Chief Justice ____________________________________ Rebecca White Berch, Justice H U R W I T Z, Justice, dissenting in part and concurring in part: ¶25 The Court today holds that the indictment clause of the Arizona Constitution, Article II, Section 30, provides less protection to our citizens than the corresponding clause in the federal constitution. This is to my knowledge the first time that this Court has reached such a conclusion, and I cannot join it. Nonetheless, for the reasons I describe in Section II below, I would decline petitioner s request for special action relief because he has an adequate remedy at law. I. ¶26 Article II, Section 30 provides that [n]o person shall be prosecuted criminally in any court of record for felony 15 or misdemeanor, otherwise than by information or indictment. The charging document, whether an indictment or information, provides the defendant with notice of the charges against him. It is therefore settled that the charging document must state[] the essential elements of the alleged crime. State v. Marquez, 127 Ariz. 98, 101, 618 P.2d 592, 595 (1980) (quoting State v. Suarez, 106 Ariz. 62, 64, 470 P.2d 675, 677 (1970)). ¶27 After Ring v. Arizona, 536 U.S. 584 (2002), it can no longer be doubted that the aggravating circumstances required by Arizona law for the imposition of the death penalty are elements of the offense. Id. at 606-07 (holding that Sixth Amendment right of jury trial applies when legislature adds an element to a criminal constitutional offense in response to id. 609 adjudication); at Supreme Court s (characterizing aggravating factors as the functional equivalent of an element of a greater offense ) (quoting Apprendi v. New Jersey, 530 U.S. 466, 494 n.19 (2000)); Sattazhan v. Pennsylvania, 537 U.S. 101, 111 (2003) (stating that if the existence of any fact (other than a prior conviction) increases the maximum punishment that may be imposed on a defendant, that fact--no matter how the State labels it--constitutes an element ). ¶28 Because capital aggravating factors are elements of the offense for Sixth Amendment purposes, every federal court of appeals to have considered the issue has concluded that the 16 Fifth Amendment requires that they be alleged in an indictment. See United States v. Lee, 374 F.3d 637, 650-51 (8th Cir. 2004); United States v. Robinson, 367 F.3d 278, 284 (5th Cir. 2004); United States v. Higgs, 353 F.3d 281, 298 (4th Cir. 2003). The federal Department of Justice apparently agrees. After Ring, the all Department capital cases sought superseding setting forth indictments the in alleged pending aggravating circumstances that would make the defendant eligible for the death penalty. Robinson, 367 F.3d at 284 n.6. ¶29 majority The correctly notes that the federal indictment clause does not apply to the states, and we therefore are not mandated by federal law to provide our citizens the same protections mandated by the Fifth Amendment. But as we noted only last year, while we are not bound by the federal courts interpretation of a federal constitutional clause similar to a clause in the Arizona Constitution, at the very least those interpretations have great weight in accomplishing the desired uniformity between the clauses. 362 ¶ 11, 71 P.3d 351, 354 State v. Casey, 205 Ariz. 359, (2003). More importantly, in construing our Constitution, we properly begin from the premise that federal constitutional law is the benchmark of minimum constitutional protection. Large v. Superior Court, 148 Ariz. 229, 235, 714 P.2d 399, 405 (1986). We have occasionally found our Constitution to provide broader protections to our citizens 17 than afforded by analogous clauses in the federal document, e.g., Pool v. Superior Court, 139 Ariz. 98, 108, 677 P.2d 261, 271 (1984), but we have never interpreted the protections of our fundamental document as narrower than those in the national charter. ¶30 As several distinguished commentators have noted, there may often be compelling reasons to read provisions of the Arizona Constitution counterparts. differently than their federal See, e.g., Ruth V. McGregor, Recent Developments in Arizona State Constitutional Law, 35 Ariz. St. L. J. 265 (2003); Stanley G. Feldman and David L. Abney, The Double Security of Federalism: Protecting Individual Liberty Under the Arizona Constitution, 20 Ariz. St. L. J. 115 (1988). such reasons are present here. Fifth Amendment is But no The pertinent language in the analytically language in Article II, Section 30. indistinguishable from the Nor is there any suggestion that the framers of the state constitution believed that the scope of the Arizona provision differed in any material way from the federal. For these reasons, our previous decisions have generally relied upon federal jurisprudence when explaining the Arizona indictment clause. See, e.g., Maretick v. Jarrett, 204 Ariz. 194, 197 ¶ 8, 62 P.3d 120, 123 (2003) (quoting Wood v. Georgia, 370 U.S. 375, 390 (1962) in describing the purposes of a grand jury). 18 ¶31 The Court s conclusion today that Article II, Section 30 is not congruent with the Fifth Amendment rests entirely on the notion that the notice of alleged aggravating circumstances provided to defendants under Arizona Rule of Criminal Procedure 15.1(i)(1) satisfies due process requirements. Crim. P. 13.5(c) (providing amends the charging document). that the filing See Ariz. R. of such a list I do not doubt that the list of aggravating circumstances, which must be served on the defendant no later than sixty days after arraignment in superior court, provides the defendant with ample notice of these elements for due process purposes. Our indictment clause, however, was intended not only to provide a defendant with notice of the charges, but also to ensure that a neutral intermediary a grand jury comprised of ordinary citizens finds that probable cause exists before the State can bring charges. See State v. Baumann, 125 Ariz. 404, 408, 610 P.2d 38, 42 (1980); State v. Superior Court (Mauro), 139 Ariz. 422, 424, 678 P.2d 1386, 1388 (1984). Arizona grand juries, like their federal counterparts, were thus designed to act as a vital check against the wrongful exercise of power by the State and its prosecutors. v. Louisiana, 523 U.S. 392, 399 (1998).5 5 Campbell See Maretick, 204 Ariz. The State may, of course, choose to proceed under Article II, Section 30 by way of information rather than indictment. But if it does so, the defendant has the right to a preliminary hearing, where a neutral magistrate will determine if there is probable cause to proceed. See Ariz. R. Crim. P. 5.4(a); State 19 at 197 ¶ 8, 62 P.3d at 123 (describing grand jury as serv[ing] the invaluable function in our society of standing between the accuser and the accused ). ¶32 is Under today s decision, this constitutional protection effectively eviscerated. The Court has interpreted our Constitution as allowing the State, and the State alone, to decide whether there is probable cause to charge the aggravating circumstances punishment. areas. that put a defendant in peril of capital We would not countenance such a result in other For example, it is unthinkable that we would allow the State, after obtaining from a grand jury an indictment charging a defendant with simple assault, to indictment to allege aggravated assault. unilaterally amend the Yet that is what Rules 15.1(i)(1) and 13.5(c) allow; they permit the State alone to decide that there is probable cause to add an element to a charge of first-degree murder so as to expose a defendant to an aggravated sentence. ¶33 There would be little cost to law enforcement if our Constitution, like its federal counterpart, were read to require that aggravating circumstances be part of the indictment issued by the grand jury. For pending cases, superseding indictments v. Superior Court (Atwood), 103 Ariz. 369, 372, 442 P.2d 113, 116 (Ariz. 1968); State v. Neese, 126 Ariz. 499, 502-03, 616 P.2d 959, 962-63 (App. 1980) ( The purpose of a preliminary hearing and a grand jury proceeding is the same. They are to 20 could be sought and obtained in accordance with the federal practice. included For all cases already tried, any failure to have the aggravating circumstances almost surely harmless error. in the indictment is A defendant who received the notice required by Rule 15.1(i)(1) or its predecessor will have had sufficient warning for due process purposes of the charges against him. And, after a jury of a defendant s peers returns a verdict of conviction, thus finding all elements of the offense beyond a reasonable doubt, any failure to have submitted an element to the grand jury for a finding of probable cause is perforce harmless error. United States v. Mechanik, 475 U.S. 66, 73 (1986). ¶34 In doctrines of short, there is constitutional no warrant, either interpretation or in in settled practical terms, for the Court s conclusion today that Article II, Section 30 has less content States Constitution. than the Fifth Amendment to the United Because I cannot subscribe to the premise that the Arizona Constitution is not at least as generous in its protections of individual rights as the federal constitution, I cannot join the Court s opinion. II. ¶35 The case today before us arrives by way of a petition for special action. determine whether The special action requests extraordinary there is probable 21 cause to believe the relief, and acceptance of jurisdiction of a special action is highly discretionary with the court to which the application is made. State Bar Before granting Committee such Note, Ariz. extraordinary R.P. relief, Spec. we Act. 3. should be satisfied that the petitioner has no other equally adequate and speedy remedy. Ariz. R.P. Spec. Act. 1(a); Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, 252 ¶ 3, 63 P.3d 282, 283 (2003). ¶36 In this case, petitioner has such a remedy. Court accurately received holds, sufficient he notice cannot for complain due alleged aggravating circumstances. that process he As the has not of the purposes His real complaint, as I note above, is that the State has alleged these elements of the offense without a finding of probable cause by the grand jury. Rule 13.5(c), however, gives the defendant an ample remedy for that oversight: 16 motion, he may, through the vehicle of a pre-trial Rule challenge the legal sufficiency of an alleged aggravating circumstance. ¶37 that Under the Rule 13.5(c) procedure, a defendant claiming there aggravator was no alleged probable under cause Rule to 15.1(i)(1) support is an entitled alleged to a determination by a neutral magistrate a superior court judge of the legal sufficiency of that aggravator.6 By filing a individual committed an offense. ). 6 It is technically possible to read Rule 13.5(c) as limiting the defendant to a claim that the alleged aggravating 22 motion under Rule 13.5(c), a defendant can obtain protection against arbitrary state action equivalent to that which he would have received had the State submitted the aggravator to a grand jury, and identical to that which he would have received had the State chosen to proceed by way of information alleging the aggravating circumstances. ¶38 Because petitioner s trial has not yet commenced, he may still file a motion pursuant to Rule 16 if he wishes a neutral determination circumstances cause. alleged as by to the whether State are the based aggravating upon probable Given the availability of this remedy, I concur in the Court s judgment insofar as it denies petitioner special action relief. __________________________________ Andrew D. Hurwitz, Justice CONCURRING: ______________________________ Michael D. Ryan, Justice circumstance was not listed under A.R.S. § 13-703(F) and is thus facially legally insufficient. That reading, however, is inconsistent with the notion, set forth in the comment to the Rule, that a defendant s rights to challenge the aggravating circumstances alleged are waived if not raised before trial. Surely this Court would not countenance the execution of a defendant based on an aggravating circumstance not listed in § 13-703(F). The Rule therefore must pertain to more than facial legal sufficiency, i.e., the probable cause for the allegation of the aggravator. 23

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