SUPREME COURT OF ARIZONA

STATE OF ARIZONA, ) Arizona Supreme Court

) No. CR-99-0438-AP

Appellee, )

) Maricopa County Superior

v. ) Court

) No. CR-98-003520

JOHN EDWARD SANSING, )

)

Appellant. ) SUPPLEMENTAL

) OPINION

__________________________________)

Appeal from the Superior Court of Maricopa County

No. CR-98-003520

The Honorable Ronald S. Reinstein, Judge

DEATH SENTENCE AFFIRMED

_________________________________________________________________

Janet A. Napolitano, Former Arizona Attorney General Phoenix

Terry Goddard, Arizona 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 Monica B. Klapper, Assistant Attorney General

and Bruce M. Ferg, Assistant Attorney General Tucson

Attorneys for State of Arizona

James J. Haas, Maricopa County Public Defender Phoenix

by Terry J. Adams

and Spencer D. Heffel

Attorneys for John Edward Sansing

_________________________________________________________________

M c G R E G O R, Vice Chief Justice

¶1 On September 18, 1998, Sansing pled guilty to first
1 The legislature has since amended A.R.S. section 13-703.

See 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, § 1.

2

degree murder, kidnapping, armed robbery, and sexual assault. The

trial judge conducted a sentencing hearing to determine if any

aggravating and mitigating circumstances existed. A.R.S. § 13-

703.B (2001).1 The judge found that the State proved, beyond a

reasonable doubt, two aggravating circumstances: (1) Sansing

committed the crime in expectation of the receipt of pecuniary

gain, A.R.S. section 13-703.F.5; and (2) Sansing committed the

murder in an especially cruel, heinous, or depraved manner, A.R.S.

section 13-703.F.6. The trial judge found Sansing failed to prove

any statutory mitigating circumstances, A.R.S. section 13-703.G.,

but found Sansing established five non-statutory mitigating

circumstances: (1) impairment from the use of crack cocaine; (2)

difficult childhood; (3) acceptance of responsibility and remorse;

(4) lack of education; and (5) family support. The judge

determined that the mitigating circumstances were not sufficiently

substantial to outweigh the aggravating circumstances and therefore

sentenced Sansing to death. A.R.S. § 13-703.E.

¶2 We affirmed Sansing’s convictions and sentences on his

direct appeal. State v. Sansing, 200 Ariz. 347, 361 ¶ 47, 26 P.3d

1118, 1132 (2001). We struck the pecuniary gain finding, concurred

with the trial court’s finding of cruelty, and did not address the

question of heinousness or depravity. Id. at 356, 358 ¶¶ 24, 34,
3

26 P.3d at 1127, 1129. After independently reweighing the

aggravating and mitigating circumstances, we affirmed Sansing’s

death sentence. Id. at 360 ¶ 45, 26 P.3d at 1131.

¶3 The United States Supreme Court vacated the Sansing

judgment and remanded for further consideration in light of Ring v.

Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002) (Ring II). Sansing

v. Arizona, 536 U.S. 954, 122 S. Ct. 2654 (2002) (mem.). The only

issue before this court is whether reversible error occurred when

the trial judge sentenced John Edward Sansing to death under a

procedure that violated Ring II. We conclude that the Ring II

violation constituted harmless error.

I.

¶4 In Ring II, the United States Supreme Court held that

Arizona’s former capital sentencing scheme violated the right to a

jury trial guaranteed by the Sixth Amendment to the United States

Constitution. Ring II, 536 U.S. at 609, 122 S. Ct. at 2443. The

Court declared that “[c]apital defendants, no less than non-capital

defendants . . . are entitled to a jury determination of any fact

on which the legislature conditions an increase in their maximum

punishment.” Id. at 589, 122 S. Ct. at 2432. The Court reversed

our decision in State v. Ring, 200 Ariz. 267, 25 P.3d 1139

(2001)(Ring I), and remanded for further proceedings consistent

with its decision. Ring II, 536 U.S. at 609, 122 S. Ct. at 2443.
2 In Summerlin v. Stewart, No. 98-99002, 2003 WL 22038399

(9th Cir. Sept. 2, 2003), the court held that the rule announced in

Ring II applies retroactively to cases on federal habeas review and

concluded that a judge’s imposition of a death penalty “cannot be

subject to harmless error analysis.” Id. at *33. We are not bound

by the Ninth Circuit’s interpretation of what the Constitution

requires. See State v. Vickers, 159 Ariz. 532, 543 n.2, 768 P.2d

1177, 1188 n.2 (1989)(declining to follow a Ninth Circuit decision

which held Arizona’s death penalty statute unconstitutional because

that decision rested on “grounds on which different courts may

reasonably hold different views of what the Constitution

requires”); State v. Clark, 196 Ariz. 530, 533 ¶ 14, 2 P.3d 89, 92

(App. 1999) (same). Accordingly, we decline to revisit our

conclusion that Ring II error can be reviewed for harmless error.

4

¶5 Following the Supreme Court’s Ring II decision, we

consolidated all death penalty cases for which we had not yet

issued a direct appeal mandate to determine whether Ring II

requires us to reverse or vacate the defendants’ death sentences.

In State v. Ring, 204 Ariz. 534, 555 ¶ 53, 65 P.3d 915, 936 (2003)

(Ring III), we held that we will examine a death sentence imposed

under Arizona’s superseded capital sentencing statutes for harmless

error.2 “In cases in which a defendant stipulates, confesses or

admits to facts sufficient to establish an aggravating

circumstance, we will regard that factor as established.” Id. at

563 ¶ 93, 65 P.3d at 944. As we further explained, “[o]ur harmless

error inquiry then focuses on whether no reasonable jury could find

that the mitigation evidence adduced during the penalty phase is

‘sufficiently substantial to call for leniency.’” Id. (quoting

A.R.S. § 13-703.E).
5

II.

¶6 To establish the F.6 aggravating circumstance, the state

needs to prove beyond a reasonable doubt only one of the heinous,

cruel, or depraved elements. State v. Gretzler, 135 Ariz. 42, 51,

659 P.2d 1, 10 (1983). The term especially cruel refers to the

mental anguish or physical pain that the victim suffered prior to

death. State v. Trostle, 191 Ariz. 4, 18, 951 P.2d 869, 883

(1997). Heinousness and depravity encompass the “mental state and

attitude of the perpetrator as reflected in his words and actions.”

State v. Clark, 126 Ariz. 428, 436, 616 P.2d 888, 896 (1980).

A.

¶7 For the especially cruel element to exist, the trier of

fact must find beyond a reasonable doubt that “the victim

consciously experienced physical or mental pain prior to death.”

Trostle, 191 Ariz. at 18, 951 P.2d at 883. The victim, however,

does not need to be conscious for “each and every wound” inflicted

for cruelty to apply. See State v. Lopez (Lopez I), 163 Ariz. 108,

115, 786 P.2d 959, 966 (1990).

¶8 Sansing’s admissions and stipulations, coupled with

uncontroverted evidence presented at his sentencing hearing,

painted a chilling picture of the events leading to Trudy’s death.

Admitted and stipulated facts indisputably establish that he
3 Sansing signed a factual basis,

accompanying his guilty plea, which included admissions related to

his crimes. Sansing also signed and submitted a stipulation of

facts to the trial court. Additionally, Sansing stipulated to the

admission of videos and transcripts of police interviews of the

Sansing children, as well as statements attributed to the children

by Dr. Carol Ainley, who counseled the children after Sansing’s

arrest.

6

murdered Trudy in an especially cruel manner.3 The testimony of

Sansing’s wife Kara and of the medical examiner provide further

evidence of the cruelty.

¶9 On February 24, 1998, Sansing called the Victory Assembly

Church to request a delivery of food for his family. When that

church could not assist him, he called the Living Springs Assembly

of God Church and made the same request. In response, Trudy

Calabrese delivered two food boxes to the Sansing home. Before

Trudy could leave, Sansing grabbed her from behind, threw her to

the floor, and bound her wrists and ankles. Using a wooden club,

Sansing then struck Trudy on the head with force sufficient to

break the club into two pieces. Sansing later dragged Trudy into

his bedroom, where he sexually assaulted her. He also stabbed her

in the abdomen three times with a kitchen knife. The medical

examiner determined the cause of death was multiple stab wounds and

blunt force head trauma.

¶10 It took Sansing approximately fifteen minutes to subdue

Trudy after first attacking her. Kara Sansing testified that Trudy

fought a great deal. The medical examiner observed defensive
7

wounds on Trudy’s hands and wrists. Trudy begged the Sansing

children to call 9-1-1, but Sansing ordered them to watch

television. All four children told police that Trudy prayed for

help. Kara’s testimony corroborates her children’s statements.

She testified that before being struck Trudy pleaded, “God, please

help me . . . . If this is the way you want me to come home, then

I will come home.” Trudy’s defensive wounds, her pleas for help,

and her attempts to resist Sansing’s attack leave no doubt Trudy

suffered mental anguish as she contemplated her ultimate fate. See

State v. Carriger, 143 Ariz. 142, 160, 692 P.2d 991, 1009 (1984)

(inferring victim’s mental distress and uncertainty of fate from

pleas for mercy); State v. Summerlin, 138 Ariz. 426, 436, 675

P.2d 686, 696 (1983) (“Evidence of the victim’s bruised hand

indicat[es] that she attempted to ward off blows.... [and]

indicat[es] of physical and mental pain.”); State v. Lambright, 138

Ariz. 63, 75, 673 P.2d 1, 13 (1983) (finding the victim suffered

mental anguish because evidence showed that the victim was

abducted, sexually assaulted, and in fear for her life as shown by

her trembling and begging to be released) overruled on other

grounds by Hedlund v. Sheldon, 173 Ariz. 143, 840 P.2d 1008 (1992).

¶11 Furthermore, after binding and beating Trudy with a club,

Sansing dragged Trudy into his bedroom and, by his own admission,

raped her “while her arms and legs were bound.” Kara testified

that Trudy was conscious when Sansing raped her and that she heard
8

Trudy speak during the sexual assault. The evidence of the rape

independently establishes both mental and physical suffering. See

Summerlin, 138 Ariz. at 436, 675 P.2d at 696 (finding rape an

indication of physical and mental pain).

¶12 Sansing admitted that he struck Trudy on the head with a

club. The medical examiner testified that the blows to the head

were substantial, resulting in a tremendous amount of bleeding and

would have caused pain. Sansing also admitted stabbing Trudy in

the abdomen with a knife. The medical examiner observed three stab

wounds. The deepest stab wound measured three and three-quarter

inches and formed a criss-cross pattern, which the medical examiner

attributed to a twisting of the knife. This physical finding was

consistent with Kara Sansing’s testimony that she observed her

husband “grinding” the knife into Trudy. This wound struck both

the colon and interior vena cava, causing a hemorrhage within the

abdominal cavity. The other two wounds penetrated Trudy’s stomach,

large intestine, and kidney. The medical examiner testified that

the stab wounds would have caused pain and would not have resulted

in an immediate death. He explained several minutes had to have

elapsed for Trudy to lose the amount of blood that she did.

Accordingly, this evidence also separately establishes beyond a

reasonable doubt that Trudy endured physical pain. See State v.

Salazar, 173 Ariz. 399, 412, 844 P.2d 566, 579 (1992) (finding

murder especially cruel where victim suffered a cranial hemorrhage
4 The State asked the medical examiner whether Trudy could

have regained consciousness after being struck with the club. The

medical examiner responded: “Is it possible, yes. I wasn’t there.

Is it possible? Yes, but I doubt it.” However, when the State

inquired if it was “medically unlikely or impossible” that Trudy

had a conversation with Sansing during the sexual assault the

medical examiner replied, “Not at all.”

5 The children’s recollections of the precise words Trudy

used varied only slightly. They reported that she said, “Please,

God, help me,” “God, just help me.” “Please, Lord, help me,” or

“God, help me. Lord, help me, please.”

9

and broken nose and was strangled with a phone cord).

¶13 Sansing argues, however, that this court cannot conclude

beyond a reasonable doubt that a jury would have found the murder

especially cruel because the evidence is inconclusive as to whether

Trudy was conscious during all portions of the attack. Sansing

relies on the medical examiner’s testimony that it would be

unlikely, although certainly possible, for Trudy to have regained

consciousness after being struck on the head.4 Kara Sansing

testified that Trudy fell unconscious after Sansing struck her on

the head with the club, but was conscious when Sansing later raped

her. Sansing contends that his wife’s testimony that she heard

Trudy speaking during the sexual assault provides the only evidence

that Trudy regained consciousness.

¶14 Sansing’s argument relies upon his mischaracterization of

the evidence. Sansing’s own admissions and stipulations establish

that Trudy was conscious during the attack. In addition, all four

Sansing children told the police that Trudy prayed for help.5
6 In the factual basis for his guilty plea, Sansing

admitted that “[w]hen he returned [from moving Trudy’s truck], the

victim was still conscious, alive and tied up with cords.”

Additionally, in his stipulation of facts, Sansing stipulated that

“[w]hen he returned [from moving the truck], the victim had

regained consciousness.”

10

Sansing’s ten-year old son told police that Sansing threatened

Trudy, “Make a move, I’ll hit you in the head.” Sansing’s son

observed Trudy struggling to escape and then Sansing striking her

on the head. Moreover, Sansing admitted twice that by the time he

returned from moving Trudy’s truck, which was after he struck Trudy

with the club, she had regained consciousness.6

¶15 In addition, Sansing stipulated that a reporter who

interviewed him would testify that Sansing told her that, after

raping and beating Trudy, he decided to kill her to end her

suffering. He told the reporter, “She was suffering. I wanted to

end it. . . . I wasn’t playing God. I just couldn’t handle seeing

the condition she was in.” Accordingly, Sansing’s own admissions

and stipulations establish Trudy consciously suffered, both

mentally and physically, during the attack.

¶16 Given these facts, we conclude beyond a reasonable doubt

that any reasonable jury would have found that Sansing murdered

Trudy in an especially cruel manner. The Ring II error that

resulted from allowing a judge to find this aggravating factor is

harmless error.

B.
7 The trial judge’s finding of senselessness was related to

his finding that Sansing murdered Trudy in expectation of pecuniary

gain. Because we struck the pecuniary gain finding on Sansing’s

direct appeal, we do not consider the senselessness finding in this

harmless error review.

11

¶17 The terms especially heinous and depraved describe the

defendant’s state of mind. State v. Ceja, 126 Ariz. 35, 39, 612

P.2d 491, 495 (1980). The trier of fact considers five factors to

determine whether the defendant committed the murder in an

especially heinous or depraved manner: (1) relishing of the murder

by the defendant; (2) infliction of gratuitous violence; (3)

needless mutilation; (4) senselessness of the crime; and (5)

helplessness of the victim. Gretzler, 135 Ariz. at 52, 659 P.2d at

11. The trial judge found gratuitous violence, helplessness, and

senselessness.7

¶18 The helplessness factor may be present when a victim is

physically unable to resist the murder. See State v. Gulbrandson,

184 Ariz. 46, 69, 906 P.2d 579, 602 (1995) (finding defendant

rendered victim helpless by binding her). Gratuitous violence is

violence beyond that necessary to kill. State v. Rienhardt, 190

Ariz. 579, 590, 951 P.2d 454, 465 (1997). Helplessness by itself

is usually insufficient to find heinousness and depravity.

Gulbrandson, 184 Ariz. at 67, 906 P.2d at 600. However,

helplessness in conjunction with another Gretzler factor, such as

gratuitous violence, can establish the murder was especially
12

heinous and depraved. Id. Overwhelming and uncontroverted

evidence establishes beyond a reasonable doubt that Sansing

inflicted gratuitous violence upon Trudy, a helpless victim.

¶19 Sansing admitted that, as Trudy prepared to leave, he

“grabbed her from behind and threw her to the floor.” Sansing

restrained Trudy by driving one knee into her back and placing the

other knee on the floor. He separately bound both her wrists and

ankles with electrical cords. He then tied Trudy’s wrists and

ankles together. No reasonable jury would have failed to conclude

that Trudy was helpless to defend herself.

¶20 Admitted, stipulated, and uncontroverted facts also

establish that Sansing inflicted gratuitous violence upon Trudy.

Sansing’s ten-year-old son told the police that as Trudy struggled,

Sansing struck her on the head with the club. Sansing employed

enough force to break the club into two pieces and lacerate Trudy’s

scalp. Later, he dragged Trudy into his bedroom and raped her

“while her arms and legs were bound.” Sansing admitted “[a]t some

point the victim was blindfolded and gagged by having a sock placed

in her mouth.” He eventually stabbed her in the abdomen three

times. Trudy was found with ligatures around her neck.

¶21 Trudy suffered severe injuries from her attack. The

medical examiner observed swelling and bruises on Trudy’s forehead

and her left orbital region. Her face and lips were swollen and

her frenulum was severed, which the medical examiner attributed to
13

a blunt force trauma to the mouth. The medical examiner also

noticed a laceration near Trudy’s right ear. The ligatures were

affixed to Trudy’s neck with tension sufficient to leave two marks.

The medical examiner testified that the neck ligatures would have

decreased the oxygen flow to and from Trudy’s brain. Sansing

admitted stabbing Trudy in the abdomen. Kara Sansing observed

Sansing “grinding” the knife into Trudy. Collectively, the three

stab wounds caused blood and body fluid to enter the abdominal

cavity.

¶22 The rape, facial wounds, neck ligatures, gagging, blindfolding, and grinding of the knife constitute violence beyond that

necessary to kill. See State v. Walden, 183 Ariz. 595, 619, 905

P.2d 974, 998 (1995) (finding bruises on arms and legs, neck and

chest injuries, head wound, slash wounds, and strangulation

gratuitous violence) rejected on other grounds by State v. Ives,

187 Ariz. 102, 927 P.2d 762 (1996); State v. Lopez (Lopez II), 175

Ariz. 407, 412, 857 P.2d 1261, 1266 (1993) (finding knife wounds to

face, sexual assault, gagging, and binding of eyes gratuitous

violence); State v. Harding, 137 Ariz. 278, 295, 670 P.2d 383, 400

(1983) (finding gagging one of the victims with socks constituted

gratuitous violence).

¶23 Given the overwhelming and uncontroverted evidence, we

conclude beyond a reasonable doubt that any reasonable jury would

have concluded that Sansing inflicted gratuitous violence upon
14

Trudy, who was rendered helpless. No reasonable jury could have

failed to find that Trudy’s murder was especially heinous.

III.

¶24 Because Sansing either admitted or stipulated to facts

that incontrovertibly established the especially cruel element, and

overwhelming and uncontroverted evidence established the heinous

nature of the murder, we now focus our harmless error inquiry on

whether the mitigating evidence was sufficiently substantial to

call for leniency. Ring III, 204 Ariz. at 563 ¶ 93, 65 P.3d at

944.

¶25 A defendant bears the burden of establishing mitigating

circumstances by a preponderance of the evidence. State v.

Dickens, 187 Ariz. 1, 24, 926 P.2d 468, 491 (1996). Sansing

offered impaired capacity due to drug ingestion and his age as the

only statutory mitigating circumstances. A.R.S. § 13-703.G.1,

.G.5. The trial court rejected both. We conclude beyond a

reasonable doubt that a jury would have found that Sansing failed

to establish any statutory mitigating circumstances.

¶26 Drug impairment can be a statutory mitigating

circumstance if “[t]he defendant’s capacity to appreciate the

wrongfulness of his conduct or to conform his conduct to the

requirements of the law was significantly impaired, but not so

impaired as to constitute a defense to prosecution.” A.R.S. § 13-

703.G.1 (emphasis added). Mere evidence of drug ingestion or
8 See, e.g., State v. Jones, 188 Ariz. 388, 400, 937 P.2d

310, 322 (1997) (holding defendant did not establish either

statutory or non-statutory impaired capacity because “no testimony

establishes, either because of his use of drugs or because he was

coming off of the drugs, that the defendant could not appreciate

the wrongfulness of his conduct or conform his conduct to the

law.”); State v. Jordan, 126 Ariz. 283, 290, 614 P.2d 825, 832

(1980) (explaining that defendant did not establish the G.1

mitigating circumstance because “[n]ot only is [the evidence]

inexact as to defendant’s level of intoxication at the time of the

crime, it is also devoid of any description of how defendant’s

intoxication affected his conduct, other than he was ‘mumbling.’”).

9 State v. Medina, 193 Ariz. 504, 516, 975 P.2d 94, 106

(1999)(statutory impaired capacity predicated on two expert

witnesses who testified that ingestion of alcohol, marijuana, and

paint fumes could have significantly impaired defendant’s ability

to conform his conduct to the law); State v. Ramirez, 178 Ariz.

116, 131, 871 P.2d 237, 2512 (1994) (defendant’s expert concluded

“with reasonable psychological certainty that the defendant’s

capacity . . . was significantly diminished”); State v. Stevens,

158 Ariz. 595, 599, 764 P.2d 724, 728 (1988) (finding of impaired

capacity based on two experts’ testimony regarding defendant’s

impaired capacity); State v. Graham, 135 Ariz. 209, 213 660 P.2d

460, 464 (1983) (same); Gretzler, 135 Ariz. at 57-58, 659 P.2d at

16-17 (concluding defendant’s mental capabilities were

significantly, but only partially, impaired based on “medical

testimony that this continuous use of drugs likely impaired

defendant’s volitional capabilities”).

15

intoxication, however, is insufficient to establish statutory

mitigation.8 The defendant must also prove a causal nexus between

his drug use and the offense. Typically, in those cases in which

a defendant established statutory impairment, the defendant

presented an expert witness who testified that drugs or alcohol

affected the defendant’s capacity.9 Furthermore, “a defendant’s

claim of alcohol or drug impairment fails when there is evidence

that the defendant took steps to avoid prosecution shortly after

the murder, or when it appears that intoxication did not overwhelm
16

the defendant’s ability to control his physical behavior.”

Rienhardt, 190 Ariz. at 591-92, 951 P.2d at 466-67.

¶27 No reasonable jury would have concluded that Sansing met

his burden to establish that his ability to control his behavior or

his capacity to appreciate the wrongfulness of his conduct was

significantly impaired. Sansing presented no expert testimony to

support his assertion that his use of cocaine impaired either his

capacity to control his conduct or his capacity to appreciate the

wrongfulness of his actions. He therefore failed entirely to show

any causal nexus between his alleged drug use and impairment.

¶28 Sansing also presented only minimal testimony about his

drug use on the day of the murder. Kara testified that Sansing

telephoned her while she was at work at approximately 1:30 p.m.

During this conversation, Sansing informed her that he had

purchased some crack cocaine. He told her that he had smoked some

of the crack but was saving the rest for her. Kara testified that

she could tell he had ingested the crack from the sound of his

voice. She testified that when she returned home from work several

hours later, Sansing was not “acting normal.” However, she also

testified that Sansing’s actions were thought out and that he was

not acting as if he were in a trance.

¶29 That evidence is insufficient to establish, by a

preponderance of the evidence, that Sansing’s capacity to control

his behavior was significantly impaired. First, Kara did not
17

quantify how much crack Sansing used. Cf. Rienhardt, 190 Ariz. at

592, 951 P.2d at 467 (relying, in part, on the defendant’s failure

to provide “even a rough estimate of his level of intoxication” to

find the defendant did not establish the G.1 factor). Moreover, no

reasonable jury would conclude that Kara’s testimony that Sansing

was not acting himself was sufficient to establish that his

capacity was significantly impaired. Cf. Jordan, 126 Ariz. at 290,

614 P.2d at 832 (“Not only is [the] testimony inexact as to

defendant’s level of intoxication at the time of the crime, it is

also devoid of any description of how defendant’s intoxication

affected his conduct, other than that he was ‘mumbling.’”).

¶30 Furthermore, Sansing’s deliberate actions refute his

impairment claim and establish that the drug use did not overwhelm

Sansing’s ability to control his conduct. Cf. State v. Poyson, 198

Ariz. 70, 80 ¶ 34, 7 P.3d 79, 89 (2000) (finding that the

defendant’s deliberate actions “belie[] the defendant’s claim of

impairment”); Rienhardt, 190 Ariz. at 592, 951 P.2d at 467

(considering the defendant’s conscious actions to refute

defendant’s claim of impairment). Kara testified that Sansing

planned to rob the person who delivered the food. Additionally,

Sansing contacted two different churches in his attempt to lure an

unsuspecting victim to his home.

¶31 Sansing’s impairment argument fails on yet another basis.

Sansing admitted and stipulated to facts that leave no doubt that
18

he attempted to avoid detection. After beating and hog-tying

Trudy, Sansing left and moved her truck away from the apartment.

When Pastor Becker called the Sansing home, inquiring about Trudy’s

whereabouts, Sansing gave him a false address and told him that

Trudy never arrived. Additionally, Sansing’s ten-year-old son told

the police Sansing washed blood from the club that he used to

strike Trudy. These steps, which can only be regarded as part of

an attempt to avoid detection, negate any possibility that a

reasonable jury would find that Sansing’s capacity to appreciate

the wrongfulness of his conduct was significantly impaired. See,

e.g., Poyson, 198 Ariz. at 80 ¶ 35, 7 P.3d at 89 (finding that

defendant’s attempt to conceal the crime indicates he could

appreciate the wrongfulness of his actions); State v. Zaragoza, 135

Ariz. 63, 71, 659 P.2d 22, 30 (1983) (“The fact that appellant

tried to dispose of evidence or instrumentalities suggests that he

did appreciate the wrongfulness of his conduct.”)

¶32 Given Sansing’s failure to present any evidence

sufficient to show significant impairment, this case differs from

State v. Hoskins, 204 Ariz. 572, 574 ¶ 7, 65 P.3d 953, 955 (2003),

and State v. Pandeli, 204 Ariz. 569, 572 ¶ 10, 65 P.3d 950, 953

(2003), in which we could not conclude, beyond a reasonable doubt,

that a reasonable jury would have failed to have found statutory

mental impairment. In both Pandeli and Hoskins, the defendants
10 Hoskins’ expert witness testified that he suffered from

Bipolar II disorder. 204 Ariz. at 574 ¶ 7, 65 P.3d at 955.

Pandeli’s expert testified that he suffered from paranoid

schizophrenia and post traumatic stress disorder. 204 Ariz. at 572

¶ 10, 65 P.3d at 953.

19

presented expert testimony regarding their impairment.10 Hoskins,

204 Ariz. at 574 ¶ 7, 65 P.3d at 955; Pandeli, 204 Ariz. at 572 ¶

10, 65 P.3d at 953. Importantly, in both cases, the experts

testified that the defendants’ various disorders could have

contributed to their conduct. Hoskins, 204 Ariz. at 574 ¶ 7, 65

P.3d at 955; Pandeli, 204 Ariz. at 572 ¶ 10, 65 P.3d at 953. Thus,

both Pandeli and Hoskins met their burden of production. Because

the State refuted both Pandeli’s and Hoskins’ expert testimony, a

credibility issue existed. We could not conclude beyond a

reasonable doubt that a jury would have assessed Pandeli’s and

Hoskins’ expert testimony as did the judge and thus could not hold

the error harmless. Here, in contrast, Sansing failed to meet his

burden of production.

¶33 We further conclude beyond a reasonable doubt that any

reasonable jury would have rejected Sansing’s age as a statutory

mitigating circumstance. Sansing was thirty-one when he committed

these violent acts. He was a married man and a father of four. No

reasonable jury would have accorded his age any mitigating weight.

¶34 Sansing offered his impaired capacity, age, difficult

childhood, lack of education, acceptance of responsibility and

remorse, potential for rehabilitation/lack of future dangerousness,
20

family support, and the victim’s family’s request that Sansing not

be sentenced to death as non-statutory mitigating circumstances.

Although the trial court did not find that Sansing was

significantly impaired within the meaning of A.R.S. section 13-

703.G.1, the court did find that Sansing’s impairment qualified as

a non-statutory mitigating circumstance. For the reasons discussed

above, see supra ¶¶ 28-31, we find beyond a reasonable doubt that

no reasonable jury could have accorded the impairment claim more

than minimal weight.

¶35 The court also considered Sansing’s difficult childhood,

acceptance of responsibility and remorse, lack of education, and

family support as a non-statutory mitigating circumstances. The

court rejected Sansing’s argument that his age, potential for

rehabilitation/lack of future dangerousness, and the victim’s

family’s sentencing request constituted non-statutory mitigating

circumstances.

¶36 We conclude beyond a reasonable doubt that a reasonable

jury would have found the mitigating non-statutory evidence not

sufficiently substantial to call for leniency. Sansing presented

evidence that his parents divorced when he was young, that he had

basically no relationship with his biological father, and that he

did not complete high school and achieved poor grades. A jury

might have concluded that Sansing established a difficult, although

not abusive, childhood and lack of education. Sansing, however,
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did not demonstrate any causal link between his crimes and his

childhood and lack of education. Therefore, a reasonable jury

could have accorded these two factors only minimal weight. We

assume, for purposes of this opinion, that a reasonable jury would

have accorded some weight to Sansing’s family’s love and support

and to the fact that he accepted responsibility for his crime.

¶37 Given the shocking circumstances of this crime, no

reasonable jury could have given more than minimal weight to

Sansing’s argument that he presents no future threat. Sansing

presented no evidence to support this claim and instead relied upon

the fact that he would be incarcerated. Moreover, no reasonable

jury could have accorded mitigating weight to the victim’s family’s

request that he be given a life sentence: A victim’s sentencing

request is not proper mitigation evidence and therefore a jury

could not have considered it. Lynn v. Reinstein, 205 Ariz. 186,

191 ¶ 17, 68 P.3d 412, 417 (2003) (A victim’s “statements regarding

sentencing... violate the Eighth Amendment, and therefore are

prohibited.”); Trostle, 191 Ariz. at 22, 951 P.2d at 887 (Victim’s

recommendation “is irrelevant to either the defendant’s character

or the circumstances of the crime and is therefore not proper

mitigation.”).

¶38 The evidence leaves no doubt that Sansing murdered Trudy

Calabrese in an especially cruel, heinous, or depraved manner. The

brutality of this murder clearly sets it apart from the norm of
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first degree murders. Collectively, the mitigating evidence is

minimal at most. We conclude beyond a reasonable doubt that any

reasonable jury would have concluded that the mitigating evidence

was not sufficiently substantial to call for leniency.

Accordingly, we hold the Ring II violation constituted harmless

error.

IV.

¶39 For the foregoing reasons, we affirm Sansing’s death

sentence.

____________________________________

Ruth V. McGregor, Vice Chief Justice

CONCURRING:

____________________________________

Rebecca White Berch, Justice

____________________________________

Michael D. Ryan, Justice

* Justice Hurwitz took no part in the consideration or decision of

this case.

J O N E S, Chief Justice, dissenting:

¶40 I respectfully dissent. In my view, the Ring II mandate
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is clear that this court, by reason of the Sixth Amendment, is not

free to affirm as harmless error a determination made solely by the

trial judge that sentencing aggravators call for the death penalty.

See Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002) (Ring

II).

¶41 The Supreme Court, in Apprendi v. New Jersey, a noncapital case, observed that an enhancement factor capable of

increasing a defendant’s sentence beyond the maximum permitted

under the jury verdict operates as “the functional equivalent of an

element of a greater offense.” 530 U.S. at 494, n.19, 120 S. Ct.

2348 (2000). The Court held that the sentence enhancement violated

Apprendi’s right to a jury determination on whether he was guilty

of every element of the crime with which he was charged, beyond a

reasonable doubt. Thus, where the enhancement factor was

determined solely and uniquely by the trial judge, the Court held

a Sixth Amendment violation had occurred.

¶42 The principle was extended to capital cases in Ring II in

which the Supreme Court stated “[b]ecause Arizona’s enumerated

aggravating factors operate as ‘the functional equivalent of an

element of a greater offense,’ the Sixth Amendment requires that

they be found by a jury.” Ring II, 536 U.S. at ___, 122 S. Ct. at
24

2443 (citation omitted).

¶43 Ring II thus instructs that under the Sixth Amendment a

jury must determine an aggravator which exposes a defendant in a

capital case to a penalty exceeding the maximum he would receive if

punished according to the facts reflected in the jury verdict

alone.

¶44 Today the majority concludes, notwithstanding

Apprendi/Ring, that factual findings by the judge alone on capital

aggravators may nevertheless be allowed to stand on the basis that

the constitutional violation is harmless. I disagree. The right

to jury trial under the Sixth Amendment is fundamental, and because

total jury deprivation occurred in the phase of Sansing’s trial

that resulted in the capital sentence, the error cannot be deemed

harmless. Error of such magnitude undermines the very structure of

the process. In light of Ring II, I do not believe this court is

authorized to speculate on what a jury might have done. We cannot,

with propriety, substitute our judgment on factual issues so

critical to a defendant facing a possible death sentence.

¶45 Nor can I accept the premise, advanced by the State, that

the instant case is controlled or influenced by Neder v. United

States, 527 U.S. 1, 119 S. Ct. 827 (1999). Neder is a different
25

case. There, the error stemmed from a jury instruction that failed

to provide direction on a prosecutorial issue in the government’s

substantive case. But evidence against Neder had been properly

introduced on the issue in question, and the jury did deliberate

and reach a verdict that necessarily included resolution of that

issue. Moreover, the issue appears to have been uncontested.

Accordingly, the Supreme Court found error, but reviewed it under

a harmless standard. The error was viewed and treated as

inconsequential because the jury heard all the evidence and its

determinations were predicated on a completed record. Conversely,

in the instant case, the jury neither heard the evidence in support

of the aggravating factors nor did the jury deliberate thereon or

make the ultimate factual determination that resulted in the

defendant’s capital sentence.

¶46 I would remand the case for jury resentencing, strictly

on the basis of the Sixth Amendment violation. See also State v.

Ring, 204 Ariz. 534, ___, ¶¶ 105-14, 65 P.3d 915, 946-48 (2003)

(Feldman, J., concurring in part, dissenting in part) (Ring III).

____________________________________

Charles E. Jones, Chief Justice
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