SUPREME COURT OF ARIZONA 

En Banc 

 

KERBY JAMES MCKANEY, ) Arizona Supreme Court 

 ) No. CV-04-0032-SA 

 Petitioner, ) 

 ) Maricopa County 

 v. ) Superior Court 

 ) No. CR 2001-011445 

HON. JOHN FOREMAN, JUDGE OF THE ) 

SUPERIOR COURT, in and for the ) 

County of Maricopa, ) 

 ) 

 Respondent, ) O P I N I O N 

 ) 

 ) 

STATE OF ARIZONA, ) 

 ) 

 Real Party in Interest. ) 

 ) 

__________________________________) 

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 Phoenix 

 By Vikki M. Liles, Deputy Public Defender 

Attorneys for Petitioner 

Richard M. Romley, Maricopa County Attorney Phoenix 

 By Paul J. McMurdie, Deputy County Attorney 

Attorneys for Real Party in Interest 
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 Kerby McKaney was indicted August 2, 2001 on two 

counts of first degree murder, one count of first degree 

burglary, one count of sexual assault, and two counts of 

kidnapping.1

 On October 1, 2001, the State gave notice of intent 

to seek the death penalty on the two murder charges, and on 

October 22, 2002, gave notice of intent to prove three 

aggravating factors, namely, prior conviction of a 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 November 5, 2003, McKaney moved to dismiss the 

State’s notice of intent and notice of aggravating 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 this petition for special action. We 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 McKaney’s argument that the aggravating factors must 

be alleged in the indictment and supported by evidence of 

probable cause is based on the Due Process Clause of the 

Fourteenth Amendment to the United States 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 In Apprendi, the defendant, having fired gunshots into 

the 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 of unlawful possession of a 

3
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.” Id. at 469. 

¶6 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. Id. 

at 471. 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 held 

unconstitutional Arizona’s capital sentencing scheme. 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. Ring, 536 U.S. at 

609. The Court, echoing Apprendi, 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.” Id. 

(citation omitted). 

B.

¶9 In the aftermath of Apprendi and Ring, many 

jurisdictions faced the issue we now 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 charging document and be supported by sufficient 

evidence of probable cause. The vast majority of state 

jurisdictions have held they do not, and we agree. 

5
¶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 courts require, under the Fifth Amendment, that 

aggravators be alleged in an indictment and supported by 

probable cause, United States v. Cotton, 535 U.S. 625, 627 

(2002), the same requirement is inapplicable to prosecutions in 

our state courts. Two principal reasons are given. First, the 

Fifth Amendment’s guarantee of indictment by a grand jury, 

applicable solely to the federal government, is not subject to 

6
the strictures of the Fourteenth Amendment. Alexander v. 

Louisiana, 405 U.S. 625, 633 (1972) (“[T]he Due Process 

Clause . . . [of the Fourteenth Amendment] does not require the 

States to observe the Fifth Amendment’s provision for 

presentment or indictment by a grand jury.”). 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 defendant receive 

adequate notice of the charges against him. 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). In the instant case, McKaney does not contend, 

nor could he reasonably contend, that Arizona’s rules of 

criminal procedure afford less than sufficient 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. Ariz. Const. art. 2, § 30. This court has held, 

pursuant to state due process 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 to require proof of aggravating factors under an 

unduly expanded and non-essential due process standard in 

determining the scope of the “information or indictment” clause 

of the Arizona Constitution. Art. II, § 30. 

¶17 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 aggravating factors be pled in a state court 

indictment); Soto v. Commonwealth, 2004 WL 867447, 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 for capital murder puts a 

 

4 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 Jersey alone has adopted the position McKaney 

urges. 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.” Id. at 1027; see N.J. Const. art. 1, ¶ 8. 

¶19 The 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 as 

providing lesser protection than its federal analogue.” 843 

A.2d at 1035 (internal citations omitted). 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.” Id. 

¶20 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 the 

defendant’s guilt or innocence and to fix the sentence. In the 

latter, we address simply the adequacy of notice. The

difference is significant. Indeed, in this very case, 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. Thus, “the 

jury [would] view the claimed aggravating factors prior to 

determining whether the defendant is guilty of any crime 

. . . .” Id. The court observed that “while redactions 

arguably could be made for this purpose, why require adding 

something to the indictment which will often have to be

redacted?” Id. 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. First, as we 

13
have noted earlier, the federal constitution’s “corresponding 

clause” does not apply to the states and, as a result, affords 

no protection at all to McKaney or similarly situated 

defendants. The question before us is simply whether the 

Arizona Constitution requires that the State allege specific 

aggravators in a charging document. Arizona has never required 

that such factors be alleged in an indictment or information, so 

today’s decision neither reduces nor minimizes a right 

previously afforded criminal defendants. Rather, today’s 

opinion simply retains Arizona’s long-accepted view 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 of Arizona is accorded notice under the rules of 

criminal procedure that complies with constitutional 

requirements. 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 of 

jury trial applies when legislature adds an “element” to a 

criminal offense in response to Supreme Court’s constitutional 

adjudication); id. at 609 (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 Department sought superseding indictments in all pending 

capital cases setting forth the alleged aggravating 

circumstances that would make the defendant eligible for the 

death penalty. Robinson, 367 F.3d at 284 n.6. 

¶29 The majority 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.” State v. Casey, 205 Ariz. 359, 

362 ¶ 11, 71 P.3d 351, 354 (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 differently than their federal 

counterparts. 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). But no 

such reasons are present here. The pertinent language in the 

Fifth Amendment is analytically indistinguishable from the 

language in Article II, Section 30. 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. See Ariz. R. 

Crim. P. 13.5(c) (providing that the filing of such a list 

amends the charging document). 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.” Campbell 

v. Louisiana, 523 U.S. 392, 399 (1998).5

 See Maretick, 204 Ariz. 

 

5 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 Under today’s decision, this constitutional protection 

is 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 that put a defendant in peril of capital 

punishment. We would not countenance such a result in other 

areas. 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 unilaterally amend the 

indictment to allege aggravated assault. 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. For all cases already tried, any failure to have 

included the aggravating circumstances in the indictment is 

almost surely harmless error. 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 short, there is no warrant, either in settled 

doctrines of constitutional interpretation or in practical 

terms, for the Court’s conclusion today that Article II, Section 

30 has less content than the Fifth Amendment to the United 

States Constitution. 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. “The special action requests extraordinary 

 

determine whether there is probable cause to believe the 

21
relief, and acceptance of jurisdiction of a special action is 

highly discretionary with the court to which the application is 

made.” State Bar Committee Note, Ariz. R.P. Spec. Act. 3. 

Before granting such extraordinary relief, we 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. As the 

Court accurately holds, he cannot complain that he has not 

received sufficient notice for due process purposes of the 

alleged aggravating circumstances. 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: he may, through the vehicle of a pre-trial Rule 

16 motion, “challenge the legal sufficiency of an alleged 

aggravating circumstance.” 

¶37 Under the Rule 13.5(c) procedure, a defendant claiming 

that there was no probable cause to support an alleged 

aggravator alleged under Rule 15.1(i)(1) is entitled 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 as to whether the aggravating 

circumstances alleged by the State are based upon probable 

cause. 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
24