SUPREME COURT OF ARIZONA 

STATE OF ARIZONA, ) Arizona Supreme Court 

) No. CR-01-0270-AP 

Appellee, ) 

) 

 v ) Maricopa County Superior 

) Court 

CHRISTOPHER GEORGE THEODORE ) No. CR1996-011714 

LAMAR, ) 

) S U P P L E M E N T A L 

Appellant. ) O P I N I O N

) 

___________________________________) 

Appeal from the Superior Court of Maricopa County 

No. CR1996-011714 

The Honorable Stephen A. Gerst 

AFFIRMED IN PART; REMANDED FOR RESENTENCING 

_________________________________________________________________ 

JANET NAPOLITANO, FORMER ARIZONA ATTORNEY GENERAL Phoenix 

TERRY GODDARD, ARIZONA ATTORNEY GENERAL 

 By Kent E. Cattani, Chief Counsel 

 Capital Litigation Section 

 Robert L. Ellman, Assistant Attorney General 

Attorneys for the State of Arizona 

SUSAN M. SHERWIN, MARICOPA COUNTY Phoenix 

OFFICE OF THE LEGAL ADVOCATE 

 By Tennie B. Martin, Formerly with Maricopa Office of 

 Legal Advocate 

 Brent E. Graham, Formerly with Maricopa County Office 

of Legal Advocate 

 Thomas J. Dennis, Deputy Legal Advocate 

Attorneys for Christopher George Theodore Lamar 

_________________________________________________________________ 

M c G R E G O R, Chief Justice 

¶1 The primary issue before us is whether reversible error 

occurred when a trial judge sentenced Christopher George Theodore 

Lamar to death under a procedure that violated Ring v. Arizona, 536 

U.S. 584 (2002) (Ring II). In addition, we must determine whether 
2

the imposition of an aggravated sentence for Lamar’s kidnapping 

conviction violated Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 

2531 (2004). We exercise jurisdiction pursuant to Article VI, 

Section 5.3 of the Arizona Constitution and Arizona Revised 

Statutes (A.R.S.) section 13-4031 (2001). Based on our review of 

the record, we cannot conclude that the Ring II violation 

constituted harmless error. We find no Blakely error present in 

Lamar’s non-capital, aggravated sentence for kidnapping. 

I.

¶2 Lamar met and became involved with Myla Hogan in April 

1996. While the two were dating, Hogan lived in a house on Eightyfirst Avenue in Peoria, Arizona, with several other people, 

including Mary Keovorabouth, Ouday “Tim” Panmany, Vincent 

Macchirella, Richard Valdez, and Abraham Hermosillo. 

¶3 Prior to May 11, 1996, the group devised a plan to kidnap 

and rob Ronald Jones. On May 11, Hogan called Jones’s pager to 

invite him to lunch. When Hogan and Jones returned to the house on 

Eighty-first Avenue after lunch, Lamar and the others were waiting 

for Jones. Lamar punched Jones. After Jones fell to the floor, 

Macchirella pointed a gun at him, and Hermosillo bound Jones’s 

hands and ankles with duct tape. The group then held Jones captive 

at gunpoint for several hours. 

¶4 When it became dark, Lamar forced Jones into the front 

passenger seat of Jones’s car. Lamar directed Macchirella to drive 

to Lamar and Hermosillo’s old neighborhood. Lamar sat behind Jones 
3

in the car. At one point, Lamar held the gun to Jones’s head and 

pulled the trigger, but the gun did not fire. Eventually, Lamar 

directed Macchirella to stop the car. The three men exited the 

vehicle and walked to the back of the car. Lamar then shot Jones. 

The medical examiner testified that Jones suffered two gunshot 

wounds to the head. Lamar and his accomplices then buried Jones’s 

body and set his car on fire.1

¶5 A jury found Lamar guilty of kidnapping and first degree 

murder on both premeditated and felony murder theories. Following 

the jury=s guilty verdict, the trial judge conducted a sentencing 

hearing to determine whether any aggravating or mitigating 

circumstances existed. A.R.S. § 13-703 (2001). The judge found 

beyond a reasonable doubt the presence of three aggravating 

circumstances: (1) Lamar murdered Jones in expectation of the 

receipt of pecuniary gain, A.R.S. § 13-703.F.5; (2) Lamar murdered 

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

13-703.F.6; and (3) Lamar committed first degree murder while he 

was on supervised release, A.R.S. § 13-703.F.7. The judge found 

that Lamar failed to establish any statutory mitigating 

circumstances, A.R.S. § 13-703.G, but found Lamar established three 

non-statutory mitigating circumstances: (1) mental health issues; 

(2) dysfunctional family; and (3) good character. The judge 

determined that the mitigating circumstances were not sufficiently 

 1

 See State v. Lamar, 205 Ariz. 431, 433-35 ¶¶ 3-20, 72 

P.3d 831, 833-35 (2003), for a more detailed account of the facts. 
4

substantial to outweigh the aggravating circumstances and therefore 

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

¶6 We affirmed Lamar’s convictions on his direct appeal. 

Lamar, 205 Ariz. at 442 ¶ 56, 72 P.3d at 842. This supplemental 

opinion reviews only Lamar=s sentences. Lamar raises several 

arguments to challenge his death sentence. We conclude that the 

Ring II violation requires that Lamar must be resentenced for his 

first degree murder conviction. 

¶7 In light of our holding that Lamar must be resentenced, 

most of the sentencing issues raised by Lamar are moot. Lamar’s 

argument that the F.7 aggravating circumstance does not apply to 

persons on release from federal, rather than state prison, however, 

may arise at resentencing. Therefore, we address that issue. 

II.

¶8 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. The Court declared that 

“[c]apital defendants, no less than noncapital defendants . . . are 

entitled to a jury determination of any fact on which the 

legislature conditions an increase in their maximum punishment.” 

Id. at 589. 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 
5

609. 

¶9 Following the Supreme Court’s decision, we consolidated 

all death penalty cases in which this court had not yet issued a 

direct appeal mandate to determine whether Ring II requires this 

court 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. 

III.

¶10 The State concedes that application of this court’s 

decision in Ring III requires that this matter be remanded for 

resentencing because we cannot conclude, beyond a reasonable doubt, 

that no reasonable jury would have failed to find the F.5 factor 

established or that no reasonable jury would have reached 

conclusions about the mitigating factors different than those of 

the trial judge. 

A.

¶11 To establish the F.5 aggravating circumstance, the state 

must prove that “[t]he defendant committed the offense as 

consideration for the receipt, or in expectation of the receipt, of 

anything of pecuniary value.” A.R.S. § 13-703.F.5 (Supp. 2003). 

The pecuniary gain aggravating circumstance exists only “if the 

expectation of pecuniary gain is a motive, cause, or impetus for 
6

the murder and not merely a result of the murder.” State v. Hyde, 

186 Ariz. 252, 280, 921 P.2d 655, 683 (1996). Proving that a 

defendant both robbed and murdered his victim does not satisfy the 

state’s burden. See State v. Medina, 193 Ariz. 504, 513 ¶ 32, 975 

P.2d 94, 103 (1999) (“The existence of an economic motive at some 

point during the events surrounding a murder is not enough to 

establish (F)(5).”). The state also must establish a motivating

connection between the robbery and the homicide. Id. 

¶12 The trial judge found that one of the primary motivations 

for the murder was the robbery of the victim and the theft of the 

victim’s money or drugs. The State, while arguing that the 

evidence supports the trial judge’s finding that one of Lamar’s 

primary motivations was pecuniary, concedes that a reasonable 

factfinder could reach a contrary conclusion. We agree that a 

reasonable factfinder could find or could fail to find a pecuniary 

motive. Accordingly, we conclude that the pecuniary gain finding 

was not harmless error. 

B. 

¶13 To establish the F.7 aggravating circumstance, the state 

must prove that “[t]he defendant committed the offense while . . . 

[i]n the custody of or on authorized or unauthorized release from 

the state department of corrections, a law enforcement agency or a 

county or city jail.” A.R.S. § 13-703.F.7.a (Supp. 2003). Fred 

Chilese, a supervisor from the United States Probation Department, 

testified that Lamar was convicted in federal court of possession 
7

with intent to distribute cocaine and that his sentence included 

thirty-six months of supervised release commencing upon Lamar’s 

release from the Federal Bureau of Prisons. Furthermore, the State 

introduced documentary evidence to corroborate Chilese’s testimony. 

Lamar was released from prison on March 21, 1996, and less than two 

months later, while on supervised release, murdered Jones. 

¶14 Lamar did not challenge these facts at trial or on 

appeal. Lamar asserts, however, that the F.7.a aggravating factor 

cannot apply to him because he was not on authorized or 

unauthorized release from a state department of corrections when he 

murdered Jones. We agree with Lamar that the Federal Bureau of 

Prisons is not a state department of corrections, but we disagree 

with Lamar’s assertion that the F.7 factor does not apply to him. 

¶15 The Department of Justice controls the Federal Bureau of 

Prisons. See Bureau of Prisons Act, ch. 274, 46 Stat. 325 (1930) 

(“there is hereby established in the Department of Justice a Bureau 

of Prisons”); see also 18 U.S.C. § 4041 (Supp. 2004) (“The Bureau 

of Prisons shall be in charge of a director appointed by and 

serving under the Attorney General.”); Moore v. Olson, 368 F.3d 

757, 758 (7th Cir. 2004) (“The Department of Justice . . . operates 

the Federal Bureau of Prisons . . . .”). The Department of Justice 

qualifies as a law enforcement agency. See, e.g., United States v. 

El-Sayegh, 131 F.3d 158, 163 (D.C. Cir. 1997) (referring to “the 

Department of Justice or other law enforcement agencies”); United 

States v. Escalante, 554 F.2d 970, 975 (9th Cir. 1977) (mentioning 
8

“federal law enforcement agencies, including the Department of 

Justice”); United States v. Juarez-Rodriguez, 568 F.2d 120, 

124 (9th Cir. 1976) (same); Roney v. United States, 790 F. Supp. 

23, 28 (D.D.C. 1992) (same). Because the Federal Bureau of Prisons 

falls within the Department of Justice and because the Department 

of Justice is a “law enforcement agency,” it follows that the 

Federal Bureau of Prisons is a “law enforcement agency” under the 

terms of A.R.S. § 13-703.F.7. We therefore reject Lamar’s legal 

assertion that federal supervised release does not fall under the 

purview of the F.7 aggravating factor. 

¶16 Our interpretation of A.R.S. § 13-703.F.7 not only 

follows the language of the statute but also effectuates 

legislative intent. “In statutory interpretation the primary 

principle is to determine and give effect to the legislative intent 

behind the statute.” Martin v. Martin, 156 Ariz. 452, 457, 752 

P.2d 1038, 1043 (1988). If we were to adopt Lamar’s reading of the 

statute, then the F.7 aggravating circumstance would apply to 

individuals who committed offenses while on release from a state 

correctional institution but not from a federal correctional 

institution. We do not think the legislature intended to punish 

more severely individuals on release from state correctional 

institutions than those on release from the Federal Bureau of 

Prisons. 

¶17 We now turn to the question of whether a jury must 

determine whether the state has established the F.7 aggravating 
9

factor. In Ring III, we held that the Sixth Amendment does not 

require a jury to determine aggravating circumstances for prior 

convictions under section 13-703.F.1 and F.2. 204 Ariz. at 556 

¶ 55, 65 P.3d at 937. We did not, however, address the aggravating 

circumstance for offenses committed while on release from a state 

corrections department or law enforcement agency. 

¶18 In reaching our decision in Ring III regarding the F.1 

and F.2 aggravating circumstances, we reasoned that 

[t]he characteristic of a prior conviction aggravating 

circumstance that sets it apart from other circumstances 

is that the original criminal proceeding, through either 

a guilty plea or a verdict of guilt, established the 

circumstance. No additional benefit derives from having 

a jury re-find an aggravating circumstance already 

established through a guilty plea or a jury verdict. 

Id. at 558 ¶ 65, 65 P.3d at 939. In contast to situations 

involving the F.1 and F.2 aggravating circumstances, no jury has 

found the underlying facts necessary to establish the F.7 

aggravating circumstance. A dispute may arise as to whether the 

individual who committed the offense was in custody at the time of 

the offense due to questions as to the date(s) of the offense(s) in 

relationship to the date of custody or release. Thus, we hold that 

the Sixth Amendment requires a jury to determine whether the 

defendant committed the offense while in the custody of or on 

authorized release from the state department of corrections, a law 

enforcement agency, or a county or city jail. 

¶19 In this case, however, Lamar did not submit any evidence 

nor did he present any arguments challenging any of the underlying 
10

facts regarding the F.7 aggravating circumstance. He claims only 

that the statute does not apply to individuals on release from the 

Federal Bureau of Prisons. In Ring III, we held that “[w]hen a 

defendant simply fails to challenge an aggravating circumstance at 

the penalty phase, the state retains the burden of proving the 

aggravator’s existence beyond a reasonable doubt. Our inquiry then 

becomes whether the state has met its burden.” Id. at 563 ¶ 94, 65 

P.3d at 944 (citation omitted). Here, despite the error, we 

conclude that the State has met its burden and proved beyond a 

reasonable doubt that Lamar was on authorized release from the 

Federal Bureau of Prisons at the time that he committed his 

offense. Any error as to this factor, therefore, is harmless. Id. 

at 552 ¶ 45, 65 P.3d at 933. 

IV. 

¶20 The trial judge found that Lamar failed to prove, by a 

preponderance of the evidence, any statutory mitigating 

circumstances. Lamar asserts that he presented sufficient 

evidence, through expert witness testimony, to allow a reasonable 

factfinder to conclude that he suffered from an impairment of brain 

function that rendered him significantly impaired. A.R.S. § 13-

703.G.1. 

¶21 The trial judge found that Lamar established three nonstatutory mitigating circumstances: (1) mental health issues; (2) 

dysfunctional family; and (3) good character. The judge rejected 

the following non-statutory mitigating circumstances: (1) residual 
11

doubt; (2) acting under the influence of drugs and/or alcohol; (3) 

ability to be rehabilitated; and (4) culpability of others/ 

sentencing disparity. 

¶22 The State concedes that the record does not allow us to 

conclude, beyond a reasonable doubt, that a jury would have 

assessed the defense expert’s testimony and opinion similarly and 

would have failed to accord more weight to the expert’s testimony. 

A different finding of mitigating circumstances could affect a 

factfinder’s determination whether the mitigating circumstances are 

“sufficiently substantial to call for leniency.” Id. § 13-703.E. 

We cannot conclude, therefore, that the Ring II error was harmless 

in this case. 

V. 

¶23 Lamar was also convicted of kidnapping. The trial judge 

made a finding of dangerousness pursuant to A.R.S. § 13-604.I 

(Supp. 1996)2

 and sentenced Lamar to an aggravated term of twenty-

 

2 Lamar does not challenge the trial judge’s finding of his 

eligibility to be sentenced under A.R.S. § 13-604 (Supp. 1996). We 

note, however, that the Apprendi/Blakely line of cases does not 

prevent Lamar from falling within that section. A defendant is 

eligible for sentencing under section 13-604.I if he is convicted 

“of a class 2 or 3 felony involving discharge, use or threatening 

exhibition of a deadly weapon or dangerous instrument or [is 

convicted] of a class 2 or 3 felony when the intentional or knowing 

infliction of serious physical injury upon another has occurred.” 

A.R.S. § 13-604.I. Kidnapping is a class 2 felony. A.R.S. § 13-

1304 (1989). Serious physical injury is defined as, among other 

things, “physical injury which creates a reasonable risk of death.” 

 A.R.S. § 13-105.34 (1989). The jury found, beyond a reasonable 

doubt, that Lamar murdered the victim of his kidnapping. Thus, it 

is implicit in the jury’s verdict that Lamar inflicted serious 
12

one years, finding seven statutory aggravating factors pursuant to 

the terms of A.R.S. § 13-702 (Supp. 1996).3

 In a second 

supplemental brief, Lamar alleged for the first time that his noncapital sentences were imposed in violation of the United States 

Supreme Court’s decision in Blakely. In sum, Lamar argues that the 

failure of a jury to find, beyond a reasonable doubt, the existence 

of those aggravating factors, violated his Sixth Amendment right to 

a jury trial. 

¶24 In Blakely, the United States Supreme Court held that any 

fact legally essential to enhance a defendant’s non-capital 

sentence beyond the statutory maximum for his crime must be proven 

to a jury beyond a reasonable doubt. Id. at __, 124 S. Ct. at 

2543. Failure to do so violates the defendant’s Sixth Amendment 

right to a jury trial. Id. 

¶25 Lamar was sentenced under A.R.S. § 13-604.I, which 

provides for a presumptive term of ten and one-half years. That 

section also provides a maximum aggravated term of up to twenty-one 

 

injury upon the victim of his kidnapping, see Ring v. Arizona, 204 

Ariz. 534, 559-60 ¶ 74, 65 P.3d 915, 940-41 (2003), and he is 

eligible for sentencing under section 13-604.I. 

3 The judge found the following: that Lamar had inflicted or 

threatened the infliction of serious physical injury, A.R.S. § 13-

702.C.1 (Supp. 1996), that Lamar had used or threatened to use a 

deadly weapon or dangerous instrument, § 13-702.C.2, that Lamar had 

committed his crime with the help of an accomplice, § 13-702.C.4, 

that Lamar had committed his offense in an especially heinous, 

cruel, and depraved manner, § 13-702.C.5, that Lamar had committed 

the offense for pecuniary gain, § 13-702.C.6, that Lamar’s crime 

caused emotional and financial harm to the victim, § 13-702.C.9, 
13

years. To impose an aggravated sentence, the court must consider 

A.R.S. § 13-702, subsections B, C, and D. In Lamar’s case, as 

previously noted, the trial judge did just that, finding the 

existence of seven aggravating factors. See supra n.3. One of 

those factors falls within section 13-702.C.11, because Lamar had 

been previously convicted of a felony within ten years of his 

instant offense. 

¶26 The United States Supreme Court affirmed in Apprendi that 

the fact of a defendant’s prior conviction need not be submitted to 

a jury and proven beyond a reasonable doubt. 530 U.S. 466, 489 

(2000). As we recently held in State v. Martinez, ___ Ariz. ___, 

___ P.3d ___ (2005), once a single Blakely-compliant or Blakelyexempt factor has been found, the defendant is eligible for the 

maximum penalty authorized under the sentencing statute. The trial 

judge then is free to consider additional aggravating factors in 

determining the actual sentence to impose, up to the maximum 

sentence prescribed by the sentencing statute. Id. at ___ ¶ 25, 

___ P.3d at ___. Here, because dangerousness was implicit in the 

jury’s verdict on the first degree murder charge, the trial court 

properly applied A.R.S. § 13-604.I in sentencing Lamar. Moreover, 

Lamar’s prior felony conviction was sufficient to expose him to the 

maximum sentence under that statute, twenty-one years, without 

implicating Blakely. We hold, therefore, that the trial court did 

 

and that Lamar had been convicted of a felony within ten years 

preceding the date of this offense, § 13-702.C.11. 
14

not err in imposing a twenty-one year sentence for Lamar’s 

kidnapping conviction. 

VI. 

¶27 For the foregoing reasons, we vacate Lamar’s death 

sentence and remand for resentencing under A.R.S. §§ 13-703 and 13-

703.01 (Supp. 2003). We affirm the trial court’s imposition of an 

aggravated sentence for Lamar’s kidnapping conviction. 

 

 ____________________________________ 

 Ruth V. McGregor, Chief Justice 

CONCURRING: 

_________________________________ 

Rebecca White Berch, Vice Chief Justice 

_________________________________ 

Michael D. Ryan, Justice 

______________________________________ 

Charles E. Jones, Justice (Retired)