IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,

Plaintiff/Petitioner,

v.

BEAU JOHN GREENE,

Defendant/Respondent.

No. CR-21-0082-PC

Filed April 14, 2023

On Review from the Superior Court in Pima County 

The Honorable Wayne E. Yehling, Judge

No. CR048730-001

REVERSED

COUNSEL:

Kristin K. Mayes, Arizona Attorney General, Jeffrey L. Sparks, Chief 

Counsel, Ginger Jarvis (argued), Assistant Attorney General, Phoenix, 

Attorneys for State of Arizona

Todd Jackson (argued), Meighan LaFata, Jackson & Oden, PLLC, Tucson, 

Attorneys for Beau John Greene

Mikel Steinfeld, Arizona Attorneys for Criminal Justice, Phoenix, Attorney 

for Amicus Curiae Arizona Attorneys for Criminal Justice
STATE V. GREENE

Opinion of the Court 

2

JUSTICE MONTGOMERY authored the Opinion of the Court, in which 

CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and 

JUSTICES BOLICK and KING joined.

∗

JUSTICE MONTGOMERY, Opinion of the Court:

¶1 We consider in this case whether legislative amendments to 

A.R.S. § 13-751(F)(5), enacted in 2019, provide a basis for post-conviction 

relief (“PCR”) under Arizona Rule of Criminal Procedure 32.1(a), (c), (g), 

and (h) for a sentence of death imposed in 1996. Because the amendments 

are prospective only and the 1996 sentence is constitutional under the 

United States and Arizona Constitutions, we hold they do not provide a 

basis for relief.

I. HISTORICAL BACKGROUND

A. Murder, Conviction, and Sentence

¶2 Beau John Greene murdered University of Arizona music 

professor Roy Johnson on February 28, 1995, beating him to death in 

Johnson’s car and then abandoning his body in the desert. State v. Greene, 

192 Ariz. 431, 435 ¶¶ 2, 5 (1998). Johnson’s wife had expected him home 

before 10:00 p.m., but he never returned. Id. ¶ 2. He was last seen the 

evening of the 28th leaving the Green Valley Presbyterian Church, where 

he had given an organ recital. Id. On the night of the murder, “Greene 

and Johnson crossed paths, but the record does not tell us how.” Id. ¶ 4. 

Four days later, Johnson’s body was discovered “lying face down in a 

wash.” Id. ¶ 2.

¶3 After dumping Johnson’s body in the wash, Greene stole his 

car and wallet and embarked on a “spending spree using Johnson’s cash 

and credit cards.” Id. ¶ 8. Greene purchased “clothes, food, camping 

gear, a scope and air rifle, and a VCR (which he later traded for 

methamphetamine)” while feigning injury to his hand to “explain any 

discrepancies between his signature and those on the credit cards.” Id.

¶4 A jury convicted Greene of first degree murder—felony and

premeditated—robbery, kidnapping, theft, and six counts of forgery. Id.

∗ Justices John R. Lopez IV and James P. Beene are recused from this case.
STATE V. GREENE

Opinion of the Court 

3

at 434–35 ¶ 1. The trial court sentenced him to death for the murder of 

Johnson based on two aggravating circumstances: (1) the murder was 

committed for pecuniary gain, A.R.S. § 13–703(F)(5) (1996); and (2) the 

murder was committed in an especially heinous or depraved manner, § 13–

703(F)(6) (1996).1 Id. at 439 ¶¶ 32–33.

B. Direct Appeal

¶5 This Court affirmed Greene’s convictions on direct appeal for 

first degree murder, robbery, theft, and forgery, and affirmed his death 

sentence. Id. at 435 ¶ 1. As to the robbery count, the Court considered 

whether the trial court erred in denying Greene’s motion for a directed 

verdict. Id. at 436 ¶ 12. Greene argued there was “no direct evidence 

that he intended to take the victim’s property at the time he used force.” 

Id. at 437 ¶ 13. This Court noted, though, that “[a]fter stealing Johnson's 

car, and within hours after killing him, he began spending Johnson’s money 

and using his credit cards.” Id. ¶ 14. Therefore, in conjunction with the 

evidence at the crime scene, the Court concluded that “[a] rational trier of 

fact could have found beyond a reasonable doubt that Greene’s use of force 

against Johnson was accompanied by an intent to take Johnson’s property.” 

Id. ¶ 15.

¶6 The Court reversed the kidnapping conviction because there 

was no evidence that “Greene, while in the car, knowingly restrained 

Johnson before bludgeoning him, or whether he simply chose to strike him 

at an opportune moment.” Id. ¶¶ 17–18; A.R.S. § 13-1304(A)(3) (requiring 

that a defendant knowingly restrain a victim with intent to “[i]nflict death, 

physical injury or a sexual offense . . ., or to otherwise aid in the commission 

of a felony” for a kidnapping conviction).

¶7 The Court likewise reversed the trial court’s finding that the 

murder was especially heinous or depraved under the (F)(6) aggravating 

circumstance based on “relishing, senselessness, and helplessness” because 

there was insufficient evidence that “Greene relished the murder beyond a 

reasonable doubt” at the exact moment he murdered Johnson. Id. at 440–

1 Citations to statutes and rules are to current versions that have not been 

materially altered unless otherwise noted. In 2008, § 13-703 was amended 

and renumbered as § 13-751. 2008 Ariz. Sess. Laws ch. 301, §§ 26, 38 (2d

Reg. Sess.).
STATE V. GREENE

Opinion of the Court 

4

41 ¶¶ 33, 42. The Court therefore concluded that “[a]bsent a finding of 

relishing, the (F)(6) aggravator cannot stand, because senselessness and 

helplessness, without more, are ordinarily insufficient to prove heinousness 

or depravity.” Id. at 441 ¶ 42.

¶8 With respect to the (F)(5) pecuniary gain aggravating 

circumstance, the Court observed that “Greene’s actions after the murder 

also demonstrate[d] a pecuniary motive.” Id. at 439 ¶ 30. The Court 

recounted evidence of “Greene’s admitted need for money, drugs, and 

transportation.” Id. ¶ 29. Combined with the evidence that Greene “had 

[Johnson’s] wallet with him when he left the wash immediately following 

the murder,” it was clear that Greene “intended to profit from the murder 

no later than the moment he picked up the object to kill Johnson.” Id.

¶¶ 28–29, 32. Therefore, “[t]he evidence support[ed] beyond a reasonable 

doubt a finding that Greene, coming off of methamphetamine and 

penniless, killed Johnson to obtain cash or credit cards.” Id. ¶ 32.

C. First PCR Petition

¶9 Greene filed his first PCR petition in August 2000. He raised 

several claims of ineffective assistance of counsel, sought reevaluation of 

his death sentence, presented impeachment evidence regarding Johnson’s 

wife, and argued that he was entitled to have a jury sentence him. The 

superior court held an evidentiary hearing. Greene recounted that after 

Johnson drove them to a church parking lot, Greene left the car and put on 

a lead-lined “handmade ‘sap’ glove,”2 before returning to the car and 

beating Johnson to death with it, rather than his fists as he testified at trial. 

The court denied the PCR petition in January of 2003.

¶10 This Court denied Greene’s petition for review of that 

decision on December 5, 2003, and issued a warrant for his execution on 

2 According to Greene, the glove was “[a] thinner glove inside a larger

welding-type glove, a great big glove. And inside was [sic] little pouches of 

lead shot that had been sewn into the back of the smaller leather glove, and 

then the larger glove was sewn over that to hold everything into place.”
STATE V. GREENE

Opinion of the Court 

5

January 14, 2004. Greene’s execution was subsequently stayed on 

December 8, 2008, pending federal habeas review.3

D. Successive PCR Petition

¶11 On May 26, 2020, Greene filed this successive PCR petition in 

the superior court. Greene argued that he was entitled to relief under 

Rule 32.1(a), (c), (g), and (h) because his death sentence was now 

unconstitutional under the United States and Arizona Constitutions as a 

consequence of the 2019 legislative amendments to the (F)(5) aggravating 

circumstance. The State argued in response that Greene was not entitled 

to any relief because the amendments were prospective only and therefore 

inapplicable to his sentence and that no legal basis existed to render his 

sentence unconstitutional. 4 Following an evidentiary hearing, the 

superior court granted Greene the relief he sought for each claim under 

Rule 32.1 and vacated his sentence of death.

¶12 We granted review to address whether Rule 32.1(a), (c), (g) or 

(h) permit relief when the legislature made a prospective change to the 

definition of a capital aggravating circumstance. We have jurisdiction 

pursuant to article 6, section 5(3) of the Arizona Constitution and A.R.S.

§§ 13-4031 and 13-4239.

II. ANALYSIS

¶13 The State argues that because the (F)(5) amendments are not 

retroactive and there is no basis on which to find Greene’s sentence is 

unconstitutional, he is not entitled to any of the relief he seeks and the 

3 Greene’s habeas proceedings continue in federal court. See Greene v. 

Shinn, No. CV-03-00605-TUC-JCH, 2021 WL 3602857, at *28 (D. Ariz. 

Aug. 13, 2021) (denying relief in part and granting relief in part based on 

finding that Arizona Supreme Court used an unconstitutional causal nexus 

test to assess Greene’s mitigation evidence) (appeal stayed pending these 

proceedings).

4 The State also offered arguments concerning timeliness and preclusion. 

However, at oral argument the State acknowledged, without conceding the 

point, that it was not challenging the superior court’s rulings concerning 

the timeliness or preclusion of Greene’s claims. As the State has 

abandoned this argument, we do not address it further.
STATE V. GREENE

Opinion of the Court 

6

superior court erred in ruling otherwise. Greene argues that the superior 

court was correct in granting relief under Rule 32.1(a), (c), (g), and (h) 

because the (F)(5) amendments reflect a determination by the legislature

that a murder committed for pecuniary gain does not demonstrate the 

extreme culpability justifying the imposition of a death sentence. 

Therefore, he argues that to carry out his sentence now when his criminal 

conduct is no longer subject to capital punishment would violate the United 

States and Arizona Constitutions pursuant to the Eighth Amendment and 

article 2, section 15, respectively. Thus, Greene asserts that the 

amendments to (F)(5) are applicable to his sentence.

¶14 We review a superior court’s ruling on a PCR petition for an 

abuse of discretion, which occurs if the court makes an error of law. State 

v. Pandeli, 242 Ariz. 175, 180 ¶ 4 (2017). A superior court’s legal 

conclusions are reviewed de novo. State v. Miller, 251 Ariz. 99, 102 ¶ 8 

(2021).

¶15 Because each party’s arguments and the analysis of the 

superior court are premised on the legislature’s amendment of the former 

(F)(5) aggravating circumstance, we begin by reviewing the role of 

aggravating circumstances in capital cases and the specific amendments in 

question.

A. Aggravating Circumstances And The 2019 Amendments To (F)(5)

¶16 For a defendant to qualify for capital punishment, a jury 

must unanimously find that the state has established the existence of one or 

more aggravating circumstances listed at § 13-751(F) during the 

aggravation phase of a capital trial. A.R.S. § 13-752(E) (“If the trier of fact 

unanimously finds no aggravating circumstances, the court shall then 

determine whether to impose a sentence of life or natural life . . . .”); State v. 

Thompson, 252 Ariz. 279, 295 ¶ 53 (2022) (“[T]he death penalty cannot be 

imposed in the absence of aggravating circumstances.”). The state must 

prove the existence of an aggravating circumstance beyond a reasonable 

doubt. A.R.S. § 13-751(B). If one or more aggravating circumstances are 

proven, the matter proceeds to the penalty phase. A.R.S. § 13-752(F).

¶17 During the penalty phase, the jury “shall take into account the 

aggravating and mitigating circumstances that have been proven, and if it 

unanimously determines that there are no mitigating circumstances 
STATE V. GREENE

Opinion of the Court 

7

sufficiently substantial to call for leniency,” the jury “shall impose a 

sentence of death.“5 A.R.S. §§ 13-751(E), -752(H); see also State v. Prince, 226 

Ariz. 516, 526 ¶ 16 (2011) (discussing the “jury’s duty to ‘assess whether to 

impose the death penalty based upon each juror’s individual, qualitative 

evaluation of the facts of the case, the severity of the aggravating factors, 

and the quality of any mitigating evidence.’” (quoting State ex rel. Thomas v. 

Granville, 211 Ariz. 468, 472 ¶ 17 (2005)).

¶18 In 2019, the Arizona Legislature narrowed the statutory 

aggravating circumstances that a jury may consider in determining 

whether to impose a sentence of death by amending several provisions of 

§ 13-751(F). 2019 Ariz. Sess. Laws ch. 63, § 1 (1st Reg. Sess.). The 

amendments did not alter the first two aggravating circumstances, § 13-

751(F)(1) (prior conviction of another offense punishable by life 

imprisonment or death) and § 13-751(F)(2) (serious offense). However, 

three were completely eliminated: § 13-751(F)(3) (grave risk of death to 

another person); § 13-751(F)(13) (murder committed in cold and calculated 

manner); and § 13-751(F)(14) (use of a stun gun). Id. With respect to § 13-

751(F)(5), the legislature amended its language, combined it with the § 13-

751(F)(4) aggravating circumstance, and renumbered the new provision as 

§ 13-751(F)(3). Id. The remaining aggravating circumstances were only 

renumbered. Id.

¶19 Before 2019, (F)(4) read: “The defendant procured the 

commission of the offense by payment, or promise of payment, of anything 

of pecuniary value.” A.R.S. § 13-751(F)(4) (2018). The (F)(5) aggravating 

circumstance read: “The defendant committed the offense as consideration 

for the receipt, or in expectation of the receipt, of anything of pecuniary 

value.” § 13-751(F)(5) (2018). The new (F)(3) reads: “The defendant 

procured the commission of the offense by payment, or promise of 

payment, of anything of pecuniary value, or the defendant committed the 

offense as a result of payment, or a promise of payment, of anything of

pecuniary value.” Thus, the legislature effectively limited a jury’s 

consideration of a pecuniary gain motive for murder to circumstances of a 

murder-for-hire.

5 If the jury unanimously determines that a sentence of death is not 

appropriate, the court imposes a sentence of either life or natural life. 

A.R.S. § 13-752(H).
STATE V. GREENE

Opinion of the Court 

8 

B. Retroactivity Of (F)(5) Amendments And Greene’s Conduct

1. Retroactivity6

¶20 The State argues that the legislature did not make the 

amendments to (F)(5) retroactive. Statutes are retroactive only if 

“expressly declared therein,” subject to an exception for procedural 

changes not applicable here. A.R.S. § 1-244; State v. Fell, 210 Ariz. 554, 560 

¶¶ 21–23 (2005) (finding changes to sentencing circumstances a substantive 

change to the law requiring an express declaration of retroactivity). While 

acknowledging this requirement, the superior court nevertheless 

concluded that “[t]he [l]egislature intended explicitly for defendants 

affected by the repeal of the aggravating circumstances outlined in S.B. 1314 

to resolve their claims through the post-conviction relief process.”

¶21 The court based this conclusion on the following exchange

between legislators: 

Representative Rodriguez asked, “If there’s a discussion 

about these not being persuasive, why are we not being asked 

to make this change retroactive, to eliminate these in past 

cases where they have been used?” In response to the 

question, Chairperson John Allen stated, “But Mr. Rodriguez, 

it doesn’t preclude them from suing over it. You know, asking 

for relief, though usually, the courts don’t apply it that way.” 

Upon hearing this statement, Representative Rodriguez 

pointed to Chairperson Allen and nodded in agreement.

Hearing on S.B. 1314 Before the H. Comm. on the Judiciary, 54th Leg., 1st Reg. 

Sess. (Ariz. 2019). However, such a limited exchange between two 

representatives in a committee hearing is not sufficient to establish that the 

legislature intended to make the amendments retroactive. See Barlow v. 

Jones, 37 Ariz. 396, 399 (1930) (“A legislative enactment cannot be amended 

or changed either by the insertion or the elimination of words to conform 

with an intent proven by the testimony of the members of the enacting 

6 Greene does not directly challenge the lack of an express statement of 

retroactivity but rather argues that the amendments are retroactive based 

on a violation of the Eighth Amendment. We address this argument at 

Part II.C. 
STATE V. GREENE

Opinion of the Court 

9 

body.”);see also Tucson Gas & Elec. Co. v. Schantz, 5 Ariz. App. 511, 514 (1967) 

(stating that “the testimony or opinions of individual members of the 

legislative body are not admissible” for discerning legislative intent);

Arizona Citizens Clean Elections Comm'n v. Brain, 234 Ariz. 322, 325 ¶ 12 

(2014) (observing that “a legislator, lobbyist, or other interested party lacks 

competence to testify about legislative intent in passing a law”). 

¶22 Significantly, the bill as signed into law does not contain a 

retroactive-application clause—nor was there any effort to add one at any 

step in the legislative process. Furthermore, retroactivity is not referenced 

in any bill draft, summary, or analysis for § 13-751(F). Compare 2009 Ariz. 

Sess. Laws, ch. 190, § 1 (1st Reg. Sess.) (providing that the law “applies 

retroactively to all cases in which the defendant did not plead guilty or no 

contest and that, as of April 24, 2006, had not been submitted to the fact 

finder to render a verdict”), with 2019 Ariz. Sess. Laws ch. 63, § 1 (1st Reg. 

Sess.) (lacking any retroactivity clause). Thus, despite the colloquy relied 

on by the superior court, the amendments to (F)(5) are not retroactively 

applicable to cases preceding the 2019 enactment. See, e.g., Hayes v. Cont'l 

Ins. Co., 178 Ariz. 264, 270 (1994) (declining to find a preemptive intent in 

the absence of explicit language required for preemption given that “the 

legislature is well aware of the words of art that should be used to 

accomplish such a result”). The court erred in concluding otherwise.

2. The (F)(5) amendments, Greene’s motive, and his criminal 

conduct

¶23 The State argues that because the (F)(3) aggravating 

circumstance still addresses pecuniary gain, the amendments to (F)(5) did 

not eliminate pecuniary gain from consideration as to whether to impose a 

sentence of death. The State also observes that Greene’s criminal conduct 

remains subject to the (F)(2) (serious offense) aggravating circumstance, 

which the superior court did not consider in its analysis.7 Regardless of 

any express statement of retroactivity, Greene argues that because the 

amendment to the former (F)(5) aggravating circumstance eliminated the 

basis for which his sentence of death was imposed, the legislature 

7 The State did not raise this particular point until its response to an amicus 

brief before this Court. Nonetheless, Greene’s broad argument that his 

conduct is no longer subject to the death penalty necessitates consideration 

of the entirety of the aggravating circumstances in § 13-751(F). 
STATE V. GREENE

Opinion of the Court 

10

“abolished” the application of the death penalty to his criminal conduct. 

The superior court agreed with Greene and found “that the reasoning in the 

[l]egislative record including the reasons for the proposed legislation was 

to narrow the applicability and imposition of the death penalty in which 

[Greene], under the [l]egislature’s narrowing, is no longer eligible for the 

death penalty.”8

¶24 Greene’s argument requires us to carefully evaluate what the 

legislature did and did not do in amending § 13-751(F) as a whole. See 

State v. Ewer, 523 P.3d 393, 397 ¶ 13 (Ariz. 2023) (“[W]e ‘interpret statutory 

language in view of the entire text, considering the context and related 

statutes on the same subject’” (quoting Molera v. Hobbs, 250 Ariz. 13, 24 ¶ 34

(2020)). As discussed, the amendments to (F)(5) narrowed a jury’s 

consideration of a murder motivated by the expectation of pecuniary gain

to murder-for-hire scenarios. See Part II.A ¶ 19. Thus, although the State 

accurately notes that the legislature did not completely eliminate the 

consideration of pecuniary gain from Arizona’s set of aggravating 

circumstances, Greene is correct that the legislature did eliminate a jury’s 

ability to consider his own motive for murdering Johnson. However, the 

2019 amendments did not change the (F)(2) aggravating circumstance, 

which considers whether “[t]he defendant has been or was previously 

convicted . . . for serious offenses committed on the same occasion as the 

homicide.” Thus, a robbery committed contemporaneously with a 

murder—the exact criminal conduct Greene engaged in—remains subject 

to a jury’s consideration of whether to impose the death penalty.

¶25 Informing our analysis of the nature and effect of the (F)(5) 

amendments with respect to Greene’s sentence of death is the fact that the 

legislature amended (F)(2) in 2003 to address the use of contemporaneous 

serious offenses effected by this Court’s ruling in State v. Rutledge, 205 Ariz. 

7 (2003), supplemented State v. Rutledge, 206 Ariz. 172, superseded by statute, 

2003 Ariz. Sess. Laws ch. 255, § 1 (1st Reg. Sess.), as recognized in State v. 

Nordstrom, 230 Ariz. 110, 118 ¶ 35 (2012) (observing that amendment to 

8 The superior court also considered what it characterized as legislators’

concerns about “how their actions contributed to complying with the 

constitutional mandate of Hidalgo.” However, there is no such 

“constitutional mandate” provided by Hidalgo. The language cited by the 

court is in a dissent to a denial by the Supreme Court of a writ of certiorari. 

Hidalgo v. Arizona, 138 S. Ct. 1054 (2018).
STATE V. GREENE

Opinion of the Court 

11

(F)(2) aggravating circumstance “evidently was intended to displace our 

ruling in State v. Rutledge”). In the supplemental opinion, this Court stated 

that a “conviction for a ‘serious offense’ occurring simultaneously with a 

murder conviction cannot be used for (F)(2) purposes under the [pre-2003]

version of [§] 13-703(F)(2).” Rutledge, 206 Ariz. at 178 ¶ 25. In amending 

(F)(2), the legislature made it explicitly clear that contemporaneous serious 

offenses could be considered, providing that: “The defendant has been or 

was previously convicted of a serious offense, whether preparatory or 

completed. Convictions for serious offenses committed on the same occasion as the 

homicide, . . . shall be treated as a serious offense . . . .” 2003 Ariz. Sess. Laws 

ch. 255, § 1 (1st Reg. Sess.) (emphasis added). Thus, after the 2003 

amendment to (F)(2) until the 2019 amendments to (F)(5), the state could 

allege as aggravating circumstances a murder committed 

contemporaneously with a robbery and a murder motived by the 

expectation of pecuniary gain for murders committed like Greene’s.

¶26 Consequently, the overall effect of the 2019 amendments to 

(F)(5) with respect to Greene’s criminal conduct is that although a jury can 

no longer consider Greene’s motive for robbing and murdering Johnson, a 

jury can still consider his actual conduct of robbing and murdering Johnson. 

So, if Greene committed the same murder today, he would still be eligible 

for the death penalty, albeit under a different aggravating circumstance. 

Greene is therefore incorrect in concluding that the legislature “abolished” 

the death penalty for his criminal conduct and the superior court erred in 

concluding likewise.

C. Eighth Amendment

¶27 The State argues that Greene’s sentence was constitutional 

when imposed and there is no basis for concluding today that it violates the 

Eighth Amendment. Greene argues, and the superior court found, that his

sentence is unconstitutional under the Eighth Amendment because the 

legislature’s narrowing of the pecuniary gain aggravating circumstance 

demonstrates a judgment that his criminal conduct is no longer deserving 

of capital punishment. Therefore, he asserts that his sentence is in 

violation of contemporary standards of decency and to carry it out would 

also be contrary to a national consensus against imposing punishment after 

a repeal of the death penalty.
STATE V. GREENE

Opinion of the Court 

12

¶28 “The Eighth Amendment, applicable to the states through the 

Fourteenth Amendment . . . proscribes ‘all excessive punishments, as well 

as cruel and unusual punishments that may or may not be excessive.’” 

Kennedy v. Louisiana, 554 U.S. 407, 419 (2008) (quoting Atkins v. Virginia, 536 

U.S. 304, 311 n.7 (2002)). Punishment for the crime must be proportionate 

to the offense to comport with this constitutional guarantee. Montgomery 

v. Louisiana, 577 U.S. 190, 206 (2016) (“Protection against disproportionate 

punishment is the central substantive guarantee of the Eighth 

Amendment . . . .”); see also Weems v. United States, 217 U.S. 349, 367 (1910)

(“[I]t is a precept of justice that punishment for crime should be graduated 

and proportioned to offense.”).

¶29 Under the Supreme Court’s Eighth Amendment 

jurisprudence, whether a punishment is excessive and disproportionate is 

“determined not by the standards that prevailed when the Eighth 

Amendment was adopted in 1791 but by the norms that ‘currently 

prevail.’” Kennedy, 554 U.S. at 419 (quoting Atkins, 536 U.S. at 311). Such

norms are derived from “evolving standards of decency that mark the 

progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 99–101 (1958)

(considering “whether denationalization is a cruel and unusual 

punishment within the meaning of the Eighth Amendment” in case 

involving desertion during wartime). “Thus, an assessment of 

contemporary values concerning the infliction of a challenged sanction is 

relevant to the application of the Eighth Amendment.” Gregg v. Georgia, 

428 U.S. 153, 173 (1976). “Furthermore, these Eighth Amendment 

judgments should not be, or appear to be, merely the subjective views of 

individual Justices; judgment should be informed by objective factors to the 

maximum possible extent.” Coker v. Georgia, 433 U.S. 584, 592 (1977).

¶30 In previous cases, the Supreme Court has considered four 

categories of data for Eighth Amendment consensus assessments: (1)

legislative actions; (2) opinions of juries; (3) judgment of prosecutors; and 

(4) historical practice. See, e.g., id. at 593–97 (legislatures and juries); Enmund 

v. Florida, 458 U.S. 782, 789–96 (1982) (legislatures, juries, and prosecutors);

Atkins, 536 U.S. at 313–17 (legislatures); Roper v. Simmons, 543 U.S. 551, 560–

68 (2005) (legislatures and historical practice); Kennedy, 554 U.S. at 422-34

(legislatures, juries, and historical practice). Nonetheless, any consensus 

demonstrated by the preceding is not necessarily controlling. Kennedy, 

554 U.S. at 421 (stating that “[c]onsensus is not dispositive”). Whether a 

punishment is disproportionate ultimately depends on “the Court’s own 
STATE V. GREENE

Opinion of the Court 

13 

understanding and interpretation of the Eighth Amendment’s text, history, 

meaning, and purpose,” which includes whether the death sentence would 

fulfill a penological purpose. Id. at 421, 441. 

¶31 In sum, a death sentence is unconstitutional under the Eighth 

Amendment if both (1) evolved societal standards of decency demonstrate 

a consensus against the punishment and (2) the court’s independent 

judgment concludes that the sentence is not proportionate to the crime. Id. 

at 446. 

1. Consensus against Greene’s punishment

¶32 The State argues no consensus exists against executing a 

defendant for the (F)(5) aggravating circumstance. Greene’s argument, 

though, is that there is a consensus against executing a defendant whose 

criminal conduct no longer justifies the imposition of the death penalty. In 

granting Greene the relief he sought, the superior court concluded that 

“there is a national consensus against executing defendants for a crime that 

is no longer eligible of the death penalty.” We consider each category of 

information set forth by Greene and the sources of information relied on by 

the superior court in turn.

a. Legislative action

¶33 The State argues that because the legislature retained 

consideration of pecuniary gain in the current (F)(3) aggravating 

circumstance and that Greene’s conduct is still subject to capital 

punishment under the (F)(2) aggravating circumstance, the legislature’s 

actions do not establish an evolved community standard against Greene’s 

punishment. Greene argues that the repeal of the pecuniary gain 

circumstance as applicable to his crime reflects a judgment by the 

legislature that his criminal conduct does not demonstrate the extreme 

culpability justifying the imposition of a sentence of death. Greene 

therefore argues that this judgment reflects a standard of decency 

precluding his punishment. The superior court likewise found that the 

actions of the legislature, combined with information about juries, 

established a community standard against executing a defendant 

“convicted of murder solely for pecuniary gain, except in cases of murderfor-hire.”
STATE V. GREENE

Opinion of the Court 

14

¶34 As reiterated in Atkins, the “clearest and most reliable” 

objective indication of a national consensus concerning imposition of the 

death penalty is “the legislation enacted by the country’s legislatures.” 

536 U.S. at 312 (quoting Penry v. Lynaugh, 492 U.S. 302, 331 (1989)). In 

cases where the Supreme Court concluded that legislative action 

established a standard of decency precluding capital punishment, 

legislatures categorically limited the imposition of the death penalty for 

defendants who lacked the requisite intent to kill their victim or who had 

specific physical or mental characteristics that diminished their moral 

culpability. See Coker, 433 U.S. at 592–93 (finding that “[a]t no time in the 

last 50 years have a majority of the States authorized death as a punishment 

for rape” to conclude that death penalty for rape of an adult woman where 

victim is not killed is ”forbidden by the Eighth Amendment as cruel and 

unusual punishment”); Enmund, 458 U.S. at 792, 801 (finding that “only a 

small minority of jurisdictions—eight—allow the death penalty to be 

imposed solely because the defendant somehow participated in a robbery 

in the course of which a murder was committed” to hold the Eighth 

Amendment prohibited sentence of death for a defendant who “did not 

commit and had no intention of committing or causing” deaths of robbery 

victims); Atkins, 536 U.S. at 317–21 (concluding there was a “consensus 

unquestionably reflect[ing] widespread judgment about the relative 

culpability of mentally retarded offenders” and therefore the Eighth 

Amendment prohibited the death penalty for such defendants); Roper, 

543 U.S. at 568 (holding that because “[a] majority of States have rejected 

the imposition of the death penalty on juvenile offenders under 18,” the 

Eighth Amendment now prohibits it, as well); Kennedy, 554 U.S. at 413, 423

(noting that forty-four states did not provide for capital punishment in 

cases of rape to hold the Eighth Amendment prohibited sentence of death 

for raping a child under twelve because defendant did not kill nor intend 

to kill the victim); see also State v. Nelson, 229 Ariz. 180, 188 ¶ 33 (2012) 

(noting the cases of Atkins, Roper, and Kennedy “turned on the characteristics 

of the defendant or the nature of the crime”). Importantly for our 

assessment, after enactment of the legislation considered in each case there 

was no longer a basis upon which any other defendant who committed a 

similar crime under similar circumstances could be subjected to capital 

punishment.

¶35 Here though, the Arizona Legislature did not enact similar

legislation that categorically exempts Greene from a sentence of death 

based on any lack of intent to kill or physical or mental characteristic 
STATE V. GREENE

Opinion of the Court 

15

diminishing his moral culpability. Nor did the legislature foreclose 

imposition of a death sentence for a defendant who commits a similar crime 

under similar circumstances as Greene. Again, while Greene’s pecuniary 

gain motive for murdering Johnson may no longer be considered by a jury 

in determining whether to impose a death sentence, the legislature did not 

eliminate consideration of his conduct in murdering Johnson.

¶36 Greene’s argument overstates the effect of the legislature’s

amendments of (F)(5) and incorrectly equates the actions of the Arizona 

Legislature with those of legislatures relied on by the Supreme Court to find 

a death sentence unconstitutional under the Eighth Amendment. 9 

Anyone who robs and kills in 2023 as Greene did in 1995 is still subject to 

the imposition of a death sentence regardless of the 2019 amendments. 

Therefore, Greene’s reliance on legislative action to support his argument 

of a consensus against his punishment is misplaced and the superior court 

erred in concluding that the legislature established a “community standard 

of decency” in determining the constitutionality of Greene’s sentence.

b. Jury opinions

¶37 The State argues that jury sentencing decisions concerning the 

(F)(5) aggravating circumstance do not establish a community standard 

precluding Greene’s sentence. Greene argues that the limited number of 

times the (F)(5) circumstance has served as the basis for a sentence of death

since 2002 is evidence that juries do not find the aggravating circumstance 

persuasive and therefore establishes a community standard precluding his 

punishment. The superior court likewise concluded a community 

standard existed, in conjunction with the actions of the legislature, to render 

Greene’s sentence unconstitutional.

¶38 When considering evolving standards of decency and the 

constitutionality of imposing a death sentence, “the response of juries 

reflected in their sentencing decisions are to be consulted.” Coker, 433 U.S. 

at 592.

¶39 The jury information Greene presents consists of the fact that 

out of 142 capital cases reviewed by this Court on direct appeal since 2002, 

9 Notably, the former version of (F)(5) remains an aggravating factor for 

consideration in federal death penalty cases. See 18 U.S.C. § 3592(C)(8).
STATE V. GREENE

Opinion of the Court 

16

only three defendants were sentenced to death based solely on the (F)(5) 

aggravating circumstance for a murder motivated by pecuniary gain, 

though one involved a murder-for-hire circumstance. He also cites a 

prosecutor’s legislative testimony before the House Judiciary Committee 

that juries did not find the (F)(5) aggravating circumstance persuasive. 

The State presented data that juries have actually sentenced defendants to 

death while also finding the (F)(5) aggravating circumstance proven in ten 

out of sixty-five cases between 2008 and 2012.

¶40 The limited information provided by Greene, as well as the 

State, regarding the sentencing decisions of juries makes discerning a 

particular community standard on this basis tenuous. Jury sentencing 

data reviewed by the Supreme Court in Coker encompassed all cases 

reviewed by the Georgia Supreme Court involving rape from 1973 to when 

the case came before the Supreme Court in 1977. Id. at 596. The evidence 

presented showed that Georgia juries had sentenced a defendant to death 

for rape only six times out of the sixty-three cases. Id. at 596–97.

 

¶41 In Enmund, the evidence demonstrated that among 

defendants executed in the United States since 1954, in only six executions

out of 362 was “a nontriggerman felony murderer”—like Enmund—

executed. 458 U.S. at 794–95. Enmund also presented information 

regarding the number of defendants on death row whose sentencing 

information reflected that they intended to kill the victim. Id. at 795.

¶42 Where the information was sufficient for review, out of 739 

defendants, “only [forty-one] did not participate in the fatal assault on the 

victim.” Id. at 795. Furthermore, where sufficient data was available, 

“only [sixteen] were not physically present when the fatal assault was 

committed.” Id. Among that number, thirteen were sentenced to death 

with “a finding that they hired or solicited someone else to kill the victim 

or participated in a scheme designed to kill the victim.” Id. Enmund was 

one of only three who did not fall into any of the other categories. Id. 

Among forty-five felony murderers then on death row just in Florida, “[i]n 

only one case—Enmund’s—there was no finding of an intent to kill and the 

defendant was not the triggerman.” Id. The Supreme Court therefore 

concluded that “the statistics [Enmund] cites are adequately tailored to 

demonstrate that juries—and perhaps prosecutors as well—consider death

a disproportionate penalty for those who fall within his category.” Id.

at 796.
STATE V. GREENE

Opinion of the Court 

17

¶43 In contrast to the data presented in Coker and Enmund, 

Greene’s information is limited, at best. Neither Greene nor the State 

presented evidence of the number of murders where the only aggravating 

circumstance alleged and proven was (F)(5) and a jury did not impose a 

death sentence, making the imposition of a sentence of death an 

impossibility. See A.R.S. § 13-752(E) (requiring the imposition of a life 

sentence “[i]f the trier of fact unanimously finds no aggravating 

circumstances” proven). Additionally, as the superior court noted in 

considering the jury information presented by the State, “neither do we 

know the number of failed prosecutions under the circumstance in which 

juries rejected it as an aggravator.” And in contrast to the more robust 

comparative information provided in Enmund, Greene has not presented 

any data offering a relative comparison with other defendants on death row 

in other states, let alone in Arizona.

¶44 With respect to the prosecutor’s comment concerning the lack 

of persuasiveness for juries of the aggravating circumstances in the 

proposed legislation, Greene overstates its significance. The prosecutor 

never discussed the narrowing effect of the proposed amendments to (F)(5). 

Rather, she specifically referred to aggravating circumstances proposed for 

elimination stating: “those factors which we are proposing to eliminate, 

simply, historically have not been the most persuasive with juries in capital 

cases. And so, it’s our proposal to remove them from the list of 

aggravating factors.” Hearing on S.B. 1314 Before the H. Comm. on the 

Judiciary, 54th Leg., 1st Reg. Sess. (Ariz. 2019). Although the pecuniary 

gain aggravating circumstance was narrowed to murder-for-hire cases, the 

only aggravating circumstances that were eliminated and removed were 

(F)(3), (F)(13), and (F)(14). See Part II.A ¶ 18. Additionally, no 

supporting information was ever presented concerning (F)(5) and the view 

of juries from the prosecutor’s perspective at the legislative committee 

hearing, or in the course of Greene’s PCR briefing, or in the evidentiary 

hearing.

¶45 We also observe that Greene’s argument based on the 

purported evidence of juries’ sentencing decisions concerning the (F)(5)

aggravating circumstance illustrates a fallacy of weak induction—the 

logical fallacy of false cause. This type of fallacy occurs where the link 

between a premise and a conclusion ignores other factors. The Fallacy of 

False Cause, The Cambridge Dictionary of Philosophy 515 (Robert Audi ed., 

3d ed. 2015).
STATE V. GREENE

Opinion of the Court 

18

¶46 Even accepting the assertion that the (F)(5) aggravating 

circumstance was among those the prosecutor referenced as not 

“persuasive” for juries, other valid reasons exist to explain why there are a 

limited number of jury-imposed death sentences based solely on (F)(5) since 

2002. For example, the limited number of cases could be due to the limited 

number of murders that are committed solely for pecuniary gain without 

the application of other statutory aggravating circumstances. It could also 

be due to charging decisions made in light of evidentiary considerations. 

See A.R.S. § 13-751(B) (“The prosecution must prove the existence of the 

aggravating circumstances beyond a reasonable doubt.”). Given that any 

aggravating circumstance must be proven beyond a reasonable doubt, there 

may be relatively few cases where the evidence is sufficient to prove that 

pecuniary gain was a motive for a murder or, relatedly, it may be that the 

state just failed to meet its evidentiary burden in those particular cases. In 

that instance, a jury verdict would provide no basis for a conclusion that it 

actually reflected a jury’s assessment of the moral culpability of a murderer 

motivated by the expectation of pecuniary gain. And, even if there are 

cases where (F)(5) was alleged as the sole aggravating circumstance and a 

jury determined a life sentence was the appropriate punishment, it is just 

as reasonable a possibility that a defendant presented strong mitigation 

evidence. See § 13-751(E) (“The trier of fact shall impose a sentence of 

death if the trier of fact finds one or more of the aggravating 

circumstances . . . and then determines that there are no mitigating 

circumstances sufficiently substantial to call for leniency.”).

¶47 Thus, a limited number of jury verdicts alone does not 

necessarily reflect a jury opinion that the (F)(5) aggravating circumstance

was not a proper basis for imposing a sentence of death. That a sentence 

is infrequently imposed does not necessarily establish the conclusion that a 

jury frequently rejects it based on disapproval of the aggravating 

circumstance in question. Concluding otherwise is sheer speculation.

¶48 The limited information offered by Greene, in contrast to the

nature and extent of the data relied on by the Supreme Court in Coker and 

Enmund, and other potential causes for the alleged infrequent imposition of 

a sentence of death based on the (F)(5) aggravating circumstance is 

inadequate “to demonstrate that juries . . . consider death a 

disproportionate penalty” for a murder motivated by the expectation of 

pecuniary gain. See Enmund, 458 U.S. at 796. The superior court erred in 
STATE V. GREENE

Opinion of the Court 

19

relying on this data, along with legislative action, to conclude there was an 

evolved standard of decency against Greene’s punishment.

c. Judgment of prosecutors

¶49 Greene argues that the views of prosecutors provide further 

evidence of an evolved standard of decency. However, we concur with 

the superior court’s assessment that “[a]bsent sufficient evidence, none of 

which was supplied in the legislative hearings, [the PCR] petition, 

and . . . subsequent pleadings and testimony,” the record makes it “difficult 

to discern the amount of historical prosecutorial discretion utilized in 

seeking or not seeking the death penalty under the (F)(5) aggravating 

circumstance.” Given the need for objective data upon which to establish 

a contemporary standard for purposes of making a constitutional 

determination, the lack of evidence of the judgment of prosecutors 

concerning use of the previous (F)(5) aggravating circumstance provides no 

basis upon which to discern a community standard.

d. Historical development

¶50 The State argues that no such consensus exists against 

carrying out Greene’s sentence under the circumstances of his case. 

Greene argues that evidence in the form of state and international data and 

actions of state courts establish that a consensus exists that no one should 

be executed where their crime is no longer eligible for the death penalty.

i. State practice and international opinion

¶51 In prior cases concerning review of capital punishment under 

the Eighth Amendment, “the Court has been guided by . . . ‘state practice 

with respect to executions.’” Kennedy, 554 U.S. at 421 (quoting Roper, 543

U.S. at 563). The Supreme Court has also referenced international views. 

See, e.g., Coker, 433 U.S. at 596 n.10 (“In [Trop, 356 U.S. at 102], the plurality 

took pains to note the climate of international opinion concerning the 

acceptability of a particular punishment.”); Thompson v. Oklahoma, 487 U.S. 

815, 830 (1988) (referencing the views of “other nations that share our 

Anglo-American heritage” and of “the leading members of the Western 

European community”); Enmund, 458 U.S. at 796 n.22 (stating “[i]t is thus 

worth noting that the doctrine of felony murder has been abolished in 

England and India, severely restricted in Canada and a number of other 
STATE V. GREENE

Opinion of the Court 

20

Commonwealth countries, and is unknown in continental Europe”); Roper, 

543 U.S. at 578 (noting that “the overwhelming weight of international 

opinion against the juvenile death penalty” is not controlling but “does 

provide respected and significant confirmation” for the Court’s 

determination that the penalty is disproportionate punishment for 

offenders under eighteen).

¶52 Greene relies on two sources detailing the dates of a full or 

partial repeal and the date of the last execution to illustrate state practices 

and international views. See James R. Acker & Brian W. Stull, Life After 

Sentence of Death: What Becomes of Individuals Under Sentence of Death After 

Capital Punishment Legislation Is Repealed or Invalidated, 54 Akron L. Rev. 268, 

276 (2021) (“Acker and Stull”); Declaration of John Ortiz Smykla. The

Acker and Stull article details the dates of state repeals of the death penalty 

and the dates of the last execution, respectively. Acker & Stull, supra

at 275–319. The comparison of the two dates reflects a conclusion that no 

state has carried out an execution following the repeal of the death penalty. 

John Smykla reached a similar conclusion based on his review of an 

extensive database of execution data from 1608 to 2002. See M. Watt Espy 

& John Ortiz Smykla, Executions in the United States, 1608–2002: The ESPY 

File (ICPSR 8451), National Archive of Criminal Justice Data (Jul 20, 2016), 

https://doi.org/10.3886/ICPSR08451.v5.

¶53 However, the utility of this information rests on Greene’s 

misunderstanding of the nature of the 2019 amendments and his conclusion 

that his criminal conduct is no longer subject to capital punishment. As 

discussed, the Arizona Legislature did not “repeal” the death penalty for 

murders committed under circumstances like Greene’s crime. See Part 

II.B.2 ¶¶ 23–26. Therefore, whatever evidence of a consensus that might 

be derived from the data provided by Greene is inapposite to his case.

¶54 Furthermore, we take note of Justice O’Connor’s observations

in her concurrence in Thompson v. Oklahoma:

In the 1950’s and 1960’s, more States abolished or radically 

restricted capital punishment, and executions ceased 

completely for several years beginning in 1968. H. Bedau, The 

Death Penalty in America 23, 25 (3d ed. 1982).
STATE V. GREENE

Opinion of the Court 

21

In 1972, when this Court heard arguments on the 

constitutionality of the death penalty, such statistics might 

have suggested that the practice had become a relic, implicitly 

rejected by a new societal consensus. Indeed, counsel urged 

the Court to conclude that “the number of cases in which the 

death penalty is imposed, as compared with the number of 

cases in which it is statutorily available, reflects a general 

revulsion toward the penalty that would lead to its repeal if 

only it were more generally and widely enforced.” Furman v. 

Georgia, 408 U.S. 238, 386 (1972) (Burger, C.J., dissenting). We 

now know that any inference of a societal consensus rejecting 

the death penalty would have been mistaken. But had this 

Court then declared the existence of such a consensus, and 

outlawed capital punishment, legislatures would very likely 

not have been able to revive it. The mistaken premise of the 

decision would have been frozen into constitutional law, 

making it difficult to refute and even more difficult to reject.

487 U.S.at 855 (1988).

ii. Judicial action

¶55 Greene also argues that judicial actions demonstrate a 

consensus regarding a standard of decency concerning the imposition of 

the death penalty in his case. He notes that in some states where 

legislative action repealed the imposition of the death penalty, state courts 

have found that carrying out a sentence imposed pre-repeal would violate 

the Eighth Amendment or corollary state provisions. See Fleming v. Zant, 

386 S.E.2d 339, 343 (Ga. 1989); Van Tran v. State, 66 S.W.3d 790, 812 (Tenn. 

2001); State v. Santiago, 122 A.3d 1, 85 (Conn. 2015); Fry v. Lopez, 447 P.3d 

1086, 1121–22 (N.M. 2019); State v. Bartol, 496 P.3d 1013, 1028–29 (Or. 2021).

However, the nature of the legislative action at issue before the courts in 

those cases is distinguishable from Arizona’s legislative action here.

¶56 Because Arizona did not enact legislation outright repealing

the death penalty or preclude its imposition for the same conduct as 

Greene’s, we focus our review of judicial action on states, like Arizona, who 

have amended their statutes addressing aggravating circumstances 

without completely eliminating imposition of capital punishment. These 
STATE V. GREENE

Opinion of the Court 

22

states include Indiana, Nevada, and Oregon. 10 See 2014 Ind. Acts 136 

(repealing Ind. Code § 35-50-2-9(b)(1)(D) (statutory aggravating 

circumstance of “criminal deviate conduct” and (H) (statutory aggravating 

circumstance of “carjacking”)); 1997 Nev. Stat. Ch. 356 (removing “sexual 

assault” from Nev. Rev. Stat. § 200.033(4)); 2019 Or. Laws, ch. 635, § 1 

(redefining and severely limiting capital-sentence eligible “aggravated 

murder” in Or. Rev. Stat. § 163.095). Among these states, the supreme 

courts of Indiana and Nevada affirmed capital sentences imposed prior to 

the repeal of applicable statutory aggravating circumstances. See Gibson v. 

State, 51 N.E.3d 204, 211 (Ind. 2016); Hill v. State, 953 P.2d 1077, 1086 (Nev. 

1998); Bolin v. State, 960 P.2d 784, 801 (Nev. 1998), abrogated on other grounds 

by Richmond v. State, 59 P.3d 1249 (Nev. 2002).

¶57 In Indiana, the repeal of § 35-50-2-9(b)(1)(D) and (H) applied 

prospectively based on the express terms of the statute. Specifically, the

statute stated that “criminal deviate conduct” and “carjacking” aggravating 

circumstances are only applicable to crimes committed “before [their]

repeal.” See Ind. Code § 35-50-2-9(b)(1)(D); (H). In 2016, the Indiana 

Supreme Court upheld the use of the “criminal deviate conduct” 

10 South Dakota’s legislature repealed a provision permitting use of impact 

testimony from the victim’s family as an aggravating circumstance. 1994 

S.D. Sess. Laws ch. 178 § 1 (repealing S.D. Codified Laws § 23A-27A 1(11)). 

However, no cases have been found which relied on that aggravating 

circumstance to impose a capital sentence. Further, there is some question 

about whether placing victim impact testimony in § 23A-27A 1(11) meant it 

could be used as a capital aggravating circumstance. See Rhines v. Young, 

No. 5:00-CV-05020-KES, 2016 WL 615421, at *18 (D.S.D. Feb. 16, 2016), aff’d, 

899 F.3d 482 (8th Cir. 2018) (“[N]o plausible reading of the statute supports 

a conclusion that victim impact evidence was itself a statutory aggravating 

circumstance.”).
STATE V. GREENE

Opinion of the Court 

23

aggravating circumstance, (b)(1)(D), for a crime committed in 2012. 11

Gibson, 51 N.E.3d at 211.

¶58 Before 1997, Nev. Rev. Stat. § 200.033(4) provided as an 

aggravating circumstance:

The murder was committed while the person was engaged, 

alone or with others, in the commission of or an attempt to 

commit or flight after committing or attempting to commit, 

any robbery, sexual assault, arson in the first degree, 

burglary, invasion of the home or kidnapping in the first 

degree, and the person charged:

(a) Killed or attempted to kill the person murdered; or

(b) Knew or had reason to know that life would be taken or 

lethal force used.

¶59 The Nevada legislature removed the words “sexual assault” 

in 1997. 1997 Nev. Stat. Ch. 356. In 1998, the Nevada Supreme Court 

affirmed two capital sentences that were imposed based on the “sexual 

assault” language prior to the amendment of § 200.033(4). Hill, 953 P.2d 

at 1085 (denying defendant’s PCR claims and affirming capital sentence for 

1983 murder of victim who died from injuries sustained from sexual 

assault); Bolin, 960 P.2d at 801 (1998), abrogated on other grounds by Richmond 

v. State, 59 P.3d 1249 (2002) (affirming capital sentence for 1995 murder 

committed during sexual assault). Both cases simply applied the version 

of § 200.033(4) in effect at the time each defendant committed murder after 

sexually assaulting their victims.

11 We note that the Indiana Supreme Court did retroactively vacate a 

sentence of death on the basis of legislative action in the case of Saylor v. 

Indiana, 808 N.E.2d 646, 648–51 (Ind. 2004). The Indiana court therein 

concluded “it is not appropriate to execute a person who was convicted and 

sentenced through a procedure that has now been substantially revised so 

the same trial today would no longer render the defendant eligible for the 

death penalty.” Id. at 647. We do not have similar procedural differences 

here.
STATE V. GREENE

Opinion of the Court 

24

¶60 The Oregon Supreme Court reached a different conclusion in 

Bartol. 496 P.3d 1013. While the case seems at first glance to be similar to

Greene’s, there are two key differences. First, the Oregon state legislature 

reclassified the criminal conduct “that . . . constituted ‘aggravated murder,’

which can be punished by death, to ‘murder in the first degree,’ which 

cannot be punished by death.” Id. at 1015.

¶61 At hearings on the proposed amendments, proponents and 

opponents asked the Oregon legislature to “make an assessment regarding 

the relative gravity of the conduct that was classified as ‘aggravated 

murder’ at the time[,]” and to determine that such conduct was not the 

“‘worst of the worst’ and to reclassify it as ‘murder in the first degree,’ the 

maximum sentence for which would be life in prison without parole.” Id.

at 1027–28. Legislators in both chambers of the Oregon legislature 

repeated these concerns. Id. at 1028.

¶62 Based on this extensive legislative history—and second key 

difference—the court concluded that the very amendment of the statute, 

although prospective only, reflected a “legislative determination that the 

conduct that was classified as ‘aggravated murder’ before [the amendments] 

does not fall within the narrow category of conduct for which the death 

penalty can be imposed.” Id. (emphasis added). Therefore, “[m]aintaining 

[Bartol’s] death sentence would allow the execution of a person for conduct 

that the legislature has determined no longer justifies that unique and 

ultimate punishment.” Id. at 1029; see also State v. Rogers, 499 P.3d 45, 48 

(Or. 2021) (finding legislative amendments “create[d] a proportionality 

problem” by allowing “the execution of persons whose conduct the 

legislature has determined is not the worst of the worst and whose 

culpability is no different from those who cannot be executed” (quoting 

Bartol, 496 P.3d at 1028)).

¶63 The Arizona Legislature, however, has not redefined or 

reclassified what constitutes a capital-eligible homicide. In fact, the 

definition of first degree murder applicable to Greene’s murder of Johnson 
STATE V. GREENE

Opinion of the Court 

25

in 1995 is substantively the same for murders today.12 And even under 

Bartol’s reasoning, because Greene’s criminal conduct remains subject to 

capital punishment, the Arizona Legislature has not created the 

proportionality issue raised by Oregon’s legislation. Furthermore, our 

legislative record contains nowhere near the same degree of information to 

support the conclusion reached by the Oregon court. Therefore, Bartol is 

distinguishable based on its facts and the law.

¶64 Thus, among states that have prospectively repealed 

aggravating circumstances considered for imposing the death penalty, state 

supreme courts have affirmed capital sentences based on a subsequently

repealed aggravating circumstance where it was lawful when first imposed. 

Therefore, Greene’s argument that judicial action supports a consensus 

against carrying out his sentence is misplaced.

12 The definition of first degree murder in 1995 provided that:

A person commits first degree murder if . . . [i]ntending or 

knowing that his conduct will cause death, such person 

causes the death of another with premeditation; 

or . . . . Acting either alone or with one or more other persons 

such person commits or attempts to commit . . . robbery 

under section 13–1902 . . . and in the course of and in 

furtherance of such offense or immediate flight from such 

offense, such person or another person causes the death of 

any person.

§ 13-1105(A) (1995). The current version reads:

A person commits first degree murder if . . . [i]ntending or 

knowing that the person’s conduct will cause death, the 

person causes the death of another person . . . with 

premeditation or . . . . Acting either alone or with one or 

more other persons the person commits or attempts to 

commit . . . robbery under § 13-1902 . . . and, in the course of 

and in furtherance of the offense or immediate flight from 

the offense, the person or another person causes the death of 

any person.

§ 13-1105(A) (2022).
STATE V. GREENE

Opinion of the Court 

26 

¶65 Overall, Greene’s argument that a consensus exists against 

carrying out a capital sentence where the criminal conduct is no longer 

subject to the death penalty is unavailing. The Arizona Legislature did not 

eliminate the imposition of capital punishment for his criminal conduct. 

Hence, evidence of the outright repeal of the death penalty by other state 

legislatures or by foreign countries is of little utility in discerning a 

consensus on our facts. Likewise, the limited information regarding jury 

sentencing decisions does not serve to establish a community standard that 

renders Greene’s sentence disproportionate to his crime. Finally, the 

actions by state supreme courts in affirming capital sentences based on 

prospectively repealed aggravating circumstances reveals, if anything, a 

consensus that such sentences are lawful.

2. Independent judgment

¶66 “Although the judgments of legislatures, juries, and 

prosecutors weigh heavily in the balance, it is for us ultimately to judge 

whether the Eighth Amendment permits imposition of the death penalty.” 

Enmund, 458 U.S. at 797. 

¶67 We consider whether Greene’s sentence serves the 

penological purposes of the death penalty in exercising our independent 

judgment. Atkins, 536 U.S. at 317–21 (evaluating penological purposes of 

death penalty in light of defendant’s particular culpability); Kennedy, 554 

U.S. at 441–42 (analyzing penological purposes in light of defendant’s crime 

of rape). Greene argues that to carry out his sentence would be arbitrary 

given that it could not possibly serve a constitutionally cognizable 

penological purpose.

¶68 The death penalty is an appropriate sanction when it 

advances the penological goals of deterrence and retribution. See Enmund, 

458 U.S. at 798. Otherwise, it “is nothing more than the purposeless and 

needless imposition of pain and suffering.” Id. (quoting Coker, 433 U.S. 

at 592).

¶69 A death sentence has deterrent value if it would deter other 

persons from committing the same crime as the one the defendant 

committed. See, e.g., Kennedy, 554 U.S. at 445; Atkins, 536 U.S. at 320. 

Accordingly, Greene argues that “[w]hen the Legislature repeals the death 

penalty for a class of crimes, executing a defendant under facts that would 
STATE V. GREENE

Opinion of the Court 

27 

no longer qualify for the death penalty cannot possibly deter future 

murders of any kind.” Regardless of their motive, those who commit the 

same crime as Greene—killing in the course of a robbery—are still subject 

to the continuing applicability of the (F)(2) aggravating circumstance. 

Therefore, the deterrent value of Greene’s sentence remains.

¶70 Retribution serves to punish the perpetrator and gives voice 

to the moral outrage experienced by the victim and society at large. 

Santiago, 122 A.3d at 56. It “reflects society’s and the victim’s interests in 

seeing that the offender is repaid for the hurt he caused.” Kennedy, 

554 U.S. at 442; see also Ariz. Const. art. II, § 2.1 (listing specific enumerated 

rights “[t]o preserve and protect victims’ rights to justice and due process”). 

But, as Greene accurately notes, retribution does not necessarily justify 

imposition of the death penalty for every first degree murder. “[T]he 

decision that capital punishment may be the appropriate sanction in 

extreme cases is an expression of the community’s belief that certain crimes

are themselves so grievous an affront to humanity that the only adequate 

response may be the penalty of death.” Gregg, 428 U.S. at 184. The death 

penalty “must [therefore] ‘be limited to those offenders who commit a 

narrow category of the most serious crimes and whose extreme culpability 

makes them the most deserving of execution.’” Kennedy, 554 U.S. at 420 

(quoting Roper, 543 U.S. at 568). 

¶71 The conduct Greene engaged in, aside from his motive to 

murder, remains subject to a sentence of death and his actions in murdering 

Johnson continue to fall within that narrow category of the most serious 

crimes. Therefore, the retributive purpose served by his sentence in 1996 

is still reflected in and served by Arizona law today. Given that Greene’s 

sentence fulfills the penological goals of deterrence and retribution, it is our 

considered judgment that his sentence is proportionate to his murder of 

Johnson.

¶72 Based on the lack of a consensus against Greene’s punishment 

and our judgment that his sentence is not disproportionate to his crime, we 

conclude that Greene’s sentence of death does not violate the Eighth 

Amendment’s prohibition against cruel and unusual punishment.
STATE V. GREENE

Opinion of the Court 

28

D. Article 2, Section 15

¶73 The State argues that because we previously affirmed 

Greene’s sentence and no holding since has found the (F)(5) aggravating 

circumstance unlawful, the sentence also does not violate article 2, 

section 15 of the Arizona Constitution. Greene asserts that because this 

Court interprets our constitutional ban on cruel and unusual punishment 

according to federal Eighth Amendment jurisprudence, we should take 

guidance from clearly established United States Supreme Court caselaw 

explaining how to determine contemporary standards of decency and find 

his sentence unconstitutional under the Arizona Constitution. See State v. 

Jackson, 186 Ariz. 20, 25 (1996) (“Arizona’s constitutional prohibition 

against cruel and unusual punishment is identically worded to its federal 

counterpart, and . . . we give them the same meaning.” (quoting State v. 

Bartlett, 164 Ariz. 229, 240 (1990))).

¶74 However, as this Court remarked in State v. Bush, 244 Ariz. 

575 (2018), we have “not yet expressly embraced as a matter of state 

constitutional law” the notion of “the evolving standards of decency in our 

maturing society” as part of our death penalty jurisprudence under 

article 2, section 15 of the Arizona Constitution. Id. at 599 ¶ 108; see also

State v. Soto-Fong, 250 Ariz. 1, 5-6 ¶¶ 10–13 (2020) (expressing concerns over 

the Supreme Court’s Eighth Amendment analysis). Regardless, for the 

reasons explained regarding Greene’s sentence and the Eighth 

Amendment, we would not reach a different result.

¶75 Therefore, Greene’s argument and the superior court’s 

conclusion that “evolving standards of decency” render his sentence 

unconstitutional pursuant to article 2, section 15 of the Arizona 

Constitution is incorrect. Instead, we conclude that Greene’s sentence was 

lawfully imposed and is not in violation of article 2, section 15 of the 

Arizona Constitution. Greene, 192 Ariz. at 444.

E. Claims For Relief Under Rule 32.1

¶76 “We interpret court rules according to the principles of 

statutory construction.” Phillips v. O’Neil, 243 Ariz. 299, 301 ¶ 8 (2017) 

(quoting State v. Aguilar, 209 Ariz. 40, 47 ¶ 23 (2004)). Thus, we “interpret 

rules of procedure by their plain meaning and we read them in conjunction 

with each other and harmonize them whenever possible.” State v. Tillmon, 
STATE V. GREENE

Opinion of the Court 

29 

222 Ariz. 452, 454 ¶ 8 (App. 2009) (internal alterations omitted) (quoting 

Groat v. Equity Am. Ins. Co., 180 Ariz. 342, 347 (App. 1994)). 

1. Rule 32.1(a) 

¶77 Rule 32.1(a) permits relief when “the defendant’s . . . sentence 

was imposed . . . in violation of the United States or Arizona constitutions.” 

The State argues that the plain language of the rule precludes consideration 

of Greene’s claim because the amendments to (F)(5) are prospective only 

and Greene’s sentence, as previously upheld by this Court, did not violate 

either the United States or Arizona Constitutions at the time it was imposed. 

Greene’s argument focuses on the alleged current illegality of his sentence 

due to the (F)(5) amendments.

¶78 We agree with the State that the wording of Rule 32.1(a) 

applies to addressing whether a sentence violated the United States or 

Arizona Constitutions at the time it was imposed. Given that the 

amendments are not retroactive, Greene’s sentence based on the (F)(5) 

aggravating circumstance is reviewed under the capital sentencing scheme 

in effect at the time he killed Johnson. A.R.S. § 1-246 (“[O]ffender[s] shall 

be punished under the law in force when the offense was committed.”); see 

also State v. Superior Court, 139 Ariz. 422, 427 (1984) (“Unless a statute is 

expressly declared to be retroactive, it will not govern events that occurred 

before its effective date.”); State v. Morales, 129 Ariz. 283, 286 (1981) 

(applying statute “in effect at the time” the crime was committed).

¶79 As the State correctly notes, Greene’s sentence was 

constitutional when imposed. Greene, 192 Ariz. at 444; see also State v. 

Hidalgo, 241 Ariz. 543, 550–51 ¶¶ 23–29. Furthermore, we have affirmed 

two capital sentences based on repealed or amended statutory aggravating 

circumstances since the 2019 amendments, although in each case juries also 

found other aggravating circumstances. See State v. Smith, 250 Ariz. 69, 93 

¶ 106 n.6 (2020) (acknowledging amendment of (F)(5) but the former 

“version of the pecuniary gain statute applie[d]” in case where jury also 

found state proved (F)(2) serious offense aggravating circumstance); 

Thompson, 252 Ariz. at 289 ¶ 16 n.4 (2022) (acknowledging amendments but 

citing “the version of § 13-751 in effect at the time of sentencing” that 

included the (F)(13) aggravating circumstance where jury also found state 

proved four others, (F)(2), (F)(6), (F)(7), and (F)(8)). Therefore, the 
STATE V. GREENE

Opinion of the Court 

30 

superior court erred in concluding otherwise and Greene is not entitled to 

relief under Rule 32.1(a).

2. Rule 32.1(c) 

¶80 Rule 32.1(c) permits relief where “the sentence as imposed is 

not authorized by law.”

¶81 The State argues that Greene is not entitled to relief because 

32.1(c) only applies to cases in which a term-of-years sentence is imposed 

and not a death sentence. Furthermore, the State observes that Greene’s 

sentence was “authorized by law” at the time he was sentenced, as the 

superior court also acknowledged. Greene argues that the plain language 

and history of Rule 32.1(c) demonstrate it applies to capital sentences that 

become illegal after sentencing and reiterates his argument that the 2019 

Amendments render his sentence unconstitutional under the Eighth 

Amendment to the United States and article 2, section 15 of the Arizona 

Constitutions. Therefore, pursuant to Rule 32.1(c), his “sentence as 

imposed is not authorized by law.”

¶82 With respect to the applicability of Rule 32.1(c) to Greene’s 

capital case, we find, as did the superior court, that it unambiguously 

applies. Rule 32.1 clearly states that “[a] defendant may file a notice 

requesting post-conviction relief under this rule . . . in any case in which the 

defendant was sentenced to death.” Nonetheless, because Greene’s 

sentence was lawful when imposed and we have concluded that it is not 

now unlawful under either the United States or Arizona Constitutions, he 

is not entitled to relief. The superior court erred in concluding otherwise.

3. Rule 32.1(g) 

¶83 Rule 32.1(g) provides grounds for relief when “there has been 

a significant change in the law that, if applicable to the defendant’s case, 

would probably overturn the defendant’s judgment or sentence.” The 

State argues that the phrase “if applicable” is dispositive because the 2019 

amendments to (F)(5) were prospective only. Greene argues that the 

amendments to (F)(5) are retroactively applicable to his case under the 

United States and Arizona Constitutions because they demonstrate an 

evolved standard of decency against carrying out his sentence. Because 

we have concluded that the amendments are not retroactively applicable 
STATE V. GREENE

Opinion of the Court 

31 

either because they lack an express retroactive statement or because his 

sentence does not violate the Eighth Amendment nor article 2, section 15, 

Greene is not entitled to relief under Rule 32.1(g).

4. Rule 32.1(h) 

¶84 Rule 32.1(h) provides relief where: “[T]he defendant 

demonstrates by clear and convincing evidence that the facts underlying 

the claim would be sufficient to establish . . . that no reasonable fact-finder 

would find the defendant eligible for the death penalty in an aggravation 

phase held pursuant to A.R.S. § 13-752.” 

¶85 The State essentially argues that a claim pursuant to 32.1(h) 

must present clear and convincing evidence addressing facts related to 

aggravating circumstances presented in the aggravation phase of a capital 

trial and not based on an argument of legal insufficiency concerning the 

imposition of a sentence of death in general. Greene argues that “[i]n light 

of the legislative repeal . . . , no jury could today find Greene eligible for the 

death penalty based on the facts underlying his claim” and he is therefore 

entitled to relief under Rule 32.1(h). (Emphasis added.) 

¶86 We agree with the State that relief pursuant to Rule 32.1(h) is 

dependent on the presentation of clear and convincing evidence concerning 

facts that address the proof of an aggravating circumstance. The very 

terms of the rule dictate as much by addressing “the facts underlying the 

claim” in reference to the aggravation phase in § 13-752, wherein “the trier 

of fact shall make a special finding on whether each alleged aggravating 

circumstance has been proven based on the evidence that was presented at 

the trial or at the aggravation phase.” A.R.S. § 13-752(E). 

¶87 Greene’s argument is unavailing because it assumes that the 

amendments to (F)(5) are retroactive to his case, which under his Eighth 

Amendment argument would render his sentence unlawful. Accordingly, 

there would never be an aggravation phase in which a trier of fact could 

consider whether an aggravating circumstance was proven. Thus, this

argument is more properly presented under Rule 32.1(c).
STATE V. GREENE

Opinion of the Court 

32

¶88 Also problematic for his argument is our conclusion that the 

amendments to (F)(5) are not retroactive. Therefore, any jury considering 

Greene’s eligibility for the death penalty today would make their 

determination under the statutes applicable to his crime in 1995, and a jury 

would be able to consider the (F)(5) aggravating circumstance. See State v. 

Stine, 184 Ariz. 1, 3 (App. 1995) (“[I]n the context of criminal law, an 

offender must be punished under the law in force when the offense was 

committed and is not exempted from punishment by a subsequent 

amendment to the applicable statutory provision.” (quoting State v. 

Hamilton, 177 Ariz. 403, 406 (App. 1993))).

¶89 Finally, his argument for relief under Rule 32.1(h) fails to 

present any evidence, let alone clear and convincing evidence, addressing 

the sufficiency of the facts that established the (F)(5) pecuniary gain 

aggravating circumstance which this Court upheld on direct appeal. 

Thus, Greene has not demonstrated a basis for relief under Rule 32.1(h) and 

the superior court erred in concluding otherwise.

III. CONCLUSION

¶90 For the reasons stated, we reverse the superior court’s ruling

granting Greene post-conviction relief and affirm his sentence.