SUPREME COURT OF ARIZONA

STATE OF ARIZONA, ) Arizona Supreme Court

) No. CR-97-0428-AP

Appellee, )

) Maricopa County Superior

v. ) Court

) No. CR-95-01754(A)

TIMOTHY STUART RING, )

) SUPPLEMENTAL

Appellant. ) OPINION

)

__________________________________)

Appeal from the Superior Court of Maricopa County

The Honorable Gregory H. Martin, Judge

REMANDED FOR RESENTENCING

Janet Napolitano, Former Attorney General Phoenix

Terry Goddard, Attorney General

by Kent E. Cattani, Chief Counsel,

Capital Litigation Section

and Robert L. Ellman

and James P. Beene

and John P. Todd

and Bruce M. Ferg Tucson

Assistant Attorneys General

Attorneys for the State of Arizona

Osborn Maledon, P.A. Phoenix

by John A. Stookey

and Larry A. Hammond

and Daniel L. Kaplan

Attorneys for Timothy Stuart Ring

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

¶1 The only issue before us is whether reversible error

occurred when a trial judge sentenced Timothy Stuart Ring to death

under a procedure that violated the right to a jury trial under the
2

Sixth Amendment to the United States Constitution. See Ring v.

Arizona, 536 U.S. 584, 609 122 S. Ct. 2428, 2443 (2002) (Ring II).

We have 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 conclude

that the Sixth Amendment violation constituted prejudicial error.

I.

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

Arizona’s former capital sentencing scheme violated the Sixth

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

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

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

on which the legislature conditions an increase in their maximum

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

our decision in State v. Ring, 200 Ariz. 267, 25 P.3d 1139 (2001)

(Ring I), and remanded for further proceedings consistent with its

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

¶3 Following the Supreme Court’s Ring II 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, __ ¶ 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sentence imposed under Arizona’s superseded capital sentencing
* For a thorough description of the facts, see Ring I, 200

Ariz. at 267-73 ¶¶ 2-13, at 1139-45.

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statutes for harmless error.

II.

¶4 On November 28, 1994, Ring, aided by two others, killed

John Magoch, a Wells Fargo armored car driver, in the course of

executing a planned armored car robbery. Ring I, 200 Ariz. at 272

¶ 12, 25 P.3d at 1144.* A jury found, beyond a reasonable doubt,

that Ring committed first degree felony murder, conspiracy to

commit armed robbery, armed robbery, burglary and theft. Id. at

270 ¶ 1, 25 P.3d at 1142. After conducting the

aggravation/mitigation hearing, the judge found that the evidence

supported two aggravating circumstances: that Ring murdered Magoch

with the expectation of pecuniary gain, A.R.S. section 13-703.F.5

(Supp. 1996); and that the murder was committed in an especially

cruel, heinous or depraved manner, A.R.S. section 13-703.F.6.

¶5 The judge concluded that Ring’s minimal criminal record

was a non-statutory mitigating circumstance. He rejected two other

non-statutory mitigating circumstances: that one of the coconspirators, James Greenham, was the shooter and that Ring was not

at the crime scene. The judge also determined that Ring did not

establish any statutory mitigating circumstance by a preponderance

of the evidence.

¶6 On direct appeal, this court affirmed Ring’s first degree
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murder conviction and death sentence, but held the evidence did not

support the cruel, heinous or depraved finding. Ring I, 200 Ariz.

at 282 ¶ 56, 284 ¶ 65, 25 P.3d at 1154, 1156. We must now review

Ring’s death sentence for harmless error.

¶7 We will find constitutional error harmless if we

conclude, beyond a reasonable doubt, that the error did not

contribute to or affect the sentencing outcome. Ring III, 204

Ariz. at ___, ¶¶ 103-04, 65 P.3d at 946. If we conclude that

reasonable doubt exists, however, then the error is prejudicial and

the case must be remanded for a new sentencing hearing under

Arizona’s amended capital sentencing statutes. Id. at ___, ¶ 102,

65 P.3d at 946.

¶8 The pecuniary gain aggravating circumstance exists when

“[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. 2002). To establish this

aggravating circumstance, the State must prove, beyond a reasonable

doubt, that “the expectation of pecuniary gain is a motive, cause,

or impetus for the murder and not merely a result of the murder.”

State v. Hyde, 186 Ariz. 252, 280, 921 P.2d 655, 683 (1996). The

State can satisfy its burden through direct or strong

circumstantial evidence. State v. Cañez, 202 Ariz. 133, 159 ¶ 91,

42 P.3d 564, 590 (2002).

¶9 As the State asserts, the evidence that Ring committed
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this murder for pecuniary gain is strong. See Ring I, 200 Ariz. at

282 ¶ 57, 25 P.3d at 1154 (“[K]illing Magoch was for no other

comprehensible reason than to facilitate the robbery.”). The trial

judge’s pecuniary gain finding constitutes harmless error, however,

only if “no reasonable jury could find that the State failed to

prove a pecuniary [motive] beyond a reasonable doubt” at the

aggravation/mitigation hearing. State v. Finch, ___ Ariz. ___, ___

¶ 8, ___ P.3d ___, ___ (2003).

¶10 Ring’s co-conspirator Greenham, who did not testify

during the guilt phase of Ring’s trial, did testify at the

aggravation/mitigation hearing pursuant to a plea agreement.

Greenham’s testimony placed Ring at the scene of the murder and

identified him as the shooter. Greenham stated that he, Ring and

William Ferguson devised a plan to rob an armored car at the

Arrowhead Mall in Phoenix. He further testified that Ring assumed

“the role as leader because he laid out all the tactics” and that

all the co-conspirators were armed during the commission of the

robbery. According to Greenham, Ring carried a pistol and a

twenty-two rifle, modified with a scope and homemade silencer.

After Magoch was killed, Greenham, followed by Ring and Ferguson in

separate vehicles, drove the armored car to a parking lot, where

the three cohorts unloaded the money and piled it into the back of

Ring’s pickup truck.

¶11 On cross-examination, the defense attacked Greenham’s
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testimony on multiple fronts. Greenham had made prior statements

to the police identifying himself as the shooter. Greenham also

admitted that his testimony was “pay back” against Ring because

Ring threatened his life and interfered with Greenham’s

relationship with his ex-wife. The defense also questioned

Greenham about a prior statement he allegedly made claiming that

the police concocted the story disclosed through his testimony.

¶12 Greenham’s testimony was essential to the pecuniary gain

finding. After evaluating Greenham’s credibility and determining

which portions of his testimony were true, the trial court

concluded:

The evidence clearly shows beyond a reasonable doubt that

Mr. Magoch was killed in order to obtain the

approximately one-half million dollars in cash in the

armored car. Taking the cash from the armored car was

the motive and reason for Mr. Magoch’s murder and not

just the result.

Ring I, 200 Ariz. at 282 ¶ 57, 25 P.3d at 1154 (quoting Special

Verdict at 3).

¶13 Because the trial judge’s pecuniary gain factor rested

upon his evaluation of Greenham’s credibility, we cannot say beyond

a reasonable doubt that a reasonable jury considering Greenham’s

testimony would draw the same conclusions and make the same

determinations as did the trial judge. A reasonable jury could

question Greenham’s veracity and conclude that the State had not

met its burden of establishing this aggravating factor beyond a

reasonable doubt. We therefore conclude that finding the pecuniary
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gain factor was not harmless error.

¶14 Arizona law requires the State to prove at least one

aggravating circumstance in order for it to obtain a death

sentence. A.R.S. § 13-703.E. Because the failure to submit the

only aggravating circumstance alleged against Ring to the jury

constitutes prejudicial error, we need not consider Ring’s

mitigation arguments.

III.

¶15 For the foregoing reasons, we vacate Ring’s death

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

and 13-703.01 (Supp. 2002).

____________________________________

Ruth V. McGregor, Vice Chief Justice

CONCURRING:

_________________________________

Rebecca White Berch, Justice

_________________________________

Michael D. Ryan, Justice

* Justice Hurwitz took no part in the consideration or decision

of this case.

JONES, C.J., concurring in part, dissenting in part:
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¶16 I concur in the result, but dissent from the majority’s

conclusion that harmless error analysis is appropriate where

sentencing determinations are made by the trial judge in the

absence of the jury. The right to trial by an impartial jury is

fundamental. The sentencing phase is, of itself, a life or death

matter. Where a judge, not a jury, determines all questions

pertaining to sentencing, I believe a violation of the Sixth

Amendment to the Constitution of the United States has occurred.

In the aftermath of the Supreme Court’s decision in Ring v.

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

absence of the jury in the sentencing phase of a capital trial

necessarily amounts to structural error. I would remand the case

for resentencing, simply on the basis of the Sixth Amendment

violation. See State v. Ring, ____ Ariz. ____, ____ ¶¶ 105-14, 65

P.3d 915, 946-48 (2003) (Feldman J., concurring in part, dissenting

in part) (Ring III).

Charles E. Jones, Chief Justice