                     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
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 Eighty-

first    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
                                 2
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.
                                3
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


                                     4
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


                                     5
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
                                6
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
                                7
“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
                               8
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
                                9
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 non-

statutory mitigating circumstances: (1) mental health issues; (2)

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

the following non-statutory mitigating circumstances: (1) residual
                                10
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
                                11
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 non-

capital 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,

                                           12
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 Blakely-

exempt 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.
                                13
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)




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