                                                              FILED BY CLERK
                                                                 SEP -3 2008
                            IN THE COURT OF APPEALS              COURT OF APPEALS
                                STATE OF ARIZONA                   DIVISION TWO

                                  DIVISION TWO


THE STATE OF ARIZONA,                         )
                                              )   2 CA-SA 2008-0011
                                Petitioner,   )   2 CA-SA 2008-0021
                                              )   (Consolidated)
                      v.                      )   DEPARTMENT B
                                              )
HON. RICHARD NICHOLS, Judge of                )   OPINION
the Superior Court of the State of            )
Arizona, in and for the County of Pima,       )
                                              )
                             Respondent,      )
                                              )
                     and                      )
                                              )
SCOTT DOUGLAS NORDSTROM,                      )
                                              )
                    Real Party in Interest.   )
                                              )
                                              )
SCOTT DOUGLAS NORDSTROM,                      )
                                              )
                                Petitioner,   )
                                              )
                      v.                      )
                                              )
HON. RICHARD NICHOLS, Judge of                )
the Superior Court of the State of            )
Arizona, in and for the County of Pima,       )
                                              )
                             Respondent,      )
                                              )
                     and                      )
                                              )
THE STATE OF ARIZONA,                         )
                                              )
                    Real Party in Interest.   )
                                              )
                           SPECIAL ACTION PROCEEDING

                            Pima County Cause No. CR-55947

       JURISDICTION ACCEPTED IN 2 CA-SA 2008-0011; RELIEF DENIED
              JURISDICTION DECLINED IN 2 CA-SA 2008-0021


Law Office of David Alan Darby, Esq.
 By David Alan Darby                                                               Tucson

and

Law Office of Richard L. Parrish
 By Richard L. Parrish                                                           Tucson
                                                   Attorneys for Scott Douglas Nordstrom

Barbara LaWall, Pima County Attorney
 By Jacob R. Lines                                                                 Tucson
                                                            Attorneys for State of Arizona


E S P I N O S A, Judge.


¶1            The state of Arizona and Scott Nordstrom, the defendant in the underlying

criminal action, filed cross petitions for special action relief challenging the respondent

judge’s determination of what evidence may be admitted during the aggravation phase of

Nordstrom’s sentencing. For the following reasons, we accept jurisdiction of the state’s

petition but deny relief. We decline jurisdiction of Nordstrom’s petition.

                                       Background

¶2            In 1997, a jury found Nordstrom guilty of six counts of first-degree murder,

one count of first-degree attempted murder, and several counts each of burglary and armed

                                             2
robbery, all committed at the Moon Smoke Shop and Firefighter’s Union Hall in Tucson.

The jury unanimously found all of the murders had been proven under a felony-murder

theory. It also unanimously found that Nordstrom had premeditated two of the murders, one

at each location. Following a sentencing hearing, the trial court found the existence of

aggravating circumstances under A.R.S. § 13-703(F)(1), (5), and (8) and sentenced

Nordstrom to death on all of the murder counts.1 Our supreme court affirmed Nordstrom’s

convictions and sentences on appeal. State v. Nordstrom, 200 Ariz. 229, ¶ 99, 25 P.3d 717,

747 (2001) (Nordstrom I). After the United States Supreme Court issued its decision in Ring

v. Arizona, 536 U.S. 584 (2002), however, the Arizona Supreme Court vacated the death

sentences and remanded the case for resentencing by a jury pursuant to A.R.S. §§ 13-703 and

13-703.01. State v. Nordstrom, 206 Ariz. 242, ¶ 28, 77 P.3d 40, 46 (2003) (Nordstrom II).

Upon remand, the trial court determined that under the Sixth Amendment Nordstrom was

entitled to have a jury weigh the aggravating and mitigating circumstances but not entitled

to have a jury decide the existence of aggravating circumstances. Nordstrom sought special

action review in this court; we determined that the “resentencing must proceed as if




       1
       Section 13-703(F)(1), (5) and (8), A.R.S., respectively identify the following
aggravating circumstances: “The defendant has been convicted of another offense in the
United States for which under Arizona law a sentence of life imprisonment or death was
imposable”; “The defendant committed the offense as consideration for the receipt, or in
expectation of the receipt, of anything of pecuniary value”; and “The defendant has been
convicted of one or more homicides, as defined in § 13-1101, that were committed during
the commission of the offense.”


                                            3
Nordstrom had never been sentenced before,” and such factors must be proved to the

sentencing jury. Nordstrom v. Cruikshank, 213 Ariz. 434, ¶ 22, 142 P.3d 1247, 1254 (App.

2006) (Nordstrom III). The case was remanded to the court.

¶3             During the guilt phase of trial, Nordstrom had presented alibi evidence for the

day of the Moon Smoke Shop robbery and “evidence suggesting” his brother, one of the

state’s primary witnesses, had actually “perpetrated the crimes and implicated [Nordstrom]

to protect himself.” Nordstrom I, 200 Ariz. 229, ¶¶ 9-10, 25 P.3d at 726. At the previous

sentencing proceeding, Nordstrom argued “residual doubt” as a mitigating circumstance, and

upon remand he “indicated his intention to present ‘residual doubt’ as a mitigating factor”

to the new sentencing jury. The trial court determined, however, that it would be “legally

inappropriate to require the State to engage in, and the victims’ families to endure, a retrial

of the guilt issue” and “precluded [Nordstrom] from presenting evidence of ‘residual doubt’

in the aggravation/mitigation and sentencing phases of the trial.” See A.R.S. § 13-703.01(L)

(prohibiting a “jury first impaneled for the aggravation phase” from “retry[ing] the issue of

the defendant’s guilt”); State v. Harrod, 218 Ariz. 268, ¶ 46, 183 P.3d 519, 532 (2008)

(affirming trial court’s preclusion of residual doubt evidence during penalty phase of

sentencing).

¶4             In his motion for reconsideration before the respondent judge, Nordstrom

argued he had a right to present alibi or other “innocence related evidence to rebut the

State’s” proof of aggravating circumstances and its evidence of the “necessary factual



                                              4
predicates” to satisfy Tison v. Arizona, 481 U.S. 137 (1987), and Enmund v. Florida, 458

U.S. 782 (1982). Under Enmund and Tison, a defendant who has been convicted of first-

degree murder based on a felony-murder theory may not be sentenced to death unless “the

defendant killed the victim, attempted to kill the victim, or intended that lethal force be

employed, or was a major participant in the underlying felony and acted with reckless

indifference to human life.” Nordstrom III, 213 Ariz. 434, n.3, 142 P.3d at 1250 n.3 (citation

omitted); see Tison, 481 U.S. at 158; Enmund, 458 U.S at 797. Although “the Sixth

Amendment does not require that a jury, rather than a judge, make Enmund-Tison findings,”

State v. Ring, 204 Ariz. 534, ¶ 101, 65 P.3d 915, 946 (2003), the state conceded in previous

proceedings in this case that a defendant is entitled to have a jury make those findings under

Arizona’s statutory scheme. Nordstrom III, 213 Ariz. 434, ¶ 6, 142 P.3d at 1260; see A.R.S.

§ 13-703.01(P) (“trier of fact shall make all factual determinations required by . . .

Constitution of the United States . . . to impose a death sentence”; “[i]f the state bears the

burden of proof, the issue shall be determined in the aggravation phase”); see also State v.

Garza, 216 Ariz. 56, ¶ 46, 163 P.3d 1006, 1017 (2007) (“Arizona law specifically requires

the trier of fact to make Enmund/Tison findings in the aggravation phase.”).

¶5            Nordstrom contended that, “[j]ust as the state plans to introduce guilt phase

evidence and testimony to establish death eligibility, fundamental fairness[,] along with the

Constitutional right to confront this evidence, . . . legally positions Nordstrom to introduce

innocence related evidence/testimony at the de novo sentencing trial, specifically alibi



                                              5
evidence presented” at the guilt-phase trial. He claimed, however, that he was not asking the

respondent “to reconsider [the court’s] prior ruling regarding defense presentation of residual

doubt during the mitigation phase” of the sentencing proceedings. See Harrod, 218 Ariz.

268, ¶¶ 37-46, 183 P.3d at 529-32 (residual doubt not mitigating circumstance).

¶6            The state argued in response, as it does in its petition for special action, that

residual doubt evidence is irrelevant to any issues before the new sentencing jury, which will

be concerned with “how” rather than “whether” Nordstrom committed the crimes. See

Oregon v. Guzek, 546 U.S. 517, 526 (2006) (sentencing proceedings generally concerned

with how defendant committed crime); Harrod, 218 Ariz. 268, ¶ 39, 183 P.3d at 530 (same).

It reasoned that Nordstrom does not have the right to introduce residual doubt evidence under

the Eighth or Fourteenth Amendments of the United States Constitution, see Guzek, 546 U.S.

at 523, and that such evidence is precluded under § 13-703.01(L), which provides that a jury

newly empaneled for the aggravation phase of the sentencing “shall not retry the issue of the

defendant’s guilt.” Therefore, the state contended, although Nordstrom may challenge his

level of participation in the crimes at issue in the aggravation phase, he may not challenge

the fact of his participation, that fact having been finally resolved by the guilt-phase jury.

¶7            The respondent judge ruled that Nordstrom “would not be entitled to present

alibi evidence or otherwise present residual doubt evidence” if the State were to seek the

death penalty only as to the murders the jury agreed had been premeditated, but he ruled that

Nordstrom is “entitled to call alibi witnesses as to the felony murder convictions to contest



                                               6
the State’s proposed proof that [he] was a major participant in the killings.” See Tison, 481

U.S. at 158. In response to a motion to clarify his ruling, the respondent stated:

                         The second jury will not decide whether there is a
                  reasonable doubt about guilt due to alibi evidence or any other
                  evidence. The guilt findings by the first jury were affirmed on
                  appeal. The first jury’s findings create prior convictions which
                  are presumed valid and the Defendant will not be allowed to
                  collaterally attack these convictions before the second jury. . . .
                  The second jury will only decide relevant issues that were not
                  unanimously decided by the first jury.

Agreeing in part with the state’s position, the respondent explained that alibi and innocence-

related evidence is “not relevant . . . to the second jury’s determination of the F1 and F8

allegations.” 2     But he determined such evidence is relevant to the jury’s factual

determinations under Enmund and Tison and stated:

                  It is one thing, to allow the guilty findings to stand for the F1
                  and F8 issues as this treatment of prior convictions is nothing
                  new. However, it seems to this Court it is quite a different
                  matter to extrapolate from the guilt findings of the first jury to
                  tell the second how to resolve the Enmund/Tison issues.

“In the absence of appellate guidance,” the respondent stated, he was “reluctant to rewrite

the statutory scheme,” even though the state had “made a powerful argument against

allowing alibi evidence on the four counts involving” felony murder. These petitions for

special action relief followed.




       2
       Following remand, the state withdrew its notice of A.R.S. § 13-703(F)(5) as an
aggravating factor.

                                                  7
                                         Jurisdiction

¶8            We accept special action jurisdiction of the state’s petition because the state

has no equally plain, speedy, or adequate remedy by appeal. See Ariz. R. P. Spec. Actions

1(a). Furthermore, the scope of admissible evidence at a capital sentencing trial before a

newly empaneled jury is an issue of statewide importance involving questions of law and

statutory construction. And the same or similar issues are likely to recur. See State ex rel

Romley v. Martin, 203 Ariz. 46, ¶ 4, 49 P.3d 1142, 1143 (App. 2002) (“Special action

jurisdiction is appropriate in matters of statewide importance, issues of first impression, cases

involving purely legal questions, or issues that are likely to arise again.”). Because we

decline jurisdiction of Nordstrom’s cross-petition, however, we do not address whether the

trial court correctly ruled the disputed evidence would not be admissible if the state seeks the

death penalty only for the premeditated murders.3

                                          Discussion

¶9            We review a trial court’s rulings on the admission or exclusion of evidence

during jury sentencing proceedings for an abuse of discretion. See Garza, 216 Ariz. 56, ¶ 56,

163 P.3d at 1018 (reviewing admission of evidence at penalty phase). But we review “[a]ll

legal and constitutional questions . . . de novo.” Harrod, 218 Ariz. 268, ¶ 38, 183 P.3d at




       3
        Although we need not explain our decision to decline jurisdiction of Nordstrom’s
petition, we note that the issue presented appears moot at this time. Moreover, if not moot,
Nordstrom has an adequate remedy by appeal.

                                               8
530; see also State v. Wall, 212 Ariz. 1, ¶ 12, 126 P.3d 148, 150 (2006) (abuse of discretion

includes “[a]n error of law committed in reaching a discretionary conclusion.”).

¶10           The state first argues that the respondent judge drew an illogical and “legally

untenable” “distinction between residual doubt and alibi evidence.” It asserts that alibi

evidence “is by its very definition an argument against guilt . . . by placing the defendant in

a location other than the scene of the crime at the relevant time,” Black’s Law Dictionary 72

(7th ed. 1999), and its presentation constitutes “an attempt to overrule the jury’s verdict[s].”

¶11           The respondent actually stated that he was not distinguishing between alibi and

residual doubt evidence “as a practical matter.” But his ruling, at least implicitly, recognizes

a distinction between alibi or innocence-related evidence offered to rebut the state’s proof

under Enmund and Tison and the same evidence offered as either a challenge to the verdicts

or as proof of a mitigating circumstance. We believe that distinction both validates the

respondent’s ruling and distinguishes this case from those on which the state relies.

¶12           As noted above, Enmund and Tison collectively require a finding that

Nordstrom either killed or attempted to kill the victims of the felony murders, intended that

lethal force be employed, or, acting with reckless indifference to human life, was a major

participant in the underlying felonies. See Tison, 481 U.S. at 158; Enmund, 458 U.S at 797.

The state has the burden of proving one or more of the required facts, and § 13-703.01(P)

requires the aggravation-phase jury to make the factual determinations. Rule 19.1(c), Ariz.

R. Crim. P., which governs the aggravation-phase proceedings in capital cases, allows a


                                               9
defendant to offer evidence to rebut the state’s evidence. And, other than by application of

the rules of evidence, the legislature has placed no express limits on what evidence a

defendant may present. See A.R.S. § 13-703(B) (applying rules of evidence to aggravation

phase); cf. State v. Ellison, 213 Ariz. 116, ¶ 82, 140 P.3d 899, 919 (2006) (defendant not

permitted to “complain that evidence relevant to sentencing was presented at the guilt

proceeding” because “nothing prevented [Ellison] from introducing evidence from the guilt

proceeding at his sentencing proceeding”); State v. Anderson, 210 Ariz. 327, ¶ 85, 111 P.3d

369, 390 (2005) (noting “aggravation and penalty phases” of resentencing included

“essentially a full-blown re-presentation of the entire case” and “nothing prevented

[defendant] from offering the[] guilt phase testimony” of only two trial witnesses who did

not testify at sentencing). In fact, in cases in which the same jury decides both guilt and

aggravation, the legislature has expressly provided that “any evidence that was presented at

any prior phase of the trial shall be deemed admitted as evidence at any subsequent phase of

the trial.” A.R.S. § 13-703.01(I).

¶13           The respondent judge, therefore, correctly based his determination on

relevancy. “[E]vidence is relevant if it has ‘any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less probable than

it would be without the evidence.’” State v. Tucker, 215 Ariz. 298, ¶ 47, 160 P.3d 177, 192

(2007), quoting Ariz. R. Evid. 401. Neither party has provided us with a detailed description

of evidence that would be admitted pursuant to the respondent judge’s ruling, but evidence



                                             10
that Nordstrom was not present at one of the crime scenes or even that he did not directly

participate in the underlying crimes is relevant to a determination of whether Nordstrom had

been a major participant. See Nordstrom I, 200 Ariz. 229, ¶ 10, 25 P.3d at 726 (describing

generally “two types of evidence” presented by the defense: “evidence suggesting that David

Nordstrom [defendant’s brother] had perpetrated the crimes and implicated his brother to

protect himself, and alibi evidence for . . . the day of the Moon Smoke Shop robbery”). As

the respondent judge noted, evidence that a person was a major participant in a crime

logically includes proof that the person was a participant. Indeed, the state does not directly

challenge the relevance of the evidence in question to the Enmund/Tison issues the jury must

decide. Essentially, it argues instead that the evidence is inadmissible because it is also

relevant to a determination of Nordstrom’s guilt, the guilt-phase jury obviously rejected the

same evidence for that purpose, and § 13-703.01(L) prohibits the aggravation-phase jury

from reconsidering the issue of Nordstrom’s guilt.

¶14           But evidence inadmissible for one purpose may nonetheless be admissible for

another. “The idea that a court may admit evidence for a legitimate purpose even though the

evidence is inadmissible for another purpose is not foreign to the law of evidence.” State ex

rel. Thomas v. Duncan, 216 Ariz. 260, ¶ 11, 165 P.3d 238, 242 (App. 2007); see also Ariz.

R. Evid. 404(b) (“[E]vidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity therewith. It may, however, be

admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan,



                                              11
knowledge, identity, or absence of mistake or accident.”). In Thomas, the court denied relief

on the state’s petition for special action relief challenging the trial court’s refusal to preclude

evidence of a car chase. 216 Ariz. 260, ¶¶ 2-3, 165 P.3d at 240. The defendant in Thomas

had been charged with manslaughter after running a red light at a high rate of speed and

colliding with another car, killing its occupant. Id. He claimed that, when he ran the red

light, he was being chased by another vehicle and was in fear of his life because the

occupants of that vehicle had threatened him. Id. The state argued evidence of the chase was

inadmissible because “it went to [a statutorily prohibited] justification defense.” Id. ¶ 3.

Although the defendant maintained he had no intention of raising a justification defense,

arguing the evidence was “relevant to the mens rea element of reckless manslaughter,” the

state contended “that by introducing evidence that is relevant to a justification defense, [the

defendant was] raising the defense despite his assertion to the contrary.” Id. ¶ 9. The court

held that, despite the statutory prohibition of a justification defense in that case, “the trial

court may admit evidence tending to show justification in prosecutions for the reckless injury

or killing of an innocent third person if that evidence is otherwise admissible for a separate

purpose.” Id. ¶ 11.

¶15            We find the reasoning in Duncan instructive here. Although the aggravation-

phase jury is statutorily prohibited from reconsidering Nordstrom’s guilt, the evidence at

issue here is relevant to questions the aggravation-phase jury must decide. As in Duncan,

the evidence “may require a jury instruction indicating the purposes for which the evidence



                                                12
is available and those purposes for which it is not available,” id. ¶ 11, but the evidence is not

barred merely because it is relevant to both a proper and improper purpose.

¶16           The state relies heavily on the supreme court’s decision in Harrod II, in which

the court stated: “The plain language of provisions J through L of section 13-703.01, as

amended in 2002, makes residual doubt evidence irrelevant to capital resentencing

proceedings.” 218 Ariz. 268, ¶ 44, 183 P.3d at 531. The evidence here, however, is not

necessarily residual doubt evidence, and Harrod is distinguishable. Harrod was sentenced

to death by a judge after a jury found he had committed first-degree murder of a single victim

based on both premeditated and felony murder. Id. ¶ 8. Like Nordstrom’s death sentences,

Harrod’s sentence was vacated after Ring was decided and a new jury was empaneled for

aggravation- and penalty-phase proceedings. Id. ¶¶ 9-10. Unlike Nordstrom’s case,

however, because the guilt-phase jury had found the murder was premeditated, the sentencing

jury was not required to make Enmund/Tison findings at the aggravation phase, and the court

did not determine the relevancy of the evidence as to those issues. Rather, Harrod sought to

“present the results of a polygraph examination and make statements of innocence during the

penalty phase,” arguing that, in precluding him from doing so, the trial court had “violated

his constitutional right to present all relevant mitigation evidence.” Id. ¶ 37. He also argued

that § 13-703(G) “expressly permits residual doubt evidence as a mitigating factor at the

penalty phase.” Id. (emphasis added). In this case, we are concerned not with “residual

doubt evidence” admitted as a proposed mitigating circumstance or for attacking the jury’s



                                               13
verdict, but admission of alibi evidence for the purpose of rebutting the state’s proof of facts

the jury is statutorily required to determine at the aggravation phase.

¶17           The state also relies on State v. Pandeli, 200 Ariz. 365, ¶ 69, 26 P.3d 1136,

1151 (2001), judgment vacated by Pandeli v. Arizona, 536 U.S. 953 (2002), in which our

supreme court stated it had not previously “invoked residual doubt as a mitigating

circumstance,” and State v. Harrod, 200 Ariz. 309, n.7, 26 P.3d 492, 500 n.7 (2001) (Harrod

I), judgment vacated by Harrod v. Arizona, 536 U.S. 953 (2002), in which the court voiced

concern that “[i]f residual doubt is a mitigating circumstance that the defendant must prove

by a preponderance of evidence, the aggravation/mitigation hearing could turn into an attack

on the judgement of the conviction” or it could “spawn a retrial on the guilt phase without

the constraints imposed by the rules of evidence.” Again, in those cases, the court dealt with

residual doubt evidence specifically as a mitigating circumstance, not the admissibility of

evidence relevant for dual purposes.

¶18           The United States Supreme Court in Guzek implicitly determined that whether

evidence supports a conclusion “directly inconsistent with the jury’s finding of guilt” is

material to its admissibility at sentencing.4 546 U.S. at 524. But a defendant can be


       4
        The Supreme Court disagreed with the Oregon supreme court’s determination that
consistency with the underlying convictions “did not matter.” Guzek, 546 U.S. at 524. The
Oregon court had relied on the decision in Green v. Georgia, 442 U.S. 96 (1974) in which
the defendant had “sought to introduce at sentencing a statement his confederate made to a
third party that he (the confederate) had alone committed the murder (i.e., without the
defendant).” Guzek, 546 U.S. at 524. The court in Guzek pointed out, however, that its
decision in Green had been based on the application of the rule against hearsay and “assumed

                                              14
convicted of first-degree murder based on both accomplice liability and felony-murder

theories, so evidence that a defendant was not present at a crime scene is not, as a matter of

law, directly contrary to or inconsistent with a guilty verdict. See State v. Rios, 217 Ariz.

249, ¶ 16, 172 P.3d 844, 848 (App. 2007). Moreover, the supreme court did not elaborate

on the effect of inconsistency, and it determined only the “narrow” question: “Do the Eight

and Fourteenth Amendments grant [the defendant] a constitutional right to present . . . new

evidence that shows he was not present at the scene of the crime.” Id. at 523. It also noted

that “the negative impact of a rule restricting defendant’s ability to introduce new alibi

evidence is minimized by the fact that Oregon law gives the defendant the right to present

to the sentencing jury all the evidence of innocence from the original trial regardless.” Id.

at 526-27.

¶19           We recognize that allowing trial courts to admit alibi evidence in aggravation-

phase proceedings creates a risk that the second jury could come to factual conclusions

inconsistent with those of the guilt-phase jury based on identical evidence. However, as

explained above, we can find no authority requiring the exclusion of the evidence under the

circumstances presented here.      Moreover, although the aggravation-phase jury could

conceivably accept Nordstrom’s alibi evidence for the purpose of determining he had not

been a major participant in the underlying crimes, such a determination would not operate




that, in the absence of the hearsay problem, state law would not have blocked admission of
the evidence.” Id. at 524-25.

                                             15
as a determination of innocence. As the respondent judge made clear in his ruling, despite

the admission of alibi evidence, the aggravation-phase jury will not reconsider Nordstrom’s

guilt.

                                         Disposition

¶20           We cannot say the respondent judge abused his discretion in determining the

admissibility of alibi evidence at Nordstrom’s resentencing hearing. As noted above,

however, we are not privy to any specific items of evidence that will be offered at sentencing.

The respondent, of course, retains discretion to rule separately as to each and impose any

appropriate limits on their admission. Accordingly, although we accept jurisdiction of the

state’s special action petition, we deny relief.




                                                   PHILIP G. ESPINOSA, Judge

CONCURRING:




GARYE L. VÁSQUEZ, Judge




JOSEPH W. HOWARD, Judge




                                              16
