THE ENMUND/TISON REQUIREMENT
Enmund v. Florida, 458 U.S. 782, 797 (1982) and Tison v. Arizona, 481 U.S. 137, 158 (1987) together establish that the death penalty cannot be imposed unless the defendant either: (1) actually killed, (2) attempted to kill, (3) intended a killing to take place, or (4) was a major participant in the felony committed and acted with reckless indifference to human life. State v. Lacy, 187 Ariz. 340, 351 (1996). The burden of proof for this finding is beyond a reasonable doubt. State v. Tison, 160 Ariz. 501, 502 (1989).
The Enmund/Tison issue arises when the defendant is convicted of felony murder and there is an additional actor involved in the killing. If a defendant alone kills the victim then invariably the "actually killed" prong of Enmund/Tison is met. See State v. Atwood, 171 Ariz. 576, 649 (1992) (“no constitutional barrier exists to imposing the death penalty on a defendant who is convicted under a felony murder theory and who, acting alone, actually killed”) (original emphasis). If there is a factual dispute about whether the defendant acted alone, the Enmund/Tison issue should be resolved by the jury. See generally, State v. Garza, __ Ariz. __, 163 P.3d 1006 (2007) (Trial judge had jury resolve issue where there was some evidence of another actor).
In Arizona it is a jury determination
The federal constitution does not require that a jury make the finding. Cabana v. Bullock, 474 U.S. 376, 387-88 (1986); State v. Ring (Ring III), 204 Ariz. 532, 564 (2003). However, A.R.S. §13-751.01(P) states:
P. The trier of fact shall make all factual determinations required by this section or the Constitution of the United States or this state to impose a death sentence. If the defendant bears the burden of proof, the issue shall be determined in the penalty phase. If the state bears the burden of proof, the issue shall be determined in the aggravation phase.
(Emphasis added).
This statute requires that a jury make the Enmund/Tison finding unless the parties waive a jury. State v. Ellison, 213 Ariz. 116, 134, n.12 (2006); A.R.S. §13-751.01(S) (1).
Guilt phase: Premeditation findings can satisfy Enmund/Tison
Prosecutors often charge first degree murder in a single count that alleges both premeditation and felony murder. This practice is constitutional because a jury need not be unanimous on the theory of first degree murder as long as all agree that the murder was committed. Schad v. Arizona, 501 U.S. 624, 645 (1991); State v. Tucker, 205 Ariz. 157, 167 51 (2003). However, the Arizona Supreme Court has long encouraged trial courts to inquire of the jury their numerical vote on each theory because it can resolve the Enmund/Tison issue. State v. Smith, 160 Ariz. 507, 513 (1989); State v. Garza, __ Ariz. __, 163 P.3d 1006, 46, n.11 (2007) ("this is the better practice"). A unanimous finding that the defendant premeditated the murder necessarily means the defendant intended to kill, and that finding satisfies Enmund/Tison. State v. Anderson (Anderson II), 210 Ariz. 327, 345 (2005).
An excellent way to determine the numerical split of the jury is to add the following text to the guilty verdict form:
| ____ |
Number of jurors finding ONLY premeditated murder |
| ____ |
Number of jurors finding ONLY felony murder |
| ____ |
Number of jurors finding BOTH premeditated murder and felony murder |
If the jury properly fills out this verdict form, then the total of these three numbers will always be 12. If “12” appears on the first or third lines then the jury necessarily found the defendant intended to kill and Enmund/Tison is satisfied. If a number other than 12 appears on the first and third lines then Enmund/Tison needs to be resolved in the aggravation phase.
Aggravation Phase: Some aggravators can satisfy Enmund/Tison
Just as a premeditation finding in the guilt phase can satisfy Enmund/Tison, so too can certain aggravation findings. Accomplice liability principles in A.R.S. §13-301 et seq apply only to "crimes" and not to capital aggravators. Aggravators are based on the defendant's personal culpability: the defendant's own mens rea and own actions. For example, State v. Carlson, 202 Ariz. 570 (2002) held that an accomplice's cruel actions did not establish (F)(6) cruelty where the defendant's plan did not contemplate the accomplice's actions.
Whether the finding of a capital aggravator resolves the Enmund/Tison issue depends on the particular aggravator and its distinct elements. For example, the (F)(4) aggravator applies to the defendant who hires a hit man to commit the murder. A defendant cannot contract for a killing without intending a killing. Assuming the (F)(4) jury instructions are proper, the (F)(4) finding necessarily encompasses the "intent to kill" aspect of Enmund/Tison.
The (F)(1) and (F)(2) aggravators involve prior convictions and do not resolve Enmund/Tison. The (F)(11), (F)(12), (F)(13) and (F)(14) factors are too new for case law to have established their elements.
If, and only if, all the alleged aggravators have an inherent Enmund/Tison prong can it be certain that the Enmund/Tison issue will be resolved by the aggravation findings. If there is one aggravator that does not have an inherent Enmund/Tison finding then it is possible the jury will find that aggravator alone thereby leaving Enmund/Tison unresolved. If the Enmund/Tison issue is not resolved in the guilt phase or inherent in all the aggravators, then the trial judge must give an express Enmund/Tison instruction in the aggravation phase.
Open issue: Different Enmund/Tison theories and unanimity
Must the jury be unanimous on a particular Enmund/Tison theory? In other words, can six jurors find the "actually killed" prong and six jurors find the "major participant/reckless indifference" prong, or must all 12 agree on a single prong? As a matter of federal constitutional law, there is no right to have a jury determination at all, Cabana, supra, so there appears no right to a unanimous jury. As a matter of state law, the Arizona Supreme Court has not yet decided whether A.R.S. §13-751.01(P) requires such unanimity
Open issue: a bifurcated aggravation hearing?
A.R.S. §13-751.01(P) states that if "the state bears the burden of proof, the issue shall be determined in the aggravation phase." The state bears the burden to establish both the capital aggravators and Enmund/Tison and so both should be resolved in the aggravation phase. However, trying the two together might be prejudicial and may warrant a bifurcated aggravation phase.
Consider this hypothetical. The defendant is charged only with felony murder and has several prior murder convictions that are alleged as capital aggravators. For the guilt phase, the judge has found the prior convictions inadmissible as being improper character evidence, i.e. evidence suggesting the defendant committed the instant murder because he committed murders in the past. The Enmund/Tison issue is whether the defendant intended to kill. If the Enmund/Tison issue is tried with the murder convictions then there could be precisely the prejudice the judge sought to avoid in the guilt phase: the jury might conclude the defendant intended to kill because he has killed in the past. The aggravation phase "is governed by the rules of evidence applicable to criminal trials", A.R.S. §13-751(B), so why should the evidentiary ruling be different in the aggravation phase? Why not have a bifurcated aggravation phase where Enmund/Tison is resolved first and then the aggravators are resolved separately? Neither the statutes nor the rules address such a bifurcated hearing.
RAJI Instructions
The RAJI committee has crafted an Enmund/Tison instruction. Due to the uncertainty on the unanimity issue, the RAJI committee crafted three different verdict forms. One form requires unanimity, one form does not require unanimity, and another also does not require unanimity but asks for the numerical division of the jury. The RAJI instructions are in these materials and the Enmund/Tison materials appear as Capital RAJI 1.0 Degree of Participation Instruction.
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