from the Superior Court in Pima County The Honorable Stephen
C. Villarreal, Judge No. CR040238
Brnovich, Arizona Attorney General, Dominic E. Draye,
Solicitor General, Lacey Stover Gard (argued), Chief Counsel,
Capital Litigation Section, Tucson, John Pressley Todd,
Special Assistant Attorney General, Phoenix, Attorneys for
State of Arizona
Sands, Federal Public Defender, Cary Sandman (argued),
Leticia Marquez, Assistant Federal Public Defenders, Tucson,
Attorneys for Kevin Artice Miles
J. Euchner (argued), Tucson, Attorney for Amici Curiae
Arizona Attorneys for Criminal Justice and Pima County Public
Armstrong, Emily Skinner, Phoenix, Attorneys for Amicus
Curiae Arizona Capital Representation Project
JUSTICE TIMMER authored the opinion of the Court, in which
CHIEF JUSTICE BALES and JUSTICE BRUTINEL joined.
A defendant convicted of felony murder is eligible for the
death penalty only if he himself killed, attempted to kill,
or intended that a killing occur or that lethal force be
used, Enmund v. Florida, 458 U.S. 782, 797 (1982),
or was a major participant in a felony and acted "with
reckless indifference to human life, " Tison v.
Arizona, 481 U.S. 137, 158 (1987). We hold that in
determining if a defendant acted with "reckless
indifference, " the factfinder may consider evidence of
the defendant's diminished capacity.
In 1992, Kevin Artice Miles, along with juvenile accomplices
Levi Jackson and Ray Hernandez, carjacked Patricia Baeuerlen
and drove her to the desert, where Jackson shot and killed
her. The next year, a jury found Miles guilty of first degree
felony murder, kidnapping, and armed robbery. The trial court
sentenced Miles to death. (Arizona juries were not authorized
to impose the death penalty until 2002. See A.R.S.
§§ 13-751, -752.) After conducting an independent
review, this Court affirmed. State v. Miles (Miles
I), 186 Ariz. 10, 12 (1996). In doing so, we found that
Miles was death-eligible under Tison because he was
a major participant in the crimes and had shown a reckless
indifference toward human life. Id. at 16-17. The
trial court denied Miles's subsequent request for
postconviction relief ("PCR").
In 2014, after unsuccessfully pursuing habeas corpus relief
in federal court, see Miles v. Ryan (Miles II), 713
F.3d 477, 479 (9th Cir. 2013), Miles initiated his second PCR
proceeding. He asserted that relief was warranted under
Arizona Rule of Criminal Procedure 32.1(h) because newly
discovered mitigation evidence demonstrated that the
sentencing court would not have imposed the death sentence
had the evidence been known.
Following an evidentiary hearing, the PCR court granted Miles
relief by commuting his death sentence to a life sentence.
The court found that at the time of the murder, Miles
suffered from "neurochemical, neurocognitive, and
neurobehavioral impairments" caused by the combined
effects of cocaine withdrawal syndrome and alcohol related
neurodevelopmental disorder ("ARND"), which
resulted from in utero alcohol exposure. As a result,
although Miles was concededly a major participant in the
crimes, the court found he was ineligible for the death
penalty under Tison because reasonable doubt existed
whether he acted with the requisite reckless mental state.
Alternately, the court ruled that if Miles were
death-eligible under Tison, he would nevertheless be
entitled to "a resentencing to allow the factfinder to
re-weigh the aggravating and mitigating factors" because
he sufficiently demonstrated that the sentencing court would
not have imposed the death penalty had it known of
Miles's mental-health deficiencies.
We granted review of two issues raised by the State, both of
which are matters of statewide importance: (1) Did the PCR
court err by admitting diminished-capacity and
voluntary-intoxication evidence in the Tison
inquiry? (2) Can newly proffered mitigation ever constitute
clear and convincing evidence under Rule 32.1(h) that a
sentencer would not have imposed the death penalty? We have
jurisdiction pursuant to article 6, section 5(3), of the
Arizona Constitution and A.R.S. §
We review a court's ruling on a PCR petition for an abuse
of discretion. State v. Pandeli, 242 Ariz. 175, 180
¶ 4 (2017). But an abuse of discretion occurs if the
court makes an error of law, and we review legal conclusions
de novo. Id.
When Miles filed the PCR petition in 2014, Rule 32.1(h)
(2000) authorized relief if "[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 have found defendant guilty of
the underlying offense beyond a reasonable doubt, or that the
court would not have imposed the death
penalty." Because Miles challenged only the
imposition of the death penalty and not his murder
conviction, he was required to prove that "the court
would not have imposed the death penalty." Ariz. R.
Crim. P. 32.1(h) (2000). "The court" necessarily
refers to the sentencing court as it "imposed the death
The State urges us to narrowly construe Rule 32.1(h)
consistent with the "actual innocence" exception to
barring successive, abusive, or defaulted federal habeas
claims. See Sawyer v. Whitley, 505 U.S. 333, 335-36
(1992). Under that exception, relief is permitted only when a
defendant shows by clear and convincing evidence that no
reasonable factfinder would have found him eligible
for the death penalty. Id. at 336. Miles and amicus
Arizona Capital Representation Project assert that Rule
32.1(h) is more expansive, also authorizing relief if the
defendant shows by clear and convincing evidence that he is
not deserving of the death penalty in light of newly
developed mitigation evidence.
We need not resolve this interpretation dispute. As explained
hereafter, we affirm the PCR court's ruling that Miles is
ineligible for the death penalty under Tison and
therefore do not address the court's alternate basis for
its ruling. Even under the State's narrow reading of Rule
32.1(h), a defendant can be granted relief under Rule 32.1(h)
for a Tison error.
In his concurrence, Justice Pelander describes the version of
Rule 32.1(h) in effect in 2014 as "perplexing" as
it required the PCR court to speculate about how the
sentencing judge, now deceased, would have sentenced Miles
had the judge known of the new mitigation evidence. See
infra ¶¶ 29-30. But Rule 32.1(h) does not
refer to the sentencing judge (or since 2002, a jury), and
construing the rule as imposing a subjective standard would
require a PCR court to speculate about a particular
sentencer's ruling - an unmanageable, if not impossible,
standard. The better reading is that Rule 32.1(h)'s
reference to "the court" means a reasonable
sentencer, whether a judge or a jury.
Admissibility of evidence in Tison inquiry
The State argues that Miles did not satisfy his Rule 32.1(h)
burden because evidence he suffered from cocaine withdrawal
syndrome and ARND was inadmissible to refute the mental state
required for a Tison death-eligibility finding.
Contrary to Miles's assertion, the State adequately
preserved this issue.
The Eighth Amendment prohibits "all punishments which by
their excessive length or severity are greatly
disproportioned to the offenses charged."
Tison, 481 U.S. at 148 (internal citation and
quotation marks omitted). Before a defendant convicted of
first degree felony murder can be sentenced to death, an
Enmund/Tison finding must be made to ensure that
this sentence is proportionate to the defendant's
"personal responsibility and moral guilt."
Enmund, 458 U.S. at 801; see also Tison,
481 U.S. at 149. The Enmund/Tison inquiry does not
concern the guilt or innocence of the defendant but acts as
an Eighth Amendment sentencing restraint. See State v.
Ring,204 Ariz. 534, 563 ¶ 98 ...