Arizona Supreme Court Affirms Capital Sentence

McGill was convicted in a jury trial of murder, arson, and endangerment stemming from a 2002 fire he set which claimed the life of Charles Perez and seriously injured others in the duplex. In this direct appeal, the Supreme Court first affirmed the trial court’s decision to excuse for cause one of the veniremen who indicated during voir dire that she believed she could impose the death sentence if required by law, but that doing so would cause her to fear retribution by God. The Court then affirmed the jury verdict of guilty on endangerment charges, reasoning that because McGill knew of other people in the home when he set it afire, he “knew his actions would create a danger for those insides.”

Sustaining the finding of aggravation, the Court held that the jury’s finding of the “F.3” aggravator was proper because McGill was aware of the presence of bystanders and knew that his actions would put them at grave risk of death. The Court also upheld the trial court’s decision to admit photographs of Perez’s charred remains into evidence at trial and during the aggravation phase. The Court reasoned that the probative value of the photos was not outweighed by their prejudicial value when considering that graphic testimony about the condition of the remains both preceded and accompanied the admission of the photos. The Court noted that the pictures did not likely add much to any shock experienced by the jurors.

Chief Justics McGregor’s opinion for the Court was unanimous as to each of the above findings.

In perhaps the most significant portion of the opinion, the Court held that the admission, at the penalty phase, of testimony that was not subject to cross-examination, did not violate McGill’s 6th Amendment confrontation clause rights. At the penalty phase, the state introduced deposition testimony of a jailhouse informant who had died before trial. The deposition was taken without defense counsel being present. In the deposition, the informant told the state that while in the Maricopa County Jail, McGill had solicited the informant to kill a potential witness. The testimony was introduced to rebut McGill’s mitigation testimony, over the objection of defense counsel. Relying on Williams v. New York, 337 U.S. 241 (1949) the Court held that the Confrontation Clause’s protections do not apply to rebuttal testimony at a sentencing hearing because: “1) the penalty phase is not a criminal prosecution, 2) historical practices support the use of out of court statements in sentencing, and 3) the sentencing body requires complete information to make its determination.” The Court further noted that so long as proffered testimony has sufficient indicia of reliability, its admission without cross-examination does not offend Due Process.

As to the 6th amendment holding, Justice Hurwitz dissented. He first noted that many courts have held that Williams does not resolve the issue of the application of the Confrontation Clause at the penalty phase. He then noted that the Court’s previous decisions in the area are inconsistent and provide no conclusive guidance. Addressing the merits of the 6th Amendment issue, Justice Hurwitz posited that the question is whether the Constitution’s Framers would have expected testimonial hearsay to influence whether a defendant should live or die. Answering in the negative after a review of historical commentary and precedent, Justice Hurwitz would have remanded for a new penalty phase.