Earlier today the Arizona Supreme Court issued its opinion in State v. Hulsey. Relying on Lynch v. Arizona, 136 S. Ct. 1818 (2016), the Court found that Mr. Hulsey was unconstitutionally denied an instruction about parole ineligibility. The Court vacated Mr. Hulsey’s death sentence and remanded for a new penalty phase. (Text of the opinion here.)
Mr. Hulsey argued that the trial court erred when it refused to permit the jury to consider that he was ineligible for parole, in violation of Simmons v. South Carolina, 512 U.S. 154 (1994). The Arizona Supreme Court unanimously agreed. At the aggravation phase, the trial court instructed the jury that, if not sentenced to death, Mr. Hulsey would be sentenced to life with eligibility for “release” after 25 years. Defense counsel asked for an instruction about Mr. Hulsey’s ineligibility for parole, but the instruction was denied. The Supreme Court first noted that, under Lynch, the fact that Mr. Hulsey is eligible for “release” does not diminish his right to inform the jury of his parole ineligibility when his future dangerousness was put at issue (¶128). The Court further found that the prosecutor’s elicitation of testimony and argument about Mr. Hulsey’s history of violence was sufficient to put his future dangerousness at issue, even if future dangerousness wasn’t explicitly argued (¶¶129-132). The Court also found that counsel’s request for a Simmons instruction at the aggravation phase was not subsequently waived during the penalty phase (¶¶133-140).
Additionally, the Court found that the State failed to prove beyond a reasonable doubt that the Simmons error was harmless (¶¶141-144). In deciding this, it looked to the weight of the mitigating evidence, the relative weakness of the aggravation, and the long duration of jury’s penalty deliberation. It also held that counsel’s references to parole ineligibility in closing arguments were not sufficient to cure error. Mr. Hulsey’s death sentence was vacated and remanded for a new penalty phase.
