State v. Hardwick
In State v. Hardwick, 183 Ariz. 649, 905 P.2d 1384 (App. 1995), the defendant was convicted of sixteen out of eighteen counts of attempted child molestation, child molestation, sexual conduct with a minor, indecency, and sexual abuse. 183 Ariz. at 651, 905 P.2d at 1386.
The trial court sentenced the defendant to sixteen consecutive prison sentences, two of which were aggravated, for a total of 224 years of imprisonment. Id.
Although the Court reversed the convictions, the Court also addressed a sentencing error. Id. at 656, 905 P.2d at 1391.
The trial court's comments revealed two reasons for aggravating the sentences: lack of contrition and harm to the victim. Id.
The Court explained that the defendant's lack of contrition "was tantamount to a refusal to admit guilt" and that it would be "irrational or disingenuous" to expect one who maintains his innocence to express contrition or remorse. Id.
Thus, the Court concluded that a "convicted defendant's decision not to publicly admit guilt is irrelevant to a sentencing determination, and the trial court's use of this decision to aggravate a defendant's sentence offends the Fifth Amendment privilege against self-incrimination." Id.
Because the record did not reflect that the trial court would have imposed the maximum aggravated sentence without considering lack of contrition, we stated that resentencing would have been necessary had we not reversed the convictions on other grounds. Hardwick, 183 Ariz. at 657, 905 P.2d at 1392.
The prosecutor relied on an unadmitted exhibit that purported to list the traits of child molesters. Id. at 653. The exhibit was not supported by any expert testimony nor was any foundation given as to its reliability. Id. Over the objection of defense counsel, the prosecutor cross-examined the defendant as to the listed characteristics and then asked him, "based on identifying pedophiles, you are a classic child molester, isn't that true?" Id.
The Court concluded the trial court committed reversible error because the evidence was not properly admitted and the prosecutor's remarks during closing argument about the traits of pedophiles were directly tied to the inadmissible document. Id. at 654.