State v. Henderson
In State v. Henderson, 210 Ariz. 561,12, 115 P.3d 601, 605 (2005), the Arizona Supreme Court addressed Blakely and Apprendi error in a non-capital context. 210 Ariz. 561,3, 11-12, 115 P.3d at 604-06.
The court contrasted Neder, in which an element omitted from a jury instruction constituted trial error, with Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993), a case in which the United States Supreme Court held that submitting a constitutionally deficient reasonable doubt instruction constituted structural error. Henderson, 210 Ariz. 561,14-15, 115 P.3d at 606.
The supreme court determined Blakely/Apprendi error is trial error, because failure to have a jury find an aggravating factor "more closely resembled" the error in Neder than the faulty reasonable doubt instruction in Sullivan, which had invalidated all of the jury's findings. Id.16-17.