Originally Published: September 30, 2004 7 a.m.
PRESCOTT – A judge on Tuesday denied a motion to strike the state's addendum to the indictment alleging aggravating circumstance in a child molestation case involving defendant Alexander Ramsey.
During a pretrial conference on Monday, Deputy Yavapai County Attorney Steve Young and Ramsey's attorney, Kenneth Ray, argued two motions – a jury determination of aggravating circumstances and a motion to strike an addendum to the indictment alleging aggravating circumstance that pertains to the penalty stage of the trial.
Yavapai County Superior Court Judge Janis Sterling based her ruling on U.S. Supreme Court and other court cases.
A year ago, authorities arrested Ramsey, 51, in connection with an investigation of an alleged sexual assault involving a 3-year-old child. Ramsey is in custody on charges of four counts of sexual conduct with a minor and four counts of child molestation, for which he will stand trial starting Nov. 30.
Ray argued on Monday that because of a previous court decision the defense believes that prior to any conviction a grand jury must determine any aggravating circumstance and that sentence enhancement allegations must be part of an indictment.
"In this case we have an indictment, in which (sentence) enhancement allegations have not been presented to the jury," he said. "It is not too late to present those to the grand jury."
Ray argued that if those allegations are not part of the indictment that the state cannot present them to a trial jury during the penalty phase if the jury convicts his client.
He said the addendum that the state filed, which includes aggravating factors in the case, is not sufficient because the current law requires that either a grand jury alleges them or a court finds them after conducting a preliminary hearing.
Ray also said that he disagrees with the state that a judge must impose an aggravated term if a jury finds at least one aggravating circumstance to be true beyond a reasonable doubt during the penalty phase of the trial.
"It is still discretionary on the part of the court," he said.
Young argued that Ray's proposition regarding the state's addendum has no basis in the current law.
"There is no case law that says that they (aggravating circumstances) have to be determined during the probable cause phase," he said.
Citing State vs. Nicholas, Young said the judge must deny the defense motion to strike the addendum to the indictment.
Young also said that if a trial jury convicts the defendant and finds at least one aggravating factor beyond a reasonable doubt, that the judge has to sentence the defendant to an aggravated term.
He said in this case the judge would have to impose a prison term between 35 years to life if a jury convicts Ramsey and finds that the victim was younger than 12 when the defendant allegedly committed the crime.
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