Willie Lee Richmond v. Samuel A. Lewis, Director, Arizona Department of Corrections and Roger Crist, Superintendent of the Arizona State Prison

HARRY PREGERSON, Circuit Judge,

with whom Judges HUG, NORRIS and REINHARDT join, dissenting from denial of rehearing en banc:

By declining to rehear this case en banc, this court sends a man to his death without undertaking even the minimal review that the Supreme Court continues to find appropriate in habeas cases. In this case, even the most deferential review of the record reveals that no rational sentencer could have concluded that Richmond’s mental state was “especially heinous,” as that term is defined by the Arizona Supreme Court. The Arizona Supreme Court’s conclusion that Richmond’s mental state was “especially heinous” turns on the assumption that he was driving the car when it ran over the victim. The identity of the driver, however, was the subject of a credibility dispute. Neither the jury nor the trial court resolved that dispute, and the Arizona Supreme Court is incapable of resolving it rationally.

Moreover, the panel maintains that any error in the finding of an aggravating circumstance is harmless because the sentencing judge concluded that the mitigating circumstances were not sufficiently substantial to call for leniency. The panel’s conclusion is based on the erroneous premise that Arizona law permitted the sentencing court to arrive at such a conclusion without weighing the aggravating factors against the mitigating circumstances. See Richmond v. Lewis, 921 F.2d 933, 947 (9th Cir.1990). By maintaining that Arizona’s statute is not a weighing statute, the panel’s opinion directly conflicts with Arizona case law and the prior decisions of this court. That case law demonstrates that in Arizona, the sentencer evaluates whether the mitigating evidence is sufficiently substantial to warrant leniency by weighing it against the aggravating factors. When an invalid aggravating factor is removed from the scales, the equation can change. Someone must reevaluate the mix of mitigating factors in light of the reduced gravity of the remaining valid aggravating factors.

I

The panel’s opinion acknowledges that the “especially heinous” aggravating circumstance is unconstitutionally vague on its face, but it concludes that the Arizona Supreme Court applied a sufficiently narrow construction of the facially vague term. Once a state appellate court has articulated a constitutionally sufficient narrowing construction of a facially vague aggravating circumstance, federal courts must still review the state courts’ application of that narrowed definition to the facts of a particular case. That review is to be conducted under the deferential “rational factfinder” standard of Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979). A state court’s finding of an aggravating circumstance, including a state appellate court’s finding that a mur *1493 der is “especially heinous,” violates the Constitution if no reasonable sentencer could have made the finding. See Lewis v. Jeffers, — U.S. -, 110 S.Ct. 3092, 3102-03 , 111 L.Ed.2d 606 (1990).

In this case, no rational sentencer could have found that Richmond’s mental state was “especially heinous” as that facially vague term has been narrowed by the Arizona Supreme Court. The limiting definition, as reported in the panel’s opinion, requires that the sentencer make a factual finding about the defendant’s mental state. “Heinous and depraved involve the mental state and attitude of the offender as reflected in his words and actions.” State v. Richmond, 136 Ariz. 312 , 666 P.2d 57, 64 (Ariz.1983), quoted in Richmond v. Lewis, 921 F.2d 933, 943 (9th Cir.1990). In addition, the Arizona Supreme Court tells us that “heinous” means “grossly bad” or “shockingly evil.” The Arizona Supreme Court applies several factors to determine whether the “especially heinous” aggravating circumstance applies. In determining in this case that Richmond’s mental state was grossly bad or shockingly evil, the Arizona Supreme Court mentioned only two of those factors: the infliction of gratuitous violence on the victim and the mutilation of the corpse. I believe that by focusing solely on those two factors in this case, the Arizona Supreme Court could draw rational inferences about the mental state of only one actor: the driver of the car:

Here the victim was already unconscious and bleeding when he was run over not once, but twice, each time from a different direction. The evidence indicates that the first run by the vehicle was over the victim's head crushing his skull and killing him. The second run of the vehicle was over the body of the victim. The investigating officers found, at the location of the murder, two large pools of blood separated by about 30 feet, which was consistent with the body having been run over and dragged to where it was found.

Id., quoted in Richmond, 921 F.2d at 943 .

As this quotation demonstrates, the Arizona Supreme Court clearly focused on the actions of the driver when it determined that the facts warranted a finding that the killer’s mental state was “especially heinous.” The Arizona Supreme Court appeared to assume that Richmond was the driver. Yet neither the jury nor the sentencing court ever found that Richmond was the driver.

Indeed, the driver’s identity has been vigorously disputed throughout this case. Faith Erwin provided the only testimony implicating Richmond as the fatal driver. 1 Richmond has always denied being the fatal driver, and he has witnesses to support him. In his statement to the police, Richmond said that Becky Corella backed the car up over the victim, then drove forward and ran over him again. Richmond v. Ricketts, 640 F.Supp. 767, 771 (D.Ariz.1986). Corella did not testify. 2 A witness for Richmond testified that Erwin earlier reported that Corella had been driving. 640 F.Supp. at 778 . The jury did not determine who drove the car. Because the jury was instructed on felony murder, the jury’s verdict is consistent with either version.

At the sentencing hearing, Richmond submitted additional evidence to show that Corella was the lethal driver. 640 F.Supp. at 778-79 . According to affidavits signed by two witnesses, Corella admitted being the driver. Moreover, an affidavit signed by the prosecutor in the original trial stated that Corella was prepared to testify “and accept blame for the killing.” Id. 3

Neither the jury, the sentencing court, nor the Arizona Supreme Court has ex *1494 pressly resolved the dispute over who drove the car over the victim’s body. Yet the Arizona Supreme Court’s conclusion that Richmond’s mental state was “especially heinous” turns on the tacit assumption that he was the driver.

Just as the jury’s verdict did not necessarily determine that Richmond was the driver, the trial court’s finding that the murder was “especially cruel or heinous” did not turn on any finding that Richmond was the driver. Nor did it turn on any conclusion about Richmond’s mental state. At the time Richmond was sentenced in 1980, the Arizona Supreme Court had not yet narrowed the definition of “especially heinous” to restrict the application of that aggravating circumstance to determinations of the defendant’s mental state or attitude. The sentencing court did not explain why it concluded that the aggravating circumstance applied, nor did it assume that Richmond was driving the car when the victim was run over. The findings and special verdict of the sentencing court do not even discuss the identity of the driver.

Nevertheless, the identity of the driver was an issue on appeal to the Arizona Supreme Court. While Richmond’s case was on appeal, the United States Supreme Court decided Edmund v. Florida, 458 U.S. 782 , 102 S.Ct. 3368 , 73 L.Ed.2d 1140 (1982), which held that the Constitution forbids capital punishment for certain types of felony murder convictions. In Edmund , the Court determined that states cannot execute defendants convicted of felony murder unless they actually killed, attempted to kill, or intended that a killing occur. See Cabana v. Bullock, 474 U.S. 376, 378 , 106 S.Ct. 689, 693 , 88 L.Ed.2d 704 (1986). Richmond contended that the ruling of Edmund should spare him from execution.

The Arizona Supreme Court’s discussion of the Edmund argument is the only section of the state supreme court opinion that discusses the dispute over the driver’s identity. As I read the opinion of the state supreme court, it determined that Richmond’s Edmund argument was a loser no matter who drove the car. Even under Richmond’s version of the facts, the court noted, Richmond’s level of involvement in the crime was substantial enough that it satisfied Edmund , without regard to whether Richmond was responsible for the final lethal action. See State v. Richmond, 666 P.2d at 63 .

Although the Arizona Supreme Court discussed the dispute over the identity of the driver, the Arizona courts resolved the Edmund question without determining whether or not Richmond drove the car. The Arizona Supreme Court was institutionally incapable of resolving the credibility dispute over the identity of the driver. See Cabana v. Bullock, 474 U.S. 376 , 388 n. 5, 106 S.Ct. 689 , 698 n. 5, 88 L.Ed.2d 704 (1986). Conceivably, the Arizona Supreme Court could have determined that the sentencing court actually made an Edmund finding, and could have further determined that such a finding was supported by the evidence. The record, however, shows that the sentencing court made no Edmund finding, nor did it determine whether Richmond or Corella drove the car over the victim. 4 The opinion of the panel confirms that it was the state supreme court, not the sentencing court, that resolved the Edmund question. See Richmond 921 F.2d at 948 (“Nor does it matter that the Edmund finding was made by the state supreme court rather than by the original sentencing court”).

*1495 In sum, although the sentencing court may have been capable of resolving the dispute over the identity of the driver, it did not do so. The factfinder in this case can only be the Arizona Supreme Court. Yet the Arizona Supreme Court could not rationally resolve this factual dispute on the basis of a cold record. See Cabana, 474 U.S. at 388 n. 5, 106 S.Ct. at 698 n. 5. Nevertheless, the Arizona Supreme Court’s conclusion that Richmond’s mental state was “especially heinous” depends on the assumption that Richmond, not Corella, deliberately drove the car over the victim’s body. Applying the deferential standard articulated by the Supreme Court, I do not see how, under these circumstances, any rational factfinder could conclude that the “especially heinous” aggravating circumstance, as narrowed and defined by the Arizona Supreme Court, applied in this case.

II

Richmond was sentenced to death on the basis of three aggravating factors. Because Richmond does not challenge the application of two of those aggravating factors, the panel asserts in part IV.D. of its opinion that any error in applying the “especially heinous” aggravating circumstance is harmless. I strongly disagree. In Richmond’s case, the trial court arrived at a verdict of death only after weighing the mitigating evidence against the aggravating factors. Because the ultimate sentencing determination in Arizona involves a balancing of the mitigating evidence against the aggravating factors, Arizona is a “weighing” state, as the Supreme Court used that term in Clemons v. Mississippi, 494 U.S. 738 , 110 S.Ct. 1441, 1446, 1450 , 108 L.Ed.2d 725 (1990). If the sentencing court’s balancing included a constitutionally invalid aggravating factor, the fact that the scales also contained a valid aggravating factor does not, as the panel believes, dispose of Richmond’s claim. In weighing states, the rule of Lockett v. Ohio, 438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978), forbids such an “automatic rule of affirmance,” because “it would not give defendants the individualized treatment that would result from actual reweighing of the mix of mitigating factors and aggravating circumstances.” Clemons, 110 S.Ct. at 1450 . There must either be a resentencing, see Creech v. Arave, 928 F.2d 1481, 1489 (9th Cir.1991); Adamson v. Ricketts, 865 F.2d 1011, 1038-39 (9th Cir.1988) (en banc), or at a minimum, the Arizona courts must re weigh the defendant’s mitigating evidence against the valid aggravating factors.

In expounding its view that any error in the finding of the “especially heinous” aggravating circumstance was harmless, the panel begins with the erroneous premise, which it advances without citing any case law, that Arizona is not a weighing state. See Richmond, 921 F.2d at 947 . That premise is simply wrong. The language of the Arizona statute, as well as the cases of this court and the Arizona Supreme Court, establish that Arizona is indeed a weighing state.

It appears that the panel misreads Arizona law simply because the statute’s text does not include the word “weigh.” Nevertheless, it is clear that the statute requires weighing. If the trial court finds any aggravating circumstances, it must then make findings on the existence of mitigating circumstances. It is only after the trial court has made findings on the existence of both that it must make the sentencing decision. The statute requires a sentence of death if there are any aggravating circumstances “and there are no mitigating circumstances sufficiently substantial to call for leniency.” Ariz.Rev.Stat. § 13-703(E).

Without citing any authority, the panel mistakenly concludes that the aggravating circumstances do not influence the Arizona sentencer’s inquiry into whether the mitigating circumstances are sufficiently substantial. 921 F.2d at 947 . On the contrary, it is clear that the trial judge determines whether the mitigating circumstances are “sufficiently substantial” by evaluating them in relation to the aggravating circumstances that exist. This is a balancing, a process of weighing.

*1496 Numerous cases of the Arizona Supreme Court confirm that the sentencer determines whether mitigating evidence is “sufficiently substantial” by weighing it against aggravating circumstances. See, e.g., State v. Rossi, 146 Ariz. 859 , 706 P.2d 371, 379 (Ariz.1985) (“Once the trial judge finds that defendant’s capacity was significantly impaired ... a mitigating factor arises which is then weighed against any aggravating circumstances that the trial judge may find to determine whether mitigating factors are sufficiently substantial to call for leniency”); State v. Harding, 670 P.2d 383, 397 (Ariz.1983) (“We have described the formula of ‘sufficiently substantial to call for leniency’ as involving the weighing of aggravating against mitigating circumstances on the basis of the gravity of each circumstance.”); State v. Gretzler, 135 Ariz. 42 , 659 P.2d 1, 13 (1983) (determining whether mitigating circumstances are sufficiently substantial involves weighing and balancing of aggravating and mitigating circumstances that are present). The Arizona Supreme Court has clearly explained that determining whether mitigating circumstances exist is distinct from the final balancing test:

[T]he trial court acts first as the fact finder. It must consider whether the state has proven any of the aggravating factors.... It must also determine whether the defendant has shown mitigating circumstances.... After the trial court has made these findings of fact, it then engages in a balancing test in which it determines whether the mitigating factors are sufficiently substantial to call for leniency.

State v. Leslie, 147 Ariz. 38 , 708 P.2d 719, 730 (1985), quoted in Adamson v. Ricketts, 865 F.2d 1011, 1063 (9th Cir.1988) (en banc) (Brunetti, J., dissenting). The Arizona case law thus confirms that the panel in this case has misconstrued the operation of the Arizona statute.

The panel has not simply misinterpreted Arizona law; it has also overlooked our prior cases. Although some portions of our opinion in Adamson v. Ricketts, 865 F.2d 1011 (9th Cir.1988) (en banc), have not survived as good law, our description of the Arizona statute remains valid. We explained that after the parties have established the existence of aggravating and mitigating circumstances, “the court must weigh the aggravating circumstance(s) against the mitigating circumstanee(s).” Id. at 1040 ; see also id. at 1065-66 (Brunetti, J., dissenting). In Adamson , the State of Arizona itself acknowledged that the statute requires the sentencer to balance. See id. at 1043 . 5

In Richmond’s case, the trial court found that there were a number of mitigating circumstances. See State v. Richmond, 136 Ariz. 312 , 666 P.2d 57, 65 (1983). It was only by comparing them to the aggravating circumstances that the sentencer concluded that they were not sufficiently substantial to warrant leniency. If a reviewing court’s analysis reduces the number of valid aggravating circumstances, it reduces the weight and gravity of the aggravating factors that the sentencer may permissibly consider. The reviewing court can no longer rely on an earlier finding that the mitigating circumstances were not sufficiently substantial to call for leniency. A new balancing must be conducted in order to determine whether the mitigating circumstances are sufficiently substantial in relation to the remaining valid aggravating factors.

The panel fails to recognize that the findings of no mitigating circumstances sufficiently substantial to call for leniency is simply the end result of the balancing or weighing that the Arizona statute requires. It is not an isolated finding of fact. It depends on the nature and gravity of the aggravating circumstances. If the sentencing court weighed the mitigating circumstances against both valid and invalid *1497 aggravating circumstances, then the sentence of death cannot stand. At a minimum, there would have to be a determination whether the mitigating circumstances, when weighed against the remaining valid aggravating circumstances, were sufficiently substantial to call for leniency.

Ill

Because no rational sentencer could have found that the “especially heinous” aggravating factor applied, Richmond is entitled to further proceedings in the state courts. Richmond presented a considerable amount of mitigating evidence at his sentencing hearing. Indeed, one justice of the Arizona Supreme Court would have reversed the sentence of death on the strength of the mitigating evidence. See Richmond, 666 P.2d at 69 (Feldman, J., dissenting). Richmond is entitled to have the Arizona courts reevaluate the strength of that mitigating evidence in relation to the valid aggravating factors, with the invalid “especially heinous” factor removed from the scales.

. Erwin received immunity in return for her testimony. Richmond v. Ricketts, 640 F.Supp. 767 , 792 n. 30 (D.Ariz.1986).

. Corella was granted immunity, but neither the prosecution nor the defense called her as a witness. State v. Richmond, 114 Ariz. 186 , 560 P.2d 41, 44 (1976).

.In discussing the procedural history of the case, the panel’s opinion mentions that Richmond filed one of these affidavits in a petition for post-conviction relief. 921 F.2d at 936 . It does not discuss the other affidavits.

. The opinion of the Arizona Supreme Court includes one sentence that suggests that the sentencing court resolved the credibility conflict and made a factual finding that Richmond drove the car. The court said that "the trial judge was justified in concluding that appellant drove the vehicle that was used to kill the victim." State v. Richmond, 136 Ariz. 312 , 666 P.2d 57, 63 (1983). This sentence suggests that the Arizona Supreme Court believed that the trial court made a finding about the driver’s identity. If so, then the court was mistaken. There is simply nothing in the record to suggest that the trial judge made any conclusion about whether Richmond or Corella drove the car. If any state court can be said to have determined the identity of the driver, it is the Arizona Supreme Court, not the sentencing court. Yet the Arizona Supreme Court could not rationally determine whether it was Richmond or Erwin who was telling the truth.

. The panel’s opinion also conflicts with our previous reading of the virtually identical language of Montana’s capital sentencing statute. In Montana, as well as Arizona, the sentencer determines whether mitigating evidence is sufficiently substantial to warrant leniency by viewing it in relation to the aggravating circumstances that have been established. See Smith v. McCormick, 914 F.2d 1153 (9th Cir.1990).