Jimmie Wayne Jeffers v. Samuel Lewis, Director, Arizona Department of Corrections, Donald B. Wawrzaszek, Superintendent, Arizona State Prison

WILSON, District Judge,

dissenting:

The majority again oversteps the proper role of a federal court hearing a challenge to the constitutionality of a death sentence un *1210 der state law. Accordingly, I must again respectfully dissent.

The majority believes the Arizona Supreme Court may not have discharged its constitutional duty to reweigh the aggravating and mitigating evidence after invalidating one aggravating circumstance and modifying another. The majority’s conclusion in this regard is not supported by the record and is wholly at odds with deferential habeas corpus review.

The record in this case shows the sentencing judge and Arizona Supreme Court fully considered all mitigating evidence offered by petitioner and separately concluded this evidence did not call for leniency.

A. The Sentencing Hearings

Petitioner’s claim for leniency principally rested on the argument that his use of heroin, both on the day of the murder and over the long run, diminished his capacity to conform his conduct to the requirements of the law — particularly given his “stormy” love-hate relationship with the victim. These dual themes of intoxication and provocation were presented to the sentencing judge under a single “diminished capacity” argument, both at the first sentencing (6/14/78 RT 60, 64-72), 1 and at the resentencing, (7/10/80 RT 46,127), although they were framed as distinct statutory mitigating circumstances. (7/10/80 RT 173-174, 209-10).

The sentencing judge heard a great deal of evidence at trial concerning petitioner’s drug usage, as well as petitioner’s relationship with the victim, a former girlfriend. The testimony at trial showed petitioner used heroin on the day of the murder, but the testimony of the only eye witness to the crime showed petitioner’s behavior was not impaired in any meaningful way while committing the murder. Petitioner had a high tolerance for heroin (6 RT 110-111, 7 RT 94, 6/20/80 RT 44, 57), and could manage very well on drugs. (8 RT 92). Petitioner’s coordination was not impaired while strangling his victim and disposing of the body, (8 RT 91), and his excited and aggressive behavior during the killing was inconsistent with using heroin, which as a depressant, inhibits aggressive behavior. (6/20/80 RT 7, 121).

The testimony at trial also showed that the victim refused to engage in sex with petitioner unless he paid her, and may have provided information to the police about petitioner’s criminal activities. The record further shows the court instructed the jury on the requested defenses of intoxication and voluntary manslaughter. (6/14/78 RT 74).

At the original sentencing, petitioner called a psychiatrist who offered his opinion that petitioner’s capacity to conform his conduct to societal norms was likely impaired at the time of the killing, given his use of heroin and his stressful relationship with the victim. The state presented no rebuttal expert testimony.

The sentencing judge rejected petitioner’s claim of diminished capacity, but clearly considered petitioner’s unrebutted evidence:

Since you have argued to the Court that • mitigating circumstances 1 and 2 existed, that if those circumstances exist as you have argued to me, they did exist, that they would not in the Court’s judgment be sufficiently substantial to call for leniency in view of the aggravating circumstances in this case.

(6/14/78 RT 87).

On appeal, the Arizona Supreme Court held that, under Lockett v. Ohio and State v. Watson, petitioner was entitled to present any relevant mitigating evidence, not just the evidence deemed relevant by statute. At the resentencing, petitioner represented the evidence concerning his diminished capacity due to intoxication and provocation, along with a new .claim. Petitioner for the first time claimed that he truthfully denied responsibility for the murder while under the influence of sodium amytal. 2

*1211 The sentencing judge acknowledged its duty to consider “each and every possible mitigating circumstance that is urged,” (6/20/80 RT 138), “regardless of whether it’s ever been mentioned before.” (6/20/80 RT 177).

Petitioner called the same psychiatrist who testified at the first sentencing to explain petitioner’s intoxication and duress, as well as to explain the new evidence concerning sodium amytal. Petitioner offered the evidence of his statements under sodium amytal as direct evidence of his innocence — the “ultimate” mitigating evidence. (6/20/80 RT 142-43). 3 Petitioner further suggested the sodium amytal evidence tended to disprove the existence of the two aggravating circumstances previously found by the court. (6/20/80 RT 147).

The state called its own psychiatrist in rebuttal. The state’s expert believed petitioner might have been somewhat impaired at the time of the murder, due to his use of heroin and the difficult love-hate relationship with the victim, but rejected petitioner’s claim that prolonged use of heroin would in itself cause a lessening in capacity to conform one’s conduct to societal norms. (6/20/80 RT 123, 127). The state’s psychiatrist further testified that the evidence concerning petitioner’s statements under sodium amytal was unreliable since the literature shows most people are able to maintain a lie while under the influence of sodium amytal. (6/20/80 RT 87). 4

Due to the length of the testimony from the psychiatrists, and the court’s interest in reviewing the literature on sodium amytal (6/20/80 RT 144),, the court adjourned the sentencing hearing for three weeks. (6/20/80 RT 167). At the reconvened resentencing, final arguments were presented. The sentencing judge then found the same two aggravating circumstances and again concluded petitioner had failed to prove the existence of mitigating circumstances.

I quote at length from the sentencing judge’s special verdict to show the sentencer’s careful attention to the evidence offered in mitigation:

Mitigating Circumstances, Subsection G. The Court finds that there are no mitigating circumstances. In this regard, the Court has considered all evidence presented in the trial and in the post-trial hearings, the pre-sentence report and all accompanying documents.

The Court has further considered all of the possible mitigating circumstances which were enumerated in subparagraph 1 through 4 of subsection G. under A.R.S. 13-454, and the Court has further considered the possible mitigating circumstances set forth in subparagraph 1 through 5 of the new A.R.S. 13-703, section G.

The Court’s Search for mitigating circumstances has not been limited to either of these statutes but pursuant to State v. Watson and Lockwood v. Ohio (sic) the Court has considered any possible mitigating circumstance.

It is true that the defendant was an addict and was both drinking and using narcotics on the date of the offense, but there is no credible evidence that the defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired.

***** *

*1212 Likewise, there is no credible evidence that the defendant was under unusual and substantial duress. There is evidence that he may have had reason to be provoked and was under some stress and that he may have had motives for killing Penelope Cheney, but nothing more.

These findings of the existence of aggravating circumstances and the nonexistence of any mitigating circumstances are both made beyond a reasonable doubt.

7/14/80 RT at 216-17.

The majority’s effort to premise constitutional error on the sentencing judge’s consideration of the mitigating evidence is unsound. The majority claims that sentencing court should have considered petitioner’s heroin addiction, intoxication, and relationship with his victim as “nonstatutory mitigating factors,” even if the sentencing court correctly determined the evidence did not make out a statutory mitigating circumstance. The majority in effect creates an obligation on the part of - state courts to expressly discuss, under the rubric “nonstatutory mitigation,” all evidence which falls short of the statutory threshold for mitigation.

The majority’s exceedingly technical analysis elevates form over substance without constitutional imperative — and without any justification in the record. It is clear from the transcripts of the sentencing hearings that the judge who sentenced petitioner to death fully considered the evidence of addiction, intoxication, and duress and found no mitigating circumstances. The judge said so. The judge properly considered the evidence under the statutory and non-statutory categories of mitigating circumstances.

Moreover, there was no meaningful residual category of evidence left over once the sentencing judge concluded petitioner had failed to prove either statutory mitigating circumstances. Intoxication which does not lead to a significant impairment simply does not call into question the defendant’s responsibility for his actions or otherwise further a claim for leniency — i.e., it is not relevant mitigating evidence. The Arizona Supreme Court has recognized as much, holding that intoxication at the time of the murder, without a showing of significant impairment, is not a mitigating circumstance. State v. Lopez, 163 Ariz. 108, 114 , 786 P.2d 959, 965 (1990); State v. Rossi, 146 Ariz. 359 , 706 P.2d 371, 379 (1985); State v. Woratzeck, 134 Ariz. 452, 458 , 657 P.2d 865, 871 (1982). 5

Likewise, the fact that petitioner was angered by Penelope Cheney’s conduct has no tendency to call for leniency unless it can be said that petitioner’s emotions interfered with his ability to conform his conduct to the requirements of the law. 6

On this record, where the transcripts clearly show the sentencing court considered the evidence offered in mitigation, federal habeas corpus review is limited to whether a rational factfinder could have found no mitigating circumstances to be present. Parker *1213 v. Dugger, 498 U.S. 308, 321-23 , 111 S.Ct. 731, 740 , 112 L.Ed.2d 812 (1991) (citing Lewis v. Jeffers, 497 U.S. 764 , 110 S.Ct. 3092 , 111 L.Ed.2d 606 (1990)). Under this properly deferential standard, the Arizona sentencing court’s finding that petitioner had not proved any mitigating circumstances by á preponderance of the evidence withstands constitutional scrutiny. 7

Because the sentencing court clearly accepted petitioner’s claims as legally relevant to the issue of mitigation, and just as clearly rejected those claims due to the lack of credible evidence in support of them, I cannot agree with the majority’s conclusion that the Arizona Supreme Court had mitigating evidence to weigh on appeal.

B. The Opinion of the Arizona Supreme Court

The record on appeal shows the Arizona Supreme Court independently considered the mitigating evidence offered by petitioner. The Court reviewed in detail the evidence of drug intoxication offered by petitioner, and agreed with the sentencing judge that there was no credible evidence of a significant impairment. State v. Jeffers, 135 Ariz. 404, 428, 431 , 661 P.2d 1105, 1129, 1132 (1983). The Court likewise surveyed the evidence concerning petitioner’s love-hate relationship with the victim, and affirmed the trial court’s findings that petitioner had not killed in the heat of passion. Id. The Arizona Supreme Court also rejected petitioner’s claim that he truthfully maintained his innocence while under the effects of sodium amytal. The Arizona Supreme Court noted that both the defense psychiatrist and state psychiatrist agreed that people can lie while under the influence of sodium amytal. Id. The Arizona Supreme Court further stated:

The trial Court had this medical testimony before it to determine appellant’s credibility as well as evidence adduced at trial including appellant’s own testimony along with appellant’s prior conviction for forgery introduced for impeachment purposes. The record shows the trial court considered all the evidence presented at trial • and at the post-trial hearings and found no mitigating facts sufficiently substantial to call for leniency.

Id.

The' majority makes much of this last sentence,' contendihg that it is unclear whether the Arizona high court agreed with the sentencing court that no mitigating circumstances were present, or that mitigating circumstances were present but were not sufficiently substantial to call for leniency. A fair review of the record shows the Arizona Supreme Court did not modify the sentencing court’s findings that petitioner had.failed to present, credible evidence of any mitigating circumstances. See Jeffers v. Ricketts, 627 F.Supp. 1334, 1356 (D.Ariz.1986). More importantly, I don’t see how petitioner can complain if the Arizona Supreme Court found some mitigating 'force in the "evidence he presented. Surely if the Arizona Supreme Court credited this marginal mitigating evidence, the Court was capable of discharging its statutory and constitutional duty to weigh that evidence against the remaining aggravating circumstances. The Arizona Supreme Court acknowledged that it was obligated to undertake an independent review, including an independent reweighing of the aggravating and mitigating circumstances. 135 Ariz. at 428, 431-32 , 661 P.2d at 1129, 1132-33 . The Arizona Supreme Court stated it was reweighing consistent with its legal duty. Id. at 431-32 , 661 P.2d at 1132-33 . State courts are presumed to follow the law. Walton v. Arizona, 497 U.S. 639, 652-54 , 110 S.Ct. 3047, 3057 , 111 L.Ed.2d 511 (1990); Parker v. *1214 Dugger, 498 U.S. at 314-16 , 111 S.Ct. at 736 . Nothing in the record overcomes this presumption. 8

This case has travelled through the trial and appellate courts of Arizona and the federal system' for thirteen years. Today’s holding imposes new obligations on the state courts without justification in the Constitution or in the record — and ultimately to no avail. The courts of Arizona, which carefully evaluated petitioner’s mitigating evidence, will now tell this court' what everyone else knows: In the judgment *of the Arizona courts, the mitigating evidence offered by petitioner thirteen years ago, whether considered as statutory, or nonstatutory mitigating circumstances, did not call for leniency then and does not call for leniency now.

I respectfully dissent.

. This reference is to the reporter's transcript of June 14, 1978. Where a reference to a reporter’s transcript is made without a specific date, the citation is to the particular volume of the reporter’s transcript of the trial.

. The majority claims petitioner also introduced evidence of "his difficult childhood,” supra at p. 1204, but the record shows petitioner’s mother testified that her son was "a regular boy” involved in archery and coin collecting until he became involved in narcotics. (6/14/78 RT 78). *1211 Thus, there is no category of mitigating evidence concerning a troubled childhood separate from the evidence concerning petitioner's addiction to drugs.

. THE COURT: What finding are you expecting the Court to make because of the sodium' amytal evidence? Is this directed toward a finding of a mitigating circumstance?

MR. KLEIN: Yes.

THE COURT: What is the mitigating circumstance, that the defendant still maintains his innocence?

MR. KLEIN: That he didn't do the crime, yes.

THE COURT: That's the only thing I could figure out.

MR. KLEIN: That's what it's for.

THE COURT: That's the only thing I could figure out.

MR. KLEIN: I guess that's the ultimate mitigation.

. Petitioner's psychiatrist conceded that people can lie under the influence of sodium amytal (RT 63), particularly if they have a vested interest in maintaining the lie (RT 74), although he felt petitioner was- not lying.

. The Arizona Supreme Court's determination that evidence of intoxication, without some meaningful level of impairment, is not relevant evidence in mitigation, reflects a considered judgment about the role of drugs and alcohol in capital crimes. The fact that many if not most death-eligible defendants consumed drugs or alcohol prior to committing first degree murder does not alone help to explain why those individuals should be shown mercy. The voluntary act of taking drugs or alcohol has no tendency to mitigate unless it can also be sáid that the person's behavior was in some significant manner influenced by that act. I believe the Arizona courts may classify such evidence as irrelevant to the issues of mitigation without violating the Constitution. See Harris v. Pulley, 885 F.2d 1354, 1383 (9th Cir.1988), as amended, (9th Cir.1989) (courts need not consider as a mitigating circumstance evidence that a death-eligible defendant suffers from an anti-social personality since that disorder commonly afflicts those who kill), cert. denied, 493 U.S. 1051 , 110 S.Ct. 854 , 107 L.Ed.2d 848 (1990).

. The majority does not dispute the Arizona Supreme Court's conclusion that the sentencing court considered the sodium amytal evidence. This evidence was presented at the resentencing hearing June 20, 1980, involved lengthy examination and cross-examination of two medical expert witnesses, and consisted in part of published articles which the sentencing judge said he read. (7/10/80 RT 177). When the sentencing court concluded beyond a reasonable doubt that petitioner killed Penelope Cheney, this evidence dropped out of the equation. Contrary to the majority's assertion, supra at 1205, there was no residual category of sodium amytal evidence left for the Arizona Supreme Court to consider on appeal.

. Contrary to the majority's claims that the sentencing judge and state supreme court should have expressly discussed the mitigating evidence as "nonstatutoiy” mitigation, supra at pp. 1204 and 1207, due process does not require that the sentencer exhaustively document its analysis of each mitigating factor. Jeffries v. Blodgett, 988 F.2d 923, 939 (9th Cir.1993) (citing Parker v. Dugger, 498 U.S. 308 , 111 S.Ct. 731, 736-38 , 112 L.Ed.2d 812 (1991)); Clark v. Ricketts, 958 F.2d 851 (9th Cir.1992), cert. denied sub nom. Clark v. Lewis,— U.S. —, 113 S.Ct. 117 , 121 L.Ed.2d 73 (1992). So long as a reviewing federal court can discern from the record that the state court did indeed consider all mitigating evidence offered by the petitioner, nothing more is required. Id.

. The majority suggests that the Arizona Su- • preme Court overlooked relevant mitigating evidence in the form of plea negotiations. Petitioner, however; never presented this evidence as a mitigating factor — not at the first sentencing, not at the resentencing, and not on appeal. Petitioner raised the plea negotiations in his opening appellate brief but only for the limited purpose of arguing that the State of Arizona’s subsequent decision to seek the death penalty constituted an impermissible penalty on his right to trial. This familiar constitutional argument has no bearing on whether the Arizona courts adequately considered the mitigating evidence presented by petitioner.