Petition for Writ of Certiorari — Leroy D. Cropper, Petitioner v. Arizona
Supreme Court briefMar 5, 2020
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No. ______
In The
Supreme Court of the United States
LEROY D. CROPPER,
Petitioner,
v.
STATE OF ARIZONA,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPERIOR COURT OF ARIZONA,
MARICOPA COUNTY
PETITION FOR A WRIT OF CERTIORARI
MICHAEL J. MEEHAN
LAW OFFICE OF MICHAEL
MEEHAN
3938 E. Grant Road
No. 423
Tucson, AZ 85712
(520) 529-1969
mmeehan.az@msn.com
TODD E. HALE
TODD HALE LAW PLLC
The Historic Palacio
Ruelas
290 N. Meyer Avenue
Tucson, AZ 85701
(520) 256-1012
todd@toddhalelaw.com
MELISSA ARBUS SHERRY
Counsel of Record
GREGORY G. GARRE
JAMES A. TOMBERLIN*
LATHAM & WATKINS LLP
555 Eleventh Street, NW
Suite 1000
Washington, DC 20004
(202) 637-2200
melissa.sherry@lw.com
*Admitted to practice in
New York only. All work
supervised by a member of
the DC Bar.
Counsel for Petitioner
CAPITAL CASE
QUESTION PRESENTED
In Simmons v. South Carolina, 512 U.S. 154
(1994), this Court held that a capital defendant is
entitled to inform the jury about his parole
ineligibility when future dangerousness is at issue. In
2016, the Court summarily reversed the Arizona
Supreme Court for refusing to allow a capital
defendant to inform the jury about his parole
ineligibility. See Lynch v. Arizona, 136 S. Ct. 1818
(2016) (per curiam). In this case, the Arizona courts
again upheld a death sentence even though the jury
was never told that the capital defendant was
ineligible for parole. The difference between this case
and Lynch is that the jury here was never told
because defense counsel never asked.
The question presented is:
Whether a death sentence may be carried out
when defense counsel unreasonably fails to inform
the jury of parole ineligibility under Simmons v.
South Carolina, 512 U.S. 154 (1994), resulting in
prejudice.
ii
LIST OF RELATED PROCEEDINGS
State v. Cropper, No. CR 1997-003949, Arizona
Superior Court, Maricopa County. Special Verdict
filed November 16, 2000. Sentenced to Death on May
2, 2008. Petition for Post-Conviction Relief dismissed
February 8, 2017.
State v. Cropper, No. CR 00-0544, Arizona Supreme
Court.
Judgment entered May 5, 2003.
Supplemental Judgment entered September 5, 2003.
State v. Ring (consolidated cases, including State v.
Cropper, No. CR 00-0544), Nos. CR 97-0428 et al.,
Arizona Supreme Court. Judgment entered April 3,
2003.
State ex rel. Thomas v. Heilman (Leroy D. Cropper,
Real Party in Interest), No. 1 CA-SA 08-0009, Arizona
Court of Appeals. Order declining petition for special
action filed January 17, 2008.
State v. Cropper, No. CR 08-0116, Arizona Supreme
Court. Judgment entered March 11, 2010.
Cropper v. Arizona, No. 10-5584, United States
Supreme Court. Petition for Writ of Certiorari denied
October 18, 2010.
State v. Cropper, No. 17-0566, Arizona Supreme
Court. Petition for Review of Order Dismissing
Petition for Post-Conviction Relief denied October 23,
2019.
iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED ......................................... i
LIST OF RELATED PROCEEDINGS ...................... ii
TABLE OF AUTHORITIES ...................................... v
OPINIONS BELOW ................................................... 1
JURISDICTION ......................................................... 1
CONSTITUTIONAL PROVISIONS
INVOLVED ......................................................... 2
INTRODUCTION ...................................................... 2
STATEMENT OF THE CASE ................................... 3
REASONS FOR GRANTING THE WRIT............... 10
I.
COUNSEL WAS DEMONSTRABLY
INEFFECTIVE UNDER SIMMONS ............... 12
A. Counsel’s Failure To Ensure That The
Jury Was Informed Of Cropper’s Parole
Ineligibility Was Patently Deficient ............ 14
B. Counsel’s Failure To Inform The Jury Of
Cropper’s Parole Ineligibility Was
Prejudicial..................................................... 19
1. Simmons
Errors
Result
In
Inescapable Prejudice ............................ 20
2. There Is Overwhelming Evidence Of
Actual Prejudice Here ............................ 23
II. THIS COURT’S INTERVENTION IS
NEEDED ........................................................... 27
CONCLUSION ......................................................... 30
iv
TABLE OF CONTENTS—Continued
Page
APPENDIX
Ruling Dismissing Petition for Post-Conviction
Relief, State v. Cropper, No. CR 1997003949 (Ariz. Super. Ct., Maricopa Cty.
Feb. 7, 2017) ........................................................1a
Order Amending Ruling Dismissing Petition
for Post-Conviction Relief, State v.
Cropper, No. CR 1997-003949 (Ariz. Super.
Ct., Maricopa Cty. June 30, 2017) ...................64a
Order Denying Petition for Review of Order
Dismissing Petition for Post-Conviction
Relief, State v. Cropper, No. CR-17-0566PC (Ariz. Oct. 23, 2019) ....................................66a
Opinion of the Supreme Court of Arizona, State
v. Cropper, 68 P.3d 407 (Ariz. 2003) ................68a
Supplemental Opinion of the Supreme Court of
Arizona, State v. Cropper, 76 P.3d 424
(Ariz. 2003) ........................................................80a
Opinion of the Supreme Court of Arizona, State
v. Cropper, 225 P.3d 579 (Ariz. 2010) ..............91a
U.S. Const. amend. VI ..........................................110a
U.S. Const. amend. XIV, § 1 .................................111a
v
TABLE OF AUTHORITIES
Page(s)
CASES
Baze v. Rees,
553 U.S. 35 (2008) ................................................22
Cropper v. Arizona,
562 U.S. 982 (2010) ................................................9
Eddings v. Oklahoma,
455 U.S. 104 (1982) ..............................................22
Engle v. Isaac,
456 U.S. 107 (1982) ..............................................19
Foster v. Chatman,
136 S. Ct. 1737 (2016)..........................................24
Harrington v. Richter,
562 U.S. 86 (2011) ................................................28
Kelly v. South Carolina,
534 U.S. 246 (2002) ...................................... passim
Lankford v. Idaho,
500 U.S. 110 (1991) ..............................................22
Lockhart v. Fretwell,
506 U.S. 364 (1993) ..............................................20
Lynch v. Arizona,
136 S. Ct. 1818 (2016).................................. passim
Massaro v. United States,
538 U.S. 500 (2003) ..............................................19
vi
TABLE OF AUTHORITIES—Continued
Page(s)
Mickens v. Taylor,
535 U.S. 162 (2002) ..............................................20
Mickens v. Virginia,
513 U.S. 922 (1994) ..............................................28
O’Dell v. Netherland,
521 U.S. 151 (1997) ..............................................28
Price v. North Carolina,
512 U.S. 1249 (1994) ............................................28
Ramdass v. Angelone,
530 U.S. 156 (2000) ..............................................28
Ring v. Arizona,
536 U.S. 584 (2002) .................................... 6, 23, 27
Rompilla v. Beard,
545 U.S. 374 (2005) ..............................................28
Shafer v. South Carolina,
532 U.S. 36 (2001) ........................................ passim
Simmons v. South Carolina,
512 U.S. 154 (1994) ...................................... passim
State v. Benson,
307 P.3d 19 (Ariz. 2013) ......................................18
State v. Boyston,
298 P.3d 887 (Ariz.), cert. denied,
571 U.S. 870 (2013) ..............................................18
vii
TABLE OF AUTHORITIES—Continued
Page(s)
State v. Cruz,
181 P.3d 196 (Ariz. 2008), cert.
denied, 555 U.S. 1104 (2009) ...............................15
State v. Escalante-Orozco,
386 P.3d 798 (Ariz.), cert. denied,
138 S. Ct. 238 (2017)............................................18
State v. Hardy,
283 P.3d 12 (Ariz. 2012), cert.
denied, 568 U.S. 1127 (2013) ...............................18
State v. Hausner,
280 P.3d 604 (Ariz. 2012) ....................................18
State v. Hensley,
691 P.2d 689 (Ariz. 1984) ......................................5
State v. Ring,
65 P.3d 915 (Ariz. 2003) ........................................6
State v. Rushing,
404 P.3d 240 (Ariz. 2017), cert.
denied, 139 S. Ct. 66 (2018) .................................18
Strickland v. Washington,
466 U.S. 668 (1984) ............................ 14, 18, 20, 24
United States v. Cronic,
466 U.S. 648 (1984) ..............................................20
Weaver v. Massachusetts,
137 S. Ct. 1899 (2017)..........................................20
viii
TABLE OF AUTHORITIES—Continued
Page(s)
Wiggins v. Smith,
539 U.S. 510 (2003) ..............................................18
Williams v. Taylor,
529 U.S. 362 (2000) ..............................................18
Woodson v. North Carolina,
428 U.S. 280 (1976) ..............................................22
Wright v. Virginia,
512 U.S. 1217 (1994) ............................................28
Yarbrough v. Commonwealth,
519 S.E.2d 602 (Va. 1999) ...................................28
STATUTES
28 U.S.C. § 1257(a)......................................................1
Ariz. Rev. Stat. Ann. § 13-752(K) .........................7, 24
Ariz. Rev. Stat. Ann. § 41-1604.09(I)........................14
OTHER AUTHORITIES
ABA Guidelines for the Appointment
and Performance of Defense Counsel
in Death Penalty Cases (1989) ............................18
ABA Guidelines for the Appointment
and Performance of Defense Counsel
in Death Penalty Cases (rev. ed.
2003) .....................................................................18
ix
TABLE OF AUTHORITIES—Continued
Page(s)
Note, A Matter of Life and Death: The
Effect of Life-Without-Parole
Statutes on Capital Punishment, 119
Harv. L. Rev. 1838 (2006) ....................................22
PETITION FOR A WRIT OF CERTIORARI
Leroy D. Cropper, an Arizona prisoner under
sentence of death, respectfully petitions this Court for
a writ of certiorari to review the judgment of the
Superior Court of Arizona, Maricopa County in this
case.
OPINIONS BELOW
The opinion of the Maricopa County Superior
Court dismissing Cropper’s petition for postconviction relief (App. 1a-63a) is unreported. An
order of that court amending the opinion dismissing
Cropper’s petition (App. 64a-65a) is unreported. The
order of the Arizona Supreme Court denying
Cropper’s petition for review of that dismissal (App.
66a-67a) is also unreported. The first opinion of the
Arizona Supreme Court reviewing Cropper’s 2000
sentence on direct appeal and ordering supplemental
briefing (App. 68a-79a) is reported at 68 P.3d 407.
The supplemental opinion of the Arizona Supreme
Court vacating Cropper’s 2000 sentence (App. 80a90a) is reported at 76 P.3d 424. The opinion of the
Arizona Supreme Court affirming Cropper’s 2008
sentence on direct review (App. 91a-109a) is reported
at 225 P.3d 579.
JURISDICTION
The judgment of the Maricopa County Superior
Court was entered on February 7, 2017. App. 1a. The
Arizona Supreme Court denied review on October 23,
2019. Id. at 66a. On January 2, 2020, Justice Kagan
extended the time within which to file a petition for a
writ of certiorari to and including February 20, 2020.
On February 4, 2020, Justice Kagan further extended
the time to and including March 5, 2020. This Court’s
jurisdiction is invoked under 28 U.S.C. § 1257(a).
2
CONSTITUTIONAL PROVISIONS INVOLVED
The relevant constitutional provisions are
reproduced in the appendix to this petition. App.
110a-11a.
INTRODUCTION
The decision between a life sentence and a death
sentence in this case was an exceedingly close one.
The Arizona Supreme Court recognized that a
reasonable jury could find that a death sentence was
not warranted. And the first jury to consider a death
sentence hung because the jurors could not reach a
unanimous verdict. Leroy Cropper’s second jury did
reach a death verdict, but only after his counsel
performed deficiently in one critical respect. Despite
this Court’s repeated admonitions about the
importance of informing the jury when the only
alternative sentence is life without parole, the jury
never received this information because counsel never
asked for such an instruction. If Cropper’s counsel
had simply asked, the Arizona court would have been
constitutionally required to inform the jury that he
was ineligible for parole, and there is at least a
reasonable probability that Cropper would not be
awaiting an execution date today. Indeed, that
conclusion should follow as a matter of law.
In Simmons v. South Carolina, 512 U.S. 154
(1994), this Court held that a capital defendant is
entitled to inform the jury about his parole
ineligibility when future dangerousness is at issue.
And in the ensuing years, this Court has repeatedly
granted certiorari to reverse death sentences where
state trial courts have refused to inform the jury of
parole ineligibility under Simmons. Most recently,
six Justices voted to summarily reverse the Arizona
3
Supreme Court for committing precisely this error.
See Lynch v. Arizona, 136 S. Ct. 1818 (2016) (per
curiam). This petition comes to the Court from
Arizona, and on state post-conviction review, without
the complications of federal habeas relief or the
exigencies of an impending execution date. The
Court’s review is needed to ensure that an
unconstitutional death sentence is not carried out.
STATEMENT OF THE CASE
1. Leroy Cropper had an abusive childhood. App.
101a. His stepmother severely abused him, as his
father stood by and watched without intervening. Id.
at 87a, 101a. Cropper’s father also beat him, once
choking Cropper to the point of losing consciousness.
Id. at 101a. After visits to his father and stepmother,
Cropper would return to his biological mother’s
apartment and violently bang his head against the
wall until the apartment shook. RT1 2006-11-21 at
54, 57.
2. Notwithstanding his turbulent upbringing, up
until the offense for which he was sentenced to death,
Cropper’s criminal history was limited, non-violent,
and the product of drug abuse and addiction. See Ex.
12 at 1 to MCSC2 Pet. for Post-Conviction Relief
(“PCR Pet.”) (Jan. 25, 2015). In 1991, at the age of 27,
Cropper was first convicted of forgery. Id. Over the
course of the next two years, Cropper was either in
prison or on probation or parole. Id. Then, in 1993,
1
“RT” refers to the Reporter’s Transcript of Proceedings
in Nos. CR 1997-003949 and CR 08-0116, Arizona Superior
Court, Maricopa County.
2 “MCSC” refers to court filings in No. CR 1997-003949,
Arizona Superior Court, Maricopa County.
4
Cropper was convicted and sentenced to six years for
possession of drugs for personal use. Id.3
While Cropper was serving his sentence for those
non-violent drug offenses, something snapped. In
March 1997, two corrections officers entered
Cropper’s cell to conduct a search. App. 69a. In the
course of the search, a female officer damaged
Cropper’s
family
photographs,
including
a
photograph of his biological mother. Id. For Cropper,
this mirrored the childhood trauma he suffered at the
hands of his stepmother, without any intervention
from his father. Id. at 87a-89a. Working with other
inmates, Cropper was able to escape from his cell
following the search. Id. at 70a. Still enraged, he
found Brent Lumley—the male officer who had
assisted with the search—in a control room, and
stabbed him multiple times, killing him. Id.; MCSC
Special Verdict 4 (Nov. 16, 2000).
3. The State charged Cropper with first degree
murder and other crimes. App. 71a. In 1999, Cropper
pleaded guilty, id. at 68a, 71a, and the State sought
the death penalty. After his guilty plea, but before
sentencing, Cropper was charged with aggravated
assault of another inmate. Id. at 71a-72a. The State
delayed Cropper’s sentencing to secure a conviction
on that offense as well, which it did on June 22, 2000,
when Cropper pleaded guilty. Id. at 72a.
a. With that second conviction in hand, the State
then sought the death penalty based on three
aggravating factors: (i) the killing of Officer Lumley
was committed while in prison; (ii) Cropper had a
3 Cropper was convicted of two counts of possession, and
the resulting six-year and four-year sentences were imposed to
run concurrently. PCR Pet. Ex. 12 at 1.
5
conviction for a prior serious offense (i.e., the
subsequent aggravated assault conviction); and
(iii) the killing of Officer Lumley was committed in an
“especially cruel, heinous or depraved manner.” Id.
at 71a-72a. Under Arizona law at that time, a judge
was responsible for finding whether these factors
were present and for sentencing Cropper. See id. at
72a-73a. The sentencing judge found all three. Id.
The first aggravating factor was undisputed.
MCSC Special Verdict 4. As for the second, the court
held—over Cropper’s objection—that a postconviction crime could serve as a “prior offense”
because the second crime took place before Cropper
was sentenced. Id. at 2. With respect to the third
aggravator, the evidence demonstrated that Officer
Lumley remained conscious for three to five minutes
and died soon thereafter; a state expert testified that
it was unclear whether the stabbing would have
caused a substantial amount of pain; and there was
nothing else tortuous or vile about the crime. Id. at
2-4; App. 84a-85a. The court nonetheless rejected
Cropper’s argument that “the manner in which the
crime [wa]s committed” did not raise it “above the
norm of first degree murders.” MCSC Resp. to State’s
Sentencing Mem. 1-2 (Sept. 25, 2000) (quoting State
v. Hensley, 691 P.2d 689, 694 (Ariz. 1984)).
The sentencing judge also found mitigating
circumstances,
including
Cropper’s
strong
relationship with his family and his remorse for the
crime, which the court concluded was genuine. MCSC
Special Verdict 6. But the court held that “the two
mitigating circumstances [we]re not sufficiently
substantial to call for leniency,” and sentenced
Cropper to death. Id. at 7.
6
b. While Cropper’s direct appeal was pending,
this Court held the sentencing regime under which
Cropper was sentenced unconstitutional. Ring v.
Arizona, 536 U.S. 584 (2002). Based on Ring, the
Arizona Supreme Court vacated Cropper’s sentence
and remanded for resentencing by a jury. App. 80a,
89a. Before remanding, the court performed a
harmless error analysis and concluded that the error
in Cropper’s case was not harmless. Id. at 81-89a
(citing State v. Ring, 65 P.3d 915, 936 (Ariz. 2003)).
The court explained that it “c[ould not] hold that all
reasonable juries would find the especially cruel
aggravating circumstance established beyond a
reasonable doubt,” and “c[ould not] conclude, beyond
a reasonable doubt, that a jury would not have
weighed differently the established mitigating
circumstances or found additional mitigating
circumstances.” Id. at 86a, 89a.
c. The first resentencing before a jury began in
2006. RT 2006-11-07 at 1, 4.
Arizona had abolished parole as to murders
committed after 1994, so the only two sentencing
options were life in prison without parole or death.
App. 43a; see Ariz. Rev. Stat. Ann. § 41-1604.09(I).
The jury was instructed that it was either “life” or
death, but the instructions did not define a life
sentence. RT 2006-12-18 at 10, 14-15. During
deliberations, the jury zeroed in on Cropper’s
eligibility for parole, asking the court: “Is ‘Life’
without parole or with a chance for parole?” RT 200701-08 at 3. The court responded (incorrectly): “If you
unanimously determine that the appropriate verdict
is life, then it is for the Judge to determine whether
the sentence will be for natural life, i.e., life
imprisonment without the possibility of parole, or a
7
life sentence, i.e., life imprisonment with a possibility
of parole after serving 25 years.” Id. at 8; see also App.
45a.
The jury found the first two aggravating factors
but could not reach a unanimous decision on the
“especially cruel” aggravator. App. 92a. And the jury
hung because it was also unable to reach a unanimous
decision on whether Cropper deserved the death
penalty. Id.
d. The State sought the death penalty against
Cropper for a third time and, in 2008, held a second
resentencing before a jury. Id.; RT 2008-04-03.
Under Arizona law, if this second jury failed to reach
a unanimous decision, Cropper would automatically
receive a life sentence (without parole). Ariz. Rev.
Stat. Ann. § 13-752(K). The same counsel from the
2006 resentencing represented Cropper in 2008.
The question of Cropper’s future dangerousness
was squarely presented to the jury. According to the
court, Cropper’s counsel had put his “future
dangerousness” at issue and the State could raise an
argument of future dangerousness in response. RT
2008-04-29 at 6-7. And it did. The State argued that
“[k]illing an officer . . . increases the likelihood of
other violence,” id. at 85-86, and portrayed Cropper
as having a “capacity for violence” and a “heart . . .
[w]illing and anxious to inflict pain and suffering on
another man . . . [f]or sport,” id. at 86. The State
argued that instead of learning “[t]he value of human
life,” Cropper had “becom[e] a cold-blooded killer.” Id.
at 91. In its closing remarks, the State summarized
its case: “[Cropper] would have you believe that he
[ha]s now finally turned the corner,” that “now years
later, finally, the wind is supposedly gone from his
sails of violence. The wind is gone. What happens
8
when the next big gale comes along? What happens
then? Who will speak to his next victim and say, we
thought he was all done with this? Who’s going to do
that?” Id. at 96.
The State’s closing arguments also put the issue of
parole front and center. The State emphasized that
Cropper had already been “given second chances on
probation and parole.” Id. at 92. And the State
argued that, by seeking a life sentence, Cropper was
now asking “for another second chance from you.” Id.
at 93. The State urged the jury: “Don’t do it.” Id.
The State did so even though, as in 2006, the jury
had only two choices under Arizona law—either life in
prison without the possibility of parole or death. App.
42a-44a. The judge instructed the jury that it could
“vote for a sentence of death . . . [or] vote for a
sentence of life in prison.” Id. at 45a (quoting MSCS
Final Penalty Phase Instructions 5-6 (Apr. 25, 2008));
RT 2008-04-29 at 42-44. But, as in 2006, the
instructions did not make clear that “life” meant life
without parole. App. 45a-46a. Defense counsel never
requested a more specific instruction explaining that
Cropper was categorically ineligible for parole. Id. at
44a-46a. Nor did counsel otherwise attempt to inform
the jury that a life sentence could not include parole.
Id. To the contrary, defense counsel (wrongly)
believed that parole was available, sought to “waive”
that parole, and asked the court to instruct the jury
that Cropper would be eligible for release in 35 years.
Id. at 43a; MCSC Def.’s Proposed Penalty Phase
Instructions for Retrial 10-11; RT 2008-04-29 at 6668.
This time, the jury found the “especially cruel”
aggravator and sentenced Cropper to death. App.
92a.
9
e. On direct appeal, Cropper’s counsel raised a
number of arguments that were barred by existing
state law for the purpose of preserving them for
federal review. Id. at 106a-09a. But Cropper’s
counsel did not challenge the jury instructions or
otherwise argue that the jury should have been
informed about Cropper’s ineligibility for parole. See
id. at 93a-97a. The Arizona Supreme Court affirmed
Cropper’s death sentence, id. at 105a, and this Court
denied certiorari, see Cropper v. Arizona, 562 U.S. 982
(2010) (No. 10-5584).
4. Cropper then sought post-conviction review in
state court. App. 2a, 7a. Post-conviction review
counsel pursued leads that previous counsel had not.
Based on preliminary findings from a 1999 report,
which had gone unexplored to that point, counsel had
an MRI conducted that confirmed Cropper’s organic
brain dysfunction—evidence that had never been
presented to a jury. See id. at 11a-15a. Postconviction review counsel also recognized, as previous
counsel had not, that Cropper was categorically
ineligible for parole. In his petition for post-conviction
relief, Cropper argued (among other things) that 2008
counsel was ineffective for failing to request an
instruction or otherwise argue to the jury that he was
ineligible for parole under Simmons and its progeny.
Id. at 42a-46a.
a. The Arizona trial court rejected that argument.
Id. at 46a. The court did not dispute that Cropper’s
future dangerousness had been put at issue or that
Cropper was not eligible for parole under Arizona law.
Id. at 42a-46a. The court also acknowledged that
defense counsel was not aware that Cropper was
ineligible for parole, and that he “should have been
aware of the sentencing options, including the
10
availability or non-availability of parole.” Id. at 43a.
The court nevertheless held that counsel’s
performance was not “deficient[]” because it was
“objectively reasonable” for counsel not to request a
Simmons instruction “[i]n light of the law in Arizona
as it existed until 2016”—i.e., as it existed before this
Court summarily reversed the Arizona Supreme
Court in Lynch based on its failure to follow Simmons.
Id. at 43a-44a. According to the court, before Lynch,
the Arizona Supreme Court had “held that Simmons
did not apply in Arizona.” Id. at 44a n.14. Cropper’s
counsel, the court reasoned, “had no reason to
anticipate a change in the law.” Id. at 44a.
The trial court also held that Cropper failed to
show prejudice. Id. at 44a-46a. The court never
addressed Cropper’s argument that prejudice should
be presumed in these circumstances. Id. at 44a-47a;
see MCSC Supp. to PCR Pet. 44-48 (Aug. 20, 2016).
Nor did the court take note of the fact that the 2006
jury in Cropper’s case had specifically asked whether
“life” referred to life with or without parole. App. 44a47a; see MCSC Supp. to PCR Pet. 31-33, 48. And
although the court acknowledged that “[t]he jury did
not reach a penalty phase verdict at the conclusion of
the 2006 resentencing,” the court concluded that
“[t]he availability of parole . . . is unlikely to have
been sufficiently substantial to suggest leniency to
change the verdict of death to ‘life’ in even a single
juror’s mind.” App. 44a, 46a.
b. The Arizona Supreme Court denied Cropper’s
petition for review. See id. at 66a-67a.
REASONS FOR GRANTING THE WRIT
This petition is the latest in a series of cases where
a handful of state courts have refused to adhere to the
11
teachings of this Court’s decision in Simmons v. South
Carolina, 512 U.S. 154 (1994). Just four years ago,
six Justices of this Court voted to summarily reverse
the Arizona Supreme Court for doing just that. In
Lynch v. Arizona, Arizona trial counsel tried to inform
the jury about the defendant’s parole ineligibility, but
the court prevented him from doing so. 136 S. Ct.
1818 (2016) (per curiam). Here, Arizona trial counsel
did not even try to inform the jury about defendant’s
parole ineligibility, so the court did nothing. That is
the only difference between the two cases. And that
cannot be the difference between life and death.
This is an easy case of ineffective assistance.
Future dangerousness was indisputably put at issue.
Cropper was not eligible for parole. Counsel failed to
seek a Simmons instruction or otherwise inform the
jury of that fact only because he did not understand
the available sentences under state law.
Any
objectively reasonable death penalty counsel would
have understood the sentencing options and would
have informed the jury that parole was not an option.
And that is true regardless of an Arizona Supreme
Court decision that grossly misread this Court’s
decision in Simmons—as this Court held in Lynch—
and that was handed down after Cropper’s sentencing
phase began.
The resulting prejudice is also apparent.
Prejudice is inescapable given the nature of a
Simmons error. It is fundamentally unfair to be
sentenced to death by a jury that does not understand
that release is not an option and that is more likely to
vote for death if it mistakenly believes the defendant
may one day roam free. And, in any event, prejudice
is readily demonstrated in Cropper’s case. The nature
of a Simmons error, paired with the compelling facts
12
of this case, make it at least reasonably probable that
the outcome would have been different if the jury had
been informed parole was off the table.
Indeed, Cropper’s 2006 jury specifically asked
whether “life” meant life without parole. The Arizona
Supreme Court recognized that a reasonable jury
could conclude that a death sentence is not warranted
here. The 2006 jury hung because some jurors could
not vote for death. And if even one juror had been
unable or unwilling to vote for death in 2008, there
would have been no further proceedings; Cropper
would have automatically received a life sentence.
The Arizona post-conviction court’s conclusion that
not a “single juror[]” would vote for “life” without
parole cannot possibly be squared with these facts.
This is as compelling a case of prejudice as they come.
This Court’s intervention is needed to ensure that
an unconstitutional death sentence is not carried out.
I. COUNSEL
WAS
DEMONSTRABLY
INEFFECTIVE UNDER SIMMONS
In Simmons, this Court held that a capital
defendant is entitled to inform the jury about his
parole ineligibility when future dangerousness is at
issue. 512 U.S. at 156 (plurality opinion); id. at 178
(O’Connor, J., concurring in the judgment). Seven
years later, in Shafer v. South Carolina, the Court
reaffirmed that “where a capital defendant’s future
dangerousness is at issue, and the only sentencing
alternative to death available to the jury is life
imprisonment without possibility of parole, due
process entitles the defendant ‘to inform the jury of
[his] parole ineligibility.’” 532 U.S. 36, 39 (2001)
(alteration in original) (citation omitted). And the
following year, in Kelly v. South Carolina, the Court
13
reiterated that same holding again. 534 U.S. 246, 248
(2002).
In Simmons itself, there was some debate over
whether due process could be satisfied by the
argument of defense counsel, or whether a jury
instruction was required. See Simmons, 512 U.S. at
173 (Souter, J., concurring); id. at 174 (Ginsburg, J.,
concurring). And there was some discussion about
whether the Eighth Amendment might require a jury
instruction regardless of future dangerousness. See
id. at 162 n.4 (plurality opinion); id. at 172-74 (Souter,
J., concurring). But by 2002 (at the latest), this
Court’s case law was crystal clear that if (i) future
dangerousness was at issue, and (ii) the jury’s only
two choices were death or life without parole, then the
capital defendant had a due process right to tell the
jury that he was ineligible for parole. Kelly, 534 U.S.
at 248.
In Lynch, the Court held exactly that when it
summarily reversed an Arizona Supreme Court
decision that refused to follow the teachings of
Simmons and its progeny. 136 S. Ct. at 1818-19.
There was no dispute that Lynch’s future
dangerousness had been put at issue. Id. at 1819.
There was no dispute that, under Arizona law, “parole
is available only to individuals who committed a
felony before January 1, 1994,” and that Lynch had
committed his offense in 2001. Id. (citation omitted).
Nor was there any dispute that defense counsel had
tried to inform the jury of Lynch’s parole ineligibility.
Id.
The only reasons Arizona offered for not
complying with Simmons were the availability of
executive clemency under current law, and the
possibility that Arizona could make parole available
in future legislation. Id. at 1819-20. But, as this
14
Court explained, Simmons had already “expressly
rejected” both arguments. Id. at 1819. Because the
Arizona Supreme Court’s decision was foreclosed by
this Court’s decade-old precedents, the Court
summarily reversed without merits briefing or
argument. Id. at 1820.
The question in this case is the necessary corollary
to Lynch. The two cases are the same with one
exception: the jury was not informed of Cropper’s
parole ineligibility because defense counsel did not
ask for a Simmons instruction or otherwise attempt
to inform the jury that parole was unavailable. For
that reason alone, the decision in Lynch was reversed
and Cropper remains sentenced to death. The
Arizona post-conviction review court countenanced
that result with minimal reasoning. And the Arizona
Supreme Court declined to even review that decision.
Even the most pro forma application of Strickland v.
Washington, 466 U.S. 668 (1984), makes clear why
Cropper’s death sentence cannot stand.
A. Counsel’s Failure To Ensure That The
Jury Was Informed Of Cropper’s Parole
Ineligibility Was Patently Deficient
Cropper was undisputedly entitled to inform the
jury of his parole ineligibility under this Court’s
precedent. “[T]he [Arizona] legislature abolished
parole as to murders committed after 1994 . . . .” App.
43a; see Ariz. Rev. Stat. Ann. § 41-1604.09(I). And the
2008 sentencing court explicitly found that Cropper’s
“future dangerousness [was at] issue.” RT 2008-0429 at 6. Cropper was therefore entitled to “rebut the
State’s case” by presenting evidence of his parole
ineligibility. Simmons, 512 U.S. at 177 (O’Connor, J.,
concurring in the judgment). If counsel had asked for
15
a Simmons instruction or to otherwise inform the jury
of Cropper’s parole ineligibility, the trial court would
have been constitutionally required to allow it. That
is what this Court held in Lynch.
Trial counsel’s decision not to request a Simmons
instruction or otherwise inform the jury that Cropper
was ineligible for parole was not strategic. It was
based entirely on the fact that counsel wrongly
believed that Cropper was eligible for parole. Indeed,
counsel went so far as to attempt to “waive” parole
rights that did not exist, App. 41a-43a; RT 2008-0429 at 66-68, and to seek an instruction informing the
jury that Cropper could be released after 35 years,
MCSC Def.’s Proposed Penalty Phase Instructions for
Retrial 10-11 (Feb. 8, 2008). In other words, counsel
did not understand the sentencing options available
to the jury in the sentencing phase of Cropper’s death
case. But, as even the Arizona post-conviction review
court acknowledged, “counsel should have been aware
of the sentencing options, including the availability or
non-availability of parole.” App. 43a.
The court nevertheless held that counsel’s
performance was not deficient. The court gave only
one reason: because, in State v. Cruz, 181 P.3d 196,
207 (Ariz. 2008), cert. denied, 555 U.S. 1104 (2009),
the Arizona Supreme Court had “held that Simmons
did not apply in Arizona”; that decision was not
reversed by this Court until its 2016 decision in
Lynch; and counsel had no reason to anticipate a
change in the law. App. 44a & n.14. That reason is
fatally flawed.
Adverse state court precedent can neither explain
nor excuse counsel’s failure to inform the jury of
Cropper’s parole ineligibility or preserve a Simmons
error. Cruz was not decided until April 21, 2008. 181
16
P.3d at 196. Two months prior to that decision,
defense counsel proposed final penalty-phase jury
instructions regarding “Parole Eligibility” seeking to
inform the jury that Cropper “would be eligible for
release from prison” after 35 years. MCSC Def.’s
Proposed Penalty Phase Instructions for Retrial 1011 (Feb. 8, 2008). In the ensuing two months before
Cruz, defense counsel proposed preliminary
instructions that said nothing about Cropper’s parole
ineligibility. MCSC Def.’s Proposed Preliminary
Instructions for Penalty Phase Retrial (Mar. 31,
2008); Def.’s Second Set of Proposed Preliminary
Instructions for Penalty Phase Retrial (Apr. 9, 2008).
And defense counsel never objected to the court’s
preliminary instructions which informed the jury
(without elaboration) that it could impose a “life
sentence” or death.
RT 2008-04-10 at 5, 10
(instructions given April 10, 2008). That is, for
months before Cruz and at a time when this Court’s
precedents plainly entitled Cropper to inform the jury
that he was ineligible for parole, defense counsel
made no attempt to get that critical information to the
jury.4 That failure had nothing to do with any
purported change in the law, and everything to do
with the fact that counsel wrongly believed that
Cropper was eligible for parole. The happenstance
that Cruz was decided less than two weeks before the
jury recommend a death sentence for Cropper (RT
2008-05-02 at 5) neither explains nor excuses
counsel’s deficient performance.
4 Indeed, the same counsel failed to inform the 2006 jury
of Cropper’s parole ineligibility too—two years before the
adverse Arizona decision in Cruz. App. 44a n.15.
17
In any event, the notion that “Simmons did not
apply in Arizona” (App. 44a n.14) was demonstrably
wrong under Simmons itself. By 2008, the Court had
found Simmons violations in three cases. Kelly, 534
U.S. 246; Shafer, 532 U.S. 36; Simmons, 512 U.S. 154.
Lynch was a straightforward application of that
decade-old precedent. 136 S. Ct. at 1820 (“Simmons
and its progeny establish Lynch’s right to inform his
jury of that fact [that he was ineligible for parole].”).
The only argument the State advanced in Lynch was
that the possibility of executive clemency or future
legislative reform made Simmons inapplicable. See
id. The Court dismissed those arguments out of hand
because Simmons had already expressly rejected
them. Id. at 1819-20. That is presumably why six
Justices on this Court voted to summarily reverse,
rather than grant plenary review. Id. at 1818-20.
A reasonable attorney cannot disregard the
precedent of this Court. And, here, a reasonable
attorney familiar with the applicable law would have
concluded, as this Court did, that the unfavorable
Arizona precedent was directly contrary to Simmons
and would have attempted to inform the jury of parole
ineligibility. See id. at 1819. The uncontested
evidence below established that “reasonable lawyers
defending capital cases in Maricopa County, and in
Arizona in general, in 2006 and 2008, were requesting
courts to instruct jurors that the life sentence that the
jurors might be choosing . . . did not include parole . . .
in reliance on Simmons.” PCR Pet. Ex. 46 ¶ 5 (Decl.
of Garrett Simpson) (Arizona attorney with 29 years
of capital case experience, including acting as
attorney of record in approximately 20 capital trial,
appellate, and PCR cases (see PCR Pet. Ex. 27 ¶ 3)).
Indeed, even between Cruz (2008) and Lynch (2016),
18
counsel in numerous Arizona cases attempted to
inform the jury of parole ineligibility.5
The attorneys in all of these cases were requesting
a Simmons instruction for good reason: it would have
been “unreasonable for a lawyer not to request such
an instruction.” PCR Pet. Ex. 46 ¶ 5. That is what
the prevailing professional norms required. The ABA
Guidelines, for example, explain that death penalty
counsel should evaluate a legal claim “in light of” both
“the near certainty that all available avenues of postconviction relief will be pursued in the event of
conviction and imposition of a death sentence” and
“the importance of protecting the client’s rights
against later contentions by the government that the
claim has been waived, defaulted, not exhausted, or
otherwise forfeited.”
ABA Guidelines for the
Appointment and Performance of Defense Counsel in
Death Penalty Cases § 10.8(A)(3)(b)-(c)—The Duty to
Assert Legal Claims (rev. ed. 2003); see Wiggins v.
Smith, 539 U.S. 510, 524 (2003) (relying on ABA
Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases (1989) as a
“guide[] to determining what is reasonable” (quoting
Strickland, 466 U.S. at 688)); see also Williams v.
Taylor, 529 U.S. 362, 396-97 (2000).6 Recognizing the
5
See, e.g., State v. Rushing, 404 P.3d 240, 249 (Ariz. 2017),
cert. denied, 139 S. Ct. 66 (2018); State v. Escalante-Orozco, 386
P.3d 798, 829 (Ariz.), cert. denied, 138 S. Ct. 238 (2017); State v.
Boyston, 298 P.3d 887, 900-01 (Ariz.), cert. denied, 571 U.S. 870
(2013); State v. Benson, 307 P.3d 19, 32-33 (Ariz. 2013); State v.
Hausner, 280 P.3d 604, 634 (Ariz. 2012); State v. Hardy, 283 P.3d
12, 23-24 (Ariz. 2012), cert. denied, 568 U.S. 1127 (2013).
6 Notably, adverse precedent did not stop Cropper’s
counsel from preserving a host of constitutional arguments for
later appeal. App. 106a-09a.
19
importance of preserving issues, this Court has held
that “the futility of presenting an objection to the
state courts cannot alone constitute cause for a failure
to object at trial.” Engle v. Isaac, 456 U.S. 107, 130
(1982); id. at 128-29 (petitioner’s federal habeas claim
was procedurally defaulted and petitioner could not
demonstrate cause for the default).
Counsel’s
failure to request a Simmons
instruction, or to otherwise inform the jury of
Cropper’s parole ineligibility, was “[un]reasonable[]
under prevailing professional norms,” Strickland, 466
U.S. at 688, and was “not supported by a reasonable
strategy,” Massaro v. United States, 538 U.S. 500, 505
(2003).
B. Counsel’s Failure To Inform The Jury Of
Cropper’s
Parole
Ineligibility
Was
Prejudicial
Counsel’s failure to inform the jury of Cropper’s
parole ineligibility was plainly prejudicial. Indeed,
the better view is that prejudice is inescapable any
time a Simmons instruction is clearly warranted but
not requested. The same reasoning that prompted
this Court to hold that information about parole
eligibility is both confusing to jurors and critical to
their deliberations supports a finding of prejudice as
a matter of law in instances where a jury is deprived
of that information based solely on counsel’s failure to
provide it. But, in any event, the nature of a Simmons
error paired with the facts of this case make clear that
there was actual prejudice here as well. It is at least
reasonably probable that Cropper would have
received a life sentence had the jury been informed
that the only alternative to death was life without
parole.
20
1. Simmons Errors Result In Inescapable
Prejudice
“The touchstone of an ineffective-assistance claim
is the fairness of the adversary proceeding . . . .”
Lockhart v. Fretwell, 506 U.S. 364, 370 (1993). In
particular, “the ‘prejudice’ component of the
Strickland test . . . focuses on the question whether
counsel’s deficient performance renders the result of
the trial unreliable or the proceeding fundamentally
unfair.” Id. at 372. Consistent with notions of
fairness, in Strickland, the Court set “a general
requirement that the defendant affirmatively prove
prejudice,” but warned against treating “the
principles [it] ha[s] stated [as] establish[ing]
mechanical rules.” 466 U.S. at 693, 696. For example,
the Court explained, “[i]n certain Sixth Amendment
contexts, prejudice is presumed.” Id. at 692.
This Court has found prejudice as a matter of law
where an error impacts the fundamental fairness of
criminal proceedings. See United States v. Cronic,
466 U.S. 648, 659 (1984); see also Weaver v.
Massachusetts, 137 S. Ct. 1899, 1911 (2017). When
“the likelihood that the verdict is unreliable”—and
therefore unfair—“is so high that a case-by-case
inquiry is unnecessary,” prejudice is necessarily
established. Mickens v. Taylor, 535 U.S. 162, 166
(2002).
The same considerations result in the conclusion
that prejudice exists as a matter of law where a
defendant meets the requirements for a Simmons
instruction but counsel deficiently fails to inform the
jury of parole ineligibility. Simmons errors render
sentencings fundamentally unfair and unreliable
because (i) jurors are inherently confused about the
21
availability of parole; (ii) parole eligibility plays a
significant role in juror decisionmaking; and (iii) an
erroneous death sentence is irrevocable.
First, as this Court recognized in Simmons, there
is a “grievous misperception” among jurors “about the
meaning of ‘life imprisonment.’” 512 U.S. at 159, 16162 (plurality opinion). Because “[d]isplacement of ‘the
longstanding practice of parole availability’ remains a
relatively recent development, . . . ‘common sense
tells us that many jurors might not know whether a
life sentence carries with it the possibility of parole.’”
Kelly, 534 U.S. at 257 (first alteration in original)
(quoting Shafer, 532 U.S. at 52). And statistical
evidence bears out what common sense suggests.
Relying on a survey of jury-eligible adults in South
Carolina, the Court in Simmons noted that “nearly
three-quarters thought that release certainly would
occur in less than 30 years.” 512 U.S. at 159 (plurality
opinion).
Second, this misconception is “grievous” because
parole eligibility makes it far more likely jurors will
vote for death.
Simmons, 512 U.S. at 161-62
(plurality opinion). That, effectively, is the reasoning
underlying Simmons and its progeny. When future
dangerousness is put at issue in a capital sentencing
proceeding, informing the jury of parole ineligibility
“will often be the only way that a violent criminal can
successfully rebut the State’s case.” Id. at 177
(O’Connor, J., concurring in the judgment) (citation
omitted). Put another way, “there may be no greater
assurance of a defendant’s future nondangerousness
to the public than the fact that he never will be
released on parole.” Id. at 163-64 (plurality opinion).
Here too, studies corroborate the importance and
impact of parole eligibility on juror decisionmaking.
22
In Simmons, the Court pointed to a study showing
that “[m]ore than 75 percent of those surveyed
indicated that if they were called upon to make a
capital sentencing decision as jurors, the amount of
time the convicted murderer actually would have to
spend in prison would be an ‘extremely important’ or
a ‘very important’ factor in choosing between life and
death.”
Id. at 159 (plurality opinion) (citation
omitted); see also Baze v. Rees, 553 U.S. 35, 78-79
(2008) (Stevens, J., concurring in the judgment)
(“[T]he available sociological evidence suggests that
juries are less likely to impose the death penalty when
life without parole is available as a sentence.” (citing
Note, A Matter of Life and Death: The Effect of LifeWithout-Parole Statutes on Capital Punishment, 119
Harv. L. Rev. 1838, 1845 (2006))).
Third, the irrevocability of a death sentence
makes the need for fairness in capital cases uniquely
compelling. As this Court has explained, because of
“its finality,” “[t]he penalty of death is qualitatively
different from a sentence of imprisonment, however
long,” and “there is a corresponding difference in the
need for reliability.” Lankford v. Idaho, 500 U.S. 110,
125 n.21 (1991) (quoting Woodson v. North Carolina,
428 U.S. 280, 305 (1976)); see Eddings v. Oklahoma,
455 U.S. 104, 112 (1982) (“[T]he Court[] [has]
insiste[d] that capital punishment be imposed fairly
. . . or not at all.”).
That this Court has never hinted at (let alone
performed) a harmless error analysis in a Simmons
case is also notable. Each case in the Simmons line
has drawn a dissent, several of which emphasize the
depravity of the crime and suggest that parole
ineligibility could not possibly have made a difference
in the outcome. See, e.g., Simmons, 512 U.S. at 181
23
(Scalia, J., dissenting) (“I am sure it was the sheer
depravity of [the defendant’s] crimes, rather than any
specific fear for the future, which induced the . . . jury
to conclude that the death penalty was justice.”);
Lynch, 136 S. Ct. at 1821 (Thomas, J., dissenting)
(arguing that, “[a]s in Simmons, it [wa]s the ‘sheer
depravity of [Lynch’s] crimes’” that caused the jury to
sentence him to death (quoting Simmons, 512 U.S. at
181 (Scalia, J., dissenting)). If a Simmons error were
susceptible to harmless error review, one might have
expected the Court to remand for the state court to
engage in such an analysis. Cf. Ring v. Arizona, 536
U.S. 584, 609 n.7 (2002) (explicitly “leav[ing] it to
lower court[] to pass on the harmlessness of error in
the first instance”). And although the error here
arises in the context of an ineffective assistance of
counsel claim, similar concerns about fundamental
fairness lead to the conclusion that prejudice exists as
a matter of law.
2. There Is Overwhelming Evidence Of
Actual Prejudice Here
The facts of this case underscore the prejudicial
impact of Simmons errors—and easily establish
actual prejudice. The very nature of a Simmons error
(as set forth above), paired with the facts of this case,
lead to at least a reasonable probability of a different
outcome if the jury had been informed that the only
alternative to death was life without parole.
This was always a marginal case for imposition of
a death sentence. The Arizona Supreme Court
recognized as much when it remanded Cropper’s case
for resentencing by a jury after concluding that the
Ring error was not harmless. As the court explained,
it “c[ould not] hold that all reasonable juries would
24
find the especially cruel aggravating circumstance
established beyond a reasonable doubt.” App. 86a.
Nor could it “conclude, beyond a reasonable doubt,
that a jury would not have weighed differently the
established mitigating circumstances or found
additional mitigating circumstances.” Id. at 89a.
Then, on remand, the first jury hung. The 2006
jury could not reach a unanimous verdict on the
“especially cruel” aggravator. Id. at 92a. Nor could it
reach a unanimous verdict on whether the death
penalty was warranted. Id. It is hard to think of
better evidence that a jury might not have sentenced
Cropper to death than the fact that the first jury did
not sentence Cropper to death. And had even a single
juror in 2008 not voted for death, Cropper would have
automatically received a life sentence. See Ariz. Rev.
Stat. Ann. § 13-752(K).
Judged against the baseline norm of all firstdegree murders, there is also not “overwhelming
record support” for death. Strickland, 466 U.S. at
696. At the time of the capital offense, Cropper was
in prison for non-violent drug crimes and had no prior
conviction for any violent offense.
The only
aggravators were the fact that the murder was
committed in prison; a post-conviction assault of
another inmate that was not deadly; and an
“especially cruel” aggravator based on minutes of
consciousness after the stabbing. The facts here
stand in marked contrast to many death penalty cases
in which this Court has reversed, including for
Simmons errors. See, e.g., Foster v. Chatman, 136
S. Ct. 1737, 1755 (2016) (reversing denial of state
habeas); id. at 1761 (Thomas, J., dissenting)
(defendant “confessed to murdering [a 79-year-old
woman in her home] after sexually assaulting her
25
with a bottle of salad dressing”); Kelly, 534 U.S. at 261
(Rehnquist, C.J., dissenting) (defendant “bound the
hands of the victim (who was six months pregnant)
behind her back, stabbed her over 30 times, slit her
throat from ear to ear, and left dollar bills fastened to
her bloodied body”); Simmons, 512 U.S. at 181 (Scalia,
J., dissenting) (defendant brutally murdered “a 79year-old woman in her home” and had “three prior
crimes . . . , all rapes and beatings of elderly women,
one of them his grandmother”).
That Cropper’s capital offense occurred while he
was in prison does not defeat a showing of prejudice—
as the facts of this case and the Court’s case law make
clear. Cropper’s first resentencing jury specifically
asked whether parole was available. RT 2007-01-08
at 3. That is, despite the nature of Cropper’s offense,
the availability of parole was relevant and important
to the jury’s deliberations. And this Court has
explained that, although a state may certainly argue
that the defendant will still be a danger in prison, a
jury may well weigh that differently than the risk
that the defendant will be a danger to the general
public if released on parole. Simmons, 512 U.S. at 177
(O’Connor, J., concurring in the judgment); Kelly, 534
U.S. at 253-54.
The Arizona post-conviction review court held that
“[t]he availability of parole . . . is unlikely to have
been sufficiently substantial to suggest leniency to
change the verdict of death to ‘life’ in even a single
juror’s mind.” App. 46a. In so holding, the court did
not mention the Arizona Supreme Court’s
harmlessness finding. And it said nothing about the
2006 hung jury—or that jury’s question specifically
inquiring about parole. The court appeared to offer
26
only two reasons for finding no prejudice. Neither has
merit.
First, the court noted that the instructions
“referred to ‘life imprisonment’ and ‘life in prison’ and
did not reference ‘parole’ or the ‘possibility of parole.’”
Id. To the extent the state court was implying that
the jury necessarily understood that parole was not
available based on the undefined reference to “life” in
the jury instructions, that argument is squarely
foreclosed by this Court’s precedents. The mere
mention of “life” without more is insufficient to inform
the jury that parole is categorically unavailable. See
Kelly, 534 U.S. at 257; Shafer, 532 U.S. at 52-53.
Indeed, in Shafer, this Court found a Simmons error
despite the “judge[’s] repeated[] expla[nation] [to the
jury] that ‘life imprisonment means until the death of
the defendant’”; a jury instruction that included a
“defin[ition] [of] ‘life imprisonment’ as ‘incarceration
of the defendant until his death’”; and a dissenting
opinion concluding that these explanations “left no
room for speculation by the jury.” Shafer, 532 U.S. at
56-57 (Thomas, J., dissenting).
This case is far easier: the jury instructions had no
reference to a life sentence being “until the death of
the defendant” or any other suggestion that it might
be without parole. The State’s arguments implied
that Cropper would be eligible for parole. RT 200804-29 at 92-93 (arguing for death because Cropper
had already been “given second chances on probation
and parole” and he did not deserve “another second
chance”).
And even defense counsel (wrongly)
believed that “life” could include parole—which he
then tried to waive. App. 42a; RT 2008-04-29 at 6668.
27
Second, the court explained that Cropper had
“murdered a corrections officer while in prison,” “later
had committed an aggravated assault,” had
“previously been sentenced to probation,” and was
later “placed on parole.” App. 46a. But as discussed
above, Cropper’s offense of conviction and subsequent
non-deadly assault hardly distinguishes him from
other first-degree murderers who have received life
sentences. The absence of other aggravators does
distinguish him from other first-degree murderers
who have received death sentences. And the time
Cropper previously spent on probation or parole was
for the non-violent offense of forgery. Cherrypicking
certain facts and ignoring the rest of the record
evidence—including the fact that the first jury did not
sentence Cropper to death; that the Arizona Supreme
Court recognized a reasonable jury may well not; and
that the first jury asked about parole—falls far short
of a proper Strickland prejudice analysis, especially
in a death penalty case.
II. THIS COURT’S INTERVENTION IS NEEDED
As this Court has recognized, the Simmons rule is
one of limited applicability. It applies only to the
sentencing phase of a death penalty case. And even
in 1994, only three states (South Carolina, Virginia,
and Pennsylvania) had “a life-without-parole
sentencing alternative to capital punishment for some
or all convicted murderers but refuse[d] to inform
sentencing juries of this fact.” Simmons, 512 U.S. at
168 n.8 (plurality opinion).7 Arizona joined those
7 Virginia later changed its law to entitle capital
defendants to an instruction “that the words ‘imprisonment for
life’ mean ‘imprisonment for life without possibility of parole.’”
Yarbrough v. Commonwealth, 519 S.E.2d 602, 616 (Va. 1999).
28
three states later—after Ring rendered its judgesentencing scheme unconstitutional. 536 U.S. at 609.
So Simmons is a rule of limited applicability, but
it is an issue that—somewhat surprisingly—has not
gone away. This Court has granted certiorari in no
fewer than six cases raising a Simmons-related issue
over the past twenty some years—underscoring the
recurring nature of Simmons errors and this Court’s
commitment to enforcing the rule of Simmons itself.8
And it has granted, vacated, and remanded several
more.9 Yet more than two decades after Simmons,
and after a summary reversal, Arizona courts are still
reluctant to adhere to this Court’s teachings. The
solution cannot be to allow Arizona to hide behind
years of its blatant disregard of Simmons and defense
counsel’s failures; it should be to send the message
loud and clear that ineffective assistance of counsel
claims are not yet another way to evade Simmons.
This case comes to the Court in a state postconviction review posture, without the federalism
concerns of habeas review or the complexities of the
Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA). See Harrington v. Richter, 562 U.S.
86, 105 (2011) (noting that in AEDPA ineffective
assistance of counsel claims, “the question is not
whether counsel’s actions were reasonable . . . [but]
whether there is any reasonable argument that
8
Lynch, 136 S. Ct. at 1818; Rompilla v. Beard, 545 U.S.
374, 380 n.1 (2005); Kelly, 534 U.S. at 248; Shafer, 532 U.S. at
39-40; Ramdass v. Angelone, 530 U.S. 156, 164-65 (2000); O’Dell
v. Netherland, 521 U.S. 151, 155 (1997).
9 See, e.g., Price v. North Carolina, 512 U.S. 1249, 1249
(1994); Wright v. Virginia, 512 U.S. 1217, 1217 (1994); Mickens
v. Virginia, 513 U.S. 922, 922 (1994).
29
counsel satisfied Strickland’s deferential standard”).
Because “state courts are the principal forum” for
ineffective assistance of counsel claims, the Court’s
review in this posture is vital to ensure that the right
to counsel is respected. Id. at 103; see Amici Curiae
Br. of James S. Brady et al. in Supp. of Pet’r 7-10, 1215, Andrus v. Texas, No. 18-9674 (July 12, 2019). And
this case comes to the Court without the exigencies of
an imminent execution date. Resolution of this
question may well be the difference between life or
death for Cropper. This Court’s intervention is
needed now.
30
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
MICHAEL J. MEEHAN
LAW OFFICE OF MICHAEL
MEEHAN
3938 E. Grant Road
No. 423
Tucson, AZ 85712
(520) 529-1969
mmeehan.az@msn.com
TODD E. HALE
TODD HALE LAW PLLC
The Historic Palacio
Ruelas
290 N. Meyer Avenue
Tucson, AZ 85701
(520) 256-1012
todd@toddhalelaw.com
MELISSA ARBUS SHERRY
Counsel of Record
GREGORY G. GARRE
JAMES A. TOMBERLIN*
LATHAM & WATKINS LLP
555 Eleventh Street, NW
Suite 1000
Washington, DC 20004
(202) 637-2200
melissa.sherry@lw.com
*Admitted to practice in
New York only. All work
supervised by a member of
the DC Bar.
Counsel for Petitioner
March 5, 2020
APPENDIX
TABLE OF CONTENTS
Page
Ruling Dismissing Petition for Post-Conviction
Relief, State v. Cropper, No. CR 1997003949 (Ariz. Super. Ct., Maricopa Cty.
Feb. 7, 2017) ........................................................1a
Order Amending Ruling Dismissing Petition
for Post-Conviction Relief, State v.
Cropper, No. CR 1997-003949 (Ariz. Super.
Ct., Maricopa Cty. June 30, 2017) ...................64a
Order Denying Petition for Review of Order
Dismissing Petition for Post-Conviction
Relief, State v. Cropper, No. CR-17-0566PC (Ariz. Oct. 23, 2019) ....................................66a
Opinion of the Supreme Court of Arizona, State
v. Cropper, 68 P.3d 407 (Ariz. 2003) ................68a
Supplemental Opinion of the Supreme Court of
Arizona, State v. Cropper, 76 P.3d 424
(Ariz. 2003) ........................................................80a
Opinion of the Supreme Court of Arizona, State
v. Cropper, 225 P.3d 579 (Ariz. 2010) ..............91a
U.S. Const. amend. VI ..........................................110a
U.S. Const. amend. XIV, § 1 .................................111a
1a
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
02/08/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CR 1997-003949
02/07/2017
JUDGE M. SCOTT
MCCOY
CLERK OF THE
COURT
E. Masis
Deputy
STATE OF ARIZONA
v.
LEROY D CROPPER (A)
LAURA PATRICE
CHIASSON
MICHAEL J.
MEEHAN
CAPITAL CASE
MANAGER
COURT ADMINCRIMINAL-PCR
VICTIM WITNESS
DIV-AG-CCC
RULING
(PETITION DISMISSED/PCR MATTER/CAPITAL CASE)
The Court has reviewed the defendant’s nunc pro
tunc Petition for Post-Conviction Relief1 (“NPT
1
Defendant filed a Petition for Post-Conviction Relief on
1/25/2015, with exhibits and declarations. The January petition
(but not the attachments) was replaced by a similarly-captioned
2a
Petition”) filed 4/1/2016 nunc pro tunc 1/25/2015, the
Defendant’s Supplemental Rule 32 Claim (“Pro Per
Claim”) filed 5/10/2015, the State’s response filed
1/11/2016, and the Defendant’s reply filed 6/7/2016;
and the Supplement to Petition for Post-conviction
Relief filed 8/20/2016, the supplemental response filed
10/3/2016 and the supplemental reply filed
11/29/2016, as well as the court file. This is the
defendant’s timely, first Rule 32 proceeding after the
Arizona Supreme Court’s affirmed his convictions and
death sentence in State v. Cropper (Cropper III), 223
Ariz. 522, 225 P.3d 579 (2010).
PROCEDURAL HISTORY
The procedural history of State v. Cropper,
CR1997-003949, is stated in Cropper III:
Leroy D. Cropper pled guilty to first degree
murder in 1999 for the 1997 killing of an
Arizona Department of Corrections officer.1 A
Maricopa County Judge determined that
Cropper should be sentenced to death for the
murder and an automatic appeal followed. See
State v. Cropper (Cropper I), 205 Ariz. 181, 183–
84 ¶ 12, 68 P.3d 407, 409 (2003). While the
appeal was pending, the Supreme Court
decided Ring v. Arizona (Ring II), which held
Petition for Post-Conviction Relief, sub-captioned “Nunc Pro
Tunc Filing” filed simultaneously with Notice of Errata
ib11/13/2015, followed by a subsequent identically-captioned
Petition for Post-Conviction Relief, sub-captioned “Nunc Pro
Tunc Filing” filed 4/1/2016 (“NPT Petition”). The Court has
reviewed and compared the index of claims in the January 2015
and April 2016 petitions and has found the listings identical; the
Court, therefore, addresses the April 2016 pleadings (“NPT
Petition”).
3a
that jurors, not judges, must find aggravating
factors that expose defendants to capital
sentences. 536 U.S. 584, 609, 122 S.Ct. 2428
(2002). In response to that decision, and
subsequent legislation, this Court vacated
Cropper’s sentence and remanded for
resentencing under the appropriate statutes.
State v. Cropper (Cropper II), 206 Ariz. 153, 158
¶ 24, 76 P.3d 424, 429 (2003).
On remand, a jury found two aggravating
factors: Cropper had a prior serious conviction
and he committed the murder while
incarcerated. See Ariz. Rev. Stat. (“A.R.S.”)
§ 13–751(F)(2), (F)(7) (Supp.2009). That jury,
however, could not reach a verdict as to
whether the killing was especially cruel, A.R.S.
§ 13–751(F)(6), or whether death was the
appropriate sentence.
A second jury was
impaneled, see A.R.S. § 13–752(K), and
concluded that the murder was committed in an
especially cruel manner and that death was the
appropriate punishment.
This automatic
appeal followed. Ariz. R. Crim. P. 26.15, 31.2.
We have jurisdiction under Article 6, Section
5(3) of the Arizona Constitution and A.R.S.
§ 13–4031 (2001).
Cropper III, 223 Ariz. at 524, ¶¶ 1-2, 225 P.3d at 581
(footnotes omitted).
On direct appeal in Cropper I, our Supreme Court
affirmed the convictions, addressing the following
guilt-phase issues on appeal (after finding the facts1)
and holding:
•
The State provided adequate notice of a third
aggravating factor, (F)(2) “prior serious
4a
offense,” before Defendant entered a guilty plea
to aggravated assault in a separate case
(CR2000-000245).
•
Any challenge to the aggravated assault plea in
CR2000-000245 must be made in that case.
•
Defendant provided no evidence sufficient to
support his claim that the trial judge should
have recused himself from hearing the capital
case for bias or prejudice, simply because he
presided over the aggravated assault
proceedings; and
•
Based on the decisions in Ring I – III, the Court
would address sentencing issues in a future,
separate opinion (i.e., in Cropper II).
On direct appeal in Cropper II, the Supreme Court
vacated the judge-imposed death sentence. The Court
held that a jury should determine whether a “causal
nexus” existed between defendant’s background and
the murder sufficient to support the “altered
state/dissociative state” mitigation, which the
sentencing judge had rejected.
In Cropper III, our Supreme Court addressed resentencing issues and held that:
•
A change in the law permitting the state to
retry the penalty phase in a capital case when
the first jury could not reach a decision did not
violate the state and federal Ex Post Facto
Clauses;
•
The prosecutor did not commit misconduct in
argument relating to a victim’s suffering for
“significant period of time” under cruelty
aggravator, suggesting the phrase be
5a
interpreted in “subjective terms,” by “what it
means to you”;
•
Cruelty
aggravator
(that
the
officer
experienced pain and that the defendant knew
or should have known he would) was
established beyond a reasonable doubt with Dr.
Keen’s testimony;
•
The defendant established by a preponderance
of the evidence that he suffered an abusive
childhood;
•
The defendant’s allocution and related
testimony regarding his remorse would not be
given substantial weight in reviewing
propriety of death sentence; and
•
Considering the “quality and strength” of
aggravating and mitigating factors, a capital
sentence was warranted based on significant
aggravating
factors
and
comparatively
minimal mitigation evidence.
PRELIMINARY MATTERS
CR2000-000245
Defendant attempts to base his claims “upon such
filings [pleadings, orders, transcripts, exhibits and
other papers]” in the non-capital case of State v.
Cropper, CR2000-000245 (Victim: Antoine Jones).
NPT Petition at 1. Defendant previously attempted
to consolidate that case with the capital case appeal.
The Supreme Court held that issues raised in that
separate case were not properly before it. State v.
Cropper, 205 Ariz. 181, 185, ¶¶ 18-20, 68 P.3d 407,
411, supplemented, 206 Ariz. 153, ¶¶ 18-20, 76 P.3d
6a
424 (2003). The Court notes that the judge in the noncapital case also ordered:
IT IS FURTHER ORDERED denying
defendant’s request to consolidate this matter
with the capital post-conviction relief pending
in CR1997-003949(A).
ME dated 8/23/2012.
Similarly, this Court declines to consider the
pleadings or address that separate matter, CR2000000245, in this capital post-conviction proceeding.
Sworn Statements
The Court has reviewed and considered the State’s
Motion to Strike Juror and Expert Declarations filed
7/26/2016, the Defendant’s response filed 8/24/2016,
and the State’s reply filed 9/2/2016.
Defendant attached declarations from “the jurors
who heard Defendant’s case” as Exhibits 33 through
37, in support of his claim regarding the mitigation
presentation. Reply to NPT Petition at 21-22. The
Defendant claims that the exhibits are not precluded
because “the jurors were not asked to, nor did they,
declare anything about either their deliberations or
their vote. Rather they provide information about the
kind of evidence which they would have found useful
to consider.” Reply to NPT Petition at 22-23, FN7.
Rule 24.1(d) prohibits the Court from considering
“testimony or affidavit….which inquires into the
subjective motives or mental processes which led a
juror to assent or dissent from the verdict.”
The Court finds that asking the jurors about
mitigation evidence that they might have considered
had it been presented necessarily implicates (1) their
deliberations, subjective motives and mental
7a
processes relating to the evidence actually presented,
considered, and evaluated upon which the juror (and
jurors; both singular and plural) actually deliberated;
and (2) the basis of their assent or dissent from the
verdict, which in this defendant’s case was to impose
the death penalty (The question posed by PCR counsel
was, essentially “would additional evidence related to
mental health have changed your vote?”).
The Court will consider the expert declaration of
Garrett Simpson to the extent that any specialized
knowledge may be helpful to the Court in accordance
with Rules 702 and 703, Arizona Rules of Evidence.
Based on the above,
IT IS ORDERED granting the State’s Motion to
Strike Juror and Expert Declarations, as to the juror
declarations (Exhibits 33-37) only.
CLAIMS FOR RELIEF
In his post-conviction pleadings the defendant
raises numerous issues in sixteen (16)2 numbered
claims.
The issues raised relate to ineffective
assistance of trial and/or appellate counsel (“IAC”
claims) in connection with:
A. Mitigation (Claims I, II, XIV).
B. Inadvertent Disclosure of Defense Memoranda
(Claims III, IV, V).
C. The (F)(6) Aggravating Factor (Claims VI, VII)
2
Defendant raised Claims I - XIV in his nunc pro tunc
petition; in his supplemental petition, he added Claims XV and
XVI, and supplemented Claims V, IX, XIII and XIV. His exhibits
remain attached to the 1/25/2015 petition. The Court notes that
the page numbers identified in the Supplement’s Table of
Contents at i-iii appears to differ from the actual pagination as
to Claims XV, XIII and XVI.
8a
D. Future Dangerousness/Parole (Claims VIII, IX,
XV).
E. Timing and Effect of Guilty Plea (Claims X,
XII).
F. Victim Impact Statements (Claim XI).
G. Restitution (Claim XIII).
H. Death Penalty (Claim XVI).
I. Cumulative Error and “Failure to Federalize.”
J. Resentencing by a Jury (Pro Per Claim).
For convenience, and hoping to avoid confusion,
the Court follows this organization and grouping in
its analysis of Defendant’s claims in Section II, below.
I. Ineffective Assistance of Counsel – Legal
Standards
The United States Supreme Court has established
a two-prong test to determine whether counsel was
constitutionally effective in representing a defendant:
1. “First, the defendant must show that counsel’s
performance was deficient.” Strickland v.
Washington, 466 U.S. 668, 687 (1984).
2. Second, the defendant must demonstrate that
prejudice resulted from defense counsel’s
performance. Id.
Failure to satisfy either prong is fatal. Id.
A. Deficient Performance
Strickland requires that courts afford a strong
presumption that counsel rendered adequate
assistance and exercised reasonable professional
judgment in assisting the defendant. Strickland, 466
U.S. at 690. “[T]he proper measure of attorney
performance remains simple reasonableness under
9a
prevailing professional norms” and is itself an
objective, two-part analysis. Id. at 688.
To prevail under Strickland’s highly deferential
standard, a defendant must “identify the acts or
omissions of counsel” that were neither: (1)
reasonable; nor (2) based in strategy. Id. at 690;
Murtishaw v. Woodford, 255 F.3d 926, 939 (9th Cir.
2001). Actions or omissions by counsel that “might be
considered sound trial strategy” do not constitute
ineffective assistance, and this Court must take into
account all of the attendant circumstances in making
this determination. Strickland, 466 U.S. at 688–89
(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
Additionally, this Court should “neither secondguess counsel’s decisions, nor apply the fabled twentytwenty vision of hindsight.” Campbell v. Wood, 18
F.3d 662, 673 (9th Cir. 1994) (en banc). Rather, as
Strickland holds, this Court must make “every effort
[ ] to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Id. at 689. Disagreements
in trial strategy will not support an ineffective
assistance of counsel claim, “provided the challenged
conduct has some reasoned basis.” State v. Nirschel,
155 Ariz. 206, 208, 745 P.2d 953, 955 (1987).
In capital cases, as in applying Strickland
generally, a court averts the effects of hindsight by
reviewing the case from the perspective that counsel
had at the time counsel made critical, strategic
decisions and by giving a “heavy measure of deference
to counsel’s judgments.” Rompilla v. Beard, 545 U.S.
374, 381 (2005) (quoting Strickland, 466 U.S. at 689,
691). The Supreme Court has made clear that counsel
in capital cases need only “make objectively
10a
reasonable choices.” Bobby v. Van Hook, 558 U.S. 4,
9 (2009) (per curiam), quoting Roe v. Flores-Ortega,
528 U.S. 470, 479 (2000); see also Wiggins v. Smith,
539 U.S. 510, 533 (2003) (Strickland does not even
require counsel “to present mitigating evidence at
sentencing in every case.”).
To evaluate the
performance of counsel for Sixth Amendment
purposes, the relevant perspective is at the time of
trial, or at the time of sentencing, not afterwards
when counsel did not succeed in avoiding a guilty
verdict or the death penalty.
B. Prejudice Required
The second prong of the Strickland analysis
requires a showing of prejudice. Strickland, 466 U.S.
at 691–92. The United States Supreme Court has
held that even when counsel has performed
deficiently, it “does not warrant setting aside the
judgment of a criminal proceeding if the error had no
effect on the judgment.” Id. Indeed, Strickland
“requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.” Id.
Prejudice is not presumed. Jackson v. Calderon,
211 F.3d 1148, 1155 (9th Cir. 2000). Rather, a
petitioner
must
affirmatively
prove
actual
prejudice—the mere possibility that he may have
suffered prejudice is insufficient. See Cooper v.
Calderon, 255 F.3d 1104, 1109 (9th Cir. 2001).
Regarding prejudice in capital cases, the
petitioner must show:
[A] reasonable probability that, absent the
errors, the sentencer—including the appellate
court, to the extent that it independently
11a
reweighs the evidence—would have concluded
that the balance of the aggravating and
mitigating circumstances did not warrant
death.
Strickland, 466 U.S. at 695; see also Wong v.
Belmontes, 130 S. Ct. 383, 390–91 (2009) (“Strickland
places the burden on the defendant, not the State, to
show a ‘reasonable probability’ that the result would
have been different.”)
C. ABA Guidelines
To the extent that Defendant cites the ABA
Guidelines in support of his claims, the Court finds
the ABA Guidelines provide only guidance as to what
may constitute reasonable conduct; the guidelines do
not impose absolute duties on defense counsel. See
Bobby v. Van Hook, 558 U.S. 4, 8 (2009) (“‘American
Bar Association standards and the like’ are ‘only
guides’ to what reasonableness means, not its
definition.”). Additionally, the comments to Ariz. R.
Crim. P. 6.8 expressly state that a deviation from the
guidelines is not per se ineffective assistance of
counsel and, in fact, some of the guidelines may not
even be applicable to Arizona practice or to the
circumstances of a particular case. Instead, the
standard for evaluating counsel’s performance
continues to be that set forth in Strickland.
II. Analysis of Claims
A. Ineffective
Assistance
(Claims I, II, XIV).
–
Mitigation
In Claim I Defendant alleges that trial counsel
provided ineffective assistance by “[ignoring or
rejecting] the mental health and organic brain
12a
dysfunction mitigation case, and its aggravation by
prolonged solitary confinement, instead of presenting
a dangerous and unpersuasive mitigation case of
defendant’s life and behavior, without the guidance of
the experts who were available to explain defendant’s
true situation and lack of moral culpability.”
The Arizona Supreme Court summarized and
analyzed the 2000 mitigation presentation this way:
Cropper offered several mitigating circumstances
for the court’s consideration. The trial judge found
only two mitigators, and he did not find their
weight sufficiently substantial to call for leniency.
The defense’s main theory in mitigation was that
the cell search caused Cropper to relive childhood
trauma, thereby forcing him into a dissociative
state. According to the defense, Cropper, as a
child, was severely abused by his stepmother.
Cropper’s father often witnessed the abuse and did
not intervene on behalf of his son. These past
psychological traumatic experiences allegedly
matched the cell-search event closely enough to
trigger Cropper’s reaction and subsequent
conduct. Therefore, Cropper became verbally
confrontational with Officer Landsperger because
he believed that she, like his stepmother, did not
respect him and his property. While it was she
who allegedly disrespected his property, Cropper
held Lumley ultimately responsible because he,
like his father, should have intervened.
The defense presented the testimony of three
experts, including one neurologist, to support its
theory. One of the defense experts, Dr. Susan
Parrish, was questioned about Cropper’s
dissociative state and about why Cropper would
13a
attack Officer Lumley rather than
Landsperger. Dr. Parrish answered:
Officer
Leroy was in a dissociative state and was
flashing back to what happened in his
childhood. Because it’s his father that he has
the hatred for. He, he doesn’t-he does not
blame his stepmother. I mean in his, in his
view, you know, there’s a principle here. This
is a man, you know, a father with a-an architect
father here is standing by and allowing an
injustice, that the person doing it is not
recognizing because they have their own, own
set of problems. So it’s the person who allows
**429 *158 this to go on and knows that it’s
wrong that is the focus of his anger.
....
[E]arly on he felt very close to his father. And
it’s possible that that sense of closeness that his
father ... from his standpoint betrayed, is what
created the foundation for such hate towards a
male authority figure.
And, and sort of
dismissing the role of the female.
The State presented rebuttal evidence in the form
of testimony by psychologist Dr. Jess Miller. Dr.
Miller evaluated Cropper and concluded that he
did not commit the murders in an “altered state,”
as theorized by Dr. Parrish. Instead, in Dr.
Miller’s opinion, Cropper suffers from a
sociopathic personality disorder.
Dr. Miller
concluded that Cropper manipulated the
psychological evaluations.
Cropper II, 206 Ariz. at ¶¶ 19-22, 76 P.3d at 428–29.
14a
In the jury resentencing hearings, trial counsel did
not call experts. Whether to call an expert is a
strategic decision. State v. Broughton, 156 Ariz. 394,
752 P.2d 483 (1988). Trial counsel is presumptively
competent, and in this case made a reasonable
strategic decision not to call experts, whose testimony
would have been vulnerable to damaging rebuttal.3
3
The Court notes that the State’s 2000 sentencing
rebuttal was both vigorous and portending. Illustratively:
Dr. Parrish [Derello’s own expert] allows that Cropper would
know right from wrong in his “manic, plotting stage” and in
his cover-up stage, but maintains that when he actually
murdered Lumley he would not. By all accounts the murder
took less than five minutes. This Court is therefore
presented with a man who intended to kill, plots to kill, does
kill, then covers up his crime and is in all respects
responsible for his conduct but for the five minutes spent in
the CD control room alone with his victim.
Not surprisingly this scenario is refuted by [State’s expert]
Dr. Miller….Dr. Miller notes that at the time of the offense,
Cropper was not suffering from a mental illness, but rather
a personality disorder, knew right from wrong, and could
conform his conduct to the requirements of the law.
On the issue of PTSD, Dr. Miller testified that if properly
triggered, Cropper would have experienced an adrenaline
rush and would have reacted impulsively, becoming
immediately violent; instead, Cropper murdered for revenge,
planning the death of Officer Lumley over a period of hours.
Further, because attacking Officer Lumley involved four or
five complicated parts of a plan involving other persons and
certain arrangements, Dr. Miller is certain Cropper was not
in an altered state of consciousness during the killing.
Additionally, had Cropper really been in this supposed
dissociative state, he would have been overwhelmed with
remorse and grief once he found out what he had done.
15a
Rather, trial counsel focused on child abuse and
rage at the first resentencing hearing (the 2006 hung
jury), adding more positive evidence of Defendant’s
remorse and rehabilitation at the second juryresentencing.
Trial counsel made reasonable
strategic decisions. Argument to the contrary merely
indulges in “the fabled twenty-twenty vision of
hindsight.” Campbell v. Wood, 18 F.3d at 673.
The Court finds that Defendant presented mental
health evidence to a trial judge, and that it was
contested by the State with adverse admissions of the
defense experts, the opinions of its own expert and
strong argument. Had mental health evidence been
presented to the resentencing jury, the State likely
would have cross-examined the defense experts with
“other acts” and writings of Defendant that would not
have been helpful nor would it have changed the
verdict of death.
Claim I is therefore not colorable.
In Claim II Defendant alleges that trial counsel
provided ineffective assistance by “[presenting] the
‘full Monty’ mitigation case that was so broadlyInstead, Cropper’s immediate reaction was “I left the knife
in the mother fucker’s throat.”
Finally, according to Doctors Parrish and Miller, one
experiencing a dissociative episode would have a fragmented
or no memory of the event. According to Dr. Parrish, you
don’t get back information when in an altered state. But
testifying under oath in State v. Kyzar and Long on
September 2, 1999, Cropper gave a chilling, detailed account
of every step of the murder [that occurred] in the CD control
room.
State’s Response to Defendant’s Mitigation (filed 10/10/2000), at
10 – 11.
16a
defined and presented that it necessarily broadened
the scope of the ‘rebuttal’ evidence the state was
allowed to present, resulting in the prejudicial
admission of much evidence of [the defendant’s]
subsequent
bad
acts
and
alleged
‘future
dangerousness.’”
Defendant’s premise – i.e., that had trial counsel
made a narrower mitigation presentation, certain
harmful evidence would not have been admitted – is
dubious. By the time of Defendant’s resentencing in
2008, courts interpreted expansively the scope of
rebuttal to mitigation, to include “any evidence that
demonstrates that the defendant should not be shown
leniency.” A.R.S. §13-751(G).4
4
See also A.R.S. §13-752(G):
“At the penalty phase, the defendant and the state may
present any evidence that is relevant to the determination of
whether there is mitigation that is sufficiently substantial to
call for leniency. In order for the trier of fact to make this
determination, regardless of whether the defendant presents
evidence of mitigation, the state may present any evidence
that demonstrates that the defendant should not be shown
leniency including any evidence regarding the defendant’s
character, propensities, criminal record or other acts.”
See also, State v. Pandeli, 215 Ariz. 514, ¶¶ 52-53, 161 P.3d 557
(2007) (upholding admission of evidence of a murder in a
separate incident as relevant to whether defendant deserved
leniency); State v. Armstrong, 218 Ariz. 451, 461 ¶ 38, 189 P.3d
378, 388 (2008):
Armstrong also suggests that the language in A.R.S. § 13–
703.01(G) allowing the State to “present any evidence that
demonstrates that the defendant should not be shown
leniency” should be interpreted with Gulbrandson in mind,
such that the state’s right to present rebuttal evidence in the
penalty phase is limited to rebutting specific mitigating
circumstances advanced by the defendant. Armstrong is
17a
The Court finds that the primary difference
between Defendant’s 2006 and 2008 mitigation cases
was asking the 2008 jury to consider additional
evidence (of Defendant’s remorse and rehabilitation.
See RT 4/25/2008 at 8-9. Either or both had the
potential to present the Defendant in a more positive
and humane light, and to suggest to the jury that
leniency might be appropriate. This is a strategic
decision, and trial counsel is presumed to provide
effective assistance.
The procedural context of the decision also
supports the reasonableness of defense counsel’s
decision. The jury in 2006 hung on the (F)(6)
aggravator. Yet that same group did not hand down
a life sentence on the mitigation then presented.
Defense counsel had to consider the possibility that
the next jury would find the (F)(6) aggravator, and
that the 2006 mitigation evidence would not suffice.
misguided for two reasons. First, A.R.S. § 13–703.01(G)
regulates the admission of evidence at the penalty phase;
everything Armstrong references was introduced during the
aggravation phase. Indeed, the State offered little rebuttal
evidence during the penalty phase. Armstrong fails to
identify any evidence admitted in rebuttal that went outside
the scope of A.R.S. § 13–703.01(G).
Second, we have made clear that the underlying facts of a
murder are relevant during the penalty phase because they
tend to show whether the defendant should be shown
leniency. State v. Roque, 213 Ariz. 193, 220–21 ¶¶ 107, 110,
141 P.3d 368, 395–96 (2006). Thus, to the extent Armstrong
argues that the jury was prejudiced during the penalty
phase by evidence describing details of his crime that may
not have been especially relevant to the aggravating
circumstances, that argument has no merit.
State v. Armstrong, 218 Ariz. 451, 461, ¶¶ 37-38, 189 P.3d 378,
388 (2008).
18a
Trial counsel’s decision to include evidence of remorse
and progress toward rehabilitation was a reasonable
strategic decision – not deficient performance.
Further, there was no prejudice by admission of
any “other act” and other writings in State’s rebuttal;
the rebuttal would have been admissible to crossexamine any testifying experts in response to mental
health mitigation, had it been presented as Defendant
now suggests should have been done.5
The Court finds Claim II not colorable.
In Claim XIV Defendant alleges that trial counsel
provided ineffective assistance by failing to “do a
thorough and competent social history in [the
defendant’s] case, both because there were no defense
team members possessing the training and
experience required to screen individuals for the
presence of mental or psychological disorders or
impairments, and because counsel did an incomplete
social history investigation.”6
5
The Court further notes that the Court in 2008 was
adamant that the jury would not learn “…that he was subject to
the death penalty prior to this proceeding” (RT 4/24/2008 at 11);
and also precluded testimony about the facts underlying the
(F)(2) aggravating factor. For example, the State wanted to ask
Ms. Bolinger about defendant: “Are you aware of your client
taking the cell door off of another inmate’s cell while he was in a
custodial setting?” to establish that “in a very secure facility, he
took the door off another inmate’s cell” to counter the “give him
life and he’ll be secure” argument…Court continued to preclude
use of Antoine Jones incident. (RT 4/24/2008 at 1-7)
6
Defendant further claims that “[p]ost-conviction counsel
and mitigation investigators have not had sufficient time to do a
complete social history investigation.”
The Court finds that PCR counsel was appointed 4/29/2013;
had the benefit of three Arizona Supreme Court decisions
broadly outlining the mitigation presented either to the judge or
19a
In his Supplement to Claim XIV (at 18-29), the
Defendant alleges that “the insufficient and
constitutionally ineffective mitigation investigation
by the trial team [prejudiced him].”
The Court finds that defense counsel consulted
with appropriate mental health experts to obtain
expertise absent from the team. The Court further
finds that had counsel completed an extensive and
exhaustive social history investigation, such evidence
would not have been persuasive, because “childhood
troubles deserve little value as a mitigator for ...
murder[ ] ... committed at age thirty-three,” as
Cropper was at the time of this offense. Cropper III,
223 Ariz. at ¶ 30, 225 P.3d at 586.
The Court finds that trial counsel did not perform
deficiently nor did Defendant suffer prejudice in
connection with the social history/mental health
mitigation presentation.
The Court finds that
sufficient material was available to trial counsel to
establish the “abusive childhood” mitigator without
expert testimony; that a decision to present mental
health evidence rather than “rehabilitation/remorse”
evidence would not have changed the admissible
rebuttal.
to a jury; had the benefit of any underlying transcripts that
served as the basis for the Supreme Court’s summary of
mitigation; filed this claim in January 2015, and again in April
2016 nunc pro tunc to January 2015 repeated the claim of
“insufficient time.” Three years after being appointed and a year
and a half after first making the claim of “insufficient time,”
Defendant (and PCR counsel) filed a supplement in August 2016
repeating the claim of insufficient time.” Twenty years and
three mitigation presentations later, the Court finds PCR
counsel’s “insufficient time” claim not to be viable.
20a
Accordingly, the Court finds Claim XIV is not
colorable.
B. Ineffective Assistance – Inadvertent
Disclosure of Defense Memoranda (Claims
III, IV, V).
“Sometime in 2006” trial counsel permitted the
prosecutor to review the defense mitigation materials
in advance of the 2006 re-sentencing. RT 4/25/2008
at 5; see also Id. at 8.
Defendant describes the contents of the notes as
including:
[Defendant’s] detailing of the crime, including
critical details relating directly to the contested
issue of the duration of [the victim’s] conscious
suffering, upon which the especially cruel
aggravator turned. They also reveal the most
intimate and personal family information about
[defendant], as well as the otherwise unknown fact
that while in the Navy he had the nickname
“Lucky” because he did not get caught for breaking
rules.
Supplemental Petition at 7.
Trial counsel became aware of the disclosure and
immediately sought a mistrial. The State indicated
that the materials were turned over voluntarily in
connection with the 2006 sentencing mitigation, and
that any information in the notes “has already come
out in this trial through other sources.” RT 4/25/2008
at 8. The State indicated that it had not used the
notes. The Court framed the issue as “whether, in
fact, there has been a breach of the attorney/client
privilege sufficient to warrant a motion for mistrial,”
and concluded that “there are a number of things I
21a
can put into place to protect us from that…” RT
4/25/2008 at 10. The Court directed that the notes
were to be marked as an exhibit to be sealed and filed
with the Clerk and not disclosed to the jury; the Court
further directed that the notes were not to be used in
cross-examining the witness, Mr. “Abernathy”.7 RT
4/25/2008 at 11.
As to Claims III, IV and V, the Court finds that
trial counsel disclosed protected client interviews –
perhaps intentionally in connection with the 2006
sentencing or inadvertently at that time and in
connection with the 2008 resentencing. The Court
finds that providing such materials for other than a
carefully-considered
strategic
reason
would
constitute deficient performance.
In Claim III Defendant alleges that trial counsel
provided ineffective assistance “by disclosing to the
state numerous memoranda of their interviews with
[the defendant], which were privileged attorney/client
communications and constituted work product.”
Yet, and though having access to both the notes
and the trial transcripts, Defendant identifies only a
single alleged misuse of the inadvertently disclosed
materials – i.e., namely, that the prosecution
improperly used the privileged information to cross
examine a mitigation specialist, who acknowledged
defendant had been given the nickname “Lucky”
during his military service.
Defendant was so nicknamed for his ability to
escape detection for infractions, something Defendant
7 The trial transcript refers to the investigator’s last name
as “Abernethy” while the PCR pleadings refer to “Abernathy.”
The Court adopts the PCR version, Abernathy, other than when
quoting from trial materials.
22a
claims the State discovered in the notes. Even if true,
the Court finds the material insufficiently substantial
to warrant a mistrial; the nickname is unrelated to
the crime, provides somewhat minor background
information only and was not unduly prejudicial.
Although Defendant claims that the trial court
permitted the State to call the defense investigator,
Mr. Abernathy, in its rebuttal case, based on “waiver
of privilege” due to the disclosure of the notes, the
record demonstrates otherwise.
As the record
demonstrates – the Court was careful to advise
counsel to build a foundation unrelated to the notes
for any statements:
…make sure that the statements were previously
testified to by Miss Bolinger [the mitigation
specialist, called by the defense in its case-inchief]. And [that] he’s only confirming or affirming
what has already been disclosed by Miss Bolinger.
And if that’s the case, then the objection is
overruled.
If it’s not the case, and was a separate and distinct
conversation that Mr. Abernethy had with the
defendant, then I don’t believe that the defendant
has waived any privilege he may have with respect
to conversations which were held between Mr.
Abernethy, and the defendant, and his counsel in
a separate and distinct conversation. Thank you.
RT 4/24/2008 at 103-104.
The Court finds that Defendant has not
demonstrated prejudice from the disclosure of
interview notes relating to conversations between
counsel and himself. Claim III therefore is not
colorable.
23a
In Claim IV Defendant alleges that trial counsel
provided ineffective assistance by “failing to argue
that the State’s failure to return the inadvertently
disclosed materials and the State’s use of such
materials during the trial were prosecutorial
misconduct in violation of E.R. 4.4(B) and the
inadvertent disclosure doctrine.”
Arizona courts have addressed the obligations of
the parties in connection with inadvertently disclosed
materials:
When a party has inadvertently disclosed
privileged information, Rule 26.1(f)(2) outlines the
proper procedure for claiming privilege and
resolving any dispute.2 The party who claims that
inadvertently disclosed information is privileged
should “notify any party that received the
information of the claim and the basis for it.” Ariz.
R. Civ. P. 26.1(f)(2). Once the receiving party has
been notified of the privilege claim, that party
“must promptly return, sequester, or destroy the
specified information ... and may not use or
disclose the information until the claim is
resolved.” Id.; accord Fed. R. Civ. P. 26(b)(5)(B).
Our rule, like its federal counterpart, “is intended
merely to place a ‘hold’ on further use or
dissemination of an inadvertently produced
document that is subject to a privilege claim until
a court resolves its status or the parties agree to
an appropriate disposition.” Ariz. R. Civ. P.
26.1(f)(2) State Bar committee’s note to 2008
amend.
Lund v. Myers, 232 Ariz. 309, 311, ¶ 11, 305 P.3d 374,
376 (2013).
24a
Upon becoming aware of his disclosed interview
notes, trial counsel acknowledged his role, sought a
mistrial, and pursued sealing and the preclusion of
the use of the notes by the State. Learning mid-trial
of the State’s possession of certain notes, trial counsel
reacted quickly and located and cited People v.
Knippenberg, 362 N.E. 2d 681 (1977),8 in support of
his motion for mistrial, arguing “where an
investigator inadvertently, or somehow, turned over
attorney/client notes. And those notes were used to
later impeach the defendant, who was on the witness
stand….The prejudice to the defendant could not be
overcome. And even though there wasn’t an objection
at trial, it was overturned.” RT 4/25/2008 at 6-7.
Defendant sought a mistrial, which the trial court
denied. The Court finds that Knippenberg, an Illinois
decision, although not establishing a per se
determination of prejudice, provided a strong and
quickly-located argument in support of the mistrial
motion.
The record further indicates that the State
appears to have understood the materials to have
been voluntarily disclosed in connection with 2006
mitigation; trial counsel’s reaction in 2008 suggests
the disclosure was inadvertent. Based on trial
counsel’s avowal that the notes were not intended to
be shared with the State, the State determined not to
question the witness about a particular conversation.
RT 4/24/2008 at 117. The day after learning of the
8
Knippenberg held that the use of confidential materials
for impeachment of defendant, whose version of events was
contradicted by the materials, was prejudicial, constituted
ineffective assistance in violation of the Sixth Amendment and
violated Due Process right to a fair trial, and was not harmless
as it may have contributed to the conviction.
25a
inadvertent disclosure, the trial court immediately
sealed the notes for filing with the Clerk, directed that
the contents not be used, and accepted the avowals of
both counsel (“…just as you [referring to trial counsel]
have claimed it wasn’t a strategy, [the prosecutor] has
claimed he didn’t use the notes for any purpose in the
cross-examination of Mr. Abernethy. I’m willing to
take both counsel – I see no contradicting evidence
one way or another, as I have listened to the
testimony from yesterday and the preceding
testimony, as well.” RT 4/25/2008 at 12), denying the
mistrial and concluding, “…I intend to allow the
continuation of this matter. I don’t see that it – I
think any prejudice or harm has been forestalled, by
virtue of our having addressed the issue, and that’s
that. We’ll move on from here.” RT 4/25/200 at 12.
The Court finds that even had trial counsel
claimed a breach of E.R. 4.4(B), the trial court would
have denied the request for mistrial for reasons
similar to those stated above. Claim IV is therefore
not colorable.
In Claim V Defendant alleges that appellate
counsel provided ineffective assistance by “failing to
present a claim that the State’s possession, retention,
and use of defense counsel’s inadvertently disclosed
privileged notes was prosecutorial misconduct in
violation of [the defendant’s] 6th, 8th and 14th
Amendment and analogous Arizona constitutional
rights [and E.R. 4.4(B).”
Even assuming prosecutorial misconduct occurred
at trial, to constitute a due process violation, the
misconduct must have “so infected the trial with
unfairness as to make the resulting conviction a
denial of due process.” Darden v. Wainwright, 477
U.S. 168, 181 (1986) (internal quotations and
26a
citations omitted); Donnelly v. DeChristoforo, 416
U.S. 637, 643 (1974); State v. Hughes, 193 Ariz. 72, 79,
¶ 26, 969 P.2d 1184, 1191 (1998). “Reversal on the
basis of prosecutorial misconduct requires that the
conduct be ‘so pronounced and persistent that it
permeates the entire atmosphere of the trial.’” State
v. Atwood, 171 Ariz. 576, 611, 832 P.2d 593, 628
(1992) (quoting United States v. Weinstein, 762 F.2d
1522, 1542 (11th Cir.1985) (quoting United States v.
Blevins, 555 F.2d 1236, 1240 (5th Cir.1977))); see also
State v. Lee, 189 Ariz. 608, 616, 944 P.2d 1222, 1230
(1997) (cited in State v. Hughes, 193 Ariz. 72, 79, ¶ 26,
969 P.2d 1184, 1191 (1998)).
The Court accepted the avowals of counsel
regarding the inadvertence of the disclosure (from
defense trial counsel) and the non-use of the materials
(from the prosecutor). The Defendant provides no
support for his claim that the State used privileged
defense material, other than possibly in connection
with discovery of the Defendant’s nickname, Lucky.
The Court finds no evidence that the State utilized
the materials “detailing… the crime, including
critical details relating directly to the contested issue
of the duration of [the victim’s] conscious suffering,
upon which the especially cruel aggravator turned.
They also reveal the most intimate and personal
family information about [Defendant]” in connection
with securing either the aggravation or the penalty
phase verdicts. The Court further finds no evidence
that a claim of prosecutorial misconduct would have
been supported by the record on appeal
The Court finds that a claim of prosecutorial
misconduct is speculative at best. The Court finds no
evidence that the State used the materials in a
manner that deprived Defendant of a fair trial or
27a
sentencing, once notified of the inadvertent disclosure
or even prior to notification. The Court finds neither
deficient performance nor prejudice. Thus, Defendant
has not presented a colorable claim of ineffective
assistance of appellate counsel in connection with
Claim V.
In his Supplement to Claim V: [at 1-13],
Defendant alleges that “appellate counsel was
ineffective for failing to present a claim that the
State’s retention and use of the privileged notes
violated [defendant’s] 6th and 14th Amendment and
analogous Arizona constitutional rights” and in
failing to “federalize” the claim.
Defendant claims that he was prejudiced because
the notes formed the basis of waiver of privilege,
permitting the State to call the defense investigator
(Abernathy) in rebuttal, after Defendant called his
mitigation witness to testify. RT 4/24/2008 at 82-89.
The prosecution argued initially that disclosure
supported calling Abernathy,9 but trial court
permitted examination based on mitigation expert’s
testimony and cautioned that the now-sealed notes
could not be the basis for State’s questions. The trial
court initially stated:
My ruling is that any materials that have been
disclosed as communications between Mr.
Abernethy and the defendant will be subject to
cross-examination or examination by Mr.
Abernethy. Anything that hasn’t been disclosed
won’t be.
9 Abernathy had previously been sworn during the
defense mitigation presentation, to introduce video interviews of
Defendant’s sister, Leanne. RT 4/21/2008 at 5-9.
28a
Id. at 89. The trial court later clarified that - as to
conversations with the Defendant - if Ms. Bolinger
(the mitigation specialist) had previously testified to
the matter in the defense mitigation case, then any
privilege had been waived; however, if Abernathy had
a separate conversation with the defendant, the
privilege remained. RT 4/24/2008 at 108.
Thereafter, the trial court took precautions to
avoid disclosing privileged material to the jury, based
upon representations of counsel that disclosure of
notes was inadvertent and that the State had not
used the notes. The trial court further determined
there was not “any prejudice or harm” occurred as the
notes were not used in the cross-examination of Mr.
Abernathy. RT 4/25/2008 at 4-11; 12.
The Court finds no prejudice because the trial
court permitted Abernathy to testify not because of
any “waiver through discovery” attributable to the
inadvertent disclosure of privileged materials but
rather because of a “waiver through testimony of a
witness, Ms. Bolinger, the mitigation specialist, called
by the defense.” The trial court properly instructed
the prosecutor, sealed the materials, and secured
assurances that materials had not been nor would
they be used.
The Court further finds that Defendant has not
provided, other than speculation: any documentation
that the disclosed materials produced directly or
indirectly any significant evidence used at trial (Reply
to NPT Petition at 52-53); any support for the claim
the materials were improperly used in connection
with sentencing (see Reply to NPT Petition at 46); or
any support for the claim that privileged information
was used to resolve the “hotly contested” (F)(6)
aggravating factor (Supplemental Reply at 6).
29a
The Court further finds the conclusion that
prejudice occurred because the “2006 hearing – which
was not impacted by the foregoing, prejudicial
privileged information – ended in a hung jury”
(Supplemental Reply at 6-7) untenable. There is no
evidence the materials were used, or contributed to
the verdict.
The prosecutors denied using
information to examine witnesses. The conclusion
that the materials were not used in 2006 (albeit
disclosed before that sentencing) but must have been
used in 2008 because jury did not hang is a non
sequitur.
The Court finds Claim V not to be colorable.
C. Ineffective Assistance – The
Aggravating Factor (Claims VI, VII).
(F)(6)
In Claim VI Defendant alleges that appellate
counsel provided ineffective assistance by “failing to
present a claim challenging the constitutionality of
the ‘especially cruel’ aggravator because it fails
adequately to narrow the class of murderers eligible
for the death penalty in violation of the 8th and 14th
Amendments to the United States Constitution and
analogous Arizona constitutional provisions,” and by
failing to “federalize” the claim.
“Cruelty exists if the victim consciously
experienced physical or mental pain prior to death
and the defendant knew or should have known
that suffering would occur.” State v. Trostle, 191
Ariz. 4, 18, 951 P.2d 869, 883 (1997) (citation
omitted).
The evidence demonstrates that
Cropper sought out a violent confrontation. The
struggle lasted up to two minutes, he
acknowledged. Further, the medical testimony
regarding the victim’s wounds and blood loss
30a
demonstrates that the officer suffered physical
pain. See State v. Bearup, 221 Ariz. 163, 172 ¶ 49,
211 P.3d 684, 693 (2009) (cruelty established when
assault lasted between sixty and ninety seconds
and resulted in substantial blood loss); State v.
Amaya–Ruiz, 166 Ariz. 152, 177, 800 P.2d 1260,
1285 (1990) (evidence of struggle demonstrated
cruelty).
Dr. Philip Keen, former chief medical examiner of
Maricopa County and a specialist in forensic
pathology, testified in detail on the nature of the
attack. He explained that the wounds inflicted
would have been particularly painful because of
the “higher concentration of nerves” in the neck;
the officer would have felt a “stinging, burning
kind of pain.”
Keen also testified that the officer suffered a
number of “penetrating injuries.” The deeper of
these cuts severed his thyroid gland, the jugular
vein, and his chest cavity and lung. The officer
bled to death as a result of these injuries. The
officer did not, however, experience significant
arterial damage from the attack because his aorta
and carotid arteries were not damaged. Thus, the
time it would have taken to lose consciousness was
the time it took him to bleed out, Keen confirmed.
Based on the injuries, the officer would have
“progressively” lost consciousness. Keen testified
that it would have taken “minutes” for him to lose
consciousness based on the amount of blood found
in his chest cavity and at the scene. Despite
Cropper’s contentions, Keen concluded that it was
unlikely the officer would have lost consciousness
in less than a minute. Taken together, these facts
31a
establish beyond a reasonable doubt that the
officer consciously suffered physical pain and
Cropper knew or should have known he would
experience such pain.
Cropper III, 223 Ariz. at ¶¶ 18-20, 225 P.3d at 584–
85.
The Court finds that the narrowing function of the
(F)(6) aggravating factor has been upheld. In Walton
v. Arizona, 497 U.S. 639, 110 S. Ct. 3047 (1990), the
United States Supreme Court held the “especially
heinous, cruel, or depraved” language is facially
vague, but stated that the Court had given adequate
“substance to the operative terms” for the
construction of the aggravating circumstance to meet
constitutional requirements. Id. at 654, 110 S. Ct. at
3057. The Court specifically held in Gretzler that the
aggravating circumstance of “especially heinous,
cruel, or depraved” must separate particular crimes
from the “norm” of first degree murders, or the factor
will not be upheld. Gretzler, 135 Ariz. at 53, 659 P.2d
at 12. Post-Ring, the Arizona Supreme Court has
continued to reject vagueness challenges to the (F)(6)
factor where the jury imposed death. See State v.
Guarino, 238 Ariz. 437, ¶¶39-40, 362 P.3d 484 (2015)
(noting previous rejection of argument); State v.
Tucker, 215 Ariz. 298, ¶28, 160 P.3d 177 (2007) (“The
(F)(6) aggravator is facially vague but may be
remedied with appropriate narrowing instructions,
whether a judge or a jury makes the sentencing
determination.”); State v. Anderson, 210 Ariz. 327,
¶¶109-14, 111 P.3d 369, supplemented by 211 Ariz.
59, 116 P.3d 1219 (2005) (observing that the (F)(6)
aggravator was sufficiently narrowed by jury
instructions that “gave substance to the terms ‘cruel’
32a
and ‘heinous or depraved’ in accordance with our case
law narrowing and defining those terms”).
This Court can find no support for Defendant’s
position in Arizona or federal case authority.
Defendant’s argument incorrectly assumes that the
(F)(6) aggravator has the same purpose in both
capital and non-capital sentencing. These two are
different and therefore comparing them is irrelevant
for purposes of Eighth Amendment analysis. This
was explained by the Arizona Supreme Court in State
v. Martinez:
The Court finds that each challenge to the death
penalty has been rejected by appellate courts. The
Court finds that the claims are meritless, based on
the state of the law at the time of the defendant’s
trial proceedings, and as conceded by Defendant
who acknowledges the existence of – and cites –
authority rejecting each of the claims.
We also note that determining aggravating factors
in a capital case serves a somewhat different
purpose than that served by determining
aggravating factors in non-capital cases. The
Eighth Amendment to the United States
Constitution requires that aggravating factors in
capital cases must “genuinely narrow the class of
persons eligible for the death penalty and must
reasonably justify the imposition of a more severe
sentence on the defendant compared to others
found
guilty of murder.” Zant v. Stephens, 462 U.S. 862,
877, 103 S. Ct 2733 (1983). In non-capital
sentencing, however, aggravating factors serve
only to establish the range of sentence and do not
involve Eighth Amendment issues.
33a
Martinez, 210 Ariz. 578, 585 n.5, 115 P.3d 618 (2005).
The fact that (F)(6) can be used to determine a
non-capital sentence does not mean that it no longer
serves its narrowing function in the capital
sentencing scheme
The Court finds that appellate counsel did not
perform deficiently by failing to argue that the (F)(6)
aggravating factor fails to perform the narrowing
function adequately nor was Defendant prejudiced by
having been found to be death-eligible, at least in
part,10 by the jury finding that the constitutional
(F)(6) aggravator applied to him.
Claim VI is therefore not colorable.
In Claim VII Defendant alleges that appellate
counsel provided ineffective assistance by “failing to
‘federalize’ and argue that the trial court
unconstitutionally allowed the state to argue that the
amount of the victim’s conscious suffering required to
establish the ‘especially cruel’ aggravator was a
‘subjective’ standard subject to the whims of each
juror and thus failed to objectively narrow that factor
in violation of the 8th and 14th Amendments to the
United States Constitution and analogous Arizona
constitutional provisions.”
The Court finds that appellate counsel raised the
issue of the prosecutor’s argument on appeal, as
prosecutorial misconduct. Our Supreme Court held:
Cropper next contends that the prosecutor
committed misconduct in his arguments regarding
the (F)(6) cruelty aggravator.
At Cropper’s
request, the trial court instructed the jury that, to
10 The Defendant was rendered death-eligible based on the
jury’s finding of the (F)(7) and (F)(2) aggravators.
34a
establish the cruelty prong of the (F)(6)
aggravator, the State was required to show a
victim’s suffering “existed for a significant period
of time.”6 (Emphasis added). In their arguments,
both defense counsel and the prosecutor
attempted to explain to the jury what constituted
a “significant period of time.” The defense objected
after the prosecutor told jurors that the standard
was “subjective,” suggesting that the phrase
should be defined by “what that means to you.”
The trial court overruled the objection, and the
prosecutor again explained the “significant period
of time” language in “subjective” terms. The
defense ultimately moved for a mistrial, which
was denied.
The prosecutor’s remarks must be assessed in
context. The instruction Cropper requested, to
which the State objected, differed from (F)(6)
cruelty instructions this Court has previously
approved. Our cases make clear that an (F)(6)
instruction is sufficient if it requires the state to
establish that “‘the victim consciously experienced
physical or mental pain and the defendant knew
or should have known that’ the victim would
suffer.” State v. Tucker, 215 Ariz. 298, 310–11
¶¶ 31–33, 160 P.3d 177, 189–90 (2007) (alterations
removed) (quoting State v. Anderson, 210 Ariz.
327, 352 n. 18 ¶ 109, 111 P.3d 369, 394 n. 18
(2005)). No set period of suffering is required. See
State v. Soto–Fong, 187 Ariz. 186, 203–04, 928
P.2d 610, 627–28 (1996) (rejecting any “brightline, arbitrary temporal rule” to determine
whether cruelty has been established).
An
instruction consistent with this standard
sufficiently narrows the (F)(6) aggravator for
35a
constitutional purposes. See Tucker, 215 Ariz. at
310–11 ¶¶ 31–33, 160 P.3d at 189–90; see also
Walton v. Arizona, 497 U.S. 639, 654–56, 110 S.Ct.
3047 (1990) (concluding that Arizona court’s
construction of the (F)(6) aggravator is
appropriate under the Eighth Amendment),
overruled on other *527 **584 grounds by Ring II,
536 U.S. at 608–09, 122 S.Ct. 2428.
To evaluate “the propriety of a prosecutor’s
arguments, we consider ‘whether the remarks
called to the jurors’ attention matters that they
should not consider.’” State v. Morris, 215 Ariz.
324, 336 ¶ 51, 160 P.3d 203, 215 (2007) (quoting
State v. Roque, 213 Ariz. 193, 224 ¶ 128, 141 P.3d
368, 399 (2006)). In his comments, the prosecutor
sought to clarify the meaning of “significant period
of time” for the jury. The comments with which
Cropper takes issue deal directly with the
otherwise-unexplained jury instruction language
he requested; the comments did not dispute the
essential elements of physical cruelty. Consistent
with this Court’s case law, the prosecutor’s
comments emphasized that “significant period of
time” did not mean a particular amount of time,
but nevertheless recognized that the state was
required to establish conscious suffering. Because
the argument focused on considerations proper for
the jury in light of the instruction Cropper
requested, the prosecutor did not commit
misconduct.
Cropper III, 223 Ariz. at ¶¶ 12-14, 225 P.3d at 583–
84.
As held by the Supreme Court, the argument was
proper, especially so since the trial court instructed
36a
the jury that “The law that applies is stated in these
instructions and it is your duty to follow all of them…”
Final Aggravation Phase Instructions filed 4/8/2008
at 2. As requested by trial counsel, the trial court
instructed the jury that “the victim’s conscious
suffering [must have] existed for a significant period
of time.” The jury instruction language included the
word “significant” and the State’s proof obligation,
irrespective of what the State permissibly argued as
to its meaning. Id. at 5. A jury is presumed to follow
the court’s instructions to determine that “the victim’s
conscious suffering existed for a significant period of
time.”
The record further demonstrates that in
establishing this aggravating factor, it was the State’s
intent to “rely on statements made by the Defendant
to Lloyd Elkins, other inmates, detention officers at
Maricopa County Sheriff’s Office, and written
correspondence of the defendant. The State will
additionally offer proof through medical testimony of
the method of infliction of death and nature of the
injuries.” State’s Notice of Aggravating Factors filed
5/13/1999.11
Defendant couples the State’s argument with its
conclusory statement that the “[Defendant] stabbed
[the victim] in the neck in quick succession [and the
victim] lost consciousness.” Reply to NPT Petition at
61. Defendant neglects to note that the Medical
Examiner, Dr. Keen, indicated that the victim may
have been conscious for “minutes” but certainly more
than “seconds.” Thus, though argument as to the
11 Note that the State had evidence in support of the
“especial cruelty” aggravator in 1999, seven years before the
defense “inadvertent disclosure.” See Claim V, as supplemented.
37a
“subjectivity” of what was “significant” was proper,
considering its “ordinary meaning,” the use of the
word “significant period of time” provided a more than
minimal threshold.
Further, Dr. Keen testified to the length of the
attack, based on the blood evidence: if wound
untreated, death would occur more slowly (RT
4/8/2008 at 53); would take minutes (id. at 61). See
also, id. at 64. The Defendant secured an instruction
that the State “must show conscious suffering for a
significant period of time” (RT 4/7/2008 at 89) and
extracted on Dr. Keen’s concession on crossexamination that the timing he testified to was his
opinion; that, in fact, various factors could decrease
the victim’s time of consciousness, including
“syncope”; that there were no eyewitnesses; and that
he had read only Cropper’s testimony.
“Cruelty exists if the victim consciously
experienced physical or mental pain prior to death
and the defendant knew or should have known
that suffering would occur.” State v. Trostle, 191
Ariz. 4, 18, 951 P.2d 869, 883 (1997) (citation
omitted).
The evidence demonstrates that
Cropper sought out a violent confrontation. The
struggle lasted up to two minutes, he
acknowledged. Further, the medical testimony
regarding the victim’s wounds and blood loss
demonstrates that the officer suffered physical
pain. See State v. Bearup, 221 Ariz. 163, 172 ¶ 49,
211 P.3d 684, 693 (2009) (cruelty established when
assault lasted between sixty and ninety seconds
and resulted in substantial blood loss); State v.
Amaya–Ruiz, 166 Ariz. 152, 177, 800 P.2d 1260,
38a
1285 (1990) (evidence of struggle demonstrated
cruelty).
Dr. Philip Keen, former chief medical examiner of
Maricopa County and a specialist in forensic
pathology, testified in detail on the nature of the
attack. He explained that the wounds inflicted
would have been particularly painful because of
the “higher concentration of nerves” in the neck;
the officer would have felt a “stinging, burning
kind of pain.”
Keen also testified that the officer suffered a
number of “penetrating injuries.” The deeper of
these cuts severed his thyroid gland, the jugular
vein, and his chest cavity and lung. The officer
bled to death as a result of these injuries. The
officer did not, however, experience significant
arterial damage from the attack because his aorta
and carotid arteries were not damaged.
Thus, the time it would have taken to lose
consciousness was the time it took him to bleed
out, Keen confirmed. Based on the injuries, the
officer
would
have
“progressively”
lost
consciousness. Keen testified that it would have
taken “minutes” for him to lose consciousness
based on the amount of blood found in his chest
cavity and at the scene.
Despite Cropper’s contentions, Keen concluded
that it was unlikely the officer would have lost
consciousness in less than a minute. Taken
together, these facts establish beyond a reasonable
doubt that the officer consciously suffered physical
pain and Cropper knew or should have known he
would experience such pain.7
39a
Cropper III, 223 Ariz. at 527–28, ¶¶ 17-20, 225 P.3d
at 584–85.
The Court finds that Defendant was not
prejudiced by the (F)(6) finding.
Defendant
committed the murder while in prison, and was also
death-eligible because of the (F)(7) aggravating
factor, which has been held to be “extremely
weighty.”12
Further, even without the (F)(6)
aggravating factor, the State would have been
permitted to present “circumstances of the offense”
for the jury’s consideration as it evaluated mitigation.
For all these reasons, Claim VII is not colorable.
D. Ineffective
Assistance
–
Future
Dangerousness/Parole (Claims VIII, IX, XV).
In Claim VIII Defendant alleges that appellate
counsel provided ineffective assistance by “failing to
raise the trial court’s error in allowing the State to
present argument about [the defendant’s] alleged
‘future dangerousness,’ which effectively created a
new, non-statutory aggravating circumstance” and by
failing to “federalize” the claim.
12 The aggravators in this case, in contrast, are entitled to
substantial weight.
The (F)(7) aggravator, for example,
represents a legislative judgment that inmates who commit first
degree murder while incarcerated have failed to make even
minimal efforts to comply with societal norms and thus warrant
particularly serious treatment. Likewise, Cropper’s aggravated
assault conviction warrants particular weight, as it stemmed
from another violent attack some eighteen months after he
murdered the corrections officer. Finally, the (F)(6) aggravator
is likewise entitled to considerable weight. In light of the
significant aggravating factors, and the comparatively minimal
mitigation, a capital sentence is warranted.
State v. Cropper, 223 Ariz. at ¶ 32, 225 P.3d at 586.
40a
Defendant concedes that the State did not actually
argue “future dangerousness” in the 2006 trial.
Rather, the State presented evidence that the
Defendant was “a career criminal committing
robberies,” placed emphasis on the Antoine Jones
assault
aggravator
[without
describing
the
underlying facts], and read defendant’s letters
portraying him as an inmate who decided to be
“‘tough,’ including “engaging in fights if necessary.”
Supplemental Reply at 25, FN 4.
The 2008 trial court addressed and determined
that defendant’s claim of remorse and rehabilitation
made rebuttal evidence of “future dangerousness”
relevant. Had the issue been raised on appeal, the
trial judge’s ruling would have been reviewed for
abuse of discretion (relevant rebuttal) and upheld on
appeal. Had appellate counsel argued, as Defendant
now suggests, that “future dangerousness” created an
additional non-statutory aggravating factor, a
reviewing court would have determined that the
evidence was properly admitted and, even if not, any
error was harmless as the trial court properly limited
the aggravators to those actually proven, instructing
the jury “that three (3) aggravating circumstances
exist.”
(Final Penalty Phase Instructions filed
4/25/2008 at 3). Further, in the final instructions the
trial court thereafter refers to “the aggravating
circumstances” or “the aggravating factors,”
emphasizing those three originally-named factors.
See JI at 5, 6.
Further, even before its final instructions, the trial
court told the jury:
…Three aggravating circumstances exist. They
are: (1) the defendant committed the murder while
41a
in the custody of the Department of Corrections;
(2) Mr. Cropper has a prior serious conviction; and
(3), the offense was committed in an especially
cruel manner. You must accept these aggravating
circumstances as proven. These are the only
aggravating circumstances you may consider in
your sentencing decision…
Preliminary Penalty Phase Instructions filed
4/10/2008 at 2.
Because jurors are presumed to follow their
instructions, the reviewing court would have
determined that the jurors did not ignore the court’s
limitation of the aggravators to the three identified
aggravating factors and – in violation of those
instructions
–
improperly
consider
“future
dangerousness” as a fourth aggravating factor.
The Court finds that Defendant has failed to raise
a colorable claim of ineffective assistance of appellate
counsel as to Claim VIII.
In Claim IX Defendant alleges that appellate
counsel provided ineffective assistance by “failing to
raise the trial court’s error in refusing to allow the
jury to hear, as mitigating evidence, [the defendant’s]
willingness unequivocally to waive any right ever to
seek parole,” and by failing to “federalize” the claim.
In his Supplement to Claim IX [at 14-17],
Defendant alleges that trial counsel provided
ineffective assistance by “failing to argue to the court
that the jury should have been told that [defendant]
would waive parole because the court could not have
given [defendant] a life sentence with the possibility
of parole. Defendant also alleges that appellate
counsel provided ineffective assistance by “failing not
only to raise this issue but failing to raise as a
42a
question presented [defendant’s] right to tell the jury
he was waiving parole, because the court could not
have given him a life sentence including the
possibility of parole.”
Defendant presents an unsigned waiver, which
has never been executed. Petition Exhibit 13, filed
1/26/2015. The fact is, Defendant did not waive his
right to seek parole. He merely offered to do so. The
Court finds that Claim IX is not colorable.
In his Supplement adding Claim XV (at 36-44),
Defendant alleges that trial counsel provided
ineffective assistance by “failing to recognize that a
statute prohibited . . . a life sentence which included
the possibility of parole; and in failing to request a
jury instruction to that effect;” and in failing to “argue
that [Defendant] was entitled to present his waiver of
parole to the jury.” Defendant also alleges that
appellate counsel provided ineffective assistance by
“failing to recognize the same, and raise the issue, at
least as was fundamental error;” in other words,
“appellate counsel’s failure to raise these issues as
questions on appeal” constituted ineffective
assistance.
The penalty for First Degree Murder occurring in
1997 is set forth below:
Death; life sentence without release on any basis
for the remainder of the defendant’s natural life.
(An order sentencing the defendant to natural life
is not subject to commutation or parole, work
furlough or work release.) If the court does not
sentence the defendant to natural life, the
defendant shall not be released on any basis until
having served 25 calendar years if the victim was
15 years of age or older and 35 calendar years if
43a
the victim was under 15 years of age. A.R.S. § 13703.
1997 Criminal Code.13 However, the legislature
abolished parole as to murders committed after 1994;
the instant murder occurred in 1997. See State v.
Rosario, 195 Ariz. 264, 268 ¶ 26 (App. 1999) (“The
Arizona legislature enacted laws effective January 1,
1994, eliminating the possibility of parole for crimes
committed after that date.
See A.R.S. § 411604.09(I).”).
The Court finds that counsel should have been
aware of the sentencing options, including the
availability or non-availability of parole. This finding
13 13–703.
Sentence of death or life imprisonment;
aggravating and mitigating circumstances; definition
A. A person guilty of first degree murder as defined in
section 13–1105 shall suffer death or imprisonment in
the custody of the state department of corrections for
life<<-, without possibility of release->> <<+as
determined and in accordance with the procedures
provided in subsections B through G of this section. If
the court imposes a life sentence, the court may order
that the defendant not be released on any basis for the
remainder of the defendant’s natural life. An order
sentencing the defendant to natural life is not subject to
commutation or parole, work furlough or work release.
If the court does not sentence the defendant to natural
life, the defendant shall not be released+>> on any basis
until the completion of the service of twenty-five
calendar years if the victim was fifteen or more years of
age and thirty-five years if the victim was under fifteen
years of age<<-, as determined and in accordance with
the procedures provided in subsections B through G of
this section->>.
CRIMES—DEATH SENTENCES, 1993 Ariz. Legis. Serv. Ch.
153 (H.B. 2048) (WEST).
44a
alone, however, does not mean counsel performed
deficiently.
In light of the law in Arizona as it existed until
2016, both trial and appellate counsel made
reasonable decisions in connection with the
Simmons/Lynch claims. Counsels’ decision tracked
with subsequent precedent that remained in effect in
Arizona until 2016. Counsel had no reason to
anticipate a change in the law.14
The Court finds that it was objectively reasonable
for counsel not to pursue this claim. The Court finds
that this ineffectiveness claim is not colorable in
connection with either trial or appellate counsel.
Nor does the Court find Defendant has
demonstrated prejudice.15 At trial in 2008, the Court
gave the following instructions:
14 Lynch holds that a defendant is entitled to a Simmons
instruction upon request if the State argues a defendant’s
“future dangerousness.” Lynch was decided by the United States
Supreme Court in 2016. In Lynch the United States Supreme
Court overruled not just Lynch but prior Arizona decisions to the
extent that they preclude the jury from being instructed and
defense counsel being able to argue that any life sentence
imposed by the jury mandates that the defendant be
incarcerated for life short of receiving executive clemency.
In State v. Cruz, 218 Ariz. 149 (2008) our Supreme Court
held that Simmons did not apply in Arizona.
“Cruz’s case differs from Simmons. No state law would have
prohibited Cruz’s release on parole after serving twenty-five
years, had he been given a life sentence. See A.R.S. § 13703(A) (2004). The jury was properly informed of the three
possible sentences Cruz faced if convicted: death, natural
life, and life with the possibility of parole after twenty-five
years.”
15 The jury did not reach a penalty phase verdict at the
conclusion of the 2006 resentencing.
The preliminary jury
45a
You individually determine whether mitigation
exists. In light of the aggravating circumstances
you have found, you must then individually
determine if the total of the mitigation is
sufficiently substantial to call for leniency.
“Sufficiently substantial to call for leniency
“means that mitigation must be of such quality or
value that it is adequate, in the opinion of an
individual juror, to persuade that juror to vote for
a sentence of life in prison.
Even if a juror believes that the aggravating and
mitigation circumstances are of the same quality
or value, that juror is not required to vote for a
sentence of death and may instead vote for a
sentence of life in prison. A juror may find
mitigation and impose a life sentence even if
Defendant does not present any mitigation
evidence.
A mitigating factor that motivates one juror to
vote for a sentence of life in prison may be
evaluated by another juror as not having been
proved or, if proved, as not significant to the
assessment of the appropriate penalty. In other
words, each of you must determine whether, in
your individual assessment, the mitigation is of
such quality or value that it warrants leniency in
this case.
…………………
instructions identified possible sentences, other than death, as
including life without release for 25 years or natural life. RT
12/14/2006 at 13. The final penalty phase jury instructions
referred only to a life sentence, referring to “life with 25/natural
life” in response to a jury question.
46a
If you unanimously find that the Defendant should
be sentenced to life imprisonment, your foreperson
shall sign the verdict from indicating your
decision.
If you unanimously find that the
Defendant should be sentenced to death, your
foreperson shall sign the verdict form indicating
your decision….
Final Penalty Phase Instructions filed 4/25/2008 at 56.
Both the preliminary and the final penalty phase
instructions referred to “life imprisonment” and “life
in prison” and did not reference “parole” or the
“possibility of parole.” See Final Penalty Phase Jury
Instructions 4/25/2008 at 6.
The Court finds no colorable claims of prejudice,
as any error would have been deemed harmless. The
jury was faced with a Defendant who had previously
been sentenced to probation, who had been placed on
parole, and who had murdered a corrections officer
while in prison, as well later had committed an
aggravated assault. See RT 12/14/2006 at 68; 83; and
the (F)(2), (F)(6) and (F)(7) aggravators.
The
availability of parole, whether waived by Defendant
or unavailable by statute and procedures, is unlikely
to have been sufficiently substantial to suggest
leniency to change the verdict of death to “life” in even
a single juror’s mind.
The Court finds Claim XV is not colorable.
E. Ineffective Assistance – Timing and Effect
of Guilty Plea (Claims X, XII).
In Claim X Defendant alleges that trial counsel
“for the first trial in this case, as well as [the
defendant’s] counsel in State v. Cropper, CR 2000-
47a
000245” provided ineffective assistance by “failing to
inform and advise [the defendant] about the effects of
a plea of guilty in [the noncapital] case 245. [The
defendant’s] counsel in this case were ineffective for
failure to contest the State’s election to add, as an
additional aggravating factor,[the defendant’s]
conviction for a crime which occurred the [sic] after
[the defendant] had pled guilty.”
In Defendant’s Declaration filed 1/26/2015 he
states, “Had I known the state could use the plea as
an aggravator, I would definitely have gone to trial...
[My] attorney” never clearly told me that the state
could use a plea….” Defendant says he agreed to the
plea in exchange for leniency for co-defendant.
Initially, the Court notes that the Arizona
Supreme Court had been advised orally that the
aggravated assault plea would be used to establish
the (F)(2) aggravating factor:
Cropper also argues that the State failed to comply
with the rule because it did not give him written
notice.
The purpose of Rule 15.1.g(2)’s
requirement of written notice is to ensure that a
defendant receives timely, actual notice of the
state’s penalty phase objectives. In this case,
Cropper did receive actual notice that the State
would argue the F.2 aggravator just three days
after the precipitating crime occurred and four
months before the aggravation/mitigation hearing
began. He does not attest that, under those facts,
he faced any real danger of prejudice. Cf. State v.
Lee, 185 Ariz. 549, 556, 917 P.2d 692, 699 (1996)
(holding not prejudicial the state’s inadvertent
failure to provide defendant notice of intent to seek
the death penalty under Rule 15.1.g(1) until
48a
eighty-seven days after such notice was required
because defendant had actual notice of the
prosecutor’s intent to seek the death penalty).
Because Cropper had actual, although oral, notice
of the prosecutor’s intent to use the aggravated
assault conviction as a prior serious offense
aggravating circumstance and the delay caused
him no prejudice, the State adequately noticed the
prior serious conviction aggravating circumstance.
Cropper I, 205 Ariz. at ¶¶ 15-17, 68 P.3d at 410–11,
supplemented, 206 Ariz. 153, 76 P.3d 424.
The Court is bound by the Supreme Court’s
determination.
Were the court to address the substance of the
claim, the Court would determine that it lacked merit.
The Court finds that pleadings filed over fifteen years
ago demonstrate that both trial counsel and
Defendant appear to have entered the guilty plea for
strategic reasons, in order to support an argument
that not only was use of a subsequent plea to support
the (F)(2) aggravator improper, but also to support an
argument that a guilty plea (as opposed to a
conviction after trial) was insufficient to support the
(F)(2) aggravating factor.16
16 Defendant’s present statement of the facts is belied by
representations made by the State, and inferences in his own
pleadings made at the time. In connection with the (F)(2)
aggravating factor that was based on the Antoine Jones incident,
the State wrote:
…As a result [of the 1999 assault on Jones with a shank,
Defendant] was indicted on Aggravated Assault charges in
CR 2000-000245. Shortly thereafter, Defendant and the
Court were advised that the State intended to use any
conviction in the new cause number as an aggravating factor
49a
Further, the Court notes that the conviction in CR
2000-000245 has not been vacated, and that neither
the Due Process Clause nor the Eighth Amendment
are offended by its use in support of the (F)(2)
aggravator. See State v. McCann, 200 Ariz. 27, 31, 21
P.3d 845, 849 (2001) (unchallenged-at-trial prior
conviction entitled to presumption of constitutional
validity).
The Court further finds no colorable claims of
prejudice due to the existence of an additional
aggravating factor, the “extremely weighty” (F)(7)
aggravating factor.
For all these reasons, Claim X is not colorable.
In Claim XII Defendant alleges that trial counsel
provided ineffective assistance by “advising [the
defendant] to plead guilty to the murder charge,
under A.R.S. § 13-703(F)(2). Court and counsel [agreed to
continue the 703 Hearing until the disposition of the Jones
case]. On June 22, 2000, [Defendant] pled guilty to
Aggravated Assault [with sentencing to be contemporaneous
with the capital case].
State’s Sentencing Memorandum re: Aggravating Factors filed
9/5/2000.
In response, the Defendant wrote:
Counsel previously objected to the Court granting a
continuance of the 703 hearing until the state obtained the
conviction forming the substance of this factor. Counsel
reserves all of this argument.
Further, counsel would further object to the use of a
conviction resulting from facts which occurred after the facts
of this case. Counsel would show the Court that use of a case
which occurred not only after the date of the offense here,
but also, which occurred after his guilty plea, violates the
notice requirements of Rule 15.1(g) [inter alia].
Response to State’s Sentencing Memorandum (filed 9/25/2000).
50a
before having completed the psychiatric evaluation
that Dr. Lewis recommended be completed.”
Even had trial counsel secured the psychiatric
examination before Defendant entered his guilty plea
in the instant (Lumley) case, the record provides no
evidence that the verdict of guilt would have changed
had Defendant gone to trial.
The psychiatric
evaluation does not appear to support – nor does the
record establish – a basis for a GEI defense, which
could potentially negate a guilty plea. Rather, the
record demonstrates that trial counsel ascertained
that a psychiatric evaluation might properly be used
at the sentencing hearing to seek leniency. Trial
counsel secured, and argued, the reports of three
experts at sentencing.
Defendant’s Mitigation
Memorandum filed 9/26/2000.
Further, the record demonstrates that observing
his co-defendants’ trials, and seeing the victim’s wife,
Mrs. Lumley, allegedly had a profound effect on the
Defendant, resulting in his desire to accept
responsibility and to cooperate. RT 4/25/2008 at 16
(began to feel badly about events per Brian Abernathy
testimony).
Defendant’s change of plea, as explained by trial
counsel Steinle at the time, was intended to facilitate
“what [the defendant] originally wanted to do, which
is to come into court and accept responsibility for
what he did. Is that correct, Mr. Cropper?” To which
Mr. Cropper responded, “That’s right.” RT 5/4/199917
at 17.
17 The transcript cover page incorrectly identifies the
change of plea date as 5/6/1999; the correct date is 5/4/1999.
51a
In more detail, trial counsel explained:
Judge, on the voluntariness and whether or
not it’s an intelligent plea, I’d like to indicate to
the Court that our discussions in this matter
started last October while Mr. Cropper was
back at the Department of Corrections. We had
several opportunities to talk about it. We had
several opportunities to talk about what rights
he would give up. We discussed at length my
view of the, the evidence and where we thought
we were going. We also discussed what would
be the impact on appeal if the entered guilty
pleas. And over the course of October to today,
there’s been numerous discussions with myself
and other members of the defense team from
our office on the issue. And a lot of what we’re
trying to do today is accomplish what Mr.
Cropper originally wanted to do, which is to
come into court and accept responsibility for
what he did.
Is that correct, Mr. Cropper?
Mr. Cropper:
That’s right.
Trial counsel continued:
This wasn’t a decision that came in the last few
weeks. This has been an ongoing process to try
to accomplish pretty much what Mr. Cropper
wanted from last October.
The Court: Do you agree with what Mr. Steinle
just said, Mr. Cropper?
Mr. Cropper:
Yes, I do.
…….
52a
Trial counsel added:
Judge, one other thing that I’d like to point out
to the Court for the purposes of the
voluntariness of the plea. We did it now so that
I could complete virtually all of the witness
interviews.
We’ve interviewed every
significant witness in the case. We’ve had
access to the transcripts in both of the Howell
trials to go over. So the timing was more to
make sure that I completed all of the discovery
to make sure that I was satisfied as to the, the
basis of it. And I want that also to be part of
the record.
RT 5/4/1999 at 16-18.
Further, in “testimony of September 2nd, 1999, in
the Eugene Long and Dino Kyzar trial” beginning at
page 163, Defendant testified under oath:
After I ate my lunch, and I was formulating my
plans to make – to murder Mr. Lumley, I
watched out the window, and I seen
Landsperger walk into the gates, letting
inmates in or out. And I seem Mr. Lumley by
the CD control, and I seen Mr. Lumley enter
the CD control. Then I seen Landsperger just
going back and forth, so I knew Mr. Lumley
was in the CD control.
Question from Mr. Schutts: So you didn’t have
any help that day, as this was going on; is
that correct?
Answer: I didn’t need any help.
Question: From any other inmates?
Answer: No. This whole murder of Mr. Lumley
was my plan, my actions. There was
53a
nobody else involved in it, no matter
how much you want them to be
involved.
RT 4/25/2008 at 24 (transcript excerpt read by Mr.
Abernathy, who was in court when Defendant
testified).
The Court finds that the record demonstrates that
Defendant determined to accept responsibility for the
murder of Mr. Lumley for his own reasons; that trial
counsel and the defense team counseled with the
Defendant; and that there is no indication that the
Defendant was either not competent or mentally
incapable of entering a knowing, intelligent and
voluntary plea.
As Defendant now suggests, he may have been
“entitled to explore the question and impact of his
claimed ‘character trait of impulsivity, and lack of the
ability to inhibit his aggression and impulse control.’
Supplemental Reply at 38, FN 8. However, given the
nature of the crime and Defendant’s role in planning
and securing assistance, the Court finds that the
claim that trial counsel provided ineffective
assistance by failing to secure further mental health
evaluations prior to the plea is unsupported.
The Court therefore finds that Claim XII is not
colorable.
F. Ineffective Assistance – Victim Impact
Statements (Claim XI).
In Claim XI Defendant alleges that appellate
counsel provided ineffective assistance by “failing to
raise as an issue the impropriety of allowing victim
impact statements under an inapplicable Arizona
statute, and violation of the 8th and 14th
Amendments to the United States Constitution, of the
54a
victim impact statements in this case. The victim
impact statements made to the sentencing jury in
2008 violated defendant’s constitutional rights under
United States Constitution Amendment XIV, and
analogous Arizona constitutional provisions.”
Before the 2000 judge-sentencing hearing
Defendant filed a Motion to Preclude Victim Impact
Evidence (filed 11/30/1999) on state and federal
constitutional grounds, supporting his request with a
ten-page Memorandum of Points and Authorities. As
has since been recognized, by case law and statutes, a
victim has a right to tell the jury about the impact of
a defendant’s crime before the defendant is sentenced,
but may not suggest the sentence. Lynn v. Reinstein,
205 Ariz. 186, 189, ¶ 10, 68 P.3d 412, 415 (2003).
Had appellate counsel raised on appeal the
propriety of the victim impact statement and of the
victim’s request that the jury “give me closure,” the
reviewing court would have found the victim impact
statement to be admissible, and would have further
found that this victim’s request properly addressed
how the victim’s death affected his family and was not
outside appropriate bounds of victim impact
testimony and not unduly prejudicial. State v.
Gallardo, 225 Ariz. 560, 242 P.3d 159 (2010). The
statement did not seek a particular penalty but rather
sought finality for the victims, in whatever form the
jury determined was warranted.
The trial court further described the use to be
made of the Victim Impact Information:
Relatives of the victims made statements relating
to personal characteristics and uniqueness of the
victim and the impact of the murder on the
victim’s family, you may consider this information
55a
to the extent that it rebuts mitigation. You may
not consider the information as a new aggravating
circumstance.
Final Penalty Phase Instructions filed 4/25/2008 at 5.
The Court finds that Claim XI not colorable.
G. Ineffective
(Claim XIII).18
Assistance
–
Restitution
In Claim XIII Defendant alleges that “[a]n
unlawful sentence is being carried out against [the
defendant], because the Department of Corrections is
violating the terms of his sentencing judgment, by
withdrawing from [the defendant’s] prisoner drawing
account not only a percentage of his earnings, but of
monies received from others and put into his prison
account.”
In his Supplement to Claim XIII (at 49-52)
Defendant re-alleges that an “[u]nlawful sentence is
being carried out by [the] amount of restitution funds
withdrawn from [defendant’s] account,” in order to
attach Exhibit 41 (allegedly “confirming [defendant’s]
qualifications for prison labor”).
Defendant claims that by citing to A.R.S. § 31254(D) and (E), the sentencing court necessarily
limited any restitution payment to an amount that
“shall be 30% of defendant’s earnings….” Restitution
Order entered 11/3/2000. Defendant alleges that in
2009 ADOC began withdrawing restitution from
18 To the extent argued independent of any claim of
ineffectiveness, the Court finds that this claim is either: i) not
cognizable under Rule 32.1(a); or ii) procedurally precluded
pursuant to Rule 32.6(c) in a direct appeal of the Court’s earlier
orders. For the reasons stated above, the Court also finds them
lacking in merit.
56a
defendant’s A.R.S. § 31-230 spendable account, which
included monies gifted to him.
Yet gifts are not exempt from statutory provisions
authorizing the collection of restitution from inmates.
State v. Glassel, 226 Ariz. 369, 248 P.3d 217 (App.
2011); State v. Stocks, 227 Ariz. 390, 258 P.3d 208
(App. 2011). Nor can the Court discern any legitimate
basis for faulting defense counsel in connection with
such orders.
The Court therefore finds Claim XIII is not
colorable.
H. Ineffective Assistance – Death Penalty
(Claim XVI).
In his Supplement adding Claim XVI (at
53),Defendant alleges that “[t]he imposition of the
death penalty constitutes cruel and unusual
punishment in violation of the Eighth and Fourteenth
Amendments.” In support of his claim, Defendant
cites “evolving standards of decency” as articulated by
various dissenting justices.
The Court finds that although the Arizona
Supreme Court has advised that execution-related
issues may properly be raised in post-conviction
proceedings, it is premature as to this defendant.
This defendant is not currently facing imminent
execution because a warrant of execution has not been
issued in his case. In fact, executions are currently
stayed in Arizona. See Wood v. Ryan, CV 14-01447PHX-NVW, United States District Court, District of
Arizona, Order dated 11/24/2014. Because there is no
guarantee as to what Arizona’s protocol will be at the
time of his execution, if any, this issue is not yet in
controversy, and is not ripe for determination.
57a
Further, our Supreme Court has previously
upheld the constitutionality of the Arizona capital
punishment scheme, and has specifically determined
that the Arizona statute—
…constitutionally prescribes that the method of
death shall be lethal injection. See State v.
Hinchey, 181 Ariz. 307, 315, 890 P.2d 602, 610
(1995) (considering and rejecting argument that
death by lethal injection constitutes cruel and
unusual punishment). Hinchey’s pronouncement
that lethal injection as a method of execution
comports with the Eighth Amendment was not
conditioned upon the use of particular procedures
in implementing lethal injection. Moreover, the
United States Supreme Court has never held that
death by lethal injection is cruel and unusual
absent specific procedures for implementation, nor
does Andriano cite any cases to that effect.
Andriano has thus failed to establish an Eighth
Amendment right to a particular protocol for
lethal injection.
State v. Andriano, 215 Ariz. 497, 510, 161 P.3d 540,
553 (2007) abrogated by State v. Ferrero, 229 Ariz.
239, 274 P.3d 509 (2012).
Death by lethal injection has been determined to
be constitutional. State v. Lynch, 238 Ariz. 84, 357
P.3d 119 (2015) (lethal injection held not to violate the
Eighth Amendment to the United States Constitution
and Article 2, Section 15, of the Arizona Constitution;
nor to constitute cruel and unusual punishment)
The Court finds Claim XVI is not colorable.
58a
I. Ineffective Assistance – Cumulative Error
and “Failure to Federalize.”
Throughout his pleadings Defendant claims he is
entitled to relief on the basis of “cumulative error.” In
accordance with Arizona law, the Court finds that
Defendant has no basis for this claim. Arizona law
may provide relief on the basis of individual error;
Arizona law does not recognize the cumulative error
doctrine, other than in the context of prosecutorial
misconduct. The Court finds that this claim is not
colorable.
Throughout his pleadings Defendant similarly
claims that appellate counsel’s “failure to federalize”
various claims constitutes ineffective assistance of
appellate counsel.
See Claims V (disclosure of
privileged materials); VI (unconstitutionality on its
face and as applied of “especially cruel” aggravating
factor); VII (arguments relating to cruelty instruction
as “mere error of state law); VIII (“future
dangerousness” argument as additional aggravating
factor); and IX (willingness to waive parole).
Defendant has failed to establish deficient
performance. Counsel’s failure to “federalize” a state
claim that was not demonstrably a winning claim at
the time of appeal does not constitute deficient
performance under Strickland.
Absent such a showing – as is the case here – the
Court cannot conceive of a reasoned basis for finding
prejudice. To find prejudice, the Court would have to
speculate not only as to what the appellate court
“might have done” in the past, had the claim been
raised, but also what habeas counsel and then what a
federal court on habeas review “might do” in the
future. Defendant cites no authority holding that the
59a
failure to federalize a claim constitutes prejudice per
se, and this Court declines to so hold.
The Court finds that the “failure to federalize”
claims not colorable.
J. Ineffective Assistance – Resentencing by a
Jury (Pro Per Claim).
In his pro per Claim, Defendant alleges that
Arizona statutes changed the definition of “capital
murder,” and also alleges that Arizona statutes that
authorize a jury that did not hear the guilt phase to
adjudicate the aggravation and penalty phases at
resentencing, violate defendant’s state and federal
constitutional rights to counsel, to a jury trial and to
due process.
Pursuant to Rule 32.6(c), the Court finds that this
claim is procedurally precluded from Rule 32 relief.
An issue is precluded if it was raised, or could have
been raised, on direct appeal or in prior Rule 32
proceedings. State v. Towery, 204 Ariz. 386, 64 P.3d
828 (2003); Stewart v. Smith, 202 Ariz. 446, 46 P.3d
1067 (2002); State v. Mata, 185 Ariz. 319, 334, 916
P.2d 1035 (1996). Pursuant to this authority and
Rule 32.2(a)(1), the Court finds the defendant’s proper
claim to be precluded from relief.
Alternatively, the Court finds that this claim is not
colorable. First, the Defendant has always been - ever
since the filing of the State’s Notice of Intention to
Seek the Death Penalty on 5/5/1997 - potentially
guilty of “capital murder:” pre-Ring when the judge
found at least one aggravating factor (rendering
Defendant eligible for the death penalty) and
sentenced him to death, and post-Ring when the jury
made the findings of death-eligibility and penalty.
60a
The Defendant appears also to be arguing that
when he pled guilty, he thought the penalty phase
(mitigation; sentencing) would be determined by a
judge, and that Ring III19 changed the posture of the
case such that his guilty plea is invalid. Ring III was
a procedural change that recognized the right of a
defendant in a death penalty case to be sentenced by
a jury:
In Ring III, this Court explained that “Arizona’s
change in the statutory method for imposing
capital punishment is clearly procedural.” 204
Ariz. at 547 ¶ 23, 65 P.3d at 928. This is so
because the change to jury sentencing made no
change in punishment and added no new element
to the crime of first degree murder. Id. Moreover,
the Court rejected the argument that the
procedural change had a substantive impact,
noting that the state is still required to prove
aggravating circumstances beyond a reasonable
doubt. Id. at ¶ 24. “The only difference is that a
jury, rather than a judge, decides whether the
state has proved its case.” Id.
Our holding in Ring III was based, in part, on the
Supreme Court’s identical conclusion in Dobbert v.
Florida, 432 U.S. 282, 97 S.Ct. 2290 (1977). Id. at
546 ¶ 20, 65 P.3d at 927. In the context of a capital
resentencing after a change in sentencing
procedure, Dobbert explained that no *526 **583
ex post facto claim arises when “[t]he new statute
simply alter[s] the methods employed in
determining whether the death penalty was to be
imposed,” and not “the quantum of punishment
19 State v. Ring, 204 Ariz.534, 65 P.3d 915 (2003) (Ring III).
61a
attached to the crime.” 432 U.S. at 293–94, 97
S.Ct. 2290.
Cropper III, 223 Ariz. at ¶¶ 9-10, 225 P.3d at 582–83.
When Defendant entered his guilty plea, he did so
in anticipation of a constitutional sentencing, which
is what occurred. At all times he was represented by
competent counsel. Due process was satisfied. The
Court finds this claim not to be colorable.
CONCLUSION
The Court finds that the defendant has failed to
raise colorable claims for relief regarding all claims
raised in these post-conviction pleadings, including
the pro per and supplemental claims. A colorable
claim for post-conviction relief is “one that, if the
allegations are true, might have changed the
outcome” of the proceeding. State v. Runningeagle,
176 Ariz. 59, 63, 859 P.2d 169, 173 (1993); Ariz. R.
Crim. P. 32.6(c) (“court shall order…petition
dismissed” if claims present no “no material issue of
fact or law which would entitle defendant to relief”);
32.8(a) (evidentiary hearing required “to determine
issue of material fact”).
Based on all of the above,
IT IS THEREFORE ORDERED dismissing
Defendant’s nunc pro tunc Petition for PostConviction Relief (“NPT Petition”), the Defendant’s
Supplemental Rule 32 Claim (“Pro Per Claim”), and
the Supplement to Petition for Post-Conviction Relief.
1
On March 7, 1997, ADOC corrections officers at the
Perryville State Prison in Goodyear, Arizona, discovered
that some mops were missing from the Building 26 supply
room. Officers Brent Lumley and Deborah Landsperger
62a
began searching for the missing mops in the nearby cells.
They found no mops in the first cell searched, number 257,
occupied by inmates Eugene Long and Bruce Howell. The
officers moved on to the adjacent cell, number 258, which
held inmates Cropper and Lloyd Elkins. While searching
cell 258, Officers Lumley and Landsperger uncovered
various contraband items, including a knife, tattooing
equipment and a possible “hit” list. While the officers
conducted the search, Cropper repeatedly approached and
entered the cell, yelling at the officers and complaining of the
search. The search obviously distressed Cropper, who
believed the officers disrespected him and his property, and
he became enraged because the searchers damaged a
photograph of his mother. After Officers Lumley and
Landsperger finished their search, they placed Cropper and
Elkins on “lockdown” status in their cell, whereby their cell
door was locked from the master control panel in the control
room and the two inmates were unable to leave.
Through his cell door and a common vent between cells 257
and 258, Cropper spoke to several fellow inmates about his
plan to kill Officer Lumley. Inmates Eugene Long and
Joshua Brice agreed to help and retrieved an eight-inch steel
carving knife buried in one of the Building 26 yards. Using
two fly-swatters attached to one another Long passed
Cropper the knife through the vent between the two cells.
The inmates in cell 257 then passed a right-handed glove
through the vent to Cropper. Cropper removed a lace from
one of his shoes and wrapped it around the knife handle to
provide a better grip.
Cropper needed to find a way out of his cell. An inmate is
able to leave a locked cell if a fellow inmate “spins the lock”
to his cell door. This lock picking procedure, performed
manually on the cell door lock from outside the cell, bypasses
the control room’s electronic lock command. Howell and
another inmate, Arthur Zamie, successfully opened the door,
and then looked for Officers Lumley and Landsperger.
Howell and Long returned to Cropper’s cell and told him that
Lumley was in the control room, with the door unlocked.
Cropper left his cell, walked down the hall and entered the
control room. Cropper snuck up behind Officer Lumley and
63a
thrust the knife into his neck, partially pulled it out, then
pushed it in a second time from another direction. By the
time Cropper finished, Lumley suffered a total of six stab
wounds. Cropper left the control room, leaving the knife
protruding from his victim’s neck.
Cropper ran back to his cell from the control room and found
the cell door locked. He tried to enter another locked cell and
eventually reached cell 257, where he found the door
unlocked. As he entered, he told Howell, who was inside cell
257, “I got him.”
Cropper’s clothes were covered with blood. He removed his
sweatshirt and undershirt and threw them into Howell’s
trash can. He tore off a name tag sewn on the collar of his
shirt and flushed it down Howell’s toilet.
Cropper returned to his cell after an unidentified inmate
spun the cell door lock. Cropper’s cellmate Elkins helped
him wipe away the blood on his body. Cropper also soaked
his pants and shoes in a mixture of water and laundry
detergent to clean off the blood.
Meanwhile, Howell gathered the bloody clothes from his
trash can and placed them inside a garbage bag, which he
threw onto the Building 26 roof. Howell then wiped blood
from the door knob to Cropper’s cell with one of his socks.
DNA tests showed that the blood recovered from Cropper’s
shoes, underwear and the glove was consistent with
Lumley’s blood.
Cropper I, 205 Ariz. at, ¶¶ 2-9, 68 P.3d at 408–09, supplemented,
206 Ariz. 153, 76 P.3d 424
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