Opposition Brief — Murray Hooper, Petitioner v. Arizona

Supreme Court briefNov 15, 2022

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No. 22–6055

In the

Supreme Court of the United States

MURRAY HOOPER,

Petitioner,

STATE OF ARIZONA

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals for the Ninth Circuit

BRIEF IN OPPOSITION

CAPITAL CASE

EXECUTION SCHEDULED FOR NOVEMBER 16, 2022

AT 10:00 A.M. (MST)/12:00 P.M. (EST)

MARK BRNOVICH

Attorney General of Arizona

JOSEPH A. KANEFIELD

Chief Deputy and Chief of Staff

JEFFREY L. SPARKS

Deputy Solicitor General

Chief Counsel for Capital Litigation Section

(Counsel of Record)

GINGER JARVIS

LAURA P. CHIASSON

DAVID E. AHL

Assistant Attorneys General

OFFICE OF THE ARIZONA ATTORNEY GENERAL

Capital Litigation Section

2005 N. Central Avenue

Phoenix, Arizona 85004

(602) 542-4686

CLDocket@azag.gov

Counsel for Respondent

QUESTION PRESENTED FOR REVIEW

Did the Arizona Supreme Court err by denying relief on a Brady claim that

was premised entirely on a misstatement in a prosecutor’s letter that was

immediately clarified where the claim had “no evidentiary support and no basis in

fact”?

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ................................................................... 2

TABLE OF CONTENTS ................................................................................................ 3

TABLE OF AUTHORITIES .......................................................................................... 4

STATEMENT OF THE CASE ....................................................................................... 5

Hooper’s crimes. ............................................................................. 5

Hooper’s Trial.. .............................................................................. 6

Subsequent proceedings. ................................................................ 9

SUMMARY OF ARGUMENT ..................................................................................... 15

REASONS FOR DENYING THE PETITION ............................................................ 16

CONCLUSION............................................................................................................. 16

TABLE OF AUTHORITIES

Cases

Brady v. Maryland, 373 U.S. 83 (1963) ...................................................... 2, 15, 16, 17

Hooper v. Shinn, (Hooper II), 985 F.3d 594 (9th Cir. 2021) ............................... passim

Hooper v. Shinn, 142 S. Ct. 1376 (2022) ..................................................................... 10

Napue v. Illinois, 358 U.S. 919 (1958) .................................................................. 15, 16

State v. Hooper, (Hooper I), 703 P.2d 482 (Ariz. 1985) ........................................... 9, 10

Strickler v. Greene, 527 U.S. 263 (1999) ..................................................................... 16

Statutes

A.R.S. § 13–751(F)(5) ................................................................................................... 11

Rules

Ariz. R. Crim. P. 32.1(e)............................................................................................... 10

Ariz. R. Crim. P. 32.1(h) .............................................................................................. 10

Sup. Ct. R. 10 ............................................................................................................... 17

STATEMENT OF THE CASE

Hooper’s crimes.

On New Year’s Eve 1980, Hooper, William Bracy, and Ed McCall forced their

way at gunpoint into the home of Pat Redmond and his wife Marilyn Redmond.

Hooper v. Shinn (Hooper II), 985 F.3d 594, 599 (9th Cir. 2021). Pat, Marilyn, and

Marilyn’s mother, Helen Phelps, were inside preparing for a holiday dinner. Hooper

and the other two intruders demanded valuables, forced the victims to lie face down

on the bed in the master bedroom, and then bound and gagged the victims. The

intruders then shot each victim in the head and slashed Pat Redmond’s throat. Pat

and Helen died, but Marilyn survived. Id.

Robert Cruz, the head of a Chicago crime organization, had hired the three

perpetrators to kill Pat Redmond because Cruz wanted an interest in Pat’s business

but Pat had rejected Cruz’s business offers. Id. at 600. Cruz first offered Arnold

Merrill $10,000 to kill Pat, but Merrill refused him. Id. Cruz then flew Hooper and

Bracy to Phoenix from Chicago, where they lived, to carry out the crime.

Id.

Merrill assisted by driving Hooper and Bracy around Phoenix, including to collect

money from Cruz and to a gun store to obtain the murder weapons, letting Hooper

and Bracy stay at his home for a period of time, and giving Bracy directions to Pat’s

home. Id. at 600–01. Immediately after the murders, Hooper, Bracy, and McCall

went to Merrill’s home before Hooper and Bracy were driven to the airport to fly

back to Chicago. Id. at 601.

The day after the murders, McCall admitted to two women, Valinda Lee

Harper and Nina Marie Louie (whom Merrill had introduced to Hooper and Bracy

before the murders and in whose apartment the killers had been before leaving to

commit the murders), how the murders had been committed, stating that it was a

“contract … hit, not a robbery,” and that Hooper had slashed Pat’s throat and shot

Marilyn. Id. McCall also described the crimes to Merrill. Id. On January 1, 1981,

Harper called the police and told them Hooper, Bracy, and McCall had committed

the murders. Id. at 601–02.

Marilyn initially told a responding police officer that “[t]hree black men came

in and robbed us,” but then stated that two of the intruders were black and one was

white. Id. at 601. She also told police that one of the black males wore a tan

leather jacket with dark pants. Id. Fifty-three days after the murders, Marilyn

flew to Chicago where she identified Hooper and Bracy in lineups. Id. at 602.

Hooper’s Trial.

Hooper and Bracy were each charged with conspiracy to commit first-degree

murder, two counts of first-degree murder, one count of attempted first-degree

murder, three counts of kidnapping, three counts of armed robbery, and one count of

first-degree burglary. Id. They were tried together. Id.

“The prosecution presented overwhelming evidence of Hooper’s guilt.” Id. at

603. “Marilyn provided very specific details about her lengthy encounter with the

murderers,” and identified Hooper, Bracy, and McCall as the killers. Id. “Her in-

court identifications were certain, and she did not waiver when the defense

suggested she could be mistaken.” Id.

Louie testified that she met Hooper and Bracy in December 1980 and that

she overheard Bracy say that “he had a big job to do” for $50,000 and that “it wasn’t

going to be very pretty.” Id. Hooper, Bracy, and McCall were at her apartment on

New Year’s Eve armed with guns, and Bracy said that they had “some business to

take care of.” Id. at 603–04. The next day, Louie testified, McCall came to her

apartment and told her Marilyn was shot in the back of the head (not the face as a

newscaster stated), that the victims were taped rather than tied up, and that only

Pat’s throat was slashed. Id. at 604. He also said that all three men wore gloves

and that Hooper had shot Marilyn and cut Pat’s throat. Id. Louie’s testimony was

corroborated by receipts found in McCall’s vehicle for the purchase of three pairs of

gloves and tape the day of the murders, testimony that a vehicle matching McCall’s

was seen near the Redmond home around the time of the murders, and testimony

that Harper called police the day after the murders and implicated Hooper, Bracy,

and McCall. Id.

Another witness, George Campagnoni, testified that on New Year’s Eve he

saw Merrill give Bracy a piece of paper with directions to the Redmond home and

Pat’s business and that he saw Hooper, Bracy, and McCall later that evening at

Merrill’s home with jewelry, “some of which looked very similar to a ring and watch

owned by [Pat] Redmond.” Id.

Merrill also testified. He explained Cruz’s plan to have Redmond killed and

said he refused Cruz’s offer to kill Redmond for $10,000. Id. He described Hooper

and Bracy’s first trip to Phoenix in early December, during which he saw Cruz give

the pair a stack of cash, took Hooper and Bracy to a gun shop where they picked up

weapons (including a knife that looked like a knife found at the crime scene), and

was present for Hooper’s attempt to shoot Redmond from a car window which

Merrill foiled by turning the vehicle. Id. Merrill also testified that, on December

30, he picked up Hooper and Bracy from the Phoenix airport at Cruz’s direction and

verified the addresses for Redmond’s home and business. Id. at 605.

Merrill testified that Hooper, Bracy, and McCall came to his home at about

8:30 p.m. on New Year’s Eve and had items (including a watch, ring, and gun

holster) that may have come from the Redmond home. Id. McCall told him several

days later that McCall, Hooper, and Bracy had committed the crimes at the

Redmonds’ home. Id.

In addition to these witnesses, the State presented other evidence, including

testimony from employees of Pat Redmond’s business who saw Cruz touring the

company in 1980; testimony of a pilot whom Cruz hired on occasion who testified

that in 1980 he heard Cruz say he wanted to take over a printing business and

would have to “get rid of” an uncooperative business partner; testimony from a

witness who purchased two tickets at Cruz’s direction from Phoenix to Chicago for a

flight on New Year’s Eve and delivered them to Merrill’s home; telephone records

that supported that Hooper and Bracy were in Phoenix during the murders, rather

than Chicago; and evidence from which the jury “could infer that Hooper possessed

both the murder weapon and the knife that was used to slash Redmond’s throat.”

Id. at 606.

In their defense, Hooper and Bracy presented several alibi witnesses:

Hooper’s witnesses included Mary Jean and Michael Wilson, two

friends of Hooper’s brother, who testified that they had seen and

spoken with Hooper on the day of the murders at a flea market in

Chicago. Nelson Booker, another friend of Hooper’s brother, testified

that he had seen and spoken with Hooper at a New Year's Eve party at

a Chicago club.

Id. at 608.

“The jury did not believe the alibis.”

Id. at 621 n.20.

Moreover,

“[e]vidence that Hooper and Bracy were both in Phoenix on New Year’s Eve, and

thus, that they had created fake alibis, provided additional evidence of Hooper’s

guilt.” Id. at 621.

The jury found Hooper and Bracy guilty of all charged counts.

After

conducting the necessary sentencing-related hearings, the trial court concluded that

Hooper should be sentenced to death for the two first-degree murder convictions.

Id. at 609–10.

Subsequent proceedings.

Hooper spent the next four decades challenging his convictions and sentences in

both state and federal court. First, the Arizona Supreme Court affirmed Hooper’s

convictions and death sentence on direct appeal. State v. Hooper (Hooper I), 703

P.2d 482 (Ariz. 1985). Then, from 1986 through 2017, Hooper filed five petitions for

postconviction relief. See Hooper II, 985 F.3d at 612. None was successful. Hooper

also filed a federal habeas petition in 1998, and that proceeding remained pending

until the Supreme Court denied certiorari earlier this year. See Hooper v. Shinn,

142 S. Ct. 1376 (2022); Hooper II, 985 F.3d at 613.

Hooper spent the next four decades challenging his convictions and sentences

in both state and federal court. First, the Arizona Supreme Court affirmed Hooper’s

convictions and death sentence on direct appeal. State v. Hooper (Hooper I), 703

P.2d 482 (Ariz. 1985). Then, from 1986 through 2017, Hooper filed five petitions for

postconviction relief. See Hooper II, 985 F.3d at 612. None was successful. Hooper

also filed a federal habeas petition in 1998, and that proceeding remained pending

until the Supreme Court denied certiorari earlier this year. See Hooper v. Shinn,

142 S. Ct. 1376 (2022); Hooper II, 985 F.3d at 613.

On August 26, 2022, the State filed a motion for warrant of execution in the

Arizona Supreme Court, and on October 12, 2022, the Arizona Supreme Court

issued a warrant of execution, with an execution date of November 16, 2022. On

October 31, 2022, 19 days after the warranted issued, and only 16 days before his

scheduled execution, Hooper filed his sixth petition for post-conviction relief, which

presented claims of newly discovered evidence under Rule 32.1(e) and actual

innocence under Rule 32.1(h). In his first claim, Hooper argued that the report of

Geoffrey Loftus, an eyewitness identification expert, constituted newly-discovered

evidence. His actual innocence claim was based on Loftus’s report and other

evidence he contended undermined Marilyn Redmond’s identification of him as one

of the assailants, trial evidence regarding the three alternative suspects, allegations

of prosecutorial misconduct that were litigated at trial, trial evidence impeaching

three of the State’s witnesses, a reassertion of the alibi he presented at trial, and an

argument that the evidence was insufficient to support the A.R.S. § 13–751(F)(5)

aggravating circumstance.

Several days later, Hooper filed another petition arguing that the State’s

letter to the Arizona Board of Executive Clemency revealed that the State had

withheld information relating to Marilyn’s identification of Hooper. Hooper argued

that a "paper lineup" in which Marilyn Redmond failed to identify

Petitioner, severely undermines Mrs. Redmond’s testimony and

entitles him to relief under Ariz. R. Crim. P. 32.1(e). The comment by

the State that Petitioner claims constitutes newly discovered evidence

and Brady material, is "[Marilyn] had previously been unable to pick

them out of a paper lineup." See Petitioner's “Petition for PostConviction Relief” Exhibits U and V, at 11; Defendant’s Exhibits 1 and

2, admitted at 11/10/22 Evidentiary Hearing. Petitioner argues that

this statement represents proof that Mrs. Redmond was shown a paper

lineup prior to her in-person identification of Petitioner, and that she

failed to identify him in that paper lineup.

Pet. App. A at 8.

At Hooper’s clemency hearing, however, the State began its presentation to

the Board by stating, “I made an error in that statement.” Id. at 10. The State then

explained that Marilyn had been shown several composite sketches in the days after

the murders, explaining that:

•

The sketches were of a white man and an African-American man

that were created from descriptions provided by a Long’s Drug

Store clerk. Attachment A at 1–2, lines 38–48; Video of ABOEC

Hearing on November 3, 2022, at 4:19:07; see also Hooper v. Shinn,

985 F.3d 594, 604 (9th Cir. 2021); State v. McCall, 139 Ariz. 147,

154 (2013).

•

Mrs. Redmond was not able to identify the subjects of the drawings.

Attachment A at 2, lines 48–49; Video of ABOEC Hearing on

November 3, 2022, at 4:20:10.

•

The Long's Drug Store clerk later identified Bracy (but not

Petitioner) as the African-American man she had described to the

sketch artist. Attachment A at 2, lines 50–52; Video of ABOEC

Hearing on November 3, 2022, at 4:20:22.

•

Mrs. Redmond was shown two photo lineups containing McCall’s

photograph, but failed to identify him. Attachment A at 2, lines 52–

54; Video of ABOEC hearing on November 3, 2022, at 4:20:37.

•

There was, however, "no paper lineup" containing Hooper.

Attachment A at 2, line 73; Video of ABOEC Hearing on November

3, 2022, at 4:22:44.

Id. at 10.

The State also explained to the clemency board that “that there was no paper

lineup that included Petitioner, stating that ‘every page of the police report that the

State possessed that we have in our 20 boxes at the County Attorney’s Office is

what I gave the, the Board here.’” Id. at 11.

The postconviction court held an evidentiary hearing on other claims not at

issue here. At the hearing, however, the State avowed that Marilyn Redmond had

not been shown a printed lineup prior to her identification of Hooper and that there

was no evidence that any such lineup existed. Pet. App. at 12, 85–86.

After the hearing, the postconviction court issued a decision finding that the

claims Hooper raised were not colorable and dismissing Hooper’s petition. Pet. App.

16–22. The court specifically found that Hooper’s claims related to the purported

paper lineup lacked a factual basis:

The foundation for Defendant’s claim stems from the State’s

letters opposing clemency for Defendant. In the letters, the State

comments that “[Marilyn] had previously been unable to pick them out

of a paper lineup.” (See Defendant’s “Petition for Post-Conviction

Relief” Exhibits U, V at 11; Defendant’s Exhibits 1 and 2, admitted at

11/10/22 Evidentiary Hearing.) This statement, in Defendant’s

estimation, represents proof that Mrs. Redmond was shown a paper

lineup prior to her in person identification of Defendant, and that she

failed to identify Defendant in that paper lineup. The State responds

that the statement made in the letters was a mistake, and points to

recorded testimony of the clemency hearing where the prosecutor

explains how she was mistaken. (See State’s “Response to 7th Petition

for Post-Conviction Relief” Attachment A.) As the prosecutor explains,

she made the statement by mistake and confused composite sketches

and paper lineups shown to Marilyn Redmond concerning

codefendants Bracy and McCall. Attorney for the State, Jeffery Sparks,

avowed to such at the evidentiary hearing.

This Court accepts the State’s explanation of the misstatement,

the State’s avowal that Defendant is in possession of the same

materials used by the State to prepare its letter opposing clemency,

and the State’s avowal that there is no evidence that Marilyn Redmond

was shown a printed lineup including Defendant before she identified

him in person. Lacking a factual basis for this claim, Defendant is not

entitled to the relief he seeks.

Pet. App. at 22.

Hooper petitioned for review to the Arizona Supreme Court. Pet. App. 3–4.

That court denied relief, finding that “the superior court’s factual findings and legal

analysis that [Hooper’s] claim lacks a factual basis are not an abuse of the court’s

discretion.”

Id. at 11.

The Arizona Supreme Court found that there was no

suppressed photo lineup:

As the superior court found, [Hooper] has not demonstrated that the

State violated the second prong of the Brady analysis—that evidence

was suppressed by the State, either willfully or inadvertently.

Petitioner has presented no evidence to refute the Deputy County

Attorney's explanation that she made the statement by mistake and

confused composite sketches and paper lineups shown to Marilyn

Redmond concerning co-defendants Bracy and McCall, and the State's

avowal that no such paper lineup including Petitioner was shown to

Mrs. Redmond prior to her identification of Petitioner in person.

Id. at 9.

Further, the court found based on its review of the record, “that [Hooper’s]

claim the State has failed to disclose a paper lineup, including allegations of

misconduct and unethical conduct has no evidentiary support and no basis in fact.”

Id. at 11–12 (emphasis added).

Hooper’s petition for writ of certiorari and an accompanying application for

stay of execution followed.

SUMMARY OF ARGUMENT

Hooper’s petition rests on the premise that an inadvertent misstatement in a

prosecutor’s letter established a Brady and Napue violation, in spite of the State’s

almost immediately clarification of the misstatement on the record before the

Arizona Board of Executive Clemency and in an avowal in the Maricopa County

Superior Court.

The Arizona Supreme Court thus correctly denied relief after

finding that Hooper’s “claim the State has failed to disclose a paper lineup,

including allegations of misconduct and unethical conduct has no evidentiary

support and no basis in fact.” Pet. App. at 11–12.

REASONS FOR DENYING THE PETITION

Hooper’s petition rests on the premise that the State in his case “has

admitted that material exculpatory evidence exists,” i.e., a photo lineup in which

the surviving victim failed to identify him.

See Petition at 15.

That premise,

however, is based on an inadvertent misstatement made by a prosecutor that was

clarified, both on the record before the Arizona Board of Executive Clemency and in

an avowal in the Maricopa County Superior Court. Of course, a criminal defendant

presents a colorable Brady claim by establishing that “[1] The evidence at issue [is]

favorable to the accused, either because it is exculpatory, or because it is

impeaching; [2] that evidence [was] suppressed by the State, either willfully or

inadvertently; and [3] prejudice ... ensued.” Strickler v. Greene, 527 U.S. 263, 281–

82 (1999); see Brady v. Maryland, 373 U.S. 83, 87 (1963).

Here, however, the

Arizona Supreme Court found that there was no evidence that the State suppressed

evidence and that Hooper’s repeated assertion to the contrary had “no evidentiary

support and no basis in fact.” Pet. App. at 11–12.

Hooper argues that the state court “turned Brady and Napue on their heads

by allowing the state to ignore its obligation under this Court’s long-standing

precedents.” Petition at 15. But once again, there is no evidence whatsoever in the

record that the State has ignored its obligation to disclose exculpatory evidence.

The state courts correctly denied relief because Hooper’s claims lack any factual

basis.

His claim rested entirely on an inadvertent misstatement in the State’s

letter to the Arizona Board of Executive Clemency. Yet the State explained to the

Board of Executive Clemency and avowed to the postconviction court that the

statement was erroneous and there was no paper/photo lineup involving Hooper.

Hooper’s contention that the State failed its obligation under Brady and—and the

serious allegations of misconduct and unethical misdeeds he continues to level

against multiple individuals in support of that claim—had no basis in fact and no

evidentiary support. As a result, Hooper has failed to demonstrate that the Arizona

Supreme Court “decided an important federal question in a way that conflicts with

the decision of another state court of last resort or of a United States court of

appeals,” or “an important question of federal law that has not been, but should be

settled by this Court, or has decided an important federal question in a way that

conflicts with relevant decisions of this Court.” Sup. Ct. R. 10. Instead, the Arizona

Supreme Court simply denied relief on a claim that had “no evidentiary support and

no basis in fact.” Pet. App. 11–12.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,