Petition — Jordan v. Arizona
Supreme Court brief1977
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—- a
RECCIVED
620 1977,
IN THE
apie "UL CLERK
SUPREME COURT OF THE UNITED STATES vert Con, Us.
~ ne worm te me ee ee
October Term, 1976
No. 76- 69S
PAUL WILLIAM JORDAN,
Petitioner
vs.
STATE OF ARIZONA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF ARIZONA
JACK GREENBERG
JAMES M, NABRIT, III
DAVID E. KENDALL
JOEL BERGER
10 Columbus Circle
New York, New York 10019
ANTHONY G.. AMSTERDAM
Stanford University Law School;
Stanford, California 94305 |
ATTORNEYS FOR PETITIONER
$967 -72.
INDEX
Page
Citation to Opinion BOEGW 6006606606060 0O 66666 OC OOS CCS 1
Jurisdiction *eeeeeneeeeeeeneeeneeeeeeeeeeeeeneeeeneneeeeeee 1
Questions Presented eeneneeeneeneeeeneneeeeeaeeeeneeeneeneeeeeee 2
Constitutional and Statutory Provisions Involved ..... 3
Statement e*eeneeeeeneeneeeeeneeneeneeenereeneeneneeeneeeeeeneeeeeeee 6
How the Federal Questions Were Raised and Decided
Below eeeeeeeeeeeeeeeneeeeeeeneeneeneeeeeneeeeeee 14
Reasons for Granting the Writ:
I. Certiorari Should Be Granted To
Review The Decision Of The Courts
Below Holding Petitioner's Confession
Voluntary On A Theory That Substantially »
Erodes This Court's Doctrines Relating To
Promise-Induced Confessions... .csccceees 16
II. Certiorari Should Be Granted To Consider
The Constitutionality Of Arizona's Capital-
Sentencing Procedure Under The Sixth, Eighth
And Fourteenth Amendments ...cccccoccees 22
A. The Failure Of The Arizona Death-
Sentencing Procedures To Provide
The Capitally Accused The Right To
A Judgment Of His Peers As To The
Existence Of Mitigating Circumstances,
And The Appropriateness Of The Penalty
of Death eeenreereeneeneeeneeeeeneeneeeeeneee 22
B. The Undue Limitation Of Consideration
Of Mitigating Circumstances Relating
To The History And Character Of The
Offender Under Arizona's Rigid And
Mechanical Offense-Centered Death-
Sentencing Formula ...cccccsccccoces 24
Page
C. The Imposition Of The Burden Of
Proving Mitigating Circumstances
Upon The Capital Defendant ......... 28
D. The Arizona Practice Conferring
Upon The Prosecuting Attorney
An Uncontrolled And Arbitrary
Discretion To Inflict Or Avert
The Death Penalty In Any Case
Of "“Aggravating Circumstances"”...... 31
Conclusion eeeeeeeeeeeeeeeeeeeneeneeeeneneeeeeeneneeneeeeeee 35
Append ix A eoeeereeeeeeneeeeeeeeeeenreeeeeeeeeeeeneeeeeee eee la
Append ix B eoeeeneeeeeeeeeneeeeeeeeneeeeneeneeneeneneeeeneeeeeee lb
ii
TABLE OF CASES
Alveres v. Bebcaska, 6406 U.B. 937 (A972) ceoccecccececseoce F9
Baggett v. Bullitt, 377 U.S. 360 (1964) ............e.eee-- 34
Bram Ve United States, 168 U.S. 532 oo, Perr of!
Coolidge Ve New Hampshire, 403 U.S. 443 *eeneenewneeneenrteneenenee eee 34
(1971)
Davis v. Connecticut, 408 U.S. 935 (1972) ...cccccccvcccee 33
Davis v. North Carolina, 384 U.S. 737 (1966) ........-ee++6- 17
Fesmire v. Oklahoma, 408 U.S. 935 (1972) .....cceccececees 33
Furman v. Georgia, 408 U.S. 238 (1972) .........eee0- 22,31,32,33
Gardner v. Florida, 51 L.Ed.2d 393 ee ols vee 30
Gregg v. Georgia, 428 U.S. 153 (1976) ....cccccccccsccccce 15,34
Bette v. Rees, BO beBE.S8 196 (ESTE) ccccccscccccsceescoss
In re Winship, 397 U.S. 358 (1970) ....cceceeeececcececeee 30
Janevie ©. Geman, 468 U.8. 936 CASTE) .cccccceceseececeese B88
Gees ©. Giee, SEB Gul. BOE CARPE) ccc cc cnccocscéccecceces Bim
Beem GV. Be BFS Bibs GFE CHRRES coeesesseoeseseseseosses OS
Lynumn v. Illinois, 372 U.S. 528 (1963) .-ceeecccccceceees 16
Mancusi v. DeForte, 392 U.S. 364 (1968) ....ccccccccccceee 34
McKenzie v. Montana, U.S. Sup. Ct., No.
Uc ye rrrrrr rrr rrr rrr rere errr ererrerrerererererrery er tt ee f.
MecGeee v. Bechet, 468 U.8. BBG CASTE? ccoccccesecosececses Oe
Mullaney v. Wilbur, 421 U.S. 684 (1975) ...ccecccccccceees 30
Phelan v. Brierly, 408 U.S. 939 (1972) ...ccccccccccccccee 33
Proffitt v. Florida, 428 U.S. 242 (1976) .....ceeeeeeeeeee 15,34
Harry Roberts v. Louisiana, 45 U.S.L.W. 4584
es June 6, 1977) eoenereeeeneeneneeeeneeeeeeeneeneeeneeeneeneeneee 26,27
Stanislaus Roberts v. Louisiana, 428 U.S.
325 (1976) SOSSOSSSOCSHSSCSVCoesroercsesseCcrvesseseeveseeuvrrses 31
Schneckloth v. Bustamonte, 412 U.S. 218
(1973) eoeneneeneneneneeneeneneeneeneneeeneneeneeeeneeneeeeneneeneeeeeeneeneneneee 17
Shadwick v. City of Tampa, 407 U.S. 345
(1972) eoenenveevneaeneveeaeveeeneaeene eae eneneeeaeaeanen ew ewn en eaen ean eeaneanewneaneewnenewneaneaeneneaneee 34
Speiser Vv. Randall, 357 U.S. 513 (1958) oereeeeeaereeneeeeeneee 30
iii
Table of Cases (Continued)
State v. Blazak, __ Ariz. __, 560 P.2d 54
(1977) —WETTITITTITTITITTTIITTiiiiirr rire ot. Pe.
State v. Ceja, Ariz. Sup. Ct. No. 3102-2
(May 16, 1977) (slip PMP eutctedwiaeneuedeaus 24,26,27,28,33
State v. Murphy, 113 Ariz. 416, 555 P.2d
1110 (1976) . ccccccccccccccccccsccccccccccccccescececes 32,34
State v. Richmond, Ariz. » 560 P.2d 41 (1976) ..15,24,25,32
Woodson v. North Carolina, 428 U.S. 280 (1976)..-...-- 27,30,31,32
STATUTES
Ariz. Rev. Stat. Ann. §13-451 (1956) ceceeecccceecescces 3
Ariz. Rev. Stat. Ann. §13-452 (1973 Supp.
Pamphlet) oenerneineeneeeneeenneeeeeneneeeeeeneeeeeeneeeaeaewneewneeneewneanenenee 3
Ariz. Rev. Stat. Ann. §13-453 (1973 Supp.
Pamphlet) --ccececccccecescersesesereesesseseseeseseees 3,15
Ariz. Rev. Stat. Ann. §13-454 (1973 Supp. 4,5,15,22
Pamphlet) ++eeeeeeeeeeeseeeeeeeeseeeseseerssessees 24,25,26,28
Ariz. Rev. Stat. Ann. §13-641 (1956)... cc ccccccsccces 5
Ariz. Rev. Stat. Ann. §13-1654 FRG Pcocesccoceceeceeees 5
Federal:
28 | Ae §1257 (3) oeneneeeneeeeeeeneeaeenee eee eeeneenenenenenenee 1
iv
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1976
No. 76-
PAUL WILLIAM JORDAN,
e Petitioner,
vs.
STATE OF ARIZONA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF ARIZONA
Petitioner prays that a writ of certiorari issue to review
the judgment of the Supreme Court of the State of Arizona
entered December 30, 1976.
CITATION TO OPINION BELOW
The opinion of the Supreme Court of the State of Arizona,
reported at Ariz. , 561 P.2d 1224 (1976), is set out in
Appendix A, infra.
JURISDICTION
The judgment of the Supreme Court of the State of Arizona
was entered on December 30, 1976. On March 22, 1977, that court
denied a timely motion for rehearing. On May 4, 1977, the
Supreme Court of the State of Arizona denied a timely motion for
stay of execution. Jurisdiction of this court is invoked under
28 U.S.C. §1257 (3) petitioner having asserted below and
asserting here deprivation of rights‘ secured by the Constitution
—
of the United States.
QUESTIONS PRESENTED
1. Whether the decision of the courts below holding
petitioner's confession voluntary substantially erodes this
Court's doctrines relating to promise-induced confessions?
2. Whether Arizona's capital-sentencing procedure
is constitutional under the Sixth, Eighth and Fourteenth
Amendments?
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
1. This case involves the Sixth, Eighth and Fourteenth
Amendments to the Constitution of the United States.
2. This case also involves the following provisions
of the Arizona Revised Statutes Annotated:
-_——_———
§13-451. Murder and malice aforethought
defined.
A. Murder is the unlawful killing of a
human being with malice aforethought.
B. Malice aforethought may be express
Or implied. It is express when there is
manifested a deliberate intention unlawfully
to take away the life of a fellow creature.
It is implied when no considerable pro-
vocation appears or when the circumstances
attending the killing show an abandoned
and malignant heart.
Ariz. Rev. Stat. Ann. §13-452 (1973 Supp. Pamphlet)
§13-452. Degrees of murder.
A murder which is perpetrated by means of
poison or lying in wait, torture or by any
other kind of wilful, deliberate or premed-
itated killing, or which is committed in
avoiding or preventing lawful arrest or
effecting an escape from legal custody, or
in the perpetration of, or attempt to per-
petrate, arson, rape in the first degree,
robbery, »Surglary, kidnapping or mayhem, or
sexual molestation of a child under the age
of thirteen years, is murder of the first
degree. All other kinds of murder are of
the second degree.
Ariz. Rev. Stat. Ann. §13-453 (1973 Supp. Pamphlet)
§13-453. Punishment for murder.
A. A person guilty of murder in the first
degree shall suffer death or imprisonment in
the state prison for life, without possibility
of parole until the completion of the service
of twenty-five calendar years in the state
prison, as determined by and in accordance with
the procedures provided in §13-454.
B. A person guilty of*murder in the second
degree shall be punished by imprisonment in
the state prison for not less than ten years.
Ariz. Rev. Stat. Ann. §13-454 (1973 Supp. Pamphlet)
§13-454. Proceedings for determining
sentence upon the finding or
admitting of guilt in cases of
murder in the first degree.
A. When a defendant is found guilty of or
pleads guilty to f_rst degree murder, the judge
who presided at the trial or before whom the guilty
plea was entered shall conduct a separate sentencing
hearing to determine the existence or nonexistence
of the circumstances set forth in subsection E and
F, for the purpose of determining the sentence to
be imposed. The hearing shall be conducted before
the court alone.
B. In the sentencing hearing the court shall dis-
close to the defendant or his counsel all material
contained in any presentence report, if one has been
prepared, except such material as the court deter-
mines is required to be withheld for the protection
of human life. Any presentence information withheld
from the defendant shall not be considered in deter-
mining the existence ~~ nonexistence of the circum-
stances set forth in subsection E or F. Any infor-
mation relevant to any of the mitigating circumstances
set forth in subsection F may be presented by either
the prosecution or the defendant, regardless of its
admissibility under the rules governing admission of
evidence at criminal trials; but the admissibility of
information relevant to any of the aggravating cir-
cumstances set forth in subsection E shall be governed
by the rules governing the admission of evidence at
criminal trials. Evidence admitted at the trial,
relating to such aggravating or mitigating circum-
stances, shall be considered without reintroducing it
at the sentencing proceeding. The prosecution and
the defendant shall be permitted to rebut any infor-
mation received at the hearing, and shall be given
fair opportunity to present argument as to the adequacy
of the information to establish the existence of any
of the circumstances set forth in subsections E and PF.
The burden of establishing the existence of any of the
circumstances set forth in subsection E is on the
prosecution. The burden of establishing the existence
of the circumstances set forth in subsection F is on
the defendant.
C. The court shall return a special verdict setting
forth its findings as to the existence or nonexistence
of each of the circumstances set forth in subsection E
and as to the existence or nonexistence of each of
the circumstances in subsection F.
D. In determining whether to impose a sentence of
death or life imprisonment without possibility of
parole until the defendant has served twenty-five
calendar years, the court shall have taken into account
the aggravating and mitigating circumstances enumerated
in subsections E and F and shall impose a sentence of
death if the court finds one or more of the aggravating
circumstances enumerated in subsection E and that there
are no mitigating circumstances sufficiently substantial
to call for leniency.
E. Aggravating circumstances to be
considered shall be the following:
1. The defendant has been convicted
of another offense in the United States
for which under Arizona law a sentence of
life imprisonment or death was imposable.
2. The defendant was previously
convicted of a felony in the United States
involving the use or threat of violence on
another person.
3. In the commission of the offense
the defendant knowingly created a grave risk
of death to another person or persons in
addition to the victim of the offense.
4. The defendant procured the commis-
sion of the offense by payment, or promise
of payment, of anything of pecuniary value.
5. The defendant committed the offense
as consideration for the receipt, or in
expectation of the receipt, of anything of
pecuniary value.
6. The defendant committed the offense
in an especially heinous, cruel, or depraved
manner.
F. Mitigating circumstances shall be the
following:
1. His capacity to appreciate the
wrongfulness of his conduct or to conform
his conduct to the requirements of law was
significantly impaired but not so impaired
as to constitute a defense to prosecution.
2. He was under unusual and substantial
duress, although not such as to constitute
a defense to prosecution.
3. He was a principal, under 513-452,
Arizona Revised Statutes, in the offense,
which was committed by another, but his parti-
cipation was relatively minor, although not
so minor as to constitute a defense to prose-
cution.
4. He could not reasonably have fore-
seen that his conduct in the course of the
commission of the offense for which he was
convicted would cause, or would create a grave
risk of causing, death to another person.
Stat. Ann. §13-1654 (1956)
§13-1654. Method of infliction of sentence
of death
The penalty of death shall be inflicted
by lethal gas.
Stat. Ann. §13-641 (1956)
§13-641. Definition
Robbery is the felonious taking of personal
property in the possession of another from
his person, or immediate presence, and against
his will, accomplished by means of force or
fear.
STATEMENT
This is a petition for a writ of certiorari to review a
judgment of the Arizona Supreme Court affirming petitioner's
death sentence. Petitioner, Paul William Jordan, was convicted
of murder in the first degree after a jury trial in the Maricopa
County Superior Court, and was sentenced by the trial judge to
death by the administration of lethal gas.
I. Testimony at Trial
Mr. and Mrs. Abraham Osso owned and operated a grocery
store in Tempe, Arizona. Mr. Osso was last seen alive by his
wife on January 15, 1974, at approximately 3:20 p.m., T.(I) 73,
ena: cine Mrs. Osso left him alone in the store. Mrs. Osso
testified that she thought her husband had approximately $800
in a wallet on his person which she described as tax money that
Mr. Osso intended to deposit in the bank on the following day.
T.(I) 74,77. When Mrs. Osso returned to the store at approx-
imately 7:00 p.m. on January 15, 1974, her husband was dead.
Mr. Osso's body was discovered by a customer, Frank
Russell, between 6:30 and 7:00 p.m. on the 15th. T.(I) 83, 87.
Mr. Russell found Mr. Osso lying on the floor in the hack of
the store and, failing to arouse him, went for help. T. (I)83-
84. Mr. Russell testified that he looked at the open cash
register from a distance and saw no bills in the drawer, only
coins. T.(I) 86, 91-92.
l1/The transcript of the proceedings was prepared in four
individually-numbered volumes: I - February 24, 1975; II =
February 25, 1975; III - February 26, 1975; and IV - March
and 13, 1975. References to the transcript ("T.") will reflect
the volume and the page within that volume. References to the
trial record will be indicated by "CR" followed by the page
number.
The first policemen arrived at 6:48 p.m. and found
Mr. Osso's body in the back room. T.(I) 93-94. The cash drawer
was open and on examination was found to contain only coins and
no bills. T.(I) 94. The policemen checked the body, finding a
small wound and no vital signs. T.(I) 96. The policeman who
first on the scene testified that he found no blood in the
front of the store or in the vicinity of the cash register.
T.(I) 97. The case was turned over to the Tempe Police Depart-
ment Investigation Division.
On January 17, 1974, petitioner was apprehended in
Las Vegas, Nevada by Dale Olson of the Las Vegas Police Depart-
ment, who testified at trial that he "came in contact" with
petitioner at a parking lot in Las Vegas and that petitioner
had a car and $480.00 in cash. T.(I) 110-111. Olson further
testified that petitioner, who was accompanied by a woman, was
carrying hotel room keys. T. (I) 111. Olson went to peti-
tioner's rooms and found two juveniles (Shortnacy & Russell),
two guns and $289 in a wallet. T. (I) 112. The wallet was
found under the mattress in the room in which the juveniles were
sleeping. T. (I) 115. One of the guns was found in a night-
stand next to the bed. T. (I) 117. Olson impounded the guns,
the money in the wallet, and petitioner's car. T. (I) 115-116.
He took petitioner +7 custody, along with the two juveniles
and a Miss Caldwell. On January 23, 1974, omenente
proceedings were held to transfer petitioner to Texas.
2/ There is no indication in the record of the reason why
Olson originally stopped petitioner in the parking lot, or of
the basis on which he searched petitioner and petitioner's
hotel room. There was no evidence at that time connecting
petitioner with the murder in Arizona. T. (II) 50. The wallet
seized in Nevada was never examined by Arizona investigators
or identified by Mrs. Osso. T. (II) 78.
3/ State's Response to Defendant's Motion to Dismiss for
Want of Speedy Trial. CR. 69.
On March 7, 1974, the Tempe, Arizona police received
a call from the Fort Worth, Texas police to the effect that
someone in custody had information about a robbery and shooting
in Arizona. T. (II) 50. The Fort Worth police put this
individual (who is not named anywhere in the record herein)
on the phone with Detective Schoenfeld of the Tempe Police.
The informant told Schoenfeld that petitioner and Shortnacy
had committed the Arizona crime. T. (II) 50-51. On the basis
of this and other information given by the informant which
tied into the investigation up to that point, Detective
Schoenfeld obtained from the Weatherford, Texas,police the
weapons seized from petitioner in Nevada. The guns were then
examined by Arizona weapons experts. T. (II) 52-53.
According to petective Schoenfeld's testimony, a
criminalist with the Arizona Department of Public Safety
eliminated one of the guns seized from petitioner as the one
t..at fired the bullet removed from Mr. Osso's body. T. (I) 56.
The other gun, which could not be excluded, was sent along with
the bullet to the FBI for further testing. The FBI report
concluded (T. (II) 55), as did the Arizona ballistics expert,
that there could not be a spe... ° positive identification of
the gun with the bullet. How. » the ~un seized from peti-
tioner could not be excluded as a possibie source of the bullet.
T. (I) 124. A fingerprint expert testified that petitioner's
prints were not found at the scene. T. (II) 107.
The results of the ballistics tests and the infor-
mant's story led Detective Schoenfeld and Lt. Christensen of
the Tempe Police Department to go to Weatherford, Texas on
May 1, 1974,to interview petitioner. T. (II) 57. The Arizona
policemen told petitioner what crime they were investigating
and that his girlfriend, Nancy Caldwell, wanted to confess to
the crime. T. (II) 58. Petitioner was advised of his rights.
T. (II) 59.
Petitioner asked Schoenfeld and Christensen to have
the Texas charges against him and Nancy Caldwell dropped.
T. (I) 12, 37-38; T. (II) 61, 113. Schoenfeld called the
Ft. Worth prosecuting attorney regarding the Texas charges
against petitioner and was told that no charges would be
dropped at that time. T. (I) 12; T. (II) 61-62, 114. However,
petitioner testified without contradiction that charges in
three other Texas cities were dropped. T. (II) 131. With
regard to the charges against Miss Caldwell, the Tempe Police
contacted the prosecuting attorney in Weatherford, a Mr.
Tandy, and arranged a meeting at Tandy's office. T. (II) 63.
Mr. Tandy met with petitioner and Miss Caldwell alone, the
police remaining in the outer office. When the meeting was
Over, Tandy said that petitioner would talk to the police.
4/
T. (II) 64.
Prior to the meeting with Tandy, petitioner had asked
the Tempe police if Arizona had a death penalty and was told
that it did, but Lt. Christensen told petitioner that it was
unlikely he would receive the death penalty because it hadn't
been imposed recently. T. (I) 14, 28, 36, 38, 49; T. (II) 68,
116. Petitioner testified that he regarded Christensen's
statement as one of fact rather than opinion, and that he would
not have given a statement to the police if he had thought he
would get the death penalty. T. (I) 45, 47; T. (II) 132-137.
Petitioner testified that he was told he would get a life
sentence in Arizona and would probably only have to serve 7%
years to be eligible for parole. T. (I) 43-44; T. (II) 132.
Christensen also testified that he had told petitioner he
wouldn't get the death penalty, though Schoenfeld testified
that there was no discussion of specific terms and that no
4/ Testimony is inconclusive as to whether Tandy actually
said that Nancy Caldwell would be released and that Weatherford
charges against petitioner would be dropped. However, Det.
Schoenfeld testified that if his report reflected that Tandy
said Nancy would be released, then that is probably what Tandy
said. TT. (I) 25. Schoenfeld also testified that Tandy said
"that everything was squared away." T. (II) 64.
wa
promises were made. T. (I) 13, 15, 29-30, 87.
After the meeting with Tandy, petitioner gave a
statement implicating himself in the Osso robbery and murder.
The Tempe police, with petitioner's knowledge, T. (II) 134,
recorded the statement on tape and had it transcribed. Peti-
tioner was advised of his rights again before taping. T. (I)
25. The typed statement was 13 pages long, and petitioner
signed each page. T. (I) 6. Petitioner's statement was to
the effect that he went into the store to buy cigarettes and,
seeing money in the cash register, decided to rob the store.
He took out his gun. Osso, behind the counter, refused to give
petitioner the money. When Osso started to reach for his
pocket, petitioner thought he was reaching for a gun and shot
Osso.
At trial, petitioner testified that he was facing
approximately 12 charges in Texas at the time of his confession
and wanted to be extradited to Arizona rather than serve time
in Texas. T. (II) 129-131. He was told that it was likely
that he would be extradited to Arizona because the charge there
was more serious. T. (II) 16; T. (II) 131. He testified
further that he was likely to get a life sentence in Texas
and wanted tod avoid serving Texas sentences because of the
lack of medical care in Texas prisons. T. (I) 45; T. (II) 133,
137. Petitioner repeatedly testified that he did not commit
the Osso crime and only made his incriminating statement because
of his impression that Texas charges would be dropped and that
he would serve a relatively short sentence in Arizona. T. (I)
43-44, 47; T. (II) 129, 136-137, 141-142, 144.
-10-
II. Procedural History of the Case
Petitioner's statement was taken by Tempe, Arizona,
police officers at the Weatherford, Texas,Police Department on
May 1, 1974. On May 13, 1974, Arizona filed a complaint
charging petitioner with murder, and a warrant was issued on
that day. In June, 1974, petitioner was tried and convicted of
aggravated robbery in Texas. On July 30, 1974, the Arizona
Sheriff requested detainers against petitioner. On October 9,
1974, petitioner was convicted in Texas of robbery by assault,
aggravated robbery (2 counts) and forgery.
On November 22, 1974, petitioner was brought before
a magistrate in Texas to waive extradition to Arizona. On
December 6, 1974, petitioner made his first appearance before
an Arizona magistrate. He filed a financial statement and
requested appointment of counsel, CR 5. On December 12, 1974,
a Grand Jury in Maricopa County, Arizona returned an indictment
against him for first degree murder. CR 1. He was assigned
counsel from the Phoenix Public Defender's Office,and trial was
a = ee ee ee ee
set for January 24, 1975,but was subsequently continued for a
month.
On January 31 and February 5, the State moved to add
allegations of five prior Texas convictions of petitioner to
j
!
i
\
the indictment. On February 18, 1975, the defense filed a Motion
to Quash, or Dismiss for Want of Prosecution and Denial of
Speedy Trial (CR 50) and a Motion to Suppress Confession |
(CR 61). On February 24, after a voluntariness hearing, the :
court denied both motions. . (Z) Sa. Trial began with jury |
selection the same day.
Presentation of the evidence was completed on February |
25, and a defense motion for directed verdict was denied. On |
February 26, the court instructed the jury as to the law of
first degree murder and robbery. T. (III) 44-45. It gave the
State's requested instructions to the effect that in robbery-
murder, the robbery is the legal equivalent of premeditation,
and that all of the elements necessary to sustain a robbery
conviction need not be proved to establish murder in the course
of a robbery. T. (III) 45. It also gave the defendant's
requested instruction regarding the voluntariness of a con-
fession. T. (III) 46-47. The jury was instructed not to
discuss or to consider punishment, T. (III) 47, and was given
two forms of verdict: guilty of first degree murder, or not
guilty. T. (III) 47-48. The jury returned a guilty verdict
the same day.
On March 5, 1975, the defense filed a Motion for a
New Trial contending inter alia, that the court had erred in
failing to suppress petitioner's confession and in admitting
the confession into evidence, CR 94, On March 12, 1975, a
hearing in aggravation and mitigation was held, at which peti-
tioner's motion fcr new trial was denied. T. (IV) 3. The State
renewed its motion for addition of an allegation of prior con-
victions to the indictment. The court ordered that four Texas
convictions (two of aggravated robbery and one of aggravated
assault on —* 9, 1974; and one of aggravated robbery on
June 10, s97ay” be added to the indictment as aggravating
circumstances. T. (IV) 6. These convictions were proved by
certified records which disclosed nothing about the facts of
the Texas offenses. CR 30, 33, 35, 37, 40. The defense
presented no witnesses or evidence in mitigation. Counsel
asserted only that petitioner had made his statement to the
police for the reasons described in his testimony, but had not
committed the offense. T. (IV) 9. On petitioner's request for
sentencing as soon as possible, the court set sentencing for
March 13, 1975. T. (IV) ll.
5S/ This June 10, 1974,conviction is misdated May 30, 1974 in
the motion papers filed by the State, CR 16, 20, 23, 26..
aiSo
On March 13, 1975, the court found two aggravating
circumstances under Ariz. Rev. Stat. Ann. § 13-454(E) (1) and
(2): petitioner had been convicted of another offense in the
United States for which under Arizona law a sentence of life
imprisonment was imposable; and petitioner had been convicted
of felonies in the United States involving the use or threat
of violence on another person. T. (IV) 14. It found no
mitigating circumstances under Ariz. Rev. Stat. Ann. § 13-454(F) J
T. (IV) 14-15. It accordingly sentenced petitioner to death
by lethal gas. T. (IV) 16.
The Supreme Court of Arizona affirmed on December 30,
1976 and denied a timely motion for rehearing on March 22, 1977. |
It denied a petition for stay of execution on May 3, 1977; and,
on May 31, 1977,it set an execution date of June 29, 1977.
o@)3e
HOW THE FEDERAL QUESTIONS WERE RAISED
AND DECIDED BELOW
I. The Involuntary Confession Issue
As indicated in the immediately preceding section, peti-
tioner's pretrial motion to suppress his confession as invol-
untary ( CR 6l ) was tented after an evidentiary hearing
( T.(I) 52 ), and this ruling was challenged as error in
petitioner's new trial motion ( CR 94 ), which was also
denied ( T,(Iv)3 )- On appeal to the Arizona Supreme Court,
petitioner argued that the confession was involuntary in a
constitutional sense primarily because it was induced by a
promise of law enforcement authorities to release Nancy Caldwell
from custody and to drop charges against her and petitioner in
Texas. Becausa petitioner had denied knowledge of the Osso
crime until after these promises were made, petitioner argued
that his subsequent confession was a direct result of the in-
ducement. Appellant's Opening Brief on Appeal, at p.9.
The Supreme Court of Arizona found that “the promise not
to prosecute in Texas, having been solicited by [petitioner] ..
did not render his confession involuntary." 561 P.2d at 1227 ;
Appendix A, infra, at p. 4 . Following a 1970 Kentucky decision
the court approved the rule that an arrested individual who
“himself initiated the ‘deal' .. . by offering to confess if
+ « « Charges were dropped" could not subsequently complainthat
his confession was the product of unconstitutional inducement.
561 p.2d at 1227,Appendix A, infra, at p. 4 . With regard
to the interrogating officer's statement to petitioner that
petitioner would probably not get the death penalty, the court
alsa
j
’
found that this pronouncement was "couched in terms of a mere
possibility." 561 P.2d at 1227 ; Appendix A, infra, at p.4 °
It was merely an opinion, not a promise. 561 P.2d at 1227;
Appendix A, infra, at p. 4. "“[I])n the alternative, even were
it perceived [by petitioner] .. . to be such a promise of
leniency, it was not one relied upon by [petitioner] ... in
his decision to confess." Because petitioner had already stated
that he would confess if the Texas charges against Nancy Caldwell
and himself were dropped. 561 P.2d at 1227 ; Appendix A,
infra, at p. 4, Accordingly, "the trial court's determination
that [petitioner's] . . . confession was freely and voluntarily
given and without coercion was correct." 561 P.2d at 1227;
Appendix A, infra, at p. 4.
II. The Death Penalty Issue
Petitioner's contention that the death penalty provided
by Ariz. Rev. Stat. Ann. §§ 13-453 and 13-454 is a cruel and
unusual punishment forbidden by the Eighth and Fourteenth
Amendments to the Constitution of the United States was also
considered on the merits, and was rejected by the Arizona
Supreme Court (561 P.2d at 1229;Appendix A, infra, at p. 6)
in reliance upon that court's previous decision in State v.
Richmond, Ariz. __, 560 P.2d 41 (1976), which had sustained
the statute under Gregg v. Georgia, 428 U.S. 153 (1976) and
companion cases. "The fact that the judge instead of the jury
imposes the sentence is without consequence. We addressed
this issue in Richmond and found it to be without merit relying
on Proffitt v. Florida, [428 U.S. 242 (1976)]." 561 P.2d at 1229
Appendix A, infra, at p. 6.
==
REASONS FOR GRANTING THE WRIT
I. CERTICRARI SHOULD BE GRANTED TO REVIEW
THE DECISION OF THE COURTS BELOW HOLDING
PETITIONER'S CONFESSION VOLUNTARY ON A
THEORY THAT SUBSTANTIALLY ERODES THIS
COURT'S DOCTRINES RELATING TO PROMISE-
INDUCED CONFESSIONS.
=
Eighty years ago, the basic constitutional rules regarding
the admiss*bil*‘*y of promise-induced confessions were laid down
in Bram *¥ Un “*. States, 168 U.S. 532 (1897):
"“"a confession in order to be admissible must
be free and voluntary; that is, must not be
extracted by any sort of threats or violence,
nor obtained by any direct or implied promise,
however slight, nor by the exertion of any
improper influence. . . A confession can never
be received in evidence where the prisoner has
been influenced by any threat or promise; for
the law cannot measure the force of the influence
used, or decide upon its effect upon the mind
of the prisoner ... ."(Emphasis added)
In this Court at least, there has been no subsequent retreat from
those principles. See, e.g., Lynumn v. Illinois, 372 U.S. 528
(1963); Hutte v. Ross, 50 L.Ed.2d 194 (1976).
The decision below warrants review because it makes two
crippling incursions upon the settled doctrines of Bram v. United
States.
First, although the Arizona Supreme Court concedes that peti
tioner's confession was the product of a “deal” under which peti-
tioner confessed to an Arizona crime in exchange for the dropping
of Texas charges against himself and his girlfriend, the court
holds (following a prior Kentucky decision) that this overtly
promise-induced confession is immunized against constitutional
challenge because petitioner “himself initiated the ‘deai'.”
561 P.2d at 1227; Appendix A, infra, at p.4. In other words,
if the consideration which induces a confession looms so prom-
inently in the confessor's mind that he raises the subject with
olZ-
interrogating officers instead of vice versa, his subsequent
confession bought by that consideration is eo ipso “voluntary.”
Second, the Arizona Supreme Court not merely undertakes
to "measure the force of the inttimenes™ eeun petitioner of
an interrogating officer's admitted statement of “opinion”
that petitioner would not get the death penalty for the crime
to which he was being asked to confess; the court also distorts
the measuring process by the plainly impermissible procedure of
abstracting this particular "opinion" of the officer from the
context of "the entire record," Davis v. North Carolina, 384 U.S.
737, 741 (1966), so as to ignore its interaction with the promise
to drop Texas charges. Plainly, in "the totality of all the
surrounding circumstances," Schneckloth v. Bustamonte, 412 U.S.
218, 226 (1973), the misleading comfort provided by an Arizona |
police officer's pronounced “opinion” that petitioner "more all
likely . . . wouldn't get the death penalty” (T.(I)21) “because
nobody had been sentenced to [deathj recently that we knew of"
(T.(II)68) affected petitioner's confession to an Arizona crime |
in exchange for nonprosecution in Texas. Yet that same confession
made with the unmistakable understanding that it would secure his
dsolution from comparatively more threatening noncapital Texas |
charges is now held voluntary and admissible as the critical
evidence which supports his death sentence in Arizona.
On this record, there can be no Goubt (1) that, when first
questioned about the Osso crime, petitioner “knew nothing," 561
6/ Bram v. Uriited States, quoted supra.
alF=a
J/
P.2d at 1226; Appendix A, supra, at p.3; (2) that petitioner
subsequently insisted he would make no statement about the Osso
crime unless"certain conditions were met" regarding the release
of his girlfriend from custody and the dropping of Texas charges
against his girlfriend and himself, 561 P.2d at 1226; Appendix
A, infra, at 9.3; 03) that, while arrangements were being made
to meet the conditions, petitioner specifically inquired of the
Arizona officers whether they believed that he would get the
death penalty in Arizona, and was assured by Lieutenant Christensen
2/
that he did not; (4) that petitioner then met with the
7/ More precisely, petitioner denied knowledge of the crime and
told the Arizona interrogating officers that he did not wish to
make a statement. T.(I) 20, 22, 37, 47; T.(II) 58, 112, 129.
8/ Petitioner specifically told the Arizona officers that,
before he would discuss the Osso case, he wanted to talk about
the dropping of the Texas charges against himself and his girl-
friend, and his girlfriend's release from Texas custody.
T.(I) 12, 23, 37-38; T.(II) 61, 63, 113.
9/ This discussion is described in the record at T.(I) 14, 23-24,
28-29, 36-38, 49; T.(II) 68, 115, 116, 132. The following excerpt
of the testimony of Officers Schoenfeld and Christensen is rep-
resentative:
[State] Q Was there any mention or any discussion
between yourself and Paul William Jorden [sic] or
between Paul William Jordan and these other parties
just mentioned regarding the type of sentence he might
get in Arizona if he gave a statement?
[Schoenfeld] A There was a discussion. He was asking
our opinion and if they had a death penalty in Arizona.
Q Would you tell us what the substance of
that discussion was?
A Lt. Christensen indicated to him that they,
that we haven't had a death penalty in some time in
Arizona, and he doubted, it was his own opinion, he
made that clear, it was his opinion, he doubted very
much that he would get the death penalty.
T. (I) 14.
[Defense] Q What was he advised of what his sentenceg
might be?
[Schoenfeld] A Well, it was just a matter of opinion.
Lt..Christensen was the one that made the statement
when Jordan asked him if he would get the death penalt
whether Arizona still has the death penalty, and
neither one of us could remember how long it had been
since there had been a death penalty sentence.
And Lt. Christensen said it was his opinion
c
-
Weatherford, Texas prosecutor, Mr. Tandy, pursuant to arrange-
ments made by the Arizona officers; and, following this meeting,
Mr. Tandy informed the Arizona officers that “everything
9/ cont'd.
that more than likely he wouldn't get the death
penalty for ths.
Q All right. Now, were there any statements made
to him in regards to time he would have to do if he
received a life sentence?
A I don't recall that at all, no.
Q Was he advised that there were only two
sentences that he could receive if he made his
statement to this charge in Arizona?
A I don't recall if the statement was made, but
it probably was it would be just life or death.
T. (I) 23.
[State] Q During those prior conversations,
Lt. Christensen, was there ever any discussion
regarding the possible sentence the defendant
might receive?
[Christensen] A Yes, sir.
Q Did he ask you if he could get death?
A Yes, sir, He did.
Q Do you recall what your reply was?
A My reply was I didn't think he would get death.
G
T.(I) 28.
[Defense] Q Lieutenant, when was the first time
you initially came in contact with Mr. Jordan in
Texas?
[Christensen] A About 3:45 P.M., May lst.
Q About how long was it before you came in
contact with him and he made the tape-recorded
statement?
A Well, he gave his statement at, as I recall,
5:30, when he was advised on tape of his statement,
roughly, around two hours, I guess.
Q Now, it is during this two-hour period that the
conversations took place between you and Detective
Schoenfeld and Mr. Jordan and between Mr. Jordan,
Mr. Tandy and Nancy Caldwell, is that correct?
A That is correct.
Q Now, during this time, it is your testimony
that you gave Mr. Jordan your opinion that he would
not receive the death penalty in Arizona?
A That is correct, sir.
[Schoenfeld] THE WITNESS: He was asking us if
Arizona still had a death penalty and we indicated
o19=
10}
was squared away" so that petitioner would give them a statement ;
9/cont'd.to him that they did. We told him that we
couldn't recall any recent sentences of death
recently. And there was some discussion to if
he would -- I can't recall any others, other than
the death penalty and Lieutenant Christianson [sic]
indicating to him that it was his opinion -- or
he asked him his opinion, Jordan did, and Lieutenant
Christianson [sic] indicated: Well, it was his opinion
more than likely he wouldn't get the death penalty
due to the trend of things, and so forth, and that
nobody had been sentenced recently that we knew of.
BY MR. SULLIVAN [Defense]
Q In other words, Mr. --
MR. TOLINO: Excuse me, your Honor, I don't
believe I understood his last answer.
THE WITNESS: I stated that --
MR. TOLINO: Lieutenant Christianson [sic] said he
would or would not?
THE WITNESS: Would not.
[Defense] Did you tell him that he did face the
death penalty?
[Schoenfeld] A We told him --no, we didn't tell
him that he would face the death penalty. We told
him that the death penalty was still in effect in
Arizona, and that he would either get life or the
death penalty; however, what Lieutenant Christianson[sic
told him --
® All right.
And you say that Lieutenant Christianson [sic]
indicated that it was his opinion that he would not
get the death penalty?
A That's correct...
[Christensen] A He asked me if he would receive
the death penalty -- if we had a death penalty. I
told him we did, and he asked me if I thought
he would get the death penalty, and I told him in
my Opinion I didn't think he would.
[Defense] Q Did youtalk about a life imprisonment
term?
A We spoke about a life imprisonment term,
yes, sir.
Q Was there any mention of how much time
Mr. Jordan would have to do if he was sentenced to life?
A I don't recall any specific time mentioned.
Q Was that subject talked about, how much
time he would have to do in Arizona?
A He asked about life, but I don't recall
any specific times and amount of years or impressions
of years, what he would have to do in prison.
T.(II) 69, 116.
10/ T.(II) 64. Prior to petitioner's meeting with Mr. Tandy, ;
he had been assured that Texas charges in several other localities
would be dropped. T.(II) 131 (uncontradicted testimony of peti-
tioner).
=-20-
and (5) that petitioner then made the taped confession to the
Osso crime which was admitted below as hii iii.
under these circumstances, it was indeed voluntary merely because
petitioner “initiated the ‘deal'" and accepted the assurance of a
police “opinion” instead of a firm commitment that he would not
be sentenced to death, is a question that requires this Court's
review if Bram v. United States is not be gravely undermined,
lly .(I) 35-36. We have noted at pages , supra,
petitioner's testimony at the trial below that he understood
he would receive a life sentence for the Arizona homicide, with |!
an opportunity for parole in seven or seven and a half years.
T.(I) 43-44; T. (II) 132, 144. He further testified that he
made his confession only because of the promises that he had
received, which caused him to expect more lenient treatment in
Arizona than he would have had in the Texas prisons. T.(I) 45;
T.(II) 142, 144.
-2l-
“98
"
II. CERTIORARI SHOULD BE GRANTED TO
CONSIDER THE CONSTITUTIONALITY
OF ARIZONA'S CAPITAL-~SENTENCING
PROCEDURES UNDER THE SIXTH,
EIGHTH AND FOURTEENTH AMENDMENTS.
Several distinct but related questions regarding the
federal constitutionality of Arizona's post-Furman death-sentenc-
ing scheme, as it was applied to condemn petitioner in the
present case, merit consideration of this Court on certiorari:
A. The Failure Of The Arizona Death-
Sentencing Procedures To Provide
The Capitally Accused The Right To
A Judgment Of His Peers As To The
Existence Of Mitigating Circumstances,
And The Appropriateness Of The Penalty
Of Death,
Arizona proceedings for determining sentence on the finding
or admitting of guilt in first degree murder cases are provided
in Ariz. Rev. Stat. Ann. §13-454.Sec13-454(A) provides that the
judge who presided at trial or who received the plea shall con-
duct a separate sentencing hearing to determine the existence
or nonexistence of the aggravating and mitigating circumstances
set out in subsections (E) and (F) respectively. The hearing,
for the purpose of ddermming the sentence to be imposed, shall be
conducted before the court alone.
The court alone, under the evidentiary procedures specified
in subsection (B), hears the evidence presented by the prosecu-
tion and defense and then under subsection (C) must return a
special verdict setting forth its findings as to the existence
or nonexistence of the circumstances enumerated in subsections
(E) and (F). Finally, the court alone determines whether to
impose a life sentence with minimum of 25 calendar years, or a
death sentence. This determination is made under the standards
set forth in subsection (D): the court shall impose a sentence of
death if the court finds one or more of the aggravating circum-
stances in subsection (E) and finds there are no mitigating
Circumstances as enumerated in subsection (F).
-22<
The statutory death sentencing procedure just described
excludes the jury totally from the process of Life-or-death
decision making in individual capital cases. Such exclusion
raises significant questions under the Sixth, Eighth and Four-
teenth Amendments to the United States Constitution which this
Court should grant certiorari to resolve. To avoid burdening
the Court with repetitious matter, we incorporate by reference
subpart (I) (B), pages 29-36 of the Petition for a Writ of
Certiorari in McKenzie v. Montana, No. 76-6714, which raises a
similar issue and underscores the importance of its consideration
by the Court. The referenced pages are attached to this petition
as Appendix B.
=23-
B. The Undue Limitation Of Consideration Of
Mitigating Circumstances Relating To The
istory nd Character Of The Offender
Under Arizona's Rigid And Mechanical Offense-
Centered beath-Sentencing Formula.
When a trial judge finds one aggravating circumstance under
Subsection (E) and no Subsection (F) mitigating circumstances,
the Arizona Supreme Court has ruled that imposition of the death
penalty is mandatory. In the hearing to determine sentence,
"[t]he burden of establishing the existence of any mitigating
circumstance is on the defendant. A.R.S. §13-454(B)." State v.
Ceja, supra, slip op. at 3. The defendant may not, however,
present to the court the full range of circumstances which might
mitigate the seriousness of the crime charged, since he is limited
to evidence tending to establish one or more of the Siew Chaheied
ing circumstances" set forth in Ariz. Rev. Stat. Ann. §13-454 (F) .!
12/ "If the superior court finds one or more
of the aggravating circumstances and no
mitigating circumstances, it shall impose
the sentence of death."
State v. Richmond, _ Ariz.__, 560 P.2d 41, 53 (1976).
"Under certain circumstances the trial court
has no discretion in imposing the death sentence.
A.R.S. §13-454, subsec. D calls for the imposition
of the sentence of death whenever it is shown at the
sentencing hearing that aggravating circumstances
attended the murder and that no mitigating circumstances
‘sufficiently substantial to call for leniency' exist
- + -[wJe@are satisfied that the aggravating circum-
stances were established and that no mitigating cir-
cumstances existed, so the death penalty was properly
imposed in this case."
State v. Blazak, _Ariz.__, 560 P.2d 54, 61 (1976).
"« « « we are satisfied that no mitigating
circumstances were established. One aggravating
circumstance was established. Under these circum-
stances, the imposition of the death penalty was not
only proper but required. A.R.S. §13-454(D) ... "
State v. Ceja, Ariz. Sup. Ct. No. 3102-2 (May 16, 1977), slip
Op. at 9,
=24<
The list is exhaustive, and a defendant may not offer
evidence of any other extenuating circumstances. In State v.
Richmond, the Arizona Supreme Court rejected the defendant's
argument that because subsection (D) does not explicitly limit
the number of mitigating circumstances, a judge is permitted to
consider any mitigating circumstances. The court held "that
subsection D authorizes the trial court to take into account only
those mitigating circumstances enumerated in subsection F." State
v. Richmond, supra, 560 P.2d at 50.
Moreover, the Arizona Supreme Court has construed the four |
statutory "mitigating circumstances" in a narrow and restrictive |
manner. In Richmond, it held that evidence that a defendant suffer-
ed from a character or personality disorder does not qualify as
an “impairment"™ under Ariz. Rev. Stat. Ann. §13-454(F) ay
Although the statute explicitly provides that the mental "“imbair-
ment" need not be such as to constitute a defense to prosecution,
the court ruled that to qualify as mitigating evidence at the
sentencing phase, psychiatric testimony must indicate that a
defendant suffered from a "mental disease or defect which
renders him unable to appreciate the nature or wrongfulness of
his conduct." 560 P.2d at 48.
Conversely, the Arizona Supreme Court has liberally and
expansively construed the definition of the enumerated aggravating
circumstances. For example, in State v. Blazak, the court ruled ia
the shootings of a bartender and bystander in a bar holdup without
13/ “[Defendant's] capacity to appreciate the wrongfulness of
his conduct or to conform his conduct to the requirements of law
was significantly impaired but not so impaired as to constitute
a defense to prosecution.” Ariz. Rev. Stat. Ann. §13-454(F) (1).
-25-
any other showing of aggravation was "especially heinous, cruel,
or depraved" sufficient to satisfy the requirements of Ariz. Rev.
Stat. Ann. §13-454(E) (6), apparently because "no justification"
for the shooting was shown. State v. Blazak, supra, 560 P.2d at
14/
61 n.3.
The admissible evidence of mitigation in an Arizona capital
trial relates only to the offense and not to the offender, since
the four "mitigating circumstances” which may be shown are:
"l. . . - [a defendant's] capacity to appreciate
the wrongfulness of his conduct or to conform his
conduct to the requirements of law was significantly
impaired but not so impaired as to constitute a
defense to prosecution.
2. He was under unusual and substantial duress,
although not such as to constitute a defense to
prosecution.
3. He was a principal, under §13-452, Arizona
Revised Statutes, in the offense, which was
committed by another, but his participation
was relatively minor, although not so minor
as to constitute a defense to prosecution.
4. He could not reasonably have foreseen
that his conduct in the course of the commission
of the offense for which he was convicted would
cause, Or would create a grave risk of causing,
death to another werson.”"
Ariz. Rev. Stat. Ann. §13-454(F). “Circumstances such as the
youth of the offender, the absence of any prior convictions, "
Harry Roberts v. Louisiana, 45 U.S.L.W. 4584, 4585 (U.S., June 6,
1977), or valorous military service may not be shown, since these
factors are not directly linked to the crime for which the defend-
ant has been convicted. The statute forecloses consideration
of the whole character of the defendant as a human being, and a
"particularized consideration of relevant aspects of the character
and record of each convicted defendant before the imposition upon
14/ ‘The Blazak decision is explicated in this way in State v.
Ceja, supra, slip op. at 8, and State v. Knapp, Ariz. Sup. Ct. No.
3106 (Mar. 9, 1977) slip op. at 24,
him of a sentence of death,” Woodson v. North Carolina, 428 U.S.
280, 303 (1976) (plurality opinion), is therefore impossible. In
State v. Ceja, supra, for example, the Arizona Supreme Court ruled
he had no history of violence, had had great difficulty in obtainin
employment, and was "depressed or even traumatized by his wife's
miscarriage", slip op. at 3, three months before the crime. This
evidence was dismissed because it did not relate to "the day of
the murders", ibid.
The Arizona statute simply does not allow "for consideration
of whatever mitigating circumstances . .. [are] relevant either
to the particular offender or the particular offense," Harry
Roberts v. Louisiana, 45 U.S.L.W. 4584, 4585 (U.S., June 6, 1977)
(emphasis added). See also Jurek v. Texas, 428 U.S. 262, 271 (1976
Because of its myopic consideration of mitigating circumstances,
the Arizona statute "treats all persons convicted of a designated
offense not as uniquely individual human beings, but as members of
a faceless, undifferentiated mass," Woodson v. North Carolina,
supra, 428 U.S. at 304.
=-27=
that a defendant has failed to establish duress despite evidence thalt
C. The Imposition of the Burden of Proving
Mitigating Circumstances Upon the Capital
Defendant.
Certiorari should also be granted to consider whether the
Eighth and Fourteenth Amendments permit a State to cast upon a
capital defendant the — proof of specified statutorily
enumerated "mitigating circumstances" in order to save his life.
In the immediately preceding subpart, we have noted that
Arizona law requires the imposition of the death penalty in any
case of first degree murder where one or more of six aggravating
circumstances is (or are) found, unless one or more of four miti-
gating circumstances is (or are) found and is (or are) found to
outweigh the aggravating circumstances. The governing statute,
Ariz. Rev. Stat. Ann. §13-454(B), explicitly provides that
"[t]he burden of establishing the existence cf the [mitigating]
circumstances set forth in subsection F is on the defendant";
and the Arizona Supreme Court has made it plain that this burden
is the full burden of persuasion. E.g., State v. Ceja, supra,
slip op. at 3.
The federal constitutional question raised by this allocatio
of the burden of proof takes shape within the framework of the
particular Arizona death-sentencing process as a whole. Unlike
many other States, Arizona does not have an open-ended roster of
“mitigating circumstances" as to which convenience might dictate
that the burden of going forward (or even perhaps the burden of
persuasion) should be cast upon a defendant who is on trial for
his life. Arizona has a specific, statutorily-defined, narrow
=28-
~~
and exclusive catalogue of "mitigating circumstances." There
are only four of them. The prosecution is therefore put on
notice what they are; and, because each of them is closely
akin to an issue that is likely to arise at the guilt phase
of the trial if the facts of any case call a mitigating cir-
cumstance into question (insanity or diminished capacity, duress,
vicarious liability, and malice), the prosecution will ordinarily
have investigated the facts and be prepared to offer proof on
each of them. These are not broad issues of character, compara-
tive culpability, penology or judgment unlike those that are the
grist of the mill of the criminal process. They are issues of
fact that involve precisely the same fact-finding processes and
risks of error as the matters of fact that the traditions of
Anglo-American law have long found it appropriate to require
the prosecution to prove beyond a reasonable doubt. The
only functional distinction is this: in a first degree murder
case where one aggravating circumstance has been found, the
determination of the existence of a mitigating circumstance
spells the difference between a mandatory death sentence and
chance for life.
The question, then, is whether such determinations, made
for such a purpose in a criminal trial, can escape the command
of the Constitution that the State which establishes any dis-
tinction of preponderant importance in the assessment of
criminal culpability must “require the prosecution to establish
beyond a reasonable doubt the fact[s] upon which it turns."
-29-
Mullaney v. Wilbur, 421 U.S. 684, 698 (1975). That question
surely deserves this Court's consideration in the light of its
previous relevant pronouncements. "Because of [the] ...
qualitative difference [between a sentence of death and one of
life imprisonment], there is a corresponding difference in the ne
for reliability in the determination that death is the appropriate
punishment in a specific case." Woodson v. North Carolina,
supra, 428 U.S. at 305 (plurality opinion). “The reasonable-
doubt standard . . . is a prime instrument for reducing the
risk of convictions resting on factual error," In Re Winship,
397 U S. 358, 363 (1970); and is necessary to reduce the same
risk in the infliction of the extreme penalty of death, as to
which any avoidable error would be intolerable. See Gardner
v. Florida, 51 L.Ed.2d 393 (1977). “There is always in litiga-
tion a margin of error, representing error in factfinding,
which both parties must take into account. Where one party
has at stake an interest of transcending value ... this
margin of error is reduced as to him by the process of placing
on the other party the burden [of proof] .. . beyond a reason-
able doubt." Speiser v. Randall, 357 U.S. 513, 525-526 (1958). I
can hardly be denied that the capital defendant has at stake
an interest of the most transcending value known to humankind.
Nevertheless, Arizona has decreed that he must bear the burden
of proof of the facts on which his life depends, and must die
even though it is as likely as not that those facts are true and
that they warrant his salvation even under the narrow calculus of
the Arizona statute.
-30-
t
Dp. The Arizona Practice Conferring Upon The Prosecuting
Attorney An Uncontrolled And Arbitrary Discretion
To Inflict Or Avert The Death Penalty In Any Case
Of "Aggravating Circumstances",
In Woodson and gtanislaus Roberts, this Court recognized that
unduly rigid death-sentencing schemes cannot practicably be en-
forced according to their letter, and that the discretion which
they purport to deny to human sentencing agencies will inevitably
be exercised extralegally and therefore all the more arbitrarily.
So it is that "(i]nstead of rationalizing the sentencing process,
a mandatory scheme may well exacerbate the problem identified in
Furman [v. Georgia, 408 U.S. 238 (1972)] . . . ," Woodson v. North
Carolina, supra, 428 U.S. at 303 (plurality opinion) by compell-
ing resort to "the arbitrary exercise of ... de facto sentenc-
ing discretion" as the only outlet from the unacceptable rigors
of a legislative prescription that demands death in cases where
the death penalty is factually inappropriate, Stanislaus Roberts v.
Louisiana, supra, 428 U.S. at 335 (plurality opinion).
We have demonstrated in subpart (II) (B) supra that the
Arizona statute is indeed unduly rigid because it excludes from
consideratio- in the sentencing process any mitigating character-
istics of the offender excepting four exceedingly narrow circum-
stances that relate immediately to the moment and the nature of
his offense. It is therefore unsurprising that an extralegal
process has developed to take account of all of the other factors
in a case which may make the death penalty unwarranted although
legally required. What is surprising is that the Arizona Supreme
aSle
has explicitly sanctioned one aspect of this process which makes
a visible laughingstock of the supposed “basic requirement [of
Furman that] .. . arbitrury and wanton jury discretion [be re-
placed] with objective standards to guide, regularize, and make
rationally reviewable the process for imposing a sentence of
death," Woodson v. North Carolina, supra, 428 U.S. at 303
(plurality opinion).
In State v. Murphy, 113 Ariz. 416, 555 P.2d 1110 (1976),
the defendant pleaded guilty to a charge of first degree murder
in perpetration of a robbery, am the prosecutor (apparently pur-
suant to plea negotiations) declined to present any evidence
of aggravating circumstances at the aggravation-mitigation hearing.
Seeing that there were indeed statutory aggravating circumstances
in the case, the trial judge ordered the prosecutor to introduce
evidence of them. This the prosecutor did; and the trial judge
-- strictly following the letter of the law (see pp. -
supra) -- “concluded that one aggravating circumstance . . . had
been proved and no mitigating circumstances existed; therefore
he sentenced [Murphy] .. . to death." 555p, 2d at 1111. The
Arizona Supreme Court did not find that the statutory aggravat-
ing circumstance was factually unsupported. It did not find
any mitigating circumstances. It did not dispute what it
had elsewhere repeatedly held: that in any case where one
aggravating circumstance and no mitigating circumstance is found,
the death penalty must be imposed. State v. Richmond, supra;
< —_—
Ul
State v. Blazak, supra; State v. Ceja, supra. However, it vacatec
Murphy's death sentence and "corrected" it to a sentence of life
imprisonment, 555 P.2d at 1112, because:
"“[t]he decision to offer evidence of
aggravation or not to offer such evidence
is the responsibility of the prosecutor.
The court has no authority to interfere
with the discretion of the prosecutor in
this area ....
“We hold that the trial court was in
error in directing the prosecutor to put on
evidence of aggravating circumstances. The
evidence offered as to the aggravating circum-
stances should not have been admitted. Without
such evidence there was no proof of any aggravating
circumstances, and the sentence of death was not
proper." Ibid.
The point of Murphy could not be more blatant. The prose-
cutor's decision, which the Arizona Supreme Court held to be
uncontrollable, was the decision of life or death for Murphy.
Under Arizona "law," if the prosecutor had chosen to present
evidence of aggravating circumstances (which in fact existed),
the death penalty was not merely possible; it was required. If
the prosecutor chose not to present the available evidence of
aggravating circumstances, the death penalty was forbidden.
Thus, the unbridled discretion which Furman “orbade to both
| 15 / ee
juries and judges is now reposed by Arizona law in the prosecut-
ing attorney.
15/ Furman, of course, prohibits uncontrolled discretionary
death-sentencing by judges as well as juries. See, e.g.,
Janovic v. Eyman, 408 U.S. 934 (1972) (per curiam); Davis v.
Connecticut, 408 U.S. 935 (1972) (per curiam); Aivarez v. Nebraska,
408 U.S. 937 (1972) (per curiam); Mortord v. Hocker, 408 U.S.
934 (1972) (per curiam); Fesmire v. Oklahoma, 408 U.S. 935 (1972)
(per curiam) ;Phelan v. Brierly,408 U.S. 939 (1972) (per curiam).
We recognize that in its Gregg, Proffitt and Jurek
decisions, this Court held that Furman was not offended by
“[t]he existence of . . . discretionary stages" anterior and
posterior to the sentencing stage of a capital trial -- stages
such as charging, plea bafgaining, the degree-of-guilt deter-
mination, and executive clemency. Gregg v. Georgia, supra,
428 U.S. at 199 (plurality opinion). "Furman, in contrast,
dealt with the decision to impose the death sentence on a
specific individual who had been convicted of a capital offense."
Ibid. So does Murphy; and Murphy deals with nothing else.
The only difference between Arizona practice under Murphy
and Georgia practice before Furman is that Arizona has deposited |
an identically unbridled life-or-death sentencing discretion,
with at least as great a "risk of wholly arbitrary and capricious
action," Gregg v. Georgia, supra, 428 U.S. at 189 (plurality
opinion), in "a state officer outside the judicial system,"
Lane v. Brown, 372 U.S. 477, 485 (1963). That difference
would hardly appear to be a saving grace under any rational
constitutional dialectic, inasmuch as prosecutors are not
g@nerally supposed "to maintain the requisite neutrality” to
make them better repositories of arbitrary power than courts.
Coolidge v. New Hampshire, 403 U.S. 443, 450 (1971). See, e.g.,
Baggett v. Bullitt, 377 U.S. 360, 373 (1964); Mancusi v. DeForte,
392 U.S. 364, 371-372 (1968); Shadwick v. City of Tampa, 407 U.S.
345, 350-351 (1972). Certiorari should accordingly be granted
to decide whether Gregg and its companion cases permit a death-
sentencing system to flout Furman in the way that Arizona's
all-but-avowedly does. ~—
=Sée
CONCLUSION
Petitioner prays that the petition for a writ of
certiorari be granted.
Respectfully submitted,
JACK GREENBERG
JAMES M,. NABRIT, III
DAVID E,. KENDALL
JOEL BERGER
10 Columbus Circle
New York, New York 10019
ANTHONY G. AMSTERDAM
Stanford University Law School
Stanford, California 94305
ATTORNEYS FOR PETITIONER
ee
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ae 1224 Ariz. 561 PACIFIC REPORTER, 2d SERIES
ae ee e
= * ia ote - 3. Criminal Law =520(5)
v4 “s STATE of Arizona, Appellee, Promise by presecutor that charges
é — ° .
ae ¢ e against defendant in another state would be
a 37 4 dropped, having been solicited by defendant
9 Paul William JORDAN, Appellant. : oor ye.
* + upd eos himself, did not operate to render defend-
PTS? No. 3156. ant’s confession invoiuntary. ia
ae Supreme Court of Arizona, 4. Criminai Law @1158(4)
gg En Bane. Determinztion of admissibility of a
ee TSP ° » tof =
ae Dec. 30, 1976. confession by trial court will not he upset
oe SoG on appealin absence of a clear and manifest
Ca a et a Le ee ee
oe ce » +» ow. 4
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Sa ae ave 328
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23 @
r
Defendant was convicted in the Suneri-
or Court, Maricopa County, Cause No.
84940, Harold D. Martin, J., of first-degree
murder, and he appealed. The Supreme
Court, Hays, J., held that statement which
was made by a police officer during ques-
tioning and prior to defendant's confession
and which consisted of an opinion that de-
fencent would probably get a life, as op-
posed to a death, sentence did not consti-
tute a promise of leniency in circumstances,
but even if it was perceived as such by
defendant, where it was not relied upon by
defendant in his decision to confess, state-
ment was not a basis for concluding that
defendant's confession was involuntary due
to statement of police officer; further,
death penalty imposed upon defendant was
not improper under applicable statute nor
was it constitutionaliy infirm.
Affirmed.
1. Criminal Law e=1130(2)
Although it was not raised in defend-
ant’s brief on appeal from conviction of
first-degree murder, it was incumbent upon
Supreme court, aside from contention that
defendant's confessien resulted from a
promise that charges arzinst him in anoth-
er stxte would be dropped, to consider in
addition wnether Gefendant’s confession re-
sulted from what might be construed as a
promise of leniency. A.R.S. § 13-1715{B].
2. Criminal Law <=517.1(1)
Admissibility of a confession is proper
only when it is freely and voluntarily given
error.
5. Criminal Law @520(2)
Statement which was made by a police
officer during questioning and prior to de-
fendant’s confession and which consisted of
2n opinion that defendant would probably
get a life, as opposed to a death, sentence
did not constitute 2 promise of leniency in
circumstances, but even if it was perceived
as such by defendant, where it was not
relied upon by defendant in his decision to
confess, statement was not a basis for con-
cluding that defendant's eoniession wee in-
voluntary due ty statement of police ofzicer.
6. Criminal Law c=1206(3)
Statute outlining procedures to be ‘cl-
lowed in imposing the death penalty is ap-
plicable to a conviction for which, under
law of Arizona, a maximum sentence of life
imprisonment may imposed. A.R.S.
§ 13-454.
7. Homicide =254
Imposition of death penalty on convic-
tion of first-degree murder was not improp-
er under statutes in view of defendant's
four prior cunvictions in other states for
felonies which were punishable by a sen-
tence of life imprisonment or death under
law of Arizona and which involved use or
threat oF vivience on xnoiher perso.
A.RS. §§ 13-454[E, Fj, [E}i1, 2}, 13-62,
13-1644.
8. Criminal Law c=1213
Death penalty statute in Arizona does
not allow death sentence to be imposed in
an arbitrary and capricious manner and,
and is not the product of either physical or — hence, is not constitutionally infirm. AILS.
psychological coercion.
la
§ 13-454; U.S.C.A.Const. Amends. 8, 14.
_——
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J ce E. Babbitt A . Cite as 56 JORDAN %3 e ts, . *:
. Schafer, | , Atty. Gen. b 7 1 P.2d 1224 : Sp PRS
Atty , HIT, and F . by William Ariz. Aas: ue
tys. Gen., P rank T. Galati It ap 1225 es 2.
De f . Phoenix, for ap elle ati, Asst. of th pears from the record eS ee Se
“ rickson, K pone. e appellant's . that the basi het < 263 :
: H . ’ emper & rate ° claim co SIs ite = ee ae
amilton k Henze promises roncerns tw ah pith hos 9
: emper, Phoeni by James ‘0 the made by the two sepa-
a . nix, for a appellant's . authorities pri ) jild sa"
Ds ; ppellant. events which gi confession. T prior TER ig it
$ HAYS, Justi ich gives ri 4 he course pee nls a |
Thi ustice. as follows. ise to this contenti of = Figs ss ts
is is ana ra} % ion is 2. “Se ate
{ ppeal by " n Ma | : eee
rom a convictio y Paul William Jorda as, th y 1, 1974, while i aa 2,
degree n after ju . ordan e appellant . n custody in 7 : Eon ir’
tion pursu y death. W wt oo empe incid Oe
suant to A ; e have ju isdi with hi : 7 er, howev ? ent. Ohba! jo." “
art. riz.Cons risdic- is gir : er, af Se Bst¢k: ¢ * 2
terpenes ees Wecmiet iced edd e
. R 21, 13- sta at : ’ oe SA ot ms
rule 31.2(b). Rules of Criminal! P 13-1711; ene to them ld would make a be sey ig
appellant w ing in Tex arges he w Ry S tS
der of the ° = charged with charges _ were dro red as then 45"+: Fo Ie Je ~
Tempe A proprietor of a pve h the mur- oa d pending against - and if the Bs: Sa ‘Ae
pg pgp aay secben tate the “would pg pag Progen Pacey este 3 oS
. that : ad receiv - ¥ 74. the e office A? es eo
‘ saan aaka had or a cose the poe Ma no authorit; ; A ee. gt £5.
j cae grams o do with er to conta sought, b wee
pellant after i ed to intervi the charge of et the Texas ut they PE es
Withi r informing hi iew the a of the case conce Xas prosecutor ‘$3 eo eee
pe a matter of “a 2 me Gat fact pay ges. The Scoatie ing the som Seis a
ifessed to th urs, the anpeil: E the co " estigators h g Mt Ls Sg: shee Se
A e murder. npeilant Tandy, unty district thereupon oe Pe c,
ppeliant rai dy, and arrange attorney, a Pee oe FS
1. -W ises three iss that day. ged 2 meeting rm Mr. | rea ke
. ‘Was appeilant' ues on appeal: g for later Fey eeaP > ae
, the ; of law al right the Weath ing for Mr. Tand nee eas fr:
Setiend eo genet ty ror Police nan appear at eee
: ited States Co ment to the offi nsued betw ent, a co eaten
=" the i nstituti o the ® ficers ween the - ; ae eee
* ° introduction of hi ton, denied by. the in and Jordan in whi h Tempe police os SS *: ae at
‘ evidence? t= confession } » investigators w ich Jordan ask ee tin ss =
- 2 Di ce: ession in death rs whether Ari n asked Syn? nay?
4 po the trial onest . y to the peg One of the tae had the ok oe *¢
ms 3 Ww th penalty? rr in imposing the the last ay rat they could ei replied ee . 4 P as
e ae the appellant denied hi penalty in re anyone received vena gree Cae
y er the Eighth n his rights opinion duri zona. They later e death soi se
: Amendme and Fou ti ring the co ventured a Beret sate
> Consti nts to the Uni rteenth that the urse of the 8 euler "ass
1 nstitution United St a pri appellant conversa- oe i te
to be tates prison probal
iad and U ; free fro son sentence viy would ge > es C55
= : nusual Punish m Crue) Penalty: Sow rather than the get ie hee
ey cosauieink dada when he “me that wever, he was als death ES ea
8c § 13-454? death under A > and that a was only the “a told at that E Sete
= od .. u © . ’ Pager . ss ot
mm . the judge tg his mvt opinion 4. 8 ai o = we
volunteri jury. Jordan ad } was up to Ros: athe
A I ant tariness hearing Uns admitted at the rads ae52
. — first argues “ was never made om a specific guer- Le = i. e
[. pe mtg rei mela A na ee Yoel gsosfnie'?
fidence. Hii was inadmissi- ¢) short whi fe Bere ss ees
terms 18 argum . 2. misSi- d , e ile later 7 ¥ <3 AT a>
5 when — aia ad is couched in oS and he A ge Tan- a *
¢ fendant sd by promises a confession co y Caldwell met i appellant and 5 AXE 3
by poli made to nelusion in priva Bett r
t. ice officers. a de- was willi of the mectin te. At the esti. * *s
gous — agai illing to make a g the appellant % tscgee's =a
+ they oe” > gain advised of hi statement H aE bohce 2 a
CSET, PERS Sow chai s + is Miranda rights and he peerrsacss
CetoS Suen 2 ERR ev eee 2a ghts and he g: in or
Saks Se Oe Ae os we Ros ad ~~ = Pw Shun.
Seledee Wen es ee eS - 7S en hs > %. Ds Tl ets
paises SE AD - specs ~~ Aresl? gs ay ' ra cia) “3 oe a
Sake oi as " ua pad e ¢ <vaNe? 54 r — , : he eihiiened
Sa RS re ae hae fe ae
PER Pan ae ee Ae: 7
ae Saas:
Oe Aaa RPE Ea | Raat Rad Peeks We TOD eta kts rik Or Se RON Sa mata SR A al a oh Soe ree en eee Cee
e o / — “i - ae Le nis ee = or ro o. elt wer! = eae 8 2 o on . Tt Syrien Ae.” fe. Ae? 58 22 | we
et “te ee. oot a she se ape PL ins 5 a Fae “Se Ss a te oa 9 wees ete poe 84-78" ere ry ig
eat PoE eg pane de ee a a) Te tS peg tines eere sft Si OK lt > elnawane’
» “® eS a i a Aarts me agate ta . i yp » 4 oe 5 5 oy > “ao 7 wise “Fe, i ex . “0 on Re o-é ae . . -
: — e oa 2S =? ‘ ; ~ wi a ier? Sb... * iv: : Pa 4 2 . rey 1 og . gure: | eS PES ‘ -" Cae
F cs we. val = Tee 2S Pats ae Cae - Pe oo 2 “se rE ? tees colt * oe “> ive : “teen -°2 - uA a ™s wd
ty ” * 5 * a . sort ¢ . ye rg oa Gece : oe PEe% * 2 os é Shige see ~ pt Soo 7% ety mi ot : 84 * Pat - <4 “a Ag ee
seat aa out ee ae Lett. aa Ninnia stoie cts nlriee fost. sn 6 0 editadet =" sash bcdicomaanbibenladiiekendiin cern oupanth chiral iwe*
ies sige ‘ :
at be ie Ss Seine —*
eo, 1225 Ariz. 561 PACIFIC REPORTER, 2d SERIES
; oe 2 *s - |
tng ars ea thereupon confessed to the crime for which Addressing ourselves first to the promise 9.
Set ioe b: he was here charged. At the meeting the _ by the prosecutor, Tandy, that Jordan's and F
oe: seme f prosecutor, Tandy, had agreed to drop the Nancy Caldwell’s charges wou!d be dropped t
ee ST eeaye | Texes charges against both Ms. Caldwell and that Cakiwell would be released if he {
aia iia and Jordan and to release Nancy Caldwell gave a statement, we note that it was the hoi
plaeart if the appellant made his statement to the appellant himself who initiated the “bar- seli
Sica cE Arizona authorities. gaining.” When first questioned, the ap- off.
ri Ros hed The trial court held a hearing on the Pellant knew nothing. After talking with we’
Sea Ss voluntariness of the confession and found it C#!dweil, however, the appellant told the lars’
eek ; to be voluntary. A jury trial was thereaft- off icers that he would give a statement if the
bee ling er held and the confession, and testimony €Ft#!n concitions were met. The officers
se te aes i concerning ihe circumstances surrounding cooperated in his desires but never made
we. . a S54 . . ’
enue: in evidence. to talk.
“ates . We find the case of Taylor v. Cummon-
Pe Po, [ } - : o
ee {1] The appellant contends that his con- 144, Ky 461 S.W.2d 920 (1970), to be
Soot <8 cee ts fession was the result of the promise that. + : .
ae aes : . instructive on this particular matter. In
adel, Mey his and Nancy Caldwell’s charges in Texas, oP
wo ata: * Taylor, the facts -were very similar to those
35 HG would be dropped. Although it was not , -
Sid herein. The two defendants, charged with
vee raised in the appellant's brief, it is certainly : P a:
i Tee crimes in both Indiana and Kentucky, of-
yy incumbent on us to consider in addition, r a “
: ~~ a 3 ” ra fered to make confessions of the Kentucky
rs pursuant to A.R.S. § 13-1715(B) and State ee : . " :
we : aa 00 110%: crimes if the charges against them in Indi- WV.
“. v. James, 110 Ariz. 334, 519 P.2d 33 (1974), “evel vat ‘
or * ana would be dismissed. The authcritics in
whether ihe confession was the product of . “—
: agreed and the defendants signed their con- me
what may be construed as a promise of . . P
: : ; * a fessions. At trial they argued that their ut?
leniency, referring to the officer’s state+ peter yr a :
; a “ate as , confessions, haviniz been induced br a
ment that le would probably cet life and ir iis ae SR
not the deat penaity promise, Were Invoiunsry. Tne court disa- by
ee greed, however, finding that, because the th
{2] The admissibility of a confession is proposal for the “deal” came from the de- “
proper only when it was freely and volun- fendant, the promise did not interfere with w
tarily given and was not the product of _ the appellants’ exercise of a free volition in re
y @ Pp ppe
either physical or psychological coercion. giving the confession. The court then justi- th
State v. Edwards, 111 Ariz. 357, 529 P.2d fied thetr~tonciusion. s
RES RA 1174 (1974). “In Miranda v. Arizona, 284 US. 436. ws
ewe oe Meee AP rt - J , " 7 -
; 1 “While ‘{nJo single litmus-paper test the Supreme Court said (at payre 478, 86 ir
vee for constitutionally impermissible interro- S.Ct. 1602, at page 1630, 16 L.Ed.2d 694): th
SASS os gation has been evolved’, the test remains se Any statement given free- tl.
dive, 22? the test of voluntariness. Culombe v. ly ond voluntarily without any compel- i
- gh 4 Cunn., 367 U.S. [568,] at 601, $1 S.Ct. ling influences is, of course, admissible ws
aes er {1860,] at 1878 [6 L.Ed.2d 1037]. If the in evidence. r
wy rz Be confession is the result of a free choice of “We think it is obvious that the ‘com- s
Ber ae the individual, then it may be used as peiling influences’ referred to are ones
o75 yi dorass evidence against him, but if his will has exerted by the public authorities in such *
ee Si been overborne ard his capacity for deci- a Wey 2s would be celevisted to fee:
siun diminished, tnen the vse of his evn- ihe accused's exercise oF a free and vol- a
i fession is violative of the principles of untary choice of whether or not to con- bn
os due process.” 11] Ariz. at 361, 529 P.2d fess. Here the promise was solicited by .
‘2 at 1178. the accused, freely and voluntarily, so
as fb We find that the appellant here did make they cannot be heard to say that in ac- he
* : ite his confession freely and voluntarily and cepting the promise they were the victims =
a without coercion or under duress. of compelling influences.” 461 S.W2d at
« 3a
~ we “ew ee Bese: ED —~242 Leos tN
.* "3 ae ws r — a eae ae Lod ay etches om rT, = , vw ¥ or ele wieee wae . -
Bo Sines ve So alge Mh et Ste, RS gE wet ae LEP Eee ott ah ge Pe Mee ae Sa tet 8 FSS Gh ade ise
Pathe Te ae ete etal nies ae oe both nc omabdiie com amendsiane Jc cow's Kenan tnadaecee ate caine U0 umanis camaieesheansanntiaa
oF TNT ODER TTT RE EERE EGET HED ORT sa cee a
eet Shy St et tet oP rae aa Seapine Ss Sap Se Srede tel ie a iota te Pret
Ce at Pegs Ss hes ls ee Oe RL eh Seed OE BARR Reh wre Seat ager 8 ee ee gS ra tag es
¢ * J “Sy wat, ‘ ° om 9s hgh - - =? - ‘Ss Aah os Berg Qo wae mas ‘ oe, ams 6 8 wien sas tie
of re Vile See eye | AY te vs
" . “amie .. Le
STATE v. JORDAN Ariz. 1227 x i: ere
Cite as 561 P.2d 1224 Bare*. sienna
° 922. Accord, Hunter v. Swenson, 372 unclear, it appears that it was made in ae eee
4 F.Supp. 257 (W.D.Mo.1974), aff'd, 504 response to the appellant's questioning the ae Peet's
j F.2d 1104 (8th Cir. 1974). officers about possible sentences he would ae iN teen
. [3] We agree with the analysis and receive in Arizona. Moreover, the officer ¥ OF Pada,
e holding of Taylor. Since the appellant him- specifically told the appellant that this was pe Prats
" self initiated the “deal” here involved: by merely an opinion and that the matter was ye wai? is Be
offering to confess if the Texas charges !timatcly up to the judge and jury. F: Pre ead
were dropped, we cannot see how the appel- More importantly, the statement was oe ae
lant could have been induced to confess by made during a conversation between the Rat “f
the authorities’ agreement to his terms. appeilant and the investigators while they — pee oy ng Sy
“The record reveals al] the manifest Were wailing for the prosecutor, Mr. Tandy, r y
indicia of comprehension of his rights, ‘arrive. It was prior to that time that the f:, =
it waiver thereof, and a continuing desire to #PPellant had freely decided that if he could eit Sd
make a statement. We do not have to et his and his girlfriend’s charges in Texas sete 5
n- : plumb the-depths of the defendant's mind dropped and get her released that he would a Tae oe
“ to determine ab initio the issue of volun- ™eke his confession. The decision and of- fx tp legs
“ tariness. The police, as reasonable men, fer hed already been made by Jordan. ie L en is ;
om a may rely on consistent objective manifes- the person making the confession claims to * Mas Sees —
h tations of consent and waiver by a sus- have been coerced, the fundamental issue is Tek es
ss pect.” State v. Sample, 107 Ariz. 407, his state of mind. Mirands v. Arizona, su- 3 Piawar
cy 408, 489 P.2d 44, 45 (1971). " pra.” State v. Edwards, supra, 111 Ariz. at is : pe se ~
li- . We find that the promise not to prosecute oi, = ran at 1506. At this particular f.. 4 - a
cs in Texas, having been solicited by the ap- oe “ te agpeenn San eo Poe
n- pellant, did not render his confession invol- — eeties 7 i ee nn = e. Re
re untary an Ue partics were merely waiting to Sees a
" ‘ r fas obtain the Texas authorities’ approval, the re
A second promise arguably was made appellant’s state of mind was such that his Pe etyee ats
“a wv the police a the questioning prior to gonfession was imminent provided the Tex-' f° ie
° the confession when one of the officers 45 prosecutor avreed peer 44 os
. as , . 7.5 Se
e- venturec the opinion that the appellant , We find th — i ae EY
Ae would probaily get a life sentence in Arizo- [5] We find that the officers mane Teer
in na rather than the death penalty. Al- ments did not constitute a promise of le- Bis 8 ee
ti- though the appellant admitted at the volun- ®"CY and that, in the alternative, even Rae na ee
tariness hearing that no specific guarantees were it perceived oo by the appellant z oe
33, were made, he did insist in his testimony at to be such s promise of leniency, it was not | ee eS
86 trial that “he was under the impression” — lied upon by the appellant “04 his We ete
4): ! . ; Rip decision to confess. Based on this finding Sct te eehe
Pa that he was promised, in so many words, : . : ; ESS
= ; aan tee teal ont a: On aaateen onl anes, and on our prior finding concerning the Bre Soe
ai ne Would get 2 wie Sentence anu Lnere sesnien to deem chasnes lo Tones, and on 0 Ste on Oe
el- s fore be eligible for parole in seven to seven — f th P tg od ; ‘hold h Rie A po
ble - and one-half years. He also claimed that "’'®™ OF Me emlire record, we ese's eee Sent te
his alleged “promics” was ene of the ree- the trial court’s determination that appel- $9 ey” re
= , one, Gan Ge pone cf ; iant’s confession was freely and voiuntarily PR te
saat e given and without coercion, was correct. a. Sore
mn {4} The trial court's determination of We further hold, based on our review of oS ite
eet the admissibility of a confession wiil not be the entire record, that the’verdict is clearly Z,,°. -'S eyes
af. upset on appeal absent “clear and manifest” supported by the evidence. aro
wad error. State v. Edwards, supra. The court , Se OS: fe
a a belov: found the confession te he freely and I] ee Mat Oe
ws ; ss voluntarily viven end therefore admissible. Appeilant next questions both the propri- aes Bs Sek fe
ac. F The statement concerning the sentence ety of the imposition of the death penalty zx oye
‘ms * he might receive was couched in terms of a under A.R.S. § 13-454 and the constitution- i, 5 a %
ot mere possibility. Although the record is ality of the statute itself. We will first ; Seed Saris
gd pee.
aT 5 Pontes
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eye
.
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1228 Ariz.
consider his argument concerning the impo-
sition ef the death penalty under the proce-
dures outlined in § 13-454. A hearing on
aggravation and mitigation was held under
A.RS. § 13-454. The appellee submitted
allegations of four prior convictions of ap-
pellant for felonies committed in the state
of ‘Gexas. On cross-examination the appel-
lant admitted to the prior convictions in
open court and record: thereof were at-
tached as addenda to the original indict-
ment in this matter. Appellant presented
no evidence in mitigation at the hearing.
The trial court found that as to aggravation
there were one or more aggravating cir-
cumstances under subsection E of A.R.S.
§ 13-454, and no mitigating circumstances
sufficiently substantial to call for leniency
under subsection F of A.R.S. § 13-454. The
court therefore ordered that appeilant be
sentenced to death.
[6,7] Appellant argues that the four
prior Texas convictions do not constitute
aggravating circumstances within the pro-
visions of A.R.S. § 13-454(E}(1) and (2).
He first argues that none of the four crimes
is punishal.Je by a senience of life imprisun-
ment or death under Arizona law. The
theoretical basis for his argument rests
upon the premise that A.RS. § 13-643
makes it impossible to impose a life sen-
tence on 2 defendant in Arizona for rob-
bery. Appellant was convicted of three
separate robberies in Texas. A.R.S. § 13-
643 specifies a minimum punishment with-
out specifying a maximum punishment,
with one exception. A.R.S. § 13-1644
states that a maximum punishment of life
imprisonment is authorized where no limit
to the duration of punishment is declared.
A.RS. § 13-643 does net prohibit the impo-
sition of a maximum life sentence. The
indeterminate sentence procedures were
created by the legislature to make the pua-
ishment “fii the offemler rather than tie
criine, _" Ard vy. State, 102 Ariz.
921, 427 P.2d 913 (1967). The parole board
is thus given the function of determining
the actual time to be served within the
framework of the sentence. See State v.
. e a -*% ae e
oe
3 . eo, eee owe .as
ah wee en we mt ee”
done alten.
561 PACIFIC REPORTER, 2d SERIES
Hays, 109 Ariz. 123, 506 P.2d 254 (1975).
We construe A.R.S. § 13-454(E)(1) to apply
to a conviction for which, under Arizona
law, a maximum sentence of life imprison-
ment may be imposed.
Appellant next argues that the record
does not support the finding under A.R.S.
§ 13-454(E)(2) that he was convicted cf a
felony in the United States, involving the
use or threat of violence on another person.
The trial court, in its findings, concluded
that appellant was previous!y convicted of
felonies in the United States involving the
use or threat of violence on another person.
The record clearly supports such a finding
by the tria! court that appellant had been
convicted of three felonies in Texas invoiv-
ing the use or threat of violence on another
person. The crime of robbery as defined
under Texas law involves either actual bodi-
ly injury to the victim, or the placing of
another in fear of imminent bodily injury cr
death. Section 29.92, Vernon’s Texas Codes
Annotated. The verdict of guilt must
therefore have necesszrily included a specif-
ic finding that the eppellant used or threat-
ened violence on another and, accordingly,
we hold that eppeliant was properly sen-
tenced to death under A.KS. § 18-454.
Ill
The appellant’s final contention is that he
was denied his rights under the Eighth and
Fourteenth Amendments’ proscription of
crue! and unusual punishment relying on
Furman v. Georgia, 408 U.S. 258, 92 S.Ct.
2726, 33 L.Ed.2d 346 (1972). In Furman,
the constitutional defect of the Georjia
death penalty statutes was found to be that
it allowed the jury to impose the death
penalty in an arbitrary and capricious man-
ner. The appellant argues that the Arizona
death penalty statute, A.R.S. § 13-454, is
similarly unconstitutional in that it allows a
juage Ww arbitrarily impose the sentence of
dexth. We cannot agree.
This court, in State v. Richmond, Ariz.,
560 P.2d 41 (filed December 20, 1970), has
upheld the constitutionality of the Arizona
death penalty statutes in light of the most
_ . £m “ ot *@ »
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a °. eAd A ‘ - oe deme se 6 “o.» *
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a ewe + See Bt be RA ne ete eterna ee euettenm nl dh aterm. . om ~enliantbaoe ad
PY ME a UE eee
ee Se ace te eh et a eG es » Bs fer Aya ne Nee eee gents Sie te
bd ees Sten eee ann i ee Seaton nah eh etter as Serres eS wees
. _ 7 : eae: “: sages) 490 6 2, - 4 TAS ‘ oe 7.6 ° “
peenin an, pee re o °
7 pare
STATE v. SCHAEFER Ariz. 1229 | pe ar
: Cite as S61 P.2d 1229 | eee a
at recent United States Supreme Court pro- fires 8,
nouncements of Crezre v. Geor;riz, 423 US. STATS of Arizona, Appellee, } <a bez’
- 153, 96 S.Ct. 2909, 49 L.E£d.2d 859 (1976), . : on
? and its companion cases. The court in Rich- - , oL2-. .
mond addressed the issue now before usand Robert Eugene SCHAEFER, Appellant. poe
found that Arizona's statutory system for 2 No. 3634. $0 mk
imposing the death sentence, based on ag- x: t =
a gravating and mitigating circumstances, in- Supreme Court of Arizona, et * &
r ‘sures that the trial judge is given “ade- In Banc. Fae Het
1 quate information and guidance” that . Fi A “
would meet the concerns expressed in Fur- Mareh 2, 1977. Me ay
man. Since the judge's discretion in sen- re ~ 3 sie
° ° as M4. 2" *
tencing is confined to narrow limits and : : : aaa ~
: because he is given purposeful direction and Defendant was convicted in the Superi- be 4
i assistance under the statute, there is very OF Vourt, Maricopa County, Marilyn A. Rid- ee We ot os
z* little likelihood that the death penalty wil] del, J. of exhibiting a deadly weapon other Cine B85 S oie,
be imposed freakishly or arbitrarily. More- th#n in self-defense, and he appealed. The sie it bait
; over, in Arizona, as.was the case in Georgia Supreme Court, Struchmeyer, V. C. J, held a
¥ (see Gregg v. Georgi2, supra), “the further that offense with which defendant was Sees ee.
; safeguard of meaningful appellate review is charged, assault with a deadly weapon | ee a
availabie to ensure thet death sentences are 9Uld be carried out without an exhibition a EE
not imposed capricious!y or in a freakish Of weapon and, consequently crime of ex- Be tS SSI
manner.” Gregg v. Georgia, supra, 428 _hibiting a deadly weapon other than in self- Ot oe aaa ey
U.S. at 195, 96 S.Ct. at 2935, 49 L.Ed.2d at defense was not an included offense within ae 4M Fe
‘ 887. charge and was not a basis on which to e Sates:
; ict defendant. Papa
The fact that the judge instead of the en ee ae: ati:
- jury imposes the sentence is without conse- Reversed. ad eoee tat
quence. We addressed this issue in Rich- wi: ce
“..- mond end found it to be withovt merit . ot be Es
“ses relying on Proffitt v. Fiorida, 423 U.S. 242, 1. Criminal Law e=244 Ges" See
reins - 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). Submission of case on preliminary eid 2 im
’ : hearing transcript was not tantamount to a Hy oe De.
A. } ar agp ge at “a a guilty plea under circumstances and, there- Se eee
; magn ‘ rn on i r = “©: fore, trial court did not err in failing to eae ae
be i auneryragtig ao : = sentence advise defendant of his privilege against Bexley tr ee
to be imposed in an arbitrary and Capricious — self-incrimination and _ samtencing conse- Srescaors rg
. a and is therefore constitutionally quences of a finding of guilt. a a teamed
: _ ~ Judgment of conviction and sentence are 2+ Indictment and Information ¢=189(2) Borris
affirmed. Offense with which defendant was '
bait ie ce sess
Re 4 charged, assault with a deadly weapon,
: CAMERON, C. J., STRUCKMEYER, V. ©u!d be carried out without an exhibition ;
‘ Cc. , & and HOLOHAN and GORDON Js. of w. yon and, consequently, crime of ex- ¢
pemiaaiy """ hibitu.g a deadly weapon other than in self- Hr. a"
defense was not an included offense within es oe
charge and was not a basis on which to UA come
8? det, ¢ ET . convict defendant. A.R.S. 13-248, 13-216. a’ 2 Be
5: o : : ‘oat 6, Mit Mewes SSIS ee " as nF
Z -- Bruce E. Babbitt, Atty. Gen., by William st 3%, 37 ;
| J. Schafer, III, Chief Counsel, Crane oe :
; B25 ‘
See pan ac
tania aoe
5 aege e Poke? eis irre 2s ti a ee
Appendix B
“eg * . 4 e ‘ es re, . « . P - ‘ of . ale. Oi
~~, oe! a oe ee ee ee ee ee ee ee ee re Ty --* ew" Re ob co odc8ents 8666R screen *s' o ' =k. mona Adted
B. Total Lack of Jury Particivation in Capital
Sentencing.
In the last ten years, Montana and a very few other
35/
States have reversed the historical evolution since the
middle of the last century toward “jury sentencing in
capital cases, McGautha v. California, 402 U.S. 183, 200
n.1l (1971), by removing the jury altogether from the sen-
tencing process. Although this Court has ‘hever suggested
that jury sentencing is constitutionally required,” Proffitt
v. Florida, supra, 428 U.S. at 252 (plurality opinion),
(emphasis added) it has neither considered nor approved a
capital sentencing system which totally excludes jury partici-
pation in the life-or-death decision. The Court has allowed
only one encroachment upon the jury's traditional sentencing
power in a capital case: the power of a Florida trial judge
to impose a death sentence where a jury's recommendation of
life imprisonment is clearly unreasonable. See Proffitt v.
34/ cont'd.
v. Hough, 358 Pa. 247, 56 A.2d 84, 85-86 (1948) with Comnon-
wealth v. Edwards, 330 Pa. 52, 110 A.2d 216, 217 (1955).
35/ See Neb. Rev. Stat. §29-2522 (1973 supp.); Ohio Rev.
Code Ann. §2929.03(C) (Page 1973 spec. supp.); Ariz. Rev.
Stat. §13-454(A) (1974 supp.).
° =e “Tee nee *-.* co P= y° ee OO Oe RF mr meme epee fe ~ -— +s =e gee me &- _- Oe ee | | °
. Fy . . . oe’ . ~ . _s = : iy . . ® P :
a el ee ee nn ee ee es EL ee Or ee oh ems. ces o' © ote aitSaW ee 6 otee. +" rare" en teas “s
.
36/
Florida, supra. This precedent obviously does not resolve the
constitutionality of Montana's procedure. The Court should
review the question whether Montana's total exclusion of the
jury from capital sentencing decision is consistent with the
“evolving standards of procedural fairness in a civilized
society,” Gardner v. Florida, supra, 45 U.S.L.W. at 4277
(plurality opinion), “employed by the State to select persons
for the unique and irreversible penalty of death," Woodson v.
North Carolina, supra, 428 U.S. at 287 (plurality opinion)
(footnote omitted).
Several considerations cast the gravest constitutionai
doubt upon this procedure:
First, the evolution of capital sentencing practice in
this country, see Woodson v. North Carolina, supra, 428 U.S.
at 289-299 (plurality opinion), has recognized jury participa-
tion in the decision whether life should be taken for a
36/ The Court described Florida's sentencing system as follows:
"The jury's [sentencing] verdict is determined
by majority vote. It is only advisory; the actual
sentence is determined by the trial judge. The
Florida Supreme Court has stated, however, that
‘{ijJn order to sustain a sentence of death follow-
ing a jury recommendation of life, the facts suggest7
ing a sentence of death should be so clear and con-
vincing that virtually no reasonable person could
| differ.‘ Tedder v. State, 322 So.2d 908, 910 (1975).'
opinion). In Florida, therefore, there is a substantial
presumption that the jury's advisory sentence will, in fact,
be imposed. See Gardner v. Florida, supra, 45 U.S.L.W. at
4278 (plurality opinion). In Montana, however, the jury
plays no role in sentencing whatsoever.
| Proffitt v. Florida, supra, 428 U.S. at 248-249 (plurality
-30-
PP. Ber ee —- - _—e me --
4 i ‘ —_- - ee ee = “ee * -—<<-e-, ee "resem, mt ee et eee +e ————_—
. ’ .
oo ee Bee ere oe 8 FP Oe a a fe. = mee & a
Capital crime as a “principle of justice so rooted in the
traditions and conscience of our people as to be ranked
as fundamental." Snyder v. Massachusetts, 291 U.S. 97, 105
(1934). By the middle of the twentieth century, every Ameri-
can jurisdiction utilizing the death penalty had decided to
“take from the judge the onus of inflicting capital punishment
United States v. Jackson, 390 U.S. 570, 576 n.12 (1968);
Woodson v. North Carolina, supra, 428 U.S. at 291-292 (plurali:
opinion) and decided that if a capital “defendant preferred
the commonsense judgment of a jury to the more tutored but
perhaps less sympathetic reaction of the single judge, he
was to have it.” Duncan v. Louisiana, 391 U.S. 145, 156 (1968)
See McGautha v. California, supra, 402 U.S. at 200 n.il;
McElroy v. United States, 361 U.S. 249, 255 (1960) (dissenting
and concurring opinion of Justice Harlan). The determination
to include in the process of capital sentencing "a lay judg-
ment, reflecting values generally held in the community, con-
cerning the kinds of potential harm that justify the State in”
executing a particular defendant, Humphrey v. Cady, 405 U.S.
504, 509 (1972) (footnote omitted), constitutes “a fundamental
decision about the exercise of official power," and reflects
"a reluctance to entrust plenary powers over ... life...
to one judge or to a group of judges.” Duncan v. Louisiana,
37/
supra, 391 U.S. at 156. The reversal of that decision by
37/ See, e.g., Bloom v. Illinois, 391 U.S. 194, 202 (1968);
Codispoti v. Pennsylvania, 418 U.S. 506, 515 (1974); Mayberry
Vv. Pennsylvania, 400 U.S. 455, 463-466 (1971); Taylor v. Haves
418 U.S. 488, 501-503 (1974). And see Groppi v. Leslie, 404
-3)]-
nr ee . —
Montana and a few other States is clearly “attributable to
diverse readings of this Court's multi-opinioned decision in"
Furman, Woodson v. North Carolina, supra, 428 U.S. at 299
(plurality opinion), rather than to a "sudden reversal of
societal values regarding the imposition of capital punishment
id. at 298.
Second, jury participation in sentencing has traditionally
assured a "'link between contemporary community values and the
penal system,'” Woodson v. North Carolina, supra, 428 U.S.
at 295 (plurality opinion), “without which the determination
of punishment could hardly reflect 'the evolving standards
of decency that mark the progress of a maturing society.'
Trop v. Dulles, 356 U.S. 86, 101," Witherspoon v. Illinois,
391 U.S. 510, 520 n.15 (1968). Sentencing juries provide
the most "direct source of information reflecting the public's
attitude toward capital punishment," Furman v. Georgia, 408
U.S. 238, 439-440 (1972) (dissenting opinion of Mr. Justice
Powell); and see Greqq v. Georgia, supra, 428 U.S. at 181-182
(plurality opinion); their judgments reveal that "under con-
temporary standards of decency death is viewed as an inappro-
priate punishment for a substantial portion of convicted
7
first-degree murderers,” Woodson v. North Carolina, supra,
37/ cont'd.
U.S. 496, 504-506 (1971). When life is at stake, jury senten
ing "'places the real direction of society in the hands of the
governed . . . and not in... the government,'" Powell,
Jury Trial of Crimes, 23 WASH. & LEE L. REV. l, 5 (1966)
(citing DE TOCQUEVILLE, DEMOCRACY IN AMERICA 282 (Reeve
transl. 1948)).
@32-
,
“ere © _—— ~~ = _— ee ere ft eee ow -
= Ow “wom. he fb te bee o Wat wtote. go? ee otigumeest --@an sésco BD. o- © o+-bn “eGeoh?. «
SO ers wee ee FF.
te Pama. 08k _
428 U.S. at 296 (plurality opinion), and that "this most
irrevocable of sanctions should be reserved for a small number
of extreme cases," Gregg v. Georgia, supra, 428 U.S. at 182
(plurality opinion). Trial judges, on the other hand, because
of their education, training and relative insulation are
particularly poor repositories of “contemporary community
standards" and have historically been significantly more
38/
willing than juries to impose the death penalty. The jury
and the legislature are the two crucial "indicators of evolv-
ing standards of decency respecting the imposition of punish-
ment in our society," Woodson v. North Carolina, supra, 428
U.S. at 293 (plurality opinion), and only the jury is
“directly involved," Greqq v. Georgia, supra, 428 U.S. at 181
(plurality opinion), and able to bring those standards to
bear on the facts of a particular case. At a time when
sastetr has rejected "the belief that ‘every offense in a
like legal category calls for an identical punishment without
req rd to the past life and habits of a particular offender,'"
Roberts v. Louisiana, supra, 428 U.S. at 333 (plurality opinicn)
the jury's Eighth Amendment judging function is vitally
necessary inasmuch as its voice is uniquely “that of the
38/ See KALVEN & ZEISEL, THE AMERICAN JURY 436, 306-312
(1966).
"{Ajmong the leading authorities in penal
science, the supporters of abolition
appreciably outnumber those who favour the
retention of capital punishment. The specialists
of the social sciences, criminologists, sociologistsg,
penalogists, psychologists, doctors and writers on
social science and criminology are, in their great
majority, abolitionists. The supporters of capital
punishment, apart from a number of political figures
and persons holding high public office, are generally
@33@
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. . @ . ‘ . ’ . e .
.
‘ . ° . . .
eh mw 6On ium . te 6Oer-e'e s ot @:.¢-a.. .cenkae hin 0 Bet. « de dass 6G cow * cies hla boo - estou e ae we > @Olcrcce Me
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°* @e
society against which the crime was committed," Williams v.
New York, 337 U.S. 241, 253 (1949) (dissenting opinion of
Justice Murphy).
Finally, Montana's procedure of holding the mitigation
hearing before the trial court deprives a capital defendant
of his right to “any a jury find facts which determine whether
39
he lives or dies. Constitutional protections apply not only
to procedures which determine “guilt or innocence but also
38/ cont'd.
jurists with a traditional training and
judges."
UNITED NATIONS, DEPARTMENT OF ECONOMIC AND SOCIAL AFFAIRS,
CAPITAL PUNISHMENT (ST/SOA/SD/9-10) (1968) at 64. See also
KOESTLER, REFLECTIONS ON HANGING (Amer. ed. 1957) at 21-40.
39/ The verdicts returned by the jury found petitioner guilty
of “deliberate homicide by means of torture" and “aggravated
kidnaping" which had caused the death of the victim. T. 2605.
The jury was at no point infirmed by the trial court that the
consequences of these verdicts -- unless the court found
"mitigating circumstances"-- would be the exetution of peti-
tioner, and its factual determinations were not dispositive
with regard to the sentencing issues which the trial judge
ultimately resolved. The jury made no findings whether the
crimes for which it convicted petitioner were sufficient to
justify the death penalty or whether there were countervailing
“mitigating circumstances" present, and it had no chance to
evaluate the contents of the presentence report and the testi-
mony and argument presented at the mitigation hearing.
a%o
oe 7° ere me os
* *&
‘ .
at %
:
- ds.
*e @ea*
: + @ td C6 . . ms ad . * * by es.
oP as te ew eticve Sees S a tan sete ee Catt ot wots Leases is. sasok* a+ 10 Osieee
=,.>%
- « « [to those which affix] the degree of criminal culpa-
bility,” Mullaney v. Wilbur, 421 U.S. 684, 697-698 (1974).
See Gardner v. Florida, supra. Montana has determined that
only some deliberate homicides are to be punished with death.
It is the necessity of making new factual findings in aggrava-
40/
tion and mitigation which triggers petitioner's rights to a
jury Quteunination, at least of these factual questions if
not of the ultimate question of punishment, at this second
stage of the proceedings. For the Montana death penalty
statutes do "not make the commission of a specified crime
the basis for sentencing. [They] . .. mak[e] ... [the]
conviction the basis for commencing another proceeding ...
to determine whether a person constitutes a threat of bodily
harm to the public” sufficient to justify execution. Specht
v. Patterson, 386 U.S. 605, 608 (1967). Not all factors
affecting criminal sentencing determinations must be decided
41/
by a jury, but Mullaney v. Wilbur, supra, and Gardner v.
Florida, supra, stand for the proposition that where the
determination of certain factors is of crucial significance
-- where they "may be of greater importance than the differ-
ence between guilt or innocence for many lesser crimes" --
40/ Although the trial court's statutory directive was simply
to determine whether "mitigating circumstances" existed, the
bulk of Judge Nelson's findings in this case concerned the
existence of aggravating factors other than the "torture"
which the jury had found to accompany the deliberate homicide.
See Appendix B, infra.
41/ Cf. Specht v. Patterson, supra, and Townsend v. Burke,
334 U.S. 736 (1948), with Williams v. Oklahoma, 358 U.S. 576
(1959); and Williams v. New York, 337 U.S. 241 (1949).
2 OR O° Orgs + 2S POMS? 2 O% OO TO oP PGR ie oe Gy +. Ore peng emeres © ¢ Oe te eee me te er en me eh
° . . ee . ‘~- . . : @
4 . rs >.» ' : Md
ee. c06RREte 6 Bho. Beembl.0t © ar. mad tchectnwets BSebddlte «1
a ‘ ' > * -.* s @ s
2° ° ° ‘ ’ .
wee aS + melee Some + Rlhes 006: eee Aa cto ws. 2
the State may not lessen the standards by which those factors
must be proved by "characterizing them as factors that bear
solely on the extent of punishment." Muilaney v. Wilbur,
42/
supra, 421 U.S. at 698. This Court should therefore determine
whether petitioner had a constitutional right to a jury's
factual evaluation of the propriety of the death penalty
before the ultimate penalty was imposed by the trial court.
C. Unreliability of the Factual Predicate of
of Petitioner's Death Sentence,
This Court has recognized that “[b]Jecause of [the] ...
qualitative difference [between tle death penalty and a
sentence of imprisonment], there is a corresponding difference
in the need for reliability in the determination that death
is the appropriate punishment in a specific case," Woodson v.
North Carolina, supra, 428 U.S. at 305 (plurality opinion)
(footnote omitted). Because “the action of the sovereign in
taking the life of one of its citizens ... differs dramatical
42/ Judge Friendly held in United States v. Kramer, 289 F.2d
$09 (CA2 1961), that where an aggravating circumstance is
not “an element of the crime but rather a fact going only to
the degree of punishment,” and where the presence of the
aggravating circumstance substantially increases the severity
of possible sentencing consequences, it must be assumed that
"the Sixth Amendment entitles a defendant to have that fact
determined by the jury rather than by the sentencing judge."
Id. at 921. The aggravating circumstance involved in Kramer
(the fact that embezzled commercial paper exceeded $100 in
value) raised the crime from a misdemeanor to a felony. Id.
at 920. The Kramer principle “is now well recognized. United
States v. DeVall, 462 F.2d 137, 142 (CAS 1972).
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.