# Petition — Jordan v. Arizona

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2135%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 433 U.S. 906

## Text

—- 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». thy oF i ans : - t j ‘3 i Z ? S ‘ at &4 3: — Roa a; i , eal 58, we > ey iS,
ote: re GF gS See, Ne eee Ein, ew She ec ce Seed ke haber Sites
eet ’ *e i ota wens hts tien: re ES ace rs a oat, *.4 SO Meee SE 2 “wf bess $7 Ses,
“~ saily *. My -? en Yn te os 75 9 “ *s * mA G:e 62. \ Py wi rm ws ef ei. — . fs

Poe Men “o Oh. S ws . )

a ee

os oa ee Po OER ORT

* - a “ Sareea fu Suthenatdachanantic-ane a a
"when: Com 0 ter Oe’ hapten Geesued, * et or" al orbs pare = Piss = x “
ee ee / om. re ~ LEP R oe *-! eae aT “e Tor.
§ te! alt A gate gpts gb eee es Sa,
ie ou Ve os og . 2 at? Atos Vs Barott BRIE aes
STATE Shepton
Bru v. J , pate” La *
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 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 ¥
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 ¢ 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 - .
ifs ‘~«_-
fe Se nd. oe 3?
‘ >

» ee ts
«teat mw
. te

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 *@ »
‘ Sr ete %. 8? te eae se
ca” * eS 7 »®
Bid : Whee q o*s ‘
a °. eAd A ‘ - oe deme se 6 “o.» *
ahcVets Fe = thong 2" 0 3

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, } @Olcrcce Me

' > F-
ie le _-—
Fe ak Pets =

°* @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).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2135%3A1. Public record. Not legal advice.