Petition — JAMES DEAN CLARK v. ARIZONA (No. 80-5632)

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No. 80 a 56 32

JAMES DEAN CLARK,

Petitioner,

vs.

STATE OF ARIZONA,

Respondent.

MOTION FOR LEAVE TO PROCEED IN FORMA

PAUPERIS

‘

The Petitioner, JAMES DEAN CLARK, who is now held in the

Arizona State Prison at Florence, Arizona, asks leave to file the

attached petition for writ of certiorari to the Supreme Court of

Arizona without payment of costs and to proceed in forma pauperis

pursuant to Rule 53, Rules of Supreme Court, 28 U.S.C.

The Petitioner's affidavit in Support of this motion is

attached.

Offices of Kerley §& DeFrancesco

rney for Petitioner

i 1201 E. Fry Boulevard, Suite One

Sierra Vista, Arizona 85635

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RECEIVED

OCT 3 1 1980

OFFICE OF THE CLERK

IN THE SUPREME COURT, U.S.

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No. 80-5632

JAMES DEAN CLARK,

NOTICE OF FILING PETITION

FOR WRIT OF CERTIORARI

Petitioner,

vs.

STATE OF ARIZONA,

Respondent,

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TO: BEVERLY JENNEY, Cochise County Attorney, State of Arizona,

Counsel for Respondent.

* YOU ARE HEREBY NOTIFIED that a Petition for Writ of

Certiorari in the above-entitled cause was mailed to the Supreme

Court of the United States for filing on the 29th day of October,

1980.

A typewritten copy of the Petition and a copy of the

Petitioner's Motion for Leave to Proceed in Forma Pauperis with

accompanying affidavit are served upon you herewith in accordance

with Rule 33, Rules of the Supreme Court, 28 U.S.C.

- KERLE

Offices of Kerle} §& DeFrancesco

rney for Petitioner

1201 E. Fry Boulevard, Suite One

Sierra Vista, Arizona 85635

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SUPREME COURT OF THE UNITED STATES

October Term, 1980

No. 80-5632

JAMES DEAN CLARK,

NOTICE OF FILING PETITION

FOR WRIT OF CERTIORARI

Petitioner,

vs.

STATE OF ARIZONA,

Respondent.

ee ee eS Ss Sa

TO: ROBERT CORBIN, Attorney General of the State of Arizona, Coun-

sel for Respondent.

YOU ARE HEREBY NOTIFIED that a Petition for Writ of

Certiorari in the above entitled cause was mailed to the Supreme

Court of the United States for filing on the 29th day of October,

1980.

A typewritten copy of the’ Petition and a copy of the

Petitioner's Motion for Leave to Proceed in Forma Pauperis with

accompanying Affidavit are served upon you herewith in accordance

with Rule 33, Rules of the Supreme Court, 28 U.S.C.

, RLEY

Offices of Kerley §& DeFrancesco

rney for Petitioner

1201 E. Fry Boulevard, Suite One

Sierra Vista, Arizona 85635

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RECEIVED

OCT 3 1 1980

OFFICE OF THE CLERK

IN THE SUPREME COURT, U.S.

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No. 80-5632

JAMES DEAN CLARK,

Petitioner,

vs.

STATE OF ARIZONA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE OF ARIZONA

The Petitioner, JAMES DEAN CLARK, through counsel, res-

pectfully requests that a Writ of Certiorari issue to review the

judgment and opinion of the Supreme Court of the State of Arizona

entered in this proceeding on July 25, 1980.

OPINION OF THE COURT BELOW

The opinion of the Supreme Court of the State of Arizona

in this proceeding affirming Petitioner's sentence to death has

been reported. State v. Clark, Ariz. q P.2d (1980).

A copy of the opinion has been appended to this Petition as

Appendix A.

JURISDICTION

The judgment of the Supreme Court of the State of Arizona

affirming the order of the Cochise County Supreior Court sentencing

the Petitioner to death was entered on July 25, 1980. See Appendix

A. This Petition is timely filed pursuant to Rule 22(1), Rules of

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the Supreme Court. This Court has jurisdiction pursuant to 28

U.S.C. 1257(3).

QUESTIONS PRESENTED

I. Was the Defendant's right to confront and cross-examine the

witness "John Doe" as provided in Smith v. Illinois, 370 U.S. 129,

19 L.Ed.2d 956, 88 S.Ct. 748 (1968), at the preliminary hearing

and at the trial violated because the witness wore a ski mask at

the preliminary hearing and testified under an assumed name and

refused to give his current address and because the defendant was

precluded from asking the witness his true name and correct address

at the trial for the reason that the trial Court precluded an

examination into John Doe's true identity and correct address so

that his employment as a DEA informant could be preserved?

Il. Did the trial Court err when it questioned each prospective

juror about their beliefs and views concerning capital punishment?

III. The re-drafting of the Arizona death penalty statute by the

Arizona Supreme Court to cure constitutional infirmities was illega

A. It was constitutionally improper for the Arizona

Supreme Court to re-draft the Arizona death penalty statute hecause

the mitigation section of the unconstitutional statute was not

severable from the remainder of the statute.

B. Application of the death penalty statute re-drafted

by the Arizona Supreme Court violated the Ex Post Facto Clause.

C. Application of the court-drafted death penalty statut

to the Petitioner violated the principles of fundamental fairness

embodied in the Due Process Clauses of the Fifth and Fourteenth

Amendments.

D. The court-drafted death penalty statute violates the

prohibition against judicially created penalties contained in the

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Eighth and Fourteenth Amendments.

E. The court-drafted death penalty statute violates the

Cruel and Unusual Punishment Clause of the Eighth Amendment.

CONSTITUTIONAL PROVISIONS

Article I, Section 10, Constitution of the United States:

"No State shall. . .pass any. . .e€x post facto Law. . ,."

Article VI, Constitution of the United States:

“This Constitution . . .shall be the Supreme Law of the

Land; and the Judges in every State shall be bound thereby, any

Thing in the Constitution or Law of any State to the Contrary

notwithstanding."

Amendment V, Constitution of the United States:

"(N)or shall any person be subject for the same offense

to be twice put in jeopardy of life or limb;. . .nor be deprived of

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life, liberty or property, without due process of law. ...

Amendment VI, Constitution of the United States:

"In all criminal prosecutions, the accused shall enjoy

the right. . .to be confronted with the witnesses against him. ..

Amendment VIII, Constitution of the United States:

"Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments inflicted."

Amendment XIV, Constitution of the United States:

". . .No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, liberty or

property, without due process of law; nor deny to any person withi

its jurisdiction the equal protection of the laws."

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STATUTES

Arizona Revised Statutes, 1-246:

1-246, Penalty altered by Subsequent law; effect

When the penalty for an offense is prescribed by one law

and altered by a subsequent law, the penalty of such second law

Shall not be inflicted for a breach of the law committed before the

second took effect, but the offender shall be punished under the

law in force when the offense was committed.

Section 5, Chapter 138, Thirty-First Arizona Legislature, First

Regular Session, Arizona Revised Statutes, 13-454 (Renumbered

A.R.S._13-703 and modified effective October 1, 1978: modified

effective May 1, 1979):

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 first

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 circum-

Stances set forth in subsection E and F, for the purpose of

determining the sentence to be imposed. The hearing shall be con-

ducted before the court alone.

B. In the sentencing hearing the court shall disclose to the

defendant or his counsel all material contained in any presentence

report, if one has been prepared, except such material as the

court determines is required to be withheld for the protection of

human life. Any presentence information withheld from the defen-

dant shall not be considered in determining the existence or

nonexistence of the circumstances set forth in subsection E or F,

any information relevant to any of the mitigating circumstances

set forth in subsection F may be presented by either the prosecu-

tion or the defendant, regardless of its admissibility under the

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rules governing admission of evidence at Cviminal trials; but the

admissibility of information relevant to any of the aggravating

circumstances 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 circumstances, shall be considered without reintroducing

it at the sentencing proceeding. The prosecution and the defendant

shall be permitted to rebut any information 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 F. The burden

of establishing the existence of any of the circumstances set

forth in subsection E is on the prosecution. The burden of esta-.

blishing 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 cir-

cumstances 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

seryed twenty-five calendar years, the court shall take into

account the aggravating and mitigating circumstances enumerated in

Subsections E and F and shail impose a sentence of death if the

court finds one or more of the aggravating circumstances ae

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:

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1. The defendant has been convicted of another offense in the

United States for which under Arizona law a sentence of life im-

prisonment or death was impossible,

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 additicn to

the victim of the offense.

4. The defendant procured the commission of the offense by pay-

ment, 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 pecuni-

ary 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 significant-

ly impaired, but pot so impaired as to constitute a defense to

Prosecution.

2. He was under unusual and substantial duress, although not such

duress as to constitute a defense to prosecution,

3. He was a principal under section 13-452, Arizona Reyised

Statutes, in the offense, which was committed by another, but his

participation was relatively minor, altaough 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 graye risk of causing, death to

another person,

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Section 10, Chapter 138, Thirty-First Arizona Legislature, First

Regular Session:

Severability of sentence clause

In the event the death penalty is held to be unconstitu-

tional on final appeal, a person convicted of first degree murder

Or another offense punishable by death who has been sentenced to

die shall be resentenced by the sentencing court to life imprison-

ment without possibility of parole until the person has served a

minimum of twenty-five calendar years.

STATEMENT OF THE CASE

The Petitioner, JAMES DEAN CLARK, w's charged by infor-

mation with four counts of murder for allegedly violating A.R.S.

13-451, 13-452 and 13-453(A), all as amended. At the preliminary

hearing, the State's principal witness against the Defendant testi-

fied wearing a ski mask and used the fictitious name "John Doe"

and refused to reveal his current residence. On the record,

Appellant's counsel alleged that such testimony violated the Appel-

lant's right to confront the witnesses against him and to adequatel;

cross-examine the witness.

Not until the Omnibus Hearing was the true name and

address of John Doe revealed to the Defendant. The trial Court

ordered that a copy of John Doe's FBI Rap Sheet was to also be sup-

plied to the Appellant's counsel, but this was not done until

immediately before the trial. Consequently, the Appellant and his

counsel were prevented from investigating the background and

Character of the John Doe witness who later testified against the

Appellant at trial.

Immediately preceding the testimony at trial of John Doe,

an in camera hearing was had in order to determine whether or not

Appellant and his counsel would be allowed to cross-examine John

Doe concerning his true identity and his current residence. See

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Appendix B. The record of the proceedings of June 14, 1978, clearly

shows that John Doe did not wish to testify under his true name

and did not wish to reveal his current residence in El Paso, Texas

for the reason that he Wished to maintain his status as a DEA

informant. He was employed by the Drug Enforcement Administration

as an informant in other cases, and he wished to maintain that

employment. John Doe testified that he had some concern for his

safety as an informant, but not as a witness in the case at bench,

John Doe was not an informant in the case at bench. He was the

principal State witness against the Defendant. The trial Judge

ruled that John Doe did not have to reveal his true identity or

address.

The trial Judge made such a ruling in order to preserve

John Doe's employment and status as a DEA informant in other cases,

The record clearly shows that John Doe was not concerned about his

Safety vis-a-vis the Appellant. He simply made certain vague re-

ferences to alleged threats that he had heard a month earlier in a

bar in El Paso. These threats were not related to his testimony in

this case. They dealt with his Status and activities as a DEA

informant in other cases. The trial Judge committed an egregious

constitutional error when it ruled that the Appellant in a capital

Case would not be allowed to cross-examine the principal witness

against him and to ask his true identity and his correct address

as provided in Smith vs. Illinois, 390 U.S. 127, 19 L.Ed.2d 956,

88 S.Ct. 748 (1968).

During the jury selection process, the Court and the pro-

secution questioned each individual juror concerning their feelings

and beliefs about the death penalty. This was vigorously objected

to by Appellant's trial counsel. Appellant's trial counsel eyen

went so far as to file a special action before the Arizona Supreme

Court challenging this proceeding. This special action was denied

by the Arizona Supreme Court. saad

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After the jury was selected and the State presented its

case, the Defendant was convicted of four counts of homicide.

Subsequent to the Defendant's conviction, the Court con-

ducted a mitigation hearing. During the mitigation hearing process

the Arizona Supreme Court rendered its decision in State v. Watson,

120 Ariz. 441, 586 P.2d 1253, Cert. denied 440 U.S. 924, 99 S.Ct.

1254, L.Ed. 2nd (1979). State v,. Watson, supra, concerns

the Arizona Supreme Court's interpretation of the death penalty

Statute passed by the Thirty-First Arizona Legislature.

The Thirty-First Arizona Legislature during its first

regular session passed a new death penalty. A.R.S. 13-454

(re-numbered 13-703 effective October 1, 1978 and modified, sub-

sequently modified effective May 1, 1979). The bill which eventual

became law was Senate Bill 1005. When that bill was passed by the

Arizona House, it included a provision which stated:

"Evidence may be présented as to any matter the

Sentencing Panel deems relevant to sen encing,

and shall include matters relating to any of

the aggravating or mitigating circumstances en-

umerated in sections b and c of this section."

Journal of the House, Taree wares Legislature,

First Regular Session, p. 499, (Emphasis added).

That language was not enacted. Instead, the Senate version was

passed which significantly restricted the number of mitigating cir-

cumstances that could be considered. As it was, the bill passed

the Senate by only seventeen to twelve and received ten no votes

and eight abstentions in the House. Journal of the Senate, Thirty-

First Arizona Legislature, First Regular Session, p. 726. There

could be no clearer statement of the Arizona Legislature's intent

that mitigating circumstances be restricted.

There also can be no question about the legislative inten

concerning what was to be done should a part of the statute be

found unconstitutional. Section 10 of Senate Bil] 1005S states

unambiguously that persons sentenced to death shall be re-sentenced

by the sentencing court to life imprisonment if the death penalty

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is held to be unconstitutional. Section 10, Chapter 138, Thirty-

First Arizona Legislature, First Regular Session.

In construing this statute before it was found unconsti-

tutional by this Court, the Arizona Supreme Court was scrupulous

in its construction. In case after case, the Court held that the

trial judge who made the decision whether to invoke the death

penalty was limited to considering "only those aggravating and

mitigating factors listed in the Statute. A.R.S. 13-454(D)."

State v. Bishop, 118 Ariz. 263, 576 P.2d 122, 128 N. 4 (1978). The

United States District Court for the District of Arizona, antici-

pating the action of this Court dec-ared the Arizona death penalty

unconstitutional because it restricted mitigation. Richmond y.

Cardwell, 450 F.Supp. 519 (D.Az.1978).

A few months later, this Court decided Lockett v. Ohio,

438 U.S. 586 98 S.Ct. 2254, 57 L.Ed.2d 973 (1978) and Bell y. Ohio,

438 U.S. 637, 98 S.Ct. 2977, S7 L.Ed.2d 1010 (1978).

A few weeks later, the Supreme Court of the State of

Arizona responded in State y. Watson, 120 Ariz. 441, 586 P.2d

1253 (1978). The Arizona Supreme Court was forced to hold:

". « that A.R.S. 13-454(F), insofar as it limits

the right of the defendant to show additional

mitigating circumstances, is unconstitutional."

586 P.2d at 1257

Although the question of severability had not been briefed or arg

in the Watson case, the Arizona Supreme Court went on to consider

whether the unconstitutional portions of the death penalty statute

were severable:

",. . .SO that the constitutional portion of the

Statute can remain in force and effect." 586 P.2d

at 1257,

After opining that severability was solely a question of legisla-

tive intent, the Arizona Supreme Court reached a Startling conclusi

“We can presume that had the Legislature been

aware of the unconstitutionality of the limi-

tation on mitigating circumstances, they would

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have enacted the remainder of the statute without

what is now the offending portion. We hold that

the statute with the portion deleted remains in

force and effect." 586 P.2d at 1257

The Watson case was remanded for resentencing and the trial court

was ordered to allow the defendant at resentencing:

", . .to present any mitigating circumstances

ter ing to show why the death penalty should

not be imposed." 586 P.2d at 1257

(Prior to Watson the Arizona Legislature renumbered the death

penalty statute as A.R.S. 13-703 as a part of a general revision of

Arizona's criminal code and added one mitigating factor: "The

defendant's age." The renumbering and modification were effective

October 1, 1978. After Watson the Arizona Legislature passed a

modification of the death penalty statute which attempted to follow

the guidelines on mitigation set forth in Watson. The modification

was effective May 1, 1979. A.R.S. 1-246.)

The Watson, supra, case has. been challenged by all inmate

who are currently on death row in the Arizona State Prison at

Florence, in a class action entitled Knapp v. Cardwell, F.Supp

(District Arizona 1980). The Appellant in the case at bench

is a member of the class challenging the Watson, supra case. In

Knapp _v. Cardwell, the Federal Courts have issued a restraining

order restraining the State of Arizona from executing any of the

members of the class of persons who were sentenced under Watson

until the constitutionality of the Watson case is ultimately de-

cided by the Federal Courts. Because the Appellant is a member of

that class, and because the State of Arizona is already restrained

from excuting him, no additional restraining order from this Court

shall be requested at this time.

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REASONS FOR GRANTING THIS PETITION

I, THERE IS A DRAMATIC CONFLICT BETWEEN THE FEDERAL CIRCUIT

COURTS AND THE STATES' SUPREME COURTS OVER THE QUESTION OF THE

CORRECT INTERPRETATION AND APPLICATION OF THIS COURT'S OPINION

IN SMITH vs. ILLINOIS.

In Alford vs. United States, 282 U.S. 687, 51 S.Ct. 218,

75 L.Ed, 624 (1931), and more recently, in Smith v. Illinois, 390

U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968), this Court set fort

the general rule which requires disclosure of the identity and

address during the cross-examination of witnesses in criminal

trials. In Alford and Smith, supra, this Court recognized a pos-

Sible exception to the disclosure of the true identity and current

address of a witness in a criminal trial when a question, which

seeks to illicit such information, would tend "merely to harrass,

annoy, or humiliate a witness." In Smith, supra, Mr. Justice Whit

and Mr. Justice Marshall, wrote a separate concurring opinion. In

this separate concurring opinion, Mr. Justice White and Mr. Justice

Marshall stated that they would also recognize another category

of questions other than those that might tend to harrass, annoy or

humiliate a witness. ‘This additional categary is “inquiries which

tend to endanger the personal safety of the witness", State vs.

Illinois, supra, 19 L.Ed.2d page 960. The majority opinion in Smith

vs. Illinois , supra, did not recognize this additional exception

to the general rule enumerated in Smith, supra. The Federal Circui

Courts have seized upon this additional exception suggested in the

concurring opinion of Mr. Justice White and Mr. Justice Marshall

and have carved out an additonal exception to the Smith principal

in cases where the personal safety of the witness may be endangered

See United States vs. Daddano, 432 F.2d 1119, 1128 (Seventh Circuit

1970), Cert. denied 404 U.S. 905, 91 S.Ct. 1366, 28 L.Ed.2d 645

(1971); United States vs. Battaglia, 432 F.2d 1115 (Seventh Circuit

1970), Cert. denied 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828 (197

United States vs. Palermo, 410 F.2d 468 (472 Seventh Circuit 1969);

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United States vs. Persico, 425 F.2d 1375, 1384 (Second Circuit 1970

Cert. denied 400 U.S. 869, 91 S.Ct. 102, 27 L.Ed.2d 108 (1970);

United States vs. Baker, 419 F.2d 83, 87 (Second Circuit 1969), Cerr.

denied 397 U.S. 976, 90 S.Ct. 196, 25 L.Ed.2d 271 (1970).

The difference between the Majority opinion in Smith,

Supra, and the separate concurring Opinion of Messrs. Justice White

and Marshall, has apparently led to conflicting interpretations

of the holding in Smith, Supra, in the Federal Circuit Courts.

Only this Court can authoritatively set forth the correct parameter

and application of Smith vs. Illinois, supra. The Federal Circuit

Courts have applied and construed the holding in Smith vs. Illinois

Supra, in a conflicting manner. The same conflict can also be seen

within the same Circuit and between the Circuits and the State

Supreme Courts and between the various State Supreme Courts.

The Federal Circuit Courts have interpretted the separa

concurring opinion of Messrs. ‘Justice White and Marshall as author-

izing the restriction on the cross-examination of a witness in a

criminal case when there existed a legitimate factual basis showin

that the witness is in danger from the defendant. Caldwell vs.

Minnesota, 536 F.2d 272 (Eighth Circuit 1976); McGrath vs. Vinzant,

528 F.2d 681 (First Circuit) Cert. dismissed, 426 U.S. 902 (1976) ;

United States vs. Cavallaro, 553 F.2d 300 (Second Circuit 1977);

United States vs. Hansen, 569 F.2d 407 (Fifth Circuit 1978); United

States vs.. Penick, 496 F.2d 1105 (Seventh Circuit) Cert. denied

419 U.S. 897 (1974); United States vs. Saletko, 452 F.2d 193

(Seventh Circuit 1971); United States vs. Herbert, 502 F.2d 890

(Tenth Circuit 1974); United States ys. Baker, 419 F.2d 83 (Second

Circuit 1969); United States vs. Conder, 423 F.2d 904 (Sixth Circui

1979); United States vs. Persico, supra.

Other opinions rendered by the various Federal Circuit

Courts have interpretted Smith vs. Illinois, supra, as not re-

quiring the revelation of a material witness'< identity and sren

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Illinois by resolving the disparate manner in which the Federal

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in a criminal case, even when the inquiry into the witness's identit

and address would not constitute harrassment, annoyance, humiliation

or danger to the witness. See United States vs. Snaldone, 484

F.2d 311 (Tenth Circuit) Cert. denied 415 U.S. 915 (1974); United

States vs. Thompson, 493 F.2d 305 (Ninth Circuit) Cert. denied

419 U.S. 834 (1974); United States vs. Keller, 412 F.2d 374

(Seventh Circuit 1969}; Jnited States vs. Lee, 413 F.2d 910 (Sevent

Circuit 196%); United States vs. Lawler, 413 F.2d 622 (Seventh

Circuit 1969); United States vs. Kartman, 417 F.2d 893 (Ninth

Circuit 1969).

Only this Court can authoritatively correct the incon-

sistent and contradictory application of the holding in Smith ys.

Circuit Courts have applied Smith vs. Illinois, supra. This Court

Should clarify for the Federal Circuits the circumstances under

which Smith vs. Illinois, Supfa, is to be applied and should resolv

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the ambiguity between the majority opinion and the separate con-

curring opinion in Smith vs. Illinois. It is also respectfully

pointed out to the Court that none of the above enumerated cases

involved a capital case, such as the case at bench.

It is further respectfully submitted to this Court that the

Federal Circuit Courts have applied Smith vs. Illinois in a manner

inconsistent with this Court's holding in Smith, supra. The

majority opinion in Smith vs. Illinois, supra, appears to lay down

an iron clad holding, except when the questionning of the identity

and true address of the witness would constitute harrassment,

annoyance or humiliation to the witness. The majority opinion

seems to represent a per se rule. However, the above enumerated

Federal Circuit cases have not so interpretted Smith vs. Illinois,

but have tended to adopt a rule of reason approach based upon the

Separate concurring opinion. This ambiguity or inconsistency

between the Federal Circuits and this Court can only be resolved

-14-

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by this Court clearly and distinctly setting forth the exact

parameters of Smith vs. Illinois, supra.

The State Appellate Courts, including the State Supreme

Courts, also appear to have construed and interpretted Smith vs.

Illinois in inconsistent ways. For example, the Arizona Supreme

Court in State vs. Baumann, Ariz. » 610 P.2d 38 (1980), foun

that a witness in this Criminal case did not have to reveal his

address because of alleged concern for the safety of the witness

vis-a-vis the defendant. The Arizona Supreme Court in effect follo

the exception Suggested in the separate concurring opinion in Smith

vs. Illinois, supra.

Other appellate Courts in other States have ruled that

the address, and in at least one case, the identity as well as the

address, of the witness need not be revealed, even when there are

no circumstances involving annoyance, harrassment, humiliation or

danger. See People vs. Anderson, 257 N.E2d 594 (1970); People vs.

Hall, 253 N.E.2d 890 (1969); People vs. Gonzalez, 257 N.E.2d 236

(1970).

Other State appellate Courts have followed the holding

in State ys, Baumann, supra, .Sée People vs. Abbott, 249 N.E.2nd

675 (1969); People vs. Dunams, 254 N.E.2d 582.

The contradictory and conflicting manner in which the

State appellate Courts have applied Smith vs, Illinois, Supra, can

only be resolved by this Court rendering an appropriate opinion

Clearly delineating the holding in Smith vs. Illinois, Supra, and

authoritatively setting forth the circumstances under which Smith

vs. Illinois shall be applied by the State appellate Courts.

The Arizona Supreme Court has applied the holding in

Smith vs. Illinois, Supra, inconsistently within its own jurisdic-

tion. Other than the case at bench, it appears the only other

Opportunity that the Arizona Supreme Court has had to interpret

Smith vs. Illinois, supra, is the State vs. Baumann, supra, case.

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In State vs. Baumann, Supra, the Arizona Supreme Court held that

the witness need not reveal his address because of alleged legiti-

mate concern for the witness's safety vis-a-vis the defendant.

The Court appears to have followed the separate concurring opinion

in Smith vs. Illinois of Messrs. Justice White and Marshall.

However, in the case at bench, State vs. Clark, the

Arizona Supreme Court ¢ppears not to have followed even the con-

curring opinion of Messrs. Justice White and Marshall. The record

before the trial judge, attached hereto as Appendix B, clearly

Shows that the John Doe witness was the principal witness against

the defendant. The record also Shows that the John Doe witness was

not afraid for his safety vis-a-yis the defendant Clark. The John

Doe witness Specifically stated before the trial judge that he was

afraid of testifying in this case, John Doe stated emphatically

that ne wanted to testify under a false name, and he did not want

to give his correct address because he Wished to preserve his em-

ployment as a DEA informant in El Paso, Texas. The record clearly

shows that this is why the trial judge ruled that the witness:: a

would not have to testify under his correct name and give his

current address. There was no testimony presented whatsoever that

the John Doe witness was in way in jeopardy vis-a-vis the defendant

It is correct that the John Doe witness did testify about

some vague threats to him that he overheard in a bar in El Paso.

However, the substance of these threats appear to be related to his

employment as a DEA informant. There was no evidence presented

to the trial judge connecting the alleged threat to the John Doe

witness to his testimony in the Clark case.

The facts in this case are similar to those found in

United States vs. Ott, 489 F.2d 872 (Seventh Circuit 1973). In

Ott, supra, the trial judge did not require a witness to testify

and to give his current address for the reason that the government

wished to protect the witness's employment. The Court found this

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to be error in violation of the holding in Smith vs. Illinois, Supra,

but reversed upon other grounds,

The record clearly shows that the witness John Doe

did in fact testify at the trial under an assumed name and did not

reveal his true address. See Appendix C appended hereto.

It is respectfully submitted to this Court, that only thif

Court can correct the egregious error made by the trial Court in the

case at bench, and that only this Court can authoritatively state

whether or not the majority opinion in Smith vs. Illinois, is to

be interpretted in light of the separate concurring opinion and

whether or not a witness's true identity and address can be with-

held from the jury under circumstances where the witness is not in

any physical jeopardy vis-a-vis the defendant.

The record in the case at bench also clearly shows that

the Appellant and his counsel were not given the identification

and background information on the John Doe witness in sufficient

time to investigate the John Doe witness and to prepare for his

Cross-examination at trila. See United States v. Marti, 421 F.2d

1263 (Second Circuit, 1970).

II. DID THE TRIAL COURT ERR WHEN IT QUESTIONED EACH PROSPECTIVE

JUROR ABOUT THEIR BELIEFS AND VIEWS CONCERNING CAPITAL PUNISHMENT?

In Arizona, the law requires a bifurcated proceeding be-

fore a defendant can be sentenced to death. A.R.S. 13-454(A)

provides that after a defendant is found guilty or pleads guilty to

first depree murder, the Court shall then conduct a separate sen-

tencing hearing. The Court, and only the Court, is empowered to

impose the death penalty.

In Witherspoon vs. Illinois, 391 U.S. 510 (1968), this

Court held that prospective jurors could be questioned about their

views on the death penalty, and that those who were unalterably

Opposed to the death penalty and who, therefore, were incapable of

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following the Court's instructions, could be Challenged for cause

by the State and excluded. However, in Illinois at that time,

the jury both determined the defendant's guilt or innocence, and

if the jury found the defendant guilty, the gury itself, not the

Court, decided whether or not the death penalty should be imposed.

Because Arizona follows a bifurcated proceeding and the jury does

not impose the death penalty, and it is also instructed not to con-

Sider punishment, it is submitted to this Court that it is improper

to question prospective jurors about their views on the death

penalty and that to do so violates. the defendant's constitutional

Tights.

In the case at bench, each individual juror was questioneH

individually concerning his views on the death penalty by the Court.

At least seven jurors were questioned twice about their views on

the death penalty. The questionning by the Court and by the proses

cution of the jurors concerning their views about the death penalty

was vigorously objected to at trial by the defense. counsel.

Defense counsel argued that questionning the jurors about

their views on the death penalty was in violation of the equal

protection clause of the United States Constitution because neither

the prosecution, nor the defense, in non-capital cases is allowed

to inquire into the jurors' yiews or feelings about punishment.

Defense counsel also argued that it was a denial of the equal pro-

tection clause of the United States Constitution not to be allowed

to ask a counter-Witherspoon question in order to determine whether

Or not a juror might be prejudiced in fayor of the death penalty

and should, therefore, be excluded for that reason.

It is respectfully submitted to this Court that the mere

i) *. - -

questionning of jurors concerning their views on the death penalty

in a bifurcated state violates the defendant's right, not only to

equal protection, but to an impartial jury. This Court has re-

peatedly held that the denial of an impartial jury violates the

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due process clause of the Fourteenth Amendment. This Court has

also found that the denial of an impartial jury also violates the

‘Sixth Amendment of the United States Constitution. Parker vs.

Gladden, 385 U.S. 363 (1966); see also Turner vs. Louisiana, 379

U.S. 466 (1965S); Gonzales vs. Deto, 405 U.S. 1052 (1972).

Only this Court can Clarify whether or not Witherspoon,

Supra, is applicable in a State such as Arizona, which follows a

bifurcated proceeding in the imposition of the death penalty.

It is respectfully submitted to this Court that the holding

behind ‘the Witherspoon, supra, decision is not applicable to a bi-

furcated death penalty proceeding. Because the jury in the State

of Arizona does not impose the death sentence, there is no need

to inquire into the jurors' feelings or beliefs about the death

penalty in order to empanel an impartial jury that will follow the

Court's instructions. In the State of Arizona, the Court, not

the jury, imposes the death penalty. It is a violation of the de-

fendant's constitutional rights to allow the trial Court and/or

the prosecution, in this case over defense objections, to ask each

individual juror, and several of them twice, their beliefs and

feelings concerning the Arizona death penalty.

IIIl, THE DECISION TO SENTENCE PETITIONER TO DEATH CONFLICTS WITH

THE PRIOR DECISIONS OF THIS COURT ON SEVERAL THEORIES.

A. Ex Post Facto and Due Process

The sentencing of Petitioner to death using a statute

modified to pass constitutional muster after the date of the offens

8rossly conflicts with the prior decisions of this Court concerning

the Ex Post Facto Clause and due process. Article I, Section 10

and Fourteenth Amendment, Constitution of the United States. Sen-

tencing under a statute passed after the date of the offense has

been held to be an ex post facto violation even if the sentence

received under the new statute could also have been received under

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the old statute. Lindsey y. Washington, 301 U.S. 397, 401, 47

S.Ct. 397, 81 L.Ed. 1182 (1937). In addition, judicial enlargement

of a criminal statute after the crime has been committed to the

disadvantage of the defendant or construction by a court of a

Statute in an unexpectedly broad manner are due process violations.

Marks v. United States, 430 U.S. 188, 191-192, 97 S.ct. 990, 51

L.Ed.2d 260 (1977); Bouie vy. City of Columbia, 387 U.S. 5347, 353,

84 S.Ct. 1697, 12L.Ed.2d 894 (1964). It would be an understatement

to say that the promulgation of a new death penalty statute by the

Arizona Supreme Court was a "judicial enlargement" or reconstructio

that was "unexpectedly broad". Accord, Hicks v. Oklahoma, U.S.

au,» 200 &.Ct. 2227, __. Lb - Ed. 2d __._ « (1980) (holding that sentencin

under an unconstitutional statute was improper even though the

Sentence received was within the limits allowed by general senten-

cing statute which should have been used. Generai sentencing

Provision applicable in this case Was life imprisonment. Section 1

Chapter 138, Thirty-First Arizona Legislature, First Regular Sessio

IV. THE ACTION OF THE ARIZONA SUPREME COURT IN RE-~DRAFTING THE

PREVIOUSLY UNCONSTITUTIONAL ARIZONA DEATH PENALTY STATUTE TO

MAKE IT CONSTITUTIONAL IS INCONSISTENT WITH THE PRIOR DECISIONS

OF THIS COURT AND WITH THE DECISIONS OF OTHER STATE COURTS.

There can be no serious question, but that the Arizona

Supreme Court re-wrote the Arizona death penalty statute when it

rendered its opinion in State v. Watson, 586 P.2d at 1253, (But

see Knapp v. Cardwell, F.Supp. (D.Az. 1980) allowing the

Arizona Supreme Court to “re-interpret" its death penalty statute.

Knapp is presently on appeal to the Ninth Circuit Court of Appeals.

The appeal has been indefinitely stayed pending resolution in state

Court of challenges by the State of Arizona to the representation

of Petitioner and other death row inmates by Public Defenders in

Federal Court.) Without the aid of briefing or argument on the

point, the Arizona Supreme Court attempted in Watson to sever

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the unconstitutional limitation on mitigation in the Arizona death

penalty statute in Watson and add a Provision to the statute

allowing anything to be introduced in the way of mitigation,

586 P.2d at 1257.

The action of the Arizona Supreme Court in Watson was not

severance. As Justice Brandeis has noted, severability presents

two questions: (1) whether the statute minus the offending languag

can stand alone, and (2) whether the State legislature intended tha

Lad

the unobjectionable portion of the statute be able to stand alone

if the remainder of the Statute were struck down. Dorchy v. State

of Kansas, 264 U.S. 286, 291, 44 S.Ct, 523, 68 L.Ed. 686 (1924).

The Arizona Supreme Court's bald-faced assertion that the Arizona

Legislature intended to pass a constitutional statute and, there-

fore, intended that the Arizona death penalty statute be severable,

that is, that the mitigating factors section be severable from the

remainder of the statute, is clearly erroneous, [t should be noted

that the Arizona Supreme Court did not even mention in its original

Watson opinion the provision passed by the Arizona Legislature

with the original version of A.R.S. 13-454 that stated unambiguously

that persons sentenced to death shall be resentenced by the sen-

tencing court to life imprisonment if the death penalty is held to

be unconstitutional. Section 10, Chapter 138, Thirty-First Arizona

Legislature, First Regular Session.

In addition to the incredible "finding" of legislative

intent to allow severability, the action of the Arizona Supreme

Court in deleting the mitigation section (subsection F) aud the

references to subsection F throughout the remainder of the statute

make the death penalty statute completely unintelligible. There

is no severance, where the remainder of the statute cannot stand

alone. Dorchy v. State of Kansas, supra.

This Court established sound precedent in refusing to

re-draft death penalty statutes which have been held unconstitutionh

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United States v. Jackson, 390 U.S. 470, 88 S.Ct 1209, 20

L.Ed.2d 138 (1968). Accord, United States v. Narciso, 446 F.Supp.

252 (B.D. Mich. 1977). Arizona case authority prior to Watson

is in accord with the federal authority on this point. See, e.g.,

Eastin v. Broomfield, 116 Ariz. 576, 570 P.2d 744 (1977); State

ex rel. Berger v. Superior Court, 106 Ariz. 365, 476 P.2a 666 (1970)

Every State court that has been invited to re-draft a state death

penalty to make it constitutional has declined except for Arizona

and Mississippi. See, e.g., Rockwell v. Superior Court, 18 Cal.3d

420, 556 P.2d 1101, 134 Cal.Rptr. 650 (1976); State v. Lindquist,

99 Idaho 766, 589 P.2d 101 (1979); French v. State, 362 N.E.2d 834,

(Ind. 1977); Bond v, State, 403 N.E.2d 812 (Ind. 1980); Riggs v.

Branch, 554 P.2d 823 (Okla. Cr. 1976); State v. Cline, 397 A.2d

1309 (R.I, 1979); Kennedy v, State, 559 P.2d 1014 (Wyom 1977).

But see, State v. Watson, supra; Jackson v. State, 337 S0.2d 1242

(Miss. 1976). Only this Court can resolve the tremendous conflict

between the states over the ability of a state court to legislate

a death penalty and apply it retrospectively and prospectively.

The Eighth Amendment to the United States Constitution

prohibits cruel and unusual punishment, It is made applicable to

the states by the Fourteenth Amendment. Coker vy. Georgia, 433 U.S.

584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977).

Historical analysis reveals that the framers of the

Constitution borrowed the cruel and unusual punishment proscription

from the Tenth Clause of the English Bill of Rights of 1689. This

Clause was in large part directed against the "punishments unauthor}

ized by statute and beyond the jurisdiction of the sentencing

court." Gregg v. Georgia, 428 U.S. 153, 169, 96 S.Ct, 2909, 49

L.Ed,2d 859 (1976). See also S$ Blackstone, Commentaries on the Law

of England, pp. 377-379 (Tucker ed. 1803).

The imposition of penalties not authorized by statutes

is so abhorrent that this Court has for over a century considered

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it to violate the Due Process Clause in addition to the Eighth

Amendment. Ex Parte Lange, 83 U.S. (18 Wall.) 163 (1874).

Article IV, Section 4 of the United States Constitution

guarantees to the citizens of every state a republican form of

State government. The republican form of government envisioned by

the founding fathers is a government of separate, co-equal branches

Separation of powers means that judges "can exercise no executive

prerogative. . .nor any legislative function. . - «' J. Madison,

The Federalist Papers, N... 47, pp. 301, 303, Mentor Book (1961).

Madison relied upon Montesquieu's theory of a republican form of

government in defending the Guarantee Clause of the Constitution,

Montesquieu is unequivocal on the subject of judicial exercise of

legislative power:

"(T)here is no liberty, if the judiciary power

be not separated from the legislative and execu-

tive. Were it joined with the legislative, the

life and liberty of the subject would be exposed

to arbitrary control; for the judge would be

then the legislator."' Montesquieu, The Spirit

of the Laws, Book XI, p. 152, fner- Publishing

Company (1966) .

Although this Court has recently obseryed that the doc-

trine of separation of powers embodied in the federal constitution

is not mandatory on the States, it has indicated that the Due

Process Clause of the Fourteenth Amendment “presumably prohibits

State courts from depriving persons of liberty or property as

punishment for criminal conduct except to the extent authorized

by state law." Whalen v. United States, U.S, 100 S.Ct.

1432, 4136-1437 n.4, _. L.Ed2d ~ (1980).

Only this Court can insure that citizens of the State of

Arizona will not fall prey to legislative action by the Arizona

Supreme Court which has the effect of depriving the Petitioner of

his life,

////

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CONCLUSION

For the reasons stated above, Petitioner requests that

this Court issue a Writ of Certiorari to the Supreme Court of the

State of Arizona in this case.

Respectfully submitted this 277 day of October, 1980.

Offices of Kerley I, DeFrancesco

orney for Petitioner

01 E. Fry Boulevard, Suite One

Sierra Vista, Arizona 85635

-24-

EXHIBIT A

IN THE SUPREME COURT OF THE STATE OF ARIZONA

In Banc

7 rPrLeo

STATE OF ARIZONA, aes, JUL 25 1980

Appellee, ) wm LEAN SUPREME COUNTS

v. No. 4346

JAMES DEAN CLARK, ;

Appellant.

)

Appeal from the Superior Court of Cochise County

Cause No. 9602

The Honorable Anthony T. Deddens

AFFIRMED |

Mr. Robert K. Corbin, Attorney General

by William J. Schafer III, Chief Counsel, Criminal Division

by Jessica L. Gifford, Ass't Attorney General

Attorneys for Appellee . Phoenix

Kerley & Defrancesco

by James K. Kerley

Attorney for Appellant Bisbee

HOLOHAN, Vice Ch’ef Justice

Appellant, James Dean Clark, was convicted after a trial

by a jury of four counts of first-degree murder. He was sentenced

to death on each ccunt. A timely appeal was filed. We have juris-

diction pursuant to A.R.S. § 13-4031.

The essential facts are that for a year prior to the murders

appellant worked as a wrangler at a dude ranch owned by Mr. and

. Mrs. Charles Thumm located near Elfrida, Arizona. In the early morning

hours of December 4, 1977, appellant murdered four persons,

Beginning in the wranglers' quarters, he stabbed to death an older

wrangler who was "passed out" in his -bed and then shot to death a

young wrangler as he slept in his sleeping bag. Appellant next

picked up a .357 Magnum from the young wrangler's room, walked

from the quarters to the Thumms' house and shot to death both Mr.

and Mrs. Thumm. After slashing the tires on all vehicles remaining

at the ranch, appellant fled the area in the Thumms' station wagon,

taking with him rings and credit cards belonging to the Thumms,

guns, including those used in the murders, and a saddle. He was

apprehended a few days later in El Paso, Texas.

The issues on appeal are:

1) Did the trial court err in questioning Prospective

jurors about their views on capital punishment?

2) Did the trial court erroneously deny appellant's

request to tape-record the trial?

3) Was appellant's right to. confront witnesses violated

by John Doe's appearance at the preliminary hearing or at trial?

4) Was appellant denied the right to counsel when he made

statements without the presence of counsel?

5) Were photographs of the victims erroneously admitted?

6) Did the trial court err in admitting into evidence

a bloodstained pillow?

7) Did the trial court err in refusing to grant a mistrial

because the courtroom door was locked for a short time? .

8) Did the trial courc err in refusing a curative instruc-

tion regarding a lapse of time between appellant's arrest and his

exculpatory John Doe murder story?

9) Were the jury instructions including a flight instruc-

tion erroneous?

10) Is the death penalty unconstitutional, either per

se, as violative of the Eighth Amendment or because it excludes the

jury from participation?

wie

11) Is the holding of this court in State v. Watsor,

120 Ariz. 441, 586 P.2¢4 1253 (1978) correct?

12) Did the trial court err in finding sapetate aggravating

circumstances and no mitigating circumstances?

Appellant asserts that it was a violation of his right to

an impartial jury for the trial court to ask prospective jurors

if their opinions on capital punishment would prevent them from

making a fair and impartial decision as to appellant's guilt or

innocence. He points out that the Arizona system in capital cases

is a bifurcated proceeding in which the jury decides guilt or

innocence but has no role in deciding the sentence; therefore, he

argues that the issue of capital punishment is irrelevant to the

jury's consideration and should not be asked.

In State v. Ramirez, 116 Ariz. 259, 569 P.2d 201 (1977), we

resolved the issue contrary to the appellant's position. In

Ramirez, we ruled that although veniremen may recognize that

the jury does not impose the sentence under Arizona law, the

prosecution may inquire whether their attitude toward the death

penalty would prevent them from making an impartial decision. In

this case, no prospective juror was struck for cause simply because

of his or her scrupples about the death penalty. The trial court

carefully followed the mandates of Witherspoon v. Illinois, 391 U.S.

510, 88 S. Ct. 1770, 20 L.Ed.2d 776 (1968), in conducting the voir

dire of the jury. See also Adams v. Texas _ U.S. ,

S. Ct. : L.Ed. 2d —__. (1980) (48LW4869). The voir dire

and selection of the jury was carried out in conformity with

constitutional standards.

Appellant alleges that he was denied the effective assistance

of counsel by the trial court's denial of his request to tape-record

the proceedings. Appellant cites 67 A.L.R.3d 1013 and Davey v.

City of Atlanta, 130 Ga. App. 687, 204 S.E.2d 322 (1974), as support

oR

for this Proposition. However, Davey, supra, involved a non-record

court. Denial of permission to tape the proceedings was not error

where an official court reporter was present who could have Provided

partial transcripts if requested. The trial court's denial of

permission to tape the Proceedings was not error under the circum-

stances. |

Appellant contends that his right to confront witnesses

against him, guaranteed by the Sixth Amendment to the United States

Constitution, was denied both at the preliminary hearing and at

the trial. The specific instances which form appellant's complaint

involve the appearance of John Doe, a witness for the state at

the preliminary hearing and later at the trial. The witness did

not give his true name or address at the preliminary hearing or at

trial. At the preliminary hearing the witness wore a ski mask to

hide his identity, but he did remove the mask briefly so that

appellant could see him.

Based on Smith v. Illinois, 390 u.s. 129, 88 S. Ct. 748,

19 L.Ed.2d 956 (1968) and Alford y. United States, 282 U.s. 687,

51S. Ct. 218, 75 L.Ed. 624 (1931), appellant maintains that the

trial court committed error by not requiring a new Preliminary

hearing and by restricting the defense at trial from cross-examining

the witness to determine his name and address.

The limitation on cross-examination at the preliminary hearing

was not error: The appellant was acquainted with the witness, and

he had occasion to be with him in El Paso. The full details of the

witness' activities prior to meeting the appellant may not have been

known, but the development of such information was a subject more

Properly covered by the discovery procedure of the Criminal Rules

rather than the preliminary hearing. See Rule 15, Rules of Criminal

Procedure.

A greater restriction upca the examination of witnesses is

permissible at the preliminary examination stage of the criminal

Process because the preliminary hearing is limited to the determina-

tion of probable cause to hold the defendant to answer for an offense

It is not the purpose of the preliminary examination to provide a

means for the discovery of evidence. State v. Bojorquez, 111 Ariz.

949, 535 P.2d 6 (1975). The Rules of Criminal Procedure provide

& separate and adequate means for the defense to discover the

evidence.

Restriction on cross-examination at trial is another matter.

In State v. Fleming, 117 Ariz. 122, 125, 571 P.2d 268, 271 (1977),

we stated: . |

"Distinctions between reasonable limitations on the

scope of cross-examination and unnecessary restrictions

on the right to confront witnesses are, however, difficult

to draw and must be considered on a@ case-by-case basis.

The test is whether the defendant has been denied the

opportunity of presenting to the trier of fact informa-

tion which bears either on the issues in the case or on

Prior to the trial of this case the court ordered that the

prosecution disclose to defense counsel John Doe's name and felony

record, On the day that John Doe was to testify, the trial court

conducted proceedings in chambers with both the Prosecutor and

defense counsel present. During this hearing John Doe disclosed

his real name and the name of the religious retreat where he was

currently living. The trial court inquired into the nature of the

threat to the personal safety of John Doe, determined the threat

was real and ruled, over defense counsel's objection, that John

Doe's real name not be revealed to the jury.

At trial, John Doe's address Was given as a religious retreat

in El Paso. He acknowledged his prior felonies and his activities

as a paid Drug Enforcement Administration informer, heroin addict,

procurer of prostitutes and con artist raising money to support

his heroin habit.

John Doe's testimony against the appellant dealt with their

meeting in El Paso, their activities there, and the state-

t * .

“he

ment made by appellant concerning the shcoting of Charles Thumn.

The defense counsel extensively cross-examined John Doe and

developed the impeachment material which had been disclosed.

The record of this case is unlike that in either Alford or

Smith. The defense was not denied the Opportunity to develop the

information necessary to attack the credibility of the witness.

The defense was not denied access to the true identity of the

witness. The withholding of the witness' true name was limited

to the jury and the public. Justice White in his concurring

opinion in Smith specifically recognized as an exception "in-

quiries which tend to endanger the personal safety of the witness."

390 U.S. at 133-4, 88 S. Ct. at 751, and courts have repeatedly

recognized that Precautionary measures must be taken when a

witness' safety is at stake. See, e.g., U.S. v. Herbert, 502

F.2d 890 (lOth Cir. 1974), cert. denied 420 U.s. 931, 95 S. Cr. 1134,

43 L.Ed.2d 403; U.S. v. Smaldone, 484 F 2d 311 (10th Cir. 1973),

cert. denied 415 U.S. 915, 94S. Ct. 1411, 39 L.Ed.2a 469; U.S. v.

Saletko, 452 F.2d 193 (7th Cir. 1971), cert. denied 405 U.S. 1040,

92S. Ct. 1311, 31 L.Ed.2d 581. |

State v. Baumann, _ Ariz. —__» 610 P.2d 38 (1980), pre-

sented an analogous situation to the case at bar in that the witness’

current address was withheld over objection. In Baumann we upheld

the trial court's exercise of discretion because the witness had

been thoroughly cross-examined on every aspect relating to the

case and to his credibility.

As in Baumann, appellant took advantage of the ample opportunities

Presented to impeach John Dee. All aspects of the case and factors

bearing on credibility were explored. Appellant was not prejudiced

by withholding John Doe's real name — the jury. There was no

error in the ruling of the trial judge on this point.

Appellant urges us to hold that statements by the defendant

made during incarceration were involuntary despite a clear waiver

in each instance of his Miranda rights Appellant concedes that

nie

the record does seem to Suggest that the statements were made

voluntarily and in fact trial counsel did not object to their

admission into evidence but, relying on Brewer v. Williams, 430

U.S. 387, 97 Ss. Cr. 1232, 51 L.Ed.2d 424 (1977), he asserts that

any questioning during incarceration without the knowledge, approval

or participation of counsel denies him the assistance of counsel.

Appellant made three Statements to the primary investigating

officer in the case. The first statement was made December 9, 1977,

as appellant was transported from El Paso to Bisbee. Counsel had

not yet been appointed. The second Statement was made on January

10, 1978. Although counsel had been appointed, appellant specific-

ally requested that an officer come to talk with him about the

crime. On January 12, 1978, appellant again specifically asked

that the same officer visit him The officer who took the statements

testified that he asked appellant if defense counsel was aware of

the meeting and did appellant want to talk to defense counsel prior

to the interview. Appellant replied that he did not want to talk

to defense counsel but wanted to go into more detail concerning the

murders. In these second and third interviews appellant blamed the

murders on the John Doe from El Paso

‘The defense counsel had advised appellant not to make any

statements until his version of how the crime occurred could be

investigated, but appellant disregarded his advice.

Unlike Brewer v. Williams, Supra, the appellant had requested

the interview with the officer and appellant had been reminded of

his right to have his attorney Present Under the circumstances

shown by the evidence, the trial court found that the defendant

had waived his Sixth Amendment rights, and the record supports

this finding.

Appellant complains that photographs of the victims' bodies were

SO gruesome and "heinous" that they inflamed the jury and that it

Was an abuse of discretion to allow them to be introduced into eviden

-

Am

——s kk ee

.”

Trial courts have great discretion in the admission of

photographs. State v. Smith, 123 Ariz. 243, 599 P.2d 199 (1979);

State v. Morales, 120 Ariz. 517, 587 P.2d 236 (1978). As long

as the photograph has some probative value it is admissible even

if inflammatory. State v. Caldwell, 117 Ariz. 464, 573 P.2d

864 (1977). Reasons for admission include identification of the

deceased, to show the location of mortal wounds, to illustrate

how. the crime was committed, and to aid the jury in understanding

testimony. State v. Morales, supra. The photcgraphs at issue

here illustrated witness’ testimony in several particulars including

how the crime was committed and the location of wounds. The photo-

graphs admitted in evidence were those which presented the relevant

information in the least objectionable form. We find no abuse of

discretion in the admission of the photographs.

Appellant contends that he was denied a fair trial by the

admission into evidence of a bloodstained pillow with a bullet hole

in it. The pillow had been found under Mrs. Thumm's head. A bullet

jacket+/ found in the pillow matched a bullet core2/ found among the

clothes appellant had left in his El Paso hotel room. Laboratory

tests on the bullet core revealed fragments of organic matter that

could have been bone and fibers that were similar to those of the

pillow cover. Thus the prosecution argued that the pillow was a

necessary link in this chain of evidence substantially linking

appellant with the crimes.

Under Rule 403, Rules of Evidence, i7A A.R.S., otherwise

relevant evidence is properly excluded if its probative value is

outweighed by various factors including unfair prejudice.

1/p bullet jacket is the copper alloy outer shell of what is known

as a jacket bullet which contains a lead core surrounded by a

copper alloy shell.

2/the lead portion of the bullet.

; « 4 .

ns ek, OE Be RT IT LAE SLPS ROME oe Ee

The weighing and balancing under Rule 403 is within the

discretion of the trial court and will not be disturbed on appeal

unless it has been clearly abused. State v. Smith, supia. If

gruesome evidence is admitted for the sole purpose of inflaming the

jury, we will of course reverse on appeal. State v. Steele, 120

Ariz. 462, 586 P.2d 1274 (1978). This was not the case here, and

we find no abuse of discretion by the trial court in allowing the

admission of evidence of the pillow.

The appellant contends he was denied the right to a’ public

trial because the courtroom was closed to members of the public

during the trial. The incident referred to by appellant occurred

on the morning of June 21, 1978, when the courtroom was not availabl

to members of the public for about 30 minutes. A deputy sheriff had

advised spectators that they must wait for the morning recess before

entering the courtroom to avoid distracting the Proceedings. The

matter was called to the trial court's attention, and the trial jules

made it clear that no such restriction had ever been authorized or

approved by hin. |

The trial judge denied the defense motion for mistrial. The tri

court found that the incident had been of extremely short duration,

immediately corrected when discovered, and there had been no prejudic

to the defense. We agree with the ruling of the trial court, and

we note that the incident is similar to that described in State v.

Von Reeden, 104 Ariz. 404, 454 P.2d 149 (1969), where we also

concluded that the defendant's constitutional right to a public

trial had not been violated when the courtroom had been closed to

the public for a brief period of time.

Appellant argues without citation of authority that the trial

court erred in denying a request for a curative instruction re-

garding the reason for the time lapse between the preliminary

hearing and appellant's explanation as to how the murders occurred.

When first arrested in El Paso, appellant Signed a statement ex-

plaining his presence in El Paso as a vacation, Appellant's

preliminary hearing was held on December 15, 1977, and on January

10, 1978, appellant Save a different story blaming the murders

a®e

- - - here ee eee

- ‘ ”

|

on the John Doe from El Paso. The Prosecutor argued in closing

that this second story was concocted. Defense counsel asked for

@ curative instruction directing tue jury not to consider this

time lapse because there was a legal explanation for it. Defense

counsel then stated to the trial court that he had directed

appellant not to give the second statement until after investiga-

tion. This explanation for the time lapse was not in evidence.

The trial court declined to give a curative instruction because

such an instruction would be &@ comment on the evidence, would

involve discussing matters not in the record and because the

prosecutor's remarks were a fair comment on the evidence.

The ruling of the trial court was correct. There was no

evidence in the record to support the instruction.

Appellant argues that a flight instruction was inappropriate

in the case at bar because appellant was neither pursued after he

left the scene of the crimes nor did he conceal himself. Merely

leaving the scene of a crime is not evidence of flight. Before a

flight instruction can be given there Must be evidence of open

flight as upon pursuit, or there must be evidence of concealment.

State v. Rodgers, 103 Ariz. 393, 442 P.2da 840 (1968); State v.

Smith, 113 Ariz. 298, 552 P.2d 1192 (1976). The manner of

leaving the scene of the crime must reveal a consciousness of

guilt. State v. Bailey, 107 Ariz. 451, 489 P.2d 261 (1971); State

v. Rodgers, Supra. Even without pursuit, a defendant's manner

of leaving the scene may manifest consciousness of guilt. State

_V- Lujan, 124 Ariz. 365, 604 P.2d 629 (1979).

Appellant suddenly left the ranch which had been home for a

year without a word to anyone. He left no information of where

he was going. The tires on all vehicles remaining at the ranch

were slashed. Appellant was found in possession of his employers’

car and credit card. At the time he left the ranch the appellant

was not pursued by the police, but we conclude that there was

sufficient evidence to show that appellant's leaving was in order

to avoid arrest and with a consciousness of guilt. It was proper

to give a flight instruction.

-10-

In passing, we note that the flight instruction given in

this case adequately covered the issue, but the Recommended

Arizona Jury Instruction on flight is the preferred one.

Appellant also claims the trial court erred in refusing

to give several other instructions tendered by the defense.

We have carefully examined the instructions and reiterate our

holding in State v. Taylor, 109 Ariz. 267, 508 P.2d 731 (1973)

that if the issues are adequately covered by the instructions

given, it is not error to refuse to single out a particular

element for a special instruction. The instructions, read as a

whole, adequately state the law. State v. Childs, 113 Ariz. 318,

553 P.2d 1192 (1976). We find no error.

State v. Watson, 120 Ariz. 441, 586 P.2d 1253, cert. denied.

440 U.S. 924, 99 S. Ct. 1254, —__... L.Ed.2d_ (1979), and State

v. Richmond, 114 Ariz. 186, 560 P.2d 41 (1976), cert. denied,

433 U.S. 915, 97 S. Ct. 2988, 53 L.Ed.2d 1101 (1977) are disposi-

tive of appellant's issue regarding the constitutionality of

Arizona's death penalty statute.

As to the continued vitality of the Watson decision, we

have repeatedly reaffirmed Watson in recent decisions. See,

e-.g., State v. Evans, _ Ariz. —___.. 606 P.2d 16 (1980); State v.

Arnett, ___ Ariz. ___, 608 P.2d 778 (1980); State v. Mata, —__

Ariz. ___, 609 P.2d 48 (1980). We continue to adhere to the

views expressed in Watson.

Appellant challenges the trial court's imposition of the death

penalty, asserting that the trial court erroneously found three

aggravating factors and no mitigating factors. We note that

pursuant to State v. Watson, supra, which had been rendered during

the mitigation hearing, the trial court continued the hearing on

sentencing for one week to allow appellant to present any and all

mitigating factors. Defense counsel argues that the trial court

erroneously ordered that the state could present any aggravating

circumstances, not limited to the statutory aggravating circumstances.

«82.

The record reveals, however, that the state relied upon the evidence

presented during the trial for the aggravating circumstances. No

new evidence on behalf of the state was presented at the sentencing

hearing. Also, in closing argument at the hearing, the prosecutor

stated that he was relying solely upon the statutory aggravating

circumstances. Thus the trial court's order allowing the state to

present aggravating circumstances in addition to those in the statute,

although clearly erroneous, resulted in no prejudice to appellant.

The trial court found the following aggravating factors:

1) That appellant created a grave risk of death to a

second victim, Mrs. Thumm, in shooting Mr. Thumm in the hallway of

their home; —

2) that appellant committed the murders of Mr. and Mrs.

Thumm with the expectation of receiving something of pecuniary

value, to-wit: Credit cards, jewelry and an automobile;

3) that appellant committed the offenses in an especially

crue: and depraved manner. |

First we address the "grave risk of death" issue. In

State v. Doss, 116 Ariz. 156, 568 P.2d 1054 (1977), we affirmed

the trial court's finding that this aggravating circumstance was

present where the defendant shot the victim in a crowded college

auditorium and in fact wounded another student. In State v. Blazak,

114 Ariz. 199, 560 P.2d 54 (1977), a similar finding was affirmed

where the defendant shot the victims and injured another person

in a bar with several people in it.

Although it is unclear in the case at bar exactly where Mrs.

Thumm was at the time of Mr. Thumm's death, the evidence indicated

that she was in anothe.: room. Even given the ricocheting of bullets,

Mrs. Thumm was not close enough to be within any sort of "zone of

danger." This is not the sort of crowded bar or auditorium situa-

tion present in Blazak and Doss. Thus, we find that the trial court

erroneously found grave risk of death as an aggravating circumstance.

o if.

The trial court also found that appellant committed the |

murders with the expectation of receiving something of pecuniary

gain. A.R.S. § 13-454(E)(5)3/reade.

for the Tee" tpt, or i cate oe fate ae, cone deratton

anything of ecunlary value."

Appellant contends that the trial court incorrectly con-

cluded that the above aggravating circumstance was present

in this murder. He argues that the clear import of the fifth

a8ggravating circumstance is that it applies only to the "hired

gun" situation. Since there is no evidence that the appellant

was hired or expected to be paid for killing the victims, he

contends that the evidence does not justify the finding made

by the trial court,

We do not read the Statute in the limited fashion Suggested

by appellant. In State v. Madsen, a. A¥is. » 609 P.24

1046 (1980), we held that A.R.S. § 13-454(E) (5) applied to a

murder committed for financial gain. We noted that if the

receipt of money is established as a cause of the murder then

the fifth aggravating circumstance would have been established.

In Madsen we rejected the state's contention that the evidence

Proved that the defendant murdered his wife to collect the life

insurance proceeds. We pointed out, however, that if the murder

had been committed for a financial motivation it would have con-

stituted an aggravating circumstance. |

Unlike Madsen the evidence in this case supports the position

of the trial court that the-murder of the Thumms was committed

for financial gain. After killing the Thumms the appellant took

their credit cards, some money, two valuable diamond rings, and

their 1976 Chevrolet Station wagon. The circumstances surrounding

the total episode reflect that the expectation of financial gain

Vourrently A.R.S 5 13-703(F) (5).

= 13-

»*

was a cause of the murders.

Another aggravating circumstance found by the trial court

was that the murders were committed in an especially cruel and

depraved manner. A.R.S. § 13-454 (E) (6); A.R.S. § 13- ~703(E) (6),

1978 Criminal Code. The language of (E)(6) has been the subject

of several of our decisions. State v. Richmond, supra; State

v. Knapp, 114 Ariz. 531, 562 P.2d 704 (1977); State v. Watson,

Supra; State v. Ceja, _—— Ariz. : P.2d ss (1980),

(No. 3101-2 filed May 19, 1980). As pointed out in Knapp the

words used have meanings that are clear to a person of average in-

telligence and understanding. In Knapp we set out the definitions

used by the dictionary for the terms heinous, cruel and depraved.

In.the second Ceja case we pointed out that the cruelty

referred to in the statute involved the pain and the mental and

physical distress visited upon the victims. Heinous and depraved

as used in the same statute meant the mental state and attitude of

the perpetrator as reflected in his words and actions. We also

noted in the second Ceja that it was not necessary that all three

elements, heinous, cruel, or depraved, be Present in the murder.

The statutory expression is in the disjunctive, so either all or

one could constitute an aggravating circumstance.

The trial judge found the murder to be committed in an

especially cruel manner. As defined by our previous decisions,

the evidence does not Support this finding. There is no evidence

that any of the victims suffered any pain. The fatal wounds

appear to have been delivered at vital parts of the bodies of the

victims, and death a swiftly.

The trial judge found the murders to have been committed in

an especially depraved manner. We agree.

The evidence shows that the appellant was totally without

regard for human life. Without justification or excuse, he killed

four human beings. Two of his victim's, the Thumms, had provided

~thn

work and a home to appellant after he had been released from a

junvenile correctional institution. The third victim, a young man

Seventeen years of age, had supposedly been a friend of the

appellant. These factors did not dissuade him from his brutal

task. His state of mind is illustrated by his comment to John

Doe in El Paso to the effect that, "You should have seen Charley

when I hit him with those cutters." In addition it must be noted

that the appellant kept a spent bullet as a grissly souvenir of

his crime. We believe that the evidence fully supports the finding

of the trial court that the acts of the appellant constitute an

aggravating circumstance under Subsection (E)(6) of the statute.

In mitigation the appellant points out his youth (20 years

of age), poor home life during his formative years, his lack of

adult criminal record, and his emotional problems produced by an

anti-social personality. All of which appellant argues should

require the conclusion that the mitigating circumstances are

sufficiently substantial to call for leniency. The trial court

found that there were no mitigating circumstances shown which were

sufficiently substantial to call for leniency. Appellant suggested

that the trial court did not consider any mitigation which was

offered. We reject this conclusion and note that the trial judge

carefully reviewed the evidence offered in mitigation. After such

careful consideration, he concluded that it was not sufficiently

substantial‘to call for leniency.

From our independent review of the evidence in capital cases,

State v. Richmond, Supra, we conclude that the aggravating circum-

stances described before have been established and the mitigating

~15-

circumstances are not sufficiently substantial to call for leniency;

therefore, the judgment and sentence are affirmed as to all counts,

WILLIAM A, HOLOHAN, Vice Chief Justice

CONCURRING :

FRED C. STRUCKMEYER, JR Chiet Justice

JACK D. H. HAYS, Justice

JAMES DUKE CAMERON, Justice

«$6.

GORDON, Justice (Specially Concurring) :

Although I would affirm both the judgment and sentence,

I disagree with the majority's conclusion that the killing of

the Thumms was committed in expectation of the receipt of some-

thing of pecuniary value. Reading former A.R.S. § 13-454E (4)

and (5) together, I believe that the Legislature intended only

to include the situation where defendant is a hired killer.

A.R.S. § 13-454E(4) and (5S) provides:

"4. The defendant Procured the com-

mission of the offense by payment, or

Promise of payment, of anything of

pecuniary value.

"5. The defendant committed the offense

as consideration for the seestge. or in

expectation of the receipt, of anything

of pecuniary value."

Paragraph 4 applies to the procurer of the offense whether

he has paid the killer prior to the offense or has Promised to

Pay after the murder has been committed. Paragraph 5 parallels

the preceding paragraph by applying to the killer whether he

has been paid at the time of the offense or expects to receive

payment in the future.

By extending the meaning of A.R.S. § 13-454E(5) to the

instant case, the majority has included a killing in the per-

petration of a robbery as an aggravating circumstance. The

ol7~

Legislature, had it so intended, could have accomplished this

result with more precise, specific language.

FRANK X. GORDON, JR.

Justice

ST

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24

25

26

27 |

28

29

30

31

32

# EXHIBIT B

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF COCHISE

STATE OF ARIZONA,

Plaintiff,

No. 9602

vs.

JAMES DEAN CLARK,

Defendant.

ww" Ww Se ae ae ae

REPORTER'S TRANSCRIFT 0% PROCEEDINGS

SEALED RECORD

APPEARANCES :

For Plaintiff MR. JOSEPH M. FULLER

Deputy County Attorney

For Defendant iR. ARTHUR C. ATONNA

‘4. ttorney-At-Law

P.O. Box 1182

Douglas, Arizona 85607

BE [T REMEMBERED that on the 14th day of June, 1978, the

SL matter came on for hearing before the Honorable

nthony T. Deddens, Judge of the Superior Court, at which time

the following proceedings were had.

PROCEEDINGS

isbee, Arizona, Wednesday, June 14th, 1978.

THE COURT: The record may show these proceedings in

hambers; in chambers proceedings with Mr. Vance and Mr. Atonna

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present and Mr. Fuller from the County Attorney's Office present.

Your name, sir?

THE WITNESS: John Doe. E

THE COURT: Okay, sir. This record, the Court wants the |

Court Reporter to understand is a sealed, to be a sealed record, |

and so we want to know what your true name is, sir?

THE WITNESS: James Morrison Kooper.

EXAMINATION

BY THE COURT:

Q Where do you live?

A El Paso, Texas:

Q Street address?

A. There is none.

Q There isn't any?

A. T am in a religious retreat now. That is not a

Standard address.

Q That is not?

A. No.

Q What retreat house are you in?

A. The Christian Home.

Q The County Attorney claims that he wants your true

identity of John Kooper to be withheld from the public in the court

room, using the name and answering to the name John Doe, on the

grounds that your life may be in danger, sir?

A. Yes,

Q Suppose you tell me reasons why you think your life

may be in danger if your true name is, disclosed,

A, With reporters in the courtroom, I am a DEA infor-

mant and I have got open cases in El Paso County, Texas. Mey have

already got suspicion that I am informing in this case. My life hak

been threatened already because of that.

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Q Okay.

A. Not as to do with this case, but as to do that I

am informing.

THE COURT: The record may show that Mr. Hemenway just

came in chambers.

By whom was your life threatened, sir, do you know?

A. No, it is just Mexican Americans.

Q (continuining by the Court) Have you been informin

on people engaging in the drug traffic?

Yes, in El Paso, Texas.

And across the line from Juarez to the United State

Yes, sir.

And, when did this threat come to you, sir?

It has been about a month ago now.

And, by what means?

> PrP OF PL >

I overheard it in a bar then a friend of mine told

me that: They are going to kill you, man, be very careful, you

know, your life is in danger, be really careful, you know.

Q Have you heard anything from the DEA concerning

this, sir?

A I told them. [I told them that my life was in

danger and --

Q Have they given you any report of learning anything

about this?

A. They just told me to, you know, be careful, try not

to go out on the street in El Paso.

Q How long have you been engaged in this practice of

informing, sir?

All together now?

Yes, how many years?

Since about 1965,

a a: a

Twelve years?

——

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A. "63. I think it was '63.

Q Twelve to fourteen years?

A. The first case I ever had was On an FBI case, '62,

something like that.

Q Mr. Fuller has been telling us that you have been

using heroin, sir, for some time I understand?

A. [ have been using heroin since 1961 or “G2. f=

haven't used anything in a month and a half, two months.

Q That was going to be my next question, You have

answered it already, sir.

You have heard of this threat through two sources,

Sir?

Yes, sir,

Q One, a friend telling you that your life was in

danger and to watch out?

‘ Right.

“And the other, you heard talk at a bar?

A

Q

A, Just heard talk at a couble of bars actually.

Q A couple of bars?

A Yes.

Q Was your name mentioned in the talk?

A. They were talking. My name was mentioned. They

were looking right at me.

Q. So, this was a face to face threat, then, I take

it?

A, Well it wasn't fact to face, but they was as far

as you from me.

Q You were listening?

A, Yes.

Q In other words --

A, In other words, it looked like they wanted me to

hear it so I would leave town so, you know.

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THE WITNESS: Where I testified in Court, Your Honor?

THE COURT: No, where you gave information?

THE WITNESS: Where I gave information?

THE COURT: That is right, to DEA and arrests were made

as a result of your giving information?

THE WITNESS: I have got one case pending now, an arrest.

It is in the Grand Jury. They are taking it to the Grand Jury.

THE COURT: How many times have you testified in Court?

THE WITNESS: I have testified once in Court and I have

given information approximately 35 times.

THE COURT: Thirty-five times?

THE WITNESS: Something like that.

THE COURT: Did you disclose your true name in those case

THE WITNESS: That is always the understanding, I never

have.

THE COURT: How did you give your name, as John Doe?

THE WITNESS: John Doe, yes, sir.

THE COURT: The Government put you on the stand in this

way, is that it?

THE WITNESS: In the 35 cases, they did not put me on

the stand. These were all Federal Court cases.

THE COURT: Well, I misunderstood. I thought you said

you had testified?

THE WITNESS: I have only testified in one, Your Honor.

I gave information in 35 other ones.

THE COURT: All right.

THE WITNESS: Approximately 35. LI can't say definitely

for sure.

THE COURT: Approximately how many of those resulted in

convictions, sir?

THE WITNESS: I think 29 or 30 of them resulted in

convictions.

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THE COURT: Now, Mr. Atonna, you want to make some

argument as to why his name should be disclosed?

MR. ATONNA: Yes, Your Honor. If the Court please,

first of all, I would make the argument based upon waiver of secrec

The name appears two times in the disclosure. One time where

Mr. Doe has signed his true name to a photo lineup picture identi-

fying Mr, Clark for the El Paso Police Department and another time

on an evidence receipt to the El Paso Police Department where he

Signed the receipt. We submit that because of his changed way of

life, that his activities no longer require the secrecy and

anonymity that might be required if he were still what you would

call a street person actively engaged in the informing business.

We also submit that the failure to disclose violates

Arizona Constitution Article 2 Section 24 calling for Public Trials

and also Amendment 6 to the United States Constitution.

John Doe is not an informer in this case. HHe is not an

informer to which the traditional informer protections would apply.

The traditional informer cases talk about protecting an informer

who is acting as an informer in that case. The distinction here is

that Mr. Doe is a material witness in this case. He just happens,

as far as we are concerned, to have a sideline of being an informer

but he is not serving as an informer in this particular case. We

also submit that the failure to order that he disclose his name in

Court and testify as any other material witness would testify,

would be a violation of the Confrontation Clause under the princi-

ples set forth in Smith Versus Illinois. We haye discussed the

Smith case in great detail in the preyious motions we haye filed

some time ago. We respectively request that no special protection

be allowed Mr. Doe, in fact, he be ordered to testify and disclose

his true name in Court, as would any other material witness.

THE COURT: Mr. Kooper, in how many cases, can you tell

us approximately, have you informed in?

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THE COURT: Anything more, Mr. Atonna?

MR. ATONNA: I would be interested in knowing what name

he used when he testified the one time and I would also be inter-

ested in knowing as a result of his, or his providing information

previously if there has been any threats and if all of this has

occurred within the El Paso area because if it has, it would seem

as though he is pretty safe in El Paso or he wouldn't be there any

longer.

THE COURT: Well, any one of these convicted individuals

could have a friend. If they learned who it was through the dis-

closure, the name, his life could be in danger there in that way.

I am disposed to allow him to testify in the courtroom under the

name of John Doe.

MR. ATONNA: Would the Court inquire as to what name he

used at the time he did testify?

THE COURT: What name did you use?

THE WITNESS: My original. It was in Washington, D.C.

It was the first case [ was ever arrested on.

THE COURT: The first case that you were arrested on?

THE WITNESS: 1962 or '63. Well, he has got it on the ~

rap sheet.

THE COURT: The case in which you were conyicted is the

case in which you gave the information?

THE WITNESS: I was convicted on that case, Your Honor.

THE COURT: Well, I understood you to say it was the

first case that you were convicted on?

THE WITNESS: No, it was the first case I was arrested onl,

THE COURT: Excuse me. Well, I am still disposed to

allow him to testify, to state his name as John Doe.

I will sustain any objection, Mr. Atonna, to any

efforts to uncover his real name in the courtroom.

MR. FULLER: I will be objecting, I give Mr. Atonna act

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now, to the actual name of the religious retreat. I think that

falls into the same category.

THE COURT: It does, if he doesn't want to give the name.

Furthermore, I would like to tell you, gentlemen,

that I issued an order about half an hour or so ago that no photo-

graphy was to be taken in connection with this trial in the

courthouse and no pictures to be taken of Court personnel, witnesse

et cetera,

MR. FULLER: One other thing, Your Honor, IL might bring

this forward. Apparently he was mistaken when Detective Weick was

telling me about Mr. Doe's prior conyictions, but he is correct in

that there are 4 convictions instead of the 2,

THE COURT: Does Mr. Atonna know about them.

MR. ATONNA: Yes. |

THE COURT: You had a motion in limine not to go beyond

10 years. Did I make a specific ruling on that?

MR. FULLER: I don't remember, Your Honor.

THE COURT: All right. JI. am going to overrule your

motion, deny your motion in limine. We really should get that on

the Clerk's record.

MR. FULLER: I will withdraw my motion, then, because

there are the 4, I really have no objection,

THE COURT: All right.

MR. ATONNA; Your Honor, there is a question of, Mr.

Fuller had 3 down there. There was one, 3-66, yiolation of Federall

Narcotics Laws. He said it was a felony’charge but he thinks it

was reduced to a misdemeanor, but he doesn't know for sure. That,

of course, puts me in a --

MR. FULLER: That was the 3 months?

THE WITNESS: That was tried before U.S. Commission. me

U.S. Commission can't try no felonies. They can only bind over to

Grand Jury. I pled guilty to a misdemeanor. They can't bind over

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THE COURT: Did I understand, Mr. Fuller, you said now

that there were 4 felony convictions?

MR. FULLER: Yes, Your Honor. Mr. Doe will admit those.

THE COURT: He disclosed those to Mr. Atonna?

MR. FULLER: Yes, he has.

MR. ATONNA: If I understnad correctly, the Court will

not permit me to delve into origfnal felony charges that were

dropped or reduced to misdemeanors merely because Sf deals he

worked out as a result of his DEA informing?

THE COURT; Felony convictions is all we are allowed to

show,

MR. ATONNA: Just so there is a record on it, I would

object.

THE COURT: That is my ruling to restrict you to felony

convictions,

MR. ATONNA: That is fine. The record will indicate my

objection, then.

THE COURT: All right. If you want to get a record in

the Clerk's minutes of this, remember this record here is going to

be sealed and not opened unless there is an order of the Court.

?

MR. ATONNA: It will be available on Appeal, I am assumi

THE COURT: As a sealed record also.

Is he going to be your next witness?

MR. FULLER: No, Your Honor, because Doctor Byers won't

be on very long. We will put him on then we will put Mr. Doe on,

THE COURT: He is from Tucson?

MR. FULLER: I had asked him to come down earlier. I

feel rather bad since he has been down since early this morning.

THE COURT: Mr. Atonna wants to quit at 10 minutes to 5S:

He wants to get to a ball game down there where they are going to

swear in the new Council.

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MR. FULLER: I think that with Doctor Byers on and off

and with Mr. Doe on, we will finish up by then.

THE COURT: Let's get back in the courtroom.

RkRK

STATE OF ARIZONA )

COUNTY oF cocuise 3 °°"

I, SHARON MEREDITH, do hereby certify that as the aii

COURT REPORTER for COCHISE COUNTY that I was present at the fore-

going proceedings; that while there I took down in shorthand all

the oral testimony adduced and proceedings had; that the shourhand

notes were transcribed under my directions; and that the foregoing

14 pages contain a full, true and correct transcript of the matter

as set forth in the title page hereto.

q

Court Reporter

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EXHIBIT C

JQHN DOE

was thereupon produced as a witness, having been first duly sworn,

was examined and testified as follows:

THE COURT: Come around and be seated behind the mike, si

DIRECT EXAMINATION

BY MR. FULLER:

Q State your name for the purposes of these proceed-

ings?

John Doe.

And, city wise, John Doe, where are you from?

El Paso, Texas.

And, your occupation is?

| Paid informant for the DEA.

Drug Enforcement Administration?

- BD 2? SD » 2B >

Yes, sir.

CROSS-EXAMINATION

BY MR. ATONNA:

Q Mr. Doe, in 1977, did you have any employment or

Occupation other than DEA informant?

A. No, sir.

Q When was the last time you worked and held a job

Other than DEA informant?

A. I don't remember.

Q Was it a matter of months ago, years ago?

A. . Years.*

*The preceding is taken from the Trial Transcript of the testimony

of John Doe, the State's principal witness against the Appellant,

on the 14th day of June, 1978.

vr.