# Petition — JAMES DEAN CLARK v. ARIZONA (No. 80-5632) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1790%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 ## Text — °. ff 3? @ PFS 8 ee 4 @ SB eee eS 28 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 6S @ 8 @2et GCG 8 a Ti a ie ee ee ee ee ee ey ee ee ee ee ee ors 8 Be oar ansr OO @O taarpra we o 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 o ONT aaneuw»w ip i a ee ae ee ee Mimi eerPpe Serer errs 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 aie oe VIZ aanran pw oo? © © ek he wl mn eH . oe oe a a ae a a a ae o o os q o a rs & ~~ fb S maa Tt tt te 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 w 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." ///1 //// //// //// o OIA eR ww BP Se 2 Re eeseeenenm be ww ~~ tivaimuitetii._“©- ene eeo tee ee ee 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 o oO nN oanenr aw pH 2 fe 83 2 © es ek eo ow ee ee i ee ee ee ee) oe we ewe eo es ef Cee ets = Se e Wb HF O ee * 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: oo nt OQaerkoae»w wp See e rp ee eh we em hee ee = = = = 2 = te ~~. oN Aah OF WH FE O 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, © @nr QAaeuaew ww SBsese ear keenenenm me ww nL el ne = ee ee 7s oT £eGeneenerpr s&s & onr UW WD HF O 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 - Pe oe @wz aQqaekowne » S283 &™ée%YD WW wD wh hw Bb wy i al & - W@W YD HF O 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 o ont Oane a wn pw Ss £8 SB BRR RH YW wD WH Ww wD LE i a ~ A A i ee, eS So 0 OI ATR A DP O 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 o ON Aare ean p Saenppeaen we ® & hm & EE ool od So = =O = © ee ee en a ee, ee ae oTIaarkawnbe- o 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 -20- o oar oanrkuain ip Speer eaetetask ws we es . 2 el el ee ee ee) ww ws ee oF eee e tt eee S @ F WwW bY HF O — Ma ~-+——— ee en a ee — 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 «he o ont Qoaesi awn rw eoeenbe Db DH DY DH YW DY DY DH WD YP YP PP ee PS ee pe pe oF CO 8 ews aearteaoerseroeweaewswteannnetns © 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 “22- v es: ' - - ae > — a, oF a’ 4 ae ” vA iss o mo NV Qaetkoa wy 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 50 31 52 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, //// //// a23- oo V’Voaonwne8tawn pry eecety DY B® HW YW DH SB WH WH WD YP BY ee rF PrP YP YP BY —— = * GCNweeSCSEERE CEST EET EV BS 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 Ale, en te A a oe ae vw DOD YD DY YP BY Be ee Ee Ee op op Sonyr Oo 8 ONT ao ar & OD HY OS 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 o onroawnertuain ire ee eS oe ee eo ee ee oe oe oe a ee ee ee oe Oe ee pee a ae ee ee ee. eS ee S ) & @ se aS Se a 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. o oN An F&F WB wD BH i a ee ee a a ee ae a ee ee ee oe ee ee ee ee eee 7; © Ve See oe PBR SC Be Bk ake ES SS 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? —— 7 @ 4 8@ € & &- &:. ee ae a ee er el ee ee) ot ea ee - 8 es & Bp S&S | & & on rr |W WD HP O 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. o Ort naanean pp > 2 2 + 2 * hs se bh Se we a_i ew = © eC . & oer 6 es © a es & FE Se S 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. oo 2 @ 6 oe & @& &- HH aR Se ee ee SS a a a ee oe ee ee ee ee ee ee oe ee =o - © 8 @ 87 €@€ @é& @ & FPS 8&8 e& 4 eae eh fb S&S & SY SB 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? y o ORI A Dew DnD BP ao oo © bY YH YW YH YW YD WY WD HP BY Pe PY YP YP ee =F’ e 8 8S S&8SERGECHEP Bee SERRE VEE EC H 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 o oN Oaneuapw pH - 8.2 2 2 2 Se ee © & & Se he 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 * ~~ saline aati an oo VF aoanerkuoaitkt iw eo oan hy &0 &© YW YO YW WY WY WB YP PB H ~ en ae ee we a a Oe ee ae oo ee ae es 5 on felonies. 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. , 7 — ? ae ee ‘ poe roe . wane ens. weds Asides Lim. snes Siiite Bean duet a is ey dll i tt sc Hi fDi & 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1790%3A1. Public record. Not legal advice.