Opposition — EDWARD H. SCHAD, JR. v. ARIZONA (No. 81-5919)

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OFFICE OF THE CLERK

SUPREME COURT, U.S.

NO. 81-5919

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1980

EDWARD HAROLD SCHAD, JR.,

Petitioner,

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STATE OF ARIZONA,

Respondent,

ON WRIT OF CERTIORARI TO THE ARIZONA SUPREME COURT

RESPONSE TO PETITION FOR

WRIT OF CERTIORARI

ROBERT K. CORBIN

Attorney General of

the State of Arizona

WILLIAM J. SCHAFFER 111

Chief Counsel

Criminal Division

DAVID R. COLE

Assistant Attorney General

Department of Law

1275 W. Washington, 2nd Floor

Phoenix, Arizona 865007

Attorneys for RESPONDENT

1

1 TABLE OF CONTENTS

2 Page

3] TABLE OF CASES AND AUTHORITIES ii

4] QUESTIONS PRESENTED FOR REVIEW iv

5 [ STATEMENT OF THE CASE 1

6] JURISDICTION 1

7 ARGUMENTS

8 I

9 THE ARIZONA TRIAL COURT DID NOT VIOLATE

PETITIONER'S RIGHT TO CONFRONT WITNESSES

10 AGAINST HIM. 2

11 11

12 PETITIONER'S FOURTH AMENDMENT RIGHTS

WERE NOT VIOLATED WHEN LAW ENPORCEMENT

13 OFFICERS SEARCHED THE CAR THAT PETITIONER

TOOK FROM HIS VICTIM, AND SEIZED VARIOUS

14 ITEMS FROM THE CAR. 6

15 111

16 THE ARIZONA COURTS DID NOT PAIL TO

CONSIDER MITIGATING EVIDENCE OFFERED

17 BY PETITIONER. 0

18 Iv

19 THE ARIZONA COURTS DID NOT FAIL TO CONSIDER

EVIDENCE OFFERED BY PETITIONER, WHICH. “ME

20 ARGUED, SUGGESTED THAT CERTAIN AGGRAVATING

2 CIRCUMSTANCES SHOULD HAVE BEEN POUND. 9

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22

THE ARIZONA COURTS DID NOT VIOLATE

23 THE RIGHTS CONFERRED UPON PETITIONER

BY THE EX POST FACTO CLAUSE OF THE

24 UNITED STATES CONSTITUTION. 10

25 | CONCLUSION 11

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28 1

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TABLE OF CASES AND AUTHORITIES

Care ; Page

California v. Green

399 U.S. 149

90 S. ct. 1930

26 L. Kd. 2d 489 (1970) 4

Cotton v. United States

371 F.2d 385

(9th Cir. 1967) 7

Durham v. United States

401 U.S. 481

91 S. et. 858

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* 28 V. rd. 2d 200 (1971) 2

Gregg v. Georgia

11 428 u.. 153

96 S.Ct. 2909

12 49 V. FA. 2d 859 (1976) 11

13 Jones v. United States

362 U.S. 257

14 80 s. ct. 725

* 4 . rd. 2d 697 (1960) 7

Lockett v. Ohio

16 438 U.S. 586

98 S.Ct. 2954

17 57 . Kd. 2d 973 (1978) 8,9,10

18 Rakas v. Illinois

439 U.S. 128

19 99 S.Ct. 421

20 58 L.. E. 2d 387 (1978) 7

Robbirs v. California

21 6.8.

Ts. ct. 741

22 . . 24 (11981) 6,7

23] Simpson v. United States

346 . 2d 201

24 (10th Cir. 1965) 7

25 State v. Myers

117 Ariz. 79

26 570 p. 2d 252 (1977) 7,8

27 [state v. Watson

120 Ariz. 441

28 586 P. 2d 1253 (1978) 10,11

29} Taglianetti v. United States

4 394 U.S. 316

30 I 89 s. ct. 1099

31 22 L. Ed. 2d 303 (1969) 2

32

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Case

United States v. Atkins

618 F. 2d 366

(9th Cir. 1980)

United States v. Janerson

549 F.2d 1263

(9th Cir. 1977)

United States v. Wingate

520 F.2d 309

(24 Cir. 1975)

United States v. Zuroskyv

614 F.2d 779

(lst Cir. 1979)

AUTHORITIES

Arizona Rules of Evidence

Rule 804(B) (1)

Rules of the Supreme Court of the

United States

Rule 20

Rule 20.1

Rule 20.3

Rule 22

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QUESTIONS PRESENTED FOR REVIEW

1. Assuming, without conceding, that petitioner

presents a bona fide confrontation claim, did the Arizona

trial court violate petitioner's right to confrontation by

admitting certain testimony adduced at the voluntariness

hearing, where petitioner had sufficient opportunity and

motivation to develope the testimony he later wished to

adduce at trial?

2. Were petitioner's fourth amendment rights violated

when law enforcement officers searched the car that

petitioner had stolen from Leroy Grove?

J. Did the Arizona Supreme Court disallow

consideration of potentially mitigating evidence, or did

it merely agree with the trial court when it held that the

evidence presented, when duly considered, did not

constitute a mitigating circumstance?

4. Did the Arizona courts fail to consider evidence

and arguments relating to petitioner's prior conviction,

which conviction led to the finding of two aggravating

circumstances by the trial court?

5. Did the Arizona Supreme Court violate petitioner's

rights under the ex post facto clause of the United States

Constitution when it 1) declared that one portion of the

Arizona death penalty statute, which violated the mandates

of Lockett v. Ohio, was severable from the remainder of

the statute, and 2) held that petitioner was, in fact,

subject to a constitutionally valid death penalty statute?

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STATEMENT OF THE CASE

On August 9, 1978, the body of 74 year-old Lorimer

„Leroy“ Grove, a resident of Bisbee, Arizona, was found 9

miles south of Prescott, Arizona. From the the cord around

what was left of the victim's neck, the medical examiner

concluded that the killing was accomplished by means of

strsengulation.

Almost a month after this discovery, Petitioner Edward

Harold Schad was arrested in Salt Lake City, Utah. At that

time, petitioner was driving Mr. Grove's Cadillac. Between

the time when he took the car and the time of his arrest,

petitioner put several thousand miles on the car. He paid

for gasoline with the victim's credit cards. Between his

rrest and trial, petitioner told several highly

inconsistent stories regarding how he came into possession

of the victim's vehicle.

Petitioner was charged with first-degree murder in the

death of Leroy Grove. The jury, following a 2-week trial,

convicted petitioner of that crime. After considering the

aggravating evidence adduced by the state, and the

mitigating evidence offered by petitioner, the trial court

sentenced petitioner to death. Petitioner appealed his

conviction and sentence to the Arizona Supreme Court. That

court, after considering lengthy written briefs, and

hearing oral argument, affirmed petitioner's judgment and

sentence on July 13, 1981. Petitioner's motion for

rehearing was denied on September 10, 1981. Ninety-six

days later, he filed the instant petition for writ of

certiorari.

JURISDICTION

Petitioner cites Rule 20, Rules of the Supreme Court of

the United States, and several cases decided by this Court

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in support of his contention that, while his petition is

untimely, the defect is not jurisdictional end Gece not

prevent this Court from considering the petition. However,

it appears that the cases cited by petitioner, i.e. Durham

v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d

200 (1971), and Taglianetti v. United States, 394 U.S. 316,

89 S.Ct. 1099, 22 C. Fd. 2d 302 (1969), were decided pursuant

to former Rule 22, not Rule 20. Rule 20, which is somewhat

different from former Rule 22, implies that untimely filing

may, in fact, constitute a jurisdictional defect. Rule

20.3 provides as follows:

The Clerk will refuse to receive any

petition for a writ of certiorari which

is jurisdictionally out of time.

Rule 20.1 provides that a 30-day extension may be obtained

when good cause is shown. It does not appear that

petitioner ever sought, much less secured, such an

extension.

Por these reasons, respondents respectfully request

this Court to dismiss the petition for writ of certiorari

for the reason that it was not filed in a timely fashion.

ARGUMENTS

I

THE ARIZONA TRIAL COURT DID NOT VIOLATE

PETITIONER'S RIGHT TO CONFRONT WITNESSES

AGAINST HIM.

Petitioner contends that the Arizona trial court

violated his .ight of confrontation when it admitted

testimony given at the suppression hearing by Kent Jones,

petitioner's former parole officer. Respondent disagrees

with petitioner's factual and legal analysis of this

issue. Respondent takes the position that petitioner

mischaracterizes this claim when he labels it a

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"confrontation" issue. ‘The simple fact is that appellant

failed to attempt to obtain Jones' presence at trial. In

order for this Court to understand respondent's approach to

this claim, certain background information is essential.

On September 21, 1979, the state made a motion to

continue petitioner's trial because Kent Jones had recently

been involved in a bad accident. Jones had already

testified at the hearing on petitioner's motion to

determine the voluntariness of certain statements that

petitioner had made. Petitioner's counsel, while

expressing sympathy for the state's position, objected to

the motion. The specific legal basis for nis objection was

petitioner's constitutional right to a speedy trial.

Petitioner's counsel was aware that the only alternative to

continuing the matter was to use the transcript from Jones“

suppression hearing testimony; nevertheless, he opposed

that alternative as well. On September 25, 1979, the state

reasserted its motion to continue. Petitioner withdrew his

objection to the motion. The state pointed out to

petitioner's counsel that, because of the trial court's

ruling regarding the inadmissibility of any evidence with

respect to petitioner's parole status, any testimony

related to that status would have to be introduced during

the defense case. Petitioner's counsel agreed with that

assertion. The trial court denied the motion to continue,

invoking petitioner's right to a speedy trial. The file

does not suggest that petitioner ever attempted to place

Jones under subpoena.

In admitting Jones prior testimony, the trial court

relied upon Rule 8048) (1), Arizona Rules of Evidence.

That rule provides as follows:

The following are not excluded by

the hearsay rule if the declarent is

unavailable as a witness:

1. Former testimony. Testimony

given as a witness at another hearing of

the same or a different proceeding, or

in a deposition taken in compliance with

law in the course of the same or another

proceeding, if the party againt whom the

testimony is now offered, or, in a civil

action or proceeding, a predecessor in

interest, had an opportunity and similar

motive to develope the testimony by

direct, cross, or redirect examination.

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It is undisputed that Jones vas not available for trial.

10} Even if this Court concludes that this is a legitimate

11} confrontation question, in spite of the fact that Jones

12] should have been subpoenaed by petitioner, the former

13 testimony was admissible under the above rule.

14] purthermore, its admission did not violate this Court's

15 pronouncemestts in California v. Green, 399 U.S. 149, 90

16] S.ct. 1930, 26 C. rd. 2d 489 (1970).

17 Respondent concedes that the “issue” in a voluntariness

18] hearing, as was held prior to trial in this case, is not

19 identical to the ultimate issue at trial, i.e. the guilt or

20 innocence of the defend it. However, the labels that are

21] attached to these issues should not be, and are not,

determinative of this question. More significant is the

question whether the party who opposes the introduction of

the former testimony at trial had sufficient opportunity

and motive to develop the testimony at the prior hearing.

)

United States v. Atkins, 618 F.2d 366 (9th Cir. 1980); |

United States v. Zurosky, 614 F.2d 779 (lst Cir. 1979)

cert. denied, 446 U.S. 967 (1980). Petitioner claims that

he wanted to cross-examine Jones at trial regarding the

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fact that petitioner was thought to be a “snitch” at the

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Utah State Penitentiary. This, according to petitioner,

would have bolstered the credibility of his trial testimony

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with respect to his explanation regarding why he made one

of several inconsistent statements about his possession of

Leroy Grove's car. As the Arizona Supreme Court pointed

out, this line of questioning was relevant to the issues

before the trial court at the voluntariness hearing.

Petitioner had opportunity and similar motive to develop

the testimony in question during the voluntariness hearing;

therefore, his right of confrontation was not violated.

The authorities cited by petitioner do not compel the

conclusion that petitioner's sixth amendment rights were

violated. United States v. Wingate, 520 Ff. 2d 309 (2d Cir.

1975), was decided strictly on the basis of the fact that

the issues at the pre-trial hearing and trial were not

identical. The court does not appear to have considered

the question whether the testimony at issue may have been

relevant both at the hearing and at trial. Here, as

respondent has urged, the testimony at issue was relevant

to the issues at the voluntariness hearing as well as to

issues raised at trial. Moreover, in Wingate, there was no

opportunity for the government to make the inquiries at the

pre-trial hearing. United States v. Atkins, supra,

supports respondent's position. There, the opposing party

had the opportunity, but not the motivation, to ask certain

questions of the witness who later became unavailable.

Here, petitioner had the opportunity and the motivation,

but did not avail himself of that opportunity. In United

States v. Zurosky, supra, as here, the inquiries were

relevant at the voluntariness hearing; for some reason,

defense counsel decided not to ask the questions.

Because of the rather peculiar things that happened

prior to petitioner's trial, respondent suggests that this

contention entitles petitioner to no relief because it does

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not even constitute a sixth amendment claim. In any event,

having had sufficient opportunity and motive to make the

inquiries at the pre-trial hearing, petitioner cannot now

Claim a violation of his right of confrontation.

11

PETITIONER'S FOURTH AMENDMENT RIGHTS

WERE NOT VIOLATED WHEN LAW ENFORCEMENT

OFFICERS SEARCHED THE CAR THAT

PETITIONER TOOK FROM HIS VICTIM, AND

SEIZED VARIOUS ITEMS FROM THE CAR.

Petitioner contends, largely on the basis of this

Court's holding in Robbins v. California, 9. 8s.

101 S.Ct. 28641. L. rad. 24 (1881), that he had

„Standing“ to contest the search of Leroy Grove's vehicle

and to object to the admission, at trial, of certain items

contained in that vehicle. For the first time, petitioner

has specified the objects which he felt were inadmise'ble

on the basis of a fourth amendment violation. (See

Petition for Writ of Certiorari, page 14.) Nonetheless,

given the facts of this case, respondent takes the position

that the Arizona Supreme Court properly ruled that

petitioner did not have a reasonable expectation of privacy

in Leroy Groves vehicle.

When Detective Johnson, Salt Lake City Police

Department, searched Grove's car on September 8, 1978, the

Gay petitioner was arrested, his purpose was to ascertain

ownership of the vehicle. This was Johnson's first contact

with the vehicle; several items were removed at that time

by Johnson and Detective Halterman. His only other contact

with the car was on October 18, 1978, at which time he did

not remove anything from the vehicle. He did not recall

any other officer removing anything from the vehicle at

that time. A search of a vehicle and its contents in order

to ascertain the identity or the whereabouts of the

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rightful owner is not improper. Haine v. State, 37 ud. App.

222, 377 A. 2d 509 (1978).

As he did in the Arizona Supreme Court, petitioner

places heavy reliance on Cotton v. United States, 371 F.2d

385 (9th Cir. 1967), and Simpson v. United States, 346 F.2d

291 (10th Cir. 1965). He now adds United States v.

Jamerson, 549 F.2d 1263 (9th Cir. 1977). As the Arizona

Supreme Court pointed out, this Court has characterized as

"inexplicable" the holdings in Cotton and Simpson, in that

they were apparently premised on a misinterpretation of

certain language employed by this Court in Jones v. United

States, 362 U.S. 257, 80 S.Ct. 725, 4 L. Fd. 2d 697 (1960).

Rakas v. Illinois, 439 U.S. 128, 142 n.9, 99 S.Ct. 421, 429

n.9, 58 L. Ed. 2d 387 (1978). Neither Cotton, Simpson, nor

Jamerson supports petitioner's argument. Petitioner's

statements that the search and seizure was “admittedly

unconstitutional,” and that he had “standing” to contest

the admissibility of the items seized, are inaccurate.

First, respondent has never conceded any impropriety in the

officers’ conduct. Second, in view of this Court's

language in Rakas and its stated intent to eliminate the

old “standing® concept in favor of substantive fourth

amendment analysis, petitioner's statements make no sense.

With respect to petitioner's reliance upon Robbins, it

is apparent that the officers in Robbins did not search the

automobile, or even any of its contents, for the purpose of

determining who owned the automobile. Indeed, ownership of

the vehicle involved in Robbins was never an issue.

Robbins does not appear to suggest that an individual can

wrongfully take a car from its owner, and gain a reasonable

expectation of privacy in the vehicle simply by driving it

around the country for 6 weeks. In State v. Myers, 117

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Ariz. 79, 570 P. 2d 252 (1977), cert. denied, 435 U.S. 928

(1978), the Arizona Supreme Court held that a car thief has

no reasonable expectation of privacy in a stolen vehicle.

The Myers holding is not at variance with any case relied

upon by petitioner. For these reasons, petitioner's fourth

amendment assertions do not warrant an order granting the

petition for writ of certiorari.

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THE ARIZONA COURTS DID NOT FAIL TO

CONSIDER MITIGATING EVIDENCE OFFERED BY

PETITIONER.

Petitioner argues that the Arizona Supreme Court

"disallowed consideration” by the sentencing authority of

"doubt of guilt” as a mitigating circumstance.

Petitioner's argument is premised on a misreading of the

Arizona Supreme Court opinion, a misinterpretation of

decisions handed down by this Court, and an apparent

misapprehension of what happened in the trial court.

Respondent's reading of the Arizona Supreme Court's

opinion discloses no suggestion that the court disallowed

anything as a consideration in cases where the death

penalty is available. In Lockett v. Ohio, 438 U.S. 586, 98

J. ct. 2954, 57 L. FA. 2d 973 (1978), this Court held that the

sentencing authority could “not be precluded from

considering as a mitigating factor any aspect of a

G@efendant's character or record and any of the

circumstances of the offenses that the defendant profers as

a basis for a sentence less than death." 438 U.S. at 610,

96 S.Ct. at 2967 (emphasis original). Petitioner equates

this language with a pronouncement that the sentencing

authority must find mitigating circumstances from the

evidence presented. That is clearly not what this Court

said; indeed, common sense dictates that these two

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concepts - consider at ion“ of possible mitigating evidence

and acceptance“ of the evidence as valid mitigation--are

two different things. The record is clear that petitioner

presented evidence and argument relating to the “doubt of

guilt” theory, including the testimony of the alternate

juror. Pursuant to Lockett, it was a legitimate area of

inquiry. However, the trial court was not constitutionally

mandated to find, nor did it find, that this theory of

mitigation rose to the level of a mitigating circumstance.

Twelve jurors found, beyond a reasonable doubt, that

petitioner committed the crime of murder in the first

degree. The alternate juror, who never examined many of

the exhibits introduced at trial, and who never had the

opportunity to deliberate the matter with 11 other

individuals, believed that the evidence was insufficient to

warrant conviction. The trial judge disagreed. The

Arizona Supreme Court, in its independent examination of

the record, agreed with the trial court. Petitioner's

exhortations to the contrary, both Arizona courts

considered the proffered evidence. The fact that neither

court found that the evidence constituted a mitigating

circumstance does not violate the mandate of Lockett or any

known constitutional precept.

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THE ARIZONA COURTS DID NOT FAIL TO

CONSIDER EVIDENCE OFFERED BY PETITIONER,

WHICH, HE ARGUED, SUGGESTED THAT CERTAIN

AGGRAVATING CIRCUMSTANCES SHOULD NOT

HAVE BEEN FOUND.

Petitioner's murder of Leroy Grove was not his first

violent act. In 1968, he was convicted of second-degree

murder. Both of petitioner's victims were strangled. He

now claims that the Arizona courts failed to consider the

extent ot degree of proof upon which his prior conviction

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was premised. This contention is separate from the one

advanced in Argument III. Argument III deals with the

alleged failure of the Arizona courts to consider evidence

offered in mitigation of the offense; this argument

involves the alleged failure of the state courts to

consider evidence that might eliminate, or at least dilute,

aggravating evidence proffered by the state. Even if

Lockett applies to this situation, as opposed to a

situation where the defendant is precluded from offering

evidence in mitigation of the offense, petitioner again

equates two distinct and unequal concepts. Petitioner was

not foreclosed, by the trial court or the Arizona Supreme

Court, from either presenting evidence with respect to his

prior conviction or arguing that the prior conviction

should not be found to constitute an aggravating

circumstance. The fact that neither court agreed with

petitioner's argument does not mean that he was foreclosed

from making this argument.

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THE ARIZONA COURTS DID NOT VIOLATE THE

RIGHTS CONFERRED UPON PETITIONER BY THE

EX POST FACTO CLAUSE OF THE UNITED

STATES CONSTITUTION.

The short answer to petitioner's argument is that the

Arizona death penalty statute was never held to be

unconstitutional. Part of the statute was found to violate

this Court's mandate in Lockett, but the Arizona Supreme

Court held that that portion of the statute was severable

from the rest. State v. Watson, 120 Ariz. 441, 445, 586

p. 2d 1253, 1257 (1978). Thus, there was a valid death

penalty statute in effect on August 1, 1978, when

petitioner killed Leroy Grove. The argument that the

Watson Court improperly "rewrote" the death penalty statute

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totally disregards the severability concept as set forth in

Watson and other decisions. Petitioner has not explained,

nor does respondent understand, how the Arizona Supreme

Court's holding in Watson violates anything this Court said

in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49

L. Ed. 2d 859 (1976).

Lastly, the imposition of the death penalty does not

violate petitioner's rights under the ex post facto clause

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of the United States Constitution. The Watson opinion was

10} filed 12 days before petitioner committed his crime. Thus,

il} in legal contemplation, he was on notice that the State of

12] Arizona had the authority to seek the death penalty for

13} persons convicted of first-degree murder. For this reason

14] and those given above, neither the ex post facto clause,

15} nor any of the decisions interpreting it, were violate4

16 here.

17 CONCLUSION

18 For the reasons stated, respondent respectfully

19] requests this court to deny the petition for writ of

certiorari.

Respectfully submitted,

ROBERT K. CORBIN

22 Genera

WILLIAM J. SCHAFER 111

Chief Counsel

Criminal Division

Frat e.

DAVID R. COLE

Assistant Attorney General

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Attorneys for RESPONDENTS

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AFFIDAVIT

STATE OF ARIZONA )

COUNTY OF MARICOPA =

DAVID R. COLE, being first duly sworn upon oath,

deposes and says:

That he served petitioner in the foregoing case by

forwarding one (1) copy of RESPONDENT'S RESPONSE TO WRIT

OF CERTIORARI; and also served the attorney for the

petitioner in the foregoing case by forwarding two (2)

co, ies of RESPONDENT'S RESPONSE TO WRIT OF CERTIORARI, in

a sealed enve lobe, first class postage prepaid, and

deposited same in the United States mail, addressed to:

CHARLES A. SHAW EDWARD HAROLD SCHAD, JR.

122 N. Cortez, Suite 300 Box B-40496

Prescott, Arizona 86301 Arizona State Prison

Florence, Arizona 85232

Attorney for PETITIONER

this 13th day of January, 1982.

SUBSCRIBED AND SWORN to before me this 13th day of

January, 1982.

. : /

, sil / :

Zu Ce

NOTARY PUBLIC Cs

My Commission Expires: f

May 17, 1983 N

PH-1709G N

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