Opposition — IGNACIO A. ORTIZ Z v. ARIZONA (No. 81-6385)

Supreme Court brief1981

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RECEIVED

APK 1 4 1982

OFFICE OF THE CLERK

SUPREME COURT, U.S.

NO. 81-6385

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1981

IGNACIO ALBERTO ORTIZ

Petitioner,

STATE OF ARIZONA,

Respondent,

ON WRIT OF CERTIORARI TO THE ARIZONA SUPREME COURT

RESPONSE TO PETITION FOR

WRIT OF CERTIORARI

POBERT K. CORBIN

Attorney General of

the State of Arizona

WILLIAM J. SCHAPFER 111

Chief Counsel

Criminal Division

JACK ROBERTS

Assistant Attorney General

Department of Law

1275 W. Washington, 2nd Floor

Phoenix, Arizona 85007

Telephone: 255-4686

Attorneys for RESPONDENT

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TABLE OF CONTENTS

QUESTIONS PRESENTED

STATEMENT OF THE CASE

ARGUMENTS

THE PARTICULAR AGGRAVATING CIRCUMSTANCE

ATTACKED BY PETITIONER HAS NOT BEEN INTERPRETED

IN THREE DIFFERENT WAYS, AND IS NOT OVERBROAD

OR VAGUE; ARIZONA'S DEATH PENALTY DOES NOT VIOLATE

DUE PROCESS.

IMPOSITION OF THE DEATH PENALTY IN PETITIONER'S

CASE IS AMPLY SUSTAINED BY THE EVIDENCE AND DOES

NOT VIOLATE DUE PROCESS OR CONSTITUTE CRUEL AND

UNUSUAL PUNISHMENT.

111

THE ARIZONA SUPREME COURT DID NOT REMAND THE

CASE BECAUSE THE TRIAL COURT CORRECTLY DETERMINED

THE EXISTENCE OF TWO AGGRAVATING CIRCUMSTANCES

AND NO MITIGATION SUBSTANTIAL ENOUGH TO WARRANT

LENIENCY.

CONCLUS ION

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TABLE OF CASES AND AUTHORITIES

Case

Blake v. State

239 Ga. 292

236 8. K. 2d 637 (1977)

Enmund v. State

399 8.2d 1362

(Pla 1981)

Francois v. State

407 8. 2d 885

(Pla. 1981)

Gardner v. Florida

430 U.S. 339

(1977)

Godfrey v. Georgia

446 U.S. 20

(1980)

Gregg v. Georgia

428 U.S. 153

96 S.Ct. 2909

49 L. Kd. 2d 859 (1976)

Hargrave v. State

366 8.2d 1

(Pla. 1978)

Harris v. State

237 Ga. 718

230 S.E.2d 1 (1976)

In Re Gault

387 U.S. 1

(1967)

King v. State

407 S.2da 904

(Pla. 1981)

Knight v. State

338 8.2d 201

(Pla. 1976)

Lockett v. Ohio

438 U.S. 586

(1978)

Miller v. Crouse

346 F.2d 301

(10th Cir. 1965)

Mullaney v. Wilbur

421 U.S. 684

(1975)

12,27

8,10, 12,14

18,20

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Murdock v. City of Memphis

20 Wall. 590

(1875)

Olson v. Tahash

344 F.2d 139

(8th Cir.1965)

Proffitt v. Florida

428 U.S. 242

(1976)

Specht v. Patterson

386 U.S. 605

(1967)

State v. Bishop

127 Ariz. 531

622 P.2d 478 (1980)

State v. Brookover

124 Ariz. 38

601 P. 2d 132 (1979)

State v. Ce ja

115 Ariz. 413

565 P. 2d 1274 (1977)

State v. Ce ja

126 Ariz. 35

612 P.2d 491 (1980)

State v. Clark

126 Ariz. 428

616 Pp. 2d 888 (1980)

State v. Goodman

257 S.E.2d 569

(N.C. 1979)

State v. Johnson

Ariz.

640 p. 2d 861 (1982)

State v. Knapp

125 Ariz. 503

611 P. 2d 90 (1980)

State v. Knapp

114 Ariz. 531

562 P.2d 704 (1977)

State v. Lujan

124 Ariz. 365

604 P.2d 629 (1979)

State v. Martin

376 8. 2d 300

(La. 1979)

State v. Mattheson

407 8. 2d 1150

(La. 1981)

-iii-

10,11

15,16,18

10,26

11,13

10,15

10,11,18,26

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State v. Ortiz

No. 4818

(Ariz.Sup.Ct., Nov. 23, 1981)

State v. Steelman

126 Ariz. 19

612 p. 2d 475 (1980)

State v. Watson

129 Ariz. 60

628 pP. 2d 943(1981)

State v. Williams

383 S.2d 369

(La. 1980)

United States ex rel. Scott v. Babb

199 F.2d 804

(7th Cir. 1952)

Washington v. State

362 S.2d 658

(Pla. 1978)

Williams v. Baker

399 F.2d 681

(10th Cir. 1968)

Williams v. New York

337 U.S. 241

(1949)

Zant v. Stephens

631 F.2d 397

(Sth Cir. 1980)

Ariz.Rev.Stat.Ann.

13-703 (Cc)

13-703 (E)

13-703 (F)

13-703 (F) (1)

13-703 (F) (3)

13-703 (F) (6)

13-4031

13-4035

AUTHORITIES

Arizona Rules of Criminal Procedure

Rule 31.2(b)

Georgia Code Ann.

§ 27-2534.1(b) (7)

United States Constitution

Sixth Amendment

-iv-

6,16,19

20,22

7,12,19,27,26

22,29

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NO. 81-6385

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1981

IGNACIO AUBERTO ORTIZ

Petitioner,

-Vs-

STATE OF ARIZONA,

Respondent,

RESPONSE TO PETITION FOR

WRIT OF CERT)ORARI

QUESTIONS PRESENTED

1. Since the Arizona Supreme Court has

consistently given the same definitions for “cruel,”

"heinous," and “depraved,” and has not hesitated to

disagree with the trial courts when the latter have

erroneously applied those definitions, has petitioner

shown that the language of that particular aggravating

circumstance has been applied to him in an overbroad or

vague manner?

2. Did imposition of the death penalty in

petitioner's case, after a full and independent review

of aggravation and mitigation by the Arizona Supreme

Court, violate due process?

3. When the statute requires imposition of the

death penalty if the trial court finds even one

aggravating circumstance, and there is nothing to

balance because neither the trial court nor the Arizona

Supreme Court found proffered mitigation sufficient to

merit leniency, does it violate due process for the

Arizona Supreme Court not to remand the case for

resentencing?

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STATEMENT OF THE CASE

Although Charles McCormack, Jr., and his wife

experience marital difficulties in 1977-78, they reconciled

in the fall of 1978. When they were having problems,

Manuelita McCormack consulted an attorney about divorce

proceedings. (R.T., Vol. 4, at 167-68.) Petitioner

accompanied her on some of these occasions. (R.T., Vol. 3,

at 167-61.) Two months before her murder, however,

Manuelita McCormack reconciled with ber husband and was

happy. (R.T., Vol. 5, at 67.) Around Labor Day, 1978, she

told petitioner not to call her anymore. (Id. at 126.)

Only a week before her death, the victim asked her sister,

Rosemary Valdez, to call and say that Rosemary's baby was

sick. Manuelita anticipated a visit from petitioner and

wished to avoid him by having to take her sister and niece

to the doctor. (Id. at 70.) der ing the period when the

victim was separated from her husband, petitioner offered

to have her husband murdered. (Id. at 165.)

The night of December 21, 1978, petitioner murdered

Manuelita McCormack, stabbed her two young daughters, set

fire to the house to conceal his crimes, and left three

children, including his own infant godson, in the burning

house. Indeed, petitioner told Bernice McCormack to stay

in the home until the firemen arrived.

Petitioner was indicted for murder, attempted murder,

aggravated assault, arson, and burglary on December 29,

1978. While incarcerated in the Pima County Jail,

petitioner told Jose Alvarez details of the murder. He

also offered Alvarez $10,000 to murder six people,

including the three children who had seen him murder their

mother. Alvarez had a friend contact the Pima County

prosecutor. Petitioner and his wife, Mary Frances Ortiz,

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1 were subsequently charged with conspiracy to commit

2 murder. Petitioner obtained a severance on the conspiracy

3 charge and had that consolidated with the other pending

4 offenses. The following is a summary of the most

5 significant portions of the testimony at the trial in June,

6 1979.

7 Nine-year-old Patricia identified petitioner 1s

8 „Nacho, Baby Charlie's godfather. (R. 7., Vol. 2, at

9 107.) She had seen him come to visit her mother when her

10 father was at work. (Id. at 110.) On December 21, 1978,

11 the night of the murder, Patricia, Bernice, and Baby

12 Charlie went to bed in Patricia's bedroom around 9

13 o'clock. (Id. at 116.) Bernice awoke Patricia to teil her

14 that Baby Charlie wanted a glass of water. Having given

15 Baby Charlie a glass of water, Bernice returned to the

16 bedroom and informed Patricia that their mother was

17 bleeding and that she had seen Nacho. (Id. at 127.)

18 Afterwards, petitioner entered the children's bedroom and

19 told them that he was going to call an ambulance for their

20 mother. (Id. at 128.) The ctildren played with clay, and

21 the ambulance never arrived. (Id. at 130.)

Eventually, petitioner went into Patricia's bedroom and

told her that her mother was asking for her. (Id. at

131.) When Patricia went into the living room, petitioner

grabbed her from behind and stabbed her twice in the

chest. (Id. at 134.) Patricia testified that she had seen

the knife before, and that petitioner carried it in a

sheath on his belt. (Id. at 135-37.) Patricia ran into

her mother's bedroom and collapsed on the bed. She saw

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petitioner stab her younger sister, Bernice, when Bernice

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entered the bedroom. (Id. at 139.) Patricia testified

that, after the stabbings, she heard a sloshing sound

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reminiscent of liquid in a container and smelled gascline.

(Id. at 143-45.) After petitioner set fire to the house,

Patricia managed to reach the sidewalk in front of the

house, where she collapsed, bleeding and vomiting. (R.T.,

Vol. 3, at 66.) Dr. William Berkely testified that

Patricia had no discernible blood pressure when she was

brought to the hospital. One of the wounds inflicted by

petitioner severed a major chest artery, and Patricia would

have bled to death within 30 minutes if help had not been

immediately available. (R.T., Vol. 5, at 15-27.) When

paramedic Sherman Crawford reached Patricia McCormack, her

skin was cold and she had no diastolic blood pressure.

Patricia told Crawford that Nacho“ had stabbed her.

(R.T., Vol. 4, at 103-04.) Bernice told Peter Jorgensen,

another paramedic, that Nacho stabbed her with a hunting

knife. More important, however, was Bernice's statement

that petitioner placed her on the bed and told her to stay

there until the fire department arrived. (Id. at 140-41.)

The house was totally enveloped in flames when the first

fire trucks arrived about 12:56 a.m. (Id. at 9-10, 60.)

If Bernice had waited, as petitioner advised her to do, the

children would have burned to death.

Firemen discovered a pile of clothing at the foot of

the bed in Patricia's bedroom. on top of this clothing was

a matchbook-cigarette time delay ignition device. (R.T.,

Vol. 6, at 16-17.) An F.B.I. fingerprint expert testified

that two fingerprints lifted from the matchbook were those

of petitioner's left index finger. (R.T., Vol. 7, at 35.)

While in Pima County Jail awaiting trial on charges of

first degree murder, attempted murder, aggravated assault,

arson, and burglary, petitioner struck up an acquaintance

with Jose Alvarez and eventually became Alvarez's

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cellmate. Alvarez was awaiting trial on multiple counts of

armed robbery. According to Alvarez, petitioner asked to

move in as his cellmate at the end of January 1979.

Petitioner told Alvarez that he had killed his “comadre” at

her house with a knife. (R.T., Vol. 7, at 142-45.) They

talked about petitioner's case virtually every nignt until

Alvarez entered Kino Hospital for knee surgery. Alvarez's

testimony presented details of the killing that only the

murderer could have made known to him. Petitioner told

Alvarez that he parked his truck behind the McCormack

residence, went in, and stabbed Manuelita McCormack in the

chest with a hunting knife he was carrying. (Id. at

146-47.) ge further related that he stabbed the two girls

and told them to lie down (as Bernice McCormack had told a

neighbor). (Id. at 148.) Moreover, he told Alvarez that

he set the house on fire with gasoline from a container he

had in his truck, and gave Alvarez details of the matchbook

time-delay device that firemen found at the scene. (Id. at

149.) In addition, petitioner told Alvarez that police had

found the knife and gasoline container at his home. (Id.

a’. 156-57.) He indicated that he had cleaned the knife,

but a little blood remained on it. (Id.) Before Alvarez

went to Kino Hospital in late February, 1979, petitioner

offered him $10,000 to kill six people. The proposed

targets were the three McCormack children, Rosemary Valdez

(the victim's sister), the vicitim's husband, and Diane

Wilson, an acquaintance of the victim's husband. (Id. at

164-66.) Petitioner wanted the victim's husband and Diane

Wilson killed first because he feared reprisal from the

husband if the children were killed first. He also

suggested that, if Patricia McCormack was still

hospitalized when Alvarez was released, that Alvarez could

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sneak into her room and inject heroin into her 1. v. (Id.

at 164-67, 180.) Petitioner repeatedly drew maps to show

Alvarez where the children were living and going to school,

was well as directions to the home of petitioner's

mother-in-law. (Id. at 169-70.) The plan was as follows:

Alvarez was to have someone obtain guns and place them ina

bus depot locker. Petitioner's wife was to visit Alvarez

in Kino Hospital to pick up the key to the locker. Mary

Ortiz would then collect the guns from the locker and

transport them to her mother's home. When Alvarez was

released from the hospital, he was supposed to drive to the

home of petitioner's mother-in-law at night, flash his

lights one time, and wait for the mother-in-law to deposit

the guns in the mailbox. (Id. at 170, 172-73.) Petitioner

aiso told Alvarez that his wife had followed the children

and the victim's husband, Charles McCormack, Jr. (Id. at

174-77.) Just before Alvarez went into the hospital,

petitioner told him to arrange for the guns and petitioner

would have someone else kill the six people. (Id. at

186.)

The jury convicted petitioner of all charges. After an

aggravation-mitigation hearing, the trial court, having

found three statutory aggravating circumstances and no

mitigation substantial enough to call for leniency, imposed

the death penalty. Petitioner appealed, raising seven

major issues, including the ones presented to this Court.

The Arizona Supreme Court affirmed the convictions and

upheld the death penalty. State v. Ortiz, No. 4818

(At iz. Sup. ct., Nov. 23, 1981). The supreme court denied

rehearing January 12, 1982.

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ARGUMENT

THE PARTICULAR AGGRAVATING CIRCUMSTANCE

ATTACKED BY PETITIONER HAS NOT BEEN

INTERPRETED IN THREZ DIFFERENT WAYS, AND

IS NOT OVERBROAD OR VAGUE: ARIZONA'S

DEATH PENALTY NOES NOT VIOLATE DUE

PROCESS.

Employing a scattergun approach and making extremely

careless representations about the law in Arizona,

petitioner alleges that the interpretation of one

particular circumstance is unconstitutionally overbroad,

that failure to specify with exactness what constitutes

mitigation and alleged failure to provide effective

appellate review of death penalty cases, amounts to

violation of due process. None of these contentions has

merit.

A. The Arizona Supreme Court has consistently defined

rue l, “heinous,” and “depraved” in the same manner.

Petitioner misleads this Court when he says that the

Arizona Supreme Court has given three different

interpretations to the aggravating circumstance of

especially cruel, heinous, or depraved embodied in

Ariz.Rev.Stat.Ann. § 13-703(F) (6). The Arizona Supreme

Court has, over the years, clearly and repeatedly stated

the same definitions for these terms. The Arizona Supreme

Court has not given three different interpretations to one

term, but a separate definition to each adjective within a

circumstance that the legislature has written in the

disjunctive. It is apparent that this is petitioner's real

disagreement when he argues, in essence, that Arizona has

to write a statute the same way other states do, and, by

implication, interpret it the same way. Petitioner cites

no authority for the proposition that a state has to use

the same terminology as another state, or that a state may

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not constitutionally write an aggravating circumstance in

the disjunctive.

Appellant's citation to Godfrey v. Georgia, 446 U.S.

420 (1980), is inapposite. In the first place, the Georgia

Supreme Court dealt with a statute significantly different

from the Arizona statute and, until Godfrey, had given the

statutory language a restricted meaning. Georgia Code Ann.

§ 27-2534.1(b) (7) states, in pertinent part, that the

penalty of death may be inflicted if the offense was

"outrageously or wantonly vile, horrible or inhuman in that

it involved torture, depravity of mind, or an aggravated

battery to the victim.” This Court had previously ruled

that this language was not unconstitutional on its face.

Gregg v. Georgia, 428 U.S. 153 (1976). This Court also

expressed its belief that the Georgia Supreme Court would

not adopt an unconstitutionally broad interpretation of the

(b) (7) language. 428 U.S. at 201. In death penalty cases,

the Georgia Supreme Court evolved a restrictive definition

of this particular aggravating circumstance and made it

clear that the (b)(7) language would not be applied in an

overly broad fashion:

Under our duty specified in Code

Ann. § 27-2537(c) (2) we have no

intention of permitting this statutory

aggravating circumstance to become a

“catch all" for cases simply because no

other statutory aggravating circumstance

is raised by the evidence.

We believe that each of these cases

establishes beyond any reasonable doubt

a depravity of mind and either involved

torture or an ravated battery to

victim ng

outrageously or wantonly vile, horrible

or inhumane. Fach of the cases is at

the core and not the periphery, and we

intend to restrict our approval of the

death penalty under this statutory

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aggravating circumstance to those cases

that lie at the core.

Harris v. State, 237 Ga. 718, 732-33, 230 S.E.2d , 10-11

(1976) (emphasis added). Ina later case, the Georgia

Supreme Court held that torture and aggravated battery both

require infliction of serious physical injury upon the

victim before death. Blake v. State, 239 Ga. 292, 299, 236

8. F. 2d 637, 643 (1977). In addition, the opinion in Blake

equated "depravity of mind” with the infliction of torture

or aggravated battery upon the victim before death. (Id.)

In short, the outrageousnes or vileness of the act depended

upon the depravity of mind, which -- in turn -- had to

manifest itself in the form of serious physical injury upon

a live victim either by torture or aggravated battery.

Consequently, the Georgia Supreme Court had not affirmed

the death penalty under a (b)(7) finding unless there was

evidence of physical abuse to the victim before death.

In Godfrey, however, the jury simply found that the

murders were “outrageously or wantonly vile, horrible and

inhuman." Godfrey killed his wife and mother-in-law with

shotgun blasts to the head. The state conceded that they

died instantly and that no torture was involved. In his

sentencing report, the trial judge stated that the murders

did not involve torture. This Court reversed the death

sentence: “The circumstances of this case, therefore, do

not satisfy the criteria laid out by the Georgia Supreme

court itself in the Harris and Blake cases." 446 ).S. at

432. That holding makes clear that this Court reversed

because of Georgia's failure to consistently apply its own

definition, not because that definition was

unconstitutional. Indeed, by referring to the definition

evolved in the Harris and Blake cases, this Court tacitly

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recognized the legitimate power of the Georgia Supreme

Court to develop its own definition. There is absolutely

nething in frey supporting the proposition that states

cannot constitutionally define terms such as “heinous” or

"depraved." Nor is there anything in that opinion holding

that every state must define such language in precisely the

same manner.

The Arizona Supreme Court has consistently defined

"cruel," “heinous,” and “depraved” as follows:

The words “heinous, cruel or

depraved" have meanings that are clear

to a person of average intelligence and

understanding. Webster's Third New

International Dictionary defines them as

follows:

heinous: hatefully or shockingly

evil: grossly bad.

cruel: disposed to inflict pain

esp. in a wanton, insensate or

vindictive manner: sadistic.

depraved: marked by debasement,

corruption, perversion or

deterioration.

State v. Knapp, 114 Ariz. 531, 543, 562 P.2d 704, 716

(1977), cert. denied, 435 U.S. 908 (1978). See also State

v. Lujan, 124 Ariz. 365, 372, 604 P.2d 629, 636 (1979);

State v. Ceja, 115 Ariz. 413, 416, 565 Pp. 2d 1274, 1277

(1977).

This Court has clearly held that state courts are the

ultimate expositors of state law. Muilaney v. Wilbur, 421

U.S. 684 (1975); Murdock v. City of Memphis, 20 Wall. 590

(1875). Unless one can show infringement of federal

constitutional rights, federal courts are bound by the

interpretation the highest state court places upon state

statutes. Williams v. Baker, 399 F. 2d 681 (‘Oth Cir.

1968); Miller v. Crouse, 346 F.2d 301 (10th Cir. 1965);

Olson v. Tahash, 344 F.2d 139 (8th Cir.), cert. denied, 382

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u.S. 858 (1965); United States ex rel. Scott v. Babb, 199

F.2d 804 (7th Cir. 1952), cert. denied, 344 U.S. 935 (1953).

The Arizona Supreme Court has also repeatedly pointed out

that “cruel” pertains to the deliberate infliction of

physical pain or mental anguish upon the victims, while

"heinous" and “depraved” refers to the killer's state of

mind at and near the time of his murders as reflected in

his words and actions. State v. Ceja, 126 Ariz. 35, 39,

612 P. 2d 491, 495 (1980); State v. Lujan, supra. Since the

statute is written in the disjunctive, the aggravating

circumstance will be sustained if there is evidence beyond

a reasonable doubt to support a finding of any one of those

elements. State v. Clark, 126 Ariz. 428, 436, 616 p. 20

888, 896, cert. denied, 449 U.S. 1067 (1980); State v.

cela, supra. In determining whether the murderer's actions

reflect an especially “heinous” or “depraved" state of

mind, the Arizona Supreme Court considers the totality of

the circumstances -- as in petitioner's case -- not just

the actual act of killing. State v. Ceja, supra. Thus, it

is clear that the Arizona Supreme Court, having defined the

three terms, has not changed the definitions, but considers

each case to determine whether any one, or all three, may

be present. Appellant's real objection is that the Arizona

Supreme Court sustains the finding if any one of the

elements exists; petitioner implies that it is somehow

constitutionally impermissible to do so, without citing

authority to that effect. Obviously, the legislature could

have achieved exactly the same result by placing each of

the terms in a separate aggravating circumstance instead of

writing one circumstance in the disjunctive. The result

would have been precisely the same -- aggravation would

exist if the evidence supported the finding of any one

element.

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Petitioner's argument that xx iz. Rev. Stat. Ann.

§ 13-703 (r) 6) is unconstitutional because it fails to

require proof of torture or an aggravated battery is

nonsensical. Again, there is nothing in Godfrey, supra, or

the Constitution that requires a state to phrase or

interpret an aggravating circumstance precisely as another

state has done. Some scates have more, and different,

aggravating circumstances than Arizona. does that render

their statutes unconstitutional? Moreover, petitioner is

wrong when he asserts that every state has interpreted

similar terms to require torture and aggravated battery.

Florida has plainly interpreted cruelty, as has Arizona, to

include mental anguish as well as physical pain. Francois

v. State, 407 S.2d 885, 890 (Fla. 1981) (finding of cruelty

appropriate where successive victims suffered mental

anguish hearing gunshots that killed first victim and

realizing that their fate was sealed); Washington v. State,

362 S.2d 658, 665 (Fla. 1978), cert. denied, 441 U.S. 937

(1979) (especially cruel and artrocious where victim was

tied spread-eagle on bed, helpless, and stabbed a day

later; mental anguish awaiting death); Knight v. State, 338

8. 2d 201, 292 (Fla. 1976) (husband and wife suffered

prolonged mental anguish by being kidnapped and becoming

increasingly aware of their imminent murders). Proof of

the fact that the Arizona Supreme Court carefully

distinguishes "cruel" from “heinous” and "depraved" may be

seen in a series of cases in which the court, finding

neither deliberate infliction of physical suffering nor

mental anguish, refused to find the element of cruelty.

State ». Bishop, 127 Ariz. 531, 534, 622 P. 2d 478, 481

(1980) (although defendant repeatedly struck victim in head

with claw hammer, medical testimony established that victim

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did not feel successive blows, therefore precluding the

finding of cruelty; the killing was, however, committed in

an especially heinous and depraved manner when viewed in

the totality of the defendant's acts and words, including

his dragging the victim to a mine shaft, throwing the still

twitching body into it, covering the body with rocks, and

saying, “Good-bye Norman, I hope we never see you again.“);

State v. Clark, supra (not cruel because of lack of proof

of physical suffering or mental anguish preceding death;

especially depraved, however, because the defendant killed

four people, two of whom had given him a job and a place to

stay, and a teenager who had tried to befriend him); State

v. Ceia, supra (not cruel because multiple gunshot wounds

caused instantaneous death; but especially heinous and

depraved because defendant, having killed both victims,

continued pumping shots into their bodies, and kicked one

victim .epeatedly about the face.) Petitioner also fails

to point out that the Arizona Supreme Court did not agree

with the trial court that the murder petitioner committed

was especially cruel, but did agree thzt it was especially

heinous and depraved. Slip opinion at 33. That holding is

perfectly consistent with the cases discussed above because

the state did not prove, in petitioner's case, that the

victim endured physical suffering or mental anguish

preceding her death by multiple stab wounds.

Petitioner makes a distinction without a difference

when he states that the trial court in State v. Steelman,

126 Ariz. 19, 612 P.2d 475 (1980), found the murders to be

especially heinous while the trial court before whom

Steelman's codefendant, Douglas Gretzler, was tried, did

not find that Gretzler committed the murders in an

especially heinous fashion. Petitioner does not inform

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this Court that the distinction is academic since both

Steelman and Gretzler received the death penalty. That

result was hardly surprising since both had previously been

convicted of nine murders in California.

In summarizing, respondent points out that petitioner's

entire argument is based on a distorted interpretation of

Arizona cases, that Arizona has separately defined each of

three terms within an aggravating circumstance that the

legislature chose to write in the disjunctive, and that

nothing in the Constitution or any decision of this Court

forbids framing an aggravating circumstance in the

disjunctive or requires that every state interpret terms

precisely as every other state. Since Arizona has given

distinct definitions and consistently applied them, the

Constitution is not offended, and the inconsistent

application, not definition, that was present in Godfrey v.

Georgia, supra, has not been shown.

B. Lack of definition about what constitutes sufficient

mitigation to merit leniency.

Although petitioner knows that this argument is without

merit and has already been decided by this Court, he

contends that the death penalty is invalid because the

Arizona Supreme Court has never defined what constitutes

mitigation sufficiently substantial to warrant leniency.

The proposition is so inherently absurd that it hardly

merits response. This Court mandated open-ended

presentation of possible mitigating factors precisely so

that a defendant could present anything in an attempt to

establish mitigation. Lockett v. Ohio, 438 U.S. 586

(1978). Moreover, this Court has already ruled that the

death penalty may be constitutionally imposed provided that

the sentencer's decision is channeled and guided by

specific factors that weigh for or against the penalty:

S S 8 S 8 8 N 8

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While the various factors to be

considered by the sentencing authorities

do not have numerical weights assigned

to them, the requirements of Furman are

satisfied when the sentencing

authority's discretion is guided and

channeled by requiring examination of

specific factors that argue in favor of

or against imposition of the death

penaity, thus eliminating total

arbitrariness and capriciousness in its

imposition.

Proffitt v. Florida, 428 U.S. 242, 258 (1976). No one

could ever devise a list of aggravating or mitigating

factors that would meet with universal approval. The

moment someone compiled a list of mitigation and attempted

to assign specific weights to each circumstance, defendants

would raise another hue and cry disagreeing with the

factors listed and/or their respective weichts. This Court

has never required intransient, specifically weighted

standards to be applied in mitigation. Indeed, such a task

would be impossible precisely because of the virtually

infinite combinations of circumstances accompanying crimes

and the varying backgrounds, and possible prior criminal

records, of individual defendants. It is apparent that

there can be no absolutely fixed list of mitigating

factors. In addition, the process is more than a

mechanical tallying of mitigation against aggravation. The

Arizona Supreme Court and other courts has made it clear

that the quality of the particular circumstance, as wel] as

the total number of each kind, ultimately determines

whether the death penalty shall be imposed. State v.

Brookover, 124 Ariz. 38, 601 P.2d 132 (1979); State v.

Knapp, 125 Ariz. 503, 504, 611 P.2d 90, 91 (1980). Other

states have reached this same logical conclusion. Hargrave

v. State, 366 S.2d 1 (Fla. 1978), cert. denied, 444 U.S.

919 (1979). In noting that Knapp received the death

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penalty but Brookover did not, even though the Arizona

Supreme Court found one aggravating and one mitigating

circumstance in each case, petitioner conveniently omits

mentioning the nature and quality of the mitigation. Knapp

burned his two small daughters to death by setting fire to

their bedroom. The only mitigating factor was his lack of

a prior criminal record. Brookover had a prior conviction

for possession of marijuana; medical testimony, however,

established that he suffered from a neurological lesion.

Although the trial court did not find this substantial

enough to warrant leniency, the Arizona Supreme Court, in

its independent review and weighing of aggravation and

mitigation, found that this neurological problem was a

major cause of Brookover's behavior and thus constituted

sufficient mitigation to reduce the sentence to life. 124

Ariz. at 42, 601 P.2d at 1326.

Cc. apres ls in death penalty cases are automatic in Arizona.

e Arizona Supreme Court independently reviews the trial

court's findings of aggravation and mitigation, and

independently determines whether death has been properly

imposed.

Petitioner contends that the Arizona Supreme Court does

not perform a constitutionally acceptable proportionality

review involving all death penalty cases. Apparently,

petitioner has been reading cases different from those

respondent reads because it is clear from all death penalty

cases, inciuding petitioner's, that the Arizona Supreme

Court takes very seriously the obligation to ensure that

the death penalty is not arbitrarily imposed, and does

compare each case to other cases. State v. Ortiz, supra

(slip op. at 24-25}. Appeals in death penalty cases are

automatic in Arizona and go directly to the supreme court.

Rule 31.2(b), Arizona Rules of Criminal Procedure;

Ariz.Rev.Stat.Ann. § 13-4031. By statute, the supreme

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court must search the entire record for fundamental error.

Ariz.Rev.Stat.Ann. § 13-4035. In describing the keen sense

of duty it feels when reviewing these cases, the Arizona

Supreme Court said:

The question before us is not

whether the trial court properly imposed

the death penalty, but whether, based

upon the record before us, we believe

that the death penalty should be

imposed. A finding merely that the

imposition of the death penalty by the

trial court was “factually supported” or

"justified by the evidence” is not the

separate and independent judgment by

this court that the death penalty

warrants. This is in keeping with the

mandate of the United States Supreme

Court that we must review carefully and

with consistency death penalty cases and

not engage in a “cursory” or “rubber

stamp” type of review. Proffitt v.

Florida, 428 U.S. 242, 96 S.Ct. 2960, 49

L. Ed. 2d 913 (1976).

The death penalty statute must not

be applied freakishly or unevenly. We

review each and every death penalty

imposed in the State of Arizona, and not

only are we in a position to insure

that, based upon all the records that

come before us, the death penalty is

evenly enforced on appeal, but also that

it is not inflicted in an arbitrary and

capricious manner. As was stated by the

United States Supreme Court:

"“[W)here discretion is afforded a

sentencing body on a matter so grave

as the determination of whether a

human life should be taken or

spared, that discretion must be

suitably directed and limited so as

to minimize the risk of wholly

arbitrary and capricious action."

Gregg v. Georgia, 428 U.S. 153, 189,

96 S.Ct. 2909, 2932, 49 L.Ed.2d 859,

883 (1976).

And:

"This means that if a State wishes

to authorize capital punishment it

has a constitutional responsibility

to tailor and apply its law in a

manner that avoids the arbitrary and

capricious infliction of the death

penalty. . Godfrey v.

Georgia, 446 U.S. 420, 428, 100

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S.Ct. 1759, 1764, 64 L. Ed. 2d 398,

406 (1980).

State v. Watson, 129 Ariz. 60, 63, 628 P.2d 943, 946

(1981). The Arizona Supreme Court has not hesitated to

disagree with the trial court's finding of aggravation or,

in its independent assessment of aggravation and

mitigation, to determine that migitation may be substantial

enough to call for leniency. State ». Watson, supra

{reduced to life because of model prisoner mitigation and

attempts to obtain education); State v. Lujan, supra

(supreme court disagreed with trial court's finding of

Brookover, supra (neurological lesion found to be major

causative factor in defendant's actions sufficient to

reduce sentence to life). This argument has no merit.

IMPOSITION OF THE DEATH PENALTY IN

PETITIONER'S CASE IS AMPLY SUSTAINED BY

THE EVIDENCE AND DOES NOT VIOLATE DUE

PROCESS OR CONSTITUTE CRUEL AND UNUSUAL

PUNISHMENT.

A. The Arizona Supreme Court properly found that the

prosecution gave petitioner sufficient notice about

the particular circumstances and evidence upon which

it would rely to prove aggravation.

Citing a case that involved absolutely no information

about the nature of charges against a juvenile, petitioner

fallaciously analogizes the notice he received to that

received by the parents in In Re Gault, 387 U.S. 1 (1967).

In that case, as this Court is well aware, the parents of a

juvenile against whom delinquency proceedings had been

instituted received notice of nothing but the date of the

proceedings. That is not what happened in petitioner's

case, and that is also the reason that he merely makes the

assertion without demonstrating precisely what it was that

supposedly surprised or prejudiced him. The Arizona

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Supreme Court correctly held that the state provided

petitioner ample notice of the circumstances it would seek

to prove and the evidence upon which it would rely far

enough in advance of the aggravation-mitigation hearing to

allow defense counsel to prepare. State v. Ortiz, supra,

at 26-27.) The state filed a 12-page memorandum

September 10, 1979, disclosing its intention to rely on the

circumstances of Ariz.Rev.Stat.Ann. § 13-703(F) (3) and

(6). The state submitted an additional memorandum

September 12, and a third memorandum October 2, which

stated that the prosecutor would also seek aggravation

under Ariz.Rev.Stat.Ann. § 13-703(F)(1). (Appendix.)

Moreover, defense counsel filed a 6-page reply to those

memoranda. That memorandum, which includes a

point-by-point refutation of the factual basis upon which

the state intended to rely to establish the existence of

the circumstances in Ariz.Rev.Stat.Ann. § 13-703(F) (3) and

(6), makes it perfectly plain that defense counsel knew

exactly what the state would try to show; otherwise, he

could not have responded in detail. (Appendix.) As the

Arizona Supreme Court notes in the opinion, the statute

provides that all evidence admitted at trial that may bear

upon aggravation or mitigation “shall be considered"

without having to reintroduce it at the sentencing

hearing. Ariz.Rev.Stat.Ann. § 13-703(C). Thus, petitioner

was clearly on notice that the state would seek to prove

three aggravating circumstances based upon any evidence

adduced at trial, and, in particular, that evidence

discussed in the three memoranda submitted by the state.

It is ludicrous to assert that one who sat through the

entire trial and heard every detail (which he already knew)

could not possibly imagine what evidence the prosecution

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would use to prove aggravation. That, of course, was not

the situation in Sault, supra. Moreover, petitioner never

says what surprised him or what he could possibly have done

to rebut anything presented. The record is clear that

petitioner was fully advised of the aggravating

circumstances the state would attempt to prove in advance

of the sentencing hearing.

B. Petitioner was not denied any Sixth Amendment right to

confront his wife because this Court has never held that

all due process rights apply to sentencings, and petitioner

could not have rebutted the evidence because he had

admitted to two doctors, one of them a defense witness,

that he had beaten his wife and had extramartial affairs.

Petitioner correctly recognizes, as did the Arizona

Supreme Court, that this Court has never held that the full

panoply of procedural due process rights available to a

defendant prior to and during trial are equally mandated at

a sentencing hearing. Williams v. New York, 337 U.S. 241

(1949). Neither does Gardner v. Florida, 430 U.S. 339

(1977), lend support to petitioner's claims on the specific

facts of this case. In Gardner the jury had found some

aggravation but mitigation sufficient to render an advisory

opinion recommending life imprisonment. The trial court,

however, after considering a presentence report that it did

not fully disclose to either counsel, stated that it was

imposing the death penalty because there was aggravation

and no mitigation. The trial court made it clear that it

was doing so, at least in part, in reliance on information

in the presentence report. Thus, that case involved a

failure to disclose information to the state or defense

counsel. This Court found that procedure did violate due

process. However, in stating in general terms that

sentencing procedures had to comply with due process,

Justice Stevens inserted a familiar caveat:

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The fact that due process applies

does not, of course, implicate the

entire panoply of criminal trial

procedural rights.

"Once it is determined that due process

applies, the question remain. what

process is due. It has been said so

often by this Court and others as not to

require citation of authority that due

process is flexible and calls for such

procedural protections as the particular

situation demands. ... Its

flexibility is in its scope once it has

been determined that some process is

due; it is a recognition that not all

situations calling for procedural

safeguards call for the same kind of

procedure." Morrissey v. Brewer, 408

U.S. 471, 481.

430 U.S. at 358 n.9. It is quite clear, therefore, that

“due process“ retains much of the amorphous and

chameleon-like quality that has long characterized this

pragmatic concept, and does not, on the facts of this case,

mandate a finding that a defendant has a Sixth Amendment

right to cross-examine a witness whose testimony the state

offered, not in aggravation to enhance punishment, but 4

rebuttal to petitioner's proffer of mitigation. This is

particulary true in light of the fact, nowhere mentioned by

petitioner, that he admitted to Dr. Ginnetti that he had

engaged in numerous extramarital affairs and beaten his

wife, and admitted to Dr. Gurland that he had beaten his

wife. (R.T. of Oct. 4, 1979, at 12-13; Dr. Ginnetti's

evaluation of July 18, 1979, at 3.) How was petitioner

going to surrebut what he had told his own expert witness?

The Court will note that petitioner does not allege that he

could have produced any surrebuttal, or that he did not

relate that information to the doctors. The last case upon

which petitioner relies, Specht v. Patterson, 386 U.S. 605

(1967), is easily distinguishable from the case sub

judice. This Court first reiterated that it adhered to its

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earlier holding in Williams v. New York, supra. Having

reaffirmed its holding in Williams, this Court indicated

that the case before it evolved within a radically

different context. Specht was charged and convicted under

a statute that provided for a maximum penalty of 10 years.

He was sentenced, however, not under the statute under

which he was convicted, but under Colorado's Sex Offenders

Act, which allowed an indeterminate sentence of 1 day to

life if the offender was found to constitute a menace to

society, or to be an habitual offender and mentally ill.

The requisite psychiatric evaluation was performed, and a

report forwarded to the trial court. Specht's counsel,

however, did not receive a copy of the report, and did not

have the chance to cross-examine the psychiatrist. The

Court said:

[T]he invocation of the Sex Offenders

Act means the making of a new charge

leading to criminal punishment.

386 U.S. at 610 (emphasis added, citation omitted). Thus,

Specht was subjected to a totally different range of

penalties -- not limited to the 10 years in the statute

under which he was convicted -- and given no hearing at

all. That obviously is not the case before this Court.

The Arizona Supreme Court correctly decided that the

Sixth Amendment right to confrontation has never expressly

been held to apply to sentencings, as opposed to trials.

In addition, petitioner did not argue on appeal, and does

not argue here, that he could have produced any mitigation

from cross-examining his wife, nor does he argue that he

could have rebutted what the state offered in rebuttal to

his mitigation. It is patent that he could not have

because, as respondent has pointed out, petitioner admitted

to two doctors that he was an adulterer and had beaten his

wife.

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C. The trial court did not consider any non-statutory

aggravating circumstances.

Because the trial court did not find mitigation,

petitioner maintains that the trial court actually used the

fact that he was a liar, adulterer, and wife-beater as

non-statutory aggravating factors. The trial court simply

stated the some factors it might ordinarily have considered

mitigation were offset by rebuttal in the form previously

mentioned. That special verdict also indicates that

petitioner's proffered mitigation was considerably weakened

by the fact, specifically mentioned twice in the special

verdict, that he spent the first three months in jail

conspiring to murder the child-witnesses against him.

(Petitioner's Appendix III, at 5.) The jury determined

that petitioner was a liar when it convicted him of all

charges. Since petitioner admitted to Drs. Ginnetti and

Gurland that he was an adulterer and wife-beater, there is

little point in protesting the existence of that

information at this late date. Moreover, even if the trial

court found everything petitioner offered as mitigation, it

would still have had to weigh whether that was substantial

enough to call for leniency in view of the aggravation

proven. Finally, in its independent review of the entire

record, the Arizona Supreme Court agreed with the trial

court that whatever mitigation petitioner had offered, “it

was not sufficiently substantial to call for leniency."

Slip opinion, at 35. In essence, petitioner argues that

the state may not produce, and the trial court may not

consider, rebuttal to mitigation. However,

Ariz.Rev.Stat.Ann. € 13-703(C) specially allows either

party to rebut evidence presented by the other. Petitioner

is of the opinion that all evidence offered in rebuttal to

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mitigation is actually aggravation in disguise. Such

"aggravation," of course, could not be used under the

specifically restricted list of aggravating factcrs in

Ar iz. Rev. Stat. Ann. § 13-703(F) and was not so used in this

case.

D. Since the Arizona Supreme Court had never considered a case

with a similar factual predicate, it did not depart from

oner created a grave risk of

ea o others during e commission of the Sr

Attempting to have this Court agree with him about a

premise upon which he could not persuade the Arizona Supreme

Court, petitioner argues that the Arizona Supreme Court

"deviated from established precedent"when it considered that

total chain of his actions in murdering Manuelita McCormack

and setting fire to the house, with the three small children

in it, in an attempt to cover his tracks. Respondent notes

that petitioner does not allege that the circumstances of

the two cases he cites are similar to those of his case.

They are not. Petitioner unsuccessfully attempted to

convince the Arizona Supreme Court to artifically

compartmentalize his continuing chain of actions so that it

would consider only the actual stab wounds as he inflicted

them upon the victim. This the supreme court refused to

do. Noting that the concealment of the murder was

intimately bound up with the murder, the Arizona Supreme

Court held that in setting fire to the house, after stabbing

Patricia and Bernice and telling them to wait for the

firemen, petitioner created a grave risk of death to

others. Slip opinion, at 31. That conclusion could not

have been more logical. It is true that in neither Clark,

supra, nor Ceja, supra, did the Arizona Supreme Court find

this particular circumstance. The reason is that the

defendants in both those cases intended to, and did, kill

everyone present at the — In addition, there was no

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evidence that while Clark and Ceja were shooting, any other

person who was not later deliberately murdered, was in a

zone of danger, e.g., in the path of errant bullets. It is

equally clear, that neither Clark nor Ceja stabbed two

small girls, told them and their 3-year-old brother

(petitioner's godson in this case) to stay in the house

until the firemen arrived, and then set fire in several

locations throughout the house using trailers to increase

the conflagration. Contrary to petitioner's assertion, the

Arizona Supreme Court had never previously interpreted the

phrase “in the commission of the offense" in

Ariz.Rev.Stat.Ann. § 13-703(F) (3) to be limited to only

those acts that immediately produce the death of a victim.

The decisions mentioned by petitioner merely held that, on

the particular facts of those cases, the defendants did not

endanger others by the actual act of firing a gun; those

cases did not hold that 'in the commission of the offense"

was rigidly limited to the immediate death-producing act

and could not encompass a deliberate arson calculated to

conceal a murder that had immediatey preceded it. See also

King ». State, 407 S.2d 904 (Fla. 1981) (Florida Supreme

Court upheld trial court's finding that, in the commission

of the offense, the defendant created a great risk of

danger to many others by committing arson after he had

raped and killed an elderly lady, thus endangering fireman

and others who might attempt to extinguish the blaze and

rescue the victim.)

Similarly, petitioner errs in his assertion that the

Arizona Supreme Court deviated from previous holdings by

relying on acts immediately surrounding the killing to find

that petitioner committed the murder in an especially

heinous and depraved manner. Both Ceja, supra, Lujan,

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supra, make it clear that the Arizona Supreme Court

considers the totality of the circumstances surrounding the

actual murder and does consider behavior other than the

actual death-producing act. 126 Ariz. at 39-40, 612 P.2d

at 495-96; 124 Ariz. at 372, 604 P.2d at 636. Therefore,

the particular circumstances of this case, when viewed in

light of previous cases involving the finding of “heinous”

and “depraved,” fully justify the finding of that

circumstance.

State v. Johnson, Ariz. „ 640 P.2d 861 (1982),

is easily distinguishable from petitioner's case. The

Arizona Supreme Court dealt there, not with a first-degree

murder case and the death penalty, but with solicitation to

commit murder. Thus, it was obvious that since no murder

had been committed, the trial court erred in considering

how the murder might have been committed. It is common

sense that a court will not consider as aggravation

conjectured charactertistics of an unconsummated act. 640

P.2d at 866. That decision lends no support to

petitioner's argument since he did murder his former

paramour, stabbed two small children, and left them and his

own 3-year-old godson in a burning house, telling them to

wait for the firemen.

111

THE ARIZONA SUPREME COURT DID NOT REMAND

THE CASE BECAUSE THE TRIAL COURT

CORRECTLY DETERMINED THE EXISTENCE OF

TWO AGGRAVATING CIRCUMSTANCES AND NO

MITIGATION SUBSTANTIAL ENOUGH TO WARRANT

LENIENCY.

Under Arizona law, if the trial court finds one

aggravating circumstance and no mitigation substantial

enough to call for leniency, it must impose the death

226

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penalty. Xr iz. Rev. Stat. Ann. § 13-703 (E). In the case at

bar, the Arizona Supreme Court held that the trial court

had properly found two aggravating circumstances, and that

the mitigation offered by petitioner was not substantial

enough to merit leniency. Since both the trial court and

the Arizona Supreme Court, in its independent review of the

record, determined that there was no mitigation warranting

leniency, there was no point in remanding the case. It

would have made no difference if the supreme court had

agreed with the trial court about only one aggravating

circumstance because it is the absence of mitigation that

requires the imposition of the death penalty, not multiple

aggravating circumstances. Respondent also points out that

the Arizona Supreme Court did not "reverse," in the

ordinary sense of the word, the trial court's holding with

respect to the circumstance in Ariz.Rev.Stat.Ann.

§ 13-703(F) (6). Although it disagreed with the finding of

especially “cruel,” it agreed that petitioner committed the

offense in an especially heinous and depraved manner. In

view of the fact that that particular circumstance is

written in the disjunctive, the supreme court upheld the

finding of that circumstance, although not the specific

element of cruelty. Other states whose statutes also

require the imposition of death when there is one

aggravating factor and insufficient mitigation have refused

to remand the case for resentencing. Francois v. State,

supra; Enmund v. State, 399 S.2d 1362 (Fla 1981); State u.

Mattheson, 407 S.2d 1150 (La. 1981); State v. Williams, 383

S.2d 369 (La. 1980), cert. denied, 449 U.S. 1103 (1981);

State v. Martin, 376 S.2d 300 (La. 1979); cert. denied, 449

U.S. 998 (1980); State v. Goodman, 257 S.E.2d 569 (N.C.

1979).

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Respondent is aware that this Court has heard arguments

in Zant ». Stephens, 631 F.2d 397 (5th Cir. 1980), cert.

granted, No. 81-89. Until that case is decided, however,

respondent submits that there is no precedent from this

Court necessitating a remand under the circumstances of

this case. Moreover, even if the Court should affirm the

Fifth Circuit's decision, respondent points out that the

trial court, not the jury, determines the aggravation and

mitigation in Arizona, and that the particular circumstance

about which the Arizona Supreme Court disagreed with the

trial court (use of simultaneous conviction -- conspiracy

to commit murder -- to aggravate) was a mistake of law, not

of fact, and quite different in quality from the matters

considered and determined by the Georgia jury in Zant v.

Stephens, supra. When there is nothing to balance, due to

a) ck of mitigation, it is futile to remand the case so

long as the trial court has properly found at least one

aggravating circumstance.

CONCLUSION

The interpretation of the highest state court about a

matter of state law is binding on this Court in the absence

of infringement upon the Constitution. Arizona has clearly

and repeatedly defined the terms used in Ariz.Rev.Stat.Ann.

§ 13-703(F) (6). The fact that petitioner does not agree

with the legislature's choice to write that circumstance in

the disjunctive does not render the statute

unconstitutional. Nor does the fact that some (but not

all) states have interpreted roughly similar language

differently, render Arizona's interpretation

impermissible. Arizona has applied its definitions

consistently -- regardless of petitioner's dislike for

them. Petitioner's case, in which the Arizona Supreme

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Court disagreed with the trial court's finding that the

offense was committed in an especially cruel mannner, and

the other cases respondent has cited, amply demonstrate

that the Arizona Supreme Court has assiduously monitored

these cases to assure evenhanded application and

interpretation of aggravating circumstances. Likewise,

ther2 is no basis for the contention that the Arizona

Supreme Court does not diligently perform a proportionality

review of all death-penalty cases.

Equally lacking in merit are petitioner's assertions

that he did not receive adequate notice of the particular

circumstances upon which the state would rely to prove

aggravation and, especially in view of the fact that he

admitted to two doctors that he had beaten his wife and

engaged in numerous extramarital affairs, the argument that

he was denied a Sixth Amendment right to cross-examine his

wife. As respondent has noted, the stare offered that

testimony, not to establish aggravation, but to rebut

mitigation. Petitioner does not argue -- because he couid

not -- that he could have rebutted his own prior admissions

to the doctors.

When there is no balancing to perform, because the

defendant has produced no persuasive mitigation, there is

no reason to remand a case after the highest appellate

court agrees with the trial court that two aggravating

circumstances do exist.

Petitioner has not raised a substantial federal

question and has not demonstrated infringement of

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constitutionally protected rights. Therefore, respondent

respectfully requests that the Court deny certiorari.

Respectfully submitted,

ROBERT K. CORBIN

Attorney General

, 2

WILLIAM’ J. act. 11

Chief Counsel

riminal Divi n

ROBERTS

Assistant Attorney General

Attorneys for RESPONDENT

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APFIDAVIT

STATE OF ARIZONA )

COUNTY OF MARICOPA 1

JACK ROBERTS, being first duly sworn upon oath,

deposes and says:

That he served the attorney for the petitioner in the

foregoing case by forwarding one (1) copy of RESPONSE TO

PETITION FOR WRIT OF CERTIORARI, in a sealed envelope,

first class postage prepaid, and deposited same in the

United States mail, addressed to:

DONALD S. KLEIN

Deputy Public Defender

45 West Pennington, 3rd Floor

Tucson, Arizona 85701

Attorney for PETITIONER

this 13th day of April, 1982.

SUBSCRIBED AND SWO

April, 1982.

My Commission Expires:

July 17, 1982

CR25-123

4604G

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.